author: HIGGINBOTHAM, J. McCLENDON, J.,

text:
    James WALKER and Raynette Walker v. Price LeBLANC, Shirley LeBlanc, and Farmers Insurance Exchange.
    No. 2012 CA 0764.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.
    Rehearing Denied Feb. 6, 2013.

      Gail N. McKay, Baton Rouge, LA, for Plaintiffs-Appellants James and Raynette Walker.
    Richard T. Reed, Baton Rouge, LA, for Defendants-Appellees Price and Shirley LeBlanc and Farmers Insurance Exchange.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

12Plaintiffs, James and Raynette Walker, sued for damages arising from Mr. Walker’s personal injuries that occurred when he fed some bulls owned by defendants, Price and Shirley LeBlanc. The LeBlanes and their homeowners’ insurer, Farmers Insurance Exchange (“Farmers”), filed a motion for summary judgment, maintaining that the Walkers could not meet their burden of proving that the LeBlanes knew or should have known that the bulls were dangerous or that Mr. Walker’s injuries could have been prevented with reasonable care. The district court granted summary judgment in favor of the LeBlanes and Farmers, dismissing the Walkers’ claims with prejudice. For the following reasons, we affirm.

FACTS

James Walker was employed as a personal caretaker and driver for Price Le-Blanc, an elderly man who was confined to a wheelchair. Mr. Walker worked as one of Mr. LeBlanc’s personal caretakers and driver. He was considered an “off the books” or “casual” employee, only working a few days per week, and earning $120 cash per day for approximately one year. Mr. Walker’s daily duties included assisting Mr. LeBlanc at his residence with dressing, grooming, and taking medicines. Mr. Walker also drove Mr. LeBlanc wherever he needed to go, including weekly trips to the LeBlanes’ personal pasture land where Mr. Walker would feed Mr. LeBlanc’s livestock while Mr. LeBlanc waited in the pickup truck.

On September 5, 2007, Mr. Walker was injured while he performed the chore of separating and feeding Mr. LeBlanc’s heifers and five bulls. One of the White-Faced Hereford bulls unexpectedly rammed Mr. Walker, picked him up, and pinned him against the truck as he turned his back to reach for more feed bags to pour into the bulls’ food trough. Mr. and Mrs. Walker filed suit against the IsLeBlancs and their homeowners’ insurer, Farmers, for damages stemming from Mr. Walker’s injuries.

The LeBlanes and Farmers filed a motion for summary judgment, arguing that the Walkers would be unable to meet their burden of proof under La. Civ.Code art. 2321, requiring that the LeBlanes knew or should have known that their bull could be dangerous, or that Mr. Walker’s injury could have been prevented with the exercise of reasonable care. In support of the motion, the LeBlanes and Farmers introduced affidavits of the LeBlancs and some of the LeBlancs’ experienced livestock handlers, who all testified that this particular breed of bull had a gentle disposition and that the LeBlancs’ bulls had never acted in a dangerous or aggressive manner. The LeBlancs also introduced excerpts from Mr. Walker’s deposition, where Mr. Walker acknowledged that he had never encountered any problems with the LeBlancs’ bulls being aggressive when he had fed them up to fifteen times before this incident.

In opposition to the motion, the Walkers introduced excerpts from the depositions of the LeBlancs’ experienced livestock handlers and an affidavit of a veterinarian/professor of farm-animal medicine, highlighting testimony that even gentle bulls can be unpredictable and cause serious injury, and suggesting that a self-feeding system is safer for feeding bulls than a trough-feeding system. The Walkers also introduced an affidavit of a friend of a former employee of Mr. LeBlanc, who had allegedly been attacked by a different bull owned by Mr. LeBlanc sometime pri- or to Mr. Walker’s incident. Additionally, the Walkers introduced excerpts from Mrs. LeBlanc’s deposition testimony, revealing that Mrs. LeBlanc vaguely remembered the other attack. The Walkers argued that the other attack put the Le-Blancs on notice of their bulls’ potential harm to people.

|/The LeBlancs and Farmers filed a rebuttal to the Walkers’ opposition, pointing out that the alleged previous attack involved a different breed — a Brahma bull— on a different LeBlanc property, and that the former employee did not turn in an incident report, thereby arguing that the LeBlancs had no knowledge that the particular bull involved in Mr. Walker’s incident was dangerous. Additionally, the Le-Blancs and Farmers attached even more deposition excerpts of the experienced bull handlers, stressing testimony that handlers should never turn their backs on bulls, that Brahma bulls are known for having bad attitudes, and that Mr. Le-Blanc’s bulls were not aggressive.

After considering all of the evidence, the district court granted summary judgment in favor of the LeBlancs and Farmers for the reasons stated in their memoranda in support of their motion and in their rebuttal to the Walkers’ opposition. The district court signed a judgment granting the motion and dismissing the Walkers’ case with prejudice on January 25, 2012. The Walkers appeal, assigning two errors: (1) The district court erred by failing to conduct a hearing on the motion for summary judgment; and (2) The district court erred in granting summary judgment when there was an obvious dispute of material fact regarding whether the LeBlancs knew or reasonably should have known that their bulls could be dangerous to Mr. Walker or that his injury could have been prevented with the exercise of reasonable care.

LAW AND ANALYSIS

Subject Matter Jurisdiction

As a threshold matter, we note that we have a duty to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. McGehee v. City/Parish of East Baton Rouge, 2000-1058 (La.App. 1st Cir.9/12/01), 809 So.2d 258, 260. We have considered whether Mr. Walker’s sole and exclusive remedy against the LeBlancs is limited to the Workers’ Compensation |sAct since it is undisputed that there was an employer-employee relationship between Mr. Walker and Mr. LeBlanc, and Mr. Walker was injured during the course and scope of his employment with Mr. LeBlanc. However, the courts of this state have held that caretakers or sitters/attendants are domestic servants and are, therefore, not covered by workers’ compensation laws. See Guidry v. Orgeron, 525 So.2d 677, 679 (La.App. 1st Cir. 1988); Gunter v. Woodson, 99-1794 (La.App. 3d Cir.4/5/00), 759 So.2d 223, 224; and Blache v. Maryland Casualty Co., 283 So.2d 319, 320 (La.App. 4th Cir.1973). See also La. R.S. 23:1035(B) and H. Alston Johnson, III, Workers’ Compensation Law and Practice § 94 at 4, in 13 Louisiana Civil Law Treatise (5th ed.2011). Likewise, La. R.S. 23:13, which mandates that an employer provide reasonably safe employment for his employees, is specifically inapplicable to “employment in private domestic service or to agricultural field occupations.” See Gunter, 759 So.2d at 224.

This court has held that in order for an employee to be eligible for workers’ compensation benefits, the services performed must be incident to or in the course of the employer’s customary or regular trade, business, or occupation. Connor v. Frees Const. Co., Inc., 525 So.2d 241, 243 (La.App. 1st Cir.), writ not considered, 532 So.2d 111 (La.1988). The prevailing test is whether the services performed constitute a vital portion of the employer’s regular business, in that such | fiservices are substantial, essential, and recurring. Id. The record is devoid of evidence that Mr. LeBlanc’s regular business, if any, was either raising and/or tending to livestock animals or the home-healthcare trade. The evidence reveals that Mr. Walker was performing a purely domestic chore — feeding livestock animals on his employer’s personal property, which was incidental to his main job of personally caring for and helping his employer at the employer’s residence. Since there is no evidence that Mr. Walker was engaged in any business of his employer at the time of his injury, we find that he does not fall into any category of employee that is entitled to workers’ compensation benefits. Therefore, we conclude that the district court had subject matter jurisdiction in this matter, and this court consequently has appellate jurisdiction. We will consider the merits of the appeal.

Requirement of Hearing for Summary Judgment

In their first assignment of error, the Walkers assert that the district court erred by allowing the summary judgment matter to be submitted on the memoranda of the parties without allowing oral argument or conducting a hearing. The Walkers rely on the specific language of La. Code Civ. P. art. 966(D) requiring that the district “court shall hear and render judgment on the motion for summary judgment within a reasonable time.” (Emphasis added.) We disagree with the Walkers’ argument. The record reflects that all parties submitted multiple memoranda with exhibits for the district court’s consideration in support of and in opposition to the motion for summary judgment. In particular, the Walkers filed a memorandum in opposition, a supplemental memorandum in opposition, and finally, a reply memorandum in response to the rebuttal memorandum filed by the LeBlancs and Farmers. There is absolutely no indication that the district court failed to consider or “hear” the positions and/or the evidence in support of the | .¡.positions that were submitted by all parties before making the decision to grant the summary judgment.

Furthermore, Rule 9.18 of the Louisiana Rules for District Courts provides that “[ojral argument is a privilege, not a right, and is within the court’s discretion.” Additionally, Rule 9.8(a) states that all motions must be accompanied by a proposed order requesting that the motion be set for hearing, and Rule 9.9(d) warns that parties who fail to comply with the requirements “may forfeit the privilege of oral argument.” (Emphasis added.) The district court has great discretion in the construction, interpretation, application, and enforcement of its own rules. Vincent v. Vincent, 2011-1822 (La.App. 4th Cir.5/30/12), 95 So.3d 1152, 1161. The record reflects that at no time did any party file an order requesting that the motion be set for hearing in this case. Considering this fact, we find no abuse of discretion in the trial court’s rendering of summary judgment without hearing oral argument. We find this assignment of error to be without merit.

Summary Judgment and Liability for Injury Caused by an Animal

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Lewis v. Four Corners Volunteer Fire Dept., 2008-0354 (La.App. 1st Cir.9/26/08), 994 So.2d 696, 699. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, 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). The initial burden of proof remains with the mover and is not shifted to the nom¡moving8 party until the mover has properly supported the motion and carried the initial burden of proof. Only then and only if the issue is one on which the non-moving party would have the burden of proof at trial, must the non-moving party “submit evidence showing the existence of specific facts establishing a genuine issue of material fact.” Schindler v. Biggs, 2006-0649 (La.App. 1st Cir.6/8/07), 964 So.2d 1049, 1053 (quoting Scott v. McDaniel, 96-1509 (La.App. 1st Cir.5/9/97), 694 So.2d 1189, 1191-92, writ denied, 97-1551 (La.9/26/97), 701 So.2d 991).

When the court is presented with a choice of reasonable inferences to be drawn from subsidiary facts contained in affidavits and attached exhibits, these reasonable inferences must be viewed in the light most favorable to the party opposed to the motion. Schindler, 964 So.2d at 1058. The credibility of a witness or doubt as to whether a party alleging a fact will be able to sustain his burden of proof on the merits are improper considerations in determining the existence of material fact. Id.

To find an owner liable for injury caused by his animal, it must be shown that the animal’s owner knew or should have reasonably known of the danger posed by the animal, and that the owner could have taken reasonable measures to prevent injury, but failed to do so. See La. Civ.Code art. 2321. Negligence is usually established in such cases by showing that the owner knew or had reason to know that their animal had a dangerous propensity which caused the injury. The LeBlancs and Farmers filed a motion for summary judgment on the basis that the Walkers could not prove that the LeBlancs had prior knowledge of any dangerous 1 apropensities of their White-Faced Hereford bulls, the gentlest of all bulls, or that the LeBlancs failed to take reasonable precautions to prevent Mr. Walker’s injuries.

Although negligence is normally based on the owner’s knowledge of the peculiarities of a specific domestic animal, the owner also is bound to take notice of the general propensities of the class of animal to which it belongs, as well as of the propensities of that particular animal, and of the generally known or likely behavior of animals of that class which might cause injury. Owners must take reasonable care to prevent injuries which are reasonably to be anticipated from such an animal. Granger v. U.S. Fidelity & Guaranty Co., 266 So.2d 526, 530 (La.App. 3d Cir.1972).

In this case, extensive evidence was introduced to show that none of the Le-Blancs’ White-Faced Hereford bulls had ever exhibited any dangerous propensities or ever behaved in a manner different from any other bull in what is considered a gentle breed. The Walkers’ evidence attempting to compare the alleged dangerous propensities of a different type of bull — a Brahma bull — owned by the Le-Blancs at a different time and place, did not show that the LeBlancs knew or should have known that the particular bull involved in Mr. Walker’s incident was dangerous. Additionally, there was no evidence that the act .of separating and feeding the LeBlancs’ bulls had ever caused any of the bulls to act in the unexpectedly aggressive and/or dangerous manner that was exhibited by the one bull , that injured Mr. Walker. Even Mr. Walker testified that the bull’s behavior was totally unexpected.

Under these undisputed material facts, we find that the Walkers failed to produce evidence that the LeBlancs’ bull that rammed into Mr. Walker when he turned his back to the bulls during feeding time, had a vicious or dangerous propensity which was concealed from him, or that the LeBlancs were even aware 1 inof such propensity. Because the record is devoid of sufficient evidence to establish this necessary element of the Walkers’ negligence action, we find that the district court appropriately granted summary judgment in favor of the LeBlancs and Farmers.

CONCLUSION

For the stated reasons, the judgment rendered by the district court dismissing James and Raynette Walkers’ lawsuit is affirmed. Costs of this appeal are assessed against James and Raynette Walker.

AFFIRMED.

McCLENDON, J., dissents and assigns reasons.

McCLENDON, J.,

dissents and assigns reasons.

[, Louisiana Code of Civil Procedure article 966 D provides that “[t]he court shall hear and render judgment on the motion for summary judgment.” (Emphasis added.) The trial court, rather than setting the matter for hearing, entered its own order that provided, after certain briefing delays: “[T]his matter shall be under advisement. There shall be NO oral argument EXCEPT upon an Order of this Court or upon request by motion of any party(s). Reason(s) for requesting Oral argument shall be specifically set forth in said Motion.” I find that Louisiana Code of Civil Procedure article 966 D requires that the trial court, at a minimum, docket the matter for hearing. Because the mandatory procedure set forth in LSA-C.C.P. art. 966 D was not followed and the matter was never docketed, I would vacate the trial court’s judgment granting the defendants’ motion for summary judgment.

      . According to the Walkers’ brief, Mr. Le-Blanc died during the course of these proceedings. Howevér, the record does not reflect this fact or any motion to substitute parties to make the Succession of Mr. Le-Blanc a party to the proceeding. For ease of reference, we will continue to refer to Mr. LeBlanc.

      . District courts do not have subject matter jurisdiction over workers' compensation matters. Brewton v. Underwriters Ins. Co., 2002-2852 (La.6/27/03), 848 So.2d 586, 590. The exclusive jurisdiction of workers' compensation proceedings is granted to the Office of Workers’ Compensation. La. R.S. 23:1310.3(F); La. Const. Art. V, Section 16 (excepting workers’ compensation matters from the original jurisdiction of district courts).

      . Black's Law Dictionary 435 (5th ed.1979) defines a "domestic servant” as "[a] person hired or employed primarily for the performance of household duties and chores, the maintenance of the home, and the care, comfort, and convenience of members of the household." (Emphasis added.)

      .Under La. R.S. 23:1035(B), when a private residential homeowner hires someone to do work in connection with his private residence, and the employee earns $1,000 per year or less in providing those services, the homeowner is exempt from the provisions of Louisiana’s workers’ compensation laws. The only exceptions are when the work is incidental to and/or arises out of any trade, business, or occupation of the homeowner or when the homeowner is engaged in the business of furnishing such labor, in which instances the provisions of Louisiana's workers’ compensation laws are applicable. Kennedy v. Christwood Estates, 2002-2602 (La.App. 1st Cir.9/26/03), 857 So.2d 633, 636.

      . This is a distinction from Rider v. Ambeau, 2011-0532 (La.App. 1st Cir.2/1/12), 100 So.3d 849, n. 3, the case relied upon by the Walkers, wherein the district court specifically refused to hold a hearing on a motion for summary judgment despite the movant's written request for a hearing and the opportunity to submit supporting proof.

      . Louisiana Civil Code article 2321 provides, in pertinent part:
      The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal's behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

      . Initially, the movers attached the following Order to their motion for summary judgment:
      IT IS HEREBY ORDERED that James Walker and Raynette Walker, show cause on the_ day of__ 200_, at_ o’clock_m. why the Motion For Summary Judgment on behalf of Price LeBlanc, Shirley LeBlanc and Farmers Insurance Exchange should not be granted as prayed for.
      The court struck the movers’ order with a notation to "SEE ATTACHED ORDER.”


source: Caselaw Access Project

author: WHIPPLE, J. McCLENDON, J.,

license: Public Domain

text:
    LOUISIANA SAFETY ASSOCIATION OF TIMBERMEN v. Ernest CARLTON, Jr.
    No. 2012 CA 0775.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.

      John A. Keller, Madisonville, LA, for PlaintiffAppellant, Louisiana Safety Association of Timbermen.
    Gregory Reardon, Mandeville, LA, for Defendant/Appellee, Ernest Carlton, Jr.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   WHIPPLE, J.

|2In this workers’ compensation matter, the Louisiana Safety Association of Tim-bermen (“LSAT”) and Bell Carpentry Works appeal from a judgment of the Office of Workers’ Compensation (“OWC”) finding that defendant, Ernest Carlton, Jr. (“Carlton”), sustained a compensable injury to his back on December 8, 2008, while employed at Bell Carpentry Works and awarding benefits accordingly. Carlton filed an answer to the appeal.

For the following reasons, we affirm the judgment of the OWC. The relief sought in the answer to appeal is denied.

FACTS AND PROCEDURAL HISTORY

Ernest Carlton was employed as a carpenter by Bell Carpentry Works performing home construction work. His duties included cutting plywood with a skill saw, nailing boards, “toting” boards, and pulling tape measures. On December 8, 2008, Carlton and two other workers lifted a twenty-foot-long beam that was being used to hold up rafters and joists on the front porch of a home. After Carlton assisted in picking the beam up from the saw horses, his two co-workers proceeded to take the beam up a ladder. When they arrived at the top of the ladder, the beam slipped and fell down, striking Carlton in the back. Carlton subsequently sought treatment for his lower back injuries and surgery was ultimately recommended.

Because Carlton had sustained a prior back injury for which surgery was also recommended, LSAT submitted a claim for recovery against the Second Injury Fund. After LSAT approved and paid for the surgery, Carlton underwent an L4-5 laminectomy with decompression of the L3 and L4 nerve roots, on |sDeeember 14, 2009. Carlton also received indemnity benefits from December 2008 to March 2011, as well as medical benefits, for this accident.

Despite its prior approval, on April 11, 2011, LSAT filed a disputed claim for compensation (Form 1008) contending that it had paid indemnity and medical benefits to Carlton arising from the December 8, 2008 work-related accident that were not due. As such, LSAT sought reimbursement from Carlton for all benefits paid for the December 8, 2008 accident and injury.

Carlton filed an answer and reeonven-tional demand contending that LSAT arbitrarily and capriciously terminated medical and indemnity benefits without properly investigating Carlton’s claim. Carlton further alleged that LSAT failed to provide proper and meaningful vocational rehabilitation and that its refusal was arbitrary and capricious.

The matter was tried heard before the OWC on December 1, 2011, after which the OWC judge signed a judgment on December 7, 2011, finding that:

(1)Carlton sustained a compensable injury to his back on December 8, 2008, while employed at Bell Carpentry Works;
(2) LSAT is not entitled to reimbursement of indemnity and medical benefits previously paid;
(3) Carlton’s average weekly wage is $517.50, with a corresponding compensation rate of $345.17;
(4) LSAT was obligated to pay Carlton temporary total disability benefits from March 25, 2011 through May 6, 2011 at the rate of $345.17 per week;
(5) LSAT was obligated to pay Carlton supplemental earnings benefits in the following amounts:
May 2011: $615.31
August 2011: $228.45
| .(September 2011: $461.90
October 2011: $395.20
November 2011: to be paid after submission of Form 1020
(6) LSAT was obligated to pay Carlton continuing monthly supplemental earnings benefits upon receipt of Form 1020;
(7) all indemnity awards listed above, including future supplemental earning benefits, were subject to a credit in favor of LSAT in the amount of $23,010.99, representing overpayments of temporary total disability benefits from December 9, 2008 through March 24, 2011;
(8) LSAT was obligated to pay Carlton $8,000.00 in penalties and $10,000.00 in attorney fees pursuant to LSA-R.S. 23:1201(1).

Carlton filed a motion for new trial, contending that evidence proffered by LSAT established different wage information that the OWC should have used to properly calculate Carlton’s average weekly wage. After a hearing, the OWC signed a judgment on January 25, 2012, denying the motion for new trial.

LSAT then filed the instant suspensive appeal from the OWC’s December 7, 2011 judgment on the merits. On appeal, LSAT sets forth the following assignments of error:

(1) The Workers’ Compensation Judge abused her discretion and committed error in striking appellants’ Pre-Trial Statement and precluding the employer from testifying.
(2) The Workers’ Compensation Judge committed error in finding that claimant sustained his burden of proving that his back injury, continuing back complaints and subsequent surgery were causally related to the December 8, 2008 accident.
(3) The Workers’ Compensation Judge committed error in concluding that the employee’s claim was compensa-ble despite the fact that the employee returned to work following a prior work related accident before MMI and before having been released by his treating physician and after settling his prior claim for a substantial sum.
| ⅞(4) The Workers’ Compensation Judge committed error in denying appellants’ claim for full reimbursement of all benefits paid.
(5) The Workers!’] Compensation Judge abused her discretion in not strictly construing the penalty provisions of the Louisiana Workers’ Compensation Act and imposing penalties and attorney fees.

DISCUSSION

Assignment of Error Number One

LSAT first contends that the OWC abused its discretion and committed error in striking LSAT’s pre-trial statement and precluding Carlton’s former employer, Jimmy Bell, from testifying.

A trial judge has great discretion in conducting a trial. The judge is required to do so in an orderly, expeditious manner and to control the proceedings so that justice is done. LSA-C.C.P. art. 1631; Palace Properties, L.L.C. v. Sizeler Hammond, Square Limited Partnership, 2001-2812 (La.App. 1st Cir.12/30/02), 839 So.2d 82, 91, writ denied, 2003-0306 (La.4/4/03), 840 So.2d 1219. This discretion includes the admissibility of a witness’s testimony. Combs v. Hartford Insurance Company, 544 So.2d 583, 586 (La. App. 1st Cir.), writ denied, 550 So.2d 630 (La.1989). It is only upon a showing of a gross abuse of discretion that appellate courts have intervened. Pino v. Gauthier, 633 So.2d 638, 648 (La.App. 1st Cir.1993), write denied, 94-0243 and 94-0260 (La.3/18/94), 634 So.2d 858 and 859. The theory inherent in pretrial procedure is to avoid surprise and to allow orderly disposition of cases. Theriot v. State, Department of Wildlife and | ⅛Fisheries, 94-1536 (La.App. 1st Cir.4/7/95), 661 So.2d 986, 989, writ denied, 95-1617 (La.10/6/95), 662 So.2d 1041.

If a party objects to the offered testimony of a witness not listed on the pre-trial order, a trial judge has great discretion in deciding whether to receive or refuse the testimony objected to on the grounds of failure to abide by the rules, but any doubt must be resolved in favor of receiving the testimony. See Abdon Callais Boat Rentals, Inc. v. Louisiana Power and Light Company, 555 So.2d 568, 576 (La.App. 1st Cir.1989), writ denied, 558 So.2d 583 (La.1990). When a party has not satisfied the technicality of supplementing responses to interrogatories, the reviewing court can look to the record for a willful or negligent failure to disclose names of witnesses in determining whether the trial judge abused his discretion. Abdon Callais Boat Rentals, Inc. v. Louisiana Power and Light Company, 555 So.2d at 576. A party’s failure to cooperate after the discovery is made can color the final decision on admissibility. Abdon Callais Boat Rentals, Inc. v. Louisiana Power and Light Company, 555 So.2d at 576. On the other hand, an opponent with actual notice of the witness’s identity cannot wait to object to the testimony at trial merely for strategic purposes. If actual notice is acquired within a reasonable time, a party must seek some corrective action or the party will be deemed to have waived the right to object at trial. Abdon Callais Boat Rentals, Inc. v. Louisiana Power and Light Company, 555 So.2d at 576.

After two continuances, trial of the underlying matter was scheduled for December 1, 2011 and LSAT served its pretrial statement on Carlton by mail on November 11, 2011. On November 28, 2011, Carlton filed a motion to strike LSAT’s untimely pretrial statement. Therein, Carlton contended that pursuant to the OWC’s Scheduling Conference Order, the parties’ pretrial statements were due thirty days prior to the trial date. Carlton further contended that not only was 17LSAT’s pretrial statement tardy, but that LSAT’s pretrial statement, once received, failed to provide the specific name of any witness that it planned to call at trial other than Carlton.

LSAT excused its failure to identify the witnesses it intended to call to testify before trial by arguing that it listed “[a]ny and all other employees and representatives of BELL” and “[a]ny and all past or current employees of BELL, who have witnessed ERNEST CARLTON, JR. alleged work accident [sic] or who possess any information pertinent to this claim” in its tardy pretrial statement as potential witnesses. LSAT contends that Carlton did not “press” LSAT “for specific names of the employees or representatives who would be called to testify at trial.”

The OWC heard argument on the motion prior to trial and, in ruling on the motion to strike, noted:

Similarly, the witnesses. The only — I mean, I don’t have names of anybody, and I think that is very prejudicial to Mr. Reardon’s client because the only person listed by name is Ernest Carlton.
In other words, it’s a boilerplate witness list. And apparently from what you’re saying is there are witnesses out there that Mr. Reardon, you know, I guess I wasn’t aware of until this morning. So for those reasons, I will grant the Motion to Strike.

In the instant case, it is undisputed that LSAT’s pre-trial statement was untimely filed. Moreover, LSAT never provided Carlton with the identity of any witnesses; nor does the record demonstrate that Carlton had “actual knowledge,” via LSAT’s pre-trial statement or otherwise, that Jimmy Bell would be called to testify. Accordingly, considering the record and circumstances herein, we find the OWC acted within the vast discretion afforded to it in precluding Bell’s testimony. Cf Abdon Callais Boat Rentals, Inc. v. Louisiana Power and Light Company, 555 So.2d at 576-577; Palace Properties, L.L.C. v. Sizeler Hammond Square Limited Partnership, 839 So.2d at 90-92; Kinney v. Bourgeois, 2006-2384, 2006-2385, pp. 4-5 (La.App. 1st Cir.9/14/07), 2007 WL 2686113(unreported opinion), writ denied, 2007-2026 (La.1/7/08), 973 So.2d 730.

Thus, on review, we find no error or abuse of the OWC’s discretion in granting Carlton’s motion to strike. This assignment lacks merit.

Standard of Review

In a workers’ compensation ease, whether a claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the OWC. Authement v. Wal-Mart, 2002-2434 (La.App. 1st Cir.9/26/03), 857 So.2d 564, 570. Additionally, whether the refusal to pay benefits warrants the imposition of penalties and attorney fees is likewise a factual question. Crochet v. Barbera Chevy-Chrysler Company, Inc., 2004-1390 (La.App. 1st Cir.6/29/05), 917 So.2d 49, 53. Appellate review of the factual findings in workers’ compensation cases is governed by the manifest error or clearly wrong standard. Roberts v. Thibodaux Healthcare Center, 2005-0774 (La. App. 1st Cir.3/24/06), 934 So.2d 84, 91.

The two-part test for appellate review of facts is: (1) whether there is a reasonable factual basis in the record for the finding of the trial court, and (2) whether the record establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, an appellate court may not set aside a trial court’s factual findings unless, reviewing the record in its entirety, it determines the trial court’s factual finding was clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993).

Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. Lizana v. Gulf Coast Pain Institute, 2003-1672 (La.App. 1st Cir.5/14/04), 879 So.2d 763, 765. If the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, Reven though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106, 1112 (La.1990). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.

Furthermore, when factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings; for only the fact finder can be aware of the variations in the demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

Assignments of Error Numbers Two and Three

In these assignments, LSAT contends that the OWC committed error in finding that claimant sustained his burden of proving that his back injury, continuing back complaints, and subsequent surgery were causally related to the December 8, 2008 accident and in concluding that the employee’s claim was compensable despite the fact that the employee returned to work following a prior work-related accident before having reached MMI and having been released by his treating physician and after settling his prior claim.

An otherwise healthy employee with a preexisting condition is entitled to benefits if he can prove that his work contributed to, aggravated, or accelerated his injury. Hayes v. Louisiana State Penitentiary, 2006-0553 (La.App. 1st Cir.8/15/07), 970 So.2d 547, 556, writ denied, 2007-2258 (La.1/25/08), 973 So.2d 758. An employee’s work-related accident is presumed to have caused his disability when he proves that before the accident, he had not manifested his disabling symptoms; that commencing with the accident, disabling symptoms appeared; and that there is either medical or circumstantial evidence indicating 110a reasonable possibility of a causal connection between the accident and the disabling condition. Walker v. Halliburton Services, Inc., 93-722 (La.App. 3rd Cir.3/1/95), 654 So.2d 365, 369, unit denied, 95-1507 (La.9/22/95), 660 So.2d 481.

The parties do not dispute that Carlton had a previous low-back injury for which he treated with Dr. Henry L. Eiser-loh, an orthopedic surgeon. After conservative treatment, Dr. Eiserloh recommended surgery at the L4-5 levels for that injury. Nonetheless, as noted by Dr. Eis-erloh, Carlton declined the surgery and returned to work. Notably, Carlton remained asymptomatic until the December 8, 2008 accident herein.

After the December 8, 2008 accident, Dr. Eiserloh examined Carlton. Dr. Eis-erloh found that Carlton’s pain had worsened, that he had spasm with acute injury, that Carlton had some subtlety of extension of disc herniation, and that he had a definite worsening of his physical condition, which were shown by objective physical findings. Dr. Eiserloh found that the injuries sustained after the December 8, 2008 accident were an aggravation of Carlton’s pre-existing lumbar herniation with some extension of disc herniation. Accordingly, Dr. Eiserloh again recommended surgery at L4-5.

LSAT requested a second medical opinion in this case, which was provided by Dr. Scott G. Petrie, an orthopedic surgeon. Dr. Petrie examined Carlton on March 30, 2009, and likewise noted Carlton’s objective physical findings. After examining Carlton and reviewing his medical records, including x-rays and an MRI of the lumbar spine, Dr. Petrie agreed with Dr. Eiser-loh’s findings, noting: “We feel that in light of his symptoms, which started after this most recent accident at work and he had a period of over two years where he had no symptoms from his previous back treatment^] that this accident aggravated or worsened his condition.” (Emphasis added.)

Moreover, LSAT conducted a rehab conference with Dr. Eiserloh on August 13, 2010, in order to secure Second Injury Fund approval. At that time, Dr. Eiserloh opined that Carlton’s December 8, 2008 injury merged functionally with his preexisting lumbar herniated disc to create a greater disability “resulting in [the] need for L4/5 surgery.”

After a thorough review of the voluminous testimony and evidence of record herein, including the medical and expert testimony, given our standard of review, we find the OWC’s decision that claimant sustained his burden of proving that his back injury, continuing back complaints, and subsequent surgery were casually related to the December 8, 2008 accident to be reasonable and amply supported by the record. Thus, we find no error in the OWC’s findings and decline to upset the OWC’s findings regarding causation. Moreover, we further find the OWC correctly determined that Carlton proved that his December 8, 2008 accident contributed to, aggravated, or accelerated his preexisting injury, thus entitling him to benefits. See Hayes, 970 So.2d at 556.

These assignments lack merit.

Assignments of Error Numbers Four and Five

To the extent that LSAT contends that the OWC committed error in denying its claim for full reimbursement of all benefits paid, considering our finding that the OWC correctly determined that Carlton’s accident and injuries were casually related to the December 8, 2008 accident and that Carlton’s claim was compensable, we likewise find no merit to this assignment of error.

Moreover, we find no merit to LSAT’s final assignment of error (ie., that the OWC abused her discretion by failing to strictly construe the penalty provisions of the Louisiana Workers’ Compensation Act and imposing penalties and attorney fees). The medical evidence available to LSAT, including its own expert’s second-opinion evaluation, provided ample notice to LSAT that it was | ^obligated for such payments and treatment as causally related to the second accident and that its obligation was continuing. Moreover, given LSAT’s own actions vis-a-vis the Second Injury Fund, we find no error in the OWC’s rejection of LSAT’s claim that it acted reasonably in terminating benefits and refusing to pay or continue benefits and treatment lawfully owed and due.

These assignments also lack merit.

ANSWER TO APPEAL

Carlton filed an answer to this appeal, contending that the OWC erred in: (1) finding that his average weekly wage was $517.50 with a corresponding compensation rate of $345.17; (2) awarding supplemental earnings benefits for May 2011 in the amount of $615.31, August 2011 in the amount of $228.45, September 2011 in the amount of $461.90, and October 2011 in the amount of $395.20; and (3) finding that LSAT is entitled to a credit in the amount of $23,010.99. Further, Carlton sought additional attorney fees and interest necessitated by filing an answer in defense of this appeal.

Carlton began working for Bell Carpentry Works in November of 2008, making $20.00 per hour. Carlton testified that he was never guaranteed a 40-hour work week by his employer. Bell Carpentry Works’ payee report introduced by LSAT at trial show Carlton’s wages from the time of hire until the date of the accident herein, as follows:

11/13/08 $640.00 [32 hours]
11/20/08 $600.00 [30 hours]
11/28/08 $400.00 [20 hours]
12/5/08 $430.00 [21½ hours]
12/8/08 $300.00

Carlton explained that the check in the amount of $300.00 that he received on the date of the accident was given to him by his employer “to help pay for his medication.” Based on the prior four weeks of wages, the OWC calculated Carlton’s average weekly wage as $517.50, with a corresponding compensation |israte of $345.17. Because Carlton had been receiving a higher compensation rate of $546.36 a week, the OWC found that LSAT was entitled to a credit of $23,010.99.

Carlton contends in his answer to appeal that he was a full-time employee of Bell Carpentry Works and, as such, that his average weekly compensation should have been calculated with the presumption that he worked a forty-hour work week pursuant to LSA-R.S. 23:1021(12)(a)(i), and not that he worked regularly and at his own discretion less than forty hours per week pursuant to LSA-R.S. 23:1021(12)(a)(ii).

The calculation of an employee’s average weekly wage is a factual finding subject to the manifest error-clearly wrong standard of review. Nitcher v. Northshore Regional Medical Center, 2011-1761 (La.App. 1st Cir.5/2/12), 92 So.3d 1001, 1013, writ denied, 2012-1230 (La.9/21/12), 98 So.3d 342. On review of the testimony and record in its entirety, we reject Carlton’s argument in the answer to appeal regarding his work with Bell Carpentry Works. Carlton presented no evidence whatsoever to rebut the evidence that the hours he worked 114were as recorded by his employer in its payee report introduced herein. As such, we find no error in the OWC’s computation of Carlton’s average weekly wage.

Moreover, considering our finding that the OWC did not err in its determination that Carlton was not a full-time employee, we find no error in the OWC’s awards of supplemental earnings benefits or its finding that LSAT is entitled to a credit in the amount of $23,010.99. Because we find no merit to the arguments set forth by Carlton in his answer to appeal, we decline to award Carlton additional attorney’s fees and interest.

Thus, the relief sought in the answer to appeal is denied.

CONCLUSION

For the above and foregoing reasons, the December 7, 2011 judgment of the OWC is hereby affirmed. The relief sought in the answer to appeal is denied. Costs of this appeal are to be assessed equally to Ernest Carlton, Jr. and the Louisiana Safety Association of Timber-men.

JUDGMENT AFFIRMED; RELIEF SOUGHT IN ANSWER TO APPEAL DENIED.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurs and assigns reasons.

| because there is a reasonable factual basis in the record to support the OWC’s findings, I concur with result reached by the majority.

      . Bell Carpentry Works was a member of the Louisiana Safety Association of Timbermen, Self-Insurers’ Fund.

      . In this assignment, plaintiff contends that the OWC made an erroneous evidentiary ruling. If a trial court commits evidentiary error that interdicts its fact-finding process, this court must conduct a de novo review. Thus, any alleged evidentiary errors must be addressed first on appeal, inasmuch as a finding of error may affect the applicable standard of review. Penton v. City of Hammond Police Department 2007-2352 (La.App. 1st Cir.5/2/08), 991 So.2d 91, 95.

      . The trial court's ruling on a motion to strike is interlocutory in nature and, generally, is not appealable. However, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment appealed from. Landry v. Leonard J. Chabert Medical Center, 2002-1559 (La.App. 1st Cir.5/14/03), 858 So.2d 454, 461, n. 4, writs denied, 2003-1748, 2003-1752 (La. 10/17/03), 855 So.2d 761.

      . Louisiana Revised Statute 23:1021 provides, in part, as follows:
      (12) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
      (a) Hourly wages.
      (i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
      (ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident[.]


author: PETTIGREW, J.

text:
    Edward DYSON v. EXPRESS PERSONNEL SERVICES.
    No. 2012 CA 0800.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.

      Edward Dyson, Baton Rouge, LA, Plaintiff-Appellant (pro se).
    Keith E. Pittman, Metairie, LA, for Defendant-Appellee, Express Personnel Services.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

|2In this workers’ compensation dispute, the claimant, Edward Dyson, appeals a judgment of the Office of Workers’ Compensation (“OWC”) dismissing his disputed claim for compensation with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 18, 2003, Mr. Dyson was injured in the course and scope of his employment with Express Personnel Services, Inc. (“Express Personnel”) while unloading his work truck at a dock location at a Target Department Store. According to the record, Mr. Dyson began receiving workers’ compensation benefits following the accident. Mr. Dyson ultimately settled his workers’ compensation claim with Express Personnel for the full sum of $15,606.81 by Order of Approval dated May 31, 2006. Mr. Dyson acknowledged receipt of the settlement funds and executed a Release of All Claims against Express Personnel on May 18, 2006. At the time of the workers’ compensation settlement, Mr. Dyson also had a pending third-party claim against Target Corporation of Amer-ica for damages sustained in the accident. Mr. Dyson was represented by counsel, Mr. Emmett Boudreaux, at all pertinent times hereto.

Thereafter, on May 3, 2007, Mr. Dyson filed a disputed claim for compensation against Express Personnel and Mr. Bou-dreaux, alleging that he did not agree with the prior settlement agreement. In response, Express Personnel filed an answer and an exception raising the objection of res judicata, arguing that the claim should be dismissed as Mr. Dyson had already received judgment in his favor as a result of the prior settlement and that the judgment arises out of the same transaction or occurrence that is the subject matter of the disputed claim for compensation. See La. R.S. 13:4281. Mr. Boudreaux also answered Mr. Dyson’s claim and further asserted an exception raising the objection of no cause of action, based on the fact that there was no employer-employee relationship between them.

The matter proceeded to hearing on December 14, 2007, at which time the OWC hearing officer sustained both exceptions and dismissed Mr. Dyson’s disputed claim for compensation, with prejudice, as to both Express Personnel and Mr. Bou-dreaux. A [¡^judgment in accordance with these findings was signed by the hearing officer on January 8, 2008. This appeal by Mr. Dyson followed.

DISCUSSION

On appeal, Mr, Dyson assigns three specifications of error for our review. In his first assignment of error, Mr. Dyson addresses Mr. Boudreaux’s representation of him during the settlement negotiations. These claims involve what amounts to alleged legal malpractice, claims that were not before the OWC hearing officer. La. Const, art. V, § 16(A). Thus, we preter-mit consideration of same.

In his second assignment of error, Mr. Dyson argues the OWC hearing officer erred in failing to act on his request for preliminary default. See La. R.S. 28:1316. According to the record herein, Mr. Dyson filed his request on August 31, 2007, one day after Express Personnel filed its answer on August 30, 2007. Thus, the OWC correctly denied the request for preliminary default, noting on the form that an answer had been filed.

In Mr. Dyson’s final assignment of error, he asserts the OWC hearing officer erred by not calling him to court to “seek his understanding” regarding his medical condition as it related to his need for medical benefits. Mr. Dyson was represented by counsel at all times pertinent hereto and verified under oath that he fully understood the terms of the compromise settlement and release of all claims for indemnity and medical benefits associated with his work-related accident. We find no merit to Mr. Dyson’s argument concerning this issue on appeal.

CONCLUSION

For the above and foregoing reasons, we affirm the January 8, 2008 judgment of the OWC hearing officer and assess all costs associated with this appeal against claimant, Edward Dyson.

AFFIRMED.

      . We note that the judgment indicates that the matter came for hearing on Boudreaux’s "Exception of No Cause of Action/No Right of Action” and orders that “the Exception of No Right of Action/No Cause of Action is granted.” As Mr. Boudreaux asserted only a no cause of action exception below, we believe this to be a typographical error on the part of the OWC hearing officer.


author: McCLENDON, J.

text:
    ARABIE BROTHERS TRUCKING CO. & American Interstate Insurance Co. v. Mary GAUTREAUX (Substituted Party) o/b/o Patrick Gautreaux (Deceased) & Graham Neill, Individually & as Owner of A & G Tree & Stump Removal and A & G Tree & Stump Removal.
    No. 2012 CA 0849.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.
    Rehearing Denied Feb. 6, 2013.

      Michael L. Hebert, Baton Rouge, LA, for Defendant/Appellant Mary Gautreaux.
    Lawrence B. Frieman, Metairie, LA, for Plaintiffs/Appellees Arabie Brothers Trucking Co. and American Interstate Ins. Co.
    Graham Neill, Montegut, LA, for Appel-lee In Proper Person A & G Tree & Stump Removal.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   McCLENDON, J.

[PIn this workers’ compensation case, the deceased claimant’s legal successor appeals a judgment awarding medical and indemnity benefits, but denying penalties and attorney fees. For the reasons that follow, we amend in part, and, as amended, affirm.

FACTUAL AND PROCEDURAL HISTORY

On January 27, 2000, Patrick Gautreaux was seriously injured when a large tree, which he was cutting, fell, crushing him to the ground. Mr. Gautreaux remained in a coma until his death on October 11, 2007.

At the time of the accident, Arabie Brothers Trucking Company (Arabie) was clearing a commercial site for the construction of a video store in Houma, Louisiana. Arabie sub-contracted with A & G Tree and Stump Removal (A <& G) to grind and remove two stumps at the site. Mr. Gautreaux, an employee of A & G, was sent to the construction site to grind the two stumps. Mr. Gautreaux ground one of the stumps, but the second tree had not been cut, and as Mr. Gautreaux began to cut the tree, it fell on him. Following the accident, Arabie, through its workers’ compensation insurer, American Interstate Insurance Company (American), began paying workers’ compensation benefits to and medical expenses on behalf of Mr. Gau-treaux.

On October 5, 2000, Arabie and American filed a disputed claim for compensation and petition for declaratory judgment with the Office of Workers’ Compensation (OWC) against Mr. Gautreaux, Graham Neill, individually and as the owner of A & G, and A & G, asserting that Mr. Gau-treaux was not in the course and scope of his employment with A & G at the time of the accident and that the accident did not arise out of his employment. Mr. Gau-treaux answered, reconvened, and filed a cross claim. In his reeonventional demand, Mr. Gautreaux asserted that Arabie was his employer, statutory employer, or borrowing employer, entitling him to workers’ compensation benefits. In his cross claim, Mr. Gautreaux contended that Mr. Neill, individually and as owner of RA & G, was his employer or statutory employer, entitling him to workers’ compensation benefits.

After a trial on the merits, judgment was signed on December 4, 2002, in favor of Arable and American. The OWC determined that Mr. Gautreaux’s injuries did not occur while in the course and scope of his employment with A & G, and, therefore, he was not entitled to further workers’ compensation benefits. On appeal, this court reversed in part, finding that Mr. Gautreaux was a borrowed employee of Arabie, and remanded the matter to the OWC for a determination of the amount of workers’ compensation benefits and/or medicals due. The matter was also remanded for a determination of the amount of penalties and/or attorney fees due, if any. See Arabie Brothers Trucking Co. v. Gautreaux, 03-0120 (La.App. 1 Cir. 8/4/04), 880 So.2d 932, writ denied, 04-2481 (La.12/10/04), 888 So.2d 846.

On remand, the matter was submitted on briefs, and on July 29, 2010, the OWC rendered oral reasons for judgment, awarding Mr. Gautreaux medical and indemnity benefits, but declining to award him penalties and attorney fees. Judgment in Mr. Gautreaux’s favor was signed on August 9, 2010, in accordance with the oral reasons, and a timely appeal was filed on behalf of Mr. Gautreaux. Because Mr. Gautreaux was deceased at the time the judgment was signed, we vacated the judgment as null and remanded the matter for the substitution of the legal successor of Mr. Gautreaux and for the rendition and signing of a judgment in favor of the properly substituted party. See Arabie Brothers Trucking Co. v. Gautreaux, 10-1999 (La.App. 1 Cir. 6/10/11), 2011 WL 2979977 (unpublished).

Thereafter, Mary Gautreaux, Mr. Gau-treaux’s mother, filed a motion to be substituted as the proper party plaintiff, which was granted on February 29, 2012. Also on February 29, 2012, and for the reasons rendered on July 29, |42010, a Judgment Incorporating Substituted Party Plaintiff was signed. Ms. Gautreaux has appealed and asserts that the OWC erred in failing to award penalties and attorney fees, in failing to give Mr. Gautreaux the presumption of a forty-hour work week and calculating indemnity benefits in accordance therewith, and in failing to award her costs. Ms. Gautreaux also asked for attorney fees for the preparation and work on the appeal.

PENALTIES AND ATTORNEY FEES

Ms. Gautreaux initially argues that the OWC erred in failing to award penalties and attorney fees. She contends that the OWC committed manifest error in concluding that Arabie and American “reasonably controverted” the claims of Mr. Gautreaux. Ms. Gautreaux maintains that there was no excuse for the late payment of medical bills from Touro Rehabilitation Center (Touro) and Terrebonne General Medical Center (TGMC).

Pursuant to LSA-R.S. 23:1201 F, an employer or insurer may be assessed with penalties and attorney fees for the failure to provide payment in accordance with Section 1201. Under the applicable statutory provisions of Subsection 1201F, penalties and attorney fees are recoverable unless “the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” LSA-R.S. 23:1201 F(2). A claim is reasonably controverted when the employer has sufficient factual and/or medical information to reasonably counter evidence presented by the claimant. Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 890. A determination of whether an employer has reasonably controverted a claim is a question of fact and is subject to the manifest error standard of review. Atwell v. First General Services, 06-0392 (La.App. 1 Cir. 12/28/06), 951 So.2d 348, 357, writ denied, 07-0126 (La.3/16/07), 952 So.2d 699.

Further, awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature, being imposed to discourage indifference Land undesirable conduct by employers and insurers. Iberia Medical Center v. Ward, 09-2705 (La.11/30/10), 53 So.3d 421, 433-34. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Id. at 434. An employer should not be liable for penalties or attorney fees for taking a close factual or legal question to court for resolution. Brown v. A M Logging, 10-1440 (La.App. 1 Cir. 8/4/11), 76 So.3d 486, 496.

Pamela Hickman, the field claims adjuster for American, testified that when Mr. Gautreaux’s claim came in, she conducted a preliminary investigation and saw several issues, including whether Mr. Gau-treaux was an employee of Arabie, American’s insured, since Mr. Gautreaux was directly employed by A & G. Ms. Hickman also testified that there was an issue of intoxication, because Mr. Gautreaux tested positive on a drug test following the accident. However, no confirmation levels were taken, and there was no other evidence that Mr. Gautreaux was intoxicated. Thus, according to Ms. Hickman, due to the severity of the injuries and without the confirmation levels, American decided to pay the claim until the OWC decided the course-and-scope issue. She further testified that she had spoken to Mr. Arabie and that he told her that Mr. Gautreaux was never told to cut the tree and, in fact, when Mr. Arabie first heard the saw, he found Mr. Gautreaux and told him to put the saw down. When asked why American paid more than $950,000.00 in this case when the claim might not be compensable, Ms. Hickman stated that American was concerned about tort liability because of Mr. Gautreaux’s severe injuries if American denied the claim. Ms. Hickman further testified that because of the issues involved in this matter, she requested a legal opinion from American’s attorneys.

Ms. Hickman also stated, when asked about the timeliness of American’s payments, that she was not concerned with the time frame for paying these bills, because this was not an ordinary case and there were many questions that had to be resolved.

Rln its oral reasons, the OWC found a legitimate question as to whether Mr. Gau-treaux was acting on his own outside the course and scope of his employment with either A & G or Arabie. The OWC concluded:

This case was reasonably controverted. And because it was reasonably controverted no penalties or attorney’s fees apply regarding any behavior of the employer or insurer. No attorney’s [fees] or penalties apply for late payments, for nonpayments, for partial payments— anything because the Court finds it is reasonably controverted.

After a thorough review of the record in this matter, we cannot say that the OWC committed manifest error in concluding that Arabie and American reasonably controverted the claims of Mr. Gautreaux. This case presented a close factual issue regarding whether Mr. Gautreaux was in the course and scope of his employment. American paid indemnity and medical benefits on behalf of Mr. Gautreaux because of the severity of his injuries, even though it questioned whether any benefits were due. Mr. Gautreaux’s injuries clearly resulted from an accident within the course of his employment. However, American had ar-ticulable and objective reasons for questioning whether Mr. Gautreaux’s injuries occurred while he was acting within the scope of his employment.

The OWC initially found that Mr. Gau-treaux was not in the course and scope of his employment at the time of the accident. A three-judge panel of this court reversed, with one judge dissenting, finding that Mr. Gautreaux was a borrowed employee of American. Thereafter, the supreme court denied a writ of review. The fact that Arabie and American lost that issue on appeal does not subject them to penalties and attorney fees. The facts of this case establish that Arabie and American had a reasonable basis to believe that compensation benefits were not due to Mr. Gau-treaux. Therefore, because the claim of Mr. Gautreaux was “reasonably controverted” by Arabie and American, we need not address the timeliness of the payments by American to Touro and TGMC. See LSA-R.S. 23:1201 F(2).

Finding that the OWC was not clearly wrong in this factual finding, Ms. Gau-treaux’s first specification of error is without merit.

|7FORTY-HOUR PRESUMPTION

Ms. Gautreaux next asserts that the OWC erred in concluding that Mr. Gautreaux was not entitled to the forty-hour work week presumption found in LSA-R.S. 23:1021(12). Ms. Gautreaux contends that her son worked as often as work was available and that he “did not accept less than forty hours a week voluntarily.”

At trial, Mr. Neill, the owner of A & G, testified, in pertinent part, as follows:

Q. It’s also my understanding that he worked when you had work. So it wasn’t regularly occurring, like he wasn’t working [for] you five days a week—
A. Right.
Q. —forty hours?
A. Right.
Q. And it’s my understanding over a year’s time say, that because certain months when he was trawling, he worked a lot less, and there’s other times he worked more, that on an average, he worked about three days a week over the entire year?
A. Probably.
Q. Does that sound about accurate?
A. Yeah.
|SQ. So you were paying him sixty ($60) dollars a day when he worked, and he worked an average of three days a week?
A. Yeah.

The OWC concluded that Mr. Gau-treaux’s average weekly rate was $80.00 per day for an average of three days a week. In explaining its decision, the OWC noted Ms. Hickman’s testimony at trial that she spoke with Mr. Neill on March 9, 2000, and he told her that he paid Mr. Gautreaux $80.00 per day in cash and that he worked about three days a week. Thus, the OWC based its payment of benefits to Mr. Gautreaux on the average weekly wage of $240.00. The OWC also noted that Mr. Neill changed his testimony two years later at trial when he stated that he paid Mr. Gautreaux $60.00 per day and that Mr. Gautreaux worked three days a week. While the testimony at trial may have been different as to the amount paid to Mr. Gautreaux, no evidence or testimony was presented to show that Mr. Gau-treaux was anything other than a worker paid by the day. He was not an employee “paid on an hourly basis.” See LSA-R.S. 23:1021(12)(a). After a thorough review of the record, we can find nothing that indicates that Mr. Gautreaux was an hourly employee. Therefore, the presumption found in LSA-R.S. 23:1021(12)(a) does not apply, and this assignment of error is without merit.

COSTS

In her third assignment of error, Ms. Gautreaux asserts that the OWC erred in failing to award her costs since Mr. Gau-treaux was successful “on all issues relating to the medical bills.” Particularly, she seeks the costs for the depositions of Allison Bonner and Judy Mallery, which she asserts were submitted to explain the billing process and payment regarding the bills.

In workers’ compensation cases, the awarding of costs is governed by LSA-R.S. 23:1317 B, pursuant to which the matter lies within the sound discretion | flof the OWC. Nitcher v. Northshore Regional Medical Center, 11-1761 (La.App. 1 Cir. 5/2/12), 92 So.3d 1001, 1013, writ denied, 12-1230 (La.9/21/12), 98 So.3d 342. In this case, although the judgment was silent on the issue of costs, the OWC, in its reasons, stated that it would not assess costs against Arabie and American.

After our complete review of the record, we conclude that the OWC abused its discretion in failing to award costs to Ms. Gautreaux. Although the OWC initially denied Mr. Gautreaux’s claims, this court reversed, and remanded the matter for a determination of the amount of workers’ compensation benefits and/or medical benefits due. Further, on remand, the OWC awarded Mr. Gautreaux medical and indemnity benefits. Because Mr. Gau-treaux was ultimately successful on all issues regarding the payment of medical bills, we amend the judgment and order that Arabie and American pay the costs of this matter, including the costs of the depositions of Ms. Bonner and Ms. Mallery.

ADDITIONAL ATTORNEY FEES

Lastly, Ms. Gautreaux has asked for a reasonable attorney fee for the preparation of this appeal. Having found that no penalties and attorney fees are due under LSA-R.S. 23:1201 F, because the claim was reasonably controverted, we decline to award additional attorney fees.

CONCLUSION

Based on the foregoing, we amend the February 29, 2012 judgment of the OWC and order that Arabie and American pay the costs of this matter, including the costs of the depositions of Allison Bonner and Judy Mallery. In all other respects, the judgment is affirmed. Costs of this appeal shall be shared |inequally by Mary Gau-treaux and by Arabie Brothers Trucking Company and A & G Tree and Stump Removal.

JUDGMENT AMENDED, AND, AS AMENDED, AFFIRMED.

      . This court also affirmed the judgment insofar as it granted the claim for indemnification by Arabie and remanded for a determination of the amount of contribution due by A & G to Arabie and American.

      . Mr. Gautreaux's father died on May 11, 2007.

      .With the exception of the substituted party plaintiff, the judgment signed on February 29, 2012, was identical to the one signed on August 9, 2010.

      . A & G had no workers’ compensation insurance at the time of Mr. Gautreaux’s accident.

      . At the time of Mr. Gautreaux’s injury, LSA-R.S. 23:1021(10) provided, in pertinent part:
      "Wages” means average weekly wage at the time of the accident, The average weekly wage shall be determined as follows:
      (a) Hourly wages.
      (i)If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
      (ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or
      (iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.

        After Mr. Gautreaux’s injury, LSA-R.S. 23:1021(10) was redesignated as LSA-R.S. 23:1021(12) pursuant to the Louisiana Law Institute. See Guillory v. Bofinger’s Tree Service, 06-0086 (La.App. 1 Cir. 11/3/06), 950 So.2d 682, 689 n. 2.

      . Ms. Gautreaux also refers to LSA-R.S. 23:1310.9, which provides that if the OWC determines that the proceedings have not been brought on a reasonable ground or that the denial of benefits was not based on a reasonable ground, then all costs should be assessed against the party responsible for bringing the proceedings or the party who unreasonably denied the payment of benefits. However, an award of the total costs of the proceedings is mandatory under this statute only upon a finding that a compensation proceeding was not brought on a reasonable ground or that denial of benefits was not based on a reasonable ground. Since the OWC made no such finding in this case, LSA-R.S. 23:1310.9 is not applicable herein. See Nitcher v. Northshore Regional Medical Center, 11-1761 (La.App. 1 Cir. 5/2/12), 92 So.3d 1001, 1013 n. 4, writ denied, 12-1230 (La.9/21/12), 98 So.3d 342.


author: GAIDRY, J.

text:
    STATE of Louisiana v. Levi DUNHAM.
    No. 2012 KA 0826.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.

      Ricky L. Babin, District Attorney, Don-aldsonville, LA, Donald D. Candell, Assistant District Attorney, Gonzales, LA, for Plaintiff/Appellee State of Louisiana.
    Jarrett P. Ambeau, Gonzales, LA, for Defendant/Appellant Levi Dunham.
    Before CARTER, C.J., GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

|2The defendant, Levi Dunham, was charged by bill of information with seventeen counts of pornography involving juveniles, a violation of La. R.S. 14:81.1 A(3) (prior to amendment by 2010 La. Acts No. 516, § 1). He pled not guilty and filed a motion to suppress. After a hearing, the district court denied his motion to suppress. Following a jury trial, the defendant was found guilty of eight counts of pornography involving juveniles. The defendant was sentenced to thirty months at hard labor without the benefit of probation, parole, or suspension of sentence for each count, to be served concurrently. He now appeals, arguing that the use of technology unavailable to the public to search his computer constituted an illegal, war-rantless search. For the following reasons, we affirm the defendant’s convictions and sentences.

FACTS

Trooper Jared Sandifer with the Louisiana State Police became involved in an investigation of the defendant on July 19, 2009, while using peer-to-peer file sharing software called “GNU Watch.” Tpr. San-difer testified that GNU Watch searches for internet protocol (“IP”) addresses that are sharing files with a known secure hash algorithm (“SHA”) value, which he described as being “like a thumbprint” for a video or image. He used GNU Watch to search LimeWire, a peer-to-peer file sharing software system, for files with SHA values indicative of child pornography. According to Tpr. Sandifer, if such files were not in LimeWire or another peer-to-peer file sharing software system, GNU Watch would not detect them. He also opined that if the files were not in the LimeWire user’s “shared” folder, GNU Watch would not detect them.

| oThrough the information obtained by GNU Watch, Tpr. Sandifer saw that IP address 68.11.192.222 had files with SHA values that were consistent with child pornography. Based on this information, Tpr. Sandifer had a court ordered subpoena issued to Cox Communications, Inc., and determined that the IP address belonged to the defendant’s wife. He then obtained a search warrant, and he and a group of other officers and detectives executed the search warrant at the defendant’s residence. Tpr. Sandifer found a laptop computer in the residence and seized it after the defendant stated that it belonged to him. Tpr. Sandifer conducted an examination of the files on the computer and discovered that it contained images of child pornography.

The computer was then transported to the Louisiana State Police headquarters and a forensic examination was conducted by Trooper Dwight Herson, an expert in the field of forensic computer examination. Tpr. Herson testified that he was provided with a list of files that Tpr. Sandifer saw on the defendant’s computer and was able to locate all of those files. When asked whether a LimeWire user would have access to the SHA value of a file on the program without the use of special police software, he responded that programs are available to obtain the SHA value of a file once the file has been transferred from LimeWire. According to Tpr. Herson, although it is not normal practice, a user could access the SHA value of a file once the user has the file.

DISCUSSION

The defendant argues that the Louisiana State Police’s use of the ‘Wyoming Tool Kit” or GNU Watch software to search his personal computer was an illegal, warrantless search because the software is not readily available for public use. In support of his argument, the defendant |4contends that SHA values are not available to the general public and special software was required to obtain the value and compare it to other known files. He also argues that LimeWire shares parts of files, rather than whole files, and that SHA values cannot be obtained from the fragments available on LimeWire through publicly available software.

When a district court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the district court’s discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, 280-81. However, a district court’s legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La.12/1/09), 25 So.3d 746, 751.

At the trial of a motion to suppress, the burden of proof is on the defendant to prove the ground of his motion. La.Code Crim. P. art. 703 D. The defendant also has the obligation of designating the transcript of the hearing of the motion to suppress for the record on appeal. See La.Code Crim. P. art. 914.1. The transcript of that hearing is not in the record before us. However, in determining whether the ruling on defendant’s motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, n. 2 (La. 1979).

The Fourth Amendment to the United States Constitution protects individuals from “unreasonable searches and seizures.” Similarly, Louisiana Constitution Article 1, Section 5 provides, “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” Whether the Fourth Amendment protects an individual from a warrantless search rests on | .¡whether the individual can demonstrate a reasonable expectation of privacy against government intrusion. See Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576 (1967). Only individuals who actually enjoy the reasonable expectation of privacy have standing to challenge the validity of a government search. See Rakas v. Illinois, 439 U.S. 128, 132, 99 S.Ct. 421, 424, 58 L.Ed.2d 387 (1978).

The issues presented in the defendant’s brief were recently addressed by the Third Circuit in a factually similar case, State v. Daigle, 2011-1209 (La.App. 3d Cir.5/2/12), 93 So.3d 657. In Daigle, Louisiana State Police detectives conducted an investigation using the Wyoming Tool Kit and discovered the defendant’s IP address was seen with SHA values consistent with child pornography. At trial, the detectives explained that the Wyoming Tool Kit was designed by the Wyoming Department of Justice and ran on the Gnutella network. According to the detectives, software such as LimeWire and BearShare also ran on the Gnutella network. The Wyoming Tool Kit identified IP addresses that had SHA values matching images previously identified as child pornography. Daigle, 93 So.3d at 659-60. The detectives used GNU Watch in addition to the Wyoming Tool Kit, and testified that both programs only ran on the Gnutella network. Id. at 663. Citing several recent federal court decisions, the court found that in applying for a search warrant, the detective did not violate any reasonable expectation of privacy on defendant’s part by using software available only to law enforcement to identify defendant’s IP address as having SHA values that might be associated with images of child pornography. It explained:

Federal courts have examined the issues presented in Defendant’s appeal and have determined that defendants have no Fourth Amendment privacy rights in computer files that they have shared on file sharing networks such as Gnutella regardless of whether the defendants have logged onto the | ^Gnutella network through clients such as Lime[W]ire, Morpheus, BearShare, or Shareaza. See United States v. Gabel, 2010 WL 3927697 (S.D.Fla.2010); United States v. Stults, 575 F.3d 834, 842 (8th Cir.2009), cert. denied, 559 U.S. 915, 130 S.Ct. 1309, 175 L.Ed.2d 1093 (2010); U.S. v. Ganoe, 538 F.3d 1117 (9th Cir. 2008), cert. denied, — U.S. -, 129 S.Ct. 2037, 173 L.Ed.2d 1122 (2009).... This is equally true if the investigating law enforcement officer uses software specially modified to screen for child pornography, such as ShareazaLE or the Wyoming Tool Kit, provided that the software has no greater access to the defendants’ computer files than that available to any other Gnutella client. Gabel, 2010 WL 3927697; United States v. Borowy, 595 F.3d 1045 (9th Cir.2010) [per curiam], cert. denied, — U.S. -, 131 S.Ct. 795, 178 L.Ed.2d 533 (2010).

Daigle, 93 So.3d at 665.

We agree with third circuit’s reasoning and find that Tpr. Sandifer did not violate the defendant’s right to privacy by using GNU Watch to examine the SHA values for files the defendant had already elected to freely share with other LimeWire users. Moreover, the defendant offered no evidence at trial in support of his assertion that publicly available programs are unable to obtain the SHA values of files on LimeWire, and the record does not support that argument. Therefore, the defendant’s arguments related to the alleged violation of his right of privacy are without merit.

The defendant also argues that there are misrepresentations in the search warrant regarding the technology used in obtaining evidence in support of the warrant and whether that technology was publicly available, such that the evidence used against him should have been suppressed. As noted above, under La.Code Crim. P. art. 703 D, the defense has the burden of proving that the search warrant was invalid. Although the search warrant application was attached to the motion to suppress, it was never introduced into evidence. It was the defendant’s obligation to designate the transcript of the hearing on the motion to suppress for the record. See La.Code Crim. P. art. 914.1. We are unable to review that hearing because the defendant |7failed to designate that transcript for the record. From our review of the trial transcript and the minutes from the hearing on the motion to suppress, it appears that at no point in the proceedings did the defendant introduce the search warrant or the search warrant application into evidence. The only information properly before us concerning the warrant is that gleaned from Tpr. Sandifer’s trial testimony, wherein he asserts that there are programs available to the public that can be downloaded to view the information that he was able to view using the special software. As there is no search warrant or search warrant application properly before us, the defendant failed to prove both that there were any false statements contained therein and, consequently, that the search warrant was issued without probable cause. Therefore, defendant’s arguments related to misrepresentations in the search warrant are without merit. See Daigle, 93 So.3d at 666. Accordingly, we find no error in the district court’s denial of the defendant’s motion to suppress.

AFFIRMED.

      . Counts 8 and 10-16 were quashed pursuant to the defendant’s motion, and the state dismissed count 6.