author: CONERY, Judge.

text:
    Michelle Dore REINKE v. Dr. Stanley KORDISCH, et al.
    No. CA 13-1093.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.
    Donald Carl Hodge, Jr., Attorney at Law, Lake Charles, LA, for Plaintiff/Appellant, Michelle Dore Reinke.
    Kurt Stephen Blankenship, Attorney at Law, Metairie, LA, Amanda Bensabat, Blue Williams, LLP, for Defendant/Appel-lee, Women & Children’s Hospital.
    Ryan M. Goudelocke, Durio, McGoffin, Stagg, Lafayette, LA, for Defendant/Ap-pellee, Dr. Stanley Kordisch.
    Court composed of J. DAVID PAINTER, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   CONERY, Judge.

|, This medical malpractice action was filed on behalf of Michelle Dore Reinke (“Ms. Reinke”) against Dr. Stanley Kor-disch and Women and Children’s Hospital in Lake Charles, Louisiana. The trial court granted Dr. Kordisch’s motion for summary judgment dismissing Ms. Reinke’s claim on the basis that she failed to submit an expert medical opinion to support the claim that a breach of the standard of care caused her injury. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Reinke was thirty-two years old in 2010 when Dr. Kordisch suggested and performed a laparoscopic hysterectomy with an evaluation of the ovaries. Ms. Reinke had previously undergone three cesarean sections with live births, tubal ligation, gallbladder surgery, and laparos-copy of a right hemorrhagic ovarian cyst.

On June 15, 2010, Ms. Reinke and Dr. Kordisch discussed her wish to have her ovaries removed. Dr. Kordisch explained the risks of undergoing what is termed a supracervical hysterectomy and bilateral salpingo-oophorectomy. Those risks included infection, injury to nearby structures, puncture of the bowel or blood vessel requiring abdominal irrigation, an operation to correct injury, damage to a major blood vessel, hemorrhage, severe loss of blood, and the need for transfusions.

After Dr. Kordisch explained the risks of the surgical procedure, Ms. Reinke elected to proceed and signed the required consent forms, acknowledging that the upcoming procedure had been fully explained to her, along with the hazards and risks of proceeding with the surgery. Ms. Reinke’s signature on the consent form |2was witnessed by Loretta Reed, an office clerk, and was also signed by Dr. Kor-disch.

Ms. Reinke underwent the scheduled procedure on June 16, 2010. Although there was some “immediate significant bleeding” in Ms. Reinke’s lower left quadrant, Dr. Kordisch was able to control the bleeding problem and her hysterectomy proceeded without further problems. Pri- or to completing the surgery, Dr. Kordisch rechecked the area of the left inferior epi-gastic artery, which he suspected was the source of the initial bleeding problem, and found it completely hemostatic, or no longer bleeding.

Ms. Reinke was transferred to the post-anesthesia care unit at 10:08 a.m., but continual problems with blood loss resulted in a series of infusions, occasioned by her below normal hemoglobin and hematocrit (“H & H”), an indication of lack of red blood cells. Ms. Reinke was administered one unit of packed red blood cells intended to fight anemia and support perfusion, which means to supply oxygen and nutrients to the organs or tissues. After the PRBC infusion, Ms. Reinke’s vital signs improved by 11:20 a.m. A second unit of PRBC was begun at 11:46 a.m. Dr. Kor-disch checked on Ms. Reinke at . 12:01 p.m. and found her resting quietly. - At 3:20 p.m., Dr. Carole Altier ordered that Ms. Reinke be transferred to the intensive care unit (ICU).

Dr. Kordisch was paged at 4:15 p.m. and arrived shortly thereafter to check Ms. Reinke’s vital signs, which were now stable. He also requested a consult from Dr. Prashant Khetpal, a hospitalist, and ordered a third unit of packed red blood cells and repeat H & H testing following the infusion, and another H & H the following morning.

|3On June 16, 2010, Dr. Khetpal visited Ms. Reinke at 6:30 p.m. and found her improved and asymptomatic except for post-surgery pain. At 8:00 p.m., her H & H had improved but were still low, and her white blood count, although improved, was still elevated. Dr. Kordisch saw Ms. Reinke at 9:25 p.m. and ordered that the bandage on the lower right quadrant be changed and began treating her with prophylactic cefoxitin, an antibiotic.

On June 17, 2010, Dr. Kordisch saw Ms. Reinke at 5:47 a.m. and found that her H & H levels had decreased to critically low levels. He ordered two more units of packed red blood cells. A CT scan showed pelvic hematoma, but there was no evidence of heavy bleeding, so he planned to watch her carefully and wait for any remaining bleeder, a blood vessel cut during surgery, to coagulate. This plan was discussed with Ms. Reinke’s family on the morning of June 17, 2010.

By 9:09 a.m. on June 17, 2010, Ms. Reinke’s H & H had increased, but by 5:34 p.m. it had once again dropped. Both Dr. Kordisch and Dr. Khetpal were notified, and Dr. Khetpal ordered another unit of packed red blood cells, which coupled with an additional unit given overnight, had failed to raise Ms. Reinke’s H & H levels by 6:31 a.m. on June 18, 2010.

However, by 10:30 a.m. on June 18, 2010, Ms. Reinke felt better and had no dizziness or fever and her pain was well controlled, with occasional cramps. Dr. Khetpal continued to closely monitor Ms. Reinke and planned to discontinue the infusions, as per Dr. Kordisch orders. Her H & H levels remained stable until late in the day when at 9:30 p.m. Dr. Kordisch was notified that Ms. Reinke’s H & H levels had dropped sharply.

Dr. Kordisch then ordered two more units of packed red blood cells for Ms. Reinke and an additional four units in preparation for surgery, which began at |411:50 p.m. Dr. Kordisch encountered much clotted blood, but also some fresh blood from arterial bleeders in the left lower quadrant. He was unable to stem the bleeding and enlisted the help of general surgeon Dr. Richard Shimer. Together they were able to control the bleeding. Dr. Kordisch also sutured in several drains before concluding the surgery.

At 3:09 a.m. Ms. Reinke’s blood pressure and H & H were still low, and Dr. Kor-disch ordered two more units of packed red blood cells. Ms. Reinke continued to have difficulty maintaining blood pressure. Coupled with the still low H & H, Drs. Kordisch and Shimer decided to return her to surgery at 4:15 a.m. This time, an exploratory laparotomy revealed “a little arterial bleeding,” which they were able to control. By 4:40 a.m. Ms. Reinke’s hemoglobin had returned to normal and her hematocrit and white blood count were near normal.

Still concerned that some bleeding might reoccur as Ms. Reinke’s blood pressure began to return to normal levels, Dr. Kor-disch asked Dr. Baron Newton, a vascular surgeon, to conduct an exploratory lapa-rotomy. Thus, for the last time Ms. Reinke went back into surgery on June 19, 2010 at 8:40 a.m. No specific bleeding site could be identified, but after Dr. Newton ligated the left internal iliac artery, “the oozing was much less” and Ms. Reinke’s blood pressure remained stable throughout the procedure.

After the last procedure, Ms. Reinke’s H & H remained low and Dr. Newton ordered a transfusion of both packed red blood cells and fresh frozen plasma. Ms. Reinke’s abdomen was draining fluid, but it did not show any evidence of active intra-abdominal bleeding, and it was Dr. Newton’s opinion that some slow oozing remained but that there was no active intra-abdominal bleeding. Dr. Newton Isplanned to continue supportive transfusions and close monitoring of Ms. Reinke’s laboratory work.

After the final surgery and over the next two days, Ms. Reinke’s condition continued to improve. Her H & H and blood pressure returned to normal levels and by June 21, 2010, her abdominal drainage had decreased dramatically and the transfusions were terminated. Ms. Reinke left the ICU on June 23, 2010, and she was discharged from the hospital on June 26, 2010. She continued treatment with Dr. Kordisch and home health care.

On or about May 3, 2011, in accordance with La.R.S. 40:1299.47, Ms. Reinke filed a complaint of medical malpractice against Dr. Kordisch and Women and Children’s Hospital. Ms. Reinke requested a medical review panel (“MRP”) which was composed of three physicians, Drs. Ewelina Griffin of Baton Rouge, Monique Monteilh of Lafayette, and Rebecca Boudreaux of Baton Rouge. The MRP reviewed Ms. Reinke’s complaint, and on July 25, 2012, the panel issued an opinion, unanimously finding that, based on the evidence presented, neither Dr. Kordisch or Women and Children’s Hospital breached their standard of care to Ms. Reinke.

On October 23, 2012, Ms. Reinke timely filed suit, claiming medical malpractice by Dr. Kordisch and Women and Children’s Hospital. On January 8, 2013, both Dr. Kordisch and Women and Children’s Hospital filed motions for summary judgment on the grounds that Ms. Reinke had no expert testimony to support her claim as required by La.R.S. 9:2794(A). In support of their motions for summary judgment, both Dr. Kordisch and Women and Children’s Hospital relied on the opinion of the medical review panel that neither had breached the standard of care to Ms. Reinke.

LA hearing was held on June 21, 2013, at which time Ms. Reinke voluntarily dismissed with prejudice, Women and Children’s Hospital. A judgment reflecting same was signed in open court and is not subject to this appeal.

In support of his motion, Dr. Kordisch submitted into evidence all attachments to his motion for summary judgment, which included the unanimous “Findings Of The Medical Review Panel,” and the affidavit of Dr. Monique Monteilh, a member of the MRP, affirming that opinion, along with a certificate of enrollment for Dr. Kordisch in the Patient’s Compensation Fund. In opposition to the motion, Ms. Reinke offered her memorandum in opposition and the affidavit of Ms. Reinke.

After hearing argument from counsel, the trial court issued oral reasons granting Dr. Kordisch’s motion for summary judgment on the basis that Ms. Reinke failed to produce expert medical testimony to refute the opinion of the medical review panel and specifically finding that res ispa loqui-tur was not applicable to the facts of this case. A judgment reflecting the trial court’s ruling dismissing Ms. Reinke’s claim against Dr. Kordisch with prejudice was also signed in open court on June 21, 2013. It is from this judgment that Ms. Reinke timely appeals.

ASSIGNMENT OF ERROR

1. The trial court erred in granting the Motion for Summary Judgment.

|7LAW AND DISCUSSION

Standard of Review

Summary judgments are reviewed de novo, applying the same standard to the matter as that applied by the trial court. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Summary judgment is favored by law and provides a vehicle by which the just, speedy, and inexpensive determination of an action may be achieved. La.Code Civ.P. art. 966(A)(2). The trial court is required to render summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

In 1997, the legislature enacted La.Code Civ.P. art. 966(C)(2) which clarified the burden of proof in summary judgment proceedings. The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. “[T]he failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Hutchinson v. Knights of Columbus, Council No. 5717, 03-1533, p. 6 (La.2/20/04), 866 So.2d 228, 233 (citing Hardy v. Bowie, 98-2821, (La.9/8/99), 744 So.2d 606).

When a motion for summary judgment is made and supported, the adverse party may not rest on the allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. La.Code Civ.P. art. 967(B). A fact is material when its existence or nonexistence may be essential to a | ¿plaintiff s cause of action under the applicable theory of recovery. Penalber v. Blount, 550 So.2d 577, 583 (La.1989). “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Smith, 639 So.2d at 751 (quoting S. La. Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.1991), writ denied, 596 So.2d 211 (La.1992)).

In determining whether a fact is material, we must consider the substantive law governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, writ denied, 01-73 (La.3/23/01), 788 So.2d 427. Our supreme court in Johnson v. Morehouse General Hospital, 10-387, pp. 10-11 (La.5/10/11), 63 So.3d 87, 96, stated:

When a medical malpractice action is brought against a physician, the plaintiff must establish the standard of care applicable to the physician, a violation of that standard of care by the physician, and a causal connection between the physician’s alleged negligence and the plaintiffs resulting injuries. Schultz v. Guoth, 10-0343 (La.1/19/11), 57 So.3d 1002; Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228, 1233 ... Expert testimony is generally required, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Schultz, supra; Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880, 883.

Louisiana Revised Statutes 9:2794(A) provides in pertinent part:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq-the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by 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 |9medical 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 ... 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.

Briefly stated, the plaintiffs burden of proof in a medical malpractice action requires the plaintiff to present evidence to establish the applicable standard of care, a breach of that standard of care, and a causal connection between the breach and the injury. La.R.S. 9:2794; Pfiffner, 643 So.2d 1228.

In support of his motion for summary judgment, Dr. Kordisch submitted into evidence the unanimous opinion of the MRP. This circuit in the case of Palombo v. Bacque, 06-218 (La.App. 3 Cir. 5/31/06), 931 So.2d 1226, writ denied, 06-1698 (La.10/6/06), 938 So.2d 82, applied the findings of the second circuit in the case of Edwards v. Raines, 35,284, p. 5 (La.App. 2 Cir. 10/31/01), 799 So.2d 1184, 1187, which held:

One of the essential elements of a medical malpractice action is that the plaintiff establish that the conduct of the defendant fell below the applicable standard of care. Hinson v. Glen Oak Retirement Home, 34,281 (La.App. 2 Cir. 12/15/00), 774 So.2d 1134. The opinion of the Medical Review Panel may be considered by the court when ruling on a summary judgment motion. Id., at 1137. Hinson also holds that a favorable affidavit by the treating physician and a favorable opinion by the Medical Review Panel are sufficient to establish an absence of factual support for the plaintiffs claims. 774 So.2d at 1137.

In this case, the unanimous opinion of the MRP stated in pertinent part:

Reasons as to Dr. Stanley Kordisch: This was a difficult procedure. The patient was appropriately consented for the procedure. |1flShe experienced a known complication which was specifically addressed in the consent.
Dr. Kordisch promptly recognized the complication and followed the patient very closely. He took appropriate steps to address the complication and repair it. This resulted in his consultation with a vascular surgeon who made the final repair.
Although, this was a difficult course for the patient, the panel finds that Dr. Kordisch met the standard of care in this matter.

In an abundance of caution, Dr. Kor-disch also submitted into evidence the affidavit of Dr. Monteilh, a member of the MRP, which confirmed the panel’s unanimous determination of Dr. Kordisch’s care of Ms. Retake, which also stated in pertinent part:

That said Medical Review Panel’s Opinion was that the evidence did not support the conclusion that Dr. Stanley Kordisch failed to comply with the appropriate standard of care as charged in the Complaint, and was reached only after consideration of all of the evidence submitted by the parties hereto. Said written Opinion accurately expresses the opinion that Dr. Stanley Kordisch did not breach the applicable standard of care.

In opposition to the motion for summary judgment, Ms. Reinke argued the application of res ispa loquitor as discussed by the supreme court in Pfiffner. Ms. Reinke’s opposition was her affidavit, which as previously indicated was introduced into evidence at the hearing but never properly filed in the record before this court.

Although the record is incomplete for a de novo review by this court, the trial court specifically addressed the application of res ispa loquitor to this case and found it did not fall into the category of cases as envisioned by Pfiffner. The trial court found that Ms. Reinke would be unable to sustain her burden of proof at trial pursuant to La.R.S. 9:2794 without the testimony of a physician within Dr. Kordisch’s medical specialty. We agree. The trial court in its oral reasons stated as follows:

1 nThe matter before the Court concerns complications that apparently, at least on what’s been presented, were made aware to the plaintiff. The plaintiff suffered said complications, and at this point no medical testimony has come forward to indicate that the activities were negligent in some form or fashion within that medical specialty.
It does not appear to this Court that that is something that is obvious on its surface that a layperson could determine negligence from the mere acts. There’s also been arguments with regard to res ipsa, but this does not appear to be a matter that would fall within res ipsa, even though it was argued on occasion.
At this time I do find that the plaintiff will not be able to satisfy their burden based on the presentation. There is no genuine issue of material fact at this time. And without any expert testimony to the contrary, the Court would grant the motion for summary judgment dismissing the allegations against Dr. Kordish (sic) at cost to plaintiff.

In the face of trial court’s finding that medical expert testimony would be required for Ms. Reinke to establish her burden of proof at trial, any statements made in her affidavit would not be sufficient to defeat summary judgment in this medical malpractice action. Venable v. Dr. X, 95-1634 (La.App. 3 Cir. 4/3/96), 671 So.2d 1249.

DISPOSITION

For the foregoing reasons, the judgment of the trial court granting the motion for summary judgment on behalf of Dr. Stanley Kordisch and dismissing the claims of Michelle Dore Reinke is affirmed. All costs of this appeal are assessed against Michelle Dore Reinke.

AFFIRMED.

      . On June 21, 2013, the trial court granted Women and Children's unopposed motion for summary judgment, which dismissed Women and Children’s with prejudice at plaintiff’s costs.

      . The trial court was aware of Ms. Reinke’s memorandum in opposition and the affidavit of Ms. Reinke, which was received into evidence without objection. However, in the preparation of the record, it was determined by the Calcasieu Clerk of Court that the opposition memorandum had not been filed, and thus is not a part of the record on review.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    Holly Faye GUIDRY v. Jacob C. BLANCHARD.
    No. 13-1095.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      Burleigh G. Doga, Crowley, LA, John E. Fitz-Gerald, Lake Charles, LA, for Defendant-Appellant, Jacob C. Blanchard.
    Wendell R. Miller, Jennings, LA, for Plaintiff-Appellee, Holly Faye Guidry.
    Court composed of J. DAVID PAINTER, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   PAINTER, Judge.

11 Defendant, Jacob C. Blanchard, appeals a consent judgment signed in connection with a rule for contempt filed by Plaintiff, Holly Faye Guidry, relative to payment of child support and various other matters. Blanchard alleges that the consent judgment as signed failed to comply with the stipulated agreements of the parties, expanded the agreements of the parties, and did not include a modified joint custody plan. For the following reasons, we affirm in part, vacate in part, and remand the matter to the trial court.

FACTS AND PROCEDURAL HISTORY

Guidry and Blanchard are the natural parents of a minor son born December 9, 2000. The parties were never married; however, child support was set and the parties entered into a joint custody plan in 2008. Since that time, Guidry filed several rules for contempt after Blanchard failed to pay child support as ordered, and Blanchard was found in arrears of his child support obligation on multiple occasions.

On April 2, 2012, Guidry filed a rule for contempt again alleging that Blanchard was delinquent in making his child support payments, that he violated a judgment of the court by claiming the child as a dependent on his 2011 federal and state income tax returns, that he contacted her by phone in violation of a court order, and that he was communicating negative statements about her to the child and undermining her authority and/or relationship with the child. There was also pending a rule for increase in child support filed by Guidry. These matters were scheduled to be heard on November 30, 2012. At that time, the parties entered into a joint stipulation, as discussed in detail below. The trial court signed a judgment purporting to comply with that stipulation as prepared by Guidry’s counsel.

12Blanchará alleges that the judgment failed to comply with the stipulated agreements of the parties as stated in the record in open court and that it expanded the agreements of the parties beyond that which was stated in the record. He also alleges that the trial court erred in signing a judgment which did not include a modified joint custody plan. For the reasons that follow, we agree with Blanchard as to his first two assertions, and we affirm the consent judgment insofar as it accurately reflects the agreement of the parties as provided in the transcript of the proceedings. Insofar as it contains provisions not contained in the oral stipulation, those provisions are vacated. The matter is remanded to the trial court for further proceedings to resolve the outstanding matters.

DISCUSSION

Louisiana Civil Code Article 8071 provides that “[a] compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” It “shall be made in writing or recited in open court.” La.Civ.Code art. 3072. Furthermore, “[a] compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express.” La. Civ.Code art. 3076.

The transcript of the proceedings held on November 30, 2012, reflects that the parties agreed to the following:

a. The child support obligation owed by Blanchard would increase to $821.00 per month.
b. The previous joint custody plan would be modified to the extent that Blanchard would have two nonconsecutive weeks of visitation during the summer and provide notification by May 1 of which weeks he intends to exercise but that it cannot be the week before school starts.
|sc. Blanchard must provide a five-day notice of any changes in regular visitation as soon as he is aware of any changes to his work schedule.
d. If the parent is to be out of town during the time that he/she has physical custody of the child, the other parent must be offered the right to keep the child overnight before making other arrangements except during the school week.
e. The previous order that communication between the parties must be in writing continues in effect.
f. The prior stipulations that Blanchard’s brothers have no contact with the child and not be present during Blanchard’s period of visitation continue in effect.
g. The child shall not be brought to a correctional facility to visit anyone.
h. If the child is to travel out of town or state, an itinerary of the trip and contact information must be provided.
i. The parties are to participate in parent counseling with Ms. Kay Bush for a minimum of six sessions and any agreed upon additional sessions with the expense of those sessions to be paid 60% by Blanchard and 40% by Guidry.
j. Guidry will provide health insurance for the child, with her insurance to be primary, and Blanchard will provide health insurance for the child, with his insurance to be secondary.
k. Blanchard must discuss any additional visitation requests with Gui-dry directly and not through the child.
l. Any clothing and possessions brought with the child to visitation must be returned at the end of the visitation.
|4m. Blanchard will pick the child up at Guidry’s residence at 6:00 p.m. on. Friday to begin visitation, and Guidry will pick the child up at Hebert’s Steakhouse at 6:00 p.m. on Sunday at the conclusion of Blanchard’s visitation.
n. The child must be picked up and returned within thirty minutes of the time specified. Blanchard must give twenty-four hour notice in writing if he is not going to exercise visitation.
o. Blanchard must be present at all times with the child during his period of visitation.
p. Neither parent shall allow unsupervised internet access by the child while in their care.
q. Communication with the minor child shall not take place after 9:00 p.m. on a school night.
r. No negative or disparaging remarks by either party against the other party shall be made in the presence of the child.
s. The joint custody plan should include the standard language regarding flexibility of schedules, communication, providing proof of medical expenses not covered by insurance along with an explanation of benefits from the insurance company, and timeframe within which Blanchard can either object to or pay the expenses.
t. Blanchard will be listed as the father on the school records of the child and will have access to any website information regarding activities regarding the child.
u. No verbal or written communications or transfer of funds for payment of child support or medical expenses shall be made through the child.
|sv. Blanchard will be entitled to the tax deduction for the child if he is current on his child support obligation.
w. An income assignment order will issue to Blanchard’s current employer for payment of future child support.
x. Blanchard is to pay court costs.

The transcript further reflects that both parties acknowledge that they heard the stipulation, understand it, and agree to it.

The transcript indicates that counsel for Blanchard would request a copy of the transcript from which to prepare the consent judgment; however, the consent judgment signed by the court reflects that it was “approved as to form and content” by counsel for Guidry. It is not signed by counsel for Blanchard.

A comparison of the transcript and the consent judgment reveals that the consent judgment correctly reflects the aforementioned provisions and is clear that the pri- or joint custody plan of April 8, 2008, remains in effect as modified by the agreed upon changes. However, the transcript is clear that the amount of arrearag-es was unknown, that further documents would have to be obtained to ascertain this amount, and that a status conference might be necessary on that issue. Despite this, the consent judgment sets the amount of arrearages in child support and holds Blanchard in contempt and sentences him to ninety days in parish jail. It also orders him to pay attorney’s fees in the amount of $6,000.00 to be paid at the rate of $200.00 per month until paid. It finally finds him in contempt for failure to pay $1,189.01 in uncovered medical expenses and makes that amount executor and payable at the rate of an additional $100.00 per month in addition to any other amounts due. These parts of the judgment that do not constitute part of the agreement between Blanchard and Guidry must be vacated. They do not | ^accurately reflect the intent of the parties as clearly indicated by the transcript. See Reon v. Reon, 07-1277 (La.App. 3 Cir. 4/2/08), 982 So.2d 210.

DECREE

We affirm those portions of the judgment that correctly reflect the agreement of the parties. We vacate those parts, as discussed above, which do not reflect the agreement of the parties as stated in the transcript of the proceedings and remand the matter to the trial court for further proceedings as to those issues. Costs of this appeal are assessed equally to Plaintiff-Appellee, Holly Faye Guidry, and to Defendant-Appellant, Jacob C. Blanchard.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED.


author: EZELL, Judge.

text:
    SUCCESSION OF McKinley VAN BROWN, Jr.
    No. CA 13-1206.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.
    Vanessa Harris, Harris and Harris, Opelousas, LA, for Appellees, McKinley Van Brown, Jodi Brown, Daphne Inez Brown.
    Gloria A. Angus, Angus Law Firm, LLC, Opelousas, LA, for Appellee, Fresh Oil Fresh Anointing Ministries, LLC.
    Derriel Carlton McCorvey, Lafayette, LA, for Appellant, Pauletta Gedward, Administrator.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

L Pauletta Gedward, as administrator of the succession of her deceased husband, McKinley Van Brown, Jr., appeals a trial court judgment that ordered the return of $30,000.00 to his daughter, Daphne Brown. Ms. Gedward argues that the transfer of the $30,000.00 was a remunerative donation and the trial court erred in finding that an onerous contract existed between the deceased and his daughter.

FACTS

Daphne Brown was living with her parents when she gave birth to a son, Marcus, on October 9,1996. Ms. Brown moved out of the home when Marcus was three or four years old. Marcus continued living ■with her parents, and then continued living with her father when her parents divorced in 2005. Mr. Brown provided all financial support for Marcus since his birth, including tuition for private school. Ms. Brown made no contributions for the financial support of Marcus. Marcus was living with his grandfather when Mr. Brown died on October 26, 2012. Marcus then moved in with his mother.

In 2009, Ms. Brown was involved in an accident resulting in a recovery of money in 2011. On August 31, 2012, Ms. Brown purchased a cashier’s check in the amount of $30,000.00 payable to her father. Ms. Brown testified that she presented the check to her father to pay for the rest of her son’s high school tuition in addition to college expenses.

After Mr. Brown’s death, his wife, Pau-letta Gedward, was appointed administrator. Ms. Brown and her sister, Jodi Lemon, filed a motion to traverse the detailed descriptive list filed by Ms. Gedward in addition to seeking revocation of the $30,000.00 donation. A hearing on the issue of the characterization of the $30,000.00 donation was held on April 26, 2013.

|Jn its reasons for judgment, the trial court accepted the testimony of Ms. Brown that the funds were to be used to pay for her son’s future education. The trial court ordered the return of the $30,000.00 since Mr. Brown was no longer in a position to carry out the conditions placed upon him. Ms. Gedward then filed the present appeal.

DISCUSSION

Ms. Gedward argues that the donation by Ms. Brown to her father was a remunerative donation for all the expenses he incurred in the past while raising Marcus. She claims that what Mr. Brown did for Marcus speaks louder than Ms. Brown’s own self-serving testimony.

There are three types of inter vivos donations: (1) gratuitous; (2) onerous; and (3) remunerative. La.Civ.Code arts. 1468, 1526, and 1527. “The gratuitous donation is made purely from liberality; the onerous donation is burdened with charges upon the donee; and the remunerative donation is given to recompense the donee for services rendered in the past.” 10 Kathryn Venturatos Lorio, Louisiana Civil Law Treatise § 8:13, p. (2d ed.2013). Rules that are applicable to donations inter vivos do not apply to onerous and remunerative donations when the value of the charge or service performed exceeds by two-thirds the value of the gift. La. Civ.Code arts. 1526 and 1527. The rules applicable to donations inter vivos do not apply because it is not a true donation. Averette v. Jordan, 457 So.2d 691 (La.App. 2 Cir.1984). When it is not a true donation, the rules applicable to contracts apply. Garcia v. Dulcich, 237 La. 359, 111 So.2d 309 (1959); Maleig v. Maleig, 435 So.2d 496 (La.App. 4 Cir.), writ denied, 441 So.2d 765 (La.1983).

In reasons for judgment, the trial court ruled that the donation of $30,000.00 was both a remunerative and an onerous donation. However, the trial court then | adiscussed the donation as a completely onerous donation in which the donee’s death prevented him from fulfilling the obligations imposed by the onerous donation. The trial court then applied La. Civ. Code art. 1876 and held that the contract was dissolved by the fortuitous event of Mr. Brown’s death resulting in his inability to perform the obligation of paying for the education of Marcus.

It is clear that the parties differ on whether the donation was a reimbursement for Mr. Brown’s payment of Marcus’s educational expenses in the past or was compensation to help fund Marcus’s future educational expenses. If the money was payment for past services, then the succession would keep the money because the contract was complete. However, if the money was for Marcus’s future education, then Mr. Brown’s death, just two short months after the presentation of the money, prevented him from carrying out the obligation imposed on him. Testimony was introduced by both sides as to the reason for Ms. Brown’s presentation of the $30,000.00 cashier’s check to her father.

Ms. Brown testified that she gave the money to her father because she wanted Marcus to go to college and to help pay for the remainder of his private high school education. Ms. Lemon’s testimony confirmed her sister’s version. Ms. Lemon knew nothing about the money until her father told her about it. She testified that her father told her that her sister had given him a check for $30,000.00 for Marcus for school expenses. Ms. Lemon stated that her father was happy about the money because Marcus was going to college in a few years.

On the other hand, Ms. Gedward testified that her husband told her that Ms. Brown gave him the money in appreciation for taking care of Marcus from the time he was born. She further testified that her husband had paid Ms. Brown’s rent and utility bills for ten years after she moved out of the house and Ms. Brown gave [ 4him the money as a token of appreciation for what Mr. Brown did for her and Marcus.

Obviously, the trial court based its decision on the testimony of Ms. Brown and her sister in ruling that the money was given to Mr. Brown for the benefit of Marcus’s future education. Under the manifest error/clearly wrong standard of review, findings by the trial court based on determinations regarding the credibility of witnesses are entitled to great deference because only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The trial court obviously placed more credibility on Ms. Brown’s testimony and that of her sister rather than Ms. Ged-ward’s testimony. We find no manifest error in this ruling.

The judgment of the trial court is affirmed. Costs of this appeal are assessed to the Succession of McKinley Van Brown, Jr.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    Cleo ALEXANDER v. PEERLESS CLEANERS.
    No. 13-1104.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.
    Ernie Lynn Vallery, Alexandria, LA, for Plaintiff/Appellant, Cleo Alexander.

      Bradley John Gadel, Bradley J. Gadel, APLC, Alexandria, LA, for Defendant/Ap-pellee, Peerless Cleaners.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

_JjThe claimant, Cleo Alexander, appeals the judgment of the Office of Workers’ Compensation dismissing his suit against his employer, Peerless Cleaners (“Peerless” or “the laundry”). The workers’ compensation judge concluded that Mr. Alexander did not prove the occurrence of a compensable accident. We affirm the judgment.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in finding that Mr. Alexander did not meet his burden of proving that he suffered a compensable accident while in the course and scope of his employment with Peerless Cleaners; and
(2) whether Mr. Alexander filed a frivolous appeal and is therefore liable for sanctions.

II.

FACTS AND PROCEDURAL HISTORY

The case before us is particularly difficult because of the unusual relationship between the claimant, Mr. Cleo Alexander, and the Peerless owner, Mr. Johnny Regard. Mr. Alexander, age fifty-three, and Mr. Regard, age sixty-eight, worked together side by side in the back of the laundry for many years. Mr. Regard’s grandfather started the business, and Mr. Regard had run it for over forty years. Mr. Regard testified that Mr. Alexander was one of the best employees that he had ever had. He was smart and dependable, and he had been employed there for fourteen years. Mr. Alexander had two years of college and had done other | ^things, but he liked being at home in the afternoons; and he was a good shade-tree mechanic. Basically, he worked from 7:00 a.m. until noon at the laundry Tuesday through Friday; he also worked for a couple of hours on Monday mornings when the laundry was closed.

Mr. Alexander arrived first every morning and started the operation of washing, handling buckets of detergent and starch, and then pressing and ironing. Sometimes he did dry cleaning duty. The female employees usually arrived at 7:30 a.m., took turns working in the back, and then worked the front counter until 5:00 p.m. It was a small operation, and teamwork was evident. Mr. Alexander wrapped up the laundry operations in the back, turned everything off, and was last to leave the area, clocking out around twelve, give or take an hour. If something came up later in the day, Mr. Regard would call, and Mr. Alexander would come back with help if the task required moving anything heavy.

Such was the case on Tuesday, February 28, 2012. Mr. Alexander clocked out at 1:21 p.m. after helping two deliverymen offload an electronic carousel that Mr. Regard had purchased for the laundry. It was a long, gangly piece of equipment, disassembled, and only about two feet high, but over ten feet long, with a motor at one end, and weighing around 200 pounds altogether. After it was offloaded from the trailer, the equipment sat in the parking lot in front of the laundry. Mr. Regard called Mr. Alexander around 3:30 p.m. and asked him to come back with a couple of men to help move the carousel into the storage building across the street from the laundry.

Mr. Alexander went to the home of Ricky and Logan Channel, two brothers who had helped move things in the past. Ricky Channel went with Mr. Alexander. Logan did not arrive timely. Mr. Alexander, Mr. Regard, and Ricky 13Channel ultimately moved the equipment themselves. Ricky Channel, an apparently robust and able-bodied sixty-two-year-old, took the heavy end, and Mr. Alexander, a slighter built individual, took the lighter end. Mr. Regard helped with the light end and in the middle with a dolly. The three men pushed the equipment across the pavement, over some grass or shells, and finally into the storage building, a total of at least eighty yards. The carousel fell off the dolly a few times and had to be realigned. No one complained of being hurt during or after the offloading process around noon, and no one complained of being hurt during or after moving the equipment into storage later that afternoon.

Mr. Alexander worked every day as usual. He later complained that his back hurt, but he did not report an injury. He thought he had pulled a muscle and sought medical attention on his own at Huey P. Long Hospital (Huey P. Long), where he denied trauma or injury of any kind. Mr. Alexander subsequently asserted that he told Mr. Regard that he was hurt at work, which Mr. Regard denies.

Mr. Alexander filed a 1008 in November 2012, asserting that he sustained a work injury in mid-February; that no benefits had been paid; that no medical care had been authorized; and that he was unable to work more than half days due to disabling pain. Mr. Regard answered the suit asserting that Mr. Alexander was still fully employed; that he was not disabled; that he had not reported a work injury; and that he had not asked for medical authorization.

Mr. Alexander was paid $8.00 an hour for thirty-six hours per week. Pursuant to his time cards, he worked only twenty hours per week. He testified that he received $70.00 or $80.00 per week in additional cash in a separate envelope through December 2012, though this amount is not documented. Except |4for holidays, Mr. Alexander missed five days of work in 2012. On one of those days he had a colon screening at Huey P. Long; and the last day missed was the day after Thanksgiving. Mr. Alexander continued to work through March 2018.

On March 27, 2013, thirteen months after the incident on February 28, 2012, Mr. Alexander wrote a letter to Mr. Regard, stating that he was unable to work any longer. There were no medical reports to support a disability.

On April 3, 2013, pursuant to a court-ordered evaluation by his physician of choice, Mr. Alexander saw Baton Rouge orthopedist Dr. Kevin McCarthy. Dr. McCarthy related Mr. Alexander’s problems to the incident with the carousel based upon the history given, but his concerns were with Mr. Alexander’s cervical and thoracic spine, not his lower back.

Following a June 2013 trial and the testimony of co-workers, family members, and Ricky Channel, the trial court found in favor of Peerless Cleaners and dismissed Mr. Alexander’s claims. For the following reasons, we must affirm.

III.

STANDARD OF REVIEW

In deciding workers’ compensation cases where, as here, the accident is unwitnessed, Bruno v. Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992), has enunciated the trial court’s function and the appellate court’s standard of review:

In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on preview unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farms, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases)....

Attempting to give meaning to the nebulous terms “clearly wrong” and “manifest error,” we recently enunciated the following general principles ...:

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Rosell v. Esco [ESCO], 549 So.2d 840, 844-45 (La.1989) (citations omitted and emphasis supplied).

IV.

LAW AND DISCUSSION

Applicable Law

The worker in a compensation action must establish the threshold requirement that he suffered a “personal injury by accident arising out of and in the course of his employment.” La.R.S. 23:1031. “ ‘Accident’ means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or ¡(¡violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).

In Bruno, 593 So.2d at 361, the Louisiana Supreme Court articulated the claimant’s burden of proof and the criteria to be used by the courts in determining whether an unwitnessed but compensable accident has occurred:

Despite the liberal construction of the statute afforded the worker in a compensation action, the worker’s burden of proof is not relaxed. Prim v. City of Shreveport, 297 So.2d 421 (La.1974). Rather, as in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Id.; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. [Id.]; Nelson, [588 So.2d 350]. Corroboration may also be provided by medical evidence. West, [371 So.2d 1146],

After applying the Bruno criteria, the trial court found that Mr. Alexander failed to prove a work-related, compensable injury by a preponderance of the evidence. The record supports this conclusion as (1) other testimony and medical evidence discredited and cast serious doubt upon Mr. Alexander’s version of the incident; and (2) the circumstances following the incident did not corroborate Mr. Alexander’s testimony.

\nOther Evidence

It is undisputed that Mr. Alexander did not tell the owner, Mr. Regard, or anyone else that he hurt his back when he helped offload the carousel at noon on the Tuesday of the incident on February 28, 2012. Nor did he say anything that afternoon when he went back to help move the equipment into storage. Further, when Mr. Alexander went to Huey P. Long Hospital for lower back pain almost three weeks later, he denied trauma or injury of any kind. Even later, he could not describe or identify a specific precipitous event under La.R.S. 23:1021(1) when he felt the pain that allegedly would disable him after continuing to work for over a year. He eventually testified that he thought he had pulled a muscle lifting the equipment the first time, but he wasn’t sure exactly when, and he did not think much of it at the time.

There were numerous discrepancies, and the trial court had to resolve many conflicts in the testimony, both large and small. Mr. Alexander said he and one driver and Mr. Regard offloaded the equipment the first time. Mr. Regard said there were two men in the delivery truck and trailer, not one; and Mr. Regard said that he himself did not help because he went inside to write the check for the delivery. When he came out, the carousel was unloaded and on the ground.

Mr. Alexander testified that when he came back in the afternoon with Ricky Channel, Mr. Regard “got in a hurry” and insisted on the three of them (Alexander, Channel, and Regard) going ahead without waiting for the second Channel brother to arrive. Mr. Regard testified that it was Ricky who did not want to wait for his brother and that Ricky started boasting that he could do the whole thing by himself even if Mr. Alexander and Mr. Regard climbed on top of the carousel. There was apparently laughter and kidding. Mr. Alexander admitted to [shaving a beer when he got off work, and Ricky Channel admitted to being a beer drinker too. Ricky Channel confirmed that he said Mr. Alexander might be too light to handle the equipment. Ultimately the three men, Ricky Channel, age 62, Mr. Regard, age 68, and Mr. Alexander, age 53, pushed the equipment into the storage building. The carousel fell off the dolly a few times, but no one complained of injury, and no one dropped the equipment because of pain.

Post-Accident Circumstances

After the incident on Tuesday, February 28, 2012, Mr. Alexander continued to work the rest of the week, and on into March of 2013, missing only a few scattered days of work. He testified that he could not get out of bed the weekend after the incident. His wife and step-daughter, who lived with him at the time, testified that he stayed in bed that weekend, which was unusual for him. At some point, Mr. Alexander developed a limp. His wife, his step-daughter, and his brother all testified regarding Mr. Alexander’s decline in health, but the time line and the sequence of events were muddied, rather than clarified. Mr. Alexander’s step-daughter said he told her mother about the work accident six or seven months before trial, which would have been November or December 2012, but Mrs. Alexander said he told her the weekend after the incident — in March 2012.

Mr. Alexander testified that the Monday after the Tuesday incident, he told Mr. Regard that his back hurt. Mr. Regard gave him ointment that he had used for his own backaches, but Mr. Regard said that event did not occur until about three weeks after the incident. Mr. Alexander’s step-daughter testified that in February or March 2012, Mr. Alexander started walking differently, but later testified that the limp probably started in June. Mr. Alexander’s brother testified 19that he noticed the limp and talked to Cleo about the possibility of a stroke before Easter, but his concerns escalated on Good Friday, April 6, when Cleo could not get out of a chair and had to be carried to his brother’s vehicle. Mr. Alexander had worked, as usual, the day before the holiday on Good Friday.

Mr. Alexander’s 2012 medical records do not support a work-related injury. He was seen at Huey P. Long on March 18 for low back pain and pain in his right leg and hip, but he denied any trauma, injury, or functional restrictions. X-rays revealed chronic arthritic changes with spurring and decreased disc spaces. The diagnosis was sciatica. A lumbar MRI was ordered because of the sciatica; a cancer screening was ordered because of a reported ten-pound weight loss. Mr. Alexander had the MRI on April 23 and learned on May 2 that he had minimal broad-based disc protrusions at L2-3, L3-4, and L4-5, with an otherwise normal MRI and no spinal sten-osis. He returned to Huey P. Long on July 30, complaining of right-sided weakness and numbness in his right leg and arm. At each of the visits to Huey P. Long, Mr. Alexander was ambulating without difficulty, had full range of motion, and there is no mention of a work injury.

Mr. Alexander said that he told Mr. Regard in May that he was injured moving the carousel in February, because when he got the MRI results he realized that he had more than a pulled muscle. He said Mr. Regard accused him of wanting free money and refused to send him to the doctor. Mr. Regard denies that Mr. Alexander reported a work injury or asked for medical care and further said that he offered to pay the $80.00 for the MRI that Mr. Alexander had mentioned. At trial, Mr. Regard testified that Mr. Alexander had a drinking problem which caused him to be physically weak, and that he had hired helpers to do the heavy lifting for him for the last two years. The medical records indicate | inthat Mr. Alexander drank seven or eight beers daily and smoked one to two packs of cigarettes a day.

Long-time coworkers Mary Nell Decuir and Brenda Landry both testified by deposition that Mr. Alexander was a good worker who always did his job and got along well with everyone. However, neither of them knew that he had been hurt. Neither of them knew of him telling anyone at work that he had an accident or was experiencing pain, though it was a small place where they all helped each other. Ms. Decuir testified that she was working at the front counter and saw the men moving the carousel across the street. She saw it fall, and she saw them pick it up and keep going. She said that she did not see an accident; that Mr. Alexander never complained about pain; that he never slowed down; and that he just suddenly stopped coming to work. Ms. Landry never noticed him walking in an unusual manner. Ms. Decuir became aware at some point that he had a stiff leg, but she never really noticed “that’s how he walked.”

David Vasquez was a former employee who had worked with Mr. Alexander in the back of the laundry three days a week. He testified that he thought Mr. Alexander told him about the incident, and that he was hurt, the day after the incident occurred, or six months before Mr. Vasquez left that employment in August or September. This was also the time that he noticed Mr. Alexander walking differently and also the time that he, Mr. Vasquez, began doing all the heavy work. His testimony indicates that all of these events occurred simultaneously, immediately after the incident.

Mr. Alexander obtained approval of the trial court to be evaluated by orthopedist Dr. Kevin McCarthy on April 3, 2013. At that time he complained of lower back pain, burning in the right calf, stabbing and burning in the left leg and lufoot, and numbness in the hands. For the first time, he complained of having neck pain immediately after picking up on the carousel in February 2012. He also admitted that he had fallen twice in the last two months. Dr. McCarthy’s report indicated that he had not yet seen the incident report or the Huey P. Long records, but he related Mr. Alexander’s condition to the carousel incident based upon the history given him by Mr. Alexander. However, Dr. McCarthy’s concerns were the cervical and thoracic areas of Mr. Alexander’s spine, not his lower back. He diagnosed probable cervical stenosis and cervical myelopathy. Dr. McCarthy did not give deposition or trial testimony.

The Trial Court’s Conclusions

The trial court stated that the case was about credibility. The judge noticed at trial in June 2013 that Mr. Alexander did not have a limp, and he found that the medical records did not match the complaints. He found the testimony of family members inconsistent. He applied Bruno, 593 So.2d 357, and found that the medical evidence and post-accident circumstances did not support a compensable work-related injury. Because the court opined that Mr. Alexander’s problems were degenerative and mentioned his age and his use of alcohol and tobacco, Mr. Alexander asserts that the judge substituted his own opinion for that of Dr. McCarthy. We disagree.

It is the function of the workers’ compensation judge to assess the weight he gives to lay and medical testimony, and the court can accept or reject the opinion of a medical expert depending upon the court’s impression of the expert’s qualifications, credibility, and testimony. Cannon v. Hamilton Transp., 06-1302 (La.App. 3 Cir. 2/7/07), 948 So.2d 1250. Moreover, the Huey P. Long records much nearer to the time of the incident support arthritis and degenerative conditions. Even Dr. McCarthy saw degenerative disc disease at L4-5 and L5-S1 with disc space collapse, spondylosis, osteoporosis, and osteophyte formation.

Having reviewed the entire record, we find no manifest error on the part of the trial court. With regard to the appeal of Peerless Cleaners, wherein it seeks sanctions for Mr. Alexander’s allegedly frivolous appeal, we must decline. The appeal is not so devoid of merit that it justifies the label of frivolous. See Broussard v. Union Pac. Resources Co., 00-1079 (La. App. 3 Cir. 1/31/01), 778 So.2d 1199, writ denied, 01-589 (La.4/27/01), 791 So.2d 118.

V.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the Office of Workers’ Compensation. Costs of this appeal are assessed to the claimant, Mr. Cleo Alexander.

AFFIRMED.