author:
BILLY HOWARD EZELL, Judge.
      THIBODEAUX, Chief Judge,

text:
    Belinda FLORES v. A & Z TOBACCO, LLC, d/b/a Pak A Sak.
    No. WCA 14-505.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 19, 2014.
    Rehearing Denied Jan. 14, 2015.

      James Ray Morris, Lake Charles, LA, for Defendant/Appellant A & Z Tobacco, LLC.
    Scott James Pias, Lake Charles, LA, for Plaintiff/Appellee Belinda Flores.
    Larry Arlen Roach, Jr., Lake Charles, LA, for Defendant/Appellant A & Z Tobacco, LLC.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   BILLY HOWARD EZELL, Judge.

|, In this workers’ compensation appeal, A & Z Tobacco, LLC raises issues concerning an award of penalties and attorney fees for failure to pay a judgment within thirty days pursuant to La.R.S. 23:1201(G). Belinda Flores, the claimant, answered the appeal claiming that the award of penalties should have been greater and asking for additional attorney fees for work performed on appeal.

FACTS

Ms. Flores was injured on April 14, 2012, while working for A & Z. At the time of her injury she was moving and lifting a case of beverages when she felt a pop in her right arm and shoulder. She injured her rotator cuff which ultimately required surgery. Ms. Flores filed a workers’ compensation claim on May 9, 2012. A & Z contested whether Ms. Flores suffered an injury.

Trial was set for April 24, 2013. After discussions with the workers’ compensation judge, the parties entered into an agreement on a motion to compel discovery. Trial of the matter was continued until June 24, 2013. On the day set for trial, the parties entered a stipulation settling the case which was recited in open court. A & Z agreed to pay back indemnity to Ms. Flores in the amount of $9,619.02. It was also agreed that indemnity would continue at the rate of $178.13 a week while Ms. Flores received treatment from Dr. Brent Cascio, an orthopedic surgeon. If Ms. Flores required surgery, A & Z agreed to pay for medical care for six weeks after surgery. If Ms. Flores required physical therapy after surgery, then A & Z agreed to pay for ten weeks of medical care. A & Z also agreed to pay outstanding medical bills in the amount of $845.47. Additionally, A & Z agreed to pay penalties in the amount of $4,000.00 and attorney fees in the amount of 12$7,500.00. Also, Dr. Anand Roy personally obligated himself to pay the stipulated penalties and attorney fees if A & Z did not pay.

On July 25, 2013, Ms. Flores filed a motion for contempt of court and for penalties pursuant to La.R.S. 23:1201(G). Ms. Flores also complained that improper contact had been made with her treating physicians. On July 26, 2013, A & Z presented a check in the amount of $21,964.49. A hearing was held on September 18, 2013. After taking the matter under advisement, the workers’ compensation judge rendered judgment on December 26, 2013. The court awarded penalties in the amount of $2,000.00 and attorney fees in the amount of $3,000.00 pursuant to La.R.S. 23:1201(G) for failure to timely pay a final and nonap-pealable judgment within thirty days. The trial court also held that any verbal communication or personal conferences with any of Ms. Flores’s health care providers was to be conducted pursuant to La.R.S. 23:1127.

A & Z filed the present appeal. It argues that penalties and attorney fees were inappropriate. A & Z also argues that a stipulation was entered into at trial about contact with Ms. Flores’s health care providers and the judgment should have been worded in conformity with the stipulation. Ms. Flores answered the appeal claiming that the amount of penalties should be increased and asking for additional attorney fees for work performed on appeal.

PENALTIES AND ATTORNEY FEES

A & Z sets forth three reasons that penalties and attorney fees were inappropriately awarded pursuant to La.R.S. 23:1201(G). It first argues that Ms. Flores waived and compromised any right to the penalties and attorney fees when she cashed the check. Next, it argues that there was not a final and nonappealable judgment at the time it made payment. Finally, A & Z argues that it was unable to |spay the judgment due to conditions over which it had no control, falling under the exception in La.R.S. 23:1201(G).

Awards of penalties and attorney fees in workers’ compensation eases are essentially penal in nature and are imposed to deter indifference and undesirable conduct by employers and their insurers toward injured workers. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41. While the benefits conferred by the Workers’ Compensation Act are to be liberally construed, penal statutes are to be strictly construed. Id.

Louisiana Revised Statutes 23:1201(G) provides:

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

Louisiana Revised Statutes 28:1201(G) only applies when there is a final and nonappealable judgment. Therefore, we will first address A & Z’s argument that there was not a final and nonappealable judgment.

Final and Nonappealable Judgment

A & Z argues that there was not a final and nonappealable judgment until the trial court signed the judgment on September 11, 2013, because Ms. Flores requested that the judgment be reduced to writing and there was a dispute regarding the content and intent of the stipulation and language of the judgment. |4A & Z argues that Ms. Flores’s reliance on Trahan v. Coca Cola Bottling Co., United, Inc., 04-100 (La.3/2/05), 894 So.2d 1096, is misplaced in this case because the claimant did not cash the check in Trahan, whereas the check was cashed in this case.

Whether the check was cashed or not makes no difference as to whether there was a final and nonappealable judgment. The supreme court held that a signed judgment is unnecessary when the requirements for an oral compromise pursuant to La.Civ.Code art. 3071 are satisfied. The supreme court noted that La.Civ.Code art. 3071 “provides for two elements of a compromise: (1) mutual intention of preventing or putting an end to the litigation, and (2) reciprocal concessions of the parties to adjust their differences.” Trahan, 894 So.2d at 1104. “To be enforceable under Article 3071, a compromise must either be reduced to writing and signed by the parties or their agents, or be recited in open court and be capable of transcription from the record of the proceeding.” Id. (emphasis added).

The supreme court also observed that a compromise recited in open court and entered into by the parties, whereby the employer agrees to pay certain sums to the claimant in exchange for ending pending litigation, constitutes a confession of judgment such that defendant is not entitled to an appeal. Id. It “confers upon the parties the right of judicial performance.” Id. at 1109.

A review of the record in the present case discloses that all the elements of a compromise were met; the compromise was recited in open court and capable of transcription from the record on June 24, 2013. At that point the agreement became enforceable and constituted a final and nonappealable judgment.

| .¡A & Z further argues that the compromise was not final because there was a dispute as to the stipulation’s intent and content. It refers to the fact that both parties submitted judgments, with the trial court signing the judgment it submitted. The only difference between the two submitted judgments was that the one submitted by A & Z broke down the total amount owed into the specific amounts owed for each item as recited in the stipulation. There was no dispute as to the content of the stipulation made in court.'

Waiver

Having determined that the recitation in trial court constituted a final and nonappealable judgment, we now turn to the issue of whether Ms. Flores waived her right to pursue penalties and attorney fees under La.R.S. 23:1201(G) when she cashed the check. An attempt was made to deliver the check to Ms. Flores’s attorney’s office on July 25, 2013, but the office had already closed for the day. The check was delivered the next day. A letter accompanied the check tendered to Ms. Flores which stated “do not negotiate A & Z Tobacco, LLC’s check until such time that the release documents have been executed and returned to our office.” The check was cashed that day, but the release was not signed until several days later. Among other language, the “PARTIAL RECEIPT AND RELEASE ” included the following:

Plaintiff and her attorney therefore release Defendant from any and all such claims they may have under the laws of Louisiana through the date of execution of this release, including but not limited to those for payment of past indemnity, past medical expenses, interest, costs, penalties owed under any statute and attorney fees under any statute.

Ms. Flores and her attorney did sign the release on July 29, 2013, but only after crossing out the above language.

|fiIn Trahan, 894 So.2d 1096, the supreme court recognized that the claimant could refuse to sign a receipt and release when the parties did not contemplate the execution of a receipt and release as part of the stipulation. There is no evidence whatsoever in this case that a receipt and release had to be signed as part of the stipulation. Therefore, it was not necessary for Ms. Flores to sign the document before cashing the check. She further indicated her understanding of the stipulation by crossing out language that was not part of the compromise before signing the document. Ms. Flores did not waive her right to penalties and attorney fees under La.R.S. 23:1201(G).

Nonpayment Due to Conditions A & Z Could Not Control

A & Z asserts that its failure to pay resulted from conditions over which it had no control. “A plain reading of [La. R.S. 23:1201] G raises two questions (1) was the payment timely, and (2) if not, did the delay result from conditions beyond the employer’s control.” Fontenot v. Sonnier, 09-1215, p. 5 (La.App. 3 Cir. 4/7/10), 34 So.3d 473, 476. The manifest error standard of review applies to a workers’ compensation judge’s finding as to whether untimely payment was the result of conditions beyond an employer’s control. Id.

A & Z introduced evidence that it had $1,699.03 in its account on June 24 when the stipulation was entered into and that it had to make a loan/cash call on its members to pay the stipulated amount. The final deposit to cover the stipulated amount was made on July 24. As noted by the workers’ compensation judge, the thirtieth day was July 24, 2013. This does not include the day the stipulation was entered into. Therefore, any attempt to deliver the check on July 25 was already late.

|7A & Z claims that it was having financial difficulties which caused it issues in securing the money to pay the stipulation. We first observe that A & Z did not have workers’ compensation insurance as required by La.R.S. 23:1168, which would have provided coverage for Ms. Flores’s accident. Failure to secure funding to pay this workers’ compensation claim timely is not a condition beyond the employer’s control. We find no manifest error in the workers’ compensation judge’s ruling on this issue.

CONTACT OF HEALTH CARE PROVIDERS

A & Z’s final argument is that the workers’ compensation judge erred when it ruled that it could only contact Ms. Flores’s health care providers in accordance with La.R.S. 23:1127. A & Z argues that this issue was moot and resolved by the stipulation so that the judgment should have been worded in conformity with the stipulation.

Contact on behalf of A & Z had been made with Ms. Flores’s doctors questioning whether her injury was work-related. This was after A & Z and Ms. Flores entered into the stipulation and A & Z agreed to pay indemnity benefits, medical benefits, and penalties and attorney fees. Ms. Flores then raised this issue in her motion for contempt. We find no error with the workers’ compensation judge’s ruling that contact with Ms. Flores’s doctors should be made in accordance with the law and including this issue as part of her judgment.

AMOUNT OF PENALTIES

In her answer to the appeal, Ms. Flores argues that the trial court erred in awarding her a penalty in the amount of $2,000.00 when the amount awarded should have been greater based on the mandatory language found in La.R.S. 23:1201(G). Louisiana Revised Statutes 23:1201(G) provides, in pertinent part, |sthat a penalty “shall” be awarded in “an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater.”

The payment by A & Z was two days late, so the $100.00 a day penalty results in a $200.00 penalty. Whereas, 24% of the total stipulated amount of $21,964.49 is $5,271.48. Pursuant to La.R.S. 23:1201(G), we are mandated to increase the penalty award to $5,271.48 as the greater penalty.

ATTORNEY FEES

Ms. Flores has also asked for an award of additional attorney fees for work performed on this appeal. An additional award of attorney fees for work done on an appeal is proper when a party is forced to and successfully defends an appeal and the party makes a proper request for additional attorney fees. Alpizar v. Dollar General, 13-1150 (La.App. 3 Cir. 3/5/14), 134 So.3d 99. Since Ms. Flores was successful on appeal in defending her case and obtaining an increase in the penalties awarded as requested in her answer, we make an additional award of $3,500.00 for the work performed on appeal.

For the reasons set forth in this opinion, we amend the judgment to increase the penalties awarded from $2,000.00 to $5,271.48. We also award an additional award of attorney fees in the amount of $3,500.00. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to A & G Tobacco, LLC.

AFFIRMED AS AMENDED.

THIBODEAUX, Chief Judge, concurs in part and dissents in part and assigns written reasons.

THIBODEAUX, Chief Judge,

concurring in part and dissenting in part.

hi agree with the majority’s treatment of the waiver argument and the nonpayment of the judgment for the alleged reason that it was beyond the employer’s control. I disagree, however, with their treatment of what constitutes a final and nonappealable judgment. I would, therefore, reverse and not award any penalties or fees.

I agree that a binding and enforceable compromise was reached under both Article 3071 of the Code of Civil Procedure and La.R.S. 23:1272(A) which governs compromises under workers’ compensation laws. The defendant does not and cannot dispute this fact and its settlement consequences. What is at issue is whether penalties and fees inure to the plaintiff as a result of a “final, nonappealable judgment ” which is not paid within thirty days after becoming due.

Louisiana Revised Statutes 23:1201(G) provides for penalties when the judgment has not been paid within thirty days of it being rendered. This article begins the thirty-day period from the time of a “final, nonappealable judgment.” The phrase, “final, nonappealable judgment” is not defined in the workers’ compensation statutes. When the issue is not addressed in the specific area of law as in workers’ compensation, the general codal provisions are used. Section 40:6601 of the Louisiana Administrative Code states, “[ujnless otherwise provided for in these rules, any practice or procedure not in conflict with either the Workers’ 12Compensation Act or these rules will be guided by practice and procedure provided for in the Louisiana Code of Civil Procedure.”

Article 911 of the Louisiana Code of Civil Procedure provides that a final judgment must be in writing and signed by the judge unless otherwise provided for by law. Louisiana Revised Statutes 23:1201(G) does specifically say a “final, nonappealable judgment ” and not an enforceable compromise as does La.R.S. 23:1272(A). In my view, since a final judgment has to be in writing and not simply recited in open court, as does a compromise, a written document has to be executed in order to effectuate the imposition of penalties.

Moreover, the plaintiffs attorney himself requested a written judgment. When asked by defense counsel, “do you require a written judgment or will this suffice?”, the plaintiffs counsel answered, “I would like a written.” Thus, the written judgment which plaintiffs counsel requested and which was signed on September 11th, is the appropriate time by which to govern whether penalties and fees are due under Section 1201(G).

For the foregoing reasons, I respectfully dissent in part.

      . I am cognizant of Trahan v. Coca Cola Bottling Co. United, Inc., 03-827 (La.App. 3 Cir. 12/10/03), 861 So.2d 783, a panel on which I sat. I now reject the views expressed and the conclusion reached therein.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Deontia J. MONROE, Appellant.
    No. 49,365-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, for Appellant.
    John M. “Mack” Lancaster, District Attorney, Douglas Wheeler, Assistant District Attorney, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   MOORE, J.

liThe defendant, Deontia J. Monroe, was charged with possession of cocaine in violation of La. R.S. 40:967(C). He pled guilty pursuant to a Crosby plea agreement which included a sentence of three years at hard labor,- suspended, with three years of supervised probation, court costs and a fíne of $1,000. Monroe now appeals the denial of his motion to suppress. For the following reasons, we reverse the judgment denying the motion to suppress and, accordingly, vacate the conviction and sentence.

FACTS

At approximately 4:30 a.m. on December 9, 2012, while patrolling Chicago Street in Delhi, Louisiana, Officer Tim Crum stopped a vehicle for a minor traffic violation. The driver got out of the car and walked around the front of the vehicle, ignoring commands from Officer Crum to approach him. As the driver walked rapidly away from the car, Officer Crum unsuccessfully attempted to use his taser to subdue him, but the driver fled the area. During this time, a back seat passenger also exited the vehicle and fled.

Shining his flashlight into the vehicle, Officer Crum discovered a front seat male passenger who was either passed out or sleeping. He called for assistance without attempting to awaken the passenger. When Deputy Tyler Wade arrived, the two officers awoke the man by banging on the windows. According to Officer Crum, the passenger awoke disoriented and failed to obey commands to raise his hands. He said the man appeared to preach down under the seat and then he grabbed the ignition keys. At that time, Deputy Wade removed him from the vehicle. The officers handcuffed, searched, and placed the defendant in the back of the patrol car under arrest for interfering with an officer by removing the keys from the ignition. The two officers then searched the vehicle and discovered a bag of cocaine under the front passenger seat where the defendant was sitting.

The defendant was subsequently charged by bill of information with possession of cocaine. He filed a motion to suppress the evidence seized, i.e. the bag of cocaine, as a result of the warrantless search. Although both Officer Crum and Deputy Wade were involved in the search and arrest, the sole witness to testify at the evidentiary hearing was Officer Crum.

Officer Crum testified at the hearing that at approximately 4:24 a.m. on the morning of December 9, 2012, he stopped a vehicle after the driver made a left turn without signaling. The driver turned on Chicago Street in Delhi, then into a driveway and parked. As Officer Crum approached the vehicle, the driver got out of the car and walked to the front of the vehicle. Officer Crum recognized the driver as Terrance Williams. He instructed Williams to approach him, but Williams walked hastily in the other direction. Officer Crum then fired his taser, but apparently only one prong from the taser hit Williams, who fled away. At the same time, Officer Crum heard a noise from the vehicle and turned to see a second man flee from the back seat of the driver’s side of the vehicle.

Officer Crum returned to the vehicle and shined his flashlight inside |3to see if there was anyone inside. He saw the defendant passed out or asleep in the front passenger seat. At that time, he called Richland Parish dispatch for an additional officer. Deputy Tyler Wade was dispatched to the scene.

When Deputy Wade arrived, Officer Crum apprised him of the situation. The two officers then beat on the windows and yelled at Monroe until he awakened. Officer Crum testified that Monroe appeared dazed and began scrambling or “digging” for something on the floorboard under his seat. He testified:

And when Mr. Monroe wakes up, he’s digging towards his — his, the seat down towards his — between his legs. And we draw our weapons and tell him to show — show us your hands.... he’s not listening to us, like he’s in a daze. Then he reaches over and pulls the keys out the ignition and Deputy Wade was able to get him out of the vehicle. And then we patted him, to make sure he don’t have any weapons and look for those keys that he took out of the ignition.

The officers handcuffed Monroe. Officer Crum testified that the keys were not on Monroe’s person. Monroe was then arrested for interference with an officer and was placed in the patrol car.

After placing the defendant in the patrol car, Officer Crum and Deputy Wade searched the vehicle. They discovered a bag of white powder under the front passenger seat where Monroe was sitting and an open container of alcoholic beverage in the cup holder of the console. The officers did not find the car keys in the vehicle, nor on the ground in the surrounding area of the vehicle. The keys were never located.

Officer Crum made several statements at the hearing giving his reasons for searching the vehicle: initially, he said that he “went back to check the car for the keys and for any type of weapons or anything thatjjwould harm me inside the vehicle.” On cross-examination he stated that he decided to search the car to “check the car for the keys and to see why everybody was running out of the vehicle.” He also said that he was “checking for the keys, to make sure anything inside of the vehicle that could harm me or Deputy Wade.” Finally, when questioned by the court, he explained that he was concerned about the keys for evidentiary purposes, that is, to inventory the vehicle, tow the vehicle and to determine who owned the vehicle. When the court noted that there would be no threat of obtaining a weapon by Monroe (who was handcuffed in the back seat of the patrol car) or the two other gentlemen (who had fled), Officer Crum stated that he “went back to check and to see what maybe he would have been reaching for down there in that area or why everybody is running from me.”

Following argument of counsel, the trial court found that exigent circumstances were created by the need of the officers to find the car keys to make sure the vehicle could be moved. It also stated that unusual and suspicious circumstances arose by virtue of the two individuals fleeing the scene. Ultimately, the court concluded that the necessity of finding the car keys authorized the search of the vehicle which led to the discovery of the cocaine under the seat. Additionally, these facts, the court said, distinguished the current circumstances from those in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 178 L.Ed.2d 485 (2009), noting:

[W]e have two individuals that have fled from the scene prompting suspicious circumstances. Why would two individuals jump out and just run away? There were certain exigent circumstances because the officers wanted , to make sure that the vehicle could be moved to another location to try to find out who owned the vehicle and the circumstances _[¡jSurrounding the reason why these two individuals had fled. And they needed to find the key. The keys needed to be recovered. And I believe that, that would be the distinguishing factor rather, that separates this case from [the] Gant case. We have unusual circumstances and the need to enter the vehicle in order to recover the key. I find that the entry into the vehicle was authorized. It did not violate the constitutional rights of this defendant against unreasonable searches or seizures for the effort to find the key. Not for the effort to find weapons because weapons could not be used against the officers under those circumstances. But the effort to find the key, I think, prompted the effort by the officers to enter the car. And in the process of trying to find the keys they illuminated the drugs in question beneath the seat of where the defendant had been located. So, based upon that limited circumstance or those limiting circumstances, I find that the Motion to Suppress should be denied.

As previously stated, Monroe subsequently entered a Crosby plea and this appeal followed.

DISCUSSION

The right of every person to be secure in his person, house, papers, and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. O’Neal, 44,067 (La.App. 2 Cir. 4/8/09), 7 So.3d 182, writ denied, 2009-1243 (La.2/12/10), 27 So.3d 841. The purpose of limiting warrantless searches to certain recognized exceptions is to preserve the constitutional safeguards provided by a warrant, while accommodating the necessity of warrantless [ (¡searches under special circumstances. State v. O’Neal, supra.

The state bears the burden of showing that probable cause and exigent circumstances justified a warrantless search and seizure. State v. Hemphill, 41,526 (La.App. 2 Cir. 11/17/06), 942 So.2d 1263, writ denied, 2006-2976 (La.3/9/07), 949 So.2d 441. Great weight is placed upon the trial court’s ruling on a motion to suppress in regard to the finding of facts because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Crews, 28,153 (La.App. 2 Cir. 5/8/96), 674 So.2d 1082. This court reviews the district court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, while applying a de novo review to its findings of law. State v. Hemphill, supra; State v. Jones, 36,553 (La.App. 2 Cir. 1/29/03), 840 So.2d 7, writ denied, 2003-0956 (La.10/3/03), 855 So.2d 309. In reviewing the correctness of the trial court’s pretrial ruling on a motion to suppress, the appellate court may review the entire record. State v. Young, 39,546 (La.App. 2 Cir. 3/2/05), 895 So.2d 753.

When a trial court rules on a defendant’s motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress. State v. Angel, 44,924 (La.App. 2 Cir. 1/27/10), 31 So.Bd 547. The appellate court should not overturn a trial court’s ruling unless the trial court’s conclusions are not supported by the evidence, or there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion. Id.

Monroe argues that the search of the vehicle without a warrant in this |7case was unconstitutional because it did not fall within an exception to the warrant requirement and violates Arizona v. Gant, supra, as a search incident to an arrest. In Gant, the defendant parked his vehicle in a driveway and exited the vehicle. Police were on the scene, investigating an allegation of narcotics sales from the house. An officer called to Gant to move towards the officer, and Gant complied. The officer moved towards Gant and they met in the middle, approximately 10 to 12 feet from the defendant’s vehicle. The officer arrested Gant for driving under suspension and placed him in handcuffs. After Gant was placed in the back of a patrol car, the police conducted a search of his vehicle and located a gun and a bag of cocaine in the pocket of á jacket on the back seat. Id., 556 U.S. at 336, 129 S.Ct. at 1715. The lower courts determined that the search was unreasonable. The supreme court affirmed, finding that “[pjolice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of the arrest.” “When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” Id., 556 U.S. at 351,129 S.Ct. at 1723-24.

In this case, Monroe was handcuffed and seated in the back seat of the patrol car when Officer Crum and Deputy Ward decided to search the vehicle; because there was no threat that Monroe could grab a weapon or evidence, this reason would not justify a warrantless search. Arizona v. Is Gant, supra. Nor was it reasonable to believe the vehicle contained evidence of the offense of the arrest. Officer Crum said that Monroe was under arrest for “interference with an officer.” Because Monroe failed to comply with the officers’ instructions to show his hands by reaching under the seat and/or grabbing the keys from the ignition, there was probable cause to arrest for “resisting an officer,” in violation of La. R.S. 14:108. Since Monroe was being detained for that crime based solely on his behavior, i.e., their observation of his movements in the car contrary to their instructions, it was not necessary to obtain physical evidence of what exactly Monroe was allegedly reaching for under the seat to prove the crime. Similarly, locating the keys in the car would not add any evidence of the offense. Therefore, we find that it was not reasonable to believe that a search of the vehicle would contain evidence of the offense of resisting arrest. Id.

On the other hand, the state argues that the trial court did not deny the motion to suppress on grounds of a search incident to an arrest because the court distin-' guished the instant facts from those in Arizona v. Gant, supra. Instead, it maintains that the court “specifically found that the officer had probable cause to believe that evidence of some criminal activity would be found in the vehicle due to the special circumstances of this case.” It argues that the supreme court recognized in Arizona v. Gant, 556 U.S. at 346-47, 129 S.Ct. at 1721, that “[o]ther established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand,” such as “[i]f there is probable cause |9to believe a vehicle contains evidence of criminal activity,” citing United States v. Ross, 456 U.S. 798, 820-821, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The state contends that the special circumstances in this case not only included the need for the key to the vehicle, but, most importantly, the other occupants’ flight and the defendant’s suspicious behavior when he was taken into custody.

There are two requirements that must be satisfied before a warrantless seizure of evidence within a movable vehicle is authorized under this automobile exception: (1) there must be probable cause to believe the vehicle contains contraband or evidence of a crime; and (2) there must be exigent circumstances requiring an immediate warrantless search. State v. Thompson, supra at 336, citing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Lopez, 00-0562 (La.10/30/00), 772 So.2d 90; State v. Tatum, 466 So.2d 29 (La.1985). Probable cause means “a fair probability that contraband or evidence of a crime will be found.” Id., citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). “It must be judged by the probabilities and practical considerations of everyday life on which average people, and particularly average police officers, can be expected to act.” Id. In other words, the actions of the law enforcement officers are evaluated under an objective, not subjective, standard of reasonableness.

Under this theory, the state maintains that the trial court found that Officer Crum and Deputy Wade had probable cause to believe that evidence of some criminal activity would be found in the vehicle. Our reading of the | inrecord only weakly supports this contention. The court stated that the flight of the two individuals from the vehicle created “suspicious circumstances,” but it ultimately concluded that it was the “need to find the key” that authorized the warrantless search. There were exigent circumstances, according to the court, arising from the need to move the vehicle. It concluded that contraband was discovered during the officer’s search for the keys.

The state argues that the flight of the driver and passenger from the scene provided probable cause for the officers to believe that a search of the vehicle would yield contraband or evidence of a crime. While flight from the scene created reasonable suspicion, we do not find that such suspicion itself constituted, or, ripened (by the defendant’s actions) into probable cause to believe that contraband or evidence of a crime would be found in the vehicle. For example, in State v. Thompson, supra, officers learned through a confidential informant that the defendant was selling heroin. When officers approached the defendant on the street, he discarded something through the rear window of his car. While one officer detained the defendant, the other officer looked into the back of the vehicle and saw a piece of folded white tissue paper. He retrieved the folded tissue paper from inside the car and discovered it contained 14 tin foil packets of heroin. Id., at 334. The court upheld the warrantless seizure of the napkin from the car on grounds that the officers had reasonable suspicion based upon a tip from a confidential informant, that ripened into probable cause by the furtive act of tossing the napkin in the car. The court stated, however: “While the |nfurtive reaction alone was certainly insufficient to provide legal justification for the search, when the act is considered together with other facts known to the officers, the officers had a particularized basis for associating the object with narcotics trafficking,” Id,., at 336, citing Brown v. State, 269 Ga. 830, 504 S.E.2d 443, 446 (1998) (“Observation of what reasonably appear to be furtive gestures is a factor which may properly be taken into account in determining whether probable cause exists”).

In this instance, Officer Crum stopped the vehicle because the driver failed to use his turn signal. Obviously, this traffic offense does not create suspicion of contraband. Next, the driver got out of his car and subsequently fled, as did another passenger in the back seat of the vehicle. These evasive acts certainly could raise suspicion of possible illicit activity, but there are any number of reasons the driver and passenger may have wanted to avoid contact with the police. Afterwards, when Officer Crum spied into the vehicle with his flashlight, he saw the defendant passed out or asleep in the front passenger seat. He testified that the defendant appeared to be dazed when he was awakened and ignored their commands to show them his hands. He said the defendant appeared to be digging for something below the seat between his legs. Although he did not see the car keys in the ignition until he saw the defendant grab them, he did not see the defendant dispose of them. The defendant was pulled from the vehicle, patted down, handcuffed and placed under arrest.

Although this is a very close call, given these facts, we do not find that there was probable cause to believe that there was contraband or 112evidence of a crime in the car. Therefore, the first prong of Thompson is not met.

Even assuming that this suspicious behavior rose to the level of probable cause for Officer Crum to believe there was a fair probability that contraband was in the vehicle, there must also be exigent circumstances requiring an immediate warrant-less search. State v. Thompson, supra. The record provides no clear reason for impounding the vehicle for safety concerns or because it contained evidence of a crime. Officer Crum testified that he needed to recover the keys to the vehicle in order for it to be moved to a secure location. However, the vehicle was parked in a driveway off of the street, so it did not pose a hazard to traffic. We do not know the identity of the person’s driveway where the vehicle was parked — was it the defendant’s, a friend, or a stranger? There is no evidence that a wrecker was called before the search started or any evidence that inventory procedures were followed. Based on this evidence alone, we do not find that there were exigent circumstances requiring an immediate search of the vehicle without a warrant.

For the foregoing reasons, we conclude that the trial court erred when it denied the defendant’s motion to suppress. The instant search without a warrant did not meet the requirements under Arizona v. Gant, supra, as a search incident to an arrest, nor did it meet the requirements of the automobile exception under State v. Thompson, supra. Accordingly, the war-rantless search was in violation of Monroe’s Fourth Amendment right to be free from unreasonable searches and seizures.

|1sWe therefore reverse the judgment of the trial court denying the motion to suppress, and we vacate the conviction and sentence. We remand the case to the trial court for further proceedings.

REVERSED; CONVICTION AND SENTENCE VACATED; REMANDED FOR FURTHER PROCEEDINGS.

      . Under State v. Crosby, 338 So.2d 584 (La.1976), a trial court has discretion to accept or reject a guilty plea conditioned upon reservation of appellate review of pre-plea assignments of non-jurisdictional error.

      . The record preponderates that the officer intended to make the arrest for the crime of resisting an officer. La. R.S. 14:108.


author: STEWART, J. CARAWAY, J.,

text:
    Sheri MASSEY, Plaintiff-Appellee v. FRESENIUS MEDICAL CARE HOLDING, Defendant-Appellant.
    No. 49,407-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      The Javier Law Firm by Roger A. Javier, Eric K. Buerger, Richard C. Ely, Jr., New Orleans, for Appellant.

      Street & Street by C. Daniel Street, Monroe, for Appellee.
    Before STEWART, CARAWAY and PITMAN, JJ.
   STEWART, J.

| ¡Defendant, Fresenius Medical Care Holding, (“Fresenius”) appeals a ruling from the Office of Worker’s Compensation granting the plaintiff, Sheri Massey, supplemental earnings benefits from May 4, 2011, to January 15, 2013, in the amount of $579.00 per week; temporary total disability benefits in the amount of $579.00 per week from January 15, 2013, to the present and continuing; and $4,000.00 in penalties and $10,000.00 in attorney fees for Fresenius terminating payments and not timely authorizing and paying for treatment with Massey’s choice of physician. For the reasons assigned in this opinion, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 11, 2010, Massey, a registered nurse employed as a floor nurse by Fresenius, was injured in the course and arising out of her employment in a motor accident while traveling from her home in Winnsboro, Louisiana, to her job in Columbia, Louisiana. She received emergency care at Richardson Medical Center that day, after complaining of injuries to her back, left wrist, and left arm.

On August 16, 2010, she began treatment with the orthopedist of her choice, Dr. Scott McClelland. Dr. McClelland noted that Massey had injured her left wrist in a motor vehicle accident. In a patient questionnaire, Massey expressed concern about her mid-back. On September 7, 2010, she returned to Dr. McClel-land for a follow-up appointment. No complaints regarding Massey’s back were noted. During an appointment with Dr. McClelland on November 9, 2010, she complained of a “flare-up” of pain in [2her thoracolumbar spine. On November 13, 2010, Dr. McClelland found that she was unable to work, but did not provide treatment for her mid-back pain.

On April 15, 2011, Massey underwent a functional capacity evaluation (“FCE”). It was determined that she should not return to her pre-injury job without restrictions. Specifically, she was released to job activity restricted to occasionally lifting no more than 25 pounds waist-to-shoulder, 30 pounds floor-to-waist, and 20 pounds floor-to-shoulder. She could frequently lift 15 pounds waist-to-shoulder, 20 pounds floor-to-waist, and 15 pounds floor-to-shoulder. Dr. McClelland agreed with the FCE’s determination, and released her to light duty. She did not return to Dr. McClel-land for treatment thereafter.

On April 21, 2011, Robbin Martin, the Director of Operations at Fresenius, contacted Massey via telephone to inform her that a position was available for her at its dialysis facility in Monroe, Louisiana, that met the restrictions established by the FCE. At the conclusion of their conversation, Massey was informed that she must accept or decline the job by April 25, 2011. On April 27, 2011, after not hearing from Massey, Martin sent her a letter informing her that the position offered could accommodate her restrictions. After again not hearing from Massey, Fresenius placed her on the Monroe facility’s work schedule. After Massey did not appear for work, she was deemed to have resigned, and her employment was terminated, effective May 12, 2011.

|30n May 20, 2011, Massey filed a disputed claim for compensation, disputing the termination, of her benefits and her choice pf physician. She also sought penalties and attorney fees. On January 4, 2012, Massey filed a motion for choice of treating physician, seeking an order compelling Fresenius to authorize and pay for treatment with Dr. Bernie McHugh. The motion was granted on March 12, 2012, and Fresenius sought supervisory writs from this court. The application was denied on April 27, 2012.

On May 31, 2012, Dr. McHugh examined Massey, and diagnosed her with fibromyal-gia and a thoracic vertebral fracture. On September 11, 2012, Dr. McHugh opined that the thoracic vertebral fracture was caused by the August 11, 2010, accident.

On August 15, 2013, the trial took place. On November 13, 2013, the Worker’s Compensation Judge orally rendered its judgment, finding that Massey’s back complaints were work-related, and that she met her burden of proving her inability to earn 90 percent or more of her pre-injury wage through medical evidence presented by Dr. McClelland and Dr. McHugh. Massey was awarded supplemental earnings from May 5, 2011, to January 15, 2013, in the amount of $579.00 per week, and temporary total disability benefits in the amount of $579.00 per week from January 15, 2013, to the present and continuing. Massey was also awarded $4,000 in penalties and $10,000 in attorney’s fees for Fresenius terminating payments and not timely authorizing and paying for treatment with Dr. McHugh.

Fresenius appeals, asserting three assignments of error.

J4LAW AND DISCUSSION

Beneñts

In its first assignment of error, Freseni-us asserts that the trial court erroneously determined that Massey was entitled to compensation benefits from May 5, 2011, to present. More specifically, it argues that it offered Massey a position that accommodated her restrictions and paid more than her pre-injury wages.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Grambling State Univ. v. Walker, 44,995 (La.App.2d Cir.3/3/10), 31 So.3d 1189. In applying the manifest error-clearly wrong standard, the appellate court does not determine whether the trier of fact was right or wrong, but determines whether the factfinder’s conclusion was a reasonable one. Id. Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Thus; if the factfinder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990); Grambling, supra.

An employee is entitled to receive workers’ compensation benefits for personal injuries from an accident arising out of and in the course of his employment. La. R.S.' 23:1031(A). The purpose of supplemental earnings ^benefits (“SEB”) is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Banks, supra; Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993). An employee is entitled to receive SEB if he or she sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his or her average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. This analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of the coverage. Banks, supra; Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989).

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEB or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to, or proven to be available to, the employee in his or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Banks, supra; Daigle, supra. Actual job placement is not required. Banks, supra.

In Banks, supra, the supreme court applied the “minimum” standard test, concluding that an employer may discharge its burden of proving j ob | (¡availability by establishing, at a minimum, the following by competent evidence:

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

By suitable job, we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of the claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education. Banks, supra.

In this case, Massey was unable to return to her pre-injury job as a floor nurse at Fresenius. Martin testified that Fresenius did not have any daytime positions available that would accommodate Massey’s physical restrictions. She contacted Massey on April 21, 2011, to offer her a job that was being “created” in Fresenius’s nighttime dialysis program at Ouachita Dialysis in Monroe, Louisiana, that did not involve lifting. The job that was being “created” in Fresenius’s nighttime dialysis program had a 10-hour shift, from 6:00 p.m. to 4:00 a.m. shift, three days a week, for a total of 30 hours a week. It was approximately 45 miles from Massey’s home, and allegedly paid an hourly rate five dollars greater that her pre-inju-ry position.

Prior to the August 11, 2010, accident, Massey was earning an average weekly wage of $1,025.60, working 40 hours per week at a rate of |7$25.64 per hour. In the job being created for Massey, she would earn approximately $30.64 per hour, and $919.20 per week, which falls below 90% of Massey’s pre-accident wages.

Martin testified there was no specific job description for the proposed job. Rather, there was one job description for all nurses at the dialysis treatment center, and it could be altered. No job description altered to accommodate Massey’s physical restrictions was submitted into evidence. Instead, an unaltered job description was submitted, and it included the following language:

The position provides direct patient care that regularly involves heavy lifting and moving of patients, and assisting with ambulation. Equipment aids and/or coworkers may provide assistance. This position requires frequent, prolonged periods of standing and the employee must be able to bend over. The employee may occasionally be required to move, with assistance, machines and equipment of up to 200 pounds, and may lift chemical and water solutions up to 30 pounds as high as five feet.

Fresenius argues that upon receiving notice of Massey’s release to light duty, it “quickly identified a position which accommodated such, paid more than Massey’s pre-injury wage and was consistent with the desired work place environment described in her employment application.” However, the nighttime dialysis program with the alleged position that Fresenius is referring to had not been approved by the state at the time Martin offered this job to Massey. This program did not commence until January 1, 2012. Massey testified that during the April 21, 2011, telephone call, Martin informed her that since she had not been working for a long period of time, she would have to enroll in a refresher course. Since the Rnighttime dialysis program did not commence until January 1, 2012, the position offered would not have been available at the end of Massey’s 12-week training period. Martin testified that until the program was approved, Massey would be placed on the daytime shift, which is a position that she would be physically unable to perform due to her physical restrictions.

Applying the “minimum” standard set forth in Banks, swpra, we conclude that the trial court did not erroneously find that Fresenius presented insufficient competent evidence to carry its burden. The trial court found that this position had only been “contemplated.” The record supports the finding that the position was unavailable, as Martin testified the modified position did not exist at the time it was offered to Massey on April 21, 2011. It was being created, but would not have been available until January 1, 2012. Fre-senius failed to establish the availability of any job that Massey was physically able to perform, and consequently, the WCJ did not err in awarding benefits to Massey. Massey would be entitled to benefits nevertheless because of her inability to earn 90% or more of her average pre-injury wage in the new position when it became available. This assignment of error is without merit.

Choice of Physician

In its second assignment of error, Fre-senius asserts that the lower court erroneously determined that Massey’s back complaints were causally related to the August 11, 2010, accident. More specifically, the trial court erred in finding that it improperly declined Massey’s request for treatment with Dr. McHugh, because she did not have a medical referral to him. [9Further, the back complaints from which the treatment was requested were not causally related to a work-related accident.

A plaintiff in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Player v. International Paper Co., 39,254 (La.App.2d Cir.1/28/05), 892 So.2d 781; Albert v. Trans-Met, Inc., 38,261 (La.App.2d Cir.6/23/04), 877 So.2d 183; Qualls v. Stone Container Corp., 29,794 (La.App.2d Cir.9/24/97) 699 So.2d 1137, writ denied, 1997-2929 (La.2/6/98), 709 So.2d 736; Bruno v. Harbert Int’l. Inc., 598 So.2d 357 (La.1992).

Proof by a preponderance of the evidence means that the fact or canse sought to be proved is more probable than not. Player, supra; Albert, supra. The claimant must establish a causal link between the work-related accident and his injury. Id. If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the plaintiff fails to carry the burden of proof. Id. Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the hearing officer. Player, supra; Lewis v. Chateau D’Arbonne Nurse Care Ctr., 38,394 (La.App.2d Cir.4/7/04), 870 So.2d 515.

In the event of a compensable injury, the employer is obligated to furnish all necessary medical expenses. La. R.S. 23:1203(A). The claimant must prove by a reasonable preponderance of the evidence the necessity and relationship of the treatment provided by the physician to the work-related |inaccident. Thompson v. The Animal Hosp., 39,154 (La.App.2d Cir.12/15/04), 889 So.2d 1193; Lewis, supra.

At the time of Ms. Massey’s accident, the right of examination set forth in La. R.S. 23:1121(B)(1) stated:

B. The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to. the type of summary proceeding provided for in R.S. 23:1124(B), when denied his right to an initial physician of choice. After his initial choice the employee shall obtain pri- or consent from the employer of his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

This statute gives an injured employee an absolute right to select one physician in any field without the approval of the employer. Smith v. Southern Holding Inc., 2002-1071 (La.1/28/03), 839 So.2d 5; Thompson, supra. Selection of a new physician in a different specialty does not require such approval. Thompson, supra; Davis v. Sheraton Operating Corp., 1997-2784 (La.App. 4th Cir.5/20/98), 713 So.2d 814.

In the case sub judice, Dr. McClelland is an orthopedist, while Dr. McHugh is a neurosurgeon. Dr. McHugh would be categorized as a specialist in a specific field. La. R.S. 23:1121(B)(1) does not require Mrs. Massey to obtain Fresen-ius’s consent to see Dr. McHugh, since he is a doctor in another field or specialty. A referral is not required.

Fresenius argues that Massey’s initial consultation with Dr. McClelland showed that back pains she complained of were pre-existing and not related to the August 11, 2010, accident. However, it failed to explain the connection between the lower back pains she suffered from prior | nto the accident and the back pains she suffered from after the accident in a completely different location in her back, specifically, her mid-back.

When Massey sought treatment from Dr. McClelland after the accident, she complained of pain in her left arm, left wrist and mid-back. She testified that prior to the accident, she suffered from lower back pain, but that the injury to her mid-back was “much different.” Dr. McClelland did not provide any treatment for Massey’s mid-back pain, which she continued to suffer from after he released her to work with restrictions.

As the law has established, Massey had the right to chose another doctor in another field or specialty, namely, Dr. McHugh. After examining Massey, he determined that the mid-back pain that she was suffering from was the result of a vertebrae fracture stemming from the August 10, 2010, accident. This vertebrae fracture was not present, in an X-ray of Massey’s back taken in 2007. Massey testified that she had not injured her back in any way after 2007, other than by this August 10, 2010, accident. Further, Dr. McClelland, when asked to assume that there had not been any traumatic injury between the x-ray taken in 2007, and the August 10, 2010, accident, testified that the car accident was the most likely cause of the fractured vertebrae.

Based on the evidence presented, we find no error in the lower court’s determination that Massey’s back complaints were causally related to the August 11, 2010, accident, and ordering Fresenius to authorize and pay for her treatment with Dr. McHugh. This assignment of error lacks merit.

11;Award of Penalties and Attorney Fees

In its third and final assignment of error, Fresenius asserts that the lower court erred in awarding Massey penalties and attorney fees. It argues that it reasonably controverted Massey’s request for treatment with Dr. McHugh, and lawfully terminated her benefits when she failed to report for work after being cleared to do so. Based upon Dr. McClelland’s records, Massey’s medical history, and the absence of an actual referral to a neurosurgeon, it argues that it had valid reasons to dispute her request.

An employer’s failure to authorize a medical procedure for an employee otherwise eligible to receive worker’s compensation is deemed to be the failure to furnish compensation benefits, thus triggering the penalty provisions of R.S. 28:1201. Authement v. Shappert Engineering, 2002-1631 (La.2/25/03), 840 So.2d 1181; Thompson, supra; Gay v. Georgia Pacific Corp., 32,653 (La.App.2d Cir.12/22/99), 754 So.2d 1101. In the event of refusal to provide medical benefits, as distinguished from the termination of such benefits, the “reasonably controverted” standard of R.S. 23:1201(F) applies. Id.

To determine whether a claimant’s right has' been reasonably controverted, the court must ascertain whether the employer or its insurer engaged in nonfriv-olous legal dispute or possessed factual or medical information presented by the claimant throughout the time it refused to pay all or part of the benefits allegedly owed. Brown v. Texas-LA Cartage Inc., 98-1063 (La.12/1/98), 721 So.2d 885; Thompson, supra: Reasonably controverting a claim means that the employer or insurer has sufficient 11 ¡factual and medical information to reasonably counter that provided by the claimant. Thompson, supra; Gay, supra.

The WCJ has great discretion in determining whether to allow or disallow penalties and attorney’s fees and her decision will not be disturbed absent manifest error. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/1994), 630 So.2d 706; Thompson, supra.

Here, Dr. McHugh determined that the mid-back pain that Massey was suffering from was the result of a vertebrae fracture stemming from the August 11, 2010, accident. Dr. McClelland, when asked to assume that there had not been any traumatic injury between the X-ray taken in 2007, and the August 10, 2010, accident, testified that the car accident was the most likely cause of the fractured vertebrae. Despite this evidence, Fresenius denied Massey’s request for treatment with Dr. McHugh, and terminated her benefits when she failed to report to work for a,position that did not accommodate her physical restrictions.

Based on the evidence presented, we agree with the trial court’s determination that Fresenius lacked sufficient factual and medical information to reasonably counter that which was provided by Massey to reasonably controvert her claim. Therefore, we find that the penalties and attorney’s fees were appropriately awarded. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court granting the plaintiff, Sheri Massey, supplemental earnings from May 4, 1142011, to January 15, 2013, in the amount of $579.00 per week; temporary total disability benefits in the amount of $579.00 per week from January 15, 2013, to the present and continuing; and $4,000.00 in penalties and $10,000.00 in attorney fees for Fresenius terminating payments and not timely authorizing and paying for treatment with Massey’s choice of physician. Costs of this appeal are assessed to Fresenius.

AFFIRMED.

CARAWAY, J., concurs in part and dissents in part with written reasons.

CARAWAY, J.,

concurring part and dissenting in part.

|,I concur with the majority’s affirmance of the award of workers’ compensation benefits, but respectfully dissent regarding the award of penalties and attorney’s fees.

In April 2011, when the employee had been released for light duty work, the employer responded with an offer for a modified position. This was at a time in the employee’s medical treatment before Dr. McHugh’s medical findings. The employer’s willingness to attempt to accommodate the employee and provide 12-week training was rejected out of hand by the employee without any communication with her employer. The workers’ compensation judge and the majority now speculate that no position was really available and supposedly that no wages would have ever really been paid, excusing the fact that the employee did not even attempt to respond in good faith to the employer’s effort. This then was not a case of employer failure to accommodate and aid in rehabilitation efforts where penalties should be triggered. The employer’s good faith offer for an accommodating position was met with this suit, and the fact that the employee’s physical condition may have deteriorated months thereafter does not mean that in the spring of 2011 the employer could not “reasonably controvert” the employee’s curt response. The penalty test has not been met in my opinion for the court to impose punitive measures.

      . Massey testified that Fresenius put her “on the clock” while traveling to and from Columbia, instead of paying her mileage.


author: WILLIAMS, J.

text:
    Martha GRANTHAM, Plaintiff-Appellant v. ELDORADO RESORT CASINO SHREVEPORT, Defendant-Appellee.
    No. 49,474-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Brandon T. Morris, G. Adam Savoie, Shreveport, for Appellant, Martha Grant-ham.
    Ronald F. Lattier, Curtis R. Joseph, Jr., Shreveport, for Appellee, Eldorado Resort Casino Shreveport.
    Jason M. Nash, Brian D. Smith, Shreveport, for Appellee, Full Service Systems Corporation, Inc.
    Before WILLIAMS, STEWART and GARRETT, JJ.
   WILLIAMS, J.

[ plaintiff, Martha O. Grantham, appeals a district court judgment granting summary judgment in favor of defendants, Eldorado Resort Casino Shreveport and Full Service Systems Corporation. She also appeals the denial of her motion seeking an adverse presumption of liability against defendants. For the following reasons, we affirm.

FACTS

On May 21, 2012, plaintiff, Martha 0. Grantham, and her husband dined at the buffet located in the Eldorado Resort Casino Shreveport (“Eldorado”). Plaintiff alleged that after they finished their meal and were in the process of leaving the restaurant, she slipped and fell after stepping “in a puddle about the size of a saucer, of something that looked to be either salad dressing or banana pudding.”

On February 28, 2013, plaintiff filed a lawsuit against Eldorado, pursuant to LSA-R.S. 9:2800.6, alleging that Eldorado’s employees “knew or should have known of the spilled food item/liquid substance, but no effort had been made to prevent the hazardous condition, or to warn guests of the hazard.” On April 30, 2013, plaintiff filed an amended petition, adding as a defendant Full Service Systems Corporation (“FSS”), the janitorial company responsible for cleaning the floors in the restaurant.

Both Eldorado and FSS moved for summary judgment, arguing, inter alia, that plaintiff was unable to meet her burden under LSA-R.S. 9:2800.6. Specifically, defendants alleged that plaintiff could not prove they had actual or constructive notice of the alleged hazardous condition.

Plaintiff opposed the motion for summary judgment and also filed a |2pretrial motion seeking an adverse presumption of liability against Eldorado on the ground that defendant’s failure to preserve the video-surveillance footage of the incident constituted spoliation of evidence. Plaintiff asserted that Eldorado had at least one video-surveillance camera that recorded all activity in the buffet area. Plaintiff also asserts that Eldorado’s policy required it to preserve at least 15-25 minutes of video-surveillance footage surrounding all incidents on their property. However, in this case, Eldorado saved only seven seconds of the video footage depicting plaintiffs fall. In response, Eldorado conceded that it normally preserves approximately 15-30 minutes of video footage leading up to incidents on its premises. However, on the day in question, the employee normally responsible for retrieving and preserving the video footage was on vacation. The employee who filled in that day had never preserved video footage before; therefore, he saved only footage of plaintiffs fall, rather than the events leading up to the fall.

Following a hearing, the district court denied plaintiffs motion for an adverse presumption of liability on the ground of spoliation. The court also granted summary judgment in favor of defendants and dismissed plaintiffs claims. The court did not issue written reasons for judgment. However, at the conclusion of counsel’s arguments, the judge stated, “[T]he Court’s unable to grant the Motion seeking the Adverse Presumption, and Court does grant the Motion for Summary Judgment.”

Plaintiff appeals.

| aDISCUSSION

Spoliation

Plaintiff contends the district court erred in failing to impose an adverse presumption arising from Eldorado’s failure to preserve at least 15-25 minutes of video-surveillance footage of the buffet area at the time of the plaintiffs fall. She argues that had the surveillance footage been available, she would have been able to prove how long the substance had been on the floor.

Spoliation of evidence occurs when a litigant destroys, conceals or fails to produce evidence within his or her control. This gives rise to an adverse presumption that had the evidence been pro-dueed, it would have been unfavorable to the litigant. Rodriguez v. Northwestern Nat’l. Ins. Co., 358 So.2d 1237 (La.1978); Acadian Gas Pipeline Sys. v. Nunley, 46,-648 (La.App.2d Cir.11/2/11), 77 So.3d 457, writ denied, 2011-2680 (La.2/10/12),. 80 So.3d 487. The law is settled, however, that when the failure to produce the evidence is adequately explained, the presumption does not apply. Id.

Determination of the appropriate sanction, if any, is confined to the sound discretion of the trial judge, and is assessed on a case-by-case basis. Bertrand v. Fischer, 2011 WL 6254091 (W.D.La. 2011) (not reported), citing Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423 (2d Cir.2001). The appellate standard of review for a trial court’s decision of whether an adverse presumption for spoliation of evidence should be imposed is whether the trial court abused its discretion. See, Acadian Gas Pipeline System v. Nunley, supra; Paradise v. Al Copeland Inv., Inc., 2009-0315 (La.App.1st Cir.9/14/09), 22 So.3d 1018.

In Acadian Gas Pipeline Sys. v. Nunley, supra, the defendants appealed, arguing the trial court erred in failing to impose an adverse presumption based on the plaintiffs failure to preserve or produce data supporting the selection of a route for a pipeline. This court concluded that the trial court did not abuse its discretion in failing to apply the presumption, stating:

[T]he duty to preserve evidence is enforceable if it arose from a statute, contract, special relationship between the parties or an affirmative agreement or undertaking to preserve the evidence. The [defendants] have not cited any statute or contract requiring [the plaintiff] to maintain the kind of records requested.

Id., at 465.

In the instant case, plaintiff and defendants submitted deposition testimony in support of and in opposition to the motion for summary judgment. Teresa Shirley, Eldorado’s “guest relations manager/risk manager,” testified that she prefers to preserve “at least 15 minutes” of surveillance video prior to an incident and “15 minutes” afterwards. She stated the following reasons for doing so are: to see if a hazard existed and, if so, how long it had been there; and to see whether or not anyone had been having difficulty navigating the area where the fall occurred. Shirley stated that only seven seconds of video was preserved in this case; the footage depicted only the fall itself.

Walter Patton, an Eldorado security investigator, testified that he was responsible for “looking] at every incident report ... and follow-up on |5whatever’s needed, be it video for the incident or interviewing peoplef.]” He explained the normal procedure as follows: the security officer who prepared the report would turn in the report at the end of his or her shift; at the beginning of each day, he (Patton) would review the reports and the related video footage. Patton also testified that the casino utilized a digital video-recording (“DVR”) system, and video footage that is not reviewed and saved is automatically overridden by the system; videos that are saved are stored on an independent network storage device and kept for a minimum of five years.

However, in this case, Patton testified that he was on vacation when the incident occurred. Gene Wilson was the officer responsible for investigating the incident and retrieving and preserving the video-surveillance footage. When Patton returned from vacation, he was not responsible for reviewing reports and videos of incidents that had taken place in his absence.

Gene Wilson, the security investigator who was responsible for retrieving and saving the video in this matter, was also deposed. According to Wilson, he had very limited experience with the surveillance footage retrieval process. He testified that he had been instructed to retrieve and save at least 15 minutes of video footage surrounding all incidents. However, he did not do the task correctly. According to him, he did not know at the time that he had not completed the process correctly.

It is undisputed that plaintiff did not cite any statute or contract that required Eldorado to preserve the surveillance footage. Rather, plaintiff | „relies on the testimony of Eldorado’s employees that it was the company’s usual practice to preserve at least 15-25 minutes of surveillance video surrounding a fall. Plaintiff did not introduce into the record any written policy to which Eldorado allegedly failed to adhere. The record does not indicate that Eldorado had a duty to retrieve and preserve the surveillance footage. Nor is there any showing that Eldorado and its employees intentionally deleted or destroyed the surveillance footage. The testimony indicated that Wilson was inexperienced in the surveillance retrieval/storing process, and that he inadvertently saved only the video recording of the incident, rather than the minutes leading up to the fall and immediately thereafter. The trial court apparently accepted Eldorado’s explanation. Based on this record, we cannot say that the trial court abused its discretion in failing to apply an adverse presumption based on spoliation.

Summary Judgment

Plaintiff also contends the district court erred in granting summary judgment in favor of defendants. She argues that the court erred in finding that she failed to meet her burden of proving that defendants had constructive notice of the spill.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). A genuine issue of material fact is one as to which reasonable persons could disagree. Argonaut Great Cent. Ins. Co. v. Hammett, 44,308 (La.App.2d Cir.6/3/09), 13 So.3d 1209, unit denied, 2009-1491 (La.10/2/09), 18 So.3d 122.

When a motion for summary judgment is properly made and supported, the adverse party may not rest on the mere allegations or denials of his pleading, but he must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967(B). This requires the plaintiff to make a positive showing of evidence creating a genuine issue as to an essential element of her claim; mere speculation is not sufficient. Babin v. Winn-Dixie La., Inc., 2000-0078 (La.6/30/00), 764 So.2d 37; Cavet v. Louisiana Extended Care Hosp., 47,141 (La.App.2d Cir.5/16/12), 92 So.3d 1122. If the adverse party fails to produce the required factual support to show that she will be able to meet her evidentiary burden at trial, there is no genuine issue of material fact and summary judgment is appropriate. LSA-C.C.P. art. 966(C)(2); Caret, supra; Russell v. Eye Associates of Northeast La., 46,525 (La.App.2d Cir.9/21/11), 74 So.3d 230.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Argonaut Great Cent. Ins. Co., supra. Summary judgments are favored under Louisiana law; however, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and doubt must be resolved in the opponent’s favor. LSA-C.C.P. art. 966(A)(2). Argonaut Great Cent. Ins. Co., supra.

Imposition of liability against a merchant for a patron’s injuries resulting from an accident on the merchant’s premises is governed by the | ^merchant liability statute, LSA-R.S. 9:2800.6. Davis v. Wal-Mart Stores, Inc., 2000-0445 (La.11/28/00), 774 So.2d 84; Carney v. Eldorado Resort Casino Shreveport, 48,761 (La.App.2d Cir.1/29/14), 132 So.3d 546. LSA-R.S. 9:2800.6 provides, in pertinent part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages ... sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
lain addition to proving the elements set forth in LSA-R.S.

9:2800.6(A) and (B), a plaintiff must come forward with positive evidence showing that the damage-causing condition existed for some period of time and that such time was sufficient to place a merchant defendant on notice of its existence. White v. Wal-Mart Stores, 97-0393 (La.9/9/97), 699 So.2d 1081; Williams v. Piggly Wiggly, 49,010 (La.App.2d Cir.5/14/14), 138 So.3d 1260. Mere speculation or suggestion is not enough to meet the stringent burden imposed upon a plaintiff by the statute governing negligence claims against merchants. Finley v. Racetrac Petroleum, Inc., 48,923 (La.App.2d Cir.4/9/14), 137 So.3d 193; Hubbard v. AP3 Invs., L.L.C., 43,673 (La.App.2d Cir.11/19/08), 997 So.2d 882.

In White v. Wal-Mart Stores, supra, the supreme court stated:

Though there is no bright line time period, a claimant must show that ‘the condition existed for such a period of time[.]’ Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of some time period. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall. This is not an impossible burden.

Id., 699 So.2d at 1084-85 (footnote omitted).

In the instant case, plaintiff testified that she was in the process of walking out of the restaurant when one of her feet slipped. She also testified that she did not know the identity of the substance in which she | flipped, and she had not seen anything on the floor prior to her fall. Plaintiff also admitted that she did not know how long the substance had been on the floor, and she did not know whether or not defendants had a reasonable opportunity to clean the spill before she slipped and fell.

Annette Bryant, a cook at the restaurant, testified by deposition that she was attending the buffet approximately three feet from the area of plaintiffs fall. She stated that she did not witness plaintiffs fall, she did not see the substance in which plaintiff fell, and she did not see anything on the floor before, during or after the fall. Bryant also stated that pedestrian traffic in the buffet area was “kind of steady” that evening; however, she did not see anyone else slip, nor did she hear anyone complain that any items/substances were on the floor. Bryant further testified that if she had seen anything on the floor, then, as per Eldorado’s policy, she was required to come from behind her station and stand at the location of the spill/hazardous item until someone placed a “wet floor” sign in the area. FSS would have been alerted to clean the spill.

Jonathan Jenkins, the Eldorado security officer who prepared the “Guest Injury/Mishap Record” of the fall, also testified via deposition. In the incident report, Jenkins noted:

The guest suffered a slip & fall while walking through by the salad en route to the exit. The guest and her husband had eaten their meal and were leaving when she accidently stepped in some food someone had dropped onto the floor.

During his testimony, Jenkins described the substance in which plaintiff slipped as “pretty much like a salad type thing. Like a potato salad” and h/‘had yellow in it and green.” Jenkins also testified that none of the employees he interviewed concerning the incident recalled seeing anything on the floor prior to plaintiffs fall. He further stated that he was not aware of any employee, of either Eldorado or FSS, who saw the hazard prior to plaintiffs fall. According to Jenkins, he did not know how long the item had been on the floor or how it got there; he merely “assumed” that another guest had dropped it.

Teresa Shirley also testified via deposition. She stated that, as a part of their safety training, Eldorado employees were instructed to be on the lookout for food spills and hazards. She stated that she had not received any information to indicate that Eldorado employees were aware that something was on the floor prior to plaintiffs fall.

Victor Vargas, an FSS employee, testified that FSS had 87 employees working at Eldorado. He stated that the FSS employees were responsible for cleaning the buffet area primarily at night. Vargas also testified that FSS cleaned spills only when called to do so by Eldorado employees. He further stated that he was not aware of any FSS employee who saw a hazard on the floor prior to plaintiffs fall on the evening in question. However, an FSS employee cleaned the spill after the incident.

The video footage depicting plaintiffs fall was played for some of the employees during their depositions. None of the employees testified that he or she saw the substance in which plaintiff slipped. Walter Patton, one of Eldorado’s security investigators, expressed his belief that based on the location of plaintiffs foot before the fall and where her body landed, she, | minore than likely, landed on top of the substance on which she slipped.

After reviewing this record, we find that plaintiffs testimony, accompanied by the security report, established that some type of food item/substance was on the floor at the time of plaintiffs fall. However, the evidence did not establish any temporal element tending to prove that the food item/substance had been on the floor for any specific amount of time. Our jurisprudence clearly establishes that a claimant who simply shows that the condition existed, without an additional showing that the condition existed for some time before the fall, has not carried the burden of proving constructive notice as mandated by LSA-R.S. 9:2800.6. Additionally, the testimony established that traffic in and around the buffet area was “steady” that evening, no one reported seeing anything on the floor and no one slipped in any substance. Accordingly, we find that the evidence submitted by plaintiff was insufficient to establish constructive notice. Thus, this record supports the district court’s conclusion that Eldorado and FSS were entitled to summary judgment as a matter of law.

CONCLUSION

For the reasons set forth herein, the grant of summary judgment in favor of defendants, Eldorado Resort Casino Shreveport and Full Service Systems Corporation, is hereby affirmed. Costs of this appeal are assessed to plaintiff, Martha O. Grantham.

AFFIRMED.


author: LOLLEY, J.

text:
    Delores W. LEE, Plaintiff-Appellee v. FUTURE EXPECTATIONS COMMUNITY CARE SERVICES, LLC, Defendant-Appellant.
    No. 49,478-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Kelvin G. Sanders, for Appellant.
    Bobby L. Culpepper, Jonesboro, for Ap-pellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   LOLLEY, J.

hThe defendant in this matter, Future Expectations Community Care Services, L.L.C., appeals a judgment from the Eighth Judicial District Court, Parish of Winn, State of Louisiana, in favor of Delores Lee. For the following reasons, we affirm the trial court’s judgment and award an additional attorney fee on appeal.

Facts

Delores Lee was an employee of Future Expectations Community Care Services, L.L.C. (“Future Expectations”), and in that capacity provided in-home medical care to its patients. On January 3, 2012, while in the home of a patient, Lee lifted the patient and injured her back at about 10:45 a.m. She was not wearing a back brace.

According to Future Expectations, Lee did not report the injury, despite a company policy that injuries be reported within 20 minutes of occurrence. Lee claims that when she was injured, she felt a “little twinge” in her back, but did not believe it was significant. Not knowing the extent of her injury, Lee went to another client’s home later that afternoon. That evening at approximately 7:30 p.m., when her pain had greatly increased, Lee eventually reported her injury to her supervisor, Leonard Collins. He purportedly reminded Lee of the company policy of reporting injuries and asked her to contact the administrator, Beverly Raymo. Future Expectations claims Lee refused to report the injury, and Collins ended up reporting the injury to Raymo.

On the following day, Raymo instructed Collins to contact Lee and 12inform her she was terminated for violating the company’s aceidenVinjury reporting policy. Lee claims she was not told why she was terminated — she assumed it was because she was injured on the job.

Ultimately, Lee filed a claim for workers’ compensation benefits,- and that matter was settled. This lawsuit for retaliatory discharge ensued. After a trial of the matter, the trial court entered judgment in Lee’s favor, finding that a retaliatory discharge had been made. Lee was awarded one year’s wages (i.e., $20,280.00) together with $5,000.00 in attorney fees and costs of the proceeding. Future Expectations appeals the judgment.

Discussion

On appeal, Future Expectations brings one assignment of error, submitting that the trial court erred by finding that it terminated Lee’s employment in retaliation for her filing a workers’ compensation claim and awarding damages, attorney fees and costs. Future Expectations maintains that Lee was an “at will” employee who was terminated for knowingly and willfully violating two of her employer’s company policies: failure to wear a back brace and failure to report her injury as required. It also argues that Lee failed to prove by a preponderance of the evidence that it retaliated against her, as required by La. R.S. 23:1361.

Louisiana R.S. 23:1361 B addresses the issue of retaliatory discharge and provides as follows:

No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions of this Chapter or under the law of any state or of the United States. Nothing in this Chapter shall prohibit an employer from discharging an employee who because of injury can no longer perform the duties of his | ^¡employment.

The purpose of La. R.S. 23:1361 B is “to prevent unjust dismissals and to allow employees to exercise their right to workers’ compensation benefits without fear of retaliatory action by their employers.” Ducote v. J.A. Jones Const. Co., 471 So.2d 704, 707 (La.1985); Hooker v. Wal-Mart Stores, Inc., 38,350 (La.App.2d Cir. 04/07/04), 870 So.2d 1131, writ denied, 2004-1420 (La.09/24/04), 882 So.2d 1142. Even so, the employee bears the burden of proving by a preponderance of the evidence that he was terminated for that reason. Hooker, supra; Lewis v. Willamette Indus., Inc., 537 So.2d 780 (La.App. 2d Cir.1989), writ denied, 540 So.2d 331 (La. 1989). When the employer offers another justification in connection for firing a workers’ compensation claimant, the trial court must ascertain the employer’s true reason or motive based on the facts presented. An employer cannot circumvent the statute by stretching the facts out of context or inventing an excuse for firing a compensation claimant. Lewis, supra at 783.

The trier-of-fact’s function in a retaliatory discharge claim such as this is to ascertain the true motive for the employee’s discharge. King v. Career Training Specialists, Inc., 35,050 (La.App.2d Cir. 09/26/01), 795 So.2d 1223. A determination that a retaliatory discharge was made concerns a factual conclusion that may not be disturbed by this court in the absence of manifest error. Orr v. Bancroft Bag, Inc., 29,046 (La.App.2d Cir.01/22/97), 687 So.2d 1068.

Here, Lee was terminated shortly after her injury occurred, but before |4she actually had filed a claim with the Office of Workers’ Compensation. However, the fact that Lee had not yet filed a claim for benefits does not preclude recovery for her on an action for retaliatory discharge under La. R.S. 23:1361. As noted in King, supra at 1226:

The statute’s use of the term “asserted” rather than the term “filed” shows that the legislature intended the protections of this statute to extend to those injured employees who had not yet brought a formal claim, via form 1008, for benefits. To interpret the statute otherwise would allow employers to fire injured employees because of their injury so long as the firing was accomplished before the employee could formally file a claim.

In its reasons for judgment, the trial court determined that the circumstantial evidence at trial was sufficient to prove that the “real reason that [Lee] was discharged ... was that she was going to assert a claim for benefits under the workers’ compensation statute.” That finding was not manifestly erroneous.

Here, the facts tend to weigh against Future Expectations. The basis for Lee’s discharge arose only upon the work-related injury of the employee and the coming into existence of Lee’s claim for workers’ compensation benefits from Future Expectations. In fact, Future Expectations has never wavered from its assertion that Lee was fired soley because she failed to adhere to its company policy by reporting her injury within 20 minutes of its occurrence. At the trial of the matter, Raymo admitted that had Lee not been injured on the job, she would not have been terminated. Furthermore, the evidence gives indication that Future Expectations had knowledge of the extent of Lee’s injury— according to Lee, she informed Raymo the next day that she was confined to her bed as a result. If Lee was indeed terminated | sSimply for failing to report her injury within 20 minutes, such a reason is directly related to a possible workers’ compensation claim. The basis for Lee’s termination was her injury, which was also the basis for her workers’ compensation claim.

It appears that the trial court, hearing the evidence at trial, detected a retaliatory motive for Lee’s termination. Future Expectations’ policy does not allow an employee to exercise her rights for workers’ compensation benefits without fear of termination. The trial court’s determination that Future Expectations’ motive was retaliatory was not in error, and Future Expectations’ assignment of error is without merit.

Lee’s Answer to Appeal

Lee has filed an answer to the appeal, noting that the trial court awarded her attorney’s fees and costs pursuant to La. R.S. 23:1361 C. In her answer to appeal, Lee requests additional attorney’s fees incurred by her on the appeal.

A plaintiff who is entitled to an attorney fee by statute or contract, and who actually receives one at trial, is ordinarily entitled to an additional attorney fee for handling the defendant’s unsuccessful appeal. Frith v. Riverwood Inc., 2004-1086 (La.01/19/05), 892 So.2d 7; Transpetco I Joint Venture v. Clearview Investments, Ltd., 48,987 (La.App.2d Cir.05/14/14), 139 So.3d 49. Considering the issues at hand and the amount of the fee already awarded for the trial, we find an additional award of $2,000.00 is reasonable for handling the appeal.

AFFIRMED AND ADDITIONAL ATTORNEY FEE AWARDED.