author: Judge Joy Cossich Lobrano

text:
    Tamara BAY v. JEFFERSON PARISH PUBLIC SCHOOLS
    NO. 2016-CA-0890
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 26, 2017

      William R. Mustian, III STANGA & MUSTIAN, A PLC, 3117 22nd Street, Suite 6, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLEE
    Olden C. Toups, Jr., Grant & Barrow, 238 Huey P. Long Avenue, Gretna, LA 70054, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods)
   Judge Joy Cossich Lobrano

|Jn this workers’ compensation case, defendant/appellant, the Jefferson Parish School Board (the “school board”); appeals the December 17, 2015 and March 22, 2016 judgments, of the Office of Workers’ Compensation (“OWC”), which denied the school board a credit for its payment of sabbatical leave benefits to plaintiff/appel-lee, Tamara Bay (“Bay”), and awarded penalties and attorney’s fees to Bay.

On August 1, 2012, Bay was injured in the course and scope of her employment with the school board as a teacher when she fell from a bookcase and struck her head on a desk. Following the work-related accident, the school board initiated temporary total disability (“TTD”) benefits at a weekly compensation rate of $594.22, based on an average weekly wage of $891.33.

While receiving TTD benefits, Bay also requested and received sick leave benefits from the school board. Sick leave benefits were paid on a prorated basis as provided by La. R.S. 17:1201 and 17:1202, such that, through the combination of |2TTD benefits and sick leave benefits, Bay was paid her full pre-injury salary until her sick leave was exhausted..

After no available sick leave remained, Bay sought to supplement her TTD benefits with sabbatical leave pay under La. R.S. 17:1170, et seq. Bay requested that she be placed on sabbatical leave for the fall 2013 semester, which was granted and became effective on August 7, 2013. The school board stopped Bay’s TTD benefits when it initiated her sabbatical leave pay.

On August 16, 2013, the. school board issued a notice of payment, Form LDOL-WC-Í002 (“1002”), stating that workers’ compensation benefits were stopped on August 7, 2013, because Bay was paid her salary in lieu of compensation while- on employer-funded sabbatical leave.

On September 6, 2013, Bay filed ¿ disputed claim for compensation, Form LDÓL-WC-1008 (the “disputed claim” or “1008”), alleging that the school board had terminated or reduced her TTD benefits on August 6, 2013. In her disputed claim, Bay alleged that she was entitled to penalties and attorney’s fees.

The sehool board issued: a new 1002 on September 23, 2013, stating that it modified Bay’s TTD benefits based on her receipt of “employer funded disability benefits at the rate of $2,510.57-per month,” According to the 1002, the school board instituted TTD benefits in the amount of $14.86 per week retroactive to August 7, 2013. The weekly payments of $14.86 represented the difference between Bay’s weekly compensation rate and sabbatical leave pay.

IsOn October 16, 2013, Bay returned to work, at which time she resumed receiving her salary and was no longer eligible for TTD benefits.

This case proceeded to trial on February 13, 2014, where the primary issue before the OWC was whether the-school board was entitled to a credit or pffset which would reduce the amount of TT-D benefits due to Bay by the amount of sabbatical leave pay she received. No live witnesses were presented at trial, the parties filed joint stipulations, and the matter was submitted on briefs.

On December 17, 2015, the OWC rendered judgment finding that Bay was enti-tied to receive full TTD benefits in addition to her sabbatical leave pay for the period of August 8, 2013 through October 15, 2013 and that the school board was not entitled to a credit for its payment of sabbatical leave. The OWC ordered the school board to pay $5,314.40 in satisfaction of its underpayment of TTD benefits from August 8, 2013 through October 15, 2013, as well as $2,000.00 in penalties and $2,500.00 in attorney’s fees pursuant to La. R.S. 23:1201(F).

Thereafter, the school board filed a motion for new trial. On March 22, 2016, the OWC rendered judgment granting a new trial, in part, correcting the date of the signing of judgment from 2013 to 2015. The judgment on new trial also revised the trial judgment to include language clarifying that Bay “was entitled to receive full temporary total disability benefits while receiving Sabbatical Pay for the periods from August 8, 2013, through October 15, 2013” and the school board |4“was not entitled to a credit or offset against Tamara Bay’s Temporary Total Disability benefits pursuant to Louisiana Revised Statute 23:1225 or Louisiana Revised Statute 23:1206.” The OWC denied the new trial, in part, “as to all other parts of the judgment which are not expressly covered by the first paragraph of this judgment or by the Consent Judgment reached and recited on the record in open court regarding judicial interest.”

This appeal followed. On appeal, the school board argues that the OWC erred by (1) finding that the school board was not entitled to a credit or offset against TTD benefits and by determining that sabbatical leave is an “earned employee benefit”; (2) providing Bay with a double recovery constituting a prohibited donation of public funds in violation of Article 7 Section 14 of the | ^Louisiana Constitution; and (3) assessing penalties and attorney’s fees against the school board.

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the manifest error-clearly wrong standard. Dean v. Southmark Constr., 2003-1051, p. 7 (La. 7/6/04), 879 So.2d 112, 117. When legal error interdicts the fact-finding process in a workers’ compensation proceeding, the de novo, rather than the manifest error, standard of review applies. MacFarlane v. Schneider Nat'l Bulk Carriers, Inc., 2007-1386, p. 3 (La.App. 4 Cir. 4/30/08), 984 So.2d 185, 188. Likewise, interpretation of statutes pertaining to workers’ compensation is a question of law and warrants a de novo review to determine if the ruling was legally correct. Id.

In Trahan v. Coca Cola Bottling Co. United, 2004-0100, pp. 6-7 (La. 3/2/05), 894 So.2d 1096, 1102, the Louisiana Supreme Court wrote:

Interpretation of this statute begins, as it must, with the language of the statute itself. David v. Our Lady of the Lake Hosp., Inc., 02-2675, p. 11 (La. 7/2/03), 849 So.2d 38, 46; Touchard v. Williams, 617 So.2d 885, 888 (La. 1993). When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. La. C.C. art. 9; La. R.S. 1:4. When the wording of a section of the revised statutes “is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.” La. R.S. 1:4. In interpreting the Workers’ Compensation Act, courts must be mindful of the basic history and policy of the compensation movement, which includes the provision of social insurance to compensate victims of industrial accidents. Brown v. Adair, 02-2028, p. 5 (La. 4/9/03), 846 So.2d 687, 690; Roberts v. Sewerage & Water Bd. of New Orleans, 92-2048 (La. 3/21/94), 634 So.2d 341, 345.

1 fiThe main issue before this Court is whether an employer’s obligation for TTD benefits is reduced by the amount of sabbatical leave benefits that it pays to an injured worker. It is undisputed that, under the facts of this case, the combination of TTD benefits and sabbatical leave pay, if no credit or offset is applied, would result in Bay being paid more than one hundred percent (100%) of her pre-injury wages during the limited time period in dispute, August 8, 2013 through October 15, 2013.

TTD benefits are provided under Title 23 of the Louisiana Revised Statutes, the Louisiana Workers’ Compensation Act. Under La. R.S. 23:1221(l)(a), an injured worker entitled to TTD benefits is paid compensation benefits in the amount of “sixty-six and two-thirds percent of wages during the period of [temporary total] disability.” Sabbatical leave benefits are set forth in Title 17 of the Louisiana Revised Statutes, specifically, La. R.S. 17:1170, et seq. An eligible public school teacher, who is granted sabbatical leave for either professional development or medical leave, whether for one or two semesters, is paid “compensation at the rate of sixty-five percent of the [teacher’s] salary at the time the leave begins.” La. R.S. 17:1171; La. R.S. 17:1184. The Louisiana Workers’ Compensation Act does not address sabbatical leave, and La. R.S. 17:1170, et seq. does not address workers’ compensation. None of these statutes provides for a cap on benefits where both workers’ compensation and sabbatical leave benefits are paid to an injured worker.

17This Court has not previously addressed whether an employer is entitled to the particular credit or offset sought by the school board. Only two reported Louisiana cases have addressed the potential for coordination of benefits for an injured worker who may qualify for both workers’ compensation and sabbatical leave.

In Cormier v. Lafayette Parish Sch. Bd., 508 So.2d 207 (La. App. 3d Cir. 1987), the Third Circuit Court of Appeal, relying on an Attorney General’s advisory opinion as persuasive, limited a teacher to supplemental earnings benefits (“SEBs”) and reduced SEBs by the amount of sab-batic,al leave benefits. The teacher first utilized her sabbatical leave benefits then made a demand for past-due workers’ compensation benefits after returning from sabbatical. Id. at 208. |«The court found that to award the full amount of both TTD benefits and sabbatical leave pay would result in, a windfall to the teacher. Id. at 210.

In contrast, in Hollingsworth v. E. Baton Rouge Parish Sch. Bd., 94-0518 (La. App. 1 Cir. 12/15/95), 666 So.2d 376, the First Circuit Court of Appeal awarded the full amount of TTD benefits to an injured teacher who was instructed by her school board employer to apply for sabbatical leave and was not informed that she was entitled to workers’ compensation benefits. The OWC did not award the teacher’s employer any credit in the amount of sabbatical leave pay the teacher received. Id., 94-0518 at p. 12, 666 So.2d at 382. In reaching its holding, the court noted that it was without authority to restore the sabbatical leave pay to the teacher and had only the jurisdiction to award workers’ compensation benefits. Id.

Here, the school board argues that it is entitled to a dollar-for-dollar credit because it made a “voluntary payment” of “unearned” sabbatical leave pay thereby implicating La. R.S. 23:1206, which provides that “[a]ny voluntary payment or unearned wages paid by the employer or insurer either in money or otherwise, to the employee or dependent, and accepted by the employee, which were not due and payable when made, may be deducted from the payments to be made as compensation.” The school board further contends that a dollar-for-dollar credit is consistent with the limits to school board funded sick leave under La. R.S. 17:1201(D)(1), which provides a cap on benefits payable to public school teachers receiving both workers’ compensation and sick leave such that “in no event shall such benefits exceed the total amount of the regular salary the member of the | Reaching' staff was receiving at the time the injury or disability occurred.” According to the school board’s argument, the “legislature recognizes the potential ‘windfall’ seemingly available to such a teacher” and is “mindful of the prohibition from the ' donation of public funds as found in the Louisiana Constitution, Art. VII, Section 14 (A).. .”

We find no support for the school board’s argument in the statutes of this State. While the Louisiana legislature saw fit to place a cap on sick leave payable under La. R.S. 17:1201, no statute exists limiting the combination of both TTD benefits and sabbatical leave pay where an otherwise eligible public school teacher qualifies for both. We decline to create such a law where this State’s legislature has not. See White v. Wal-Mart Stores, Inc., 97-0393, p. 4 (La. 9/9/97), 699 So.2d 1081, 1084 (“Courts are not free to rewrite laws to effect a purpose that is not otherwise expressed.”). See also J. Reed Constructors, Inc. v. Roofing Supply Grp., L.L.C., 2012-2136, p. 6 (La.App. 1 Cir. 11/1/13), 135 So.3d 752, 756 (citing Carter v. Duke, 2005-0390, p. 10 (La. 1/19/06), 921 So.2d 963, 970) (“It is not the function of the judicial branch to legislate by inserting provisions into statutes where the legislature has chosen not to do so.”). “[I]t is for the legislative branch to remedy the deficiencies in the statutory scheme, if it should so desire.” Foti v. Holliday, 2009-0093, p. 13 (La. 10/30/09), 27 So.3d 813, 821.

I mWhile we acknowledge that La. R.S. 17:1176 does provide some measure of discretion to the school board in granting sabbatical leave to eligible teachers, sabbatical leave benefits are paid pursuant to statute, and we do not read La. R.S. 17:1176 or La. R.S.- 23:1206 so broadly as to construe sabbatical leave benefits as “voluntary” payments or “unearned wages.”.Further, we have located no jurisprudence that would allow us to find Bay’s receipt of both TTD benefits and sabbatical leave pay a prohibited donation of public funds. We are not persuaded by the school board’s arguments, and we find no error in the OWC’s decision to award no credit to the school board for its payment of sabbatical leave benefits to Bay.

The school board also argues that the OWC erred in assessing penalties and attorney’s fees 'for the school board’s failure to pay indemnity benefits during the disputed period, having found that the school board failed to establish that it reasonably controverted the claim or that there were conditions over which it had no control when it failed to pay. The decision to impose penalties and fees is essentially a factual issue subject to the manifest error-clearly wrong standard' of review. Authement v. Shappert Engineering, 2002-1631, p. 12 (La. 2/25/03), 840 So.2d 1181, 1188-89. Awards of penalties and attorney’s fees in compensation cases are essentially penal, and are intended to deter indifference and undesirable |n conduct by employers and their insurers toward injured workers. Trahan, 2004-0100 at p. 17, 894 So.2d at 1108. Penalties should not be imposed in doubtful cases, where a bona fide dispute exists as to • the claimant’s entitlement to benefits. J.E. Merit Constructors Inc. v. Hickman, 2000-0943, p. 5 . (La. 1/17/01), 776 So.2d 435, 438.

Here, the OWC awarded Bay penalties and attorney’s fees pursuant to La. R.S. 23:1201(F), which provides in pertinent part:

P. Except as otherwise provided in this Chapter, failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar, day for each day in which any and all compensation. or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

The school board argues that it should benefit from the dearth of case law on the disputed credit, and that its interpretation of the Third Circuit’s decision in Cormier, supra, should ' amount to “reasonable controversion” of the claim. However, the school board’s argument is undermined by its termination of TTD benefits upon initiating sabbatical leave, even though sabbatical leave pay was less than TTD benefits. We cannot construe the school board’s termination of TTD benefits during this period as a reasonable interpretation of Cormier. As 11?discussed herein, TTD benefits are paid at 66 2/3% of wages, while sabbatical leave benefits are paid at 65% of the teacher’s salary. See La. R.S. 23:1221(l)(a); La. R.S,. 17:1184. The record reveals that the school board stopped TTD benefits on August 8, 2013 and later retroactively reinstated TTD benefits on September 23, 2013, at a reduced amount subject to the credit claimed by the school board. For forty-six (46) days, the school board did not pay TTD benefits to Bay. Here, applying the $50.00 daily penalty provided by La. R.S. 23:1201(F), the $2,000.00 cap is exceeded. We also find nothing in the record to indicate that the $2,500.00 attorney’s fee is unreasonable where the case ultimately proceeded to trial on the briefs. The record in this case supports the OWC’s finding that the school board failed to establish that it reasonably controverted this claim or that there were conditions over which it had no control when it failed to pay this claim. Under the specific facts before us, we cannot conclude that the OWC’s award of penalties and attorney’s fees was manifestly erroneous.

For these reasons, we affirm the December 17, 2015 judgment, as amended by the March 22, 2016 judgment, and we affirm the March 22, 2016 judgment of the Office of Workers’ Compensation.

AFFIRMED

      . The judgment bears the year 2013, but the date of judgment was corrected to December 17, 2015 in the March 22, 2016 judgment.

      . Throughout the record and in the joint stipulations submitted by the parties at trial, the start date of Bay’s sabbatical leave is identified variously as both August 7, 2013 and August 8, 2013. • r

      .See footnote 1.

      . This clarifying language was intended by the OWC to explain that it was not awarding sabbatical leave pay to Bay; rather, the OWC was declining to reduce TTD benefits as a consequence of Bay’s receipt of sabbatical leave pay.

      . La. R.S. 23:1225 provides, in relevant part: C. (1) If an employee receives remuneration from:
      (a) Benefits under the Louisiana Workers’ Compensation Law,
      (b) Repealed by Acts 2003, No. 616, § 1.
      (c) Benefits under disability benefit plans in the proportion funded by an employer.
      (d) Any other workers’ compensation benefits,
      then compensation benefits under this Chapter shall be reduced, unless there is an agreement to the contrary between the employee and the employer liable for payment of the workers' compensation benefit, so that the aggregate remuneration from Sub-paragraphs (a) through (d) of this Paragraph shall not exceed sixty-six and two-thirds percent of his average weekly wage.
      All parties appear to agree that La. R.S. 23:1225 does not apply to this litigation, and the statute is not raised as an issue on appeal. Therefore, we do not discuss the statute's applicability in this opinion.

      .La. R.S. 23:1206 provides: "Any voluntary payment or unearned wages paid by the employer or insurer either in money or otherwise, to the employee or dependent, and accepted by the employee, which were not due and payable when, made, may be deducted from the payments to be made as compensation.”

      ."In Attorney General's Opinion No.. 79-1382, the question of how to deal with worker's compensation benefits when one has been receiving sabbatical leave payments was presented. In the opinion, the Attorney General’s office stated:
      ‘Louisiana Workmen’s Compensation Law provides that compensation benefits will be paid on a monthly basis in the amount of sixty-six and two-thirds percent of the difference between the wages the employee was earning at the time of. the injury and any lesser wages the employee actually earns. It is our opinion that compensation received by the employee on sabbatical leave must be considered wages earned during that sabbatical leave period and should be considered in determining the amount of compensation to be paid.’ ”

        Cormier, 508 So.2d at 209 (quoting 1978-79 La. Op. Atty. Gen. 151 (1980), La. Atty. Gen. Op. No. 79-1382).

      . "For injury resulting in the employee’s inability to earn wages equal to ninety percent or ' more of wages at time of injury, supplemental earnings benefits, payable monthly, equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment...” La. R.S. 23:1221(3)(a)(l).

      . "An opinion of the Attorney General is merely advisory and, while perhaps persuasive authority, is not binding law or jurisprudence.” Concrete Busters of Louisiana, Inc. v. Bd. of Comm’rs of the Port of New Orleans, 2010-1172, p. 6 (La.App. 4 Cir. 2/2/11), 69 So.3d 484, 487-88 (citations omitted).

      . Article VII, Section 14(A) of the Louisiana Constitution states in pertinent part that, "[e]xcept as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private.”

      . “Any applicant who, at the expiration of the semester in which he applies, is ineligible for the sabbatical leave requested or who has not complied with the provisions of R.S. 17:1172 through 1174, shall have his or her application rejected, but all other applicants may have their applications granted, provided that all leaves requested in such applications could be taken without violating the following provision: At no time during the school year shall the number of persons on sabbatical leave exceed five percent of the total number of teachers employed in a given school system.” La. R.S. 17:1176(A)(emphasis a.dded).


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    Misty Luneau NOLAND v. Ryan Michael NOLAND
    16-641
    Court of Appeal of Louisiana, Third Circuit.
    04/26/2017
    Rehearing Denied June 7, 2017

      Gregory N. Wampler, Lemoine & Wam-pler, 607 Main St., Pineville, LA 71360, (318) 473-4220, COUNSEL FOR PLAINTIFF/APPELLEE: Misty Luneau No-land
    Michael H. Davis, Attorney at Law, 2017 MacArthur Drive, Building 4, Suite “A”, Alexandria, LA 71301, COUNSEL FOR PLAINTIFF/APPELLEE: Misty Luneau Noland ¡ -
    Bradford H. Felder, G. Andréw-Veazey, Huval, Veazey, Felder & Renegar, L.L.C., 2 Flagg Place, Lafayette, LA 70508, (337) 234-5350, COUNSEL FOR DEFENDANT/APPELLANT: Ryan Michael . No-land .
    Court composed of John D. Saunders, Billy H. Ezell, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

hln this custody dispute, Ryan’No-land appeals the trial court’s judgment denying his motion for modification of custody. Misty Noland filed an answer to appeal in the trial court requesting eértain restrictions placed on her in the judgment be removed. For the reasons set forth herein, we affirm the judgment and decline to consider Misty Noland’s Answer to Appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Ryan and Misty Noland were married on June 16, 2007. Of the marriage, two children were born—Conner on February 11, 2005, and Lillian on August 20, 2007. A Petition for Divorce, including a request for child custody and support, was filed on December 17, 2008. The petition designated Misty as the primary domiciliary custodian of the minor children with Ryan entitled to specific periods of custody.

On June 5, 2012, Misty filed a Rule for Modification of Child Support and Custody/Visitation and Contempt of Court that was tried on July 23, 2012. Written^ reasons and judgment were rendered on July 31, 2012. The trial court ordered a more specific visitation and custody schedule.

On July 15, 2015, Ryan, now remarried and living in Oklahoma, filed a Motion for Ex-Parte Custody and Modification of Custody, Visitation and Child Support. An ex-parte order granting custody of the children to Ryan was improperly signed which led to a sequence of events wherein Misty’s mother, Dorothy Luneau, attempted to use the order to gain custody of the children. Misty then filed a Motion to Vacate the Ex-Parte Order which was granted on July 17, 2015 after a hearing on the matter. Ryan’s original modification of custody was heard in December 2015 and February 2016 and culminated with days of testimony from twenty-seven witnesses and sixty-five exhibits. The trial court issued written reasons dated March 24, 2016, and judgment was signed May 2, 2016. The judgment denied Ryan’s motion for modification of custody and ordered the following actions be taken by the parties:

(1)Misty is to submit to random drug screens at Louisiana Occupational Health Services, 3018 Jackson Street, Ste. 100, Alexandria, Louisiana, as follows:
a)Random and observed urine screens twice weekly for six (6) months from the date of this judgment, and then once weekly for the following six (6) months;
b) A hair follicle test once monthly for twelve (12) months from the date of this judgment; and
c) Misty is to execute a medical release form with Louisiana Occupational Health Services, 3018 Jackson Street, Ste. 100, Alexandria, Louisiana, authorizing all test results to be mailed to Thomas M. Yeager, District Judge, P.O. Box 1431, Alexandria, Louisiana 71309, or delivered to Judge Yeager by facsimile at 318.484.2704.
(2) Misty to undergo substance abuse and family counseling with Lydia Roy, 3921 Independence Boulevard, Ste. | (¡101, Alexandria, Louisiana 71309 (Telephone: 318.528.8717), with the frequency and length of that counseling to be determined by Ms. Roy. Misty is to execute a medical release form with Ms. Roy, authorizing and directing Ms. Roy to provide a progress report every ninety (90) days, to be mailed to Thomas M. Yeager, District Judge, P.O. Box 1431, Alexandria, Louisiana, 71309, or delivered to Judge Yeager by facsimile at 318.484.2704.
(3) Misty is to continue treatment by Dr. Edwin Urbi, MD, 5920 Coliseum. Boulevard, Alexandria, Louisiana, and to take all medications prescribed by Dr. Urbi.
(4) Misty is prohibited from consuming alcohol and from entering bars, lounges, and casinos and is not to consume any controlled dangerous substances (CDS) unless prescribed by a physician; however, prior to any such prescription being written, Misty is to notify the physician of her substance abuse addiction and request that the physician prescribed a non controlled substance, if possible.
(5) The minor children, Conner Michael Noland, born February 11, 2005, and Lillian Ryan Noland, born on August 20, 2007 (sometimes jointly hereafter “the children”) are to have reasonable access to communicate with Ryan and that communication will not be censored nor monitored in any manner. Ryan is to have contact with the children by telephone, Skype, or Facetime at least four times a week, with Misty having the responsibility for placing the calls.
(6) Misty is not permitted to make or allow to be made, in the children’s presence, any derogatory comments, directly or indirectly about Ryan, Lindsey Noland, or her mother, Dorothy Luneau.
(7) Misty is, with the assistance of her substance abuse and family counselor, to work on a plan to reestablish a relationship with her children and their grandparents.
(8) Misty is to have both children evaluated for ADHD and to follow any treatment recommendations or medication recommendations made by the evaluator.
(9) Both Misty and Ryan are to purchase services provided by Our Family Wizard at www.OurFamily Wizard.com or by calling 1.866.755.9991.

The trial court reserved its ruling on the issue of child support and all other motions filed by the parties. It is from this judgment that Ryan appeals.

| ¿ASSIGNMENTS OF ERROR
1.The trial court erred when it applied the Bergeron standard rather than the Evans standard for modification of custody.
2. Regardless of whether the Bergeron or Evans standard applies, Ryan met the standard justifying a modification of custody, and the trial court erred when it failed to properly apply the Civil Code Article 134 factors and to name Ryan domiciliary parent and award Misty custodial periods appropriate for someone living approximately eight hours away from the primary custodian.
3. The trial court erred in considering the evidence of Lilly’s educational improvement during the course of the litigation as paramount in its determination of custody. At the time Ryan filed his initial request for modification of custody on July 15, 2012, Lilly had failed the first grade and was repeating that grade after having repeated pre-kindergar-ten. Only after Ryan sought modification of custody, while Misty was under microscope, did Lilly allegedly improve with her school work. In other words, the trial court erred both in considering post-filing facts influenced by the ongoing litigation (and the involvement of Misty’s father) and in its putting undue weight on only one of the twelve factors.
4. The trial court erred in holding that Ryan failed to meet his burden to modify the July 31, 2012 Judgment, but then modifying that judgment in an effort to reform Misty and protect the children from her with continued involvement and oversight of the trial court. In other words, the provisions that the trial court included in the judgment to reform Misty establish that Ryan did, in fact, meet his burden even if the Bergeron standard applies. Therefore, the trial court erred in establishing itself as a “safety monitor” for the children - rather than placing the children with Ryan with whom there were no concerns for their safety. .
5. Alternatively, the trial court erred when it failed to amend Ryan's custodial periods given that Ryan now lives eight hours away from Misty.
6.. The trial court erred in sustaining * Misty’s objection to the introduction of a Facebook posting between she and her friend, Chad Hill.
7. The trial court erred when it sustained Misty’s objection to the introduction of factual evidence not spe- , cifically pled in Ryan’s pleadings.
8. The trial court erred when it cast each party with their own costs.

^STANDARD OF REVIEW

“[A] trial court’s determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.” Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La. 10/25/96), 681 So.2d 365.

In a child custody proceeding, the trial court must consider all factors relevant to the child’s best interest. La. Civ.Code art. 134. Further,

[t]he court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. The court is not .bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Moreover, the .factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court.

Thibodeaux v. O’Quain, 09-1266, p. 5 (La. App. 3 Cir. 3/24/10), 33 So.3d 1008, 1013 (quoting Cooper v. Cooper, 43, 244 (La.App. 2 Cir. 3/12/08), 978 So.2d 1156).

DISCUSSION

I. Assignment of Error Number One— Bergeron v. Evans Standard of Review

The trial court found that the July 23, 2012 hearing on Misty’s Rule for Modification of Child Support and Custody/Visitation, which resulted in a July 31, 2012 judgment, is a considered decree. “A considered decree is one for which evidence as to parental fitness to exercise custody is received by the court. By contrast, a judgment with a custody plan that was entered by default, was not contested or was merely entered by the consent of the parties, is not a considered | ^decree.” Evans v. Terrell, 27, 615, p. 4 (La.App. 2 Cir. 12/6/95), 665 So.2d 648, 650, writ denied, 96-387 (La. 5/3/96), 672 So.2d 695.

After the 2012 hearing, the matter was taken under advisement and written reasons were assigned on July 31, 2012. That opinion states:

Based upon the tone and demeanor of the parties along with a consideration of the factors as set forth in Louisiana Civil Cod art. 134, though not a tremendous amount of evidence concerning the specific relationship of the parents to the children were introduced at trial, the Court finds that it is in the best interest of the children that Misty Noland be designated the primary domiciliary custodian of the minor children and that Ryan Noland receive visitation as set forth below pursuant to an order of joint custody.

On the issue of burden of proof on the present motion, the trial court opined in the March 24,2016 Written Reasons:

Pursuant to La. C.E. art 201, the Court takes judicial notice of the official minutes that show seven exhibits were introduced (all dealing with the child support/contempt for failing to pay medical bills, etc.) and that both Ryan No-land and Misty Noland were called and testimony adduced.
Therefore, based upon the Written Reasons for Judgment and the official minutes of the Court, the Court finds the previous hearing is a considered decree and therefore, the petitioner, Ryan Noland, has to satisfy the burden of Bergeron v. Bergeron, 492 So,2d 1193, 1200 (La. 1986), that is a “change of circumstances has occurred such that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree or that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.”

Because it found the judgment to be a considered decree, the trial court applied the Bergeron standard when analyzing the motion to modify custody on appeal. Ryan’s position is that custody was not at issue in the 2012 hearing, only a change to the visitation schedule. We disagree. There is little doubt that the 2012 judgment is a considered decree. The trial court clearly weighed the best interest of the children and kept the designation of primary domiciliary custodian with 17Misty while making changes to Ryan’s visitation schedule pursuant to an order of joint custody. We. find no error in the trial court’s application of the Bergeron standard to this matter. This assignment is without merit.

II. Assignments of Error Numbers Two and Four—Burden of Proof and Custody Order

Because we found that the 2012 judgment is a considered decree, the Ber-geron standard applies to the present appeal. The supreme court in ABE v. JBE, 99-2668, p. 7 (La. 11/30/99), 752 So.2d 756, 761 explained:

In such actions, the proponent of change must show that a change of circumstances materially affecting the welfare of the child has occurred since the prior order respecting custody. Bergeron[v. Bergeron], 492 So.2d at 1195. The party seeking a change “bears the heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.” Bergeron, 492 So.2d at 1200. This burden of proof is imposed as a means of implementing the best interest standard in light of the special- considerations present in change of custody cases. Last, the determination of the trial judge in child custody matters is .entitled to great weight, and his discretion will not be disturbed on review in the absence of a clear showing of abuse. Bergeron, 492 So.2d at 1196.

The findings of the court in this matter are extensive and detail the reasons the trial court ruled in Misty’s favor. The trial court was not kind to Misty and stated that it had never heard testimony “as damaging as the evidence against Misty No-land.” The trial court found that Misty had been diagnosed with bi-polar disorder, depression, obsessive compulsive disorder and anxiety, , and she, did not take her medication as prescribed. Misty also has an addiction to opiates such oxycontin, hy-drocodone and amphetamines for which she has been in outpatient treatment three times. She was using cocaine and heroin as recently as May 2015. The court further found that she constantly interferes with the children’s access to |8their father, his mother, and her own mother. While in her custody, Conner has had to have extensive dental work. Misty suffers from migraine headaches once a week which incapacitate her. On numerous occasions, Misty has referred to Ryan’s new wife, Lindsey, as a “bitch,” and she engages in inappropriate behavior when Lindsey is around. The court found that Misty is “manipulative, controlling, impulsive, narcissistic and has created a chaotic atmosphere for the children” with the conflict she creates. Conner, at the age of eleven, felt responsible for his mother and even had to wake her up in the mornings. According to Misty’s mother, Misty does not cook for the children and provides them with junk food. Conner cooks breakfast, and the home is not clean. Misty is in bed ninety percent of the time, and Lillie had to repeat kindergarten and first grade.

The trial court found that Misty’s behavior is “typical narcissistic behavior of a drug addict;” however, it was provided with “satisfactory evidence to explain the dental issue and Lille repeating two grades.” The court further found that, contrary to how her mother testified, Misty is not in bed most of the time. The children play outside and have friends in the neighborhood. Based on the testimony of Anna Theus (director of St. James Day School), Candi Frost (Conner’s former teacher), Nancy Rials (principal of Alexandria Country Day School), Helen Cespiva (teacher at Alexandria Country Day School), Nathan February (Lillie’s dance teacher), Katie Long, Laura Cooper (Lillie’s tutor), and Christine Tilley (the children’s counselor), Misty is very active with the children, in their school, and in their activities. Further, none of these witnesses ever saw any behavior from Misty which would indicate that she had a drug problem.

Misty has enlisted the aid of Christine Tilley, beginning in May 2014, to help her children cope with the effects of the divorce. Ms. Tilley’s found Lillie to |9be “head strong,” and she also found that Conner had problems with anger which derives from his father’s move to Oklahoma.

Anna Theus described Misty as the “primary parent” of the children. Misty served on the Board of Directors, assisted with the auction, lobster boil and donated funds to the school. Ms. Theus found Misty to be a wonderful parent and had no cause for concern.

Candi Frost also described Misty as very involved. Ms. Frost testified that Conner was well groomed and never unkempt.

Nancy Rials described the children as happy, normal, and well-groomed. She stated that there were no. disciplinary problems. She also described Misty as very involved. Helen Cespiva reiterated Misty’s involvement.

The trial court also found unfavorable testimony regarding the children’s father, Ryan. He was consistently late paying child support. He was not involved with the children’s schooling and did not worry about their progress until Lillie was held over. He never contacted Christine Tilley, the children’s counselor, to inquire about the sessions or if he could help in any way. He failed to exercise his custody on several occasions.

The trial court was not impressed with how Ryan handled his move to Oklahoma. He did not discuss this move with the children until very shortly before he left. The court found that he could and should have done more to help the children before and after he left.

Further, when Ryan had custody of the children in the summer of 2014, he ignored Laura Cooper’s request that he tutor Lillie. Ms. Cooper and Misty sent tutoring materials and instructions with Lillie. Ms. Cooper tried to call him, but Imher calls went unanswered. When Lillie returned from her summer visit, there was only one week left to get her ready for school.

It was also the trial court’s opinion that the person primarily responsible for the filing of the Motion to Modify Custody was not Ryan but rather Misty’s mother, Dorothy. The trial court stated that “[without her involvement and her hiring an attorney to represent Ryan, the Court doubts the motion would have been filed.”

The trial court was most concerned with Lillie’s welfare and learning disorders. The trial court noted that “[although I would never give Misty Noland a trophy for ‘Mother of the Year,’ she certainly deserves credit and a pat on the back for what she has done, (with the assistance of her father), for Lillie.” The trial court went on to describe Lillie’s condition:

Lillie has been diagnosed with Oppositional Defiant Disorder, Attention Hyperactivity disorder and Dyslexia, and because of such, she has learning disorders. She has repeated kindergarten and the first grade and is in her second year of first grade at this time.
Helen Cespiva taught her the last two years in first grade. Once she realized the struggle Lillie was having, Lillie was tested and was given an Individual Education Plan (IEP) to specifically meet her educational needs. [Misty] was present at the meetings concerning Lillie’s problems and was “concerned, cooperative and wanted to help.” They arranged for the Rapides Parish School Board to provide a tutor' for her during school hours.
Ms. Cespiva has been Lillie’s first grade teacher for the last two years and is in the best position to compare Lillie’s progress last year and this year, or lack thereof.
She testified that last year, Lillie was embarrassed, more aggressive and agitated. Because of all the hard work by Lillie, Misty, Ms. Cespiva and Ms. Cooper this year, Lillie has blossomed and her self-confidence, self-esteem, interacts better with classmates, is a class leader in group activities, is easier to work with and will be a good second grade student.
^LyShe testified that a learning disability has nothing to do with intelligence but a problem with how the brain processes information. If it does not process information correctly, then the disability has to be “remediated” by a qualified educator by use of certain techniques. If done correctly, (which the Court finds Ms.Cooper/Cespiva are doing), Lillie will outgrow her disability.
Misty also hired Laura Cooper as a tutor who has taught children for 40 years, has four teaching certifications and has been a tutor since 1976. She is not only a tutor, but a “remediator” who tries to fix the learning disability. She meets with Lillie’s teachers at ACDS so they can address her individual problems and their plans to address them. Since 2014, she sees Lillie two hours every Saturday and although the dyslexia has not been reversed, with the help of her teachers, the IEP, Ms. Cooper and Misty, Lillie is performing at grade level in math, is able to read and write independently and is successful and happy. Misty, or her father, bring Lillie to Ms. Cooper and pick her up.
Ms. Cooper testified that for this plan to succeed, it has required a lot of work at home by Ms. Noland and that she has done a good job. Ms. Cooper testified that Lillie was brought to her and picked up by either [Misty] or her father, that Lillie attended consistently and promptly, was always well fed and groomed and that Misty paid for the tutoring. She ended her testimony with, “I’m surprised to be here because Lillie is doing well and is happy.”
The Court was extremely impressed with the education, training and experience of Helen Cespiva, a teacher for 42 years, and Laura Cooper, a teacher for 40 years and finds they were credible witnesses.

The trial court clearly did not want to hinder the progress Lillie has made, academically and socially. The trial court found “beyond a reasonable doubt that changing custody of Lillie would be devastating to her.” The trial court further found that, according to Ms. Cespiva’s testimony, a change of schools would be ‘disastrous’ for Lillie, and it would cause Lillie to “lose all she has gained and would have to start over.” Ms. Cooper agreed stating Lillie “would lose ground emotionally and academically.”

The trial court ruled:
The Court believes at this time Lillie, who is only eight years old, is at a very pivotal stage of her life and her educational | ^development. If she remains here with her education team, she will continue her progress and the learning disability has great odds of being abated. If she leaves Rapides Parish, she will lose all that she has gained, she will regress and be unable to continue her success.
There were questions about whether the special attention she receives here can be replicated in Oklahoma. The Court is not aware of what services should receive because there was no evidence presented on this issue. After listening to Helen Cespiva and Laura Cooper, the Court would find it difficult to believe that Lillie could receive the same services provided in Rapides Parish. They are extraordinary people who have done extraordinary things for Lillie.
However, even if Lillie could get the same exact services, it would still not be in her best interest to move to Oklahoma. She is attending an excellent private school with small classrooms that are important to her. She has worked with Ms. Cespiva and Ms. Cooper for two years; they know her strengths and weaknesses; she is comfortable with them as they are with her and she has “thrived” in this environment. To take her from this environment and put her in another environment without the comfort zone she has with these two teachers would be a tragic mistake. Also, it is apparent that if the custody does change, her father will not be as attentive as her mother to her educational needs. He was only required one time to tutor her during the summer. If he could not find time to do that, he certainly would not attend to her needs during an entire school year.

The trial court found that it would be in the best interest of the children to remain with their mother. This went against the recommendation of the court-appointed psychologist, Dr. Alicia Pelleg-rin, who found that Ryan, although he has many flaws, and his wife Lindsey were able to provide the children with the stability they need. The trial court concluded that Dr. Pellegrin was not aware, at the time of her evaluation, of Lillie’s learning disabilities and her progress. The trial court . questioned “whether her opinion would be the same if she had the information about Lillie that was presented at trial.” The trial court is not bound by expert testimony and remains free to accept or reject an expert’s conclusions. Slayton v. Slayton, 05-1529 (La.App. 3 Cir. 5/3/06), 929 So.2d 865.

After a review of the record, we cannot say the trial court abused its discretion in finding Ryan did prove a change of circumstance which materially affected the welfare of the children had occurred since the previous custody order. While this was not an easy case, we believe the trial court correctly decided in favor of stability for the children.

Additionally, we do not find error with the custody order itself. It is Ryan’s contention that the trial court erred in establishing itself as a “safety monitor” for the children rather than placing the children with Ryan. We disagree. The trial court issued a comprehensive custody plan. To ensure that the best of interest of the children was accomplished, the trial court included certain requirements for Misty. This is favorable to Ryan in that, if Misty does not comply, he can file a motion for contempt.

As such, these assignments have no merit.

III.Assignment of Error Number Three

Ryan next complains that the trial court gave undue weight to Lillie’s post-filing education improvement. We disagree.

The primary consideration in a determination of child custody is the best interest of the child, and the trial court’s decision is afforded great weight. State in the Interest of P.T., 14-1160 (La.App. 3 Cir. 3/4/15), 159 So.3d 1184, writ denied, 15-693 (La. 5/1/15), 169 So.3d 378. “The trial judge is in a better position to evaluate the best interest of a child from his observance of the parties and the .witnesses and his decision will not be disturbed on review absent a clear showing of abuse.” Mason v. Mason, 16-287, p. 3 (La.App. 3 Cir. 10/5/16), 203 So.3d 519, 523 (quoting Steinebach v. Steinebach, 07-38 (La.App. 3 Cir. 5/2/07), 957 So.2d 291, 294).

| uIt is clear from the trial court’s lengthy opinion that it weighed all of the evidence presented and determined that Misty as the primary ,domiciliary parent was in the best interest of the children. The trial court was “extremely impressed” with the testimony and experience of Helen Cespiva and Laura Cooper, which was a primary factor in its determination. The trial court’s function and duty, is to observe the evidence and make a decision. 'That is what the trial court in this case did; This assignment is without-merit.

IV. Assignment of Error Number Five

Next, ’Ryan argues that the trial court should have modified his visitation schedule because he now lives in Oklahoma. This issue is not properly before the court. Ryan filed a motion to modify custody, visitation and support wherein he would be named the primary domiciliary parent and Misty would have visitation. Ryan did alternatively request to. have increased visitation in the event Misty remained the primary domiciliary parent. It was not considered in the trial court’s written reasons.or in the judgment. As such, we decline to consider this assignment.

V. Assignments of Error Numbers Six and Seven-Admissibility of Evidence

Ryan next finds, fault with the trial court’s ruling on certain evidence. The trial court sustained Misty’s objection, excluding a Facebook posting between Misty and a Mend. In addition, the trial court sustained Misty’s objection to a line of questions which she argued expanded the pleadings.

“All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not admissible.” La.Code Evid. art. 402. Ryan contends that the rules of evidence are to be liberally 11fiapplied, and any evidence pertaining to a party’s parental fitness should have been admitted into evidence.

Regarding the Facebook posting, the photograph was admitted with the text redacted. However, the record shows that Misty was questioned about it and read the text into the record. Therefore, we find this exclusion to be harmless error. Likewise, the second objection led to a proffer regarding testimony of Ryan’s mother, Linda. In short, the testimony given was that Misty did not inform Linda of changed plans dealing with a scheduled haircut. This testimony is insignificant at best. We find this, too, to be harmless error.

VI. Assignment of Error Number Eight

In this final assignment of error, Ryan argues that Misty should have been cast with all of the costs of the proceedings because she was granted three continuances over Ryan’s objection. As a result, Ryan incurred extra costs. The trial court ordered that each party be responsible for its own costs.

The trial court may assess costs as it considers equitable. La.Code Civ.P. art. 1920. A trial court has broad discretion in its assessment of costs which can only be reversed on appeal by showing an abuse of discretion. ... Furthermore, when a prevailing party is assessed with costs of litigation, it is generally due to the fact that the party in some way pointlessly incurred additional costs or engaged in conduct which justified assessment of costs against it.

Hebert v. Richard, 16-427, p. 4 (La.App. 3 Cir. 11/2/16), 206 So.3d 251, 254-55 (Citations omitted).

Misty was the prevailing party in this case. The trial court clearly took into account the added expenses caused by Misty and cast her with half of the costs of the litigation. We do not find that the trial court abused its discretion. This assignment is without merit.

J^DECREE

The judgment of the toial court is affirmed, and we decline to consider Misty Noland’s Answer to Appeal. All costs of this appeal are assessed to Ryan Michael Noland.

AFFIRMED.

      . Misty Noland's Answer to Appeal was not properly filed, and we decline to consider it. Louisiana Code of Civil Procedure Article 2088(A) provides, in pertinent part:
      The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court' has jurisdiction in the case only over those matters not reviewable under the appeal....
      The record reflects that Ryan Noland fax filed a Pétition for Appeal in the trial court on May 10, 2016. The trial granted the appeal on May 17, 2016. At that time, in accordance with La.Code Civ.P, art.2088, the trial court became divested of jurisdiction over all matters on appeal. Thereafter, Misty Noland filed her Answer to Appeal on July 17, 2016 in the trial court. As such, the Answer to Appeal was "improvidently filed in the wrong tribunal and, thus, will not be considered.” Sorile v. Lott Oil Co., Inc., 14-1156, p. 1 (La.App. 3 Cir. 3/4/15), 160 So.3d 178, 179 n.1; See also, Smoot v. Hernandez, 08-1121 (La.App. 3 Cir. 3/4/09, 6 So.3d 352; Kelly v. Boise Bldg. Solutions, 11-1116 (La.App. 3 Cir. 5/2/12), 92 So.3d 965, writs denied, 12-1173, 12-1209 (La. 10/8/12), 98 So.3d 851.


author: LOLLEY, J.

text:
    Joshua MORRIS and Jeremy Watson, Plaintiffs-Appellants v. Dirk RAINWATER, M.D., Louisiana Medical Mutual Insurance Company, and Jackson Parish Service District No. 1 d/b/a Jackson Parish Hospital, Defendants-Appellees
    No. 51,018-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017.
    Rehearing Denied February 9, 2017

      MYRT T. HALES, SR., JOSHUA L. STRICKLAND, OSCAR L. SHOEN-FELT, III, BERTHA ITURRALDE TAYLOR, Counsel for Appellants
    HUDSON, POTTS & BERNSTEIN, By: Gordon L. James, Margaret H. Blackwell, Counsel for Appellees
    Before CARAWAY, LOLLEY and PITMAN, JJ.
   LOLLEY, J.

hln this medical malpractice case, plaintiffs, Joshua Morris and Jeremy Watson, appeal a judgment from the Second Judicial District Court, Parish of Jackson, State of Louisiana, wherein a jury found in favor of defendant, Dr. Dirk Rainwater, M.D. For the following reasons we affirm the judgment of the trial court.

FACTS

On June 13, 2011, at approximately 1:15 p.m., Charlotte Leach, then a 50-year-old white female, presented in the Jackson Parish Hospital (“JPH”) emergency room in Jonesboro, Louisiana, with complaints of a headache and abdominal pain which had begun three days prior. Leach was triaged by the nursing staff, and her vitals upon arrival were: blood pressure 64/41 mm Hg; pulse of 91 beats per minute; respira-tions of 22 breaths per minute; and temperature 97.9 degrees Fahrenheit. At approximately 1:30 p.m., Leach was assessed by Dr. Dirk Rainwater, the physician on duty in the JPH emergency room.

Dr. Rainwater ordered blood and urine cultures, multiple • laboratory tests,' and multiple radiographic tests on Leach. Several of these came back abnormal: her white blood cell count was high; her glucose was low, indicating she was hypoglycemic; blood urea nitrogen and creatinine were elevated, indicating dehydration. Leach’s critically high creatinine level and white blood cell count were cause for concern. A drug screen was positive for ben-zodiazepines, and urinalysis revealed a urinary tract infection. Based on these results, Dr. Rainwater ordered intravenous fluids every six hours, Protonix 40 mg every four hours, and one dose of Roce-phin, an antibiotic. Although vitals were continuously, monitored, the single dose of intravenous |2Rocephin was the only antibiotic administered to Leach during the two days she stayed in JPH under Dr. Rainwater’s care.

All radiographic studies of the chest, brain, sinuses, and abdomen were essentially normal. The results of an ultrasound of the abdomen showed some biliary sludge suggestive of possible extrahepatic biliary obstruction (blockage of the normal flow of bile from the liver to the intestinal tract). Based on these laboratory tests and reports, Dr. Rainwater made a primary diagnosis of hypotension (i.e., low blood pressure) and a secondary diagnosis of abdominal pain. Leach was given pain medication and admitted to JPH for observation. Dr. Rainwater was also the acting hospitalist, and Leach remained under his care during overnight observation. •

Leach’s blood pressure rose slightly after admittance to JPH. The night of June 14, Dr. Rainwater arranged for Leach’s transfer 'to Louisiana State University Hospital—Shreveport (“LSUHSC”) in the morning. Although Leach remained hypo-tensive, during the 42 hours from admittance to departure for LSUHSC, the JPH blood pressure chart shows that, upon departure, Leach’s blood pressure was raised to 96/60, but still within the hypotensive range. Vitals taken before Leach’s departure'also show lowering of her creatinine level, but it still remained high, and improvement, in white blood cell count to within normal range. As she departed from JPH and Dr. Rainwater’s care, Leach continued to complain of a headache and abdominal pain.

Leach arrived at LSUHSC at approximately 12:30 p.m. on June 15, 2011. A detailed history and updated vitals were obtained by LSUHSC staff. The initial evaluation at LSUHSC found Leach to be in mild distress, with mild diffuse coarse breath sounds, and her abdomen was soft with |3diffuse tenderness and positive bowel sounds. She was diagnosed with abdominal pain, gram negative rod bacteremia, pyuria (white blood cells in urine—sometimes indicative of a urinary tract infection), extrahepatic bowel duct obstruction, recent hypotension, and thrombocytopenia (low blood platelet count). Leach received intravenous antibiotics and various adjustments were made to Leach’s treatment regimen while she was at LSUHSC. On June 16, Zosyn was discontinued and Pri-maxin 250 mg was started. On June 17, additional antibiotics were added to treat a bacterial infection. A CT scan of the abdomen taken at LSUHSC revealed cirrhosis (liver disease), splenomegaly (enlarged spleen), .and possible pneumatosis intesti-nalis (gas cysts in the bowel wall). The radiologist did not compare the scan taken at LSUHSC to the liver scan taken at JPH two days prior.

Over the next few days at LSUHSC, Leach’s condition continued to decline. She suffered from increased intracranial pressure, uncontrolled seizure activity, and her liver began to fail. On June 21, after 6 days at LSUHSC, ventilator support for Leach was discontinued at her family’s request, and she died shortly thereafter. Leach’s cause of death is listed as multiple organ failure, sepsis, and cirrhosis.

Almost a year after their mother’s death, Joshua Morris and Jeremy Watson filed a complaint alleging the care provided to Leach by JPH and Dr. Rainwater failed to meet the accepted standard of care. This complaint was heard by a medical review panel (“MRP”) composed of Dr. Brian Caskey, Dr. Don Bell, and Dr. Philip Conner. After reviewing Leach’s medical records and the submitted depositions by Dr. Rainwater and plaintiff expert, Dr. Walter Simmons, the MRP found JPH did not fail to meet an acceptable standard of care. However, the MRP concluded Dr. Rainwater |4had deviated from the standard of care required of an emergency room physician, stating:

In order to address her complaints, [Dr. Rainwater] ordered appropriate lab work and studies to be performed on her in seeking to determine exactly what was going on with this patient. She was a patient he was somewhat familiar with as a result of several other presentations to the hospital emergency room.
The lab work that he ordered indicated that she had a significant elevated level in her white count and also determined that she was suffering from a UTI. In our view, Dr. Rainwater should have ordered more aggressive antibiotic therapy at that point and the administration of antibiotics with careful monitoring should have been continued until her transfer to LSU-Shreveport. It is clear to us that he recognized the patient was not improving at the rate that would be expected. Additionally, we believe that his failure to recognize that this patient was in septic shock was a clear deviation from the accepted standard of care.
These failures were deviations from the accepted standard of care for an emergency room physician under the circumstances in this case. We conclude that these deviations resulted in the alleged resultant damages, namely, death of this patient from septic shock.

On May 28, 2014, Watson and Morris filed a petition for damages against JPH, Dr. Rainwater, and his malpractice insurance, Louisiana Medical Mutual Insurance Company. Subsequently, JPH was dismissed by summary judgment. At the conclusion of the trial, Morris and Watson made a motion for directed verdict, which was denied. The jury returned a verdict that Dr. Rainwater’s treatment of Leach did not fall below the requisite standard of care. Morris and Watson now appeal that judgment.

DISCUSSION

Appellants set forth four assignments of error in this appeal, arguing in one that the jury is manifestly erroneous in its verdict finding that plaintiffs did not prove by a preponderance of the evidence that Dr. ^Rainwater breached the standard of care in his treatment of Leach. Appellants claim that Leach’s vitals and the results of the tests ordered by Dr. Rainwater when Leach first presented in the JPH emergency room showed signs of organ failure and septic shock due to hypo-tension and infection. Appellants argue that Dr. Rainwater gave Leach only one dose of Rocephin, which was not adequate to treat her condition, more aggressive treatment would have saved her life, and the jury erred by not finding so. We disagree.

The jury’s finding in a medical malpractice case is subject to manifest error review; it cannot be set aside unless the appellate court finds- that it is manifestly erroneous or clearly wrong. Stobart v. State through Dep't of Transp. & Dev., 617 So.2d 880 (La. 1993); Bailey v. Donley, 44,919 (La.App. 2 Cir. 12/9/09), 26 So.3d 987, 990-91. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and find that (1) a reasonable factual basis does not exist for the finding; and, (2) the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id. The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La. 4/3/02), 816 So.2d 270; Bailey, supra.

Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Salvant v. State, 2005-2126 (La. 7/6/06), 935 So.2d 646. Where the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is most credible. Mistich v. Volkswagen of Germany, Inc., 1995-0939 (La. 1/29/96), 666 So.2d 1073, opinion reinstated on reh’g, 95-0939 (La. 11/25/96), 682 So.2d 239; Volentine v. Raeford Farms of Louisiana, LLC, 50,698 (La.App. 2 Cir. 8/15/16), 201 So.3d 325, 347, writ denied, 2016-1925 (La. 12/16/16), 212 So.3d 1171, 2016 WL 7638429, and writ denied, 2016-1924 (La. 12/16/16), 212 So.3d 1171, 2016 WL 7638427. This language places the responsibility of determining which expert was more credible on the fact finder. Id. A fact finder may evaluate expert testimony by the same principles that apply to other witnesses and has great discretion to accept or reject expert or lay opinion. Id. The weight to be accorded to testimony of experts depends largely on their qualifications and the facts upon which they base their opinions. Boone v. Top Dollar Pawn Shop of Bossier, LLC, 50,493 (La.App. 2 Cir. 2/24/16), 188 So.3d 1093. Causation is a factual finding which should not be reversed on appeal absent manifest error. Detraz v. Lee, 2005-1263 (La. 1/17/07), 950 So.2d 557; Bailey, supra.

To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794. In a medical malpractice case, the plaintiff has the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
|7(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

See La. R.S. 9:2794(A); Salvant, supra.

Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880. Expert testimony is also required to establish whether a breach of the standard of care caused injury to the plaintiff. Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002.

Where there are conflicting expert opinions concerning the defendant’s compliance with the standard of care, the reviewing court will give great deference to the conclusions of the trier of fact. Bailey, supra. Here, in addition to the MRP’s decision, the jury had the opportunity to hear testimony from experts on both sides.

Witness Testimony

Plaintiffs first called Percy Ford, attorney-chairman for the MRP, to explain how the MRP is selected and the process by which the panel comes to a decision. He explained that the panel reviewed the Jackson Parish ambulance report, Leach’s certificate of death and medical records, along with expert reports from both sides. He also informed the jury that the panel never met in person and only conferenced by telephone.

|sThe jury next viewed a video deposition by Dr. Curtis Partington, expert radiologist, who essentially stated that the CT scan of Leach’s liver ordered by Dr. Rainwater and taken at JPH showed a normal liver.

The plaintiffs then called Dr. Rainwater, entered as an expert in general practice and emergency medicine, and cross-examined him on his treatment of Leach. Dr. Rainwater explained that Leach did not present with the typical symptoms of someone in septic shock. He further testified being familiar with the symptoms of sepsis, because he sees septic patients frequently in the emergency room. Dr, Rainwater informed the jury that he knew Leach as a patient. He was aware of her history of low blood pressure, smoking for over 36 years, Chronic Obstructive Pulmonary Disease (“COPD”), untreated Hepatitis C, pre-existing liver disease, cirrhotic liver, and prior hospital admissions in connection with her illicit use of street drugs and alcohol. Dr. Rainwater pointed out that even after two days at LSUHSC, Leach still had not been diagnosed with sepsis, and of her time under his care at JPH, he noted:

She was able to get up within two hours of me putting her on the floor at JPH and walked down the hall and smoked. She was able to get up and shower. She was able to eat. She was able to drink. She was able to get up and use the toilet. This is a normal person. This isn’t somebody that’s debilitated septic in the bed that’s unresponsive or barely able to communicate with the physician.

Dr. Partington had stated the JPH CT scan showed a normal liver, but Dr. Rainwater disagreed with this, stating that as-cites on the liver were not normal and the spleen was enlarged, which is indicative of chronic conditions that weaken the body. Dr. Rainwater explained that his care of Leach included CT scans, intravenous antibiotics, laboratory tests, a full cardiac workup, and a sufficient amount of intravenous fluid. He further 13explained that congestive heart failure patients, like Leach, have fluid retention issues which require a physician to carefully monitor the amount of fluids given to a patient (fluids are necessary to raise blood pressure when a patient is hypotensive).

The jury also heard testimony from Dr. Phillip Connor, MRP member, board certified in family practice and sleep medicine, currently practicing in Lake Charles, Louisiana, and offered as an expert in family medicine. He explained to the jury that sepsis by definition is an infection of the blood stream associated with end organ damage. He also explained that hypoten-sive patients have blood vessels that cannot retain fluid, so fluid leaks out causing low blood pressure; the purpose of blood is oxygen delivery, and if no oxygen is delivered to the organs they die. Dr. Con-nor stated he would have continued to give Leach more antibiotics, because .even though a patient does not appear ill and can still smoke does not indicate she is not sick.

Dr. Connor opined that Leach’s enlarged spleen was a hallmark sign of the body fighting infection, maybe indicating sepsis. He also’ stated that an enlarged spleen is common in patients with cirrhotic livers. He testified that Leach’s history of drug and alcohol abuse actually put her at greater risk for sepsis. He further statecl that the MRP determined Dr. Rainwater ordered all the appropriate tests for Leach, did not talk about her history of alcoholism, drugs, COPD or elevated liver enzymes, but still felt more antibiotics should have been administered; therefore, the panel agreed Dr. Rainwater’s treatment of Leach feel below the acceptable standard of care.

Dr. David Morro, an expert in emergency medicine and critical -care who practiced in Phoenix, Arizona, was- called by plaintiffs to testify about a hpreview he wrote concerning sepsis. It was his opinion that Leach died from under-treatment of antibiotics and a lack of aggressive fluid resuscitation. He stated that behavior modifica^ tion has been, shown to reduce the effects of long term complications from cirrhosis. Dr. Morro’s review explained -a specific protocol for treatment of septic shock patients. On cross-examination the defense presented Dr. Morro with a medical study that stated no matter ■ how a patient is treated, by the “protocol” Dr. Morro suggested, or regular treatment, about 19% of septic patients still die regardless of th.e measures■ taken to save, their,:lives. Dr. Morro admitted that multiple studies are done in every area of medicine that refute or support certain statements or protocols.

Dr. Caskey, another MRP member, was not called to testify, but his opinion was published to the jury in the interest of time. Both plaintiffs, Leach’s two sons, testified to their love of their mother and her changed life a year before her death. The jury was then shown a video deposition by Dr. Walter Simmons, an expert hired by plaintiffs from Phoenix, Arizona, who opined that Dr. Rainwater did not raise Leach’s blood pressure quickly enough. He also testified that the scan of Leach’s liver taken at JPH was normal and two days later the LSUHSC scan showed that Leach’s liver had shrunk. Dr. Simmons attributed this difference in Leach’s liver to low blood pressure, which caused an inability to perfuse her organs appropriately, and infection.

The defense called only one expert, Dr. John Haynes, expert in family practice, specifically in rural areas of Louisiana. Dr. Haynes testified to his experience treating septic patients, and emphasized that Leach did not present any of the classic signs of sepsis, specifically noting that she | n continued to have bowel movements, indicating that her organs were not shutting down. Dr. Haynes noted that the nurses’ reports, on which doctors often rely for updates on a patient’s condition, continued to state that Leach was alert, oriented, and awake. Dr. Haynes also explained that at the time of Leach’s treatment, Dr. Rainwater did not have the blood cultures (which take 48 hours to process) to show Leach had E. coli in her blood; without those laboratory test results, Dr. Rainwater had no way of knowing this information at the time Leach was under his care.

In Dr. Haynes’s opinion, Leach was not in septic shock during her time at JPH, and he specifically testified that he had never seen “anyone in shock, septic shock, or otherwise that had a normal lactate (typically during septic shock lactate elevates). When she got to LSUHSC her lactate was normal.”

In the case sub judice, the jury was presented with an abundance of expert testimony to consider. The plaintiffs presented numerous experts to bolster their theory that aggressive antibiotics during Leach’s time at JPH would have given her a better chance of survival, but not one expert could directly refute the testimony of the defense witnesses, Dr. Rainwater and Dr. Haynes. The plaintiffs’ case focused on the treatment of sepsis, while the jury was called to determine whether the plaintiffs had proven: Leach had sepsis when she presented at JPH; Dr. Rainwater failed to identify this; and, his failure to identify and treat for sepsis was a deviation from the standard of care which ultimately caused Leach a lower chance of recovery.

Two different, viable theories on Leach’s condition and the treatment she received were presented to the jury. Both sides presented expert opinions on Leach’s medical records, their personal experience, and medical 112articles reviewed in preparation for trial. The experts disputed if Leach died from sepsis or cirrhosis, but all agreed she had additional chronic illnesses due to her extensive history of drug and alcohol abuse which complicated diagnosis and led to the decline of her overall health through the years. Notably, the initial diagnosis at LSUHSC also did not include sepsis.

After a complete review of this record, we find it is possible that reasonable minds could disagree regarding the evidence presented; therefore, the jury was not clearly wrong in choosing to believe one side’s experts over the other. For that reason, we decline to disturb the jury’s verdict, and this assignment of error is without merit.

Motion for Directed Verdict

In another assignment of error, the appellants claim the trial court committed legal error by denying their motion for directed verdict. A directed verdict should only be granted when the facts and inferences point so strongly in favor of one party that the trial court believes reasonable people could not reach a contrary verdict. Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 718 (La. 1986). It is appropriate, not when there is a preponderance of evidence, but only when the evidence overwhelmingly points to one conclusion.

Considering our conclusion that the jury’s determination was not manifestly erroneous, the trial court’s denial of the directed was proper. Any discussion of this assignment of error is pretermitted.

Evidentiary Rulings

In another assignment of error, the appellants argue that the trial court committed legal error by allowing speculative, prejudicial testimony and literature into evidence. The appellants also argue that the trial court erred | isin allowing the report of Dr. Haynes into evidence over their objection that the report constituted hearsay, was irrelevant, cumulative, and prejudicial.

The trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed on appeal absent a clear abuse of that discretion. Hays v. Christus Schumpert N. La., 46,408 (La. App. 2 Cir. 9/21/11), 72 So.3d 955, 961. On appeal, we must consider whether the complained of ruling was erroneous and whether the error affected a substantial right of the party. If not, reversal is not warranted. Id. The determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case. Id. Complaint of an alleged erroneous eviden-tiary ruling may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected. La. C.E. art. 103.

Here, the trial court allowed testimony from defense expert Dr. Haynes which appellants argue was in error due to its speculative nature. At trial, plaintiff counsel objected to the following statement by Dr. Haynes: “I don’t know exactly why and we don’t have autopsies to tell us everything. Now, she could have taken something. Who knows? I don’t know. That might have caused the problem.” This objection was sustained. Defense counsel then asked questions to clarify Dr. Haynes’s opinion that Tylenol can cause liver failure.

Q: Do you have any kind of medical literature or reference to support your opinions that you thought she was going into acute.liver failure from toxic ingestion?
A: Well, her enzymes were going up and her blood ammonia was really high, starting to elevate and did go high. So, that’s all, you know, those things are pathognomonic really of liver failure.
| UQ: ■ Yes, sir. And, I’m sorry if my question is actually, do you have any kind of medical literature which we could use to show how Ms. Leach was going into acute liver failure from toxic ingestion, any kind of medical articles used by physicians in your field?

At this point plaintiff counsel objected to Dr. Haynes testifying on any articles not entered into evidence and also to speculation on the cause of death, because Dr. Haynes mentioned there was no autopsy “so anything that he would opine as to the cause of death is purely speculative.” Defense counsel responded that any physician who gives an opinion as . to the cause of death is basing that opinion on speculation. The trial court overruled this objection, stating that Dr. Haynes was qualified as an expert. Plaintiff counsel continued to object to any testimony concerning the possibility of Tylenol as a cause of liver failure. The trial court entertained one suph objection, striking the statement, “it appeared to be that it was a Tylenol overdose,” from the record, and allowed the defense the opportunity to rephrase their questions. ,

The medical article on which Dr. Haynes based his opinion was entered into evidence over plaintiffs objection that the opinion of Dr. Haynes was based on a possibility of what could happen, and that he* had not stated that his theory was <fmore probable than not.” Throughout the trial, witnesses on both sides, both expert and Ray, testified to Leach’s history of alcoholism and pervasive use of prescription and illicit drugs. Dr. Haynes reviewed Leach’s pharmacy records during his testimony and explained how her vitals taken upon presentation in the JPH emergency rpom showed liver dysfunction not necessarily attributable to sepsis.

Here, the trial court had broad discretion-in-making an evidentiary ruling on Dr. Haynes’s testimony and the report which he used to base some hBof his opinions. The trial court was within its discretion in overruling general objections to Dr. Haynes’s opinion on the cause of death being speculative, because he was qualified as an expert and able to show that his theory on Leach’s cause of death was based on her medical records and medical history. These assignments of error have no merit.

CONCLUSION

Considering the foregoing, we do not find the jury was manifestly-erroneous in its conclusion that Dr. Dirk Rainwater’s treatment of Charlotte Leach did not fall below the acceptable standard of care. We further find the trial court has not abused its discretion in this matter, and the judgment was proper. Costs of this appeal are assessed to appellants, Joshua Morris and Jeremy Watson.

AFFIRMED.

APPLICATION FOR REHEARING

Rehearing denied.

Before BROWN, CARAWAY, MOORE, LOLLEY and PITMAN, JJ.