source: Caselaw Access Project

author: KEATY, Judge. COOKS, J.,

license: Public Domain

text:
    Raymond Charles CRESSY, et al. v. HUFFINES HYUNDAI MCKINNEY, LP, et al.
    16-712
    Court of Appeal of Louisiana, Third Circuit.
    02/22/2017

      Pete Lewis, Sarah Delahoussaye Call, Lewis & Caplan, 3631 Canal Street, New Orleans, Louisiana 70119, (504) 486-7766, Counsel for Plaintiffs/Appellants: Raymond Charles Cressy, Yolanda Cressy
    G. Bruce Parkerson, Jessica S. Savoie, Scott H. Mason, Plauché Maselli Parker-son L.L.P., 701 Poydras Street, Suite 3800, New Orleans, Louisiana 70139, (504) 582-1142, Counsel for Defendani/Appellee: Huffmes Hyundai McKinney, LP
    Gary G. Hebert, Charles S. Smith, McGlinchey Stafford, PLLC, 601 Poydras Street, Floor 12, New Orleans, Louisiana 70130, (504) 586-1200, Counsel for Defendant/Appellee: FCA US LLC (formerly known as “Chrysler Group LLC”)
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

hln this case stemming from a one-vehicle automobile accident, the trial court granted summary judgment in favor of Defendants and dismissed Plaintiffs product liability claims against them based upon a release which Plaintiff, a passenger in the vehicle, had previously entered into with the driver of the vehicle and his liability insurer, who were not named as defendants in this action. Plaintiff appeals. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Raymond Charles Cressy was rendered a quadriplegic in a one-vehicle accident (the accident) that occurred in Natchitoch-es Parish on October 12, 2010. The accident happened when the driver of the 2006 Dodge Durango in which Raymond was a guest passenger lost control of the vehicle when he swerved to avoid a tire in the roadway, causing the vehicle to enter into the median and roll over several times. The vehicle was owned by Raymond’s sister, Yolanda Cressy, and was being operated by Raymond’s brother, Wayne Cressy. Yolanda had purchased the used vehicle from Huffines Hyundai McKinney, LP, (Huffines) in March of 2010.

On October 11, 2011, Raymond filed the instant petition for damages against Huffines and Chrysler Group, LLC (Chrysler), the manufacturer of the vehicle, (sometimes hereafter collectively referred to as Defendants), alleging that |2the vehicle was unreasonably dangerous and seeking damages against them pursuant to the Louisiana Products Liability Act, La.R.S. 9:2800.51-.60. Defendants filed a joint motion for summary judgment (MSJ) on May 20, 2015, asserting that Raymond’s claims against them should be dismissed because of a release Raymond entered into on October 19, 2011, through Yolanda acting as his agent-in-fact, whereby he released all “persons, firms or corporation of and from any and every claim” arising from the October 10, 2010 automobile accident. Plaintiffs opposed the MSJ on the basis that Raymond, who died on December 31, 2012, as a result of the injuries he sustained in the accident, only intended to settle his claims against Wayne and Wayne’s insurer, GEICO, when Yolanda signed the release on his behalf. A hearing on the MSJ took place on November 19, 2015, following which the parties were given time to file post-trial briefs. On March 26, 2016, the trial court signed a judgment granting summary judgment in Defendants’ favor. Defendants filed a motion for partial new trial seeking to amend the judgment to provide that Plaintiffs’ claims against them were dismissed with prejudice, as was noted in the reasons for judgment. The trial court granted Defendants’ motion to amend and issued a new judgment on June 1, 2016, granting Defendants’ motion for summary judgment, dismissing Plaintiffs’ claims with prejudice, and certifying the judgment as final and appealable.

Plaintiffs now appeal, alleging that:

IsThe Trial Court erred in finding that the Plaintiffs failed to present substantiating evidence of mistaken intent in signing the Release. In accordance with the evidence presented, Plaintiff, Yolanda Cressy, did not intend to release the Defendants named in the underlying suit, creating a genuine issue of material fact regarding whether the subject claims were compromised. Thus, the trial court erred in granting summary judgment in light of the genuine issue of material fact.

LAW

Summary judgment “shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is. entitled to judgment as a matter of law.” La. Code Civ.P. Art. 966(A)(3). “A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate,” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755.

The Louisiana Supreme Court has held that “[sjummary judgment is seldom appropriate for determinations based on subjective facts, such as motive, intent, good faith, knowledge and malice.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 28 (La. 7/5/94), 639 So.2d 730, 751. Nevertheless, whether a plaintiffs claims against a certain defendant should be dismissed because of a release entered into by the plaintiff can be resolved in the context of a motion for summary judgment. See, e.g., Hudson v. Progressive Sec. Ins. Co., 43,857 (La.App. 2 Cir. 12/10/08), 1 So.3d 627, writ denied, 09-235 (La. 3/27/09), 5 So.3d 148; Palmer v. Walker, 09-756 (La.App. 5 Cir. 1/12/10), 31 So.3d 443.

DISCUSSION

The facts are not at issue in this appeal. On December 31, 2010, several months after the accident, Raymond granted Yolanda power of attorney (POA), ^authorizing her to conduct his affairs. The POA referred to Raymond as “Principal” and Yolanda as “Agent” and gave her the full authority to, among other things:

11) Sue in PRINCIPAL’S name and on PRINCIPAL’S behalf as well as be sued on behalf of PRINCIPAL, including the right to appear before all courts of law on PRINCIPAL’S behalf for all purposes, and further to compromise or refer to arbitration any claims (whether asserted judicially or not) for or against PRINCIPAL, and to make transaction[s] in matters of litigation[.]

On the same date the POA was signed, Yolanda, on behalf of Raymond, signed a Contract of Employment with attorney James C. Lawrence, Jr. (Attorney Lawrence). Ten months later, on October 11, 2011, Raymond, through attorney Pete Lewis (Attorney Lewis), filed the instant petition for damages.

The release that Yolanda signed on Raymond’s behalf on October 19, 2011, was notarized by Attorney Lawrence and provided, in pertinent part, as follows (emphasis added):

RELEASE
In Pull of All Claims
Claim #: 0338694670101032
I, Raymond Cressy, Releasor(s), ... being over the age of majority, for and in consideration of checks for the sum of twenty five thousand dollars and 00/100 ($25,000.00) ..., the receipt of which is hereby acknowledged, do for myself/ourselves, my/our heirs, executors, administrators, successors and assigns, hereby remise, release, and forever discharge Wayne Cressy and Government Employees Insurance Company, Releasee(s), successors and assigns, and/or his, her or their associates, heirs, executors and administrators, and all other persons, firms or corporations of and from any and every claim, demand, right or cause of action, of whatever kind or nature, on account of or in any way growing out of any and all personal injuries and consequences thereof, including, but not limited to, all causes of action preserved by the wrongful death statute applicable, any loss of services and consortium, any injuries which may exist but which at this time are unknown and unanticipated and which may develop at some time in the future, all unforeseen developments arising from known injuries, and any and all property damage resulting or to result from an accident that occurred on |Bor about the 12th day of October, 2010 at or near Natch-itoches Parish, LA and especially all liability arising out of said accident including, but not limited to, all liability for contribution and/or indemnity.
AS A FURTHER CONSIDERATION FOR THE MAKING OF SAID SETTLEMENT AND PAYMENT, IT IS EXPRESSLY WARRANTED AND AGREED:
(1) That I/we understand fully that this is a final settlement and disposition of the disputes both as to the legal liability for said accident, casualty, or event and as to the nature and extent of the injury, illness, disease and/or damage which I/we have sustained. ...

Near the release’s signature line, which was signed “Yolanda Cressy P.O.A. Raymond Cressy,” was the phrase “THIS IS A RELEASE IN FULL.” The release was witnessed by Desiree Singletary who certified that Yolanda signed it in her presence and that Yolanda “acknowledged that he/ they understood it fully.”

In their MSJ, Defendants argued that “the broad language of the Cressy Release is clear, unambiguous, and enforceable as written” such that no genuine issues of material fact remained and' entitling them to summary judgment dismissing Raymond’s claims against them. Defendants relied on Louisiana jurisprudence which, based upon codal principles' of contract interpretation, enforced releases containing language nearly identical to the release at issue herein. See, Baudoin v. Montoya, 07-910 (La.App. 3 Cir. 1/30/08), 974 So.2d 877, writ denied, 08-479 (La. 5/2/08), 979 So.2d 1284; Hudson v. Progressive Sec. Ins. Co., 43,857 (La.App. 2 Cir. 12/10/08), 1 So.3d 627, writ denied, 09-235 (La. 3/27/09), 5 So.3d 148; Silva v. State Farm Mut. Auto. Ins. Co., 09-686 (La.App. 5 Cir. 3/23/10), 38 So.3d 934, writ denied, 10-932 (La. 6/25/10), 38 So.3d 342; Palmer v. Walker, 09-756 (La.App. 5 Cir. 1/12/10), 31 So.3d 443.

Uln opposition to Defendants’ MSJ, Plaintiffs argued that their claims against Defendants should not be dismissed because Raymond intended to compromise only his claims against Wayne and GEICO when he signed the release in exchange for the limits of the GEICO policy. Plaintiffs pointed to La.Civ.Code Art. 3076’s directive that “[a] compromise settles only those differences that the parties clearly intended to settle, including the necessary-consequences of what they express.” Nonetheless, Plaintiffs acknowledged that “[w]hen the words of a contract are clear and explicit ..., no further interpretation may be made in search of the pax-ties’ intent.” La.Civ.Code Art. 2046. Plaintiffs cited Brown v. Drillers, Inc., 93-1019 (La. 1/14/94), 630 So.2d 741, 749, as support for the “jurisprudential x-ule [that] the parties to a release instrument are permitted to raise a factual issue as to whether unequivocal language in the instrument was intended to be unequivocal.” Even so, Plaintiffs were mindful, of the caveat noted in Brown:

Louisiana courts, however, have tempered that jurisprudential rule, recognizing. that absent some substantiating evidence of mistaken intent, no i-eason exists to look beyond the four corners of the instrument to ascertain intent. Utilizing a case-by-case, factual analysis, Louisiana courts have limited the rule’s application to cases in which substantiating evidence is presented establishing either (1) that the releasor was mistaken as to what he or she was signing, even though fraud was not present; or (2) that the releasor did not fully understand the nature of the rights being released or that the releasor did not intend to release certain aspects of his or her claim. When the factual circumstances surrounding the execution of the release instrument do not fall within either of the above categories, Louisiana courts, applying LSA-C.C. Art. 2046’s genei-al rule of construction, have not hesitated to confine their analysis to the four corners of the, instrument.

Id. Plaintiffs attached four exhibits to their opposition as “substantiating evidence” of Raymond’s lack of intent to release his claims against Defendants. Id. Exhibit A was the petition for damages in the instant matter. Plaintiffs contended that had Raymond intended to settle his claims against Defendants, he would not have filed |7suit against them eight days prior to his execution of the release. Plaintiffs further contended that the fact Wayne and GEICO were, not named as defendants in this lawsuit demonstrated Raymond’s belief that his claims against them “were resolved” while his “claims against Huffines and Chi-syler remained active.” Along those lines, Plaintiffs contended that had Raymond intended to compromise all of his claims, including those against Huffines and Chrysler, he would have filed a motion to dismiss this suit following his execution of the release on October 19, 2011, a mere eight days after the instant petition was filed. Pointing to the fact that this matter has been actively litigated for over three and one-half years following the date the release was signed, Plaintiffs contended that “the parties belie[ved] that the claims against Huffines and Chrysler were not compromised by the [r]elease.”

Exhibit C to Plaintiffs’ opposition was an affidavit Yolanda signed on June 17, 2015, wherein she stated:

3. That she executed a Release on behalf of Raymond Cressy in order to obtain the proceeds from her insurance policy, insuring Wayne Cressy as a permissive driver of the Dodge Durango;
4. That she did not intend to settle all claims arising from the accident in the Release;
5. That she only intended to, settle Raymond Cressy’s claims against GEICO and Wayne Cressy, in exchange for GEICO’s policy limits[.]

' Plaintiffs also attached as Exhibit B to their opposition excerpts from a deposition Yolanda gave on July 9, 2013, wherein she stated that she thought Raymond “got a settlement” from GEICO that was enough to pay the balance owed on her vehicle. She further stated her understanding that part of the proceeds from the settlement with GEICO were “supposed to go towards [Raymond’s] medical bills” but she did not think that GEICO had issued any money to him at |sthat time. Finally, Exhibit D to Plaintiffs’ opposition to Defendants’ MSJ was a September 12, 2013 Updated Lien Letter to Attorney Lewis advising him of a $232,544.21 Medicaid lien in favor of the State of Louisiana, Department of Health and Hospitals, which represented the amount “paid by the Medicaid program” on Raymond’s behalf. Plaintiffs emphasized that Raymond was rendered a quadriplegic in the accident, and he thereafter required around-the-clock medical care. Given the extent of Raymond’s actual damages, as evidenced by the substantial Medicaid lien, in comparison to the $25,000.00 that he received in the settlement with GEICO, Plaintiffs asserted that it is “unreasonable to conclude that the Plaintiff intended to settle all claims arising from the subject accident for such a small amount.”

Arguing that the circumstances show that Raymond did not intend to release his claims against Huffines and Chrysler, Plaintiffs claim that this court, on de novo review, should reverse the trial court’s grant of summary judgment in Defendants’ favor because a genuine issue of material fact remains as to whether the product liability claims made the subject of this lawsuit were compromised.

In their appellee briefs, Defendants assert that the trial court properly granted summary judgment in this matter because the release language was clear, broad, and unambiguous and because the exhibits offered by Plaintiffs in opposition to Defendants’ MSJ do not constitute “substantiating evidence of mistaken intent” so as to permit a court to look beyond the four corners of the release. Brown, 630 So.2d at 749.

With regard to the timing of the filing of the petition for damages in this case, Defendants submit that the fifth circuit has held that the filing of a lawsuit before a plaintiff settled with other responsible parties refuted the plaintiffs lack-of-intent |nargument. Instead, the court held that it demonstrated that the plaintiff knew of her claims against the parties named in the lawsuit when she later signed a release of her claims arising out of an automobile accident. See Silva, 38 So.3d at 938, wherein the fifth circuit noted:

Plaintiff had filed suit previously against State Farm, and was clearly aware of the claim against the UM carrier which arose directly out of the automobile accident. The broadness of the [release] language is clear and unambiguous. It evidences intent to settle and dismiss all claims against anyone arising out of the accident which is the basis of this suit, including State Farm.

Defendants also refute Plaintiffs’ assertion that Yolanda’s deposition testimony that she did not understand the nature of the rights she was releasing amounts to “substantiating evidence of mistaken intent.” Brown, 630 So.2d at 749. Defendants refer this court to Hymel v. Eagle, Inc., 08-1287, pp. 13-14 (La.App. 4 Cir. 3/18/09), 7 So.3d 1249, 1257-58 (citations omitted), writ denied, 09-873 (La. 5/15/09), 8 So.3d 590, wherein the fourth circuit held:

A party represented by counsel may not defeat a written settlement and release that is unambiguous on its face by merely alleging that he did not understand it. Otherwise, no settlement would be enforceable without more litigation which defeats the whole public policy favoring settlements. Signatures on documents are not mere ornaments. If a party can read, it behooves him to examine an instrument before signing it.
A person who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, or that it was not explained or that he did not understand it.
There is little incentive to settle if a party to the settlement agreement may later seek to void it based merely on his self-serving statements, without more, and in the absence of any evidence of fraud or ill practices, that he misunderstood what he signed or that he did not intend to sign what he signed.

| ^Defendants also point out that although Yolanda’s deposition was taken less than two years after she signed the release, she had trouble remembering the circumstances concerning the release.

Defendants submit that the affidavit Yolanda signed more than three-and-a-half years after she signed the release, and only in response to Defendants’ MSJ, is self-serving, conclusory, and devoid of specific underlying facts such that it cannot serve to create an issue of genuine material fact to defeat summary judgment. See Dumas v. Angus Chem. Co., 31,969, p. 7 (La.App. 2 Cir. 8/20/99), 742 So.2d 655, 661 (“Affidavits that are devoid of specific underlying facts to support a conclusion of ultimate ‘fact’ are not legally sufficient to defeat summary judgment.”). Moreover, Defendants claim that it is illogical to believe that Yolanda’s memory concerning the release would be better when she signed the affidavit in June of 2015 than it was at her July 9, 2018 deposition.

Finally, Defendants submit that the September 12, 2013 Medicaid letter offered by Plaintiffs in opposition to the MSJ is irrelevant to the issues of Yolanda’s intent when she signed the release nearly two years before the letter was generated. Defendants refute Plaintiffs’ claim in their brief to this court that “an absurd consequence will result in the event the Court determines that all of the Plaintiffs’ claims are compromised.” Defendants refer this court to our previous pronouncement that “[a] compromise therefore carries the authority of things adjudged, and cannot be attacked for error of law or lesion.” Montgomery v. Montgomery, 11-1223, p. 5 (La. App. 3 Cir. 4/11/12), 87 So.3d 376, 380. They also point to La.Civ.Code Art. 3082 which provides that while “[a] compromise may be rescinded for error, fraud, and other grounds for the annulment of contracts!,] a compromise cannot be rescinded on grounds of error of law or Inlesion.” Defendants further note that “[pjublic policy favors compromise agreements and the finality of settlements” and that “[a] compromise that releases all claims is not ambiguous simply because it is broad.” Hudson, 1 So.3d at 633.

Given the devastating injuries suffered by Raymond and the significant damages that he suffered in the automobile accident made the subject of this lawsuit, we have no doubt that Raymond did not intend to release Huffines and Chrysler when Yolanda signed the release with Wayne and GEICO in exchange for the $25,000.00 limit of the GEICO policy. In fact, the attorney for Chrysler admitted at oral arguments that the result that the law mandates in this matter is harsh. Nevertheless, this court has previously held that:

Equitable considerations and estoppel cannot prevail in conflict with the positive law. La.C.C. Art. 4; Palermo Land Co. v. Planning Comm’n, 561 So.2d 482 (La.1990).
La. Civ.Code Art. 4 provides:
When no rule for a particular situation can be derived from the legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.
There is a rule for this situation provided expressly by positive law which we have already determined in this case is clear and unambiguous.

Gunderson v. F.A. Richard & Associates, 09-1498, p. 15 (La.App. 3 Cir. 6/30/10), 44 So.3d 779, 789.

“It is not the province of the courts to relieve a party of a bad bargain, no matter how harsh.” Hymel, 7 So.3d 1249, 1253. Moreover, the Louisiana Supreme Court has long recognized that “[cjourts are not created to relieve men of their bad bargains made. Where a clause of a contract is clear and unambiguous, 112(the letter of it should not be disregarded, under the pretext of pursuing the spirit.’ ” Maloney v. Oak Builders, Inc., 256 La. 85, 97-98, 235 So.2d 386, 390 (1970).

Here, Plaintiffs do not seek to revoke or nullify the release but rather to have this court find that it does not apply to Defendants. This court was faced with a similar scenario in Baudoin, 974 So.2d 877, 877-78 (footnotes omitted), the facts of which we set out as follows:

[O]n August 10, 2004, the plaintiff, Jeffery J. Baudoin (Baudoin) was injured when a vehicle operated by the defendant, Carlos Ramirez Montoya (Montoya), collided with his vehicle. Baudoin instituted this suit against Montoya and his automobile liability insurer, United Automobile Insurance Company (United). By amended petition, Baudoin added Midwest Air Technologies (Midwest) as a defendant, alleging that Montoya was in the course and scope of his employment with Midwest when the accident occurred. During discovery, Midwest averred that it was not Montoya’s employer in that he was “on loan” from Lone Star Temporary Services, L.C. (Lone Star).
On November 18, 2005, Baudoin signed a receipt and release document whereby he settled his claims with Montoya and United. Baudoin subsequently filed a motion to dismiss the suit and all claims against Montoya and United with prejudice. The trial court signed the order of dismissal on December 7, 2005. In a second supplemental and amended petition, Baudoin added Lone Star as a defendant. In response, Lone Star filed a motion for summary judgment, alleging that “Montoya was not employed by Lone Star ... on August 10,2004 or any other time and was not on a mission for Lone Star ... at the time of the motor vehicle accident which serves as the basis for ... Baudoin’s claims.” The trial court denied the motion. Lone Star subsequently filed a motion to dismiss, in which it moved “pursuant to La.Code Civ.P. Arts. 927(2)2 and 966, to dismiss plaintiffs claims in this matter on the grounds that Jeffery J. Baudoih’s claims against Carlos Ramirez Montoya have been settled.” Midwest filed a motion to dismiss on the same grounds. Following a hearing on February 21, 2007, the trial court ordered that Baudoin’s claims against Lone Star and Midwest be dismissed with prejudice.

We affirmed on appeal, noting:

[W]e find that the broad language of the receipt and release agreement “evinces nothing other than an intent to settle and dismiss all claims against anyone arising of the accident made the basis of the lawsuit.” Black v. Anderson, 06-891, p. 8 (La.App. 5 Cir. 3/13/07), 956 So.2d 20, 24, writ denied, 07-794 (La.6/1/07), 957 So.2d 180. Such intent is established from the following language:
[Baudoin] does hereby release, acquit and forever discharge ... any and all other persons, firms, corporations ..., partnerships and parties whomsoever, from any and all past, present and future claims, demands, compensation, medical expenses, costs, expenses, penalties, attorney’s fees, damages and any and all causes and rights of action, whatsoever, which he may or might have and to which he may be entitled, known and unknown, anticipated and unanticipated, under the workers’ compensation laws of the State of Louisiana, the tort laws, and any and all other laws whatsoever, in any way resulting from and/or to result from the accident which occurred on or about August 10, 2004.
(Emphasis added). Baudoin did not attempt to limit the release language to Montoya and United. Nor did he present any evidence to prove his “lack of intention to release all defendants, when the release plainly states all parties are released[.]” Migliore [v. Traina], 474 So.2d at [980], 984 [ (La.App. 5 Cir. 7/29/85) ]. Cf. Mallet v. Credo Oil & Gas, Inc., 534 So.2d 126 (La.App. 3 Cir.1988), writ denied, 536 So.2d 1237 (La.1989) (wherein this court found that “the language used by plaintiff in the partial dismissal of [the defendant] clearly showed his intent not to release its insurers(s).”)
In light of this evidence, we conclude that the trial court did not err in dismissing Baudoin’s claims against Lone Star and Midwest with prejudice.

Id. at 880.

After having completed a de novo review of the evidence presented in favor of and against Defendants’ MSJ, we conclude that the broad language of the release evidences Raymond’s intent to compromise his claims against all persons or corporations arising out of the October 12, 2010 accident upon which the instant lawsuit arose. Accordingly, the trial court did not err in granting summary judgment in favor of Defendants and dismissing Plaintiffs’ claims against them with prejudice.

luDECREE

For the foregoing reasons, we affirm the trial court decision granting summary judgment in favor of Defendants, Huffines Hyundai McKinney, LP, and Chrysler Group, LLC, dismissing the claims of Plaintiff, Raymond Charles Cressy, against them with prejudice. All costs of this appeal are assessed against Plaintiffs.

AFFIRMED.

Cooks, J., dissents and assigns written reasons.

COOKS, J.,

dissenting.

hi respectfully dissent from the majority’s decision to affirm the grant of summary judgment in this case. I do not oppose the majority opinion solely because it affirms what is, by all parties’ acknowledgment, a very harsh result; but most importantly because it is in contravention of the law.

On an appeal involving a motion for summary judgment, the court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of material fact. All doubts should be resolved in favor of the nonmov-ing party. Hines v. Garrett, 04-806 (La. 6/25/04), 876 So.2d 764. The law is clear that summary judgment is seldom appropriate for determinations based on subjective facts such as motive, intent, good faith, knowledge and malice. Hogg v. Chevron USA Inc., 09-2632 (La. 7/6/10), 45 So.3d 991; Jones v. Estate of Santiago, 03-1424 (La. 4/14/04), 870 So.2d 1002.

The majority quotes the Hymel case wherein the court stated it “is not the province of the courts to relieve a party of a bad bargain, no matter how harsh.” 7 So.3d at 1253. I find it incorrect to equate what happened here as a “bad bargain,” when, as the majority opinion notes, there was never any intent “to release Huffines and Chrysler when Yolanda signed the release.” The only thing bargained for in the release was to settle with GEICO for the limits of its policy. |aNo “bargain” was ever entered into between Plaintiffs and Huffines and/or Chrysler, thus the reliance on Hymel is misplaced.

The majority also cites this court’s opinion in Gunderson, 44 So.3d at 789, for the proposition that “[ejquitable considerations and estoppel cannot prevail in conflict with the positive law.” However, in my view the positive law in this case is in favor of the Plaintiffs. Louisiana Civil Code Article 2045 provides that “[ijnter-pretation of a contract is the determination of the common intent of the parties.” As has been set forth, there is no reasonable belief by anyone [including the defendants and my colleagues] that there was any intent to release Huffines and Chrysler in the settlement contract entered into with GEICO.

It is true, La.Civ.Code Art. 2046 provides that, “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” (Emphasis added) After examining the facts of this case, it is difficult to fathom a more absurd result than what would occur in this case if the motion for summary judgment is granted. The facts are clear that eight days prior to the release of GEICO, Plaintiffs filed a products liability suit against Huffines and Chrysler. The Medicaid hen alone against Plaintiffs was for nearly a quarter of a million dollars. Raymond was also rendered a quadriplegic as a result of the accident and died just two years later largely as a result of his injuries. If Plaintiffs were to ultimately prevail in their products liability case against Huffines and/or Chrysler, it is highly likely the damages awarded would be enormous. To dismiss Plaintiffs’ timely filed suit against two entities in no way involved in the negotiation of the settlement with GEICO, when all sides acknowledge there was no intent to settle Plaintiffs’ claims against them, is an obvious example of an absurd consequence. Huf-fines and Chrysler were not a party to the negotiations with GEICO, did not concede any rights or contribute any proceeds. Therefore, not only do I find this is an unduly |sharsh result against Plaintiffs, more importantly it is a result not countenanced by our statutory law.

“The same rules of contractual interpretation apply to compromises as to other contracts.” Broussard v. Brown’s Furniture of Lafayette, Inc., 13-596, p. 4 (La. App. 3 Cir. 12/11/13), 128 So.3d 640, 643, writ denied, 14-333 (La. 4/11/14), 138 So.3d 605. Louisiana Civil Code Article 3076 provides “[a] compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express.” The Louisiana Supreme Court has stated that article “provides for two elements of a compromise: (1) mutual intention of preventing or putting an end to the litigation, and (2) reciprocal concessions of the parties to adjust their differences.” Trahan v. Coca Cola Bottling Co. United, Inc., 04-100, p. 10 (La. 3/2/05), 894 So.2d 1096, 1104. Again, it is conceded by all parties that there was no intent to settle the claims against Huffines and Chrysler. Moreover, there is no dispute that Huffines and Chrysler did not concede any rights or contribute any proceeds pertaining to the release of GEICO.

The parties’ intent in executing a compromise is normally discerned from the four corners of the document; and extrinsic evidence is normally inadmissible to explain, expand or contradict the terms of the instrument. Brown v. Drillers Inc., 93-1019 (La. 1/14/94), 630 So.2d 741. However, when the parties to a compromise dispute its scope, they are permitted to raise factual issues regarding whether the unequivocal language of the instalment was intended to be truly unequivocal. Id. This permission is only granted when there is some “substantiating evidence” of mistaken intent. Dimitri v. Dimitri, 00-2641 (La. App. 4 Cir. 1/30/02), 809 So.2d 481, 485.

In Brown v. Drillers Inc., supra, the Supreme Court held that “substantiating evidence” must establish: either (1) that the releasor was mistaken as to what he or 4she was signing, even though fraud was not present; or (2) that the releasor did not fully understand the nature of the rights being released or that the releasor did not intend to release certain aspects of his or her claim. I find the record in this case clearly establishes “substantiating evidence” of mistaken intent, or, at the very least, sufficiently posits facts that raise a genuine issue regarding the intent of the parties.

I find the trial court’s reliance on this court’s opinion in Baudoin v. Montoya, 07-910 (La.App. 3 Cir. 1/30/08), 974 So.2d 877, writ denied, 08-479 (La. 5/2/08), 979 So.2d 1284, is misplaced. In that case, we found the plaintiff did not “present any evidence to prove his ‘lack of intention to release all defendants, when the release plainly states all parties are released.’ ” In this case, Plaintiffs presented ample evidence to establish that Yolanda Cressy did not intend to compromise the claims asserted against Huffines and Chrysler herein. Plaintiffs filed suit against Huffines and Chrysler eight days before the release with GEICO. That suit was not dismissed by Plaintiffs following the release. Litigation proceeded for several years, involving motions, discovery and expert consultations, This clearly evidences that Yolanda Cressy did not intend to settle the underlying claims against Huffines and Chrysler, Yolanda Cressy’s testimony also confirms she did not understand the nature of the rights being released and that she did not intend to release Huffines and Chrysler. Moreover, as Judge Iieaty notes in her opinion and opposing counsel confirmed at oral argument Plaintiffs “did not intend to release Huffines and Chrysler when Yolanda signed the release with Wayne and GEICO in exchange for the $25,000.00 limit of the GEICO policy.”

It is inescapable there was, at a bare minimum, a genuine issue regarding the true intent of the parties; in fact, there is no factual dispute by anyone that there was no intent “to release Huffines and Chrysler when Yolanda signed the release.” Therefore, the law allows the courts to look beyond the four corners of the |,r,document in question, regardless of whether it contains any ambiguity. To hide behind a supposed lack of ambiguity in the release document to affirm summary judgment herein, is not simply maintaining a harsh result, but is a disturbing misapplication of our law.

Therefore, I find there was substantiating evidence submitted below to raise, at a minimum, a genuine issue of material fact regarding Plaintiffs’ intent in executing the release. Therefore, summary judgment was not appropriate and I would reverse the trial court’s grant of summary judgment.

      . Raymond died intestate in late 2012, leaving behind no surviving spouse or children. After his death, Defendants filed a motion to substitute Raymond’s alleged biological father as his legal successor. Thereafter, Raymond’s siblings filed a motion to be substituted as his legal successors. After a hearing, the trial court appointed Raymond’s siblings as the proper party plaintiffs. Accordingly, when we say “Plaintiff” or “Plaintiffs” we may be referring to Raymond or to his siblings who are now pursuing his survival claims. We note that Raymond’s heirs did not assert wrongful death claims against Defendants.

      . At some point between the filing of the petition and motion for summary judgment, Chrysler Group LLC became FCA US LLC. We will refer to it as “Chrysler” in this opinion.

      . Yolanda was also a named plaintiff in that action, appearing on behalf of her minor son, Dante Cressy, who was a guest passenger and suffered injuries in the October 12, 2010 accident, Dante’s claims are not at issue in this ■ appeal.

      . Although the GEICO policy is not in the appellate record, Yolanda stated in an affidavit signed on June 17, 2015, that the GEICO policy belonged to her and insured Wayne as a permissive driver of her vehicle. Yolanda’s affidavit was attached as Exhibit C to Plaintiff’s opposition to Defendants’ MSJ.


author: SAVOIE, Judge.

text:
    STATE IN the INTEREST OF B.W., C.D. & C.D.
    16-209
    Court of Appeal of Louisiana, Third Circuit.
    2/22/2017

      Diane E. Cote, Attorney at Law, 825 Kaliste Saloom Road, Brandywine III, Room 150, Lafayette, LA 70508, (337) 262-5913, COUNSEL FOR OTHER APPEL-LEE: State of La., Department of Children & Fam. Services
    Chantel Conrad, Acadiana Legal Services, 1020 Surray St., Lafayette, LA 70501, (337) 237-4320, COUNSEL FOR OTHER APPELLEES: BW.¿ C.D., C.D.
    Lucy Melancon, 15th Judicial Public Defender’s Office, P. O. Box 252, Crowley, LA 70527, (337) 889-5669, COUNSEL FOR APPELLANT: T.W.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

bT.W. appeals the decision of the trial court terminating her parental rights to her minor children, B.W., C.D., and C.D. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 20, 2014, the State of Louisiana, Department of Children and Family Services (DCFS) received a report indicating that T.W., the biological mother of B.W., born September 22, 2005, C.D., born November 11, 2007, and C.D., born July 25, 2012, was incarcerated on the charge of Armed Robbery. Her bond was set at $100,000. It was further reported that the children’s father, R.D., was also incarcerated for Simple Battery of the Infirm. The children were residing with them maternal grandmother, T.R., and maternal aunt, B.W.

Because T.W. lived with T.R. and her sister, the children primarily resided with them as well. However, immediately prior to DCFS’s involvement, C.D. and C.D. began residing with their paternal grandparents, B.P. and W.P. T.R. and the aunt admitted to using a methamphetamine more commonly known as crystal meth. The aunt also admitted to illegal use of the drug suboxine. Due to suffering from a previous stroke, T.R. was on multiple prescription medications. T.R. and the aunt both agreed to submit to a urinalysis screening. The aunt tested positive for Amphetamines and Methamphetamines. T.R.’s urine was unable to be tested after she admitted to pouring water in the specimen cup to dilute the results. There were allegations that B.P. and W.P. were also using the illegal drugs cocaine and marijuana.

|2The DCFS case worker observed that the home of T.R. and the aunt had minimal food, no refrigerator and no stove. The minor child, B.W., could not recall the last time that she had eaten. At the time of the report, both C.D. and C.D. had lice, scabies and ringworms. The two school aged children, B.W. and C.D., had not attended school in over a year. B.W. reported that she taught herself math by looking at books and counting on her fingers.

On March 24, 2014, an instante order, along with the supporting affidavit of Bridget LeDoux, investigator with DCFS, was filed and signed by the trial court, placing the children in the temporary custody of DCFS. On May 12, 2014, this case came for hearing wherein the trial court took evidence and, thereafter, DCFS requested that the case be adjudicated as a Child In Need of Care (CINC) case. DCFS further requested that it have con-timed custody with the placement to remain the same. DCFS’s requests were ordered by the court.

This matter came for review on August 25, 2014, February 11, 2015, May 20, 2015, and August 5, 2015. A case plan was developed for B.W., C.D. and C.D. B.W. and the elder C.D. were placed in the home of E.G., a certified foster home, in New Iberia, LA. The younger C.D. was placed in the certified foster home of B.B., also in New Iberia, LA. Visitation was scheduled for T.W. with the children every other Wednesday from 1:30 p.m. to 2:30 p.m. at the Acadia Parish DCFS office in Crowley, LA. In an August 12, 2014 report to the trial court, T.W. was reported to have visited her children according to the visitation schedule since her release from incarceration. R.D. had not visited the children since he was released from his incarceration. T.W. informed DCFS that she did not want her children placed with any of her or R.D.’s relatives. The goal for B.W., C.D., and C.D. was reunification with a concurrent goal of adoption.

13At the February 11, 2015 review hearing, the goal was changed from reunification to adoption. The court found that there was a lack of parental progress in the case plan which prevented the children from being reunited with their parents. Judgment was signed February 15, 2015.

On June 12, 2015, a Petition for Termination of Parental Rights and Certification for Adoption was filed by DCFS. It alleged that the minor children B.W., C.D., and C.D., had been in the custody of DCFS since March 20, 2014 because of neglect due to dependency on drugs in their home, physical abuse of the children, and lack of adequate shelter and food. The petition requested that the parental rights of T.W. and R.D. be terminated based on their failure to comply with the case plan and based on the same behavior that led to the children’s removal being present. A termination of parental rights hearing was set for September 16, 2015.

A case review hearing was held August 5, 2015. At that hearing, both T.W. and R.D. entered general denials in response to the allegations in the Petition for Termination of Parental Rights. On September 16, 2015, the trial was continued to October 28, 2015, and a transport order was signed by the trial court, ordering the Acadia Parish Correctional Center to transport R.D. to the Crowley District Courthouse on October 28, 2015 for the termination of parental rights hearing.

T.W. was not present at the termination of parental rights hearing on October 28, 2015. Her attorney stated that, while T.W. was present earlier in the day, at some point she left, even though her attorney advised her that the trial would go forward that day. R.D. did attend the hearing.

Keashia Benoit, a child welfare specialist, was called as the first witness. She worked on the case from March 2014 until December 2014. Part of T.W.’s Lease plan was to secure stable housing, however, Ms. Benoit testified that she failed in this regard. From March 2014 until May 2014, T.W. was incarcerated. After she was released, she would not let Ms. Benoit know where she was living with the exception of two occasions. Ms. Benoit was able to observe a home on the outskirts of Crowley, LA. Ms. Benoit testified that the home did not have room for the children because she had a roommate, someone who had also had their parental rights terminated. The second place Ms. Benoit was able to visit was within the city limits of Crowley, LA, however, T.W. never allowed Ms. Benoit into that home for observation. The rest of the time that Ms. Benoit worked on the case, T.W. did not seem to have a permanent residence and moved around a lot. T.W. did not want to give Ms. Benoit information about with whom she was staying.

T.W. also had a mental health component to her case plan. She was referred to Crowley Mental Health Center, but she never made an appointment. Crowley Mental Health Center was also the place that T.W. would have sought help for her substance abuse problem—another component of her case plan. She did not followup on this referral.

According to the case plan, T.W.’s parental contribution was seventy-five dollars (twenty-five dollars per child) per month. During the time that Keashia Benoit worked on the case, T.W. never contributed monetarily to the children’s welfare. She never provided Ms. Benoit with proof of legal income.

T.W. submitted to a drug screen once during this period, and the result was negative. She was also referred for parenting classes as part of her case plan. They were to be in-home classes, however, because Ms. Benoit never knew where T.W. was living, she was unable to set up the parenting classes. Ms. Benoit mailed |5T.W. a letter regarding January parenting classes. Ms. Benoit stopped working on the case in December and did not know if T.W. followed through with the classes.

T.W. did show up for her visits with the children. She rarely missed a visit, and she provided snacks and toys.

Ms. Benoit further testified that the youngest child, C.D., was placed in the foster home of L.T., who is willing to adopt him. The two older children, B.W. and C.D., were placed in the foster home of E.G. DCFS was in the process of finding a certified adoptive home for them.

While they were in E.G’s home, B.W. and C.D. began disclosing things about previously being touched when they were in the custody of their parents. Certain behavior also raised red flags. Because of this, Ms. Benoit referred them for counseling.

Kimberly Blair, a child welfare specialist, also testified at the hearing. Ms. Blair took over the case in December 2014 as Ms. Benoit was leaving. She was still on the case at the time of trial. T.W. did provide Ms. Blair with an address where she resided. Ms. Blair was offered access to that home in February 2015. She determined that it was inadequate as stable housing because it was not furnished, it was cold, and there were clothes thrown all around the floor. It was uncertain whether T.W. was even a legal occupant of the home. In March 2015, T.W. was evicted from the home, whereupon she moved into a hotel. In April, T.W. moved again, but she was soon forced to move from that house as well. Ms. Blair also stated that a collateral source informed her that there was marijuana and pill usage in the home, and there were men in and out of the home with guns and bullets. T.W. next moved in with her boyfriend’s mother. It was a two-bedroom home; she and her boyfriend lived in one bedroom, and his mother lived in the pother bedroom. At some point, T.W. moved out of this residence and into another hotel, but, she later moved back into the home of her boyfriend’s mother.

T.W. never provided Ms. Blair any proof that she had a mental health evaluation. She paid one payment of fifteen dollars towards her parental contribution for the children. Since Ms. Blah- has been on the case, T.W. has only missed four visits with her children. Regarding the drug screens administered to T.W. during Ms. Blair’s tenure, she refused to have a hair screening done once, which DCFS counts as a positive result. All of T.W.’s urine screening came back negative.

Based on the evidence heard at the termination of parental rights hearing, the trial court terminated the parental rights of T.W. and R.D. T.W. appeals the judgment.

DISCUSSION

1. Standard ofRevieiv

The standard of review applicable to a termination of parental rights case is set forth in State in Interest of M.C., 16-69, pp. 7-8 (La.App. 3 Cir. 6/1/16), 194 So.3d 1235, 1240-41 (Citations omitted), which states:

A trial court’s findings on whether or not parental rights should be terminated are subject to the manifest error standard of review. In a case involving the involuntary termination of parental rights, there are two separate private interests involved: those of the parents and those of the child. A parent has a natural and fundamental liberty interest in the continuing companionship, care, custody, and management of their children’s lives which warrants great deference. In opposition to the parent’s interest is the child’s interest in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. In termination proceedings, the interest of the parent must be balanced with the interest of the child, and courts of this state have consistently found the interest of the child to be paramount over that of the parent.

17Louisiana Children’s Code Article 1035(A) requires that “[t]he petitioner bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence.” In a termination of parental rights case, DCFS must establish two factors: (1) one of the grounds listed in La.Ch.Code art. 1015 by clear and convincing evidence; and (2) that the termination of parental rights is in the children’s best interest. State in Interest of M.C., 194 So.3d 1235.

The trial court found that DCFS “met its burden of proof by clear and convincing evidence under Louisiana Children’s Code Article 1015(4) and 1015(5),” supporting the termination of T.W.’s parental rights.

II. Louisiana Children’s Code Article 1015

Louisiana Children’s Code Article 1015 sets forth the grounds for terminating parental rights. It states in pertinent part:

(4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child’s parent continue to be unknown.
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
|s(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

In the present case, the trial court found that:

[G]reater than one year ha[d] elapsed since the children were removed from the parents’ custody; that said parents have failed to provide significant contribution to the children’s care and support for any six month period; that said parents have failed ⅜0 maintain significant contact with the children by not visiting with them or communicating with for a period of six months; that said parents have failed to substantially comply with their respective case plans including but not limited to failing to complete substance abuse treatment, failing to comply with mental health treatment, failing to obtain and maintain adequate and stable housing, failing to visit with the child as scheduled, failing to maintain consistent contact with the agency, and lack of substantial improvement in redressing the problems preventing reunification; that there is no reasonable expectation of significant improvement in said parents’ condition or conduct in the near future; and, that the termination of parental rights is in the best interest of the minor children.

Louisiana Children’s Code Article 1036 states that:

C. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1)The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
|9(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.
D. Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

It is clear from the evidence that T.W. was not compliant with her case plan. Based on the testimony of Ms. Benoit and Ms. Blair, T.W. rarely had stable and secure housing, at times living in a hotel. T.W. moved around a lot and was evasive in her whereabouts with DCFS. On the rare occasion that DCFS was able to visit T.W., she would block entry or it was determined that the housing was unsuitable for the three minor children.

Additionally, T.W. failed to provide parental contributions to her children. Her case plan set her financial contribution at seventy-five dollars per month. During the entirety of the children’s custody with DCFS, T.W. contributed fifteen dollars for their care. There was no proof that T.W. had secured employment, because she never provided Ms. Blair or Ms. Benoit with proof of legal income.

hiiTW. never attended the required parenting classes or had a mental health evaluation as required by her case plan. While T.W. consistently visited with her children during the appointed visitation schedule, the evidence is clear that T.W. did not take any steps toward improving her situation, which is the purpose of the case plan. It is telling that T.W. did not deem the termination of parental rights hearing important enough to attend.

Based on the foregoing, we find that the trial court did not commit manifest error in finding that DCFS met its burden of proof under La.Ch.Code art. 1015(4) and 1015(5).

III. Best Interest of the Children

The second factor in determining whether to terminate T.W.’s parental rights is whether the termination is in the best of the children. State in Interest of M.C., 194 So.3d 1235. The trial court found that termination was in the best interest of the children.

The record reflects that the children have been placed in loving and secure homes. The two older children, B.W. and C.D., have been in the same home since the beginning of their custody with DCFS. The younger C.D. has been in DCFS custody since he was twenty months old and is thriving. His foster family is willing to adopt him.

When weighing the rights of the parent against the rights of the children, “courts of this state have consistently found the interest of the child to be paramount over that of the parent.” Id. at 1241. As such, we find that the trial court did not commit manifest error in determining that termination of parental rights was in the best interest of the children.

InDECREE

The judgment of the trial court is affirmed. All costs are assessed to T.W.

AFFIRMED.

      . Pursuant to Uniform Rules—Courts of Appeal, Rules 5-1 and 5-2, the initials of the parties will be used to protect and maintain the privacy of the minor children involved in the proceeding.

      . Louisiana Children’s Code Article 1015 was amended, effective August 1, 2016, thereby changing the number of former Article 1015(4) to 1015(5) and former Article 1015(5) to 1015(6). The former article is cited in this opinion for consistency with the trial court.


author: HOLDRIDGE, J. 11Welch, J.,

text:
    GUICHARD OPERATING COMPANY, LLC and the Gray Insurance Company v. Todd PORCHE Todd Porche v. Guichard Operating Company, LLC and the Gray Insurance Company
    2015 CA 1942, 2015 CA 1943
    Court of Appeal of Louisiana, First. Circuit.
    January 05, 2017

      Donald R. Richard, Jr., Eunice, LA, Attorney for Plaintiff/Appellant, Todd Porche

      Eric J. Waltner, Lafayette, LA, Attorney for Defendants/Appellees, Guichard Operating Company, LLC and the Gray Insurance Company
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.HOLDRIDGE, JJ.
   HOLDRIDGE, J.

Lin this workers’ compensation action, the employee, Mr. Todd Porche, appeals the judgment of the Office of Workers’ Compensation Administration (OWCA) denying his claim for reinstatement of workers’ compensation benefits. The employer, Guichard Operating Co., LLC (Guichard), and its insurer, The Gray Insurance Company (Gray), answer the appeal. Based on a careful review of the record before us, we affirm.

FACTUAL AND PROCEDURAL HISTORY

When Mr. Porche was working for Guichard as a derrick hand, he fell from a height of eight to fourteen feet onto the steel rig floor, injuring his back and head. Gray paid workers’ compensation benefits from September 11, 2018, the date of the accident, through March 13, 2014. On March 14, 2014, Guichard and Gray filed a disputed claim for compensation against Mr. Porche. They alleged that he violated La. R.S. 23:1208 and 23:1208.1 and therefore forfeited all benefits and owed restitution, interest, and costs. Mr. Porche on April 23, 2014 also filed a disputed claim for compensation against Guichard and Gray, alleging that his workers’ compensation benefits had been wrongfully terminated, that a recommended back surgery was wrongfully denied, and that he was entitled to penalties and attorney’s fees. The two actions were consolidated.

After a four-day trial (October 9, 2014, October 10, 2014, November 17, 2014, and March 26, 2015), the workers’ compensation judge rendered judgment denying Mr. Porche’s claims, denying Guichard and Gray’s claims, and assessing each party with its own costs. The judgment was signed on August 12, 2015. | ^Meanwhile, Mr. Porche filed a motion to reopen the case on June 5, 2015, a hearing was held on June 19, 2015, and the judgment denying the motion was signed on October 6, 2015.

Mr. Porche appealed, asserting that the workers’ compensation judge erred in: (1) denying his motion to reopen the case and submit new evidence and (2) holding that he did not meet his burden of proof in establishing by a preponderance of evidence that his back fracture was due to the work-related fall. Guichard and Gray answered the appeal, contending that the workers’ compensation judge erred in: (1) failing to find that Mr. Porche violated La. R.S. 23:1208 due to his alleged misrepresentations about selling scrap metal and income therefrom; (2) failing to find that Mr. Porche violated La. R.S. 23:1208 due to his alleged misrepresentations about his prior medical history and injury history; (3) failing to find that Mr. Porche violated La. R.S. 23:1208.1; and (4) failing to assess Mr. Porche with costs.

STANDARD OF REVIEW AS TO FACTUAL FINDINGS

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Richardson v. North Oaks Hosp., 2011-1258 (La.App. 1 Cir. 2/13/12), 91 So.3d 361, 365. In applying this standard of review, the appellate court must determine whether the fact finder’s conclusions are reasonable, not whether the trier of fact was right or wrong. Id. Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Even where the appellate court is convinced it would have weighed the evidence differently if it had been sitting as trier of fact, the court of appeal may not reverse if the fact finder’s findings are reasonable in light of the record reviewed in its entirety. Id. When findings are based on a credibility determination, a fact finder’s |4decision to credit the testimony of one of two or more witnesses can virtually never be manifestly erroneous. Clark v. Godfrey Knight Farms, Inc., 2008-1723 (La.App. 1 Cir. 2/13/09), 6 So.3d 284, 290, writ denied, 2009-0562 (La. 5/29/09), 9 So.3d 163. The workers’ compensation judge has considerable discretion in accepting or rejecting expert testimony. See Jackson v. Stanley, 2013-1686 (La.App. 1 Cir. 5/30/14), 147 So.3d 743, 746. Expert testimony is to be weighed the same as any other evidence, and the trier of fact may accept or reject, in whole or in part, the opinion expressed by an expert as to ultimate facts, based upon the other evidence submitted at trial. See Estate of Riggs v. Way-Jo, L.L.C., 2011-1651 (La.App. 1 Cir. 12/28/12), 2012 WL 6737835, p. 12, writs denied, 2013-0239, 2013-0246, 2013-0253 (La. 4/1/13), 110 So.3d 587. Where a workers’ compensation judge’s factual determinations are based on a credibility determination, the manifest error standard of review demands great deference to the trier of fact’s findings, for only the fact finder can be aware of the variations in demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said. Varnado v. Sanderson Farms, 2014-1305 (La.App. 1 Cir. 3/6/15), 166 So.3d 340, 344.

MR. PORCHE’S ASSIGNMENT OF ERROR NUMBER TWO

We will initially consider Mr. Porche’s second assignment of error regarding whether the workers’ compensation judge erred in finding that he did not establish that the work accident caused his disability. In very thorough written reasons for judgment, the workers’ compensation judge found the September 11, 2013 work accident caused a head laceration and a soft tissue muscular injury. She determined that the T-12 vertebrae fracture that Mr. Porche sought to attribute to the fall occurred before this work accident. Further, the workers’ compensation judge found that the fracture was not aggravated by the accident, but the muscle ^tissues and ligaments surrounding the area were. She concluded that those issues resolved by the time benefits were terminated on March 13, 2014, and that any remaining disability was due to Mr. Porche’s preexisting condition.

As the workers’ compensation judge stated in her reasons for judgment, Mr. Porche was in eleven accidents from 1995 through 2013, excluding the September 11, 2013 accident. Two accidents were work-related and the remaining eight were motor vehicle accidents. Mr. Porche reported back pain, among other issues, following eight of his prior accidents. In a 2005 accident, Mr. Porche fell, injured his neck and back, and sustained a compression fracture of the T-12 vertebrae. On March 13, 2013, he was in a motor vehicle accident requiring subsequent medical treatment through July 23, 2013. His complaints included back pain, and he settled his claim for $10,000.00 on September 24, 2013, less than two weeks after the September 11,2013 work accident. -

Guichard and Gray’s medical expert, Dr. Christopher Cenac, who performed an independent medical examination on Mr. Porche and reviewed his complete medical history, opined that “any issues [Mr. Porche] had certainly pre-dated this alleged injury” and had “absolutely nothing to do with the work-related accident.” Mr. Porche did not have a medical expert testify to refute Dr. Cenac’s medical opinion. The workers’ compensation judge found that because of the closeness in time between Mr. Porche’s March 2013 car accident and his September 2013 work accident, he was not entitled to the presumption of causation. We have reviewed the evidence and find no manifest error in the workers’ compensation judge’s finding that Mr. Porche failed to prove that the back fracture and any , disability | ^herefrom were not due to the fall. See Magee v. Abek, Inc., 2004-2554 (La.App. 1 Cir. 4/28/06), 934 So.2d 800, 806, writ denied, 2006-1876 (La. 10/27/06), 939 So.2d 1287. Mr. Porche’s second assignment of error lacks merit.

GUICHARD AND GRAY’S ASSIGNMENTS OF ERROR NUMBERS ONE, TWO AND THREE

We will next consider Guichard and Gray’s assignments of error as to the workers’ compensation judge’s finding that Mr. Porche did not violate La. R.S. 23:1208 and 1208.1. Pursuant to La. R.S. 23:1208, an employee who makes a false statement for the purpose of obtaining workers’ compensation benefits shall forfeit any right to compensation benefits. This broadly-worded statute encompasses any false statements or misrepresentations made to anyone, including the employer, physicians or insurers, when made willfully or deliberately for the purpose of obtaining benefits. Malone-Watson v. Strategic Restaurants, 2014-1191 (La.App. 1 Cir. 6/11/15), 176 So.3d 417, 419. An employer has the burden of proving each element within the statute and the lack of any one of the elements is fatal to the employer’s avoidance of liability. Varnado, 166 So.3d at 343. However, the burden of proof under. La. R.S. 23:1208 requires more than a mere showing of inconsistent statements or inadvertent admissions by the claimant. Clark, 6 So.3d at 290. Rather, there must be a showing that a misrepresentation was willfully made for the purpose of obtaining benefits. Id. The statutory forfeiture of workers’ compensation benefits for misrepresentations concerning those benefits is a harsh remedy and must be strictly construed. Malone-Watson, 176 So.3d at 420. The issue of whether an employee forfeited workers’ compensation benefits is one of fact, which is not to be overturned on appeal absent manifest error. Clark, 6 So.3d at 290.

17The workers’ compensation judge found that Mr. Porche did not violate La. R.S. 23:1208 when he earned $1,355.09 selling 15,132 units of scrap metal after the accident through July 25, 2014. The workers’ compensation judge found that due to Mr. Porche’s intellectual level, his limited ability to read and write, and his failure to understand what activities were prohibited under the statute, .he did not engage in a willful false representation to obtain workers’ compensation benefits when he sold scrap metal. See Frederick v. Port Aggregates, Inc., 2007-552 (La.App. 3 Cir. 10/31/07), 968 So.2d 1169, 1173-74.

The evidence clearly establishes that Mr. Porche gave a false statement in his deposition as to whether or not he was selling scrap metal. The question then becomes whether Mr. Porche made the statement “for the purpose of obtaining or defeating any benefit of payment.” See La. R.S. 23:1208(A). La. R.S. 23:1208(G) provides that when an employee receives benefits for more than thirty (30) days, the employee shall upon reasonable request report his other earnings to his employer’s payor on a form prescribed by the director and signed by the employee. Clearly, the sale of scrap metal would fall into the category of “other earnings.” Mr. Porche did submit such a report as requested on October 16, 2013. LWC-WC-1025EE. Form 1025EE, however, provides in part, “[a]s an injured worker, you must notify your employer or insurer of the earnings of any wages, .... ” (Emphasis added). Black’s Law Dictionary and Webster’s Dictionary define a Rwage as a payment for services. See BLACK’S LAW DICTIONARY 815 (Abridged 5th ed. 1983) and Webster’s Ninth New Collegiate Dictionary (1991). The sale of scrap metal by Mr. Porche, therefore, is not a wage. Hence, Mr. Porche did not violate La. R.S. 23:1208 because the Form 1025EE Mr. Porche signed speaks in terms of reporting wages and La. R.S. 23:1208 speaks in terms of reporting earnings. The term “earnings” is defined in Black’s Law Dictionary as being broader in meaning than wages and specifically includes “the sale of goods.” See BLACK’S LAW DICTIONARY 266 (Abridged 5th ed. 1983). This inconsistency creates ambiguity and confusion. Therefore, Guichard and Gray’s first assignment of error lacks merit.

Guichard and Gray also assign as error the workers’ compensation judge’s finding that Mr. Porche did not violate La. R.S. 23:1208 by presenting an incomplete medical history after the accident to one or more medical providers, specifically Dr. Cenac and Terrebonne General Medical Center. The workers’ compensation judge stated that Mr. Porche did not misrepresent his previous medical history at the hospital because he suffered trauma after falling from eight to fourteen feet. The workers’ compensation judge also stated that Mr. Porche did not violate La. R.S. 23:1208 by providing Dr. Cenac with an incomplete medical history because Dr. Cenac had Mr. Porche’s medical records. She also commented that Dr. Cenac testified that he generally reviewed a patient’s medical history after examining the patient and that he noted in his initial report that Mr. Porche had been in nine previous accidents, so he was aware of Mr. Porche’s prior medical | ¡¡history. After thoroughly reviewing the testimony and evidence, we cannot say that the workers’ compensation judge’s findings that Mr. Porche did not violate La. R.S. 23:1208 are manifestly erroneous. Their second assignment of error lacks merit.

Guichard and Gray complain that the workers’ compensation judge erred in finding that Mr. Porche did not violate La. R.S. 23:1208.1 in failing to completely disclose his medical history on his job application forms. In her reasons for judgment, the workers’ compensation judge stated that Mr. Porche did not violate La. R.S. 23:1208.1 because Ms. Deborah Hanks, the secretary for Guichard, testified that Mr. Porche was hired without the second injury questionnaire being answered. She noted that Mr. Porche was removed from the room while the medical history questionnaire was being completed, and he relied upon his wife, Mrs. Stacie Porche, to complete the application for him. The workers’ compensation judge also stated that Mr. Porche worked for Guichard on án'd off over several years, making Guichard knowledgeable and aware of Mr. Porche’s physical abilities and condition.

Guichard and Gray contend that they were prejudiced by Mr. Porche’s answers because they affected Guichard’s ability to receive reimbursement from the second injury fund. They assert that Mr. Porche had a pre-existing permanent | inpartial disability in the form of a multiple cervical disc herniation and that Dr. Cenac testified as to the “merger” of the subsequent injury with this pre-existing permanent partial disability. Guichard and Gray also challenge Mr. and Mrs. Porche’s testimony as to the circumstances surrounding their filling out the form. They argue that the Porches’ testimony was inconsistent as to why Mrs. Porche answered “none” as to “6. What operations, accidents, broken bones, strains or serious illness have you had?” Therefore, they contend that the workers’ compensation judge erred in accepting the Porches’ testimony.

La. R.S. 23:1208.1 provides for the forfeiture of a claimant’s workers’ compensation benefits when.(l) the claimant made false statements concerning a prior injury in response to such an inquiry (untruthful statements), (2) the false statements are directly related to the medical condition for which the claimant is seeking benefits or to the employer’s ability to receive reimbursement from the second injury fund (prejudice to the employer), and (3) the employer has provided contemporaneous notice to the claimant that false statements made in response to the inquiry may result in forfeiture of workers’ compensation benefits (compliance with statutory notice provisions). See Ambeau v. Cajun Constructors, Inc., 2002-2503 (La.App. 1 Cir. 9/26/03), 855 So.2d 964, 967, writ denied, 2003-3029 (La. 1/30/04), 865 So.2d 81; Buggage v. Volks Constructors, 2005-2002 (La.App. 1 Cir. 9/20/06), 945 So.2d 33, 35, writ denied, 2006-2757 (La. 1/26/07), 948 So.2d 170. The employer has the burden of proving each of the elements required by the statute. Nabors Drilling USA v. Davis, 2003-0136 (La. 10/21/03), 857 So.2d 407, 414.

The “prejudice” that must be incurred by the employer for forfeiture to apply is specifically defined by the statute. Nabors, 857 So.2d at 415. Under the first prong of the “prejudice to the employer” test, a direct relation is established when |nthe subsequent injury was inevitable or very likely to occur because of the presence of the pre-existing condition. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La. 1/21/98), 707 So.2d 1214, 1220. Under the second prong, involving “merger,” the employer must prove that the employee had a permanent partial disability that merged with the injury to produce a greater disability than would have resulted from the subsequent injury alone. Id.; see also La. R.S. 23:1371(0.

Guichard and Gray focus in their brief on the worker’s compensation judge’s statements in her reasons for judgment that Mr. Porche’s wife completed the medical history form because he was called away by a Guichard employee to watch a safety video and take a drug test. The record establishes that Mr. Porche repeated third, fourth and sixth grades; dropped out of school at sixteen years old; and could “barely read or write.” He had vocational testing that indicated he read at a second grade level, could be classified as illiterate and “would not be capable of functioning in office environments which require ... completion of forms.” In his medical records from Our Lady of Lourdes dated February 25, 2004, the comment section of the patient information form contains the statement, “Patient states he can not [sic] read or write ....” He testified that he could not read the newspaper. Mrs. Porche testified that her reading skills were also limited. She dropped out of school in the seventh grade and relied on her sister-in-law to help her with the application. Of the four medical history questionnaires that Guichard and Gray submitted into evidence, Mrs. Porche filled out most of the applications and Mr. Porche signed them.

|1gMr, and Mrs. Porche testified that Ms. Hanks indicated that they did not need to worry about writing all of Mr. Porche’s doctors’ names and all of his muscle strains. Ms. Hanks denied these statements when she testified. She also testified that she did not ask him about question 6 because “none” was written after it so she assumed he understood the question. However, she also testified that she did ask him whether his answer “none” was correct. She responded affirmatively when asked whether Mr. Porche was hired before he finished filling out the application because Clyde, who was in charge of hiring, brought him to take a drug screen and watch a safety video.

Moreover, Guichard and Gray did not establish that they were prejudiced by his failure to disclose his prior injuries. In their appellate brief, Guichard and Gray rely on the following testimony from Dr. Cenac to establish prejudice:

Q: [B]ut if he has any injury, wouldn’t that merge with his prior condition to create a greater problem and a greater out of work time and a greater everything than otherwise would have been there?
In other words, if somebody is healthy and there [isn’t anything] wrong with them, they have an injury, those people who were healthy beforehand would heal up quicker and et cetera than somebody with a history like this; isn’t that right?
A: Absolutely.

This testimony alone is insufficient to meet the employer’s burden of proof pursuant to La. R.S. 23:1208.1. Forfeiture is a harsh remedy; therefore, statutory forfeiture provisions such as La. R.S. 23:1208.1 must be strictly construed. Nabors, 857 So.2d at 414. As with the workers’ compensation judge’s previous rulings, the ruling that Guichard and Gray are not entitled to penalties under La. R.S. 23:1208.1 is also a factual finding, which is supported by the record and is not manifestly erroneous. This assignment of error lacks merit.

J^GUICHARD AND GRAY’S ASSIGNMENT OF ERROR NUMBER FOUR

In their fourth assignment of error, Guichard and Gray contend that the workers’ compensation judge abused her discretion in ordering the parties to bear their own costs. In workers’ compensation cases, the awarding of costs is governed by La. R.S. 23:1317(B), pursuant to which the matter lies within the sound discretion of the workers’ compensation judge. Nitcher v. Northshore Reg’l Med. Ctr., 2011-1761 (La.App. 1 Cir. 5/2/12), 92 So.3d 1001, 1013, writ denied, 2012-1230 (La. 9/21/12), 98 So.3d 342. We conclude the workers’ compensation judge did not abuse her discretion, particularly since the parties did not prevail on any of their claims. This fourth assignment of error lacks merit.

MR. PORCHE’S ASSIGNMENT OF ERROR NUMBER ONE

Lastly, we consider Mr. Porche’s first assignment of error in which he contends that that the workers’ compensation judge erred in refusing to reopen the record so he could submit additional evidence that he alleged was unforeseen and did not exist at the time of trial. More specifically, he sought to introduce evidence that in April and May of 2015, Mr. Porche went to Shreveport Medical Hospital, a charity hospital, and had the surgery previously recommended on his back by Dr. George R. Williams, an orthopedic surgeon who saw Mr. Porche on October 1 and 22, 2013, January 23, 2014, and June 10, 2014. The reopening of a case is within the discretion of the district court and will not be interfered with by the reviewing court absent manifest error. Nezat v. Guzman, 2014-0358 (La.App. 1 Cir. 3/17/15), 2015 WL 1231551, p. 3, writ denied, 2015-0748 (La. 5/15/15), 170 So.3d 970. Considering the record and these precepts, we find no abuse of discretion in the workers’ compensation judge’s refusal to reopen this case. The testimony and evidence at trial showed that the surgery was not unforeseen because it had been recommended before the trial; moreover, Mr. Porche did not show that the more recent treating physicians would have had a better opinion on causation than those treating him closer to the time of injury. Mr. Porche’s first assignment of error lacks merit.

DECREE

For the reasons discussed above, we affirm the workers’ compensation judgment. The costs of this appeal are assessed one-half to Todd Porche and one-half to Guichard Operating Company and The Gray Insurance Company.

AFFIRMED.

Welch, J., Concurs and assign reasons.

Crain, J., Concurs.

11Welch, J.,

concurs.

I respectfully concur and write separately to point out that the evidence clearly establishes that Mr. Porche gave a false statement in his deposition as to whether or not he was selling scrap metal. The question then becomes whether Mr. Porche made the statement “for the purpose of obtaining or defeating any benefit of payment.” See La. R.S. 23:1208(A). La. R.S. 23:1208(G) provides that when an employee receives benefits for more than thirty (30) days, the employee shall upon reasonable request report his other earnings to his employer’s payor on a form prescribed by the director and signed by the employee. Clearly, the sale of scrap metal would fall into the category of “other earnings.” Mr. Porche did submit such a report as requested on October 16, 2013 LWC-WC-1025EE. Form 1025EE, however, provides in part, “[a]s an injured worker, you must notify your employer or insurer of the earnings of any wages, ...." (Emphasis added). |2Black’s Law Dictionary and Webster’s Dictionary define a wage as a payment for services. See BLACK’S LAW DICTIONARY 815 (Abridged 5th ed. 1983) and Webster’s Ninth New Collegiate Dictionary (1991). The sale of scrap metal by Mr. Porche, therefore, is not a wage. Hence, the majority is correct in finding Mr. Porche did not violate La. R.S. 23:1208 because the Form 1025EE Mr. Porche signed speaks in terms of reporting wages and La. R.S. 23:1208 speaks in terms of reporting earnings. The term earnings is defined in Black’s Law Dictionary as being broader in meaning than wages and specifically includes “the sale of goods.” See BLACK’S LAW DICTIONARY 266 (Abridged 5th ed. 1983). This inconsistency creates ambiguity and confusion.

Thus, I respectfully concur.

      . Louisiana Revised Statutes 23:1208 provides that an employee forfeits workers’ compensation benefits and is subject to criminal and civil penalties for willfully making false statements or representations to obtain such benefits. Louisiana Revised Statutes 23:1208.1 provides that an employee forfeits workers' compensation benefits for failing to answer truthfully an employer's inquiry into the employee’s previous injuries, disabilities or other medical conditions.

      . A presumption of causation is appropriate if the employee's symptoms did not manifest before the accident, but commenced with the accident and manifested themselves thereafter, and if either medical or circumstantial evidence indicated a reasonable possibility of causal connection between the accident and the onset of those symptoms. See Magee v. Abek, 2004-2554 (La.App. 1 Cir. 4/28/06), 934 So.2d 800, 807, writ denied, 2006-1876 (La. 10/27/06), 939 So.2d 1287.

      . The full text of the paragraph in Form 1025EE quoted above provides:
      It is unlawful for you to work and receive workers’ compensation disability benefits, except for supplemental earnings benefits. Supplemental earnings benefits are paid when an employee is able to work, but is unable to earn 90% or more of his pre-injury wages as a result of a job related accident. As an injured worker, you must notify your employer or insurer of the earning of any wages, changes in employment or medical status, receipt of unemployment benefits, receipt of social security benefits and receipt of retirement benefits. If you receive benefits for more than 30 days, you wili be required to certify your earnings to you insurer quarterly.
      (Emphasis added).

      . While Dr. Joni Claville, the emergency room physician who treated Mr. Porche, testified that he was awake and alert when she treated him, "lost consciousness” is circled in the medical records from Terrebonne General Medical Center under "associated symptoms." Also, the records include the statement, "Unreliable history concerning any possible head injury.” Moreover, Dr. Cenac testified that Mr. Porche told him he "kind of blacked out” when he fell.

      . Dr. Cenac stated in his report that Mr. Porche had a "very complex medical history,” specifically noting the two 2013 motor vehicle accidents and his long history of back and neck complaints dating back to 1995. Mr. Porche testified that Dr. Cenac had all his medical records when Dr. Cenac saw him for his independent medical examination.

      . We note that the workers’ compensation judge considered whether Mr. Porche violated La. R.S. 23:1208 when filling out the post-hire medical questionnaire form. She found that Mr. Porche did not violate La. R.S. 23:1208 because he did not remember prior injuries and was taken away to watch a video and take a drug test before the application was complete. However, as the Louisiana Supreme Court explained in Resweber v. Haroil Const. Co., 94-2708 (La. 9/5/95), 660 So.2d 7, 14, La. R.S. 23:1208.1 applies to false statements' or misrepresentations made pursuant to employment-related inquiries regarding prior medical history, such as in an employment application or some post-employment questionnaire, and not to statements made regarding a pending claim, which are covered under La. R.S, 23:1208.

      . In addition to the July 29, 2013 application at issue, Guichard and Gray submitted Mr. Porche’s applications dated October 3, 2006, July 29, 2011, and January 25, 2012 from prior employment with Guichard. On the 2011 and 2012 questionnaires, question 6 was left unanswered. The October 2006 application, filled out by Mrs, Porche, did state that Mr. Porche had a “hernia repair" from a previous accident for question 6.

      . This case is distinguishable from Dulin v. Levis Mitsubishi, Inc., 2001-2457 (La.App. 1 Cir. 12/20/02), 836 So.2d 340, 346, writ denied, 2003-0218 (La. 3/28/03), 840 So.2d 576, wherein this Court affirmed the workers’ compensation judge’s finding that the employee violated La. R.S. 23:1208.1. In Dulin, this Court stated that “[a] person who signs a written contract is presumed to know its contents and cannot avoid its obligations by contending he did not read it or that it was not explained or that he did not understand it.” Id., 836 So.2d at 345. Dulin, the employee, argued that he was unable to read very well because he only received a ninth grade education, but unlike the case at bar, a previous employment questionnaire he completed showed he graduated from high school. RL, 836 So.2d at 345 n.5. Moreover, as earlier discussed, in the case at bar the workers’ compensation judge accepted the Porches’ testimony that Mr. Porche was told that he did not need to worry about listing all of his doctors’ names and muscle strains.

      . La. R.S. 23:1317(B) provides that "[cjosts may be awarded by the workers’ compensation judge, in his discretion, and when so awarded the same may be allowed, taxed, as in other civil proceedings.”

      . The full text of the paragraph in Form 1025EE quoted above provides:
      It is unlawful for you to work and receive workers’ compensation disability benefits, except for supplemental earnings benefits. Supplemental earnings benefits are paid when an employee is able to work, but is unable to earn 90% or more of his pre-injury wages as a result of a job related accident. As an injured worker, you must notify your employer or insurer of the earning of any wages, changes in employment or medical status, receipt of unemployment benefits, receipt of social security benefits and receipt of retirement benefits. If you receive benefits for more than 30 days, you will be required to certify your earnings to you insurer quarterly.