author: PETTIGREW, J. McCLENDON, J.,

text:
    Randy K. SCHEXNAYDRE v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2011 CA 1420.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2012.

      G. Brice Jones, Ross F. Lagarde, Paul D. Hesse, Slidell, LA for Plaintiff-Appellee Randy K. Schexnaydre.
    Laura C. Hopes, Baton Rouge, LA, for Defendant-Appellant State of Louisiana, Department of Public Safety and Corrections, Office of Motor Vehicles.

      Before PARRO, KUHN, PETTIGREW, McClendon, and welch, jj.
   PETTIGREW, J.

| ?The State of Louisiana, through the Department of Public Safety and Corrections, Office of Motor Vehicles (“OMV”), seeks review of a district court judgment ordering it to reinstate Randy Schexnay-dre’s driver’s license. For the reasons that follow, we affirm the district court’s judgment.

FACTS AND PROCEDURAL HISTORY

On May 15, 2010, Louisiana State Troopers Jeremy Price and Huey Galmiche observed plaintiff, Randy Schexnaydre, asleep at the wheel of his vehicle, with his foot on the brake, at the intersection of U.S. 11 and Interstate 12. The troopers woke Mr. Schexnaydre and asked him to step out of the vehicle. Trooper Price noticed Mr. Schexnaydre displaying signs of impairment, including bloodshot eyes, unsteady balance, and shaking. Trooper Price asked Mr. Schexnaydre if he was currently taking prescription medication, to which Mr. Schexnaydre responded that he was taking Methadone.

Mr. Schexnaydre consented and submitted to the “Standardized Field Sobriety Test” (“SFST”), which was administered by Trooper Price in accordance with La. R.S. 32:661. Trooper Price determined that Mr. Schexnaydre failed the SFST and arrested him for operating a vehicle while intoxicated, in violation of La. R.S. 14:98, and for simple obstruction of a highway of commerce, in violation of La. R.S. 14:97.

Mr. Schexnaydre was transported to the Slidell Police Department, where Trooper Price advised him of his constitutional right to refuse chemical testing and of the consequences of failing to submit to the testing, including suspension of his driver’s license, as required by La. R.S. 32:661(C). Mr. Schexnaydre indicated that he understood his rights by signing the “Arrestee’s Rights Form.” He submitted a breath sample to test for chemical intoxication. Mr. Schexnaydre’s breath sample registered a blood alcohol content of 0.000 grams percent on the Intoxilyzer 5000.

Subsequently, Trooper Price requested that Mr. Schexnaydre submit a urine sample to test for abused substances and/or controlled dangerous substances. In response, Mr. Schexnaydre asked whether he had an option to refuse the test and whether he would be required to pay for the test. Trooper Price “advised [Mr. IsSchexnaydre] if he wanted to take the [urine] test, he could take it, that was up to him.” Trooper Price, however, did not advise Mr. Schexnaydre that his license would be revoked for failure to submit to the urine test. Thereafter, Trooper Price testified that Mr. Schexnaydre advised that “if it’s my right to refuse, then I’m going to refuse.” As a-result of his refusal to submit the requested urine sample, the OMV subsequently suspended Mr. Schex-naydre’s Class D driver’s license for a period of 365 days in accordance with La. R.S. 32:667(B)(2)(a).

Pursuant to La. R.S. 32:667, Mr. Schex-naydre timely requested an administrative hearing to contest the suspension of his license for refusal to submit to a chemical test for intoxication. On January 20, 2011, the administrative law judge affirmed the suspension.

On February 8, 2011, Mr. Schexnaydre filed a petition for judicial review with the district court. See La. R.S. 32:668(C). Following a hearing on March 22, 2011, the district court ordered the OMV to reinstate Mr. Schexnaydre’s driving privileges.

The OMV has appealed the district court’s judgment. The OMV contends that although Mr. Schexnaydre voluntarily submitted to the breath test, he was subject to a mandatory suspension of his driving privileges for refusing to submit to the urine test.

DISCUSSION

On review of the administrative suspension of a driver’s license pursuant to the implied consent law, the district court is required to conduct a trial de novo to determine the propriety of the suspension. Millen v. State Dept. of Public Safety and Corrections, 2007-0845, p. 5 (La.App. 1 Cir. 12/21/07), 978 So.2d 957, 961. Such a trial is a civil action amenable to all of the ordinary rules of procedure and proof. Further, the fact that this is an action for judicial review of a decision resulting from an administrative hearing does not change the burden of proof placed by law on the plaintiff. Millen, 2007-0845 at 6, 978 So.2d at 961.

Louisiana Revised Statutes 32:661(A)(1) provides, in pertinent part, as follows:

Any person ... who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent ... to a |4chemical test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining the alcoholic content of his blood, and the presence of any abused substance or controlled dangerous substance ....

Louisiana Revised Statutes 32:661(A)(2)(a) sets forth the following parameters for testing:

The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person, regardless of age, to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of either alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R.S. 40:964. The law enforcement agency by which such officer is employed shall designate in writing and under what conditions which of the aforesaid tests shall be administered.

See also Butler v. Department of Public Safety and Comctions, 609 So.2d 790, 792 (La.1992) (“all licensed drivers on state highways ... have impliedly consented to any number of tests to determine intoxication.”)

Louisiana Revised Statutes 32:661(C) provides as follows with regard to the procedure for informing an arrested person of his rights concerning testing:

(1) When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first read to the person a standardized form approved by the Department of Public Safety and Corrections. The department is authorized to use such language in the form as it, in its sole discretion, deems proper, provided that the form does inform the person of the following:
(a) His constitutional rights under Miranda v. Arizona.
(b) That his driving privileges can be suspended for refusing to submit to the chemical test.
(c) That his driving privileges can be suspended if he submits to the chemical test and such test results show a blood alcohol level of 0.08 percent or above or, if he is under the age of twenty-one years, a blood alcohol level of 0.02 percent or above.
(d) That his driving privileges can be suspended if he submits to the chemical test and the test results show a positive reading indicating the presence of any controlled dangerous substance listed in R.S. 40:964.
(e) The name and employing agency of all law enforcement officers involved in the stop, detention, investigation, or arrest of the person.
(f) That refusal to submit to a chemical test after an arrest for an offense of driving while intoxicated if he has refused to submit to such test on two previous and separate occasions of any previous such violation is a crime under the provisions of R.S. 14:98.2 and the penalties for such crime are the same as the penalties for first conviction of driving while intoxicated.
|⅞(2) In addition, the arresting officer shall, after reading said form, request the arrested person to sign the form. If the person is unable or unwilling to sign, the officer shall certify that the arrestee was advised of the information contained in the form and that the person was unable to sign or refused to sign.

“In each instance that a person submits or refuses to submit to a chemical test, after being advised of the consequences of such refusal or submission as provided for in R.S. 32:661(C), the officer shall submit a report in a form approved by the secretary,” which requires the officer to certify, among other things, that “he had followed the procedure in informing such person of his rights under R.S. 32:661(C), and that such person had submitted to the test or refused to submit to the test upon the request of the officer.” La. R.S. 32:666(B). Louisiana Revised Statutes 32:667 provides for the seizure of a person’s driver’s license and the suspension of his driving privileges if he “refuses to submit to an approved chemical test for intoxication” when the grounds set forth in La. R.S. 32:667 exist. La. R.S. 32:667(A) & (B).

On appeal, the OMV contends that Mr. Schexnaydre is subject to a mandatory suspension of his driving privileges based on his refusal to submit to a chemical test for intoxication. The OMV notes that Trooper Price arrested Mr. Schexnaydre for driving while intoxicated pursuant to La. R.S. 14:98. Trooper Price advised Mr. Schexnaydre of his rights, including reading the standardized “Rights Relating to the Chemical Test for Intoxication” form to Mr. Schexnaydre. Thereafter, Mr. Schexnaydre signed the rights form acknowledging that he understood his rights.

The OMV avers that although Mr. Schexnaydre submitted to the breath test, he refused to submit to the urine test. The OMV contends that the language in La. R.S. 32:661 is clear that, by the use of the phrase “test or tests,” a person suspected of operating a vehicle while under the influence of alcoholic beverages or abused/controlled dangerous substances can be subject to more than one chemical test. The OMV concludes that submission to and passing of a breathalyzer test should not give a motor vehicle operator the right to refuse, without consequences, additional tests for abused or controlled dangerous substances.

| ^Louisiana Revised Statutes 32:661 authorizes law enforcement officers to administer multiple tests to determine whether a driver is under the influence of alcoholic beverages, abused substances, and/or controlled dangerous substances. As noted by the OMV, law enforcement officers are faced with situations where a motorist may have consumed alcoholic beverages and/or drugs. Although the investigating officer has authority to use multiple tests, the driver must be informed of the consequences of his failure to submit to the tests. See State v. Edwards, 525 So.2d 308, 313 (La.App. 1 Cir.1988).

We recognize that it is within the discretion of the investigating officer to select the appropriate test or tests to determine the source of impairment. However, we further note that La. R.S. 32:661(0(1) clearly mandates, by the use of the word shall, that when a law enforcement officer requests that a person submit to a chemical test, he shall first read to the person a standardized form approved by the Department, which informs that person of his rights. As stated by the Louisiana Supreme Court in State v. Alcazar, 2000-0536, p. 8 (La.5/15/01), 784 So.2d 1276, 1281, “We find that any holding which allows the test results to be admitted into evidence when a defendant has not first been advised that he had a right to refuse to the test, effectively renders [La. R.S.] 32:661(0(1) and 32:666(A) meaningless.”

Prior to the breathalyzer test being administered, Trooper Price read the approved form, which included all the requirements set forth in La. R.S. 32:661(0(1), to Mr. Schexnaydre. Although the Department’s form properly advises a driver of the consequences arising from his failure to submit to the first chemical test sought to be administered, the form is ambiguous and contains inherent contradictions if utilized to administer subsequent tests, insofar as the form continually references a singular test. While the introductory paragraph of the form provides that the driver may be required “to submit to a chemical test or tests,” the remainder of the one page form references “the chemical test” a number of times and the consequences for failure to submit to “the chemical test.” Specifically, it indicates that if the driver “refuse[s] the chemical |7test,” his driving privileges “shall be suspended for ... one year if this is [his] first refusal.” Mr. Schexnaydre also notes that the only other test referenced on the form is one the driver can choose to take “at [his] own expense, if [he] so desire[s].”

Mr. Schexnaydre avers that his understanding of the form only required him to submit to “the test” or face suspension of his license. He notes that he submitted to the breathalyzer chemical test, and the results of that test were negative. Mr. Schexnaydre, apparently confused due to the ambiguity in the form, asked Trooper Price whether he had an option to take the urine test and whether he would be required to pay for the test. Although Trooper Price informed Mr. Schexnaydre that taking the test “was up to him,” Trooper Price did not advise Mr. Schex-naydre that his license would be revoked for failure to submit to the urine test or who would bear the cost of the additional test.

In Swan v. Department of Public Safety, 311 So.2d 498 (La.App. 4 Cir.1975), officers instructed the offending driver of his right to counsel pursuant to Miranda v. Arizona, but did not make it clear that the right to counsel had no application under the implied consent statute. In affirming a district court’s judgment enjoining and prohibiting the Department of Public Safety from suspending the driver’s license because the driver refused to submit to a chemical test prior to speaking to his lawyer, the fourth circuit, after noting inherent contradictions in the form utilized by the officers, reasoned:

Here it appears that the commingling of the information concerning the demands of the implied consent statute with the Miranda warnings resulted in [the driver] asserting a right he had earlier been told he was free to assert.
| ^Apparently [the driver] misconceived the warning and thought he was entitled to consult an attorney. [The driver’s] request came after he had first been told by Officer Heavey without qualification that he had a right to consult an attorney. Either Officer Heavey or Ortiz should have then elaborated by stating the right to counsel was inapplicable to the blood alcohol test, but applied only to the criminal charge of driving while intoxicated. Under such circumstance [sic] [the driver] is not deemed to have refused to submit to a chemical test within contemplation of [La. R.S.] 32:661 et seq.

Swan, 311 So.2d at 500. Additionally, “so as to prevent any confusion concerning a defendant’s rights,” this court has recognized that “[a] defendant is entitled to certain warnings clarifying that he has no constitutional right to refuse to submit to such a test.” Edwards, 525 So.2d at 313 n. 5.

Under these circumstances, due to the ambiguity in the form, coupled with Trooper Price’s response to Mr. Schexnaydre’s inquiry regarding his right to refuse the urine test, we conclude that Mr. Schexnay-dre was not adequately informed regarding the consequences from his failure to submit to the urine test. Accordingly, the district court did not err in ordering the OMV to reinstate Mr. Schexnaydre’s license.

DECREE

For the above and foregoing reasons, we affirm the district court’s judgment and assess appeal costs in the amount of $503.40 against the OMV.

AFFIRMED.

McCLENDON, J., dissents and assigns reasons.

WELCH, J., dissents for reasons assigned by McCLENDON, J.

McCLENDON, J.,

dissents and assigns reasons.

lil respectfully disagree with the majority’s conclusion that Mr. Schexnaydre was not adequately informed regarding the consequences arising from his failure to submit to the urine test.

Louisiana Revised Statutes 32:661 authorizes law enforcement to administer multiple tests to determine whether a driver is under the influence of alcoholic beverages, illegal substances, and/or controlled dangerous substances. When an officer requests the driver to submit to a chemical test, the officer is required to read the standardized form approved by the Department. Herein, prior to submission of any test being administered, Trooper Price read the approved form, which included all requirements set forth in LSA-R.S. 32:661(C)(1) and tracked the language set forth in the statute.

Although Mr. Schexnaydre avers that the “Rights Relating to the Chemical Test for Intoxication” form is ambiguous because it refers to “the test” as opposed to “a test,” the introductory language plainly indicates that the driver can be required to submit to “test or tests,” specifically including tests of his “blood, breath, urine or other bodily substances.” The introductory language does not limit the investigating officer to utilizing only one test to determine if the driver is intoxicated and provides the driver with notice that he may be asked 12to submit to multiple tests. Further, the waiver need not be an intelligent waiver, but merely voluntary. State v. Clark, 446 So.2d 293, 297 (La.1984).

Prior to any test being administered, Trooper Price informed Mr. Schexnaydre of the consequences for failing to submit to the referenced testing. Trooper Price also testified that Mr. Schexnaydre never conveyed to him that he did not understand his rights. Moreover, nothing in the record suggests that Trooper Price intentionally misled or deceived Mr. Schexnaydre. Accordingly, I conclude that Trooper Price reasonably conveyed the implied consent warnings in accordance with statutory requirements. Therefore, I would reverse the district court judgment ordering the OMV to reinstate Mr. Schexnaydre’s driving privileges.

      . On February 16, 2011, the district court rendered an ex-parte temporary restraining order preventing the OMV from enforcing the suspension of Mr. Schexnaydre’s driver’s license.

      . The OMV avers that the breathalyzer is the least invasive test, but notes that the breathalyzer does not determine if a driver is under the influence of an abused or controlled dangerous substance.

      . Moreover, Mr. Schexnaydre avers that the "Certification of Arrest” form, a separate form forwarded to the OMV, did not comply with La. R.S. 32:666(B), insofar as the statute requires a separate report be made "[i]n each instance” of test administration or "[i]n each instance” of test refusal. Mr. Schexnaydre notes that in this instance, only one "Certificate of Arrest” form was utilized. He also avers that because only one "Certificate of Arrest” form was used, the form itself is ambiguous. The executed form reflects that Mr. Schexnaydre submitted to and passed the chemical test and it includes only one blank for test results, which reflects a 0.00 reading from the breathalyzer test and makes no reference to the "refused” test. However, the form also acknowledges Mr. Schexnaydre’s receipt of a temporary license the arresting officer’s seizure of Mr. Schexnaydre’s license, and Mr. Schexnaydre’s receipt of his notice of rights to have a hearing and the requirements thereto (all apparently arising from Mr. Schexnaydre’s failure to submit to the urine test). Mr. Schexnaydre concludes that had separate forms been utilized as required by La. R.S. 32:666(B), there would have been no such ambiguity or internal inconsistency in the form.

      . While the rights form could be drafted more artfully, I cannot say it is legally insufficient. Further, given that the form tracks the language of LSA-R.S. 32:661(C)(1), this issue may be ripe for consideration by the legislature.


source: Caselaw Access Project

author: HIGGINBOTHAM, J.

license: Public Domain

text:
    Gail WOLF v. CITY OF BATON ROUGE, EBRP Mosquito Abatement.
    No. 2012 CA 0155.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2012.

      Gail Wolf, Zachary, LA, Plaintiff-Appellant, In Proper Person.
    Mary E. Roper, Eugene A. Booth, Baton Rouge, LA, for Defendant-Appellee, City of Baton Rouge/Parish of East Baton Rouge, EBRP Mosquito Abatement.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

| ;>This appeal arises out of a disputed claim for workers’ compensation. For the following reasons, we affirm the judgment rendered by the Office of Workers’ Compensation judge (WCJ).

BACKGROUND

Gail Wolf, claimant-appellant, was injured in a motor vehicle accident on May 5, 2009, during the course and scope of her employment as an Inspector I with the City of Baton Rouge/Parish of East Baton Rouge, in the department for Mosquito Abatement and Rodent Control (City/Parish). (R. 4-5, 80) Dr. Jorge E. Isaza treated Ms. Wolf for neck, back, shoulder, and knee pain and released her for modified sedentary duty on a full-time basis in May 2010. (R.161, 169, 206-208) Ms. Wolfs work restrictions included no repetitive lifting over 10 pounds, occasional lifting up to a maximum of 15 pounds, and no repetitive bending, but she could drive a truck at work. (R. Ex. C/P5, C/P9, C/P 12 and C/P18)

In mid-May 2010, Ms. Wolf missed five consecutive days of work without providing a doctor’s excuse as required by City/Parish personnel rules. Shortly thereafter, a dispute arose between Ms. Wolf and the City/Parish over whether Ms. Wolfs treating physician had modified her work restrictions to allow driving while on the job. (R.206-209, 288) The City/Parish contends that Ms. Wolfs work restrictions were always accommodated. (R.208-209, 229, 268, 280, 285-286, 290, 293, 296) On May 18, 2010, Ms. Wolf reported for work without her steel-toed boots that were required for her job that included driving a City/Parish vehicle. (R.270, 284) Ms. Wolfs supervisors# sent her home to retrieve her work boots, but she never returned to work. (R. 270-271, 284-285, 294) The City/Parish regarded |sMs. Wolfs actions as grounds for termination due to the abandonment of her job. (R. 273-276, 281-282, 285, 295)

The City/Parish suspended Ms. Wolf without pay on May 25, 2010, and discontinued her Supplemental Earnings Benefits (SEB) as of May 17, 2010. (R. 80, 170,173,178, 249, Ex. P-27, Ex. P-31) Ms. Wolf subsequently filed a disputed claim form in June 2010, claiming that the City/Parish wrongfully terminated her SEB and seeking penalties and attorney’s fees. (R. 4-5) Dr. Isaza modified Ms. Wolfs work restrictions again on June 10, 2010, restricting her to office type activities and no excessive driving. Her restrictions were modified yet again on August 5, 2010, when she was restricted to light sedentary duty and no driving when she took narcotic medications. (R. Ex. C/P18) On August 4, 2010, the City/Parish terminated Ms. Wolfs employment with the City/Parish for abandonment of her job. (R. 80) The WCJ held a hearing on the merits of Ms. Wolfs claim on June 29, 2011. The sole issue before the WCJ was whether Ms. Wolf was entitled to SEB from the date of suspension, May 18, 2010, to the date of the hearing, and if so, whether the City/Parish’s failure to reinstate benefits or to pay benefits was arbitrary and capricious, giving rise to penalties and attorney’s fees. (R. 75, 83) After taking the matter under advisement, the WCJ signed a judgment on July 14, 2011, finding that the City/Parish owed Ms. Wolf for eight weeks of SEB from June 11, 2010 to August 5, 2010, which was the time period that Ms. Wolfs work restrictions were modified to restrict her to office-type activities and no excessive driving. The WCJ further found that the City/Parish had not been arbitrary and capricious in the handling of Ms. Wolfs claim.

Ms. Wolf appealed and filed a pro se brief, contending that the WCJ erred in determining three factual issues that: (1) Ms. Wolf failed to notify the City/Parish |4that she was not returning to work until suitable work within her restrictions was found; (2) Ms. Wolf had relinquished her chance to return to work on May 25, 2010, and (3) Ms. Wolf had abandoned her employment. Ms. Wolfs appellate brief did not elaborate on why the WCJ’s findings were erroneous, but she obviously challenges the WCJ’s conclusion that she was only entitled to SEB for an eight-week period after she was suspended for personnel issues, because she believes that the job the City/Parish wanted her to do (driving to field locations rather than office work) did not comply with her doctor’s restrictions.

LAW AND ANALYSIS

The standard of review for findings of fact in a workers’ compensation case is manifest error. Blanchard v. Federal Exp. Corp., 95-0349 (La.App. 1st Cir.11/9/95), 665 So.2d 11, 13. A claimant is entitled to SEB if the injury has resulted in the employee’s inability to earn wages equal to ninety percent or more of wages at the time of the injury. La. R.S. 23:1221(3)(a). The injured employee bears the burden of proving by a preponderance of the evidence that the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case. Carral v. Winn-Dixie Louisiana, Inc., 2005-1482 (La.App. 1st Cir.6/9/06), 938 So.2d 799, 801. If this burden is met, the burden shifts to the employer to demonstrate that jobs were offered or are available and the claimant is physically able to perform them. Blanchard, 665 So.2d at 13. A claimant is not permitted to choose not to work and still collect SEB when she is physically able to work and jobs are available. Id. Additionally, a claimant is not entitled to SEB when her inability to earn wages equal to at least ninety percent of her pre-injury | ¡{wages is due to circumstances other than her work-related injury. Carral, 938 So.2d at 801. The findings of fact and the determination of whether a claimant has satisfied her burden of proof in a workers’ compensation case are considered on appeal under the manifest error standard of review. Id.

Based on all of the evidence in the record, we cannot say that the WCJ was manifestly erroneous in finding that Ms. Wolf was only entitled to SEB for an eight-week period, because that was the only time period at issue when Ms. Wolfs work restrictions prevented her from driving. Thus, other than during that eight-week period, the City/Parish job that was always available to Ms. Wolf never required her to do any duties in derogation of those approved by her physicians. As such, she was not entitled to refuse to return to work or attempt to perform the work on that basis. See Coleman v. Walter Industries, Inc./Jim Walter Homes, 2010-1145 (La.App. 1st Cir.2/11/11), 56 So.3d 1258, 1262 (a claimant is not entitled to collect SEB when her treating physician has released her for light duty employment, the employer offers work within her restrictions at the same wage and hours, but the claimant refuses to accept the work or refuses to attempt to perform the work). See also Fusilier v. Slick Const. Co., 94-11 (La.App. 3d Cir.6/1/94), 640 So.2d 788, 791.

We conclude, as did the WCJ, that Ms. Wolfs work injury is not what prevented her from working or earning at least ninety percent of her pre-injury wages (except during the eight-week period where her restrictions were different from the requirements for the available job). Rather,' it was her suspension and termination for violation of City/Parish personnel policies that prevented her from working. Furthermore, even if Ms. Wolfs injuries can be said to have prevented her from earning ninety percent or more of her pre-injury wages, the City/Parish carried its burden of proving that at all times until Ms. Wolfs work restrictions were modified for that particular eight-week period, Ms. Wolfs job with the | fiCity/Parish was available and met all of her medical restrictions. Thus, there is no reason that Ms. Wolf could not have continued to work for the City/Parish, but for her suspension and termination from her employment with the City/Parish. We also find that the City/Parish reasonably controverted Ms. Wolfs claims and that its actions were neither arbitrary nor capricious. Accordingly, we find no error in the WCJ’s judgment.

CONCLUSION

For these reasons, the WCJ judgment is affirmed. Appeal costs are assessed against claimant-appellant, Gail Wolf.

AFFIRMED.

      . Prior to May 2010, the City/Parish accommodated Ms. Wolf's work restrictions by allowing her to do office work instead of driving to inspection sites. (R. 208)

      . The parties stipulated that workers’ compensation indemnity benefits and medical expenses were paid by the City/Parish from the date of injury through May 18, 2010. (R. 80-82)

      . In its brief, the City/Parish attempted to raise an assignment of error contesting the WCJ’s award of SEB for eight weeks; however, the City/Parish failed to comply with La. Code Civ. P. art. 2133, which requires an appellee who desires to have the judgment modified, revised, or reversed to file either an appeal or answer to appeal not later than fifteen days after the return date or the lodging of the record, whichever is later. The City/Parish failed to do so and thus, the issue of whether Ms. Wolf was entitled to any SEB has not been properly presented to this court.


author: McCLENDON, J.

text:
    Donald WILLIAMS, III v. THE LIBRARY, Fre-Mon, Inc. and Donovan Fremin.
    No. 2012 CA 0220.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2012.
    Rehearing Denied Dec. 17, 2012.

      James M. Williams, Alanah 0. Hebert, Metairie, LA, for Plaintiff/Appellant Donald Williams, III.
    Martin S. Triche, Sarah A. Legendre, Napoleonville, LA, for Defendant/Appellee The Library, Fre-Mon, Inc. and Donovan Fremin.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   McCLENDON, J.

12Ponald Williams, III appeals a trial court judgment that dismissed his suit against his former employer pursuant to an exception of prescription. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Williams fax-filed a Petition for Damages against his former employer, Fre-Mon Inc. d/b/a The Library, on July 22, 2011, alleging that he was terminated “[sjometime in July 2010” by his employer because of his race. The petition indicates that Mr. Williams was terminated prior to July 22, 2010, but that Mr. Williams did not learn of the alleged racial animus until July 22, 2010. In response, his former employer filed an exception raising the objection of prescription because Mr. Williams filed his petition for damages more than a year after his termination from employment.

A hearing was held on the employer’s exception on November 7, 2011. At the hearing, the parties stipulated that Mr. Williams was terminated prior to July 17, 2010 and that Mr. Williams suspected that he was fired due to his race on July 22, 2010, allegedly when a Facebook post was made by his former supervisor, Donovan Fremin. Following the hearing, the trial court granted the employer’s exception and dismissed Mr. Williams’ case. In so holding, the trial court found that Mr. Williams’ actions were not reasonable insofar as he knew “five days after his termination why he was [allegedly] terminated” and so there was no reason to “choose to wait to exercise his claim [one year and] five days after the termination date.”

Mr. Williams has appealed, asserting that the trial court erred in granting his employer’s exception raising the objection of prescription. Mr. Williams contends that he timely filed his lawsuit within one year from the date on which he discovered the alleged discrimination.

^DISCUSSION

A cause of action based on race discrimination is a delictual action subject to the one-year prescriptive period found in LSA-C.C. art. 3492. The prescriptive period commences to run the day the injury or damage is sustained — i.e., upon the employee’s first notice of an adverse employment action. Eastin v. Entergy Corp., 03-1030, p. 4 (La.2/6/04), 865 So.2d 49, 53-54. Prescription runs against all persons unless they are included in some exception established by law. LSA-C.C. art. 3467.

At the hearing on the exception, the parties acknowledged that the instant suit was filed more than a year from Mr. Williams’ termination. Mr. Williams contends, however, that pursuant to the doctrine of contra non valentem, the prescriptive period did not begin to run from the date of his termination, but began to run on July 22, 2010 — -the date he first learned of the alleged racial animus behind his termination.

The doctrine of contra non valen-tem provides that prescription does not run against one who is ignorant of the facts upon which his cause of action is based and applies an exception to the statutory prescriptive period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues. Eastin, 03-1030 at p. 6, 865 So.2d at 55. Louisiana courts have recognized four limited situations where the doctrine applies. See Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, 211. Each situation allows the courts “to weigh the ‘equitable nature of the circumstances in each individual case’ to determine whether prescription will be tolled.” Carter v. Haygood, 04-0646, p. 12 (La.1/19/05), 892 So.2d 1261, 1268 [quoting R.O.M., Mote, Glover v. Bridges: Prescription — Applicability of Contra Non Valentum Doctrine to Medical Malpractice Actions, 61 Tul. L.Rev. 1541,1545 (1986-1987) ].

The sole argument raised on appeal by Mr. Williams relates to the fourth jurisprudentially recognized situation known as the “discovery rule” which provides that prescription commences on the date the injured party discovers or Lshould have discovered the facts upon which his cause of action is based. Eastin, 03-1030 at p. 7, 865 So.2d at 55. Under the discovery rule, prescription normally begins to run when a party has “actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort.” Babineaux v. State, ex rel. Dept. of Transp. and Dev., 04-2649, p. 3 (La.App. 1 Cir. 12/22/05), 927 So.2d 1121, 1123. Ignorance of the existence of damages, standing alone, does not interrupt the running of prescription. Vanguard Underwriters Ins. Co. v. Ray’s Plumbing Co., Inc., 312 So.2d 111, 113 (La.App. 1 Cir.1975). An injured party has constructive notice when he possesses information sufficient to incite curiosity, excite attention, or put a reasonable person on guard to call for inquiry. Babineaux, 04-2649 at p. 3, 927 So.2d at 1123. The prescriptive period commences when enough notice to call for an inquiry of a claim exists, not when an inquiry reveals the facts or evidence to sufficiently prove the claim. Babineaux, 04-2649 at p. 5, 927 So.2d at 1125. The doctrine will not exempt a plaintiffs claim from the running of prescription if his ignorance is attributable to his own willfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned. Renfroe v. State ex rel. Dep’t of Transp. and Dev., 01-1646, p. 10 (La.2/26/02), 809 So.2d 947, 953.

In opposition to the employer’s exception, Mr. Williams, via affidavit, stated that he had no idea that “Fremin had racial animus towards him” and that he “learned for the first time, on or about July 22, 2010 [through a post on Face-book], that he was terminated because of his race.” Mr. Williams contends, therefore, that the one-year prescriptive period applicable to his discrimination claim did not begin to run until July 22, 2011 — the date of the Facebook post. Accordingly, Mr. Williams concludes that his suit filed on July 22, 2011, or within one year of when he discovered the alleged racial animus behind his termination, is timely.

The Louisiana Supreme Court addressed contra non valentem in the context of employment discrimination in Eastin v. Entergy Corp., supra. | BTherein, hundreds of plaintiffs filed an age discrimination suit against their former employer. As to eleven plaintiffs, the employer filed an exception raising the objection of prescription because those eleven plaintiffs had been terminated more than one year before suit was filed. The eleven plaintiffs claimed that they could not know of the discrimination until they knew of the alleged pattern of discrimination whereby others were terminated for age-related reasons and after learning of the other suits. Justice Traylor, joined by one other Justice, found that the each of the “[p]lain-tiffs had knowledge of their causes of action upon the date of their respective terminations.” Eastin, 03-1030 at p. 9, 865 So.2d at 57. In reaching this conclusion, the opinion reasoned:

Plaintiffs may not simply sit on their hands and do nothing to investigate their termination and expect their actions to be deemed reasonable. Under the facts of the instant case, where the plaintiffs alleged absolutely no active role in determining if their terminations were for unlawful reasons and made no inquiry into the reasons for their terminations, the plaintiffs’ ] delay in filing suit was not reasonable and does not merit the application of the doctrine of contra non valentem. We find the trial court was correct in granting the defendant’s Exception of Prescription because the petition was prescribed on its face and the plaintiffs further made no effort to rehabilitate their lacking petition at the hearing. Moreover, plaintiffs have alleged no facts which lead this court to believe that they were somehow prevented from filing their suits in a timely manner. Their delay can only be attributed to their own inaction.

03-1030 at p. 8, 865 So.2d at 56. Three Justices concurred in the opinion without giving reasons, and Justices Calogero and Kimball concurred in the result only. In her concurrence, in which Justice Calogero concurred, Justice Kimball indicated that she was “not prepared to burden terminated individuals with investigating and alleging a cause of action within one year when an employer has given the individual seemingly valid reasons for termination.” Justice Kimball opined that such an interpretation “renders Louisiana’s doctrine of contra non valentem moot in discrimination cases.” Nonetheless, she concurred in the result because plaintiffs “waited more than a year after they ‘discovered’ that their termination was a discriminatory act.” Eastin, 865 So.2d at 57. Because there is no majority, however, we recognize that Eastin is of limited precedential value. See Chaney v. Travelers Ins. Co., 259 La. 1, 249 So.2d 181 (1971).

^Nevertheless, contra non valen-tem has always been a judicially created equitable doctrine applied to ameliorate the harshness which would result from the strict application of prescription in certain situations. State Through Div. of Admin, v. McInnis Bros. Const., 97-0742, p. 3 (La.10/21/97), 701 So.2d 937, 940. While Louisiana courts have not hesitated to apply the doctrine of contra non valentem where the circumstances warrant it, it is only to be applied in “exceptional circumstances.” See LSA-C.C. art. 3467, Official Comment (d) and Mclnnis Bros. Const., 97-0742 at p. 3, 701 So.2d at 940. Generally, contra non valentem is applied when a plaintiff is unable to exercise his cause of action when it accrues. Corsey v. State, Dept., of Comctions, 375 So.2d 1319, 1321 (La.1979). Contra non valentem does not suspend prescription when a litigant is perfectly able to bring his claim, but fails to do so. Jenkins v. Starns, 11-1170, p. 20 (La.1/24/12), 85 So.3d 612, 624. Moreover, courts refuse to apply the doctrine when the failure to timely assert a cause of action is based on a lack of diligence by the plaintiff and the facts giving rise to the cause of action are “reasonably knowable” within the prescriptive period. See Renfroe, 01-1646 at p. 10, 809 So.2d at 954 (“While it is indeed unusual that different unrelated parties would own and maintain different portions of one roadway, the fact that the portion of the roadway was owned by some party other [than] the DOTD was ‘reasonably knowable’ by the plaintiff within the prescriptive period.”) and Babineaux, 04-2649 at p. 6, 927 So.2d at 1125 (“Certainly, the cause of action existed, the discovery devices were available, and the hydroplane hazard was ‘reasonably knowable’ by the Babineauxs within one year of the date of the accident.”)

In this case, nothing prevented Mr. Williams from asserting his cause of action within one year from his termination when he had learned of an alleged discriminatory reason three hundred and sixty days before the prescriptive period ran. As such, the principles of equity, justice, and fairness that underpin the doctrine of contra non valentem are absent in this case. See Hendrick v. ABC Ins. Co., 00-2403, p. 16 (La.5/15/01), 787 So.2d 283, 293. Accordingly, this |7case does not present exceptional circumstances that warrant application of the doctrine.

CONCLUSION

For the foregoing reasons, the January 6, 2012 judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff, Donald Williams, III.

AFFIRMED.

      . The Library is a restaurant and bar located in Lafourche Parish, Louisiana. Williams’ supervisor, Donovan Fremin, was also named a defendant.

      . The record shows that the July 22, 2011 fax-filed petition contained a different caption than the original petition that was filed a few days later on July 27, 2011. Both captions are used interchangeably throughout the record.”


author: GAIDRY, J.

text:
    Sandra ROULLIER v. CYPRESS HEALTHCARE MANAGEMENT REGION IV.
    No. 2012 CA 0222.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2012.

      Philip J. Borne, Gregory S. Lacour, Nicholas P. Arnold, New Orleans, LA, for DefendanVAppellant Cypress Healthcare Management Region IV.
    Kenneth L. Riche, Joseph H. Jolissaint, Baton Rouge, LA, for Defendant/Appellee Sandra Roullier.
    Before CARTER, C.J, GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

| gThis is an appeal of a judgment rendered by the Office of Workers’ Compensation (“OWC”), in the Parish of West Feliciana, in favor of the Appellee, Sandra Roullier, and against the Appellant, Cypress Health Care Management Region IV (“Cypress”), awarding Ms. Roullier benefits for an injury she received during the course and scope of her employment with Cypress, including penalties and attorney fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Roullier had been employed with Cypress as a licensed practical nurse for almost ten years up until the injury at issue, which occurred on June 15, 2009. On that date, Ms. Roullier, claims to have tripped on a large ladder that had been left in the medicine room of her workplace, causing her to fall onto her back.

Ms. Roullier contacted orthopedist Dr. Kyle Girod the next day about her injury. She had been seeing Dr. Girod already for two or three years due to existing back pain. He had recommended surgery to her in June of 2007 to alleviate the pain, but Ms. Roullier instead opted to take medication in order to deal with the pain. Despite having pre-existing back pain from L3 to L5 degenerative disc disease, which may have originated from an accident she had twenty years prior, Ms. Roullier claimed it never caused her to miss work; however, since the accident at Cypress, she has not been able to return to work there, nor has she been able to perform work anywhere else, on the recommendation of Dr. Girod.

Compensation was initially paid by Cypress in the amount of $439.56 per week, beginning September 18, 2009, and eventually ending on July 1, |s2010. Ms. Roullier makes no claim for penalties or attorney fees on these payments.

Following the accident, Ms. Roullier received an MRI which showed a new herniation in the L5-S1 disc of her lower spine, as well as new degenerative disc disease. Dr. Girod once again recommended surgery to her on or about September 29, 2009 to fuse the L3 to SI vertebrae, which she declined. Cypress referred Ms. Roul-lier to Dr. Joe Morgan on or about December 16, 2009. His examination agreed with Dr. Girod’s in that there was a new herniation in L5-S1, but disagreed with the surgery recommendation because he did not think the herniation was the result of the fall on June 15, 2009. Dr. Morgan instead recommended a simpler disc dissection procedure. The herniation surgery was not approved by Cypress. Instead, Cypress offered to perform the disc dissection recommended by Dr. Morgan, but Ms. Roullier did not accept.

From that time onward, Ms. Roullier claimed to be in severe pain, and as a result lost nearly 30 pounds. Dr. Girod maintained her on pain medication throughout this period. Then, on May 7, 2010, Cypress sent a letter to Dr. Girod authorizing surgery for the disc dissection only. On July 9, 2010, Dr. Girod obtained the results from Ms. Roullier’s MRI of June 8, 2010, and concluded that she was no longer a candidate for surgery because the herniation had resolved. He referred her to a pain specialist, Dr. Tulsi Bice, for pain management, but Ms. Roullier’s first visit to Dr. Bice was not until July 6, 2011. Ms. Roullier claimed she did not immediately see Dr. Bice because she had hoped the pain would subside on its own, but it did not Cypress terminated benefits to Ms. Roullier on July 1, 2010.

On August 20, 2010, Dr. Girod reached the opinion that Ms. Roullier’s pain and condition worsened. He again recommended surgery ]4and determined that although she had pre-existing conditions, the conditions worsened after her fall of June 15, 2009. Ms. Roullier claims her pain before June 15, 2009 was manageable, but that afterward she was so debilitated by it that she could not perform her job duties or even perform housework. Cypress claims Ms. Roullier’s medical records show that before and after the accident at issue, her pain levels fluctuated from mild to severe, and that Dr. Girod had recommended pain management to her before the accident as well. Cypress therefore claims there is insufficient evidence that Ms. Roullier’s ongoing pain is a direct result from the accident on June 15, 2009.

Following the hearing on November 8, 2011, OWC found in favor of Ms. Roullier and against Cypress, awarding disability benefits at $466.13 per week, beginning from July 1, 2010 to the present, plus interest, payment of all related medical expenses to Drs. Girod and Bice, penalties of $2,000.00 for Cypress’s arbitrary and capricious termination of her benefits, penalties of $2,000.00 for Cypress’s unreasonable delay in authorizing the surgery recommended by Dr. Girod and failure to authorize pain management, and $8,000.00 in attorney fees. Cypress filed a suspen-sive appeal on January 3, 2012.

ASSIGNMENTS OF ERROR

Cypress claims the OWC judge erred in finding: 1. Ms. Roullier to have been temporarily and totally disabled after failing to prove disability by clear and convincing evidence; 2. Ms. Roullier was entitled to pain management treatment when Dr. Girod testified that any remaining pain management treatment was not related to Ms. Roullier’s alleged workplace accident; 3. Cypress acted arbitrarily and capriciously for terminating temporary and total disability benefits in July of 2010 and for failing to | ^authorize pain management treatment recommended by Drs. Girod and Bice, and for awarding a $2,000.00 penalty for each finding.

STANDARD OF REVIEW

The appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-elearly wrong” standard. Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. 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 factfinder, it would have weighed the evidence differently. Merrill v. Greyhound Lines, Inc., 2010-0834 (La.App. 4 Cir. 6/29/11), 70 So.3d 991, 995, unit denied, 2011-1712 (La.10/14/11), 74 So.3d 214. [Citations omitted]

DISCUSSION

Our supreme court has held pre-exist-ing disease or infirmity of an employee does not disqualify a compensation claim if the work-injury aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed. A disabled employee must prove that before the work-injury he had not manifested disabling symptoms, but that commencing with the work-injury the disabling symptoms appeared and there is either medical or circumstantial evidence indicating a reasonable possibility of causal connection between the work-injury and the activation of the disabling condition. Aucoin v. Dow Chemical Company, 98-1912, fn. 1 (La.App. 1 Cir. 9/24/99), 745 So.2d 682, 684, writ denied 1999-3596 (La.2/18/00), 754 So.2d 968, citing Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320, 324-325 (La. 1985).

Ms. Roullier had already been seeing Dr. Girod for degenerative disc disease and other complications. The record indicates her first visit with Dr. Girod was on June 13, 2006, but she had treated with other doctors for back pain before then. From an MRI on that date, Ms. Roullier was found to have degenerative disc disease at L3-4 and L4-5, and Dr. Girod maintained this diagnosis until and past June 15, 2009. Throughout this time, Ms. Roullier worked at Cypress without missing work, managing her back pain with medication.

|fiOn Ms. Roullier’s visit with Dr. Girod on July 10, 2009, Dr. Girod reported that her condition “has worsened.” While she still had the degenerative disc disease in L3-4 and L4-5, the MRI showed Ms. Roullier now had degenerative disc disease at L2-3, and disc herniation at L5-S1. Dr. Girod reported on this date “with the fall, she had a significant increase in her back pain. It was tolerable before.”

Dr. Girod reported that the disc herniation at L5-S1 had resolved on July 9, 2010 following an MRI, but that the degenerative disc disease from L2-3 to L5-S1 continued. He maintained that her condition had worsened from her accident on June 15, 2009. By Ms. Roullier’s final visit to Dr. Girod in the record, on November 12, 2010, her condition had not changed.

When Cypress terminated Ms. Roullier’s workers’ compensation benefits on July 1, 2010, her last visit to Dr. Girod had been on May 14, 2010. At that time she was still diagnosed with disc herniation, and Dr. Girod was prepared to perform decompression surgery after one more MRI was performed, since her previous one had been almost a year prior. He had also issued to her a temporary handicapped parking tag and continued her on medication. The first visit immediately following the termination of benefits was on July 9, 2010. At that time, Dr. Girod had viewed the results of the MRI taken on June 8, 2010, and reported that the herniation had resolved, but all other conditions remained.

A workers’ compensation claimant’s disability is presumed to have resulted from the accident if the injured person was in good health before the accident but, commencing with the accident, symptoms of the disabling condition appear and continually manifest themselves afterwards. Banks v. Jefferson Parish School Board, 95-779 (La.App. 5 Cir. 2/14/96), 670 So.2d 1284, 1287. To be entitled to workers’ compensation benefits, the claimant |7must submit sufficient medical evidence to demonstrate the reasonable possibility of a causal connection between the employment accident and the disabling condition. Id. There is a clear and convincing burden of proof required to qualify for temporary total disability benefits, which requires proof greater than a preponderance of the evidence, but less than beyond a reasonable doubt. Id.

From our review of the record, which contains Ms. Roullier’s medical history, we see a causal link between Ms. Roullier’s accident of June 15, 2009 and the aggravation of her pre-existing conditions in her back. The aggravation resulted in disc herniation and the spread of Ms. Roullier’s degenerative disc disease. After the accident, Ms. Roullier’s functionality at work was minimal to non-existent. Although Dr. Girod recommended surgery that was designed to cure the herniation, Cypress would not approve of the surgery. Instead, Cypress offered a different kind of surgery recommended by Dr. Joe Morgan, who was not Ms. Roullier’s treating physician. OWC heard both opinions of the doctors and found Dr. Girod’s to be the correct one. OWC believed that the surgery recommended by Dr. Girod was the proper one for Ms. Roullier, and it was denied by Cypress. She never received the surgery, and her back pain continued to worsen. We therefore agree with OWC under a “manifest error-clearly wrong” analysis that by clear and convincing evidence Ms. Roullier was disabled by her June 15, 2009 accident during the course and scope of her employment with Cypress.

OWC awarded two penalties of $2,000.00 against Cypress pursuant to La. R.S. 23:1201, which allows a penalty of $50.00 per calendar day for each day in which any and all compensation or medical benefits remain unpaid, but this penalty shall not exceed $2,000.00, which accounts for forty | Rdays. Since Cypress terminated benefits on July 1, 2010, but Ms. Roullier’s increased degenerative disc disease is still present, the $2,000.00 limit has been easily met for the termination of medical benefits. As the authorization for surgery was unreasonably delayed for a year, the other $2,000.00 penalty is also warranted. As there is justification for the two penalties, whether a penalty should be levied for Cypress’s refusal to authorize medical benefits for pain management is a moot issue with respect to the penalty.

However, the weekly disability benefits should remain at $466.13, plus interest, and should not be augmented to cover ongoing pain management. We disagree with OWC on the issue of Cypress’s refusal to cover Ms. Roullier’s pain management. She was undergoing a pain management regimen long before the accident of June 15, 2009 occurred. After the accident, that regimen was re-urged by her doctors. Ms. Roullier was referred to Dr. Bice for pain treatment, but delayed the first visit for almost a year after being referred. Ms. Roullier instead opted to manage her pain in much the same way she had done before the accident, which was through medication prescribed by Dr. Girod. We disagree with OWC that Ms. Roullier has shown by clear and convincing evidence that Cypress should have covered her pain management with Dr. Bice as a direct result from her accident on June 15, 2009, but we do not disturb that aspect of the judgment with respect to Dr. Girod or other treating health care providers.

CONCLUSION

We agree that Ms. Roullier has met her burden of proof by clear and convincing evidence that she was disabled by a fall occurring on June 15, 2009, while under the course and scope of her then-employer Cypress, thereby aggravating a pre-exist-ing condition of pain in her back. Cypress’s termination of Ms. Roullier’s benefits were arbitrary and capricious, and a |flpenalty is warranted. Cypress should also be penalized for wrongfully withholding authorization for the surgery recommended by Dr. Girod.

DECREE

The judgment rendered by the Office of Workers’ Compensation, District 5, in favor of the Appellee, Sandra M. Roullier, and against the Appellant, Cypress Healthcare Management Region IV, is affirmed. Ms. Roullier is awarded medical benefits in the amount of $466.13 per week, with interest, prorated from the date of July 1, 2010. A penalty of $2,000.00 is assessed against Cypress for wrongfully terminating Ms. Roullier’s medical benefits, and another penalty of $2,000.00 is assessed against Cypress for the arbitrary and capricious delay in authorizing surgery for Ms. Roullier. Ms. Roullier is also awarded $8,000.00 in attorney fees. Payment to all health care providers, excluding Dr. Bice, is to be paid pursuant to the Louisiana Fee Schedule, for all medical expenses related to Ms. Roullier’s claim. All costs relating to this appeal are assessed to the Appellant.

AFFIRMED IN PART, REVERSED IN PART.


text:
    Lloyd SMITH, John Walker, & Larry D. Nelson v. DRAKE ENTERPRISES, INC., By and Through its Liquidator, Monty McWILLIAMS.
    No. 2012 CA 0240.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2012.
    W. Brooks Watson, W. Michael Street, Monroe, LA, for Plaintiffs/Appellants Lloyd Smith, John Walker & Larry D. Nelson.
    James R. Chastain, Jr., William L. Caughman, III, Baton Rouge, LA, for Defendant/Appellee Drake Enterprises, Inc. by and through its Liquidator, Monty McWilliams.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   McCLENDON, J.

|gThe plaintiffs appeal a judgment of the trial court granting the defendant’s motion for summary judgment that declared a November 9, 2006 judgment in favor of the plaintiffs null and void. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The defendant, Drake Enterprises, Inc., through its liquidator, Monty McWilliams (Drake), is a Louisiana corporation formed in 1998 and domiciled in East Baton Rouge Parish. In 1998, Drake entered into an Investors Licensing Agreement (the Agreement) with Larry D. Nelson and Chris Blalock. Blalock subsequently sold his interest to Lloyd Smith, who sold all or part of his interest to John Walker. In the Agreement, Drake obtained the sole and exclusive right to manufacture and sell a roofing product invented and patented by Nelson and Blalock.

On March 9, 2006, Smith, Walker, and Nelson, the plaintiffs and appellants herein, filed a Petition for Declaratory Judgment against Drake, seeking a judgment declaring the Agreement null and void. The plaintiffs requested citation and service of process by personal service on Drake’s named registered agent, Rolfe H. MeCollister, Sr. The sheriffs office attempted service on Mr. MeCollister, but it was determined that he was deceased. Thereafter, the plaintiffs requested and obtained citation and service of process on Drake through the Louisiana Secretary of State. The record reflects that service was accomplished on July 14, 2006.

In the meantime, the plaintiffs filed a Motion and Order for Preliminary Default on July 14, 2006, in which they asserted that Drake was served through the secretary of state on June 7, 2006, the delays for filing responsive pleadings had lapsed, and no responsive pleadings had been filed. A preliminary default was entered on July 18, 2006, and, on August 14, 2006, the plaintiffs filed a RMotion to Confirm Default Judgment without Hearing in Open Court pursuant to LSA-C.C.P. arts. 1702 and 1702.1. In their motion to confirm, the plaintiffs alleged that Drake was served through the secretary of state on June 14, 2006. Also attached to the motion to confirm was an Affidavit of Correctness by Lloyd Smith. On November 9, 2006, judgment was signed in favor of the plaintiffs, confirming the default judgment and declaring the Agreement null and void.

On February 1, 2011, Drake filed a Petition to Nullify Judgment. Thereafter, the plaintiffs filed an answer, and on April 15, 2011, Drake filed a motion for summary judgment, asserting that service was not made in accordance with law and that the preliminary default was premature. Following a hearing, the trial court granted Drake’s motion for summary judgment, declaring the 2006 judgment null and void. Judgment to that effect was signed on August 16, 2011, and the plaintiffs appealed.

DISCUSSION

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B; Collins v. Randall, 02-0209 (La.App. 1 Cir. 12/20/02), 836 So.2d 352, 354. In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29.

The initial burden of proof is on the moving party. However, if the mover 14will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather, to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966 C(2). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Pugh v. St Tammany Parish School Board, 07-1856 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 98, writ denied, 08-2316 (La.11/21/08), 996 So.2d 1113.

Louisiana Code of Civil Procedure article 2002 provides, in pertinent part:

A. A final judgment shall be annulled if it is rendered:
(2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.
B. Except as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in this Article may be brought at any time.

Under LSA-C.C.P. art. 1701 A, a judgment of default or preliminary default may be entered if the defendant in the principal or incidental demand fails to answer within the time prescribed by law. The time prescribed by law is fifteen days after service of citation. LSA-C.C.P. art. 1001. Citation and service are Inessential in all civil actions, subject to certain exceptions and absent an express waiver. A judgment rendered against a defendant who has not been served with process as required by law is an absolute nullity. LSA-C.C.P. art. 1201; Tunnard v. Simply Southern Homes, L.L.C., 07-0945 (La.App. 1 Cir. 3/26/08), 985 So.2d 166,168.

In their appeal, the plaintiffs contend that service and citation in their 2006 suit was perfected in accordance with LSA-C.C.P. arts. 1261 and 1262. The plaintiffs assert that with the due diligence return by the sheriffs office showing that the registered agent was deceased and Drake’s failure to appoint a new registered agent, service through the Louisiana Secretary of State’s office was appropriate. The plaintiffs maintain that none of the alternative service methods in LSA-C.C.P. art. 1261 B were available to them, as the law does not | (¡require a party to undertake a vain and useless act. Thus, they contend that the only remaining alternative service was service on the secretary of state under LSA-C.C.P. art. 1262. The plaintiffs did not address the prematurity issue.

Drake contends, however, that because the plaintiffs failed to attempt service by the alternative methods of service under LSA-C.C.P. art. 1261 B, LSA-C.C.P. art. 1262 was not available to them, and, therefore, service on the secretary of state was without effect. Drake also argues that the preliminary default was taken prematurely, since it was filed on July 14, 2006, the same date that the service of process was made on the secretary of state, and, thus, the preliminary default entered on July 18, 2006, was not valid.

In support of its motion for summary judgment, Drake attached a certified copy of the suit record. No evidence was filed by the plaintiffs in opposition to the motion.

The trial court determined that the preliminary default was taken prematurely as Drake was not given fifteen days within which to answer the petition, as required by LSA-C.C.P. art. 1001, before filing and entering a preliminary default. Furthermore, the trial court found the language of Articles 1261 and 1262 clear. The court stated that only after the methods of service found in Article 1261 are exhausted and the serving officer certifies the attempts, may a plaintiff look to the provisions of Article 1262. The court found that no such certification was made in this case. Thus, the trial court granted the motion for summary judgment, finding that Drake was entitled to judgment as a matter of law.

|7The sheriffs return contained in the record in this matter clearly shows that service on the secretary of state was accomplished on July 14, 2006. The recitation on the return of the citation is presumed correct, although the presumption is rebuttable. LSA-C.C.P. art. 1292; Tunnard, 985 So.2d at 169. The plaintiffs offered no evidence against the correctness of the citation. Drake had fifteen days to answer. LSA-C.C.P. art. 1001. The Motion and Order for Preliminary Default was also filed on July 14, 2006, and the preliminary default was entered on July 18, 2006, only four days after service. This defect was not cured by the subsequent signing of the judgment after the proper delays had expired, since the judgment was invalid upon rendition. See Alphonso v. Cement Product Services, Inc., 499 So.2d 305, 307-08 (La.App. 1 Cir.1986), unit denied, 502 So.2d 112 (La.1987); Cardone v. G & R Service Center Inc., 360 So.2d 244, 245 (La.App. 1 Cir.1978). Thus, the final default judgment obtained without a valid preliminary default is an absolute nullity. See Livingston Parish Police Jury v. Patterson, 589 So.2d 9, 10 (La.App. 1 Cir.1991). See also Corte v. Cash Technologies, Inc., 02-0846 (La.App. 1 Cir. 4/2/03), 843 So.2d 1162, 1166-67.

Because the record is clear that the plaintiffs preliminary default was premature, the November 9, 2006 judgment confirming the default was an absolute nullity, and Drake was entitled to summary judgment as a matter of law. Having found that the entry of the preliminary default was premature, we find it unnecessary to address the validity of the service of process on the secretary of state.

CONCLUSION

For the above reasons, we affirm the August 16, 2011 judgment- of the trial court, declaring the November 9, 2006 judgment in favor of the plaintiffs null and void. Costs of this appeal are assessed to the plaintiffs.

AFFIRMED.

      . The plaintiffs alleged that Drake failed to produce and market at least one million squares of roofing shingles for each year of the Agreement and failed to pay them for the failure, which gave the plaintiffs the option to seek a judgment declaring the Agreement null and void.

      . The motion to confirm originally had the date of June 7, 2006 typed in as the date that Drake was served through the secretary of state's office, but the "7” was scratched out and replaced with a handwritten "14.”

      . At the bottom of the November 9, 2006 judgment there is a handwritten notation that defendant was "served thru S.O.S. 6-7-06”. There is no explanation in the record as to the discrepancy regarding dates of service referenced in the pleadings.

      . The prematurity issue was raised by Drake in its reply memorandum in support of its motion for summary judgment filed on August 4, 2011.

      . This judgment of default may be confirmed two days exclusive of holidays after the entering of the preliminary judgment of default. See LSA-C.C.P. art. 1702 A.

      . Louisiana Code of Civil Procedure art. 1001 provides that "[a] defendant shall file his answer within fifteen days after service of citation upon him, except as otherwise provided by law.”

      .Louisiana Code of Civil Procedure art. 1201 provides, in pertinent part:

        A. Citation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children's Code. Without them all proceedings are absolutely null.
      B. The defendant may expressly waive citation and service thereof by any written waiver made part of the record.

      . Louisiana Code of Civil Procedure article 1261, provides, in relevant part:
      A. Service of citation or other process on a domestic or foreign corporation is made by personal service on any one of its agents for service of process.
      B. If the corporation has failed to designate an agent for service of process, if there is no registered agent by reason of death, resignation, or removal, or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent, service of the citation or other process may be made by any of the following methods:
      (1) By personal service on any officer, or director, or on any person named as such in the last report filed with the secretary of state.
      (2) By personal service on any employee of suitable age and discretion at any place where the business of the corporation is regularly conducted.
      (3) By service of process under the provisions of R.S. 13:3204, if the corporation is subject to the provisions of R.S. 13:3201.
      Also, LSA-C.C.P. art. 1262 provides:
      If the officer making service certifies that he is unable, after diligent effort, to have service made as provided in Article 1261, then the service may be made personally on the secretary of state, or on a person in his office designated to receive service of process on corporations. The secretary of state shall forward this citation to the corporation at its last known address.

      . The plaintiffs contend that personal service on any officer or director named as such in the last report filed with the secretary of state was not possible under LSA-C.C.P. art. 1261 B(l), as there were no officers or directors in Louisiana upon whom personal service could be made. Further, plaintiffs argue that service under LSA-C.C.P. art. 1261 B(2) was not possible as the only location in Louisiana listed for Drake with the secretary of state was the address for its deceased agent. The plaintiffs maintain that because Drake’s officers and directors resided in Tennessee and its place of business was in Tennessee, service under LSA-C.C.P. art. 1261 B(l) or (2) was not possible. Additionally, according to the plaintiffs, service as provided in LSA-C.C.P. art. 1261 B(3), under LSA-R.S. 13:3204, the long-arm statute, was not possible since Drake, a Louisiana corporation, is not a nonresident under LSA-R.S. 13:3201.

      . Nor did the plaintiffs make any argument regarding same in their appellate brief.


author: GUIDRY, J.

text:
    Jerome KNOCKUM v. Michael J. WAGUESPACK, Sheriff Assumption Parish, Donald Calamia, Deputy Officer, Patrick Sons, Deputy Officer.
    No. 2012 CA 0277.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2012.

      Jerome Knockum, St. Gabriel, LA, Plaintiff-Appellant In Proper Person.
    Fred Schroeder, Jason P. Wixom, New Orleans, LA, for Defendants/Appellees Sheriff J. Michael Waguespack, Deputy Donald Calamia and Deputy Patrick Sons.
    Before CARTER, C.J., GUIDRY, and GAIDRY, JJ.
   GUIDRY, J.

| gPlaintiff, Jerome Knockum, an inmate housed at the Elayn Hunt Correctional Center, appeals the dismissal of his personal injury suit as prescribed.

According to the plaintiffs petition, on August 13, 2010, two deputies with the Assumption Parish Sheriffs Office, Donald Calamia and Patrick Sons, “committed assault battery, police brutality, used excessive force not necessary to make an arrest of a non resisting unarmed nonviolent criminal suspect” in the course of responding to a burglar alarm that had been activated at a local business. As a result of the deputies’ actions, the plaintiff alleged that he sustained serious injuries.

While incarcerated, the plaintiff filed a petition for damages asserting claims against the two deputies for injuries he allegedly sustained during his arrest. The plaintiff also named Sheriff Michael J. Waguespack as a defendant in the petition, alleging that he was liable for failing to train the deputies to “properly and safely” perform an arrest without inflicting injuries and for failing “to promulgate appropriate arresting policy, regulations and procedures, on arrest without excessive force, unnecessary violence of police brutality, assault and battery.”

Plaintiff delivered his'petition to prison officials for mailing to the district court on August 11, 2011, and the petition was received and filed by the Twenty-Third Judicial District Clerk of Court on August 18, 2011. In response to the plaintiffs petition, the defendants filed a peremptory exception raising the objection of prescription, asserting that the plaintiffs claim was barred because the delictual action was filed more than one year after the alleged injuries occurred. See La. C.C. art. 3492. Following a hearing, the trial court sustained the peremptory exception and dismissed the plaintiffs petition with prejudice.

The plaintiff appeals, asserting that based on the “mailbox rule,” his petition was timely filed. However, the “mailbox rule,” pronounced by the U.S. Supreme Court in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), has been held not to apply to non-administrative, civil suits filed by prisoners. See Richardson v. Say, 31,989, p. 4 (La.App.2d Cir.7/22/99), 740 So.2d 771, 774, writ denied, 99-2493 (La.11/19/99), 749 So.2d 677, cert. denied, 529 U.S. 1100, 120 S.Ct. 1836, 146 L.Ed.2d 779 (2000). Thus, we find no error in the trial court’s judgment sustaining the peremptory exception raising prescription; however, as the plaintiff was granted leave to pursue this appeal in forma pauperis, we will not assess costs in this matter.

AFFIRMED.


author: PETTIGREW, J.

text:
    Maurice VILLAR v. INDUSTRIAL METAL RECYCLERS and the Gray Insurance Company.
    No. 2012 CA 0319.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2012.

      Michelle Sorrells, Baton Rouge, LA, for Plaintiff-Appellee Maurice Villar.
    Heidel A. Schneider, Charles J. Duhe, Jr., Baton Rouge, LA, for Defendants-Appellants Industrial Metal Recyclers, and the Gray Insurance Company.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

lain this workers’ compensation dispute, Industrial Metal Recyclers, Inc. (“Industrial”) and its insurer, The Gray Insurance Company (“Gray”), appeal a judgment of the Office of Workers’ Compensation (“OWC”) in favor of claimant, Maurice Vil-lar. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 18, 2000, Mr. Villar was injured in the course and scope of his employment as a pipe fitter with Industrial when a large steel beam fell on him, crushing his left leg against a concrete column and resulting in the partial amputation of his left leg. Mr. Villar was 61 years old when the accident occurred. He has not worked since his accident. Subsequent to the incident, temporary total disability benefits were initiated.

According to the record, Gray hired a vocational rehabilitation counselor in 2000 to meet with Mr. Villar and evaluate his return-to-work options. Mr. Villar’s treating physician, Dr. Lawrence J. Messina, set restrictions on Mr. Villar such that he could only perform sedentary part-time work. In February 2002, Mr. Villar’s indemnity benefits were converted to supplemental earning benefits in the amount of $384.00 per week, which he was paid every two weeks until July 2010.

After his benefits were terminated, Mr. Villar filed a disputed claim for compensation, alleging that he was entitled to permanent total disability benefits and that his benefits were arbitrarily and capriciously terminated. Prior to trial, Mr. Vil-lar was reevaluated by a vocational counselor who reported that Mr. Villar was completely unemployable due to his amputated leg, his advanced age of 71, his inability to perform prior occupations, the lack of transferable skills, and the physician-assigned sedentary part-time work restriction. The matter proceeded to trial on October 3, 2011, at which time the parties stipulated to the date of the accident, July 18, 2000, the fact that Mr. Vil-lar’s left leg was partially amputated as a result of the accident, that his average weekly wage was $576.00 with an indemnity rate of $384.00, and that Mr. Villar received temporary total disability benefits and supplemental earning benefits until July 18, 2010. The narrow issues presented to the OWC were whether Mr. Villar was permanently and [ stotally disabled as a result of the July 18, 2000 accident, and, if so, whether Industrial’s termination of his benefits was arbitrary and capricious such that penalties and attorney fees are warranted. After listening to the testimony of the witnesses at trial and reviewing the applicable law and documentary evidence in the record, the OWC hearing officer rendered judgment from the bench in favor of Mr. Villar and against Industrial and Gray. The hearing officer found that Mr. Villar was permanently and totally disabled and that Mr. Villar met his burden of proving that he was entitled to permanent and total disability benefits. The hearing officer further found that Mr. Villar was unemployable. The hearing officer also concluded that Industrial arbitrarily and capriciously terminated Mr. Villar’s benefits without having done any kind of investigation to determine if he was permanently and totally disabled and awarded $15,000.00 in attorney fees and costs. A judgment in accordance with these findings was signed by the OWC hearing officer on October 31, 2011, as follows:

1. The [OWC hearing officer] finds that the claimant is permanently totally disabled under La. R.S. 23:1221(2)(c) from July 19, 2010 to date.
2. The [OWC hearing officer] finds that there is no reasonable probability that, with appropriate training or education, Mr. Villar may be rehabilitated to the extent that he can achieve suitable gainful employment, and it is therefore not in the best interest of the claimant to undertake such training or education.
3. The [OWC hearing officer] finds that the defendants were arbitrary and capricious in the termination of indemnity benefits after 520 weeks without properly investigating Mr. Villar’s disability status as of the time of the termination.
4. The [OWC hearing officer] awards $15,000[.00] in attorney fees for the arbitrary and capricious termination of Mr. Villar’s indemnity benefits.
5. Judicial interest is awarded from the date each installment became due payable from July 19, 2010 to date at the interest rate in effect at the time the 1008 was filed which was 3.75%.
6. Interest is due on the attorney fee at the rate of 3.75% from the date of the award.
7. The [OWC hearing officer] awards Thomas Mungall an expert witness fee in the amount of $135[.00] for his trial testimony.
8. All costs of the proceeding in the amount of $1,490.36 are the responsibility of the defendant.

This appeal by Industrial and Gray followed.

14After considering the October 31, 2011. judgment and examining the record, this court issued an interim order on September 27, 2012, finding that although the OWC hearing officer had determined that Mr. Villar was permanently and totally disabled and had met his burden of proving he was entitled to benefits, the judgment failed to include an award of said benefits. Thus, we remanded the case to the OWC for the limited purpose of having the hearing officer sign an amended judgment that was final and appealable. See Johnson v. Mount Pilgrim Baptist Church, 2005-0337, pp. 2-3 (La.App. 1 Cir. 3/24/06), 934 So.2d 66, 67; Carter v. Williamson Eye Center, 2001-2016, p. 3 (La. App. 1 Cir. 11/27/02), 837 So.2d 43, 44.

On October 5, 2012, the OWC hearing officer signed an amended judgment, which for the most part tracked the language of the original judgment, with the exception of the issues that this court had instructed the OWC to correct. The new language in the October 5, 2012 judgment is as follows:

1. The [OWC hearing officer] finds that the claimant is permanently totally disabled under La. R.S. 23:1221(2)(c) from July 19, 2010 to date at the rate of $384[.00] a week.
2. The [OWC hearing officer] finds that the claimant is entitled to $24,192.00 in past due indemnity benefit[s] totaling benefits owed from July 19, 2010 until October 3, 2011, and continuing thereafter at the rate of $384[.00] a week.

The remainder of the original October 31, 2011 judgment was unchanged.

ISSUES FOR REVIEW

On appeal, Industrial and Gray assign the following specifications of error:

1. The [OWC hearing officer] manifestly erred in finding that the claimant is permanently and totally disabled.
2. The [OWC hearing officer] erred in concluding that there was no reasonable probability that with appropriate training or education that claimant may be rehabilitated.
3. The [OWC hearing officer] manifestly erred in finding that defendants arbitrarily and capriciously terminated benefits on July 19 2010.

DISABILITY STATUS

Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Allman v. Washington Parish Police Jury, 2004-0600, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 86, 88. Factual findings in a workers’ compensation case are subject to the manifest error-clearly wrong standard of review. McCray v. Delta Industries, Inc., 2000-1694, p. 4 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 269. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. Thus, “[if] the [fact finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Bolton v. B E & K Const., 2001-0486, p. 7 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35.

The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. Severio v. J.E. Merit Constructors, Inc., 2002-0359, p. 7 (La.App. 1 Cir. 2/14/03), 845 So.2d 465, 469.

As set forth in La. R.S. 23:1221(2)(c), when an employee is not engaged in any employment or self-employment, compensation for permanent total disability “shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment.” Moreover, before a claimant is found to be permanently and totally disabled, it shall be determined “whether there is reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment |fiand whether it is in the best interest of such individual to undertake such training or education.” La. R.S. 23:1226(D). Sev-erio, 2002-0359 at 10, 845 So.2d at 471.

After hearing from the witnesses and considering the documentary evidence in the record, the OWC hearing officer made the following findings concerning Mr. Vil-lar’s disability status:

The first question is whether ... Mr. Villar is permanently and totally disabled. [I am] of the opinion that under [La. R.S. 23:1221(2)(c) ], Mr. Villar is permanently and totally disabled at this point in time. The standard for that is that when an employee is not engaged in employment, compensation for permanently and total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment.
Now, there is a caveat to that found in [La. R.S. 23:1226], the rehab statute, [La. R.S. 23:1226(D) ]. You have to get through that rehab statute before you get to permanent and total. And in D, we have, “Before a claimant is found to be permanently and totally disabled, it shall be determined whether there is a reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether [it is] in the best interest of such an individual to undertake such training [or] education.” That is the crux of the matter.
First I will start by saying that [I] found Mr. Villar very credible, he’s a very personable, upfront gentleman, I found his testimony completely credible throughout, there was absolutely no dispersions cast upon his credibility in any way. I think he is sincere in that he would like to work and at a point in time not too long after he lost his leg he was seeking to try to find some kind of part-time employment but in his own words, there seemed to be road blocks at every turn. His biggest problem is not the leg as much as it is the age at which he lost the leg, and it’s not the loss of the leg alone but the age at which he lost the leg. Losing his leg at age 61 is pretty devastating to his employability. Although he has a high school education, which is the entry level for most positions, at 72 or 71, the age that he was when his benefits were terminated ... I am clearly convinced that no employer would hire him at age 72 with an amputated leg and provide him with sedentary duty on a part-time basis that could present him with enough money to be suitably gainfully employed.
The definition is found in Title 40 of the Administrative Code for Suitable Employment, “Employment that is reasonably attainable and which offers an opportunity to restore the individual as soon as practical and nearly as possible to his average earning at the time of his injury.”
There is no way that, like short of a job like ours, mine and the attorneys here, or a professional job, that Mr. Villar could earn $576[.00] a week on a part-time basis at a sedentary job....
So I find that the claimant has met his burden of proving clearly and convincingly that he’s entitled to permanent and total disability benefits.
|7Pr. Messina set the restrictions, sedentary duty part-time only, and with that restriction and his age and his high school education, the fact that all of the jobs he had before were in the manual labor, heavy manual labor type situation, there were some skills there. And I agree with Ms. Seylar, there are some transferable skills, but she failed to show me any job as of the time that they terminated benefits that he could have done. Now, if they’re out there, the defendant failed to show me that they are.
When Ms. Seylar did her vocational rehabilitation it was ten years ago. At that time there were some jobs that he possibly could have done and if they had really pushed him in that direction ten years ago, perhaps we wouldn’t be here now. I think that the vocational rehabilitation ball was dropped ten years ago.
He showed some interest in the computer training, he showed some interest in small engine training and I think that if she, Ms. Seylar, had kept in touch with him and if the employer had pushed him to look for those jobs, had provided him with names and places of jobs, go find these jobs, provided him with 1020 forms, fill these out every month, you’re expected to find jobs and actually followed up, did he apply.
Everybody knows the step-ball change that we go through now with vocational rehabilitation under the supplemental earnings benefits category, and that is, okay, employee can’t return to his old job, his employer does not want to create a job for him, he’s got severe limitations, let’s find jobs for him, give him the jobs, but you’ve got to give him the places where the jobs are too. And there was absolutely no evidence and she couldn’t remember, I felt so sorry for Ms. Seylar because she lost part of her file, but it was her testimony she couldn’t remember whether she gave him the actual places for the jobs, but they did have discussion about the types of jobs and Mr. Villar, to his credit, it’s been ten years, he didn’t have any documentation he had ever gotten from her, he didn’t remember talking about general categories of jobs.
And he went out and looked, he actually talked to the employer, he went and talked to some small shop owners there in his area, he looked into the possibility of employment but Ms. Seylar never presented him with jobs and then pushed him in that way, and by that I mean, look, if he doesn’t go out and apply for these jobs, then go ahead and reduce benefits based upon the lowest paying job that you’ve got and force the issue. I mean, that’s what — that’s the way it should work. And then the claimant would have to come and show me that he did try to seek these jobs, and we all know how that goes, but none of this occurred.
They talked about jobs, talked about doing something and then let it go. And now ten years later, we cannot use that ten year old — the ten year old ability as being actual jobs today or even last year when benefits were terminated.
The best thing I would have suggested is that before benefits were running out, say in 2010, 2009, get back on the labor market survey and see what you can do, provide him with some openings to see what could have been done and go forward with it from that side.
Under Mr. Mungall’s assessment, and I have to say I heartily agree, the fact that he can’t work an eight hour day, he’s 72 years old now with a |shigh school education, puts him at a severe detriment in this job market with college students coming out and having trouble finding jobs. He would be competing for these cashier and security guard jobs that he might physically be able to do and be in his educational category with high school kids and college kids right now who are having trouble finding a job. And as much as we like to believe that he’s not going to be discriminated against because of his disability or discriminated against because of his age, I just don’t see them hiring him over someone younger who can take that job.
So I am of the opinion that he is unemployable due to his age, the fact that he only has a high school education, he has no skills, clerical type skills and he’s lost his leg and he is limited to part-time employment.

Following an extensive review of the record and exhibits in this matter, we are unable to say that the OWC hearing officer erred in determining that based on Mr. Villar’s physical restrictions, the failed attempt at vocational rehabilitation, his limited education, and lack of transferable skills, he is permanently and totally disabled and entitled to benefits. The hearing officer made specific findings that Mr. Villar was a credible witness and that he was unemployable. The OWC hearing officer’s judgment concerning the finding of permanent and total disability and the award of benefits for same is reasonable and supported by the record.

AWARD OF ATTORNEY FEES

The OWC hearing officer found that Industrial and Gray were arbitrary and capricious in terminating Mr. Villar’s benefits and awarded him $15,000.00 in attorney fees, noting as follows:

[I also find] that in light of the fact that when benefits were terminated and SEB benefits had run out, the insurer terminated benefits without having done any kind of investigation to determine if he was permanently and totally disabled.
You cannot just rely on the fact that Dr. Messina says he can return to work on a part-time basis. The question can’t stop there. Yes, that means that physically there’s something out there that he could probably do, you have to find it, and you have to find an employer who’s willing to hire him or that there are jobs out there that he could do, that he could become gainfully employed for. You can’t just terminate benefits because he’s in the SEB category as far as the doctor is concerned, because it is not just a medical question, it is a legal question, the category of benefits. And once you run out of supplemental earning benefits, the logical thing to do would have been to look at it for permanent and total disability. Especially once the 1008 was filed, updated information should have been acquired immediately to see if he should have been declared permanent and total. And I think had Ms. Seylar started looking again, she would |3have found that she had trouble finding — if she actually talked to employers, finding someone who would have employed him.
So [I find] that they did arbitrarily and capriciously terminate benefits. There is no penalty for that, there is just an attorney’s fee option.[] [I award $15,000.00] in attorney’s fees and costs,

The OWC hearing officer’s determination of whether an employer or insurer should be cast with attorney fees and penalties in a workers’ compensation action is essentially a question of fact subject to the manifest error or clearly wrong standard of review. Frith v. Riverwood, Inc., 2004-1086, p. 12 (La.1/19/05), 892 So.2d 7, 15. Statutes providing for penalties and attorney fees are penal in nature and must be strictly construed. Life Flight of New Orleans v. Homrighausen, 2005-2538, p. 9 (La.App. 1st Cir. 12/28/06), 952 So.2d 45, 52, writ denied, 2007-0558 (La.5/4/07), 956 So.2d 615. Based on our review of the record herein, we cannot say the OWC hearing officer was clearly wrong in finding that Industrial and Gray were arbitrary and capricious in terminating Mr. Villar’s benefits. Accordingly, we affirm the award of $15,000.00 in attorney fees to Mr. Villar.

DECREE

For the above and foregoing reasons, we affirm the OWC hearing officer’s judgment in all respects and assess all costs associated with this appeal against appellants, Industrial Metal Recyclers, Inc. and The Gray Insurance Company. AFFIRMED.

McDONALD, J., concurs.

      . Pursuant to La. R.S. 23:1201(1), penalties are recoverable for the arbitrary and capricious discontinuance of benefits as follows:
      I. Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and-a reasonable attorney fee for the prosecution and collection of such claims.
      Although we note legal error in the OWC hearing officer's failure to address the penalty portion of La. R.S. 23:1201 for the arbitrary and capricious termination of Mr. Villar’s benefits, this issue is not before the court on appeal as Mr. Villar did not appeal or answer the appeal. See La. Code Civ. P. art. 2133; Augustus v. St. Mary Parish School Bd., 95-2498, p. 16 (La.App. 1 Cir. 6/28/96), 676 So.2d 1144, 1156.