author: WHIPPLE, C.J. WELCH, J.,

text:
    Stacy RICHARDS, Individually, and on Behalf of All Other[s] Similarly Situated v. BATON ROUGE WATER COMPANY and Parish Water Company, Inc.
    No. 2013 CA 0873.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 2014.

      Patrick Pendley, Nicholas Rockforte, Jessica Perez, Plaquemine, LA, Charlotte McDaniel McGeheem, Baton Rouge, LA, for PlaintiffAppellant, Stacy Richards.
    Brett P. Furr, John Stewart Thorp, Timothy J. Poche, Katia Desrouleaux Bowman, L. Adam Thames, Baton Rouge, LA, for Defendant/Appellee, Parish Water Company, Inc.

      Before WHIPPLE, C.J., WELCH and CRAIN, JJ.
   WHIPPLE, C.J.

|2This appeal raises the issue of whether the district court or the Louisiana Public Service Commission (“the PSC”) has subject matter jurisdiction to adjudicate claims relating to the quality of water supplied by a public utility. Plaintiff challenges the trial court’s judgment maintaining the defendant’s declinatory exception raising the objection of lack of subject matter jurisdiction and dismissing her case. For the following reasons, we affirm in part, reverse in part, and remand with instructions for the district court to stay the proceedings.

PROCEDURAL HISTORY

On September 28, 2012, plaintiff, Stacy Richards, filed a petition for damages and permanent injunction against Parish Water Company, Inc. (“Parish Water”), styling her claim as a class action brought individually and on behalf of all others similarly situated. In her petition, she contends that Parish Water supplied drinking water to the residents of the Town of Central, but that for many years, the drinking water supplied was defective in' that it was not reasonably fit for its ordinary and intended use, thereby rendering it totally useless or greatly diminishing its value. Thus, pursuant to LSA-C.C. art. 2520, plaintiff asserts a claim in redhibition and seeks “a reduction of the purchase price by repayment to each purchaser of the moneys they have paid to [Parish Water] for potable water, together with reasonable attorney’s fees.” Plaintiff further asserts in her petition: a claim 1 ofor “dommage moral,” pursuant to LSA-C.C. art 1998; a claim of fraud by misrepresentation, pursuant to LSA-C.C. art. 1953; a claim for rescission of contract together with damages and attorney’s fees, pursuant to LSA-C.C. art.1958; and a claim for a permanent injunction ordering Parish Water to cease and desist from providing potable water to plaintiff and the putative class members in the defective state that it has been delivered, pursuant to LSA-C.C.P. art. 3601 et seq. Accordingly, in praying for relief, plaintiff seeks damages, costs, legal interest, and attorney’s fees, as well as a permanent injunction.

In response to the petition, Parish Water filed a declinatory exception raising the objection of lack of subject matter jurisdiction, contending that plaintiffs claims are all fundamentally connected to and arise out of the service Parish Water provides to plaintiff and other consumers, matters over which the Louisiana Constitution and statutory law vest exclusive jurisdiction in the PSC. At the hearing on Parish Water’s exception, the district court concluded that plaintiffs claims, although couched in terms of redhibition and breach of contract, arose out of the service rendered by a public utility and, accordingly, must first be presented to the PSC, with a right thereafter to judicial review. Thus, by judgment dated May 8, 2013, |4the district court maintained the exception of lack of subject matter jurisdiction and dismissed plaintiffs suit without prejudice.

From this judgment, plaintiff appeals, contending that the district court erred in: (1) finding that the PSC had primary jurisdiction to adjudicate redhibition and fraud claims involving a public utility; (2) holding that the PSC’s administrative rules and regulations provide the only source of judicial access and relief to a plaintiff asserting redhibition and fraud claims against a public utility; and (3) maintaining Parish Water’s exception of lack of subjection matter jurisdiction.

SUBJECT MATTER JURISDICTION

Louisiana Constitution article V, § 16(A)(1) vests the district court with “original jurisdiction of all civil and criminal matters,” unless there is other jurisdictional authorization in the Constitution. Central Louisiana Electric Company, Inc. v. Louisiana Public Service Commission, 601 So.2d 1383,1385 (La.1992).

The constitutional provision pertaining to the powers and duties of the PSC is LSA-Const. art. IV, § 21. Section 21(B) grants the PSC the power to “regulate all ... public utilities” and “such other regulatory authority as provided by law.” As authorized by LSA-Const. art. IV, § 21(B), the Legislature has further provided that the PSC “shall exercise all necessary power and authority over any ... waterworks ... for the purpose of fixing and regulating the rates charged or to be charged by and service furnished by such public utilities,” LSA-R.S. 45:1163(A)(1), and that “[t]he power, | .¡authority, and duties of the [PSC] shall affect and include all matters and things connected with, concerning, and growing out of the service to be given or rendered by such public utility, except in the parish of Orleans,” LSA-R.S 45:1164(A). Indeed, the Louisiana Supreme Court has labeled the PSC’s jurisdiction over public utilities as “plenary.” Daily Advertiser v. Trans-La (A Division of Atmos Energy Coloration), 612 So.2d 7, 16 (La.1993); Gulf States Utilities Company v. Louisiana Public Service Commission, 578 So.2d 71, 100 (La.), cert. denied, 502 U.S. 1004, 112 S.Ct. 637, 116 L.Ed.2d 655 (1991).

However, as noted by the Louisiana Supreme Court in Central Louisiana Electric Company, Inc., “[t]he Legislature has never ‘provided by law’ for the PSC to exercise jurisdiction over other subject matters and areas of litigation in which public utilities are involved, such as tort actions and contract disputes.” Central Louisiana Electric Company, Inc., 601 So.2d at 1386 (emphasis added). Rather, an action for damages generally constitutes a civil matter over which the district court would have jurisdiction. Daily Advertiser, 612 So.2d at 16, Thus, it is necessary at the outset to determine the relief demanded by plaintiff in order to resolve the subject matter jurisdiction issue. In resolving this jurisdictional issue, we are not bound by the legal labels a plaintiff affixes to her claims, but must look beneath the labels to ascertain the gravamen of plaintiffs claims. Daily Advertiser, 612 So.2d at 18.

On appeal, plaintiff contends that she has asserted claims of redhibition and fraud, which are exclusively within the jurisdiction of the district court. With regard to her claim labeled as fraud, plaintiff asserts a claim pursuant to LSA-C.C. art. 1953 et seq., alleging in her petition that Parish Water has “committed fraud by misrepresentation and/or suppression | nof the truth about the quality of the potable water.” Thus, she seeks rescission of the contract between herself and Parish Water, as well as damages and attorney’s fees provided by LSA-C.C. art. 1958.

With regard to her claims styled in red-hibition, plaintiff alleges in her petition that the drinking water she and the other residents of the Town of Central receive in their homes and businesses is not reasonably fit for its ordinary and intended use and is so defective that she and the putative class members “would not purchase this water from [Parish Water] but for the fact that [it has] a monopoly for the delivery and sale of potable water within the Town of Central.” Alternatively, she avers .that “if the water is found to be not totally useless, the usefulness of the water is such that its value is greatly diminished.” Thus, citing LSA-C.C. art. 2520, she seeks “a reduction of the purchase price by repayment to each purchaser of the moneys that they have paid to defendants for potable water, together with reasonable attorney’s fees.” Additionally, plaintiff alleges a claim for nonpecuniary damages pursuant to LSA-C.C. art. 1998. Finally, plaintiff seeks a permanent injunction pursuant to LSA-C.C.P. art. 3601, et seq., ordering Parish Water to cease and desist from providing potable water which contains particulate matter to the degree that the water is discolored and leaves a “greasy” film in household appliances and containers.

Accordingly, based on allegations of substandard water service, plaintiff seeks relief in the form of damages, attorney’s fees, rescission of contract, and permanent injunction. Through the claims for rescission of contract and permanent injunction, plaintiff appears to be seeking a change |7in how water service is provided to her home or business or a change in the party that provides such a service. The power to grant such relief is clearly within the jurisdiction of the PSC. •

As noted above, pursuant to constitutional and statutory authority, the PSC has original jurisdiction over subject matters that principally involve the right to fix and regulate rates to be charged and the services to be furnished by a public utility. Ethyl Corporation v. Gulf States Utilities, Inc., 2001-2230 (La.App. 1st Cir.10/2/02), 836 So.2d 172, 176, writ de nied, 2002-2709 (La.12/19/02), 833 So.2d 340. It regulates all public utilities, ■ including waterworks, LSA-Const. art. IV, § 21 and LSA-R.S. 45:1163(A)(1), and its power, authority, and duties “shall affect and include all matters and things connected with, concerning, and growing out of the service to be given or rendered by such public utility....” LSA-R.S. 45:1164(A)(emphasis added). While the term “service” as used in LSA-R.S. 45:1164(A) has not been defined by the legislature, the Louisiana Supreme Court has held that “service” refers to the “purpose for which the utility is engaged.” Louisiana Cablevision v. Louisiana Public Service Commission, 493 So.2d 555, 557-558 (La.1986). Pursuant to this authority, the PSC adopted a procedure, as established in a 1995 General Order of the PSC, which essentially provides that a customer who feels aggrieved with the service provided by a water utility may apply to the PSC to obtain release from service from that water utility. LPSC General Order (5/25/95); see | ¡¡Hopkins v. Louisiana Public Service Commission, 2010-0255 (La.5/19/10), 41 So.3d 479, 480 n. 2.

In the instant case, a review of the allegations in plaintiffs petition demonstrates that this is primarily a water utility service matter within the PSC’s exclusive original jurisdiction. See generally Daily Advertiser, 612 So.2d at 18-26 (wherein the Court, in ascertaining the gravamen of plaintiffs’ claims, determined that the case was primarily a rate matter within the PSC’s exclusive jurisdiction); see also Hopkins, 41 So.3d at 48ÍM83 (wherein water utility sought appellate review in the courts of the PSC’s ruling with regard to customers’ complaints about poor water quality, inadequate water pressure, and unreliable service). As noted by the district court in oral reasons for judgment:

I don’t know if this matter proceeded to this court if I could even provide adequate relief that’s asked. Even if I would find that the service quality of the water or the service was inadequate, I don’t think I have the authority to order Parish [Water] to stop providing water. 1 can’t allow plaintiff to obtain water from another source or another provider. Only the [PSC] can do that.

Thus, the district court properly determined that it does not have jurisdiction over plaintiffs claims related to the service provided by the water utility, relief from such service which she seeks through her claims of rescission of contract (apparently to be released from service by defendant water utility) and the request for a permanent injunction (seeking to prevent Parish Water [nfrom providing inadequate water service).

On the other hand, where the essence of plaintiffs claims are that Parish Water’s inadequate service caused her damage in some way, the PSC does not have jurisdiction over plaintiffs claims for damages and attorney’s fees. Rather, jurisdiction lies with the district court. See Ethyl Corporation, 836 So.2d at 176. As such, any claims for pecuniary and nonpe-cuniary damages are within the district court’s original jurisdiction.

Accordingly, plaintiff has asserted claims that present some issues for court resolution and some issues for agency resolution. In such a case, dismissal of plaintiffs claims insofar as they arise out of the water service provided by Parish Water was warranted, and was proper, because such claims are within the PSC’s exclusive jurisdiction and are subject to the requirement of exhaustion of administrative remedies. See Daily Advertiser, 612 So.2d at 26. Nonetheless, plaintiff is likewise entitled to adjudication of the remainder, if any, of those claims by plaintiff over which jurisdiction in the district court is proper. However, as our Supreme Court has instructed, in such situations, the doctrine of primary jurisdiction compels that such judicial determination be deferred until after the PSC proceeding is completed. See Daily Advertiser, 612 So.2d at 31.

As the Court explained in Daily Advertiser, the doctrine of primary jurisdiction applies when concurrent jurisdiction exists between the courts [inand the administrative agency. Daily Advertiser, 612 So.2d at 27. In such cases, the judicial process is suspended pending referral to the administrative agency of issues, which under a regulatory scheme, are within the agency’s special competence. Paulsell v. State, Department of Transportation and Development, 2012-0396 (La.App. 1st Cir. 12/28/12), 112 So.3d 856, 861, writ denied, 2013-0274 (La.3/15/13), 109 So.3d 386, Thus, where a plaintiff asserts claims within the PSC’s exclusive jurisdiction (such that dismissal of those claims by the district court is warranted), the doctrine of primary jurisdiction compels that a judicial determination of the remaining claims over which the district court has jurisdiction be deferred until after the PSC proceeding is completed. Daily Advertiser, 612 So.2d at 26-27.

Accordingly, as the Supreme Court articulated in Daily Advertiser, “while we express no opinion on the merits of plaintiff[’s] other claims, we cannot ignore the presence in plaintiff[’s] petition of the prayer for damages.... ” Daily Advertiser, 612 So.2d at 31. Notwithstanding that the thrust of plaintiffs petition is that the quality of the water service provided by Parish Water is unsatisfactory, a matter within the PSC’s exclusive jurisdiction, plaintiff is entitled to the adjudication of the remainder, if any, of her claims over which jurisdiction in the district court is proper. However, in accordance with the Supreme Court’s pronouncements in Daily Advertiser, the doctrine of primary jurisdiction compels that such judicial determination be deferred until after the PSC proceeding is completed.

CONCLUSION

For the above and foregoing reasons, we affirm the. district court’s judgment to the extent that it maintained Parish Water’s exception of lack of subject matter jurisdiction and dismissed plaintiffs claims arising out of the water service provided by Parish Water and her resulting request for relief in |nthe form of rescission of contract (seeking to be released from service by defendant water utility) and permanent injunction (seeking to prevent Parish Water from continuing to provide such inadequate water service). However, as to the remainder of plaintiffs claims seeking damages, we reverse the judgment maintaining the exception of lack of subject matter jurisdiction. As to the damage claims, the matter is remanded to the district court with instructions to stay the proceedings in the district court pending the completion of proceedings before the PSC. either as presently instigated or as may be instigated or supplemented by plaintiff in the PSC. See Daily Advertiser, 612 So.2d at 32.

Costs of this appeal are assessed equally between the parties.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

WELCH, J., agreeing in part and dissenting in part, with reasons assigned.

WELCH, J.,

agreeing in part and dissenting in part.

|,I agree that the trial court properly maintained the exception of lack of subject matter jurisdiction as to plaintiffs claim for rescission of contract. The allegations of the petition make it clear that plaintiff is seeking to be released from the service provided by Parish Water and there is a specific procedure in place in the PSC to allow customers of public utilities to obtain this relief. I also agree that the PSC has no jurisdiction over the redhibition and fraud claims for which plaintiff is seeking damages based on the substandard quality of the water, and therefore, the district court erred in maintaining the exception of lack of subject matter jurisdiction as to those causes of action. However, I disagree with the opinion to the extent that it requires remand of the claim for injunctive relief to the PSC. I find that the term “service” in La. R.S. 45:1164(A) is being read too broadly to effectively subject all claims involving water quality, for which monetary relief is not sought, to the jurisdiction of the PSC. I conclude that the district court erred in granting the exception of lack of subject matter jurisdiction as to the claim for injunctive relief for water quality claims. Therefore, I respectfully dissent from that portion of the opinion.

      . Plaintiff also named Baton Rouge Waterworks Company as a defendant, but this defendant was later dismissed without prejudice on joint motion of the two parties. With regard to plaintiff’s request that the matter be certified as a class action, upon stipulation of the parties, the district court ordered that the requirement of LSA-C.C.P. art. 592(A)(1) for the filing of a motion to certify the matter for class action treatment be extended without date.

      . "Dommage moral” refers to damage of a moral nature which does not affect a "material” or tangible part of a person's patrimony, i.e., a nonpecuniary loss. Jones v. Winnebago Industries, Inc., 47,137 (La.App. 2nd Cir. 5/16/12), 92 So.3d 1113, 1121. Louisiana Civil Code article 1998, which addresses damages caused by failure to perform a conventional obligation, provides that damages for nonpecuniary loss may be recovered when a contract "is intended to gratify a nonpecuni-ary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss.”

      . Louisiana Civil Code article 1953, addressing a vice of consent in conventional obligations, provides: "Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.”

      . Louisiana Civil Code article 1958 provides that ”[t]he party against whom rescission is granted because of fraud is liable for damages and attorney fees.”

      . In its entirety, LSA-Const. art. IV, § 21(B) provides:
      Powers and Duties. The commission shall regulate all common carriers and public utilities and have such other regulatory authority as provided by law. It shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties, and shall have other powers and perform other duties as provided by law.

      . Plaintiff also alleged in her petition that the drinking water supplied by Parish Water "has fouled household filtration systems and machines that use the water, for example, washing machines, etc., and other household items to the extent that they have had to be replaced in minimal periods of time, well short of their normal useful life,” thus seemingly asserting a claim for pecuniary damages.

      . The 1995 General Order provides, in pertinent part, as follows:
      Any consumer receiving service from a water utility who feels aggrieved with the service being offered to or received by him may apply to the Louisiana Public Service Commission for an order directing his present supplier to show cause why the consumer should not be released from said supplier, and if the Commission shall find that the service rendered to such consumer is inadequate for any reason whatsoever and will not be rendered adequate within a reasonable time not to exceed six (6) months, the release shall be granted....

      . To the extent that plaintiff asserted at oral argument in this matter that the Louisiana Department of Health and Hospitals (DHH) is the agency that regulates quality of water rather than the PSC, we initially note that while plaintiff alleged in her petition that the water supplied by Parish Water was not reasonably fit for its ordinary and intended use. she did not allege any violations of DHH regulations regarding water safety. Clearly, any allegations of violations of DHH regulations would be within the purview of DHH. See LSA-R.S. 40:4(A)(8) & 40:5(5) & (6). Nonetheless, to the extent that DHH does cite a water utility for violations of rules and regulations concerning water safety, that is certainly a consideration that the PSC may take into account in addressing complaints about a water utility’s service, as part of its regulation of the service provided by public utilities. See Hopkins, 41 So.3d at 482-483.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    Rebecca Louise Fitch GUILLOT and Peter M. Guillot, Individually and on behalf of Connor Guillot v. Rodney Bryan DOUGHTY and Allen Leroy Doughty.
    No. 2013 CA 1348.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 2014.

      Robert W. Hallack, Baton Rouge, LA, for Plaintiffs-Appellees, Rebecca Guillot and Peter Guillot.
    James S. Knight, Franklinton, LA, for Defendants-Appellants, Rodney Bryan Doughty and Allen Leroy Doughty.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   PETTIGREW, J.

| ?This appeal is by the defendants of a February 20, 2013 judgment granted in favor of the plaintiffs. After a trial on the merits, on claims of redhibition and personal injury, the trial court rescinded the sale of the house located at 407 Avenue H, Kentwood, Louisiana. The rescission was based on a finding that the house contained redhibitory defects (toxic mold) of which the sellers were aware, but failed to inform the buyers. The judgment ordered the sellers to refund the plaintiffs the purchase price of $50,000.00 plus reasonable expenses of $1,875.00 together with judicial interest and all costs, awarded an additional $100,000.00 on a personal injury claim for damages sustained by the wife as a result of the exposure to mold in the home, and awarded the husband $50,000.00 for his own losses as a result of exposure to mold. The defendants also appeal the trial court’s denial of their exception of prescription on March 5, 2007.

FACTUAL BACKGROUND

On March 31, 2000, plaintiffs, Rebecca and Peter Guillot (the Guillots), purchased from brothers, Rodney Bryan Doughty and Allen Leroy Doughty (defendants), a house, built in approximately 1870, located at 407 Avenue H, Kentwood, Louisiana (on Lots 7, 9, and 11 of Block 21 of the Brooks-Scanlon Addition to the Town of Kentwood), for the price of $50,000.00. (Defendants assert that this was their childhood home, which neither of them had visited in over fifty years, that had been acquired by them from their parents by act of donation.)

In early 2000, the defendants listed the house for sale through local realtors, with an asking price of $60,000.00. The plaintiffs visited the house two or three times before making an offer to purchase. Shortly thereafter, plaintiffs entered into a purchase agreement and hired a home inspector to inspect the home. A building analysis report |,c.dated March 14, 2000, submitted to the plaintiffs by Lannon Realty Services, Inc., revealed that numerous faulty conditions were observed, including the following ones relevant to the issues presented on appeal:

Floor Framing — Rot and damage noted to the finished flooring and floor joists under the front left room, at the back left corner and closet, rot also observed in the flooring and floor joist of the adjacent bathroom. Heavy mold build up under the flooring in these areas.
Crawlspace — The crawlspace was observed to be damp and moldy, additional ventilation is recommended. Previous shoring and repairs also noted.
Plumbing
Drain/Waste/Vent Piping — ... The kitchen drain under the house is rusted through and leaking.
Roof
The corrugated metal roof over the carport does show signs of active leaks, ... Some rot noted in the sheathing and the joist below. Heavy damage noted to the end of the back beam on the right side.
Summary
Damage noted to the floor and floor framing under the back left comer of the front left room, the closet, and adjoining bathroom. Damage appears to be from mold and dampness.
Rot noted in the carport sheathing and framing.

(Emphasis in italics added.)

|,(On or about March 31, 2000, an Act of Cash Sale was executed between the parties, wherein the plaintiffs purchased the house from the defendants for the price of $50,000.00. According to the parties, they negotiated a reduction in price based on the condition of the premises as revealed by the home inspection; namely, $10,000.00 downward from the asking price to $50,000.00, and the sellers agreed to pay $1,500.00 in closing costs.

The Guillots moved into the house, and in early April 2000, Ms. Guillot ripped up the carpet in the living room (a task that took her three days). She noticed that it was filthy underneath and observed a black, gelatinous substance, which she cleaned. Shortly thereafter, Ms. Guillot became sick with an upper respiratory infection, which lasted until July or August 2000. The Guillots’ testimony also revealed that within a short time after moving into the house, Mr. Guillot and their young toddler also began having persistent respiratory problems, for which they all sought treatment from their primary care physician.

However, the prescribed antibiotics did not relieve Ms. Guillot’s persistent cough or respiratory symptoms; in fact, her medical condition deteriorated rapidly, and included symptoms other than the chronic respiratory ones. She began having pain in her hip that radiated down and physically debilitated the left side of her body, oftentimes rendering it numb. She also began having pains in her head and arms, and found it very physically difficult to play with her child. She further developed dermatologic problems including hives and painful itchy rashes that did not go away. Additionally, she developed an itching sensation in her eyes that, she testified, felt as though there was sand in them.

|,fin early 2001 , Ms. Guillot sought treatment from an allergist, Dr. Rolston, who performed a scratch test and diagnosed her with an allergy to a specific and very common type of mold — aspergillus— typically found in grass. She was treated for that with Claritin and nasal steroid sprays. However, her symptoms persisted and continued to vary. She continued having aches and pains in her joints, swelling in the lower extremities, puffiness in her face, and fever at night.

The Guillots testified they were very concerned about Ms. Guillot’s rapidly deteriorating health. Throughout the year 2001, they began seeking out the advice and treatment of many specialists, including neurologists and endocrinologists, none of whom were able to definitively diagnose or successfully treat her symptoms. Mr. and Ms. Guillot testified that she was seen by twenty-four different physicians in the course of a year, all unsuccessful in their attempts to get to the root of Ms. Guillot’s illness and render a definitive diagnosis. According to the Guillots, none of these doctors ever mentioned environmental concerns, or specifically, mold, as a cause or concern about her symptoms. Rather, she was tested for such things as chronic fatigue, fibromyalgia, soft tissue problems, and auto-immune diseases, none of which tested positive.

Ms. Guillot became unable to go to work, and her mother-in-law ended up having to come stay with her at the house, helping her with such basic things as getting out of bed. Ms. Guillot testified that she began to get depressed and nervous, and even sought the help of a counselor. She testified that she ended up going to the emergency room three times for symptoms of feelings of numbness on one side of her body. She found out later that she was actually having panic attacks. During the third of these emergency room visits, Ms. Guillot testified that the emergency room doctor began to really question her about the totality of her persistent symptoms, and specifically questioned about her living situation. Ms. Guillot stated that she told the doctor it was “funny” he should ask her that, because she realized then that she had been perfectly healthy until moving into | (¿he new house. The ER doctor’s nurse, who was privy to the conversation, suggested to Ms. Guillot that she apply to see a well-known environmental expert physician, Dr. Andrew Campbell, at the Center for Immune Environmental & Toxic Disorders in Spring, Texas.

Ms. Guillot immediately applied for, completed, and submitted an extensive questionnaire in November 2001, in order to be accepted as a patient by Dr. Campbell. Shortly thereafter, she was contacted by Dr. Campbell’s office, notifying her that she qualified to be seen as a patient. She went to see Dr. Campbell near the end of 2001, at which time he performed an extensive battery of testing, including taking hair, tongue, spit, blood, and urine samples, performing nerve conduction studies, MRIs, and CT scans. In January 2002, the test results were ready, and she returned for a follow-up visit with Dr. Campbell to obtain those results. At that visit, on January 23, 2002, she was told by Dr. Campbell that she had tested positive for several different toxic molds in her blood stream. Dr. Campbell informed her that as a result of that mold in her system, she had suffered damage to her myelin sheath, which was causing her numbness and pain, for which she received IV infusions that lasted seven hours a day. (Ms. Guillot testified that she underwent fifty-six of these treatments over the course of three years.) She was also prescribed Sporanox for her fungal infections. On that date, Dr. Campbell also urged her to leave the house, together with all of its contents, immediately, which she and her child did. Mr. Guillot stayed in the house for approximately one week, after which time, he too, left the house and all of its contents.

Ms. Guillot further testified that once she got the test results and diagnosis from Dr. Campbell, she contacted the real estate agency through which they had bought the house to see about getting in touch with the sellers, since they had found out there could be environmental problems with the house. However, they never were put in contact [7with the defendants, and they did not follow up. They also hired a mold remediation firm to inspect the house and, promptly, contacted and retained an attorney.

On March 5, 2002, the inspection report from Guarantee Systems (the mold remediation firm retained by the Guillots, which performed a complete but non-invasive mold inspection on January 28, 2002) revealed significant moisture in the wood floors of the house, rotted wood, and large colonies of toxic mold growth throughout the entire house. Danny Bauers, the inspector for Guarantee Systems, testified that he recommended that the entire house be air tested to determine the extent of the mold infestation. He gave the Guil-lots a proposal for doing that and for cleaning the duct work in the air conditioning system, due to the fact that he had already detected toxic mold in the house and mold spores go airborne. However, he was not hired by the Guillots to do the remediation work.

PROCEDURAL HISTORY

On January 17, 2003, Mr. and Ms. Guil-lot, together and on behalf of their minor son, Connor, filed a petition for damages naming as defendants the Doughty brothers, as sellers, alleging defendants are ha-ble to them in redhibition, for the redhibi-tory defects “discovered in their family home on March 5, 2002,” consisting of toxic mold colonies throughout the house. They alleged that the house experienced significant flooding prior to their purchase, during which time the house had been rented, and therefore, the defects were present at the time of the sale. They also alleged the sellers had knowledge that the house had flooded and had knowledge of the mold problem existing in the house, but failed to disclose this fact prior to or at the time of the sale. The Guillots also alleged that they sustained serious health issues as a result of exposure to the toxic mold and asserted the defendants are also liable to them for damages for those personal injuries resulting from said exposure. They also claimed entitlement to damages for the | sloss of consortium suffered by Mr. Guillot and their minor son, Connor, as a result of the more serious personal injuries suffered by Ms. Guillot.

The defendants filed an answer, asserting that the Guillots had knowledge of the condition of the house at the time of sale, including the existence of mold, and therefore, the alleged defects were not redhibi-tory. They asserted that the purchase price of the house was reflective of the condition of the house at the time of sale. They further asserted that, because of the Guillots’ knowledge of said defects at the time of sale, their claims had prescribed. After performing some discovery, the defendants also filed an exception urging the objection of prescription on that same basis — that the Guillots had knowledge at the time of the sale, and in the alternative, at the latest, in July or August 2000, when Ms. Guillot pulled up the carpet and observed additional mold. In any event, they maintained that the Guillots had knowledge of the existence of the mold in the house far more than one year prior to the filing of their suit.

ACTION OF THE TRIAL COURT

The minutes of court contained in the record reveal that the trial court heard the exception of prescription on March 5, 2007, following which the trial court orally denied the exception. The matter proceeded to a bench trial on October 30, 2012, during which the defendants re-urged their exception of prescription. After the close of plaintiffs’ case, the defendants sought an involuntary dismissal, which was denied by the trial court. In refusing to grant the involuntary dismissal, the trial court stated that it believed the plaintiffs bore their burden of proof that the sellers had knowledge that the house had “flooded” due to there having been a leak that resulted in the entire house having to be re-plumbed, prior to the sale to the plaintiffs. The trial court also again denied the exception of prescription, stating that it considered the exposure to mold was a “continuing tort,” which did not end until the Guillots moved out of the house in January 2002. By judgment signed February 20, 2013, the trial court ruled in favor of the plaintiffs and against the defendants, rescinding the sale of the house, ordering the defendants to refund to the Guillots the purchase price of $50,000.00, together with reasonable expenses of $1,875.00, with judicial interest and costs. The judgment further 19awarded Ms. Guillot the sum of $100,000.00, and Mr. Guillot the sum of $50,000.00, for the personal injuries they each sustained as a result of exposure to mold in the house, with judicial interest from the date of demand until paid.

This appeal by the defendants followed.

ASSIGNMENTS OF ERROR

Defendants urge the trial court erred in the following respects:

1. The trial court incorrectly denied the exception of prescription.
2. The trial court incorrectly denied the involuntary dismissal.
3. The trial court incorrectly applied the continuing tort doctrine.
4. The trial court incorrectly held flooding occurred in the house based upon hearsay.
5. The trial court incorrectly sustained an objection to the introduction of the Lannon Realty report as being hearsay.
6. The judge’s decision was incorrect and rescission of the sale is precluded by law.

For the ease of discussion and analysis, all necessary assignments of error are addressed, though not necessarily in the order or manner presented,

DISCUSSION AND ANALYSIS

STANDARD OF REVIEW

Redhibition

The defectiveness of the thing sold is a factual determination by the trier of fact, whose factual conclusions will not be disturbed on appeal absent manifest error Arceneaux v. Domingue, 365 So.2d 1330, 1333-34 (La.1978).

Prescription

Generally, the trial court’s factual findings on a peremptory exception raising the objection of prescription, such as the date on which prescription begins to run, are reviewed on appeal under the manifest error-clearly wrong standard of review, Gilmore v. Whited, 2008-1808 (La.App. 1 Cir. 3/31/09), 9 So.3d 296, 299.

Thus, the applicable standard of review on all Issues presented herein is manifest error.

|inTHE LANNON REALTY INSPECTION REPORT

During the trial, in cross-examination of the plaintiffs, the plaintiffs objected to the introduction into evidence of the inspection report done prior to the sale of the house by Lannon Realty, presented to the. Guil-lots in March 2000, The basis for their objection was that the inspector was not being called as a witness, rendering the report as inadmissible hearsay. The defendants asserted that the report was not hearsay, because it was not being offered for the truth of the matters asserted therein or as a factual basis for the condition of the house as reflected therein, but for the limited purpose of revealing the Guillots’ knowledge and awareness of the contents therein. (Plaintiffs’ appellee brief does not address this assignment of error.)

Louisiana Code of Evidence Article 801(C) defines hearsay as “a statement, other than one made by the declarant while testifying ... offered In evidence to prove the truth of the matter asserted.” (Emphasis added.) The official comments to Art. 801(C) provide that this paragraph makes clear that a non-assertive use, i.e., to prove anything other than the truth of the out-of-court statement, is not hearsay. (Emphasis added.)

We find that the inspection report in this matter, and the use for which it was offered, is simply not hearsay. A very critical fact to both the defendants’ exception of prescription and to the plaintiffs’ cause of action in redhibition is the knowledge that the Guillots had, or should have had, about the possibility that the house they bought had a mold problem that could constitute a redhibitory defect. The actual date of that knowledge is a crucial element in the realm of prescription; and, as argued by the defendants, the report was being used to question the Guillots regarding their knowledge of the contents therein, as well as being submitted as proof, that as of the date of the report, the Guillots knew what the report said. The report was not being offered as factual evidence of the condition of the house at the time of the inspection. (Indeed, we note, that the presence of mold in the house is not one of the facts being contested herein; rather, at issue is when the Guillots knew or should have known that there may be a mold issue with the house.)

|n Therefore, we find the trial court erred as a matter of law in sustaining the plaintiffs’ objection to the introduction into evidence of that report on the basis of hearsay. We reverse that ruling, and accordingly, have included the proffered report in our review of the record and in our analysis of the issues presented herein,

BURDEN OF PROOF

Prescription

This court recently restated the burden of proof as to prescription in the context of a redhibition action in Rebstock v. Seismic Exchange Inc., 2013 WL 5915140, at *1 (La.App. 1 Cir. ll/l/2013)(unpublished), as follows:

Generally, the burden of proving an action is prescribed lies with the party pleading prescription. Hogg v. Chevron USA, Inc., 09-2632 (La.7/6/10), 45 So.3d 991, 998. An exception to this general rule exists when the face of the petition shows that it is prescribed, in which case the burden shifts to the plaintiff to prove that prescription was interrupted or suspended. Bailey v. Khoury, 040620 (La.1/20/05), 891 So.2d 1268,1275. Stated another way, it is only when the plaintiffs claim is prescribed on the face of the petition that the initial burden of proof is shifted, to the plaintiff to prove that the claim is not prescribed. The party urging the application of an exception to the general rule on prescription has the burden of proving that the exception applies. Cf. Rota, Inc. v. Courtney, 09-0508 (La.App. 1 Cir. 8/10/10), 47 So.3d 500, 506. Consequently, the burden of proof does not shift to the plaintiff unless the defendant can establish that the face of the plaintiffs petition reveals that the plaintiff knew or should have known of the damage more than one year before the petition was filed. Sadler v. Midboe, 97-2120 (La.App. 1 Cir. 12/28/98), 723 So.2d 1076,1082.

Redhibition

In Rey v. Cuccia, 298 So.2d 840 (La.1974) (statutorily overruled on other grounds), the Louisiana Supreme Court discussed the burden of proof in a redhibition action as follows:

A redhibitory defect entitling the buyer to annul the sale is some defect in the manufacture or design of a thing sold ‘which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.’ Article 2520. Upon proof of such a defect, the buyer is Identified to annul the sale and recover the purchase price, rather than being limited to recovering the cost of curing any such substantial defects.
The buyer may prove the existence of redhibitory defects at the time of the sale not only by direct evidence of eyewitnesses, but also by circumstantial evidence giving rise to the reasonable inference that the defect existed at the time of the sale. As stated in Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151, 155: ‘[P]roof by direct or circumstantial evidence is sufficient to constitute a preponderance when, taking the evidence as a whole, such proof shows the fact or causation sought to be proved is more probable than not.’

Id. at 842-843 (citations omitted).

APPLICABLE LAW

Redhibition

The seller warrants the buyer against redhibitory defects (vices) in the thing sold. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. La. C.C. art. 2520. However, the seller owes no warranty for defects in the thing that were known to the buyer at the time of the sale, or for defects that should have been discovered by a reasonably prudent buyer or such things. La. C.C. art. 2521. Comment (b) to article 2521 further explains that a defect is not redhibitory when the buyer knows of it either because it was disclosed by the seller or because the buyer discovered it by himself. Finally, the buyer must give the seller notice of the existence of a redhibitory defect in the thing sold, which must be sufficiently timely as to allow the seller the opportunity to make the required repairs. A buyer who fails to give that notice suffers diminution of the warranty to the extent the seller can show that the defect could have been repaired or that repairs would have been less burdensome, had he received timely notice. La. C.C. art. 2522.

Prescription and Redhibition

An action against a seller who did not know of the existence of the defect in the thing sold prescribes in four years from the day delivery of such thing was made to the 113buyer or one year from the day the defect was discovered by the buyer, whichever occurs first. La. C.C. art. 2534(A)(1). However, subsection (A)(2), specifically applicable to a defect in residential or commercial immovable property, provides that an action in redhibition against a seller who did not know of the existence of the defect prescribes in one year from the day delivery was made to the buyer. Thus, in general, a redhibitory action regarding residential or commercial property prescribes one year from the date of the sale, unless the seller had knowledge of the vice and neglected or failed to declare it to the buyer. Insurance Storage Pool, Inc. v. Parish National Bank, 97-2757 (La.App. 1 Cir. 5/14/99), 732 So.2d 815, 819.

An action against a seller who knew or is presumed to have known of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer. La. C.C. art. 2534(B).

On a trial of the exception of prescription to an action in redhibition, the issue is whether a year passed between the sale and the filing of the action, and if a year had so passed, whether the seller knew of the alleged vice and failed to disclose that fact to the buyer, in which case, an added issue is whether the buyer filed suit within a year following his discovery of the alleged vice. Insurance Storage Pool, Inc., 732 So.2d at 820. The party pleading prescription has the burden of proof. However, when the face of the petition indicates that prescription has tolled, the buyer bears the burden of showing the claim has not prescribed and, in this respect, if it is alleged that the seller had knowledge of the defect and failed to disclose, the buyer must prove same before the rule of La. C.C. 2534(B) applies. See Id. (Emphasis added.)

APPLICATION OF LAW AND ANALYSIS

The Guillots’ petition, filed more than one year from the date of the Act of Sale is prescribed on its face. Therefore, they had the burden of proving that their claims had not prescribed. Moreover, the Guillots have also alleged that the sellers had knowledge of the defects and failed to disclose same to them prior to the sale. Therefore, as noted by the jurisprudence cited above, the Guillots also bear the burden of proving that the defendants had knowledge of the defects (were in bad faith) in order to benefit from the [ udate of discovery provision of La. C.C. art. 2534(B). If they do not bear their burden of proof of bad faith on the part of the sellers, the prescription of their claim in redhibition is governed by La. C.C. 2534(A)(2), i.e., one year from the date delivery of the property was made to the.

The plaintiffs called one of the defendants, Allen Doughty, as a witness. He testified that he and his brother became co-owners of the house by an act of donation, but that neither of them had lived in the house since 1956. He lives in Shreveport, Louisiana, and for several years prior to selling, the house, it was rented out to various individuals. He testified that he signed the disclosure statement that accompanied the sale of the house in which he stated that, to his knowledge, the house had never flooded or had any other type of water damage. He reiterated that lack of knowledge during his trial testimony. Further, he maintained that the first knowledge he had that there was any mold in the house was at the same time and from the same source — the Lannon Realty inspection report — that the Guillots acquired the same knowledge.

The plaintiffs also introduced into evidence the deposition of William Bobby Gill, the Mayor of Kentwood at the time relevant to the issues presented herein, but who was deceased at the time of trial. Contrary to the Guillots’ arguments and the trial court’s findings, our review of this testimony reveals that it does not constitute proof that the house flooded prior to the sale, and even less so, that the sellers knew of that purported house flooding and failed to disclose it. Moreover, as a matter of law, we note that Mr. Gill’s testimony consists largely of inadmissible hearsay from prior renters and neighbors, none of whom were called to testify. (Notably, the testimony of Mr. Gill established that the person renting the house at the time of the alleged flooding of the house, Connie Adams, and the plumber who re-plumbed the house, Frank Cutrer, still live in Kent-wood and could easily be located.)

Mr. Gill testified that he knew the Guil-lots from when they lived in the house and that he was familiar with the history of the house. He was aware that Allen and Rodney Doughty owned the house, but rented it to several renters over the years. Mr. Gill also testified about an incident when he was apprised that there was a large amount of water |lr,leaking from a pipe underneath the Doughtys’ house. In fact, it was such a large amount, that after inspecting it, he had the water cut off in the town, and had the town handyman come repair it. He testified that after-wards, the house was re-plumbed. However, Mr. Gill also testified that he did not know whether mere was actually, any flooding inside of the house and that he never went inside of the house at the time of or anytime after the leak. Mr. Gill also testified that he had never seen either of the Doughty brothers at the house in the many years since they had moved away.

The plaintiffs relied on the above evidence, which they argue on appeal was sufficient to support the trial court’s finding that the sellers knew or should have known that the house contained mold, and failed to disclose it to them. We recognize that ruling was based on factual findings, subject to the manifest error review. However, we find such error, because the foregoing evidence fails woefully short of establishing the knowledge requisite to entitle the Guillots to the longer prescriptive period provided in La. C.C. art. 2534(B). The circumstantial evidence merely proves that there was a leak at the house where an inordinate amount of water poured outside, underneath, and around the house. There is no evidence that there was ever any water inside of the house, or that the sellers knew that there was any water inside the house. It also appears that the witnesses possessing this critical knowledge were available and accessible, but they were not called.

Having found that the trial court manifestly erred and that the Guillots failed in their burden of proving the sellers were in bad faith (because they knew or should have known that the house contained mold at the time of safe), the plaintiffs’ claim in redhibition is governed by La. C.C. art. 2534(A)(2), and their redhibition action, filed more 11fithan one year from the date delivery of the house was made to them, is .prescribed. Accordingly, the judgment of the trial court awarding them rescission of the sale, return of the purchase price, and reasonable costs must be reversed.

Prescription for Personal Injury Action

Delictual actions are subject to a liberative prescription of one year, which begins to run from the day injury or damage is sustained. La. C.C. art. 3492. Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 510; Barber v. Employers Ins. Co. of Wausau, 2013 WL 2393091 (La.App. 1 Cir. 5/31/13)(unpublished). When the claimant is unaware of the facts giving rise to his or her cause of action against a particular defendant, the running of prescription is for that reason suspended until the tort victim discovers or should have discovered the facts upon which his or her cause of action is based Doe v. Delta Women’s Clinic of Baton Rouge, 09-1776 (La.App. 1 Cir. 4/30/10), 37 So.3d 1076, 1080, writ denied, 10-1238 (La.9/17/10), 45 So.3d 1055.

As noted earlier, in their original petition, the Guillots alleged they had knowledge of the personal injury caused by toxic mold in the house on March 5, 2002, when they received the report from Guarantee. Systems confirming the. existence of toxic mold throughout the house. However, during litigation, the focus of their argument is that they had such knowledge when Ms. Guillot was diagnosed by Dr. Campbell with health conditions directly related to exposure to toxic mold in January 2002.

As noted earlier, the standard of review is manifest error. The trial court’s ruling and award of damages for personal injuries can only be reversed if we find from the record that a reasonable factual basis does not exist for the findings of the trial court and that the record establishes that the trial court was clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). After our thorough review of this entire record, we find no reasonable factual basis for the trial court’s finding that the Guillots did not have actual or constructive knowledge that Ms. Guillot’s medical condition was related to exposure to toxic mold until Dr. Campbell’s diagnosis in January 2002. The record is replete with numerous other instances in which a reasonable trier of fact could have found they had constructive knowledge; i.e., they should have known that their damages were the result of exposure to toxic mold, or at the very least, incite their attention to do further investigation, either of which would start the tolling of prescription.

As early as April 2000, the plaintiffs admit that while pulling up the carpet, Ms. Guillot observed a black sticky substance that appeared to be freshly wet. By all accounts, not only Ms. Guillot, but also Mr. Guillot and Connor, began experiencing persistent respiratory problems. Also, by all accounts, all three of them were extremely healthy prior to moving into the house, and all three of them became sick almost immediately following moving into the house. Even if we believe, as alleged, that Ms. Guillot did not know until later that the substance was actually mold, this discovery, together with the Lannon Realty inspection report identifying the existence of mold in other places, and the Guillots’ health decline immediately thereafter, should have incited the Guillots’ attention that they may be suffering from exposure to mold, directing them to do further investigation at that time.

Moreover, in early 2001, Ms. Guillot sought treatment from allergist, Dr. Rol-ston, who diagnosed her with an allergy to a particular kind of mold. While that mold was not a toxic type of mold, the medication provided to treat it did not relieve Ms. Guillot’s symptoms. Additionally, she had knowledge from the Lannon Realty inspection report that there was other mold in the house, together with this diagnosis of having a problem with a certain type of mold. Indeed, in an interview given for a newspaper article (introduced in redacted form into evidence), Ms. Guil-lot stated that her visit to and diagnosis by Dr. Rolston in early 2001 “was my first clue that my home was the source of the problem.” (Emphasis added.)

hsThe record also contains Ms. Guillots trial testimony, that when the emergency room doctor’s nurse advised her that she should go see Dr. Campbell for his expertise in environmental toxic mold, it was the first time she was apprised that there may be an “environmental” issue involved with her declining health. Moreover, in an affidavit submitted by Ms. Guillot as an attachment to plaintiffs’ opposition to the exception of prescription, Ms. Guillot attests that in September 2001, she “was admitted to the St. Clare unit for depression and anxiety, and while [she] was there, a nurse advised [her] that [she] should seek evaluation for possible mold infestation.”

Finally, the record contains the questionnaire completed by Ms. Guillot in November 2001, as part of applying to be seen as a patient by Dr. Campbell. The very act of filling out the questionnaire in November 2001, as part of an application to be seen by a toxic mold specialist, is evidence in itself that Ms. Guillot had sufficient knowledge (or should have known) that exposure to the mold in the house was at the root of her declining health. Moreover, in response to a question regarding possible contact with hazardous and toxic agents, including mold, asking for details of said contact or exposure, Ms. Guillot responded, in part, that she “pulled up carpet in our living room in April 2000 that had a black moldy substance on the underside and all over the floor.” In that same questionnaire she represented that since August 2001, she could smell and taste mold. In response to the question: “Have you ever changed your residence because of a health problem? If so why, when?,” Ms. Guillot wrote: “1997 — Mold in duplex — bathroom & grew everywhere” This is contrary to all of the Guillots’ contentions throughout this litigation that they had no idea that there were such type molds that were toxic and harmful to one’s health until they saw Dr. Campbell. (At trial, Ms. Guillot admitted that in that duplex, there was mildew in the bathroom. However, she denied that she moved from the duplex for that reason; rather, she stated she moved because she had become engaged to Mr. Guillot. Yet, she was unable to explain making that representation in the questionnaire.)

We find any one of the above described events sufficient to establish a time when the Guillots knew or should have known sufficient facts on which their cause of 119action for exposure to mold in the house is based. Every one of these events occurred more than one year prior to the filing of their petition in January 2003. Accordingly, the trial court was clearly wrong in denying the exception of prescription as to the personal injury claim as well, and we are therefore constrained to reverse that portion of the judgment as well.

CONCLUSION

For the foregoing reasons, we find the trial court manifestly erred in denying the defendants’ exception of prescription. Giving the plaintiffs every benefit of the doubt, at the very latest, prescription began tolling in November 2001, and their petition, filed on January 17, 2003, had prescribed. Accordingly, the judgment of the trial court is reversed in its entirety. The exception of prescription is’ hereby granted, and the plaintiffs’ claims dismissed. Costs of this appeal are assessed to the plaintiffs, Mr. and Ms. Guillot.

REVERSED AND RENDERED.

McCLENDON, J., concurs with Result reached by the majority.

      . The ruling denying the exception of prescription is an interlocutory ruling that is not appealable. There is no judgment in the record before us denying the exception; however, the minutes of court show a March 5, 2007 entry, indicating a hearing was held, evidence was introduced, arguments were presented, and the trial court denied the exception. When an unrestricted appeal is taken from a final judgment, the appellants are entitled to seek review of all adverse interlocutory judgments prejudicial to them, in addition to the review of the final judgment. Price v. Kids World, 2008-1815, p. 3 (La.App. 1 Cir. 3/27/09), 9 So.3d 992, 994.

      . The report was proffered into the record after the trial court sustained an objection on the basis of hearsay. The trial court’s ruling, sustaining the objection is one of the assignments of error in this appeal. As later discussed in this opinion, we agree with the appellant, and find the trial court erred in sustaining the objection; for the reasons provided later herein, defendants should have been allowed to introduce it into evidence. Therefore, we have included it in our review of the record and our analysis of the issues presented.

      . Plaintiffs’ petition asserts they purchased the house on March 31, 2000. However, the Act of Cash Sale contained in the record reveals that defendants appeared through notarized signatures; by Rodney Bryan Doughty, who resides in Roanoke, Va., on March 31, 2000, by Allen Leroy Doughty, who resides in Shreveport, La., on March 30, 2000, and Peter and Rebecca Guillot appeared physically on April 4, 2000.

      . Both Mr. and Ms. Guillot testified that the reduction in the purchase price was based on the inclusion in the inspection report about the condition of the roof, and their concerns of purchasing a house where the roof may fall in. They both insisted that they were not concerned at all about the report’s inclusion of rotting and mold, believing that if they cleaned and ventilated, as suggested by the inspector, that concern would be remedied and resolved.

      . The record does not establish the exact date(s) cf Ms. Guillot’s treatment with Dr. Rolston, however, the parties do not dispute that it was sometime in early 2001.

      . The Guillots testified that they first lived with Ms. Guillot's sister for approximately eleven months. Then, through a local church, they were offered a stay at a deaf center for another three months; following which they lived at her in-laws' camp in Vacherie, .La., from May 2003 until December 2005, at which time, the family moved to New Mexico, with a milder, drier climate that Dr. Campbell medically recommended for Ms. Guillot.

      . Throughout this litigation, the plaintiffs maintain that they did not know of the existence of harmful mold in the house, nor that it was the cause of their health issues until Dr. Campbell diagnosed Ms. Guillot with health conditions caused by her exposure to toxic mold in January 2002. The date used in the petition, however, is the March 5, 2002 date of the Guarantee Systems inspection report confirming that the entire house contained toxic mold.

      . See 1993 La.Sess. Law Serv. Act 841.

      . We note that the plaintiffs sought to call as a witness Mr. Benny Costello, a former neighbor, in an effort to establish that the sellers had knowledge, prior to the sale, that the house at issue had water damage and mold. However, the defendants objected on the basis that Mr. Costello was not listed as a witness in the pretrial order. The trial court agreed, and disallowed any direct testimony by this witness. The plaintiffs were given the opportunity and proffered the testimony. Although the plaintiffs’ proffer is contained in the record, there has been no answer filed or any objection raised an appeal otherwise regarding the disallowing of this witness. Moreover, we note that the trial court has vast discretion in allowing or disallowing testimony of witnesses based on the failure to comply with the court’s schedule and deadlines, and we find no error herein.


author: WHIPPLE, C.J.

text:
    Melissa ARRETTEIG v. OUR LADY OF THE LAKE HOSPITAL, INC.
    No. 2013 CA 1603.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 2014.

      Ted Williams, Baton Rouge, LA, for Plaintiffi2nd Appellant, Melissa Arretteig.
    Phillip E. Foco, Scott Ledet, Baton Rouge, LA, for Defendant/lst Appellant, Our Lady of the Lake Hospital, Inc.
    Before WHIPPLE, C.J., WELCH and CRAIN, JJ.
   WHIPPLE, C.J.

lain this workers’ compensation matter, both parties challenge various portions of the judgment rendered below, which awarded the injured employee supplemental earnings benefits (SEBs) in varying amounts for various periods of time, medical expenses, penalties, and attorney’s fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 27, 2009, Melissa Arretteig, a registered nurse (RN) who was employed by Our Lady of the Lake Hospital (OLOL) at the time, injured her back while transferring a patient. Initially after the accident, Arretteig continued to work full time while also seeking medical treatment for her injury. Because of continued pain, however, she was restricted from work, and received temporary total disability benefits, from July 27, 2009 to October 26, 2009. Arretteig then returned to full-duty work for a period of approximately eleven months, but she continued to have pain and discomfort, resulting in her treating physician restricting her to light duty as of September 29, 2010, pending further testing. Thus, Arretteig was placed in a light-duty position at OLOL, but this position was terminated on March 4, 2011. Ultimately, Arretteig’s treating physician placed permanent physical restrictions on Arretteig limiting her to a “low medium physical demand level” restrictions that prevent her from performing the duties of her prior position as a floor nurse.

Although OLOL eventually paid Arret-teig SEBs representing indemnity benefits for a short period time following the termination of the light-duty position in which she was working, disputes arose between the parties as to the calculation of the SEB benefit to which Arretteig was entitled and as to her continued entitlement to SEBs as of April 9, 2011, the Ineffective date on which OLOL terminated those weekly indemnity benefits. Thus, on May 12, 2011, Arretteig filed a Disputed Claim for Compensation, seeking additional weekly indemnity benefits, penalties, and attorney’s fees, together with costs and interest.

Following trial of this matter, the workers’ compensation judge signed a judgment dated May 29, 2013, which, in addition to awarding various medical benefits and related penalties, awarded Arretteig: additional SEBs in differing amounts for various periods between March 4, 2011 and April 20, 2013; ongoing SEBs from April 20, 2013, forward; a $2,000 penalty for OLOL’s failure to timely pay SEBs for the period of March 7, 2011 to April 9, 2011; $20,000.00 in attorney’s fees; and interest on all indemnity benefits from the date each installment is due until paid and on all medical benefits, penalties and attorney’s fees from the date of the award until paid.

From this judgment, OLOL appeals, contending that the workers’ compensation judge erred in:

(1) finding that Arretteig met her initial burden of proving her entitlement to SEBs when she admitted that she did not want a full-time position and declined an interview for a full-time position within her restrictions that would have paid in excess of ninety percent of her average weekly wage;

(2) finding that the Case Manager position with OLOL was not available to Ar-retteig where the evidence demonstrated that all of the factors set forth in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, regarding job availability were satisfied;

|4(3) finding that the earning capacity of the Medical Call Center position with OLOL should be based on an assumed twenty hours per week when the uncontro-verted evidence showed the actual hours that would have been available for this position; and

(4) finding that attorney’s fees of $20,000.00 were reasonable where the award was based on the time Arretteig’s attorney spent on the entire case and only a small fraction of that time was spent on issues that OLOL was found to have failed to reasonably controvert.

Arretteig has also appealed the judgment, contending that the workers’ compensation judge erred in:

(1) finding that the Medical Call Center job was sufficient to reduce her SEBs for the period of April 14, 2011 to June 1, 2011;

(2) finding that OLOL was not arbitrary and capricious in terminating her SEBs on April 9, 2011; and

(3) failing to award all attorney’s fees requested.

DISCUSSION

Entitlement to SEBs

(OLOL’s Assignment of Error No. 1)

OLOL first contends that the workers’ compensation judge erred in finding that Arretteig met her initial burden of proving her entitlement to SEBs. The purpose of SEBs is to compensate the injured employee for the wage earning capacity she has lost as a result of her accident. Poissenot v. St. Bernard Parish Sheriff's Office, 2009-2793 (La.1/9/11), 56 So.3d 170, 174. An employee is entitled to receive SEBs if she sustains a work-related injury that results in her inability to earn ninety percent or more of her average pre-injury wage. LSA-R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving by a preponderance of the evidence that the | fjnjury resulted in her inability to earn that amount under the facts and circumstances of the individual case. This analysis is necessarily a facts and circumstances one in which the court is to be mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Banks, 696 So.2d at 556. The workers’ compensation judge must take into account all factors which might bear on an employee’s ability to earn a wage in determining whether the injured employee has met her burden of showing an inability to earn ninety percent of her pre-injury wage, including factors such as the employee’s medical condition, efforts at obtaining employment post-injury, and actual work history after the accident. See Poissenot, 56 So.3d at 174, 178-179.

Turning to OLOL’s arguments in support of this assignment of error, we find no merit to its first contention that the workers’ compensation judge “seemed to” find that Arretteig met her burden of proof because the physician-imposed restrictions prevent her from employment as a RN and, thus, “applied the wrong legal standard.” OLOL suggests that the workers’ compensation judge appeared to focus only on Arretteig’s inability to return to her prior employment as a registered nurse, rather than focusing on whether she could earn ninety percent of her pre-injury wages in any employment. However, a reading of the entirety of the workers’ compensation judge’s reasons for judgment demonstrates that she considered all the evidence, including Arretteig’s permanent medical condition, her resulting inability to perform her pre-injury RN job as a floor nurse, and her post-injury efforts in obtaining related employment within her educational background.

The record demonstrates that at the time of the accident, Arretteig was an RN employed as a floor nurse, a job which required frequent turning of Rpatients as wells as transferring patients and assisting them in and out of bed. Her position was a night position, which entitled her to evening and night shift differentials in addition to the base pay, resulting in an average weekly wage of $1,217.82. As a result of the work injury, Arretteig has been assigned permanent physical restrictions in accordance with a functional capacity evaluation, which limit her to work at a “low medium” physical level, with only occasional lifting of 20 to 45 pounds. She is no longer able to perform her pre-injury job as a floor nurse because of her work injury. Ultimately, on April 4, 2011, Ar-retteig accepted a part-time job within her physical restrictions at Woman’s Hospital in the radiology department of the Breast Center at Woman’s Hospital, a position that does not pay any shift differentials.

Contrary to OLOL’s contention that the workers’ compensation judge erred in finding that Arretteig met her initial burden of proof because her testimony demonstrated that she did not want a full-time position, we note that Arretteig did in fact work full time after her accident in the modified position at OLOL that was within her restrictions, thus, clearly demonstrating her willingness to work in a full-time capacity. Indeed, Arretteig continued to work full time in that modified-duty position until 17March 4, 2011, when OLOL made the decision to terminate that position.

Moreover, the record further establishes that after the modified-duty position was terminated, Arretteig was diligent in her efforts to find other employment within her restrictions, Arretteig applied for the jobs the vocational counselor identified for her, in addition to applying for jobs she herself found. Notably, upon graduating from nursing school in 2008, Arretteig began working for OLOL in the inpatient unit, where she provided patients to whom she was assigned with total care, ie., a floor nurse position, and she had no other experience in any other types of RN positions. With regard to her ability to make her pre-injury wage, Arretteig testified that most RN jobs that pay as much as she was making at the time of the accident require lifting beyond what her physical restrictions allowed. This testimony is supported by OLOL’s workers’ compensation coordinator, who acknowledged at trial that she had told the vocational counsel- or assigned to the case that it is very difficult to accommodate a nurse with permanent lifting restrictions.

For this reason, even prior to OLOL terminating the modified-duty position in which she was working full time, Arretteig had returned to school to obtain her advanced practice degree that would allow her to seek jobs as a nurse practitioner. She believed this would allow her to earn her relatively high pre-injury wage in a job within her physical restrictions. While 18Arretteig expressed concerns about a full-time job with inflexible hours as potentially interfering with her continued schooling, she testified at trial she would have considered any job that was offered to her. She further testified that she believed that she could have continued to work full time and pursue her advanced degree in another position with flexible hours, like the hours of the modified-duty position in which she had been working.

Moreover, regarding OLOL’s additional contention that Arretteig demonstrated her unwillingness to consider full-time employment by declining an interview for a Case Manager job after she had accepted her current position at Woman’s Hospital, we note, as addressed in our discussion of OLOL’s second assignment of error below, that the workers’ compensation judge determined that that particular position was “unavailable” to Arretteig, a finding that we cannot say is manifestly erroneous.

In reviewing the factual findings made below, we note that the workers’ compensation judge specifically found Arretteig to be “highly credible” and found her efforts at finding employment within her restrictions following OLOL’s termination of the modified-duty position to be in “good faith.” Thus, considering the foregoing and the record as a whole, finding no manifest error in the workers’ compensation judge’s factual findings, and mindful of the credibility determinations that were made herein, we find no merit to OLOL’s contention that the workers’ compensation judge erred in finding that Arretteig met her initial burden of proving that her injury resulted in her inability to earn ninety percent of her pre-injury wages. See generally Chauvin v. Terminix Pest Control, Inc., 2011-1006 (La.App. 1st Cir.6/28/12), 97 So.3d 476, 480-484.

1 ¡,.Availability of Case Manager Position

(OLOL’s Assignment of Error No. 2)

OLOL next argues that it identified at least one job for Arretteig within her physical restrictions that would pay more than ninety percent of her pre-injury average weekly wage, specifically a Case Manager position, and that the workers compensation judge erred in finding that the position was “unavailable” to Arretteig.

Once the employee has met her burden of proving an inability to earn ninety percent of average pre-injury wage, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs or establish the employee’s earning capacity, must prove, by a preponderance of the evidence: (1) that the employee is physically able to perform a certain job; and (2) that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region, LSA-R.S. 23:1221(3)(c)(i). The amount of SEBs is based upon the difference between the employee’s pre-injury average monthly wage and her proven post-injury monthly earning capacity. LSA-R.S. 23:1221(3)(a); Banks, 696 So.2d at 556.

In Banks, the Louisiana Supreme Court instructed that an employer may discharge its burden of proving job availability by establishing, at a minimum, the following, by competent evidence:

(1) the existence of a suitable job within the employee’s physical capabilities and within the employee’s or the employer’s community or reasonable geographic region;
(2) the amount of wages that an employee with the injured employee’s experience and training can be expected to earn in that job; and
lm(3) an actual position available for that particular job at the time that the employee received notification of the job’s existence.

Banks, 696 So.2d at 557. Therein, the Louisiana Supreme Court further explained that “suitable job,” means a job that the injured employee is not only physically capable of performing, but one that also falls within the limits of the employee’s age, experience, and education, unless the employer or potential employer is willing to provide any additional necessary training or education. Banks, 696 So.2d at 557.

In the instant case, the vocational counselor assigned to Arretteig’s case by OLOL advised Arretteig of a “Case Manager, Rehab Unit” position at OLOL. The listed job specifications provided that the minimum experience required was “[tjhree years in general or specialty nursing practice,” with preferred experience in “[pjrior managed care and utilization management.” The email correspondence sent to Arretteig did not specifically list any physical requirements of the position.

As to whether this position was a “suitable job” for Arretteig, the record demonstrates that the OLOL workers’ compensation coordinator acknowledged that at the time Arretteig was informed of the Case Manager position, she undisputedly did not have the requisite three years of experience as a nurse. Additionally, the coordinator further acknowledged that Arretteig did not have the preferred experience in managed care or utilization management. Moreover, regarding the workers’ compensation coordinator’s testimony that OLOL would have been willing to “hold” the job for Arretteig, the workers’ compensation judge clearly rejected and did not believe her testimony, calling this testimony “disingenuous.” The workers’ compensation judge noted that information as to the existence or availability of such a policy had not been supplied to Arretteig and that the ^vocational counselor working on the case was also unaware of such a policy at OLOL.

Furthermore, regarding the physical requirements of the job, we note that, by letter dated March 9, 2011, the OLOL workers’ compensation coordinator informed Arretteig that she could not return to work at OLOL in a capacity greater than her restrictions of no lifting, pushing or pulling more than 25 pounds, until she had completed a functional capacity evaluation. OLOL then scheduled the functional capacity evaluation for April 14, 2011, eight days after she was notified of the Case Manager position.

The April 6, 2011 email notifying Arret-teig of the Case Manager position listed the job details as follows:

Works collaboratively with all members of the health care team and the pa-tieni/family to ensure coordination of patient care and resource utilization. The Case Manager participates in the assessment of patients including physical and psychological factors in order to plan for individualized continuum of care needs and ensures the implementation of the discharge plan.

While the OLOL workers’ compensation coordinator testified at trial that the job involved “mainly desk work” and Arret-teig was informed that it did not involve lifting patients, the lack of a description of the physical requirements of this job in the notification obviously left questions remaining as to whether all of the job duties were within her physical restrictions.

Indeed, the OLOL workers’ compensation coordinator clearly recognized this problem, as evidenced from a May 25, 2011 email she sent to the vocational counselor, wherein she stated:

I explained to you that we needed to do everything perfectly and to make sure we were able to reduce Miss Arretteig’s benefits in accordance with the comp act. I recall telling you that we did not have a job description on any OLOL position that included physical restrictions or pay, which is why I gave you the hiring manager’s contact information for each job. I needed a JA to be done to accurately depict the physical requirements of the position.... It is too late to do a JA on | ^either of the two case manager positions or to present them to Dr. Smith. They have both been filled.

Considering the foregoing and the record as a whole, we cannot conclude that the workers’ compensation judge was manifestly erroneous or clearly wrong in finding that the Case Manager position was not “available” to Arretteig.

This assignment of error lacks merit.

Medical Call Center Position

(OLOL’s Assignment of Error No. 3; Arretteig’s Assignment of Error No. 1)

Arretteig also applied for a part-time Medical Call Center position at OLOL, with hours listed as “PRN, 20 hours a week.” She interviewed for the position on March 8, 2011 and was offered the job. However, she declined the position. The workers’ compensation judge found that this job fit within Arretteig’s physical restrictions and, thus, that she should not have declined it. Accordingly, in calculating Arretteig’s SEB rate, the workers’ compensation judge reduced her average weekly wage by $648.80, representing the hourly wage rate of the position for twenty hours per week.

In her first assignment of error, Arretteig contends that the workers’ compensation judge erred in finding that the Medical Call Center position was available to her because, as discussed above, on March 9, 2011, the day after the interview, OLOL’s workers’ compensation coordinator sent her a letter, stating that she could not return to work at OLOL in a capacity beyond her current restrictions until she had completed a functional capacity evaluation. However, we note that Arretteig testified at trial that the Call Center position was a job that she could physically perform, thus acknowledging that the position was not beyond her physical restrictions. 11SAccordingly, we find no merit to Arretteig’s argument that the judge erred in finding that this position was “available” to her.

OLOL claims in its third assignment of error that the workers’ compensation judge manifestly erred in reducing Arret-teig’s SEBs by only $648.80, contending that it supplied data showing that the person who ultimately filled the position has worked more than twenty hours a week and that the position was ultimately considered a full-time position as of October 2012. We disagree.

The evidence of record demonstrates that the actual position identified and available at the time Arretteig applied for and interviewed for the job in early March 2011 had listed hours, as stated above, of “PRN, 20 hours a week.” The mere fact that someone in this position may have ultimately worked more than twenty hours per week or that the position was eventually classified as full-time does not demonstrate that the position was still available to Arretteig at the time when the position offered greater hours. Thus, we likewise find no merit to this OLOL’s argument that the judge erred in refusing to further reduce Arretteig’s SEBs.

Arretteig’s Entitlement to Additional Penalties

(Arretteig’s Assignment of Error No. 2)

? the workers’s compensation judge ultimately determined that the Case Manager position was “unavailable” to Ar-retteig and, thus, could not support a termination of SEBs, she further found that OLOL’s termination of SEBs on the basis of the alleged availability of that position was neither arbitrary nor capricious. In her second assignment of error, Arretteig contends that this finding was manifestly erroneous and that she is entitled to additional penalties.

|14An employer shall be subject to a penalty and payment of reasonable attorney’s fees for the prosecution and collection of a claim where it discontinues payment of claims due and such discontinuance is found to be arbitrary, capricious, or without probable cause. LSA-R.S. 28:1201(1). Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or action of seemingly unfounded motivation. The determination of whether an employer has been arbitrary or capricious or has failed to reasonably controvert a claim is a question of fact subject to the manifest error standard of review. Nitcher v. Northshore Regional Medical Center, 2011-1761 (La.App. 1st Cir.5/2/12), 92 So.3d 1001, 1010-1011, writ denied, 2012-1230 (La.9/21/12), 98 So.3d 342.

In the instant case, the workers’ compensation judge found that OLOL’s actions in terminating SEBs as of March 9, 2011, were not arbitrary or capricious given that “vocational efforts were being made and there were communication'problems involved” with Arretteig, the workers’ compensation coordinator, and the vocational counselor. Considering the record on appeal, we cannot conclude that the workers’ compensation judge was manifestly erroneous in this factual conclusion,

Attorney’s Fees

(OLOL’s Assignment of Error No.

4; Arretteig’s Assignment of Error No. 3)

The workers’ compensation judge further found that some of OLOL’s actions rendered it liable to Arretteig for penalties and attorney’s fees. Specifically, the workers’ compensation judge assessed the following penalties against OLOL: $2,000.00 for its failure to timely pay SEBs owed to Arretteig, where OLOL had candidly admitted such benefits were due by letter dated May 2, 2011, but payment was not received by Arretteig until | ^August 2011; $2,000.00 for the untimely payment of two prescription expenses that had still not been paid as of the time of trial; $2,000.00 for the untimely payment of an out-of-pocket medical expense reimbursement request that had still not been paid as of the time of trial; and $1,250.00 for OLOL’s unwarranted refusal to timely authorize Dr. Nyboer as Arretteig’s choice of physician.

In addition to the imposition of those penalties, the workers’ compensation judge ordered OLOL to pay Arretteig attorney’s fees in the amount of $20,000.00. On appeal, OLOL contends that the amount of the award was excessive, while Arretteig contends that the award was too low.

Pursuant to LSA-R.S. 23:1201(F), the failure to provide payment of indemnity or medical benefits in accordance with LSA-R.S. 23:1201 or the failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required shall result in the assessment of a penalty “together with reasonable attorney fees for each disputed claim.” Although the primary consideration in the imposition of attorney’s fees is not to compensate the employee, but rather to discourage certain offensive behaviors on the part of the employer or insurer, the amount so awarded is intended to fully compensate the employee’s attorney, thereby benefitting the employee, for the attorney’s services rendered in connection with the litigation. Langley v. Petro Star Corp. of La, 2001-0198 (La.6/29/01), 792 So.2d 721, 726-727. Factors to be considered when fixing the amount of attorney’s fees to be awarded include the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered by the employee, and the amount of time the attorney devoted to the ease. Davis v. Farm Fresh Food Supplier, 2003-1381 (La.App. 1st Cir.5/14/04), 879 So.2d 215, 221. On review, the amount of attorney’s fees 11fiawarded by the workers’ compensation judge will not be disturbed absent an abuse of discretion. See Langley, 792 So.2d at 727.

In the instant case, Arretteig’s counsel, who has over twenty years of experience in the area of workers’ compensation law, submitted an affidavit demonstrating that, prior to trial, he had expended over 117 hours on this case. In awarding $20,000.00 in attorney’s fees, the workers’ compensation judge specifically concluded that this amount was reasonable, even without consideration of the claims for SEBs also awarded, “considering the need for trial to obtain the obviously due penalties” and that counsel in this matter “are highly experienced in this field and spent a great deal [of] time in preparation and two days of trial.”

Thus, while the amounts remaining unpaid as of the time of trial for which Arretteig was awarded penalties were relatively small in relation to the entirety of all the awards, the workers’ compensation judge clearly found that the amount awarded was reasonable for the work required on those claims alone in light of Arretteig’s attorney’s expertise and the particular circumstances, including the fact that Arretteig was forced to litigate these claims to obtain payment even of these relatively small amounts due. After careful review, we find no abuse of the workers’ compensation judge’s discretion in the decision to make an award of $20,000.00 for Arretteig’s attorney’s fees. See Billiot v. Wal-Mart Stores, Inc., 2003-2451 (La.App. 1st Cir.10/29/04), 897 So.2d 64, 67-68. However, we likewise find no merit to Arretteig’s claim that the amount was abusively low.

Thus, OLOL’s and Arretteig’s assignments of error challenging the amount of the award have no merit.

^CONCLUSION

For the above and foregoing reasons, the May 29, 2013 judgment, awarding Ar-retteig benefits, penalties, and attorney’s fees, is hereby affirmed. Costs of this appeal are assessed against defendant, Our Lady of the Lake Hospital, Inc.

AFFIRMED.

      . Arretteig did not actually receive payment for the SEB benefits to which OLOL determined she was entitled until August 12, 2011.

      . Although the position at Woman's Hospital is part-time, Arretteig stipulated at trial to an earning capacity of a 40-hour work week at the wage rate she is being paid in the part-time position.

      . The OLOL workers' compensation coordinator who was assigned to Arretteig's case testified that OLOL will accommodate restrictions, but will then reassess the need for such light duty every 90 days. If the employee appears as though he or she will get to the point where the employee can return to full duty, OLOL will continue to accommodate the employee. However, in Arretteig's case, her restrictions are permanent, and OLOL terminated the modified position.
      After the modified-duty position was terminated, Arretteig inquired about her entitlement to workers’ compensation benefits and was initially told on two occasions by the OLOL workers’ compensation coordinator that she was not entitled to any benefits. We note that an employer cannot avoid paying compensation benefits to an injured employee by creating a job that accommodates the injured employee’s work restrictions and then firing the injured employee, Poissenot, 56 So.3d at 177.