author: WICKER, J.

text:
    Mary WILLIAMS v. SECURITY PLAN FIRE INSURANCE COMPANY
    NO. 16-CA-714
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2017
    MARY WILLIAMS, Joseph F. Lahatte, III, COUNSEL FOR PLAINTIFF/AP-PELLEE.
    SECURITY PLAN FIRE INSURANCE COMPANY Thomas H. Huval, COUNSEL FOR DEFENDANT/APPELLANT.
    Panel composed of Fredericks Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst
   WICKER, J.

| defendant, Security Plan Fire Insurance Company, appeals the trial court’s calculation of penalties and attorneys’ fees in a judgment against it arising out of plaintiffs’ Hurricane Isaac claim. For the following reasons, we amend the trial court’s award of statutory penalties, vacate that portion of the trial court judgment awarding attorneys’ fees, and remand this matter to the trial court for an evidentiary hearing consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Mary Williams, filed suit against defendant-insurer, Security, alleging that her Security insurance policy provided coverage for property damages she alleged her home sustained during Hurricane Isaac in August 2012. Plaintiff further pled that Security handled her claim in bad faith and should be subject to penalties and attorney fees under La. R.S. 22:1973 and La. R.S. 22:1892, as well as consequential damages including mental anguish resulting from Security’s breach of its duty to handle her claim in good faith.

The matter proceeded to a bench trial on May 20, 2016. At trial, plaintiff testified that her home sustained roof damage as a result of Hurricane Isaac, which caused roof leaks into the interior of her home and required her to use pots and pans to collect the leaked water during any rainstorm.- She stated that her Security insurance agent inspected the home, soon after Hurricane Isaac, and informed her that her property damage did not exceed her policy deductible. Plaintiff, an elderly woman, testified that she called Security thereafter and discussed the matter with customer service, indicating that she did not understand the deductible concept, She further testified that she intermittently reported her dissatisfaction concerning |2her claim to the insurance agents who came to her home to collect her monthly premium.

Anthony Odeh, a licensed public insurance adjuster and general contractor, testified that he performed repair work on plaintiffs .home following a residential fire in the rear of the home less than two years after Hurricane Isaac. Upon his inspection, he noticed what appeared to be storm damage on her roof and asked plaintiff whether her home sustained storm damage. After plaintiffs, daughter informed him that plaintiff did in fact make a roof claim following Hurricane Isaac that was denied, Mr. Odeh contacted Security and offered to let them come and re-inspect plaintiffs roof before he made any repairs, which it refused.

Mr. Odeh testified that he has completely replaced plaintiffs roof and has not received any payment from plaintiff for his work performed. He testified that the roof replacement was at a total cost of $10,800.00 in addition to $8,681.23 for replacement of the fascia, soffit, siding, and metal. Mr. Odeh testified that the roof replacement work that he performed was a result of Hurricane Isaac in 2012.

Concerning depreciation, Mr. Odeh testified that there is no set formula or schedule to calculate depreciation in the insurance industry and that he has on numerous occasions negotiated with insurance companies to reach an agreeable or acceptable depreciation calculation. He testified that plaintiffs roof prior to Hurricane Isaac was protected by a large oak tree that shaded it from the sun and other elements regularly. However, according to plaintiff, that tree fell during Hurricane Isaac. He testified that he would depreciate the roof by approximately $2,000.00, and further stated that he would not depreciate the soffit and fascia because it is plastic and, thus, lasts indefinitely without exterior forces.

IsMichael DeAgano, a Security home service agent, testified that Security issued to plaintiff an Actual Cash Value insurance policy with a $20,000.00 policy limit and a $1,000.00 hurricane deductible. He testified that he is not a licensed adjuster but that Security sent him to inspect plaintiffs home following Hurricane Isaac. He took photographs of the damage that he observed, completed a “Proof of Loss” form that plaintiff signed following his inspection, and submitted the photographs and documentation to Security. He further testified that, after he submitted the documentation to Security, no one from Security contacted him to discuss his photographs or his opinion as to the extent of the home’s damage.

Concerning his inspection, Mr. DeAgano acknowledged that he did not bring a ladder to inspect plaintiffs home nor did he go on to the roof to inspect for roof damage. However, he testified that he could see the top of the roof from the ground and that it was not necessary to actually go onto the roof of the home. Mr. DeAgano confirmed that plaintiff reported to him that she was unhappy about Security’s decision that her damage did not exceed her deductible and that he advised plaintiff to call customer service.

Jamie Louque, a licensed adjuster and claims supervisor for Security, testified as to Security’s practice of sending out an insurance agent or staff member to document proof of loss at insureds’ homes following a claim. She testified that Diane Theriot, a licensed adjuster with 20 years’ experience who is no longer with the company, reviewed the documentation submitted by Mr. DeAgano and adjusted plaintiffs claim. She testified that she did not review plaintiffs claim at the time it was filed but has reviewed the claim since that time. She testified that she agrees with Ms. Theriot’s decision that the damage to plaintiffs home did not exceed the policy’s deductible. She further testified, concerning depreciation of the roof, that Security depreciates at a 5 to 7 percent depreciation per year, with a maximum depreciation of 70%. She stated that plaintiffs claim, based upon the Lage and condition of the home’s roof, would have resulted in the maximum 70% depreciation deduction.

Ms. Louque spoke with plaintiff on the phone a few days after plaintiff received Security’s letter indicating that her damages did not exceed her policy deductible. Ms. Louque did not independently recall the conversation with plaintiff, but testified that her records documented that plaintiff called customer service and indicated that she did not understand the concept of the deductible, which Ms. Louque stated she explained to plaintiff by phone. She testified that Security does not have any further communication from plaintiff docu-merited. She confirmed that no licensed adjuster did an on-site inspection of plaintiffs home and that, after plaintiffs counsel requested a second inspection, Security declined to do so.

The trial judge left the matter open and accepted post-trial memoranda. On August 9, 2016, the trial judge issued a judgment, awarding plaintiff $16,081.23 “for damages under the insurance contract;” statutory penalties double the amount of the damages, in the amount of $32,162.46; and $12,864.98 in attorney fees. The trial judge issued reasons for judgment, finding that plaintiff sustained damage to her home as a result of Hurricane Isaac in August 2012, sufficient to warrant roof replacement. The trial judge further found that Security’s failure to properly inspect and adjust her claim was arbitrary and capricious. The trial court further found that plaintiff failed to put forth “sufficient evidence of mental distress or inconvenience to warrant general damages” and denied that portion of plaintiffs claim.

DISCUSSION

In this appeal, Security does not seek review of the trial court’s $16,081.23 award for damages under the contract, nor does Security assert that plaintiff failed to prove that its actions were arbitrary and capricious and sufficient to support an award for statutory penalties and attorney fees—rather, Security only challenges the trial court’s calculation of penalties and attorney fees under La. R.S. 22:1892(B) and 1973(B).

In its first assignment of error, Security asserts that the trial court erred in its calculation of penalties. Security contends that the trial court’s penalty award, which simply doubles the damages awarded under the contract, is in direct violation of the recent Louisiana Supreme Court decision, Durio v. Horace Mann Insurance Company, 11-0084 (La. 10/25/11), 74 So.3d 1159. We agree.

In Durio, the Louisiana Supreme Court held:

La. R.S. 22:1220 [now La. R.S. 22:1973] legislatively imposes a duty of good faith and fair dealing on insurers, and sets forth certain acts, which if knowingly committed by an insurer, constitutes a breach of that duty. Wegener [ v. Lafayette Ins. Co., 10-0810 (La. 03/15/11)] 60 So.3d [1220] at 1229. Section (A) provides for the mandatory award of any “damages sustained as a result of the breach” of the duty imposed. Section (C) provides that in addition to these damages, discretionary penalties can be awarded, limited to two times the “damages sustained,” or $5,000.00, whichever is greater. Considering the statute in its entirety and applying the words of the ^statute as written, the only logical reading is that the “damages sustained” in Section (C) are the same “damages sustained as a result of the breach” in Section (A).

Durio v. Horace Mann Ins. Co., 11-0084 (La. 10/25/11), 74 So.3d 1159, 1170.

The Court further held that, under La. R.S. 22:1973, “[a] logical and consistent reading of the statute mandates a finding that contractual damages due or awarded under the insurance contract should not be used to calculate penalties under the statute.” Id. at 1170-71.

In this case, because the trial court determined that' plaintiff failed to prove any consequential or special damages sustained as a result of the breach, we find the maximum penalty that can be awarded is $5,000.00 under La. R.S. 22:1973. La. R.S. 22:1892, however, provides for a penalty in the amount of “fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater....” Under the facts of this case, the penalty provided under La. R.S. 22:1892 would be $8,040.61.

The Louisiaha Supreme Court has consistently “recognized the close relationship between the conduct prohibited in La. R.S. [22:1973] and the conduct prohibited in La. R.S. [22:1892].” Calogero v. Safeway Ins. Co, 99-1625 (La. 1/19/00), 753 So.2d 170, 174. However, an insured cannot recover penalties under both statutes. Id. Because the mandatory penalty as calculated under La. R.S. 22:1892, under the facts of this case, would be greater than the $5,000.00 penalty permitted under La. R.S. 1973, the statutory penalty under La. R.S. 22:1892 applies. See Calogero, 753 So.2d at 174. Accordingly, we find that the trial court erred in' calculating the penalty by doubling the entire amount awarded under the insurance contract. Rather, the greatest penalty to which plaintiff is entitled is the mandatory statutory penalty under La. R.S. 22:1892, which is fifty-percent of the entire amount found due from the insurer to the insured, or $8,040.61. Accordingly, we amend the trial court judgment to grant penalties in the amount of $8,040.61.

In its second assignment of error, Security challenges, the amount of attorneys’ fees awarded. Security complains that plaintiff failed to introduce sufficient evidence to justify , the trial court’s award of $12,864.98 in attorneys’ fees. The Louisiana Supreme Court has determined that a trial judge, must consider certain factors in awarding statutory attorneys’ fees. See Rivet v. State, Dept. of Transp. and Dev., 96-0145 (La. 9/5/96), 680 So.2d 1154, 1161. This Court, in following the Louisiana Supreme Court’s instructions, has stated:

When attorneys’ fees are awarded pursuant to statute, the trial court must determine the reasonableness of the attorneys’ fee to be awarded. Rivet v. State, Dept. of Transp. and Dev., 96-0145 (La. 9/5/96), 680 So.2d 1154, 1161. Factors to be taken into consideration in determining the reasonableness - of the attorneys’ 'fees to be awarded include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge.

Willwoods Cmty. v. Essex Ins. Co., 09-651 (La.App. 5 Cir. 4/13/10), 33 So.3d 1102, 1112.

Our review of the record reflects that there is no evidence to determine that the trial judge considered the above-listed factors in awarding attorneys’ fees in this case, as no evidence was introduced at trial concerning attorneys’ fees. Accordingly, we vacate that portion of the trial court’s judgment awarding attorneys’ fees and remand this matter to the trial court for an evidentiary hearing to determine a reasonable amount of attorneys’ fees in accordance with the factors listed above arid other applicable law. See Willwoods, supra.

DECREE

For the reasons provided herein, we amend the trial court judgment’s award of penalties to reflect an award to plaintiff of $8,040.61 in penalties under La. R.S. 22:1892. We further vacate that portion of the judgment awarding attorneys’ fees and remand this matter to the trial court for further proceedings consistent with this opinion.

AMENDED IN PART; VACATED IN PART; REMANDED

      . Melvina White, plaintiffs daughter, testified at trial that her mother constantly complained about storm damage to her home but that the leaking in the interior of the home was resolved within a few weeks. She did, however, testify that she was “in and out” of her mother’s affairs and that she relied on Mr. Odeh’s expert opinion as a licensed contractor concerning the roof damage.

      . There was conflicting testimony regarding whether one, two, three, or four different insurance agents came to her home to collect premiums. Security's agent, Michael DeAga-no, testified that he is the only Security agent who has collected a monthly premium from plaintiff at her home and that plaintiff may be confused concerning other agents employed by other insurance companies who may have issued policies to plaintiff.

      . Although the typed invoice reflects that the price included replacement gutters, Mr. Odeh testifled that the home does not have gutters and that the invoice reflects a clerical error.

      . The depositions of Sid Harp, Security’s President, and Diane Theriot, Security’s licensed adjuster who adjusted plaintiff’s claim, were also submitted.

      . The trial judge also awarded actual court costs, which are not at issue in this appeal.

      . La. R.S. 22:1973(B) provides:
      In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.
      La. R.S. 22:1892(B) provides:
      Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4) of this Section, respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2) of this Section when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.


source: Caselaw Access Project

author: MURPHY, J.

license: Public Domain

text:
    Kim WHITE v. Newell NORMAND, in his official capacity as Sheriff of Jefferson Parish and Paul Gegenheimer
    NO. 16-CA-738
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, KIM WHITE, Gary W. Bizal
    COUNSEL FOR DEFENDANT/AP-PELLEE, NEWELL NORMAND, IN HIS OFFICIAL CAPACITY AS SHERIFF OF JEFFERSON PARISH AND PAUL GEGENHEIMER, Edmund W. Golden
    Panel composed of Robert A. Chaisson, Robert M. Murphy, and Hans J. Liljeberg
   MURPHY, J.

| ¡¡Plaintiff/Appellant, Kim White, appeals the trial court’s judgment following trial which found no liability on the part of defendants for her injuries and dismissed the case with prejudice. We affirm the judgment of the trial court,

FACTS AND PROCEDURAL HISTORY

At trial, Kim White testified that on January 12, 2011, she was in front of a convenience store located on the West Bank of Jefferson Parish, when she was approached by a man she “knew from around the neighborhood” who asked if she could help him to purchase heroin. White got into the passenger seat of the car that the man was driving and the two went in search of drugs. Soon thereafter, White and the driver noticed that a police car with its lights on was behind them, at which time the driver “took off.” White testified that she told the driver to stop the car so that she could get out. After a high speed chase with the police vehicle, the driver of the car went into a parking lot and “stopped.” White said that after the car stopped, the driver ran away and she exited the car with her hands up to show police that she was not trying to run. White stated that she was attempting to get to the back of the car so that police could see her when the police vehicle drove up quickly and made contact with her. As a result, White sustained multiple injuries, which she described in her testimony, and also incurred medical expenses. She was later charged with resisting arrest by flight and possession of drug paraphernalia.

On cross-examination, White testified that she only saw one police car during the pursuit, and that the police car’s overhead lights and siren were both activated. White testified that she had her hands up at the time of the accident, which conflicted with her prior deposition testimony. White’s medical records showed that she had marijuana in her system on the date of the accident, but .she |4did not believe that the drugs interfered with her memory of the events surrounding the accident. White also testified that she was a heroin user, and had used heroin on January 12, 2011, at approximately 9:80 or 10:00 a.m.

Deputy Paul Gegenheimer testified that he was involved in a car chase on January 12, 2011. At the end of the pursuit, Deputy Gegenheimer tried to maneuver his own vehicle to “box” the other car in, but the other car stopped abruptly and he was unable to avoid a collision. He ran into White, who was “very close” to the side of the stolen vehicle and appeared to be running away. Deputy Gegenheimer did not know if he hit White before he hit the stolen vehicle, and he was going five to 10 miles per hour at the time of the impact. It was not his intent to run into White. Deputy Gegenheimer stated that, at the time of the accident, he was not disobeying any traffic laws, speed limits or other “regulations.”

On cross-examination, Deputy Gegen-heimer testified that he activated his emergency lights and siren after receiving the radio call about a stolen vehicle. After Deputy Johnnie Petit, Jr., who .was the first officer in pursuit, said on the radio that the stolen car had .refused to stop, Deputy- Gegenheimer headed to Deputy Pettit’s location to join in the pursuit. During the chase, both Deputy Gegenheimer and Deputy Petit drove above the posted speed limit. Eventually, the stolen car exited the roadway and went into the parking lot of an apartment complex. It was there that Deputy Petit got in front of the stolen car. At that time, Deputy Gegenheimer’s intention was to block the car in by pulling behind it. Immediately after the stolen vehicle stopped, he saw White begin to flee toward the rear of the car. Deputy Gegen-heimer did not see White’s hands in the air.

Because this was an emergency call, Deputy Gegenheimer and Deputy Petit had their lights and sirens activated. After White was hit, Deputy Gegenheimer placed her in handcuffs, advised her of her rights and contacted EMS. A search of the stolen vehicle yielded drug paraphernalia with heroin - residue. White was |5arrested for resisting arrest and possession of drug paraphernalia, as well as for having nine outstanding warrants.

Deputy Petit, Jr.’s testimony was consistent with that of Deputy Gegenheimer with respect to the pursuit of the stolen vehicle. He also stated that when the stolen vehicle finally did stop, it was a “sudden, abrupt stop.” Deputy Petit did not see Deputy Gegenheimer’s vehicle strike White.

Deputy Mike Tisdale conducted the investigation of the accident that forms the basis of the lawsuit. Deputy Tisdale arrived on the scene approximately two minutes after the crash occurred. White was on the ground when he arrived, and she was not in handcuffs, but she was in so much pain that he could not communicate with her. Deputy Tisdale then spoke with Deputy Gegenheimer to find out how the crash occurred. Deputy Gegenheimer described the car chase and told Deputy Tisdale that as he' was pulling into the parking lot, White “got out of the vehicle and ran to the rear of her vehicle” as if she was trying to flee from the scene. Deputy Tisdale testified that what he saw was consistent with Deputy Gegenheimer’s account of the accident, including the slow speed at which it took place. There.was minor damage to the stolen vehicle’s right rear quarter panel and only “paint transfer” on the police vehicle’s front passenger side bumper. Deputy Tisdale’s report did not find any driving violations on the part of Deputy Gegenheimer.

Major Kerry Najolia, director of training for the- Jefferson Parish Sheriffs Office (“JPSO”), was accepted, by stipulation of the parties, as an expert in the field of “police. operations, procedure and training as -it relates to emergency -response traveling, which includes pursuits.”. As an instructor at the JPSO training academy, one of his duties was to “instruct drivers training for emergency response .and also defensive training for non-emergency response.” As director of training, Major Na-jolia was responsible for reviewing and implementing JPSO policy and | ¿procedures pertaining to La. R.S. 32:24, which covers .“emergency driving” and “pursuit driving” for JPSO officers. As part of the training for JPSO deputies, they have classroom instruction and spend time on a driving track over three eight-hour days. Major Najolia testified that, in his opinion, Deputies Petit and Gegen-heimer followed all policies for responding to an emergency call, and were therefore immune from liability for accidents under La. R.S. 32:24 during the pursuit of the stolen vehicle. Major Najolia found that Deputy Petit’s actions in the chase conformed to the- JPSO training, as did Deputy Gegenheimer’s action of trying to block in the stolen vehicle to prevent its escape. Major Najolia concluded that Deputy Ger genheimer simply did not have the time to stop his vehicle based on the sudden stop of the pursued vehicle, and that none of Deputy Gegenheimer’s actions amounted to reckless disregard for the safety of others or gross negligence. Major Najolia disagreed with the deposition testimony introduced into evidence of former Slidell police officer Gary Dresselhaus, who opined that La. R.S. 32:24 applied during the chase of the stolen vehicle, but not at the moment of impact in the parking lot and that ordinary negligence was the standard at that time. Major Najolia testified that he was not aware of a single police department in Louisiana, including Slidell, that had a policy consistent with Dresselhaus’ ■ opinion that La. R.S. 32:24. could be applied on and off during an emergency, such as in the instant case.

In its August 8, 2016 Judgment, the trial court found in favor of defendant and dismissed White’s claims with prejudice.

On appeal, White contends that the trial court erred in finding that La. R.S. 32:24(B) applied in this case, thus requiring her to prove gross negligence instead of ordinary negligence. In the alternative, White argues that Deputy Gegenheimer’s .actions constituted gross negligence.

JjLAW AND ANALYSIS

La. R.S. 32:24, the emergency vehicle exception to the Louisiana highway regulatory act, provides:

A. The driver or rider of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver or rider of an authorized emergency vehicle may do any of the following:
(1) Park or stand, irrespective of the provisions of this Chapter.
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation. ,
(3) Exceed the maximum speed limits so long as he does not endanger life or property.
(4) Disregard regulations governing the direction of movement or turning in specified directions. '
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle or bicycle is making use of audible or visual signals, including the use of a peace officer cycle rider’s whistle, sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle,
D. The foregoing provisions shall not relieve the driver or rider of an authorized vehicle from the duty to drive or ride with due regard for the safety of all persons, nor shall such provisions protect the driver or rider from the consequences of his reckless disregard for the safety of others.

In the instant case, in its Reasons For Judgment, the trial court found that La. R.S. 32:24 applied during the entire chase, including the apprehension in the parking lot, because • Deputies Petit and Gegen-heimer were engaged in the lawful pursuit of‘a subject while utilizing their overhead emergency lights and sirens. The trial court opined that, in order for White to recover, she would have to demonstrate that Deputy Gegenheimer acted- with “reckless disregard” for her safety. The trial court concluded that White failed to meet her burden of proof that | ^Deputy Gegenheimer’s actions rose .to the level of reckless disregard, and also that White’s testimony was not credible. Specifically, the court stated:

The Court- does not find plaintiffs testimony credible as to her actions prior to the collision. Plaintiff testified that when •she exited the vehicle, she ran with her hands up in the air to signify her surrender to the police. She also admitted to pleading guilty to resisting arrest—an admission that she was not intending to surrender. Secondly, she testified she did not see Deputy Gegenheimer’s vehicle, so- she could not have been intending to surrender to him. The only logical person for plaintiff to surrender to, was Deputy Petit who was in front of the suspect vehicle, and whom she admitted seeing. It is clear that plaintiff was not attempting to surrender when she exited the vehicle. Deputy Gegenheimer testified that as he was pulling behind the suspect vehicle, it suddenly came to a stop and both the driver and plaintiff exited the vehicle. Deputy Gegenheimer attempted, to apply his brakes and maneuvered his vehicle in order to avoid hitting both the plaintiff and the vehicle, but was unable to do so. The Court is not persuaded that Deputy Gegenheimer acted in a reckless disregard for plaintiffs safety. In fact, had plaintiff surrendered to the deputies as she claimed she was doing, she would not have been in a place of danger. But for plaintiffs negligence of attempting to evade the police by running between the suspect vehicle and Deputy Gegenheimer’s vehicle, plaintiff would not have sustained the injuries she claims.

Under the manifest error standard of review, a court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). There is a two-part test for the reversal of a factfinder’s determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). Thus, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. Further, where the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact. Bellard v. American Central Ins. Co., 07-1335 (La. 4/18/08), 980 So.2d 654, 672.Where the factfinder’s determination is based on | fits decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. This rule applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony. Id. See also McGlothlin v. Christus St. Patrick Hospital, 10-2775 (La. 7/1/11), 65 So.3d 1218, 1231-32.

On appeal, White asserts that the trial court erred in finding that the “reckless disregard” standard of La. R.S. 32:24 applied, instead of an ordinary standard of negligence. In Puearry v. State, 496 So.2d 1372 (La. App. 3 Cir. 1986), the Louisiana Third Circuit Court of Appeal considered a similar issue to the one presented in the instant appeal regarding the standard of negligence to be used when a police officer is responding to an emergency. In that case, plaintiff, who was intoxicated, overturned his truck then walked to a nearby store to call for assistance. A state trooper, a deputy sheriff and an ambulance all responded to the call. Before the three emergency vehicles arrived at the scene, the state trooper was notified by radio that it was not an emergency, and he reduced his speed to within the speed limit. As the three emergency vehicles approached the accident site, plaintiff started running along the shoulder of the road, in the same direction as the emergency vehicles. When the sheriffs automobile had passed, the plaintiff suddenly darted left without warning into the highway in front of the state trooper’s car, which had its emergency lights on. The trooper immediately applied his brakes, but was unable to avoid hitting the plaintiff before he came to a stop. After a trial on the merits, the trial court found that the trooper had committed no negligent acts causing plaintiff’s injuries.

In affirming the trial court’s ruling that dismissed plaintiff’s case, the Third Circuit applied two separate standards of negligence. The court first applied the “reckless disregard” standard in La. R.S. 32:24, and found that the trooper was responding to an emergency call and “was in the process of slowing down as he [ 10approached the accident site” when “[without warning, plaintiff suddenly darted onto the highway” in front of the trooper’s vehicle. “The trooper slammed on his brakes but was unable to avoid hitting the plaintiff. Eyewitnesses testified that the accident was unavoidable.” The Third Circuit then applied an ordinary negligence standard to the facts of the case, and again found that the trooper had no liability, even if he were considered to be a motorist in an accident with a pedestrian. The court reasoned:

The driver of an emergency vehicle will only be held liable for negligence to the degree that it constitutes reckless disregard for the safety of others. Mott v. Babin Motors, Inc., 451 So.2d 632 (La. App. 3 Cir. 1984). The jurisprudence is well established that when a motorist observes an adult pedestrian apparently in full possession of his faculties, in a position of safety, he has the right to assume that the pedestrian will remain in this position of safety and will not precede into the path of an oncoming vehicle. Gauthreaux v. Edrington, 220 So.2d 138 (La. App. 1 Cir. 1969); Edwards v. Insurance Company of North America, 207 So.2d 222 (La. App. 4 Cir. 1968), writ den., 252 La. 119, 209 So.2d 43 (La. 1968); Sorrell v. Allstate Insurance Company, 179 So.2d 499 (La. App. 3 Cir. 1965), writ ref'd, 248 La. 698, 181 So.2d 398 (1966).
For a pedestrian to recover against a motorist, he must prove negligence on the part of the driver by a preponderance of the evidence.
In this case, Trooper McKenzie did all he could to avoid hitting the plaintiff. Plaintiff testified that before he attempted to cross the highway, he looked and saw the ambulance approaching. Trooper McKenzie had the right to assume that the plaintiff, who was in a position of safety on the shoulder, would not dart across the highway. Gauthreaux v. Edrington, supra.
“Motorists are not insurers of pedestrians’ safety. Where a pedestrian is negligent and the motorist is not, there is no recovery.” McKenzie v. New Orleans Public Service, 455 So.2d 678, at page 680 (La. App. 4 Cir. 1984), writ den., 460 So.2d 1043 (La. 1984).
We do not find that the trial court was manifestly in error or clearly wrong in finding no negligence on the part of Trooper McKenzie. We also find from the record that the trooper did all that he could do to avoid hitting the plaintiff under the circumstances.

Id. at 1373-74.

Inin the instant case, plaintiff, who had used heroin and marijuana hours before, was a passenger in a stolen car that led police on a chase through Jefferson Parish, an event classified by the Jefferson Parish Sheriffs Office as an emergency call. It was not contested that, prior to the time that the stolen car came to a stop, La. R.S. 32:24 provided Deputies Gegenheimer and Petit with immunity during the pursuit of the stolen vehicle. While the deputies were in the process of trying to end the chase and box the stolen vehicle in, White, without being directed to do so, ran from the vehicle after it had been stopped and directly into the path of Deputy Gegenheimer’s oncoming police car. White testified that she ran to the back of the stolen vehicle to surrender; conversely, Deputy Gegenheimer testified that White appeared to be fleeing from the vehicle, as the driver had done. Under either version of the facts, there is nothing in the record to suggest that Deputy Gegenheimer had any basis to expect that White would be in in his path of travel. Deputy Tisdale testified that his investigation of the accident supported Deputy Gegenheimer’s account. The trial court heard the testimony of an expert, Major Najolia, that Deputy Gegen-heimer’s actions during the chase were consistent with his training. While White submitted portions of the January 14, 2016 deposition of H. Lee Dresselhaus into evidence to attempt to establish negligence on the part of Deputy Gegenheimer, Major Najolia testified that he had personally verified with Mr. Dresshaus’ former employer, the Slidell Police Department, that it was not their policy to apply La. R.S. 32:24 in the manner that Mr. Dresshaus had suggested in his deposition. The trial court apparently gave more weight to Major Najolia’s expert testimony, a decision which is within its broad discretion. Pendleton v. Barrett, 97-570 (La.App. 3 Cir. 12/23/97), 706 So.2d 498.

We find no manifest error in the trial court’s determination that Deputy Ge-genheimer’s actions immediately preceding and including the accident with plaintiff were not the result of gross negligence or of a reckless disregard for | ^plaintiffs safety, the standard set forth in La. R.S. 32:24. Thus, the immunity of'the statute relieves him of responsibility.

In finding no negligence on the part of defendants for the reasons stated above, we affirm the trial court’s judgment that dismissed plaintiffs claims with prejudice!

AFFIRMED

      . According to White’s Petition For Damages, the approximate time of the chase was 3:45 p.m.

      . However, even taking the additional step of applying the ordinary negligence standard, as the court did in Pueatry, supra, we still con- ' elude that Deputy Gegenheimer was not at fault for the accident. It was the decision of plaintiff to leave a position of safety in the passenger seat of the stolen vehicle, and place herself in the immediate path of Deputy Ge-genheimer’s car, which was still in pursuit, that caused the accident. The evidence presented showed that Deputy Gegenheimer was driving at a minimum speed and did all he could to avoid the accident with White. Although not a part of the judgment itself, we specifically find no merit in the trial court's suggestion in its Reasons For Judgment that the striking of the vehicle by Deputy Gegen-heimer "may constitute some negligence for failure to estimate the distance between the vehicles," Simply put, Deputy Gegenheimer was not negligent and was doing his job as he was trained to do.


author: GRAVOIS, J.

text:
    Lisa C. TASSIN v. TOURO INFIRMARY and HSLI
    NO. 17-CA-8
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, LISA C. TASSIN, Arthur J. Brewster
    COUNSEL FOR DEFENDANT/AP-PELLEE, TOURO INFIRMARY AND HSLI, Wade A. Langlois, III, Brittany A. Cooper
    Panel composed of Jude G. Gravois, Marc E. Johnson, and Robert M. Murphy
   GRAVOIS, J.

h This is a workers’ compensation suit. Claimant Lisa Tassin appeals a judgment of the Office of Workers’ Compensation rendered on September 15, 2016, which found that she was not entitled to temporary total disability benefits (“TTDs”) and that she had failed to carry her burden of proof that she was entitled to supplemental earnings benefits (“SEBs”). On appeal, Ms. Tassin argues that the trial court was manifestly erroneous in finding that she was capable of sedentary employment and thus ineligible for TTDs, and that she failed to carry her burden of proof that she is entitled to SEBs. After thorough review of the record and the applicable law, we affirm the judgment under review.

FACTS AND PROCEDURAL HISTORY

Claimant Lisa Tassin, a registered nurse, was working as an operating room nurse at Touro Infirmary (“Touro”) when she was injured in the course and scope of her employment while moving an operating room table on October 28, 2010. Ms. Tassin was 47 years old at the time. The facts of her accident, including specifically that she was injured as a result thereof, are not disputed. The nature and extent of her injuries are disputed. The record reflects that while Ms. Tassin was attempting to move the table, she pulled on a part of the table that came loose, causing her to fall backwards. She landed on her coccyx (tailbone), resulting in injuries to her lower back. Prior to this work-related accident, Ms. Tassin had been involved in two motor vehicle accidents in 2009 and 2010 that caused cervical disc injuries resulting in chronic neck pain. At the time of her hospital accident, Ms. Tassin was still under treatment for depression, anxiety, migraines, and neck pain as a result of those earlier motor vehicle accidents.

12InitiaIly, Touro placed Ms. Tassin on light duty work in the medical records department, but she was unable to perform those duties due to pain. She was then placed on a “no-work” restriction and began receiving weekly indemnity benefits (TTDs), medical treatment, and prescription medicine coverage paid by Touro through its third-party administrator, HSLI.

Ms. Tassin was initially treated by Dr. Andrew Todd, an orthopedist, and Dr. Rand Voorhies, a neurologist. She began treating with Dr. William Knight, a physical medicine and rehabilitation specialist, assigned by HSLI, in 2012. At the time of trial, she continued to be under Dr. Knight’s care. Through the time of trial in 2016, Ms. Tassin was evaluated by numerous doctors in several different medical fields. Since her October 28, 2010 work accident, Ms. Tassin has been seen by three neurosurgeons (Drs. Rand Voorhies, James Tran, and Robert Applebaum). She was also seen by two orthopedic surgeons (Drs. Andrew Todd and Chad Millet). She was also evaluated by Dr. Karen Orten-berg, also a specialist in physical medicine and rehabilitation, who performed an independent medical examination (“IME”) for the Office of Workers’ Compensation in 2014. She also saw a pain management physician in 2012, Dr. Joseph Crapanzano, for a second medical opinion, who referred her for treatment to Dr. Eric Lonseth, also a pain management specialist, who evaluated Ms. Tassin in 2013 and performed one facet joint injection in 2016, Ms. Tassin was also evaluated by two psychologists, Drs; Kevin Greve and Aaron Wolfson, and one psychiatrist, Dr. Kenneth Sumner, who treated Ms. Tassin for anxiety and depression. Additionally, in 2016, Ms. Tas-sin developed a neurogenic bladder condition that was accepted as part of her workers’ compensation case; she underwent successful surgery to implant a bladder stimulator. Ms. Tassin also treated with neurologist Dr. Morteza Shamsnia, who treated her prior to the workers’ compensation claim for migraines.

LMs. Tassin received several diagnoses by the doctors who evaluated her, including lumbar radiculopathy and, possibly some nerve root impingement caused by bulging discs in her lower back, and facet joint pain and sacroiliac joint dysfunction. All of the doctors agreed that Ms. Tassin is a non-surgical case. The doctors who were deposed for this case testified that they found Ms. Tassin to be cooperative and that her complaints of pain were genuine, but opinions' differed as to the exact genesis of her back pain. No doctor found that Ms. Tassin was malingering or magnifying her symptoms. Dr. Ortenberg opined that Ms. Tassin developed a chronic pain condition, caused in part by her previous neck injuries from the motor vehicle accidents in 2009 and 2010, that has made it harder for her to recover from her work accident. Dr. Greve’s psychological assessment, reviewed by Dr. Ortenberg, recommended that Ms. Tassin receive cognitive behavioral therapy in order to alleviate her “obsession” with her pain. Dr. Knight and Dr. Lonseth both testified that Ms. Tas-sin’s particular subjective complaints of pain in her lower back have been corroborated by objective diagnostic tests, including a myelogram and a SPECT scan performed in 2013.

At the time of trial, Ms. Tassin was on a “complicated” prescription medicine regime that included multiple prescriptions for depression and anxiety, muscle spasms, long-acting time release pain medication, and short-acting pain medication for break-through pain. However, her treating physician, Dr. Knight, as well as Drs. Cra-panzano and Lonseth, specifically stated that Ms. Tassin did not exhibit drug-seeking behavior. Dr. Ortenberg, on the other hand, felt that Ms. Tassin was taking some duplicative medications, particularly benzo-diazepines, and that she should wean off of most of them.

|4Ms. Tassin underwent a functional capacity examination (“FCE”) in January of 2015 in order to assess her physical capabilities. She remained on a no-work status while she sought authorization from HSLI for facet joint injections and a sacroiliac injection. The facet joint injections, which were recommended by several doctors as early as 2013, were eventually approved in 2016. Dr. Lonseth performed a facet joint injection in January of 2016, and also at the same time injected the sacroiliac joint with, some anesthetic, but stated that it was not a “true” sacroiliac joint injection because that procedure had not been approved by the insurance carrier.

The results of the 2015 FCE, performed by Dr. Richard Bunch- and entered into evidence, found that Ms. Tassin was capable of light to light-medium duty work with certain restrictions, though .she had not been released to work by her treating physician, Dr. Knight. As a result of the 2015 FCE, along with the reports of the doctors who had evaluated Ms. Tassin and approved various job descriptions, the claims adjustor for. HSLI, Ms. Tami Bartlett, reduced Ms. Tassin’s TTD indemnity benefits to SEBs effective on April 1, 2015.

On June 10, 2015, Ms. Tassin filed a Disputed Claim for Compensation, arguing that Touro was arbitrary and capricious in reducing her indemnity benefits from TTDs to SEBs, and asking that TTDs be reinstated and that she be awarded penalties and attorneys’ fees. Ms. Tassin additionally contended that she did not have the skills and prerequisites for several of the jobs identified by Jeannie Lillis, a vocational rehabilitation specialist assigned to her claim. Touro answered the claim, contending that Ms., Tassin was not entitled to weekly indemnity benefits any long<er because she was no longer disabled from working and earning wages Lequal to her wages at the time of her injury. In the alternative, Touro disputed the amount of indemnity benefits to which Ms. Tassin was entitled. ’

The matter went to trial on May 16 and June 27, 2016. Ms. Tassin testified, as well as .Ms. Lillis, the vocational rehabilitation specialist who became involved in Ms, Tas-sin’s case in 2013 and who identified the light to medium duty jobs that Ms. Tassin could allegedly perform per the results of the 2015 FCE. Ms. Tassin’s medical records and pharmacy records were accepted into evidence. The depositions of the following doctors were entered into evidence: Dr. Eric Lonseth (interventional pain management); Dr. William Knight (physical medicine and claimant’s treating physician); Dr. Karen Ortenberg (physical medicine and independent medical examination); and Dr. Joseph Crapanzano (second medical opinion in physical medicine).

The workers’ compensation judge found, as indicated in her written reasons for judgment, that Ms. Tassin was not entitled to TTDs because she had not borne her burden of proof that she was not capable of any employment. The court next found that Ms. Tassin had also failed to show that she could not earn ninety percent or more of her pre-injury wages and thus was not entitled to SEBs, finding that the reason Ms. Tassin could not work at similar jobs in the health care field was because she had let her nursing license lapse, not because of any disability. The trial court denied penalties and attorneys’ fees, finding that HSLI was not arbitrary and capricious in reducing Ms. Tassin’s benefits because the adjustor relied upon the FCE, the reports of Dr. Crapanzano and Dr. Ortenberg, and Dr. Crapanzano’s approval of several jobs. This timely appeal followed.

LAW AND ANALYSIS

Standard of review

In a workers’ compensation case, as in other cases, the appellate court’s review is governed by the manifest error or clearly wrong standard. Fleming v. Garda Sec., 10-1021 (La.App. 5 Cir. 5/10/11), 65 So.3d 763, citing Freeman v. Poulan/Weed Eater, 93-1530 (La. 1/14/94), 630 So.2d 733, 737. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Seal v. Gaylord Container Corp., 97-0688 (La. 12/02/97), 704 So.2d 1161, 1164 (citations omitted).

Entitlement to temporary total disability benefits

Under La. R.S. 23:1221(1)(c), to establish entitlement to temporary total disability benefits, & claimant must prove by clear and convincing evidence that she is physically unable to engage in any employment or self-employment due to her injury, regardless of the nature of the employment, including working in any pain. Champagne v. PHS Industries, 07-31 (La. App. 5 Cir. 5/29/07), 960 So.2d 1122. A claimant must present objective medical evidence to establish by clear and convincing evidence that she is unable to engage in any type of employment. Fassitt v. Jefferson Parish Hosp. Serv., 07-695 (La.App. 5 Cir. 12/27/07), 974 So.2d 757, 760.

In brief, Ms. Tassin argues that the trial court erred in finding her capable of sedentary employment because the only doctors who said she could engage in sedentary work were Dr. Ortenberg, whom she saw only once on July 15, 2014 when she performed the IME for the Office of Workers’ Compensation, and Dr. Crapan-zano, the employer’s choice of doctor, whom she saw only once in 2012. She argues that Dr. Ortenberg did not review or comment on her FCE, and that she did not have all of Ms. Tassin’s medical records, particularly the reports of Dr. Lon-seth. She also argues that Dr. Crapanzano, likewise, did not have all of her medical records, and approved jobs for her to perform based on the 2015 FCE despite.not knowing her current condition. She argues that not enough weight was given to the opinion of her treating physician, Dr. Knight, who maintained that Ms. |7Tassin could not yet return to work because she could not sit or stand for longer than thirty minutes without pain, and thus did not approve the jobs submitted to him in 2015 by Ms. Lillis.

The general rule is that the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. However, the treating physician’s testimony is not irrebuttable, and the trier of fact is required to weigh the testimony of all medical witnesses. Williams v. Wal-Mart Stores, Inc. # 912, 00-0863 (La.App. 4 Cir. 5/16/01), 787 So.2d 1134, 1135.

Dr. Knight testified in his deposition that Ms. Tassin could not yet return to work because she could not sit or stand for more than 30 minutes at a time. However, he admitted that this was information self-reported by Ms. Tassin and that he did not have any independent knowledge of her capabilities other than what she told him. Ms. Tassin’s self-reported physical inabilities were rebutted by the results of the FCE, the report of which details Ms. Tas-sin’s physical capabilities as determined by the examination and showed that she could engage in light to light-medium work. Ms. Tassin’s position was also rebutted by observation of Ms. Tassin at Dr. Knight’s deposition, wherein it was noted that she had apparently sat for over an hour and a half with no reported discomfort and little visible posture changes. Dr. Ortenberg also noted, in the notes of her IME of 2014, that Ms. Tassin drove 35 minutes to her office with no reported issues and also appeared to sit and stand comfortably for periods of time exceeding thirty minutes. Dr. Ortenberg also noted that Ms. Tassin reported that she drove, did her own cooking, cleaning, and grocery shopping (albeit with breaks and with some limits), and took care of her husband, who has a chronic health condition. Dr. Ortenberg | ^specifically opined that Ms. Tassin was not a malingerer, but possibly due to her chronic pain condition and tendency to so-matization, was a good deal more functional than she gave herself credit for.

Thus, upon review, we find no manifest error in the trial judge’s conclusion that Ms. Tassin did not bear her burden of proof that she is unable to engage in any employment, and thus was not entitled to TTDs. The results of the FCE, as well as observational evidence as noted above, specifically contradict Ms. Tassin’s self-reported inability to sit or stand comfortably for more than thirty minutes, which was the basis for Dr. Knight’s conclusion that Ms. Tassin could not return to work at that time. The trial judge was not clearly wrong in according less weight to Dr. Knight’s opinion and in giving more weight to the opinions of Dr. Ortenberg and to the detailed and thorough results of the FCE. This assignment of error is without merit.

Entitlement to supplemental earnings benefíts

Ms. Tassin next argues that the trial court erred in finding that she was not entitled to supplemental earnings benefits. The purpose of supplemental earnings benefits is to compensate an injured employee for the wage earning capacity she has lost as a result of her accident. Summers v. Ritz-Carlton New Orleans, 14-800 (La.App. 5 Cir. 5/28/15), 171 So.3d 329, 345 (internal citations omitted). If an employee sustains a work-related injury that results in an inability to earn ninety percent or more of her average pre-injury wage, then the employee is entitled to receive supplemental earnings benefits. La. R.S. 23:1221(3)(a)(i).

Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury caused her inability to earn ninety percent or more of |flher average pre-injury wage. Richard v. HSLI & Touro Infirmary, 12-873 (La.App. 5 Cir. 5/23/13), 119 So.3d 617, 621, citing Clay v. Our Lady of Lourdes Regional Medical Center, Inc., 11-1797 (La. 5/8/12), 93 So.3d 536, 539. The issue in determining eligibility for SEBs is whether the claimant has proved that she is unable to earn wages equal to ninety percent or more of her pre-injury wage, whether or not in the same or similar job in which the claimant was previously employed. Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2793 (La. 1/9/11), 56 So.3d 170.

Once an employee meets this burden, the burden shifts to the employer who, in order to defeat the employee’s claim for supplemental earnings benefits, must prove by a preponderance of the evidence that the employee is physically able to perform a certain job, and that the job was offered to the employee or was available to the employee in her or the employer’s community or reasonable geographic region. La. R.S. 23:1221(8)(c)(i). If the employer meets this büfden, then the employee must establish by clear and convincing evidence that she is unable to engage in any employment. La. R.S. 23:1221(3)(c)(ii); Summers v. Ritz-Carlton New Orleans, supra.

Ms. Tassin argues in brief that the evidence is clear that she cannot return to her former job as an operating room nurse or floor nurse, because such work is at least medium duty and is more than she was found capable of in the FCE. Thus, she argues, she has met her burden of proof that she is entitled to SEBs. However, the criteria for SEBs does not require that one be able to return to the same job or position. It merely requires a showing that the claimant cannot earn at least ninety percent or more of her pre-injury wage at any job. Poissenot, supra.

On review of the record before us, we find no manifest error in the trial court’s conclusion that Ms. Tassin failed to show that she could not earn ninety percent or more of her pre-incident wage due to her disability, and thus was not 11flentitled to SEBs. The record shows, instead, that Ms. Tassin had allowed her nursing license to expire, which caused her to decline to apply for several nursing jobs that Ms. Lillis identified as being appropriate for her physical capabilities, education, and experience, and which fell within the required wage level. Ms. Tassin testified that she felt it was fraudulent for her to apply for a position that required an active nursing license when she knew hers had lapsed. She also testified that she was advised she could not hold an active nursing license given the amount of pain medicine she was required to take, though she produced no corroboration of -this statement. A letter from the state nursing licensing board that Ms. Tassin introduced made no mention of her disability as the reason, for her expired license or an inability to renew it.- Additionally, Ms. Tassin testified that she did renew her radiologic technician’s license in the same time frame, because she was advised that had she let it lapse, she would have had to retake the board examinations. The nursing board, however, would have only required a doctor’s letter and the completion of any required continuing education units before allowing reinstatement of her nursing license. Ms. Tassin’s ability to renew her radiologic tech license while also “disabled” and on narcotic pain medicine casts doubt on her unsubstantiated assertions that she could not maintain or renew her nursing license. We accordingly find no manifest error in'the trial court’s conclusion that Ms. Tassin failed to bear her burden of proof in this regard. This assignment of error is" without merit.

CONCLUSION

For the foregoing reasons, the judgment of the Office of Workers’ Compensation under review is affirmed.

AFFIRMED

      . The judgment also found that Ms. Tassin failed to carry her burden of proof that her employer failed to authorize certain prescription medications, though she does not assign this as an error in her appeal.

      . The judgment does not address Ms. Tassin’s medical benefits, only her weekly indemnity benefits.

      . This information is presented merely for a more complete view of the case; however, as noted earlier, Ms. Tassin's medical expenses and benefits are not at issue in this appeal.

      . Dr. Lonseth stated in his deposition that he did not bill for the partial sacroiliac injection.

      . Dr. Crapanzano approved a few jobs submitted to him in 2015, with the qualification that he had last seen Ms. Tassin in 2012 and would defer to the more recent evaluations of her condition.

      .In an Amended Disputed Claim for Compensation filed on November 18, 2015, Ms. Tassin additionally asserted that certain prescriptions recommended by Dr. Knight were not authorized by Touro/HSLI.

      . The judgment found that Ms. Tassin could . engage in sedentary employment. In the scheme of workers’ compensation, sedentary work is less demanding than light duty work.

      . In her deposition, Dr. Ortenberg noted that Dr. Greve’s psychological evaluation of Ms. Tassin found "evidence of significant somati-zation,” which she explained is a tendency to use physical symptoms as a means of coping and communicating about one’s emotional life, and to experience exacerbations and physical symptoms in response to psychosocial distress. She further explained that soma-tization is understood to reflect a long-standing personality and emotional coping style, and is not caused by injuries. Dr. Greve and Dr. Knight both agreed that it would be beneficial to Ms. Tassin's depression and physical symptoms for her to return to work and be productive.