author: PICKETT, Judge. KYZAR, J.,

text:
    Lori HATAWAY v. AKAL SECURITY, INC., et al.
    17-398
    Court of Appeal of Louisiana, Third Circuit.
    Opinions rendered 12/28/2017

      Maria A. Losavio, Losavio Law Office, LLC, Post Office Box 12420, Alexandria, LA 71315-2420, (318) 767-9033, COUNSEL FOR PLAINTIFF-PPELLANT:, Lori Hataway
    Jonathan L. Woods, Brian J. Lindsey, Preis PLC, Post Office Drawer 94-C, Lafayette, LA 70509, (337) 237-6062, COUNSEL FOR DEFENDANT-APPELLANT:, Akal Security, Inc., New Hampshire Insurance Co.
    Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar, Judges.
   PICKETT, Judge.

ItA workers’ compensation claimant, her employer, and its insurer appeal a judgment that dismissed her claims for indemnity benefits, medical treatment including prescription ihedications and mileage reimbursement, as well as penalties.and attorney fees, and dismissed the employer’s claim for reimbursement of benefits it paid to the claimant because she failed to report income that she received while being paid benefits. For the following reasons, we affirm-.

FACTS

In October 2015, Lori Hataway filed a disputed..claim for workers’ compensation benefits against her employer AKAL Security, Inc. and its insurer, New Hampshire Insurance Company (hereinafter AKAL), seeking proper payment of indemnity and medical benefits, additional medical treatment, penalties, and attorney fees. Ms. Hataway claimed that she had been injured on January 20, 2015, while working for AKAL as an aviation security officer, when a fight broke out among some of the deported immigrants being transported on the airplane to which she was assigned,

Immediately after the fight, AKAL began paying Ms. Hataway indemnity and medical benefits. In time, Ms. Hataway’s claims for medical treatment became complicated because no physiological basis could be found for her physical complaints and symptoms. Furthermore, her complaints developed a psychological component. Additionally, some confusion aróse with regard to whom Ms. Hataway and how Ms.' Hataway was to submit her claims for reimbursement of medical expenses. Ms. Hataway claimed that AKAL failed to pay timely for and/or approve all the medical treatment recommended' by her physicians, and she sought to recover penalties and attorney fees from AKAL.

|2The matter proceeded to a trial on the merits on June 28, 2016, Ms. Hataway and her husband Dewey Pittman testified,,at trial. Medical evidence was presented by deposition and/or medical records. Documentation prepared by AKAL personnel provided additional information regarding the incident at issue.

Ms. Hataway testified to the events that led to her being injured and her claim for benefits, explaining that a fight broke out among some of the 101 deportees being transported that day. She stated that eleven of the deportees were being non-compliant with the guards’ instructions and that, after’ the deportees and AKAL personnel were seated, “a riot broke out” behind her. She described straddling the arm rest of her seat in an attempt to tend to deportees around her. At that time, a Haitian seated behind her freed one of his hands from his handcuffs, jumped over the seat behind her, landing “square in” her back, then “crawled” over her shoulder and head, trying to get to a friend who needed help. After two other guards restrained the Haitian, the airplane’s engines were stopped, order was restored among the deportees, and the flight resumed. Ms, Hataway remained aboard and completed the round-trip flight. Her version of the events was corroborated by a statement made by Edwin Pippin, another AKAL guard on the flight with Ms. Hataway.

Mr. Pittman testified that he met Ms. Hataway when she returned to the airport in Alexandria, stating that she looked scared and as though she was hurting and had been crying. He brought her to St. Frances Cabrini Hospital’s emergency room, where she was diagnosed with a bruise on her back. Thereafter, Ms. Hata-way sought treatment from nine medical professionals to whom she related various complaints including neck, shoulder, and back pain; her right arm and leg being drawn up and spastic; nightmares; and anxiety. Initially, Ms. Hataway’s physicians made tentative diagnoses of lumbar radiculopathy, • cervical ^radiculopathy; possible rotator cuff tear or adhesive cap-sulitis or frozen right shoulder based on her complaints and their physical examinations of her. Nevertheless, diagnostic testing failed to reveal a physiological explanation for her complaints. After complaining of nightmares and anxiety, Ms. Hataway was referred to a psychologist, who diagnosed her as having conversion disorder, posttraumatic disorder, and pain syndrome related to physical condition.

During its cross-examination of Ms. Hat-away and Mr. Pittman, AKAL presented evidence to prove that Ms. Hataway earned income while being paid compensation benefits without reporting it to AKAL as provided in La.R.S. 23:1208. AKAL argued that the evidence it produced established Ms. Hataway forfeited the workers’ compensation benefits it had paid, her and sought a judgment ordering her to reimburse it for all benefits it had paid her.

After taking the matter under advisement, the workers’ compensation judge (WCJ) issued extensive reasons for ruling in which it thoroughly reviewed the parties’ claims in light of the evidence. The WCJ determined that Ms. Hataway failed to prove she suffered a mental injury caused.by mental stress, as provided by La.R.S. 23:1021(8)(b), or a mental injury caused by a physical injury, as provided by La.R.S. 23:1021(8)(c), and dismissed all of her claims against AKAL. The WCJ also determined that AKAL failed to prove its La.R.S. 23:1208 forfeiture claim and dismissed it. These findings were reduced to judgment and signed by the WCJ. Both parties appealed.'

ASSIGNMENTS OF ERROR

Ms. Hataway assigns the following errors with the trial and the WCJ’s judgment:

1. [Trial] court erroneously found plaintiff failed to prove a compensa-ble work injury.
|42. [Trial] court erroneously found no physical-mental injury was proven by the injured worker..
3. Trial court erred in allowing .expansion of the pleadings and/or ruling to include whether a. compensable work accident had occurred since that was not an issue presented at trial.
4. Trial court erred in allowing expansion of the pleadings by allowing defendants to ask questions of the injured worker at trial regarding possible income from Facebook postings and the filing of exhibits in connection therewith and the subsequent allowing defendants to file supplemental and amended pleadings alleging fraud defense over the timely objection of plaintiffs counsel.
5. Trial court erred in allowing Dr. Strother’s deposition to be admitted into evidence over the timely objection of plaintiffs counsel.
6. Trial court erred in not awarding benefits, penalties[,] and attorney fees for statutory violations.

AKAL assigns one error: “The [WCJ] erred in denying the La. R.S. 23:1208 defense of the Employer.”

STANDARD OF REVIEW

Appellate courts review a WCJ’s factual findings pursuant to the manifest error or clearly wrong standard of review. Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). This standard of review precludes an appellate court from setting aside a trial court’s finding of fact in the absence of a manifest error or unless it is clearly wrong. Stobart v. State; DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). In'applying the manifest error-clearly wrong standard, the appellate court must determine whether the fact finder’s conclusion was a reasonable one, not whether it wa’s right or wrong. Id.

DISCUSSION

Compensable Claim

In- her first assignment of error,’ Ms. Hataway asserts that the’WCJ erred in finding that she failed to prove she sustained a compensable injury on January 20, |fi2015, because AKAL stipulated at trial that an accident occurred that day. We reviewed the pleadings and the parties’ recitations at trial and find they contradict this- contention. Prior to the start of the trial, the parties presented stipulations to the WCJ. Counsel for Ms. Hataway stated that the parties stipulated Ms. Hataway reported “an accident” as a result of the fight on - January 20, 2015, as contemplated by La.R.S. 23;1031(1). Counsel for AKAL responded, “I will agree that she ... The riot is the only issue, but outside of that everything else, yes, I’ll agree.”

These recitations do not establish that the parties stipulated an accident occurred on January 20, 2015. AKAL’s counsel did not agree with the proposed stipulation. His response to the proposed stipulation is equivocal and. unclear as to whether he agreed that “the riot” occurred, that the occurrence of “the riot” was at issue, or that “everything else” was at issue.

Furthermore, near the end of the presentation of her case, Ms. Hataway called Mr. Pittman to testify. At that time, counsel for ARAL questioned the need for Mr. Pittman to testify, stating, “This is a penalties and attorney! ] fees claim, not entitlement to benefits, going forward.” The WCJ immediately questioned why ARAL had previously sought a continuance of the trial to obtain additional medical evidence, when counsel for Ms. Hataway had argued at that time “this was just a penalty and attorney fee case on these late payments and late authorizations.” The- WCJ then reminded counsel, “I put the trial off, expressly telling the parties I wanted everything conceivable to - come before the Court,” Neither party indicated any disagreement with the WCJ’s recitation of those facts or objected to the trial proceeding on those issues. Accordingly,, we conclude that no stipulation existed | fias to the “riot” being an “accident” for purposes of Ms. Hataway’s workers’ compensation claim.

Ms. Hataway next argues that the WCJ. erred in. finding she. did not prove she suffered a compensable mental injury caused by a physical injury during the fight as provided in La.R.S. 23:1021(8)(c). In Weeks v. Angelo Iafrate Construction Co., 37,255, p. 6 (La.App. 2 Cir. 6/25/03), 850 So.2d 966, 970, the second circuit set out the claimant’s burden of proof when seeking compensation benefits for a mental injury caused by a physical injury, as follows:

(1) the claimant must prove by clear and convincing evidence that the physical injury caused the mental injury, (2) the mental injury must be diagnosed by a licensed psychiatrist or psychologist, and (3) the diagnosis must meet the most current criteria established by the American the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.

The Weeks court further instructed that “[t]o prove a matter by clear and convine-. ing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more-probable than its nonexistence.” Id.

The WCJ thoroughly reviewed the medical evidence beginning with Ms. Hataway’s first visit for medical treatment after the incident at St. Frances Cabrini Hospital in Alexandria, progressing through the numerous physicians she consulted- and the extensive tests performed to diagnose her problems. Ms. Hataway was treated and/or evaluated by a general practitioner, three orthopedic surgeons, two neurosurgeons, a chiropractor, a-psychologist, and a psychiatrist. Some of the diagnostic test results did not correspond with objective findings during physical examination. For example, Dr. Ricardo Leoni, a neurosurgeon who examined Ms; Hataway, observed that when he conducted muscle-strength testing on'her, she had total weakness, but her right arm and leg were contracted in a spastic-like position ' and could - not be moved. He found these |7test results confusing because Ms.' Hataway had normal reflexes. Moreover, three of the physicians who examined Ms. Hataway opined that she had a conversion disorder.

Ms. Hataway strenuously argues that the WCJ erred in finding she did not prove she suffered a physical injury that caused her mental injury. She asserts that the WCJ applied the wrong burden of proof to this claim. Pointing to Traweek v. City of West Monroe, 30,571, p. 8 (La.App. 2 Cir. 5/13/98), 713 So.2d 655, 661, writ denied, 98-1936 (La. 11/6/98), 727 So.2d 449, Ms. Hataway argues that she only had to prove she was physically injured in the fight, not that the physical injury “itself [rose] to the level of compensable injury of a physical nature under La.R.S. 23:1021(7)(a),”

In Traweek, the court determined that the claimant proved.he suffered a physical trauma when pepper spray was sprayed in his face. The court noted that the pepper spray was “momentarily debilitating,” having caused a burning sensation to the claimant’s skin, irritation of his eyes, throat, and nose, and difficulty breathing. The court then concluded that these conditions were objective evidence of a physical injury and found the fact that “thé physical injury is short-lived with virtually no risk of lasting physical effects” to be of no consequence. Id. The court reiterated, however, “[t]he critical inquiry is whether the conclusive psychiatric testimony can link this physical trauma as the cause of the mental illness of the employee.” Id.

We need not address this argument because Ms. Hataway’s medical evidence failed to establish that her mental injury was caused by her physical injury. S. Hugh Bryan, Ph.D., Ms. Hataway’s treating psychologist, diagnosed her with conversion disorder, severe posttraumatic stress disorder, and pain disorder associated with a general medical condition and psychological factors. He defined Uconversion disorder as “a mental condition in which a person exhibits physical symptoms that do not correlate to physical conditions.” He opined that both the conversion disorder and the posttraumatic stress disorder were caused by “the traumatic event, work accident.”

Dr. Bryan did testify that he thought at some point Ms. Hataway had “something organic, some physiological medical condition and also something psychological” going on. He used the term “physical dysfunction” when referencing Ms. Hataway’s physical issues, but he did not testify that she was physically injured in the fight or that a physical injury caused her mental injuries. Accordingly, Dr. Bryan’s testimo-. ny does not establish that the WCJ manifestly erred in finding that Ms. Hataway failed to prove by clear and convincing evidence that her mental injury was caused by a physical injury.

Expansion of Pleadings re: Compensable Injury

Ms. Hataway next argues that the WCJ erred in allowing an expansion of the pleadings at trial to include the issue of whether she suffered a compensable injury on January 20, 2015. The enlargement of pleadings was addressed in Barham & Arceneaux v. Kozak, 02-2325, p. 16-17 (La. App. 1 Cir. 3/12/04), 874 So.2d 228, 241-242, writ denied, 04-930 (La. 6/4/04), 876 So.2d, 87, where the court explained:

Louisiana Code of Civil Procedure article 1154 provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all 'respects as if they had been raised by the pleadings. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended. LSA-C.C.P. art. 1154. However, according to the editor’s notes to Article 1154, this sentence does not contemplate the adding of an issue not pleaded, but rather allows the pleading of material facts for an issue pleaded only generally or as a legal conclusion. A timely objection to ari attempt to enlarge the pleadings, coupled with the failure to move for an amendment to the pleadings, is fatal to an issue not raised by the pleadings.

|nIn its Answer to Ms. Hataway’s Disputed Claim for benefits, AKAL denied that she was injured in the course and scope of her employment and that she suffered a disabling injury. Therefore, the WCJ ’properly .allowed AKAL to enlarge its pleadings and present evidence of material facts on that issue.

Expansion of Pleadings Re: AKAL’s La. R.S. 23:1208 Defense

Ms. Hataway also urges that the WCJ erroneously allowed an expansion of the pleadings when AKAL questioned her regarding possible income that she earned while receiving workers’ compensation benefits. Prior to the trial starting, counsel for Ms. Hataway broached the subject of AKAL’s defense, acknowledging that she was aware AKAL had made general allegations of the defense, but she pointed out that AKAL had not pled specific facts supporting the defense. She, therefore, asked that that defense be stricken and that the pleadings not be expanded to include it. The WCJ observed that although counsel was correct that specific facts must be pled for the defense, he has discretion to allow an amendment of the pleadings during trial if “something comes out” that presents the issue of whether a misrepresentation has been made.

Counsel for AKAL then stated that he had no specific factual evidence when he plead the defense in his Answer but had acquired such evidence shortly before trial. AKAL also included the defense in its pretrial statement. Ultimately, the WCJ granted the motion to strike with the proviso that he would not preclude an expansion of the pleadings if the issue came up during the trial. The issue did come up during trial. When questioning Ms. Hata-way, counsel for AKAL asked her whether she had been unable to work and unable to earn any income since her accident. She responded, “Yes. We raise Great Pyrenees dogs[,] and I post them on Facebook for my husband while he’s at work.” Counsel for AKAL proceeded to ask additional questions, and counsel for Ms, Hataway objected to an expansion |inof the pleadings, noting that the WCJ had previously granted her motion to strike the defense.

Under the facts before us, we cannot say that the WCJ abused his great discretion in allowing AKAL to proceed with its defense in light of Ms. Hataway’s response to its open-ended question about her ability to work and/or earn income since the accident. AKAL asserted the defense in its answer, and Ms. Hataway’s went beyond the question asked and raised the issue of whether she was earning income.

Dr, Strother’s Deposition

In this assignment of error, Ms. Hata-way argues that the WCJ erred in allowing AKAL to introduce the deposition of Dr. Darren Strother, a psychiatrist, into evidence. Dr. Strother examined Ms. Hata-way at AKAL’s request. AKAL introduced Dr. Strother’s deposition to defeat Ms. Hataway’s claims that its failure to timely pay the medical expenses associated with her mental injury entitled her to penalties and attorney fees.

The WCJ noted that of the medical professionals from whom Ms. Hataway sought treatment after the incident, Dr. Strother was the only one who questioned the veracity of her complaints, opining that she was malingering. Furthermore, there is no indication the WCJ relied on Dr. Strother’s opinion in rendering his decision. For these reasons, this assignment of error lacks merit.

Penalties arid Attorney Fees

Ms. Hataway seeks penalties and attorney fees for AKAL’s failure to properly pay various benefits. Our affirmation of the WCJ’s determination that Ms. Hata-way failed to prove her claim for workers’ compensation benefits pretermits the need to address these issues.

| uAKAL’s 23:1208 Defense

AKAL urges that the WCJ erred in finding that it failed to prove its claim that Ms. Hataway did not report income that she earned while receiving indemnity benefits after certifying that she was not receiving income from any source after she was injured. At issue is Ms. Hataway’s “No” response to this question on the “Employee’s Monthly Report of Earnings” form that AKAL required her to complete each month: “For the period covered in this report, were you self-employed or .involved in any business enterprise? These include but are not limited to farming, sales work, operating a business (even if the business lost money), child care, yard work, mechanical work, or. any - type of family business.” AKAL asserts that it proved Ms. Hataway generated income through the sale of Great Pyrenees puppies, automotive parts, and jewelry but certified to it that shé was not earning any income while receiving workers’ compensation benefits. Therefore, it argubs that she' forfeited her right to all the benefits it paid her and must reimburse it for those benefits paid.

This claim is governed by La.R.S. 23:1208 which provides, in pertinent part:

A. It ‘shall be unlawful for any person, for the purpose of obtaining or defeating'any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits, under this Chapter.

In Resweber v. Haroil Construction Co., 94-2708, p. 14 (La. 9/5/95), 660 So.2d 7, 16, our supreme court outlined the proof required to prové fraud under La.R.S. 23:1208:

By its plain words Section 1208 requires only that 1) the claimant make a false statement or representation, 2) the statement or representation be willfully made, and 3) the statement or | ^representation be made for the purpose of obtaining workers’ compensation benefits.
The legislature has made a policy decision that willful and deliberate false statements made specifically for the purpose of obtaining workers’ compensation benefits is an attempt to defraud the workers’ compensation system and should be dealt with harshly. The legislature has shown a continued effort over recent years to make Section 1208 easier to enforce and to make its penalties stronger.

The supreme court further explained that the false representations must be made for the purpose of obtaining benefits and must be more than inadvertent or inconsequential statements:

It is evident that the relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. A false statement which is inconsequential to the present claim may indicate that the statement was not willfully made for the purpose of obtaining benefits. Clearly, an inadvertent and inconsequential false statement would not result in forfeiture of benefits.

Id. Section 23:1208 does not require that the employer show prejudice. Id.

We have carefully reviewed the evidence AKAL presented in support of its forfeiture claim and find that a reasonable factual basis exists for the WCJ’s denial of AKAL’s claim of fraud. Ms. Hataway denied having received any income since the incident. She acknowledged that she made Facebook posts to sell Great Pyrenees puppies and listed her cell phone number for inquiries. She explained, however, that she listed her- cell number because her husband could not receive calls at work and that she gave whatever money paid for puppies to her husband to repair his Jeep. She further explained that Mr. Pittman performed all the work associated with the puppies because she could not walk to the kennels where they were housed and could not perform any of the care they required.

Ms. Hataway’s testimony was essentially the same with regard to the automotive parts. She also acknowledged advertising doves for sell on Pacebook but explained that-she did not sell any of the doves and ended up giving them |iaaway. She also testified that she did not sell any of the jewelry she posted on'Pacebook. Ms. Hat-away further acknowledged owning goats and donkeys and selling two goats but testified that she sold the two goats approximately two years before trial, which would have been prior to her receiving compensation benefits. -

Mr. Pittman’s testimony corroborated Ms. Hataway’s testimony on all but one issue. He denied having sold any Jeep parts, explaining that they were advertised for sale but none had sold. Ms. Hataway and Mr. Pittman both testified that they filed separated tax returns.

The WCJ found the testimony of Ms. Hataway and Mr.- Pittman credible. He explained that they were not aware of the AKAL’s Section 1208 claim before trial because AKAL had been allowed to amend their pleadings during trial to assert the claim. The WCJ also observed that Mr. Pittman was sequestered and not alone with Ms. Hataway ■ once the trial began before he testified; therefore, Mr. Pittman had no way of knowing what her testimony was on these issues. The WCJ concluded that they had no time to collude and discuss what responses they would make to AKAL’s claims.

We find no basis to question the WCJ’s credibility evaluations and no error in his determination that AKAL failed to prove its claim.

DISPOSITION

For. the reasons set forth herein, the judgment of the WCJ is affirmed in all respects. Costs are assessed equally to Lori Hataway and the defendants, AKAL Security, Inc. and New Hampshire Insurance Company. >

AFFIRMED.

Kyzar, J., concurs, in part, dissents, in part, and assigns reasons.

KYZAR, J.,

concurs in part, dissents in part, and assigns reasons

hi disagree with the majority in -affirming of the decision of the Workers Compensation Judge (‘WCJ”) finding that Ms. Hataway did not prove entitlement to ben-, efits or a compensable: mental injury caused by a physical injury, and thus find that the WCJ erred in dismissing the workers’ compensation claim as a whole. The evidence established that Ms. Hata-way was injured when the deportee kneed her in the back while attempting to jump over her during the event that occurred on the transport plane, whether the event is referred to as a “riot” or otherwise.. The testimony of Mr. Pippin, another Akal guard on the same flight, corroborated Ms. Hataway’s testimony as to the event. It is undisputed that the event did occur. When Ms. Hataway arrived back at home base after the flight, Mr. Pittman testified that he picked her up and that she looked as if she had been crying and was hurting, evidence of a physical injury and certainly a traumatic one. She was seen that night at St. Francis Cabrini Hospital where she was observed to have, and was diagnosed with, a contusion on her back. Indeed, there was no real dispute that Ms. Hata-way was injured physically, in that .the defendant was not contesting her entitlement to benefits going forward at the trial, as evidenced by ^counsel’s objection to the testimony of Mr.,Pittman, stating, “This,is a penalties and attorney’s fees claim, not entitlement to benefits, benefits going forward.” This statement, in my view, clearly establishes that the parties indeed were stipulating to her entitlement to.benefits, though defendant did not wish to characterize the event that occurred on the plane to be a “riot,” which would seem to have greater legal and corporate implications for the company beyond the realm of a workers’ compensation claim. Accordingly, the WCJ erred in terminating current benefits and dismissing the claim as a whole given the clear stipulation of the defendant that benefits were not the issue before the WCJ.

As to the payment for treatment for mental injury, the extent of the physical injury, suffered by Ms. Hataway in the event occurring on the plane, including its severity or its duration, is not controlling. Traweek v. City of West Monroe, 30,571, p. 8 (La.App. 2 Cir. 5/13/98), 713 So.2d 655, 661, writ denied, 98-1936 (La. 11/6/98), 727 So.2d 449. The question becomes whether there was clear and convincing evidence that the mental injuries resulted from the event and the physical injury she suffered therefrom. As the court in Tmweek notes, “[tlhe critical inquiry is whether the conclusive psychiatric testimony can link this physical trauma as the cause of the mental illness of the employee.” Id. There was such a link presented, here. S. -Hugh Bryan, Ph.D., Ms. Hataway’s treating psychologist, diagnosed her with conversion disorder, severe posttraumatic stress disorder, and pain disorder associated with a general medical condition and psychological factors. He defined conversion disorder as “a mental condition in which a person exhibits physical symptoms that do not correlate to physical conditions.” However, he opined that both the conversion disorder and the posttraumatic stress disorder were caused by “the traumatic event, work accident.” Certainly this “traumatic event, work accident” as referred to by the psychologist |3included the physical injuries she suffered as a result of the incident, however sever or slight they might have been. Dr. Bryan further testified that.he thought at some point Ms. Hataway had “something organic, some physiological medical condition and also something psychological” going on, a clear indication that the mental condition was indeed related to the physical condition and vice versa. He did use the term “physical dysfunction” when referencing Ms, Hataway’s physical issues, and although he did not specifically testify that she was physically injured during the event on the fight, there is no doubt but that she received at least some injury as was diagnosed at St. Francis Cabrini at.the conclusion of the flight. Prior to the incident on the plane, Ms, Hataway was experiencing no physical impairments but suffered from diagnosed back and shoulder pain extensively thereafter, Even assuming that her shoulder condition described as frozen shoulder syndrome and bulging discs in her low back were degenerative in nature, she was asymptomatic prior to the incident.

A claimant who suffers from a pre-exist-ing medical condition is also entitled to benefits if the- accident aggravated, accelerated or combined with the pre-ex-isting condition to produce disability. Atwell [ v. First General Services], 06-0392 at 4 [ (La.App. 1 Cir. 12/28/06) ], 95 1 So.2d [348] at 352. An employer takes the worker as he finds him. An abnormally susceptible worker is entitled to no less protection under the compensation statute than a healthy worker. Stelly v. Guy Scroggins, Inc., 96-401, pp. 7-8 (La.App. 3d Cir. 10/9/96), 682 So.2d 782, 786, writ denied. 96-3060 (La, 2/7/97), 688 So.2d 503.

Sevin v. Chevrolet, 08-1362 (La.App. 1 Cir. 4/30/09, 9-10), 24 So.3d 879, 885-86, Accordingly, I would reverse the judgment of the WCJ terminating benefits and dismissing her workers compensation claim: Though I conclude Ms. Hataway is indeed entitled to benefits for her physical and mental injuries, and thus her entitlement to payment of mileage expenses and medical bills for the treatment of the same, I would affirm the WCJ’s decision as to penalties and attorney fees based on the WCJ’s conclusion that there was a reasonable basis for the defendants to bring the matter to litigation recognizing the great discretion of the WCJ in 14deciding whether to allow or to disallow such. Mouton v. Gulfstream Servs., 2008-1186 (La.App. 3 Cir. 5/6/09), 11 So.3d 1135, 1137.

In all other respects, I concur with the majority.

      . Accident is defined, in part, as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently ... directly producing at the time objective findings of an injury[J” La.R.S. 23:1021(1). Injury is defined to "include only injuries by violence to the physical structure.of the body and such disease or infections as naturally result therefrom." La.R.S. 23:1021(8)(á).


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Korey BOSSIER v. Mark GARBER, et al.
    2017-349
    Court of Appeal of Louisiana, Third Circuit.
    1/10/2018
    Rehearing Denied March 7, 2018

      Blaine Barrilleaux, 330 Settlers Trace, Suite B, Lafayette, LA 70508, (337) 406-8759, COUNSEL FOR PLAINTIFF/APPELLANT: Korey Bossier
    Oats & Marino, Todd Swartzendruber, Stephen J. Oats, Gordon Square, Suite 400, 100 E. Vermilion Street, Lafayette, LA 70501, (337) 233-1100, COUNSEL FOR DEFENDANTS/APPELLEES: Sheriff Mark Garber, Rob Reardon and Berkley Insurance Company
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and Shannon J. Gremillion, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

|;Korey Bossier (Plaintiff) filed suit against Mark Garber, Sheriff of Lafayette Parish and others (Defendants) alleging he was injured when he slipped and fell in his jail cell while incarcerated at the Lafayette Parish Correctional Center (LPCC). Plaintiff alleges his injuries occurred on two occasions, August 31, 2015 and September 17, 2015. He alleges he fell in his cell “as a result of water running freely from the nearby showers, into [his] cell.” Plaintiff allegedly received a copy of the 2012 version of the LPCC Handbook containing the procedure for filing a grievance as an inmate when he arrived at the facility. Defendants admit that the Handbook was revised on September 8, 2015. Plaintiff asserts he did not receive a copy of the revised Handbook. Defendants maintain that the change in the rule was a minor change to its grievance procedure requiring inmates to submit their grievance electronically rather than on paper. Regardless of the change in the procedure, Plaintiff asserts the Handbook as first presented, and as revised; does not provide any administrative procedure for filing a complaint regarding personal injury. Defendants maintáin the Handbook language. covers such complaints and requires Plaintiff to timely pursue his administrative remedy under state laws. Defendants filed an exception of prematurity and prescription asserting Plaintiff failed to timely exhaust his administrative remedy before filing suit. The trial court granted Defendants’ exceptions dismissing Plaintiffs claims with prejudice at his cost. Plaintiff appeals asserting the “trial court erred in granting Defendants’ Exceptions of Prematurity and Abandonment.”

ULEGAL ANALYSIS

The dilatory exception of prematurity provided in La.Code Civ. Proc. art. 926 questions whether the cause of action has matured to the point where it is ripe for judicial determination, because an action will be deemed premature when it is brought before the right to enforce it has accrued.” LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-8, 07-16, p. 5 (La. 9/5/07), 966 So.2d 519, 523. The function of an exception of prematurity is to determine whether a judicial cause of action is not available yet because of some unmet prerequisite condition. Rico v. Cappaert Manufactured Hous., Inc., 05-141 (La.App. 3 Cir. 6/1/05), 903 So.2d 1284. When the determination of whether an-exception of prematurity should have been granted involves a question of law, then-the appellate court must determine whether the trial court was legally correct or incorrect. Id. Interpretation of statutes involves a question. of law. Thibodeaux v. Donnell, 08-2436 (La. 5/5/09), 9 So.3d 120.

Crooks v. Louisiana Pac. Corp., 14-724 p. 3 (La.App. 3 Cir. 12/10/14), 155 So.3d 686, 688.

We review the trial court’s ruling on the exception of prematurity under the de novo standard of review as this ruling is based ,u,pon the interpretation of an administrative rule that affects Plaintiff’s right to file suit. In Ngo v. Estes, 04-186 p. 3 (La.App. 3 Cir. 9/29/04), 882 So.2d 1262, 1264 this court, relying on the decision in Cheron v. LCS Corrections Servs., Inc., 02-1049 (La.App. 1 Cir. 2/23/04), 872 So.2d 1094, writ granted, 04-703 (La. 5/14/04), 872 So.2d 532, (emphasis in original and added) recognized that:

The party that raises the objection of prematurity has the burden of showing that an administrative remedy is available, by reason of which the judicial action is premature. Once the existence of an administrative remedy is established, the burden shifts to the plaintiff to show that, the specified administrative remedies or procedures have been exhausted or that the present situation is one of the exceptional situations where the plaintiff is entitled to .judicial relief because any administrative remedy is irreparably inadequate.

| ¡¡Defendants here have the burden to prove that “an administrative remedy” was available to Plaintiff. Only then will the burden shift to Plaintiff to show he exhausted such remedy before filing suit. We find Defendants fail to prove the existence of an administrative remedy under which Plaintiff could seek redress for his alleged injuries. The pertinent language in both versions of the LPCC handbook reads the same:

A grievance is a complaint. It must concern a rule or procedure, complaint of expression or misconduct by a deputy in administering such rules or operation of the LPCC. A personal dispute between an offender and an employee is not considered grounds for a grievance.

Defendants assert the phrase “operation of the LPCC” covers Plaintiffs allegations concerning the allegedly dangerous condition that injured him. Plaintiff asserts the language, is, at best, ambiguous .and/or simply does not provide any administrative procedure by which an inmate can assert, or seek redress for, a personal injury claim. We agree with Plaintiff. We find the language relied on by Defendants to invoke the provisions of La.R.S. 15:1171, La.R.S. 15:1172(B)(1) Land (C) is at the very least, ambiguous and does not adequately place a potential claimant on notice that these procedures are intended to apply to filing a complaint with LPCC regarding a slip-and-fall injury allegedly sustained while incarcerated in the facility. We are bolstered in this conclusion by the very language of the “Grievance Procedures” provided in both versions of the Handbook. Following the definition of a “grievance,” as contemplated by LPCC in its Handbook, a party asserting a “grievance” is instructed to first “[ajttempt to resolve the grievance with the deputy” (emphasis added). This instruction indicates in our view that this “grievance procedure” refers only to grievances concerning the behavior of deputies and not to the generic overall operation of the facility including, for example, leaky pipes or the negligent creation of hazardous conditions that result in injury to an incarcerated inmate. It is - absurd to suggest that a deputy has any authority to resolve Plaintiffs, or any inmates, claim.for damages resulting from injuries alleged to have occurred as a result of LPCC’s negligence in how it maintains its facility. And yet, were we to accept Defendants’ reading of the Handbook provision such would be the result.

We further find the Handbook, as presented here, is silent regarding any administrative process by which an inmate may notify LPCC of a negligent injury tort claim and Defendants point.us,to no other provision in its Handbook. Thus, 15the statutory provisions relied upon by the trial court and Defendants .are not applicable. We find LPCC failed to promulgate an administrative process through which inmates may make a claim for damages as a result of personal injury allegedly sustained while incarcerated at Defendants’ facility. Consequently, Plaintiffs right to seek redress for alleged tort claims in district court within the one-year period of prescription provided by Louisiana law has not been pre-empted. See La.Civ.Code arts. 2315, 2317, and 2317.1 and La. Civ. Code art. 3492. The judgment of the trial court is hereby reversed, vacated and set aside. LThe matter is remanded to the trial court for further proceedings consistent with this ruling. All costs on appeal are assessed against Defendants,

REVERSED. JUDGMENT VACATED, REMANDED FOR FURTHER PROCEEDINGS.

      . A. The Department of Public Safety and Corrections and each sheriff may adopt an administrative remedy procedure at each of their adult and juvenile institutions, including private prison facilities.
      B. The department or sheriff may also adopt, in accordance with the Administrative Procedure Act,1 administrative remedy procedures for receiving, hearing, and disposing of any and all complaints and grievances' by adult or juvenile offenders against the state, the governor, the department or any officials or employees thereof, the contractor operating a private prison facility or any of its employees, shareholders, directors, officers, or agents, or a sheriff, his deputies, or employees, which arise while an offender is within the custody or under the supervision of the department, a contractor operating a private prison facility, or’a sheriff,- Such complaints and grievances include but are not limited to any and all claims seeking monetary, injunctive, declaratory, or any other form of relief authorized by law and by way of illustration includes actions pertaining to conditions of confinement, personal injuries, medical malpractice, time computations, ' even though urged as a writ of habeas corpus, or challenges to rules, regulations, policies, or statutes. Such administrative procedures, when promulgated, shall provide the exclusive remedy available to the offender for complaints or grievances governed thereby insofar as federal law allows. All such procedures, including the adult and juvenile offender disciplinary process, promulgated and effective prior to June 30, 1989, shall be deemed to be the exclusive remedy for complaints and grievances to which they apply insofar as federal law allows.
      C. The department or sheriff may also adopt procedures for adult or juvenile offenders to discover and produce evidence in order to substantiate their claims and promulgate rules and regulations governing-the recommendation, review, and approval of an award for monetary relief.
      D. For the purposes of this Part, status as an "offender” is determined as of the time the basis for a complaint or grievance arises. Subsequent events, including posttrial judicial action or release from custody, shall not affect status as an "offender" for the purposes of this Part.
      La. R.S. 15:1171.

      . A. Purpose—to constitute the department’s "administrative remedy procedure" for offenders as a regulation.
      B. Applicability—deputy, secretary, chief of operations, regional wardens, wardens, and sheriffs or administrators of local jail facilities. Each unit head is responsible for ensuring that all unit written policies and procedures are in place to comply with the provisions of this regulation.
      C. Policy. It is the secretary’s policy that all offenders and employees have reasonable access to and comply with the department’s "administrative remedy procedure” through which an offender may seek formal review of a complaint relating to most aspects of his incarceration. Offenders housed in local jail facilities shall also be afforded reasonable access to a grievance remedy procedures.
      D. Administrative Remedy Procedure— Purpose
      1, On September 18, 1985, the Department of Public Safety and Corrections installed in all of its adult institutions a formal grievance mechanism for use by all offenders committed to the custody of the department. The process bears the name Administrative Remedy Procedure (ARP). Offenders are required to use the procedure before they can proceed with a suit in federal and state courts.
      2. Corrections Services has established the administrative remedy procedure through which an offender may seek formal review of a complaint which relates to any aspect of his incarceration if less formal methods have not resolved the matter. Such complaints and grievances include, but are not limited to any and all claims seeking monetary, injunctive, declaratory or any other form of relief authorized by law and by way of illustration, includes actions pertaining to conditions of confinement, personal injuries, medical malpractice, time computations, even though urged as a writ of habeas corpus, or challenges to rules, regulations, policies or statutes, including grievances such as offender requests for accommodations under the Americans with Disabilities Act and for complaints of sexual abuse under the prison rape elimination act.
      3. Through this procedure, offenders shall receive reasonable responses and where appropriate, meaningful remedies.
      22 La. Admin.Code Pt I, § 325


author: CHUTZ, J. McDONALD, j.,

text:
    Dr. Charles P. CURRIER and Charles Bradley Currier v. Gregory M. ANDING and CNA Insurance Company
    2017 CA 0438
    Court of Appeal of Louisiana, First Circuit.
    November 01, 2017
    Rehearing Denied December 7, 2017

      Robert T. Talley, Baton Rouge, Louisiana, Counsel for Plaintiff-Appellant, Dr. Charles P. Currier
    Connell L. Archey, Keith J. Fernandez, Baton Rouge, Louisiana, Counsel for Defendants-Appellees, Gregory M. Anding and Continental Casualty Company
    Graeella Simmons, Collin J. LeBlanc, Baton Rouge, Louisiana, Counsel for Defendants-Appellees, Paul Ray Dry and Continental Casualty Company
    BEFORE: WHIPPLE, C.J., McDonald and chutz, jj.
   CHUTZ, J.

I ¡^Plaintiff-appellant, Dr. Charles Currier, appeals the trial court’s judgment, sustaining a peremptory exception raising the objection of peremption filed by defendants-appellees, Gregory Anding and Continental Casualty Company, and dismissing Dr. Currier’s legal. malpractice against them. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are undisputed. Dr. Currier resided at 4755 Claycut Road and owned two undeveloped lots adjacent to and contiguous with the property upon which his residence is located. Sometime before July 2011, Dr. Currier received notice from the City of Baton Rouge/Parish of East Baton Rouge (the City) advising him that the City proposed to acquire the two lots to improve its adjacent sewerage facility, Dr. Currier contracted with And-ing, an attorney practicing law with the Kean Miller law firm, for legal representation. According to the letter of engagement, on July 8, 2011, Anding stated that Kean Miller would provide legal services related to the City’s proposed expropriation of Dr. Currier’s property on an hourly basis. Dr. Currier accepted the engagement on July 18,2011.

On July 8, 2011, Anding wrote a letter advising the City of his representation of Dr. Currier. Anding expressly stated, “Dr. Currier had plans to construct a home for his son on the area of the proposed taking. The plans' and intent of doing that are so his son could care for him and avoid the necessity of having to place Dr; Currier in a retirement community or nursing home as he continues to age.” On July 18 and August 11, 2011, Dr. Currier and Anding met with City representatives to discuss Dr. Currier’s concerns about the aesthetics of the project and how the City’s upgrade of its pump station at the sewerage facility near his house would impact his property value.,

|aTwo appraisals were undertaken by the City. On December 27,' 2011, in' a letter addressed solely to Dr. Currier, the City determined that the just compensation-of Dr. Currier’s property, including compen-sable damage, was $80,312.00, and made “a firm offer” of that amount to Dr. Currier for the voluntary sale of his two lots. On December 30, 2011, the City’s attorney emailed Anding asking if he could return a telephone call from Anding’s client, Dr. Currier. Anding responded in the affirmative.

On January 25,2012, Dr. Currier accepted the City’s offer of $80,312.00 for the sale of his two lots. An act of sale was executed by Dr. Currier on February 17, 2012.

Dr. Currier filed a petition for damages on December 8, 2014, naming Anding and his liability insurer as defendants. According to Dr. Currier’s allegations, in September of 2014, he “discovered that the advice rendered by ... Anding was negligent and deficient.” The petition averred that And-ing failed to fully inform Dr. Currier of his right to recover compensation to the full extent of his loss and, in particular, to severance damages to the remainder of his property. Dr. Currier alleged that had he been fully and appropriately advised by Anding, he would not have voluntarily sold the lots and sought damages as a result.

Defendants subsequently filed a peremptory exception asserting that Dr. Currier’s petition was untimely and perempt-ed. A hearing was held on September 28, 2016. During examination of Dr. Currier by his attorney, the trial judge inquired how much testimony he had left to present. Dr. Currier’s attorney replied, “Ten minutes,” and the trial judge stated, “You can have ten more minutes.” Later, the trial judge apparently determined that Dr. Currier’s examination was not | ¿relevant to the issue of the timeliness of his lawsuit, indicating that counsel would be allowed to brief the timeliness issue and expressly stating, “You may extrapolate some of the testimony that’s been adduced today but not the testimony that is woefully outside the ambit” of the timeliness issue. The trial court subsequently signed a judgment on October 18,2016, sustaining defendants’ peremptory exception and dismissing Dr. Currier’s claims. Dr. Currier’s motion for new trial or, alternatively, motion for reconsideration, was denied. Dr. Currier appeals.

PEREMPTION

Peremption is raised by a peremptory exception. See La. C.C.P. art. 927. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Peremption has been likened to prescription; namely, it is prescription that is not subject to interruption or suspension. Straub v. Richardson, 2011-1689 (La. App. 1st Cir. 5/2/12), 92 So.3d 548, 552, writ denied, 2012-1212 (La. 9/21/12), 98 So.3d 341.

As such, the following rules apply to peremption. If peremption is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action is not perempted. If evidence is introduced at the hearing on the exception of peremption, the trial court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. See Straub, 92 So.3d at 552-53.

La. R.S. 9:5605 governs the time in which a claimant has to file a legal malpractice action, providing in relevant part:

A. No action for damages against any attorney at law duly admitted to practice in this state ... shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date | Bof the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B.... The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

A straightforward reading of the statute clearly shows that it sets forth two peremptive limits within which to bring a legal malpractice action, namely one year from the date of the alleged act or one year from the date of discovery with a three-year limitation from the date of the alleged act, omission, or neglect to bring such claims. La. R.S. 9:5605; Teague v. St. Paul Fire and Marine Ins. Co., 2007-1384 (La. 2/1/08), 974 So.2d 1266, 1274. The discovery rule, which our jurisprudence delineates as the fourth category of contra non valentem, is an equitable pronouncement which provides that statutes of limitation do not begin to run against a person whose cause of action is not reasonably known or discoverable by him, even though his ignorance is not induced by the defendant. Id. Given the resemblance between the statutory discovery rule and our jurisprudential one, it logically follows that we interpret the statutory rule in accordance with the jurisprudential' one, but within the statutory limitations. Thus, under the provisions of La. R.S. 9:5605, an action is not perempted if it is brought within one year of the date of discovery and the record shows that the claimant was reasonably unaware of malpractice prior to the date of discovery and his delay in filing suit was not due to his willful, negligent, or unreasonable action. Id., 974 So.2d at 1274-75.

The “date of discovery” from which peremption begins to run is the date on which a reasonable man in the position of the plaintiff has, or should have, either actual or constructive knowledge of the damage, the delict, and the relationship | ^between them sufficient to indicate to a reasonable person he is the victim of a tort and to state a cause of action against the defendant. Put more simply, the date of discovery is the date the negligence was discovered or should have been discovered by a reasonable person in the plaintiffs position. Id., 974 So.2d at 1275.

Dr. Currier contends that Anding committed malpractice by failing to fulfill his duty to speak, i.e., failing to inform Dr. Currier that he was entitled to claim severance damages from the City. With that claimed as the act of malpractice, Dr. Currier asserts the trial court erred in its implicit conclusion that at the time of the sale Dr. Currier had actual or constructive knowledge of the relationship between the damage he suffered and Anding’s malpractice sufficient to indicate that he was the victim of a tort. Specifically, Dr. Currier maintains that the record is devoid of any evidence establishing that he was able to connect his decision to voluntarily sell his property to the City without having received compensation for severance damages (the adverse outcome) with Anding’s failure to advise him he was entitled to claim severance damages (the alleged malpractice) until September 2014 when he learned of,his entitlement to claim severance damages. Thus, Dr. Currier reasons that since he filed, his petition for, damages on December 8, 2014, his legal malpractice action, filed within one year of September 2014, when he had actual knowledge of entitlement to severance damages, is timely-

In oral reasons, the trial judge stated, “The Court finds that Dr. Currier possessed sufficient information to begin the running [of the period set forth in La. R.S. 9:5605] at the time of the sale. Therefore, the Exception is granted.” The record contains no direct evidence from which to conclude that Dr. Currier had factual knowledge that Anding had not advised him of the right to pursue severance damages from the City before Dr. Currier voluntarily sold the two lots to the City. Therefore, we focus our review on the date a reasonable person in Dr. Currier’s posir tion should have discovered that he had a claim for severance damages against the City, ie., his constructive knowledge, and whether the trial court correctly concluded it was at the time of the sale.

Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tanta-' mount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of peremption. Teague, 974 So.2d at 1275 (quoting Campo v. Correa, 2001-2707 (La. 6/21/02), 828 So.2d 502, 510-11, in the analogous context of medical malpractice), . A plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of peremption unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice, Teague, 974 So.2d at 1276.

Since the standard imposed is that of a reasonable person, any plaintiff who had knowledge of facts that would place a reasonable person on notice that malpractice may have been committed shall be held to have been subject to the commencement of peremption by virtue of such knowledge even though he asserts a limited ability to comprehend and evaluate the facts. The focus is on the appropriateness of the plaintiffs actions or inactions, and therefore, the inquiry is when would a reasonable person have been on notice that malpractice may have been committed. See Straub, 92 So.3d at 553.

At the hearing, Anding testified that his initial consultation with Dr. Currier took place at Dr. Currier’s house where Anding took pictures. When Dr. Currier |stold Anding that he had recently divorced and was trying to get back on his feet, Anding indicated that he would try to keep costs of legal representation down and, therefore, did not charge Dr. Currier for the consultation. According to Anding, he explained to Dr. Currier that challenging the City’s right to take the property was expensive with a low probability of success. Since the City had not yet appraised the property, Anding advised Dr. Currier to wait on two appraisals and an offer.

Anding recalled having subsequently-represented Dr. Currier when he accompanied Dr. Currier to meetings with City representatives on July 18,and August 11, 2011. At the meetings, discussions focused on the aesthetics of the City’s project and its impact on Dr. Currier’s residence as well ás whether Dr. Currier could still build a home for his son. Anding testified that he and Dr. Currier had agreed that once Dr. Currier received appraisals and/or an offer from the City, Dr. Currier was to send the information to Anding, who would then contact an appraiser.

On December 30, 2011, responding to an email inquiry from the City’s attorney, Leo D’Aubin, Anding stated that “yes” D’Aubin could return a telephone call from' Dr. Currier. Anding said, since Dr. Currier had not sent Anding any appraisals conducted by the City or notices of an offer, he agreed to allow D’Aubin to talk to his client without him present. because the only pending matters were the aesthetic concerns that Dr. Currier had raised. And-ing thought Dr. Currier’s direct discussions with the City about the aesthetic aspects of the project would help keep costs down.

Anding testified that his next communication with Dr. Currier occurred on January 5, 2012, when Anding’s secretary de-, livered a telephone message from Dr. Currier, asking for the name of an appraiser. Anding stated that he was surprised | aby the message and its implication suggesting that the City had obtained appraisals or made an offer to Dr. Currier. Anding directed his secretary to return Dr. Currier’s call, give him the telephone numbers of two appraisers who could conduct an appraisal on Dr. Currier’s behalf, advise him that the appraisal would not be free of charge, and request that Dr.' Currier send Anding the appraisal reports he had received from the City.

Thereafter, Anding stated that he contacted an appraiser and spoke with him by telephone on January 10th and 13th. After sending an invoice, dated February 7, 2012, to Dr. Currier for charges related to the two telephone discussions, Anding recalled having received a contentious telephone call from Dr. Currier on February 9th, asking-Anding why he had billed Dr. Currier when Dr. Currier had already settled the matter with the City. According to Anding, this was the first time he was aware that the City had made an offer to Dr. Currier or that Dr. Currier had entered into a settlement with the City for the sale of the two lots. ,

Anding explained that his response to Dr. Currier’s February 9th telephone call was to send a letter advising Dr. Curriér that since he had settled the expropriation claims against him with the City, “this brings our engagement to a conclusion.” Because Dr. Currier believed the charges for the two calls were inappropriate, And-ing ultimately wrote them off as losses.

At the conclusion of his direct examination, Anding staled that he never had any communications with Dr. Currier about the City’s offer prior to learning of the settlement on February 9th, had no input into Dr. Currier’s decision to sell the property to the City,' and certainly never advised Dr. Currier whether or not he should sell his property in light of the City’s offer. Anding reiterated' that the only advice he ever gave to Dr) Currier was the' same advice he provided on the first day of his representation, which was that they should respond to thé City’s appraisals with an appraisal conducted' on behalf of Dr. Currier and “go from there.” Anding hoemphasized that Dr. Currier never asked him for his opinion on whether he should accept the City’s offer. He advised the trial judge that had he settled the matter on behalf of Dr. Currier, his bill would have been significantly higher than the amount Dr. Currier paid for Anding’s representation.

Dr. Currier’s testimony was starkly different from Anding’s in several respects. After explaining that he had formerly practiced as a dentist and had spent eight years on the Baton Rouge City Council, Dr. Currier denied that he was worried about the costs of pursing the matter, stating that he was willing to spend whatever it took to have his son’s residence next door to him. Dr. Currier also was adamant that Anding knew that the City had made an offer to him and that Dr. Currier was considering it, stating that he notified And-ing by telephone between December 27, 2011, when the City made an offer, and January 19, 2012, when Dr. Currier initially rejected the City’s offer. He testified that Anding’s testimony to the contrary was “an untruth.” According to Dr. Currier’s recollection, Anding knew Dr. Currier did not want to sell the two lots, but after he advised Anding of the amount of the City’s offer and asked what he should do next, Anding provided Dr. Currier with “no feedback.”

Dr. Currier believed that Anding should have advised him that had they challenged the City’s expropriation and lost, Dr. Currier would have still had legal recourse at the end of the whole process to seek severance damages. Dr. Currier stated that beyond Anding’s presence at the meetings on July 18th and August 11th, Dr. Currier received nothing of value for Anding’s representation. Dr. Currier criticized Anding’s representation at the meetings, suggesting Anding “should have stepped up on my side.” According to Dr. Currier, Anding never checked up on things, telephoned him,, or inquired as to why the City had not sent Anding the appraisals. From Dr. Currier’s perspective, Anding put him on the In “back burner” in favor of “bigger fish,” and simply did not spend ■ enough time on his claim.

Dr. Currier admitted that Anding was not involved in Dr. Currier’s negotiations with the City, He also acknowledged that Anding had informed the City of Dr. Currier’s plans to build a house for his son, noting that Anding had even carried the plans to the July 18th and August 11th meetings.

By reaching the conclusion that Dr. Currier possessed sufficient information to commence the one-year peremptive period at the time of the sale, the trial court chose to credit Anding’s version of the facts over Dr. Currier’s. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. If the trial court’s factual findings are reasonable in light of the record reviewed in its entirety, this court may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart v. State through Dep’t of Tramp. & Dev., 617 So.2d 880, 882-83 (La. 1993). We cannot say documents or objective evidence so contradict Anding’s story, or that his story is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit it. See Stobart, 617 So.2d at 882. Thus, the trial court was not manifestly erroneous or clearly wrong in crediting it.

. Anding’s version was that he advised Dr. Currier to send him the City’s appraisals and/or offer but that his client did not do so, and thus, Dr. Currier knew that he had failed to comply with his attorney’s instructions. Additionally, Dr. Currier acknowledged that Anding had provided him no advice during the negotiations with the City that culminated in the settlement by which Dr. Currier agreed to voluntarily sell the two lots. Given his complaints about his attorney, the record supports an implicit factual finding that Dr. Currier was dissatisfied with Anding’s representation prior to January 25, 2012, the date that he agreed to accept 1 1sthe City’s offer. Dr. Currier’s dissatisfaction continued through February 17, 2012 when Dr. Currier executed the act of sale. In light of the testimonial and documentary evidence, the trial court’s implicit finding that Dr. Currier removed Anding from the negotiation, settlement, and sale process is not manifestly erroneous.

We conclude that a reasonable person, who is dissatisfied with his attorney’s performance to the point where he does not comply with his attorney’s instructions, does not inform him of an offer to settle, and negotiates a settlement in the disputed matter for which the attorney was hired to l’epresent him without any input whatsoever from the attorney, would clearly be on notice at the time he signed the act of sale that his attorney may have not fully apprised the client of all available options. In other words, Dr. Currier could not have reasonably expected that Anding had provided him with all the information on available options since Dr. Currier failed to fully apprise Anding of all the developments that had occurred involving the City’s proposed taking of his property. Removing Anding from the negotiation, settlement, and sale process as Dr. Currier did should have excited Dr. Currier’s attention and put him on guard to call for an inquiry as to whether he had been fully apprised of all his legal options by no later than February 17, 2012 when he executed the act of sale without Anding’s input. Accordingly, the trial court correctly concluded that Dr. Currier had sufficient information to commence the accrual of the one-year peremptive period of La. R.S. 9:5605 at the time of the February 17,2012 sale.

EXCLUSION OF EVIDENCE/DENIAL OF DUE PROCESS

Dr. Currier maintains the trial court erred when it discontinued his testimony during his attorney’s examination of him and did not permit him to finish the presentation of his evidence. Claiming a denial of his due process rights, Dr. Currier requests a reversal of the trial court’s judgment and a remand for a full | ^contradictory hearing. He also asserts that it was error for the trial court to summarily deny his motion for new trial or alternative motion for reconsideration which asserted a denial of due process on the same basis.

Pursuant to La. Const. Art. 1, § 22, “[a]ll courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay.” This grant of constitutional authority is tempered by the court’s “power to require that the. proceedings ... be conducted ... in an orderly and expeditious manner ... and to control the proceedings at trial, so that justice is done.” La. C.C.P. art. 1631. The due process clauses of the Louisiana Constitution and the Fourteenth Amendment of the United States Constitution guarantee litigants a right to a fair hearing. Nonetheless, “due process” does not mean litigants are entitled to an unlimited amount of the court’s time. Goodwin v. Goodwin, 618 So.2d 579, 583 (La. App. 2d Cir.), writ denied, 623 So.2d 1340 (La. 1993).

A litigant generally should have the right to present all evidence that he possesses with regard to a contested issue at trial if the evidence is relevant, admissible, and not cumulative. This right is limited, however, by La. C.E. art. 403, which allows for the exclusion of relevant evidence when its probative value is substantially outweighed by undue delay and waste of time, and by the power granted to trial judges in Lá. C.C.P. art. 1631 to ensure that, relevant, admissible, noncumulative- evidence is presented in such a way that time will not be unnecessarily wasted. Goodwin, 618 So.2d at 583.

The trial court is vested with great discretion in controlling the presentation of evidence under La, C.C.P. art. 1631. Moreover, La. C.E. art. 103A provides that error may not be predicated.upon a ruling admitting or excluding evidence unless a substantial right of the party is affected. Reversal by an appellate court is not warranted unless the challenged ruling was erroneous and the error prejudiced the 114complainant’s cause. Gillio v. Hanover Am. Ins. Co., 2016-0640 (La. App. 1st Cir. 1/31/17), 212 So.3d 588, 595, writ denied. 2017-0393 (La. 4/24/17), 219 So.3d 1098.

While a better practice would have been for the trial court to have permitted the parties to fully present their respective cases, or to more clearly articulate imposition of time limitations, we cannot say the trial court abused its great discretion in controlling the presentation of evidence in this case and concluding the testimony when it did. We. note that Dr. Currier was able to fully cross examine Anding. Additionally, although Dr.. Currier’s testimony, was interrupted before his attorney concluded questioning, Dr. Currier was permitted to offer his version of the facts, which were in stark contrast to Anding's.

On appeal, Dr. Currier’s primary contentions are directed at his inability to offer additional testimony regarding his lack of knowledge of the right to claim severance damages and Anding’s failure to advise him- of that. But during the attorneys’ examinations of Dr. 'Currier, he clearly stated that he was unaware of his right to claim severance damages at any time between the beginning of'Anding’s representation and the time he executed the act of sale on February 17; 2012, which was the date that the trial' court decided that he should have known of any potential malpractice. Thus, any additional testimony directed at the issue of Dr. Currier’s lack of knowledge on or before' February 17, 2012 would-have'merely been cumulative of that to which' Dr. Currier had already testified.

Mindful that the parties presented contrasting versions. of the salient facts in their respective testimonies and that the trial court credited Anding’s over Dr. Currier’s, we conclude that any error by the exclusion of the presentation, of additional evidence was not prejudicial, to Dr. Currier’s cause so as to warrant a |1Breversal. As such, the trial court also did not err in summarily denying Dr. Currier’s motion for new trial or alternative motion for reconsideration. See La. C.C.P. arts. 1972 (setting forth peremptory grounds mandating a new trial) & 1973 (establishing discretionary grounds for a new trial); see also Lalonde v. Vallot, 2014-0167 (La. App. 1st Cir. 12/10/14), 168 So.3d 457, 463 (movant’s motion did'not meet any of the criteria that would have mhde the granting of a new trial peremptory under La, C.C.P. art. 1972, and the trial court was within its discretion in denying the new trial under La. C.C.P. art. 1973).

DECREE

For these reasons, the trial court’s judgment, sustaining the peremptory exception raising the objection of peremption, is affirmed. Appeal costs are assessed against plaintiff-appellant, Dr. Charles Currier.

AFFIRMED.

McDonald, J. agrees and assigns additional reasons.

McDONALD, j.,

agrees and assigns additional reasons.

|! First, I agree that that the trial court did not manifestly err in finding that Dr. Currier himself had sufficient knowledge of his potential legal. malpractice claim against Mr. Anding on February 17, 2012, the date Dr. Currier sold his property to the City. Thus, Dr. Currier’s suit against Mr. Anding, filed on December 8, 2014, was perempted.

However, I point out that attorney Paul Dry’s knowledge provides a second basis upon which to find Dr. Currier’s claim perempted. In February 2013, Mr. Dry told Mr. D’Aubin that his client, Dr. Currier, would pursue a damages claim against the City. In April 2013, Mr. Dry specifically asked Mr. D’Aubin about severance damages. Thus, no later than April 2013, Mr. Dry knew of any potential legal malpractice claim against Mr. Anding. An attorney’s knowledge, actual or otherwise, is imputed to his client. Slaughter v. Bd. of Sup’rs of S. Univ. & Agr. & Mech. Coll. 10-1114 (La. App. 1 Cir. 8/2/11), 76 So.3d 465, 476, unit denied, 11-2112 (La. 1/13/12), 77 So.3d 970; Stevison v. Charles St. Dizier, Ltd., 08-887 (La. App. 3 Cir. 3/25/09), 9 So.3d 978, 981, unit denied, 09-1147 (La. 10/2/09), 18 So.3d 116. Thus, even if the trial court had not determined that per-emption began to run on February 17, 2012, based on Dr. Currier’s knowledge, then peremption would have begun to run no- later' than April 2013, based on Mr. Dry’s knowledge. In either event, Dr. Currier’s action against Mr. Anding, filed in December 2014, was toó late.

      . Although he misidentified the insurer’s name in his original petition, in a later amendment, Dr. Currier correctly identified Anding’s liability insurer as Continental Casualty Company. In the supplemental pleading, Dr. Currier also added as additional defendants the City and attorney Paul Ray Dry, who represented Dr. Currier subsequent to Anding's representation and prior to the filing of this lawsuit. Dr. Currier’s claims against the additional defendants are not at issue in this appeal.

      . Although the trial court referred to the time period set forth in La. R.S. 9:5605 as ‘'prescription,” the Louisiana Supreme Court has pronounced that the two time periods in that statute are peremptive. See Teague, 974 So.2d at 1274; accord Jenkins v. Starns, 2011-1170 (La. 1/24/12), 85 So.3d 612, 624; Naghi v. Brener, 2008-2527 (La. 6/26/09), 17 So.3d 919, 922-23.

      , Testimonial evidence established that when Dr, Currier contracted with Anding, the City's practice was to obtain two appraisals and offer the owner the one with the highest valu-atión.

      . Dr. Currier asserts that he intended to call Paul Ray Dry, see n.l, supra, as a witness who would have testified to Dr. Currier’s lack of knowledge, understanding, and comprehension that legal malpractice had occurred. In light of our conclusion that the trial court was not manifestly erroneous in finding that the date Dr. .Currier should have known of any potential legal malpractice claims against Anding was February 17, 2012, and. the evidence which establishes Dry was not involved with Dr. Currier prior to 2013, there was no prejudicial error in the exclusion' of Dry’s testimony. See La. C.E. arts, 103 & 403; see also La. C.*C,P, art. 1631.