author: PETERS, J.

text:
    Katherine WILLIAMS v. TIOGA MANOR NURSING HOME.
    No. 09-0417-WCA.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 18, 2009.
    Rehearing Denied Jan. 13, 2010.

      George A. Flournoy, Flournoy & Dog-gett (APLC), Alexandria, LA, for Plaintiff/Appellant, Katherine Williams.
    Lawrence B. Frieman, Janna C. Berger-on, Juge, Napolitano, Guilbeau, Ruli, Frie-man & Whiteley, Metairie, LA, for Defendant/Appellee, Tioga . Manor Nursing Home.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PETERS, J.

|,The plaintiff in this workers’ compensation litigation, Katherine Williams, suffered a work-related back injury in 2003, while employed by the defendant, Tioga Manor Nursing Home (Tioga Manor). She re-injured her back in 2005, and this event is the basis of the litigation now before us. Following a trial on the merits, the workers’ compensation judge (WCJ) rendered judgment in Ms. Williams’ favor on a multitude of issues, and both parties have sought relief from that judgment in this court. In her appeal, Ms. Williams raises three assignments of error while, in its answer to the appeal, Tioga Manor raises eight. For the following reasons, we amend the WCJ’s judgment and affirm it as amended.

DISCUSSION OF RECORD

Both the work history and medical history giving rise to this litigation are rather straight forward and generally undisputed. It is the interpretation of these histories that creates the issues now before us.

The evidence establishes that Ms. Williams first injured her back on August 28, 2003, while assisting a patient from a wheelchair. At the time, Tioga Manor employed her as a certified nurse’s aide. On September 17, 2003, Tioga Manor commenced paying Ms. Williams temporary total disability (TTD) benefits in the amount of $127.05 per week, based on an average weekly wage of $190.57. She received treatment for this initial injury from Dr. Robert Smith, an Alexandria, Louisiana specialist in occupational industrial medicine, and Dr. M. Lawrence Drerup, an Alexandria, Louisiana neurosurgeon.

Dr. Drerup diagnosed this injury as a herniated disc at L5-S1, on the right, and Ms. Williams underwent a minimally invasive microdiskectomy on October 22, 2003. Her surgery was considered to be successful and, on December 9, 2003, Dr. Drerup | ^released her to return to work performing only light duty. Dr. Smith withdrew all restrictions on February 18, 2004, and she returned to her employment with Tio-ga Manor without restrictions.

However, her return to work was short lived. In May and June 2004, she began experiencing pain in her lower back, and Dr. Smith restricted the amount of weight she could lift while working. On October 18, 2004, Dr. Smith noted that Ms. Williams had suffered an acute onset of pain in her lower back and he restricted her from working at all. However, when he saw her two days later, her condition had improved significantly, and he modified her restrictions by suggesting that she should lift no more than ten to fifteen pounds while working.

On October 25, 2004, Dr. Smith noted that Ms. Williams was eager to return to work and that her lower back was non-tender, had palpable spasms, and that she had a slight decreased range of motion on forward flexion. Based on these findings, Dr. Smith released her to return to work, and Tioga Manor stopped her indemnity benefits effective October 21, 2004.

On February 23, 2005, Ms. Williams presented herself to Dr. Smith’s physician assistant with complaints of lower back, right buttock, and right leg pain. She received two injections for pain, inflammation, and muscle spasm, and Dr. Smith ordered an MRI of her lumbar spine. Although her status that day was reported as “working,” Dr. Smith restricted her from working. Effective February 23, 2005, Ti-oga Manor reinstated Ms. Williams’ indemnity benefits at the rate of $180.00 per week.

On March 10, 2005, after an unsuccessful left SI nerve root block, Ms. Williams complained to Dr. Smith of left leg pain and spasms and tenderness to ^palpation at L3 through S2. The straight leg raising test produced positive results on the left side, and Dr. Smith’s impression was that she suffered from L5 radiculopathy and lumbar and left leg spasms. He continued to restrict Ms. Smith from working.

On March 29, 2005, Dr. Drerup ordered EMG nerve conduction studies of her left leg, x-rays with lateral flexion and extension views of her lumbosacral spine, and a lumbar myelogram with a post-myelo-graphic CT scan. By June 28, 2005, Dr. Drerup noted that Ms. Williams’ condition had improved. Although she still suffered from intermittent lower back pain, she no longer suffered from leg pain. The EMG nerve conduction studies revealed very mild SI radiculopathy on the left, whereas the lumbar myelogram and post-myelo-graphic CT scan demonstrated postoperative changes at L5-S1 on the right, but was otherwise unremarkable.

In an August 22, 2005 phone conversation and by a September 1, 2005 letter, Employers Risk Management Services (Employers Risk), Tioga Manor’s workers’ compensation administrator, informed Dr. Smith that he was no longer authorized to treat Ms. Williams as she was still being treated by Dr. Drerup. The letter stated that treatment by Dr. Smith would not be authorized until Dr. Drerup released Ms. Williams from his care.

Despite the fact that Tioga Manor had expressed its intention to cease authorization of Dr. Smith’s treatment, he continued to treat his patient. When he did see Ms. Williams in August and September 2005, his opinion of her working ability remained the same, and this opinion was supported by the results of an MRI that revealed a recurrent right-sided disc herniation at L5-S1. On September 16, 2005, Dr. Drer-up noted that Ms. Williams’ complaints of lower back pain continued, and she now complained of pain in both legs, the left worse than the right. As a result, he bordered an SI nerve root block bilaterally and an MRI of the lumbar spine. At a November 10, 2005 visit, Ms. Williams complained to Dr. Smith of pain in the dorsal aspect of her right leg. This time, the straight leg raising test proved positive bilaterally, and he noted that she had a discrete SI radiculitis. On November 18, 2005, Dr. Drerup noted lumbar radiculopa-thy bilaterally, secondary to a recurrent disc herniation on the right at L5-S1.

Less than two weeks later, on November 30, 2005, Ms. Williams presented herself to the Rapides Regional Medical Center emergency room complaining of severe back and right leg pain. She was diagnosed by the emergency room physician as suffering from a degenerative disc, right-sided acute sciatica, and radiculopathy, and was given an injection of Toradol for pain.

Dr. Smith again saw Ms. Williams on February 15, 2006, and after recording her complaints and examining her, he recommended that she be seen by Dr. Stephen Katz, an Alexandria, Louisiana pain management specialist, for management of her chronic pain, and Dr. James Quillin, an Alexandria, Louisiana psychologist, for evaluation of her depression and somatization. Employers Risk denied this request via a February 23, 2006 letter. In the letter, it stated that it had previously mailed numerous letters to Dr. Smith noting that no further treatment would be authorized by him, as Ms. Williams’ care had been referred to Dr. Drerup.

On April 3, 2006, Dr. Drerup performed a microdiskectomy on Ms. Williams. This procedure relieved her lower back pain, but her right leg pain continued. On June 15, 2006, Dr. Drerup noted that from a neurosurgical standpoint, he had very little to offer Ms. Williams short of a lumbar interbody fusion. After conferring, he and Dr. Smith agreed to refer her to Dr. Katz for management of her pain and to Dr. |fiQuiIlin for psychological intervention. By July 2006, Dr. Quillin was of the opinion that Ms. Williams was suffering from major depression and chronic pain syndrome.

Despite the seemingly bleak medical prognosis, by the time Dr. Smith saw her on July 18, 2006, Ms. Williams’ pain had improved significantly. In fact, it had improved to such an extent that Dr. Smith acquiesced to her request and released her to work. However, he conditioned his release to that of a sedentary level of work as defined by the United States Department of Labor. Given her restricted release, Ms. Williams began working at The Summit Retirement Center in Alexandria, Louisiana on July 24, 2006, and continued working there through August 17, 2006, earning $6.40 per hour. Dr. Drerup released Ms. Williams on August 11, 2006, to return to work as a sitter, to activity as she could tolerate. Her indemnity benefits were terminated by Tioga Manor on August 8, 2006, pursuant to Dr. Smith’s release. After her employment with The Summit Retirement Center ended, Ms. Williams worked for Matthews Memorial Nursing Home in Alexandria, Louisiana from late August through November 2006.

On November 3, 2006, Ms. Williams returned to Dr. Smith after suffering two weeks of intermittent right leg pain. Dr. Smith noted that it was difficult to assess her motor function due to the pain in her legs, and he reported that a straight leg raise test was exquisitely positive on the right and was positive for pain on the left at ninety degrees. On November 7, 2006, he stated that he was having trouble keeping Ms. Williams comfortable and that he had ordered an MRI, which had not been done. He opined that her lumbar spine showed an anterior spondylolithiasis at L5-S1, and he noted a significant loss of normal lordotic curve in her spine. Ms. Williams was | (-.restricted from working by Dr. Smith. She requested that Tioga Manor reinstate her indemnity benefits as of that date. Tioga Manor refused to reinstate her benefits.

On November 9, 2006, Dr. Drerup noted that Ms. Williams complained of spasms affecting her right buttock and the posteri- or lateral aspect of her right leg. He found these symptoms suggestive of L5 root syndrome on the right. He recommended a lumbar myelogram and post-myelographie CT scan. On December 28, 2006, Ms. Williams’ complaints of lower back and leg pain continued, with increased severity. Dr. Drerup diagnosed her as suffering from SI radiculopathy on the right without evidence of structural pathology to account for her symptoms. He again noted that he had very little to offer Ms. Williams, other than a lumbar interbody fusion with pedicle screw instrumentation.

Ms. Williams was seen by Dr. Clark Gunderson, a Lake Charles, Louisiana orthopedic surgeon, on April 3, 2007. In his report, Dr. Gunderson noted that she had mild lumbar scoliosis, diminished strength in her right extensor hallicis longus muscle, diminished sensation at the L5-S1 der-matome, an absent right Achilles reflex, and a positive straight leg raise test on the right at forty degrees. She also exhibited tenderness at the right L5 region, as well as the right sacroiliac and sciatic notch regions. Dr. Gunderson opined that Ms. Williams was suffering from persistent radiculopathy and requested that she return with her actual MRI films. He felt that she might be a candidate for a repeat laminectomy with fusion with pedicle screw instrumentation. He further stated that he did not feel she was capable of working. In an April 17, 2007 fax transmission to Ms. Williams’ attorney, Dr. Gunderson requested authorization for a transforaminal lumbar interbody fusion at L5-S1, with posterolateral fusion at L5-Sl, with pedicle screws. By correspondence dated ten |7days later, April 27, 2007, Tioga Manor refused authorization for this surgery, stating that it did not recognize Dr. Gunderson as Ms. Williams’ treating physician because she had not requested permission to change her treating physician and because Dr. Drerup had never issued an opinion requesting an orthopedic referral. Tioga Manor refused payment of Dr. Gunderson’s fees for service as well.

Rather than approve of Dr. Gunderson’s surgical recommendation, Tioga Manor sent Ms. Williams to be examined by Dr. Allen S. Joseph, a Baton Rouge neurosurgeon. When Dr. Joseph examined Ms. Williams on June 19, 2007, he noted that she continued to suffer chronic back and right lower extremity pain, but found her neurologic examination to be somewhat inconsistent, with no objective findings. Dr. Joseph disagreed with Drs. Drerup’s and Gunderson’s recommendation for surgery. In his opinion, the proposed surgery was unproven in this situation and provided little likelihood for a meaningful and lasting benefit to Ms. Williams. Dr. Joseph was of the opinion that Ms. Williams was capable of performing work at a light, sedentary level, but recommended that she undergo a functional capacity examination to identify specific job restrictions commiserate with her physical capabilities.

Ms. Williams filed the instant claim against Tioga Manor alleging numerous issues in dispute: the extent and duration of disability; non-payment or incorrect payment of indemnity benefits; failure to provide authorization for medical treatment; non-payment and/or untimely payment of medical and travel related expenses; failure to furnish reports of treating physicians within thirty days; failure to provide vocational rehabilitation; wages; the arbitrary withholding of consent for recommended treatment; and penalties and attorney fees.

| following a two day trial, the WCJ rendered oral reasons which included numerous findings. The WCJ determined that Ms. Williams’ compensation rate was $182.27 per week, based on an average weekly wage of $273.52 and $9.52 per week for fringe benefits; that she was not entitled to TTD benefits for the three days that she was unable to work in October 2004, and that Tioga Manor was entitled to a credit for all indemnity benefits previously paid; that Ms. Williams was not entitled to TTD benefits or supplemental earnings benefits (SEB) for February 4-22, 2005; and that she was entitled to reinstatement of her TTD benefits beginning on August 27, 2007. The WCJ awarded Ms. Williams SEB: $528.84 for July 24, 2006-August 23, 2006 (The Summit Retirement Center); $376.56 for August 2006, and $648.36 for November 2006 (Matthews Memorial Nursing Home); and $643.87 for April 2007 (Future Expectations Community Care). Ms. Williams was also awarded $111.20 as reimbursement for travel expenses.

The WCJ further held that Tioga Manor was arbitrary and capricious and awarded penalties in several instances: $2,000.00 for incorrect payment of indemnity benefits (failure to include fringe benefits); $2,000.00 for discontinuance of Dr. Smith’s treatment and the refusal to pay Red River Pharmacy for medication he prescribed; $2,000.00 for refusal to authorize Dr. Gun-derson’s treatment; $2,000.00 for failure to pay for an emergency room visit to Rap-ides Regional Medical Center; and $850.00 for late payment of her indemnity benefits. The WCJ awarded Ms. Williams $2,000.00 for Tioga Manor’s arbitrary and capricious August 6, 2006 termination of her indemnity benefits, based on Dr. Smith’s July 19, 2006 release of Ms. Williams to sedentary work, and awarded her $6,500.00 in attorney fees.

| ciFinally, the WCJ held that Ms. Williams was entitled to reasonable medical care, including treatment by Dr. Smith and Dr. Gunderson, and stated that their treatment, as well as the payments to Red River Pharmacy and Rapides Regional Medical Center, should be reimbursed pursuant to the fee schedule.

Ms. Williams has appealed this judgment raising three assignments of error:

1) The facts surrounding plaintiffs inability to work from February 5-22, 2005 were not disputed. In its post-trial brief, defendant did not even contest plaintiffs entitlement to indemnity benefits for this period of time. Did the WCJ err, as a matter of law, in refusing to award indemnity benefits from February 5, 2005 through February 22, 2005?
2) The WCJ correctly determined that defendant’s termination of indemnity benefits on August 15, 2006 was arbitrary, as was defendant’s discontinuance of Dr. Smith’s treatment in September, 2005. In view of the rationale of this Court in Mullins v. Concrete & Steele Erectors, 06-510 (La.App. 3 Cir. 9/27/06); 940 So.2d 803, was the WCJ’s award of only a $2,000.00 penalty in accord with 23:1201(1) for the discontinuance of indemnity benefits and Dr. Smith’s treatment unreasonably low?
3) After considering all relevant factors enunciated in McCarroll v. Airport Shuttle, Inc., 2000-1123 (La.11/28/00); 773 So.2d 694, and awards in similar cases, was the WCJ’s attorney fee award of only $6,500.00 unreasonably low?

Tioga Manor answered Ms. Williams’ appeal and alleged additional errors it claimed were committed by the WCJ:

1) The trial court erred in the calculation of the average weekly wage on the grounds that the claimant was a full-time employee who regularly worked less than forty hours at her own discretion.
2) The trial court erred in failing to recognize Appellee’s credit for overpayment of indemnity benefits.
3) The trial court erred in finding that the Appellant was entitled to indemnity benefits after August 5, 2006 through August 27, 2007.
ho4) The trial court erred in awarding the Appellant the medical expenses of Dr. Smith from August 19, 2005 through December 6, 2006.
5) The trial court erred in awarding the Appellant the medical expenses of Dr. Gunderson prior to the surgery.
6) The trial court erred in awarding the Appellant $8,000 in penalties pursuant to LSA-R.S. 23:1201(F) for the following:
A. incorrect payment of indemnity benefits;
B. failure to authorize and pay for treatment by Dr. Gunderson;
C. failure to pay emergency room treatment at Rapides Regional Medical Center;
D. failure to pay Red River Pharmacy medications and medical bills of Dr. Smith from August 19, 2005 through December 6, 2006;
E. untimely payment of benefits for the weekly periods from July 2, 2006 through July 22, 2006.
7) The trial court erred in awarding the Appellant a $2,000 penalty pursuant to LSA-R.S. 23:1201(1) for the discontinuance of indemnity benefits on August 5, 2006.
8) The trial court erred in awarding the Appellant a $6,500 attorney fee pursuant to LSA-R.S. 23:1201(J).

OPINION

The standard of review applying in workers’ compensation cases was set forth by the supreme court in Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117:

In worker’s [sic] 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. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless lnthey are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.[6/27/03]), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105.

Due to the number of issues raised by both parties, we will attempt to address them in an organized and sequential manner.

AVERAGE WEEKLY WAGE

Tioga Manor argues that the WCJ erred in calculating Ms. Williams’ average weekly wage based on a forty-hour work week when, by her own discretion, she worked an average of less than forty hours per week. It concedes, however, that she is entitled to fringe benefits of paid vacation and paid holidays and that this amount should have been included in calculating the average weekly wage.

Prior to her August 29, 2003 accident, Ms. Williams worked full-time as a certified nurse’s aide for Tioga Manor. Her work schedule was not week-to-week, but she would work eight hours per day for four straight days, have two days off, and resume her four-day work schedule. She claims that based on this schedule, she was also entitled to accumulate forty hours of vacation time and forty hours for five paid holidays. On occasion, she worked overtime.

Donna Beaubouef, the administrator for Tioga Manor, testified that Ms. Williams was employed full time, at a rate of $6.60 per hour. According to Ms. Beaubouef, a full-time employee for Tioga Manor works 7.5 hours per day, 37.5 hours per week, and only obtains forty or more hours per week if he or she volunteers for an extra shift. Ms. Beaubouef also disagreed with Ms. Williams’ calculation of | ¶ ¿vacation and holiday time. According to Ms. Beau-bouef, Ms. Williams’ vacation and holiday pay was calculated on a 37.5-hour work week and not a forty-hour work week. Ms. Beaubouef testified that Ms. Williams had missed seven days of work in the four weeks immediately prior to the accident and that she provided a reason for only three of the four days she called in.

Lyman Phillips, a supervisor for Employers Risk, testified that following Ms. Williams’ initial injury, Employers Risk determined her average weekly wage to be $190.58 based on the four full weeks prior to the accident, 37.5 hours of employment per week, and an hourly rate of $6.60. Based on this calculation, Tioga Manor set her initial weekly compensation rate at $127.50. According to Mr. Phillips, after the reinjury in February 2005, the Employers Risk adjustor requested additional wage records from Tioga Manor and, using those records, calculated the new weekly indemnity benefit at $180.00. Mr. Phillips asserted in his testimony that even using the additional records, this amount was $4.00 per week more than she was entitled to. In fact, he asserted that use of the new wage records was improper and should have only been used if Ms. Williams had suffered a new work-related injury. Thus, Mr. Phillips asserted, the new award should have been the same as the original, or $127.50 per week.

The WCJ held that Ms. Williams was entitled to the forty-hour presumption in calculating her average weekly wage. In reaching this conclusion, the WCJ relied on the fact that Tioga Manor failed to present evidence to show that the complained-of absences from work were unexcused.

Louisiana Revised Statutes 23:1021(12)(a) provides the calculation for determining the average weekly wage of an employee who is paid hourly:

| ia(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or
(iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.

In Guillory v. Bofinger’s Tree Service, 06-86 (La.App. 1 Cir. 11/3/06), 950 So.2d 682, the first circuit held that where an injured worker fails to fit literally within any of the three categories listed in La. R.S. 23:1021(12), his or her wage should be determined by deciding which of the three categories best fit his or her situation. We are faced with the same dilemma in the matter before us and find the first circuit’s approach to be correct.

Ms. Williams is, by Tioga Manor’s own description, a full-time employee. However, a full-time employee at Tioga Manor only works 37.5 hours per week and only works forty or more hours if he or she volunteers for overtime. Subsection (iii) is not applicable because Tioga Manor hired Ms. Williams as a full-time employee; she was never classified as being part-time. La. R.S. 23:1021(11). Moreover, subsection “(ii)” does not fit because Ms. Williams did not regularly, and at her own discretion, refuse to work less than the 37.5 hours offered by Tioga Manor. Thus, the description which bests fits Ms. Williams is that found in subsection “(i).”

In the four weeks prior to her accident, Ms. Williams worked 52.50 hours for the pay period ending August 9, 2003; she worked 63 hours for the pay period ending 114August 23, 2003; and she worked 30.5 hours for August 24-29, 2003. In reviewing her prior work history, she consistently worked at least 75.5 hours every pay period: 74.75 hours for the period ending June 12, 2003; 81.75 hours for the period ending June 28, 2003; 8.50 hours for the period ending July 12, 2003; and 83.50 hours for the period ending July 26, 2003. Based on the work history in evidence, we cannot say that the WCJ erred in finding that Tioga Manor failed to rebut the presumption that Ms. Williams was entitled to forty hours in calculating her average weekly wage. Based on her wages of $264.00 and her fringe benefits of $4.76 for paid vacation and $4.76 for paid holidays, Ms. Williams’ average weekly wage equals $273.52. Accordingly, we find no error in the WCJ’s calculation of Ms. Williams’ compensation rate of $182.36.

INDEMNITY BENEFITS

Ms. Williams

In her first assignment of error, Ms. Williams argues that the WCJ erred in finding that she was not entitled to indemnity benefits during February 5-22, 2005. Ms. Williams argues that the WCJ’s error was an error of law, rather than an error of fact, as Tioga Manor failed to dispute this fact in its post-trial brief to the WCJ. However, Tioga Manor vehemently disputes that contention and explains its failure to address this issue in its post-trial brief on the actions of Ms. Williams’ counsel in failing to fully disclose the trial issues in its pre-trial statement and its late filing of the same. Neither of these arguments changes the fact that entitlement of benefits is based on the determination of the underlying facts, and factual findings are reviewed on appeal pursuant to the standard of review set forth in Dean, 879 So.2d 112.

11BMs. Williams testified that she was unable to perform the duties of a restorage aide between December 2003 and February 23, 2005, due to back and leg pain. She stated that in February 2005, she suffered a reoccurrence of this pain while helping a patient into the whirlpool. Her time card for February 4, 2005, reflects that she worked 4.9 hours that day, and she claims that she did not return to work before her initial visit to Dr. Smith’s office on February 23, 2005.

Dr. Smith’s records reveal that Ms. Williams was seen by his physician assistant on February 23, 2005, at which time she complained of pain in her lower back and in her right buttock and leg. Her working status that day was listed as “working,” although she was restricted from working that day. His records also reflect that when she returned to him on February 25, 2005, she reported that she had not worked since her last visit and that her pain had decreased. He further restricted her from working at that time.

According to Mr. Phillips, Ms. Williams’ file reflected that she began missing work on February 23, 2005, not February 4, 2005. However, he acknowledged that pri- or to February 23, 2005, her file had been closed. His reason for believing that she had worked between February 4 and February 23, was that on March 1, 2005, the adjustor working on the file requested that Tioga Manor provide him Ms. Williams’ wage records for the four weeks preceding February 23, 2005. According to Mr. Phillips, if Ms. Williams’ records had revealed that she last worked on February 4, 2005, the adjustor would have investigated and determined whether benefits were owed as of that date.

In his oral reasons, the WCJ stated that Dr. Smith thought that Ms. Williams was suffering from a recurrent disc herniation as of October 2004. He noted that her | t (¡symptoms had worsened by February 2005, and that she was restricted from working as of February 23, 2005. This was the date that Tioga Manor resumed her indemnity benefits. Based on Dr. Smith’s records, the WCJ held that Ms. Williams failed to prove her entitlement to TTD benefits between February 4-22, 2005.

Based on the evidence in the record, we find no error in the WCJ’s judgment denying Ms. Williams TTD benefits during the weeks in question.

Tioga Manor

In its answer to appeal, Tioga Man- or questions the WCJ’s award of indemnity benefits to Ms. Williams during the period of August 5, 2006 through August 27, 2007. According to Mr. Phillips, Employers Risk terminated Ms. Williams’ indemnity benefits based on two reasons: (1) Dr. Smith’s July 18, 2006 release to work, and (2) because Ms. Williams applied for certified nurse’s aide positions at The Summit Retirement Center and Lexington House Nursing Home, and was subsequently hired by both The Summit Retirement Center and Matthews Memorial Nursing Home. He suggested that the totality of this information indicated that Ms. Williams had been released to work, had applied for a certified nurse’s aide position, and had been hired in that position. That being the case, the adjustor concluded that Ms. Williams was not entitled to SEB, and the WCJ erred in awarding benefits for that period.

With regard to Dr. Smith’s release, the record establishes that on August 11, 2006, Ms. Williams received a letter from Employers Risk informing her of the immediate termination of her indemnity benefits as of August 5, 2006. Included in the letter was a copy of Dr. Smith’s Work Status Report, dated July 18, 2006. This 117report noted that Ms. Williams’ work status was “Return without modifications,” effective that day. However, further in the report, under “Other Modifications,” Dr. Smith wrote, “Sedentary work as defined by U.S. [Department of Labor].”

On the one hand, Tioga Manor claims that Dr. Smith’s July 18, 2006 release was inconsistent, yet on the other, it claims that it relied partially on that release to terminate Ms. Williams’ benefits on August 5, 2007. Dr. Smith testified that he did not think this made the report inconsistent. He stated that had he marked Ms. Williams’ work status as modified, Tio-ga Manor would not have allowed her to return to work. By checking “return without modification,” he said that in reality, Ms. Williams was released without modification, but for sedentary work only.

The record also establishes that on August 1, 2006, Ms. Williams was examined by Dr. Drerup. His progress report that day noted that Ms. Williams wished to return to work at sedentary duty, as a sitter, a position that required no lifting. Dr. Drerup approved her request and released her to return to work with activity to tolerance. A copy of this report was sent to Employers Risk.

The WCJ did not accept Tioga Manor’s excuse that Dr. Smith’s July 19, 2006 release was inconsistent — nor do we. If it was confused as to Dr. Smith’s intent, Tioga Manor should have asked him for clarification — especially in view of Dr. Drerup’s August 1, 2006 progress report. What is especially glaring about Tioga Manor’s reliance on Dr. Smith’s “inconsistent” release is the fact that it failed to recognize Dr. Smith as Ms. Williams’ treating physician and refused to pay for any treatment recommended by him subsequent to August 18, 2005.

With regard to the second reason for termination of benefits, Mr. Phillips testified that Employers Risk’s adjustor spoke to the administrators of The Summit 11sRetirement Center and Lexington House Nursing Home on July 26, 2006, and learned that Ms. Williams was seeking employment at those facilities as a certified nurse’s aide. However, other than the basic inquiry by the adjustor, Mr. Phillips could not provide any more specific information concerning the adjustor’s inquiry.

Ms. Williams testified that after Dr. Smith released her to sedentary work, Tio-ga Manor offered her a position as a certified nurse’s aide, but not as a restorage aide, the position she was performing at the time of her reinjury. Because she could no longer perform the duties involved in the position offered at Tioga Manor, she applied for employment at The Summit Retirement Center. According to Ms. Williams, the position was titled certified nurse’s aide, but her new employer was well aware of her condition and placed her with other employees, who performed her lifting. She ultimately left that position because she was to be moved into a situation where she would be required to lift her own patients, something she could not physically do. She began working with The Summit Retirement Center on July 24, 2006, and left that position on August 23, 2006. During her employment, she was paid $6.40 per hour.

She next worked for Matthews Memorial Nursing Home from August through November 2006. As was the case at The Summit Retirement Center, her employer was also aware of her condition and made accommodations. According to Ms. Williams, she left this position when Dr. Smith restricted her from working in November 2006. She stated that in late April 2007, she began employment as a sitter with Future Expectations Community Care Services, LLC, and remained employed there through July 2007. Her beginning pay was $6.65 per hour and she was making $7.00 per hour when she left that position.

| i3The WCJ determined that Ms. Williams’ average monthly wage prior to her injury was $1,185.25, and that ninety percent of that amount equaled $1,066.73. The WCJ then determined the monthly wages earned by Ms. Williams for each month between August 2006 and June 2007 and, after doing so, awarded SEB in the following amounts: $376.56 for August 2006; $648.36 for November 2006; and $643.87 for April 2007. The WCJ found that Ms. Williams was not entitled to an award of SEB for the months of September and October 2006, and May and June 2007, as her wages exceeded $1,066.73 for those months. The WCJ further held that she was entitled to SEB for the other time periods between July 24, 2007 through August 26, 2007, however, he could not make an award based on the incomplete records before him.

Pursuant to La. R.S. 23:1221(3), an injured employee who is unable to earn at least ninety percent of his pre-injury wages is entitled to SEB in the amount equal to sixty-six and two-thirds percent of the difference between his or her average monthly wage at the time of the injury and the average monthly wages earned thereafter. After reviewing Ms. Williams’ payroll records for the months at issue in light of La. R.S. 23:1221(3), we find no error in the WCJ’s determination that Ms. Williams was entitled to SEB benefits for the periods at issue.

Tioga Manor further argues that the WCJ erred in failing to recognize that it was entitled to a credit for the overpayment of indemnity benefits. This is based on its own determination that Ms. Williams’ compensation rate is $138.34. However, | gpbased on our prior affirmation of the WCJ’s determination that Ms. Williams is entitled to $182.36 in weekly benefits, we find no merit in this issue.

MEDICAL EXPENSES

In its answer to appeal, Tioga Man- or argues that the WCJ erred in awarding Ms. Williams Dr. Smith’s medical expenses, for August 19, 2006 through December 6, 2006, and Dr. Gunderson’s medical expenses, for treatment prior to her third surgery. Tioga Manor’s grounds for refusing to authorize treatment by either doctor was the same: Ms. Williams’ treating physician is Dr. Drerup, thus, she is not entitled to treatment from either Dr. Smith or Dr. Gunderson. We disagree.

Louisiana Revised Statutes 23:1121(B)(1) provides:

The employee shall have the right to select one treating physician in any field or specialty.... After his initial choice the employee shall obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

Mr. Phillips testified that after August 19, 2005, the adjustor handling Ms. Williams’ claim refused authorization for all of Dr. Smith’s recommendations and requests for payment, and notified Dr. Smith numerous times thereafter informing him that no authorizations or payments would be forthcoming until Dr. Drerup released Ms. Williams from his care. Mr. Phillips stated that this refusal was done in order to avoid a duplication of treatment.

Mr. Phillips further testified that Employers Risk refused authorization for Dr. Gunderson’s request for surgery and payment for his treatment for basically the same reason. In an April 27, 2007 letter to Ms. Williams’ counsel, Tioga Manor denied Dr. Gunderson’s request on the grounds that Dr. Drerup, her treating physician, had not preferred her to Dr. Gun-derson and because it did not recognize him as her treating physician since she failed to obtain prior approval for the change of doctors.

Dr. Smith, although a surgeon, specializes in occupational industrial medicine. Dr. Drerup is a neurosurgeon, and Dr. Gun-derson is an orthopedic surgeon. Dr. Smith testified that his treatment focused on managing Ms. Williams’ pain, whereas Dr. Drerup’s treatment focused on the neurosurgical aspect. Numerous references are made by Dr. Drerup in his medical records pertaining to the coordination between him and Dr. Smith in Ms. Williams’ treatment.

Pursuant to La. R.S. 23:1121(B)(1), Ms. Williams was entitled to seek treatment from all three physicians as they specialize in different fields. No prior approval by Tioga Manor was necessary. Furthermore, we note that this is not a new concept in workers’ compensation law as this issue has been litigated numerous times. Thus, Tioga Manor has no excuse for refusing to allow Ms. Williams treatment by either Dr. Smith or Dr. Gunderson. Therefore, we find no error in the WCJ’s judgment awarding Ms. Williams medical expenses for treatment by these doctors.

PENALTIES

La. R.S. 23:1201(1)

In her second assignment of error, Ms. Williams argues that the WCJ awarded an unreasonably low penalty when it awarded her only $2,000.00 in penalties for Tioga Manor’s termination of her indemnity benefits and $2,000.00 for its discontinuance of Dr. Smith’s treatment. However, Tioga Manor questions whether either award was warranted. We agree with Ms. Williams and increase the amount of penalties awarded to her.

122The 2003 revision of La. R.S. 23:1201 enacted subsection (I), which provides for the imposition of penalties and attorney fees in the event an employer/insurer discontinues the payment of claims to an employee, when such discontinuance is found to be arbitrary, capricious, and without probable cause. The statute further sets a cap on the penalties awarded under this subsection at $8,000.00.

“In determining whether an employer’s actions are arbitrary and capricious, the crucial inquiry is whether the employer can articulate an objective reason for terminating benefits at the time of the termination.” Doyal v. Vernon Parish Sch. Bd., 06-1088, p. 10 (La.App. 3 Cir. 2/7/07), 950 So.2d 902, 909, writ denied, 07-832 (La.6/15/07), 958 So.2d 1190. Whether an employer is arbitrary and capricious is a finding of fact, which is reviewed pursuant to the manifest error standard of review. Id. However, the WCJ’s award of penalties and attorney fees, that is the actual amount awarded, is entitled to great discretion and will not be disturbed absent an abuse of that discretion. Int’l. Maint. Corp. v. Stoddard, 05-676 (La.App. 3 Cir. 12/30/05), 918 So.2d 1077.

In this instance, Tioga Manor discontinued Ms. Williams’ weekly indemnity benefits on August 5, 2006. It also discontinued authorization for all treatment by Dr. Smith subsequent to August 19, 2005. The WCJ held that these actions were arbitrary and capricious and without probable cause and awarded a $2,000.00 penalty in each instance. We find no error in the WCJ’s findings with regard to the discontinuance. However, we do find that his award of $2,000.00 for each discontinuance was abusively low. We now award $4,000.00 for each violation, for a total penalty of $8,000.00 pursuant to La. R.S. 23:1201(1), in line with the $8,000.00 cap provided therein.

| -pLa. R.S. 23:1201(F) Penalties

In its answer to appeal, Tioga Manor argues that the WCJ erred in awarding $8,000.00 in penalties for the following infractions: (A) the incorrect payment of indemnity benefits; (B) the failure to authorize and pay for treatment by Dr. Gun-derson; (C) the failure to pay emergency room treatment at Rapides Regional Medical Center; (D) the failure to pay Red River Pharmacy medications and medical bills of Dr. Smith from August 19, 2005 through December 6, 2006; and (E) the untimely payment of benefits for the weekly periods from July 2, 2006 through July 22, 2006.

Louisiana Revised Statutes 23:1201(F), as revised, provides for the imposition of penalties and attorney fees if the employer fails to provide payment of compensation or medical benefits or fails to approve the employee’s request to select a treating physician or change of physician, if approval is required. The statute limits the amount of each penalty to $2,000.00. Although the statute does not limit the actual number of penalties which may be imposed, it caps the total amount which may be awarded based on those penalties at $8,000.00. However, no penalties and attorney fees will be assessed if the employer has reasonably controverted the employee’s claim or if the nonpayment resulted from a condition which was beyond the employer’s control. La. R.S. 23:1201(F)(2).

“In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits.” Guillory, 950 So.2d at 692. However, an employer will not escape punishment via the imposition of penalties and attorney fees by alleging its own clerical error. Ducote v. La. Indus., Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843.

At the outset, we note that Tioga Manor has failed to present any argument regarding the WCJ’s award of penalties based on its untimely payment of benefits for the period of July 2, 2006 through July 22, 2006. Therefore, we will consider this claim as being abandoned. Uniform Rules—Courts of Appeal, Rules 2-12.4 and 2-12.5; Tillery v. State, Dep’t of Pub. Safety and Corrs., 07-1228 (La.App. 1 Cir. 2/8/08), 984 So.2d 742.

A. Underpayment of Benefits

In his oral reasons, the WCJ awarded Ms. Williams $2,000.00 in penalties based on Tioga Manor’s miscalculation of her TTD indemnity benefits. In our prior calculation, we affirmed the WCJ’s determination of Ms. Williams’ weekly compensation rate of $182.36. Initially, Tioga Manor paid weekly compensation to Ms. Williams in the amount of $127.05. This payment continued until December 13, 2004, when Ms. Williams returned to work. Thereafter, on February 23, 2005, Tioga Manor reinstated Ms. Williams’ indemnity benefits in the amount of $180.00 per week, and it continued payment at this rate until her benefits were terminated on August 5, 2006.

The WCJ found that the miscalculation was due to Tioga Manor’s own clerical error. We agree. Although Tioga Manor increased the amount of weekly indemnity benefits in February 2006, its figure was still incorrect as it gave no consideration to the fact that Ms. Williams was receiving paid vacation and paid holidays as part of |2sher wages. Tioga Manor concedes that she was receiving these fringe benefits. Accordingly, the WCJ’s award of $2,000.00 in penalties is affirmed.

B. Failure to Pay Medical Expenses

Tioga Manor next questions the WCJ’s award of penalties with regard to its failure to pay the following medical expenses: Dr. Gunderson’s treatment, Rapides Regional Medical Center emergency room bill, and the Red River Pharmacy bill and Dr. Smith’s treatment. We need not address the award pertaining to Dr. Smith’s treatment as that was addressed in the section of our opinion concerning the La. R.S. 23:1201(1) damages award.

With regard to the issue relating to Dr. Gunderson’s treatment, we have already affirmed the WCJ’s finding that Ms. Williams was entitled to select and receive treatment from Dr. Gunderson, an orthopedic surgeon. Accordingly, it was reasonable for the WCJ to find that Tioga Manor had no valid reason for denying his treatment. The decision to award Ms. Williams $2,000.00 in penalties based on this denial is affirmed.

We further find no error in the WCJ’s award of penalties based on Tioga Manor’s refusal to pay the medical bills presented by Rapides Regional Medical Center and the Red River Pharmacy. The Rapides Regional Medical Center bill pertained to an emergency room visit by Ms. Williams on November 30, 2005. Tioga Manor refused payment of this bill on January 5, 2006, based on the fact that Ms. Williams failed to obtain prior approval for this emergency room visit and because she already had a treating physician, Dr. Drer-up. The bill was eventually paid in March 2006. The Red River Pharmacy bill pertained to medication prescribed by Dr. Smith to Ms. Williams as part of his treatment. As Tioga Manor declined to authorize 12(;Dr. Smith’s treatment, it likewise refused to pay for medication prescribed by him after August 19, 2005.

Tioga Manor has a duty to furnish all reasonable and necessary medical care to Ms. Williams for her work-related injury. La. R.S. 23:1203(A); Wilczewski v. Brookshire Grocery Store, 08-718 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214, writ denied, 09-456 (La.4/13/09), 5 So.3d 170. This includes a trip to the emergency room by Ms. Williams after normal business hours for the treatment of her severe back pain. Moreover, as we have affirmed the WCJ’s finding that Tioga Manor was arbitrary and capricious in discontinuing Dr. Smith’s treatment, we also find that it was arbitrary and capricious for refusing to pay Red River Pharmacy for the medication he prescribed. Accordingly, we find no error in the WCJ’s award of $2,000.00 for each of Tioga Manor’s actions.

Attorney Fees

In her third assignment of error, Ms. Williams argues that the trial court erred in awarding her only $6,500.00 in attorney fees. She argues that in light of the list of factors to be considered in fixing attorney fees set out by the supreme court in McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694, and in consideration of attorney fee awards made in other cases, a more fitting award would have been $25,000.00. Tioga Manor argues that the $6,500.00 award was justified and should not be disturbed.

Louisiana Revised Statutes 23:1201(F) and (I) both allow for the award of reasonable attorney fees in the event penalties are assessed under these two subsections. However, La. R.S. 23:1201(J) limits the attorney fees awarded pursuant to this statute to “one reasonable attorney fee.” The reasonableness of an attorney fee 127award is based on “the degree of skill and ability exercised, the amount of the claim, the amount recovered for the plaintiff, and the amount of time devoted to the case.” Naquin v. Uniroyal Inc., 405 So.2d 525, 528 (La.1981); see also Cormier v. State, Dep’t of Wildlife and Fisheries, 07-642, pp. 26-27 (La.App. 3 Cir. 11/21/07), 970 So.2d 1216, 1232, writ denied, 07-2466 (La.2/15/08), 976 So.2d 186 (quoting Lambert v. Brookshire Grocery Co., 06-1001, pp. 21-22 (La.App. 3 Cir. 12/20/06), 945 So.2d 918, 933).

In awarding the $6,500.00 in attorney fees, the WCJ issued the following oral reasons:

Considering the success Mr. Flournoy has had on behalf of Ms. Williams in recovering SEB benefits for and having her average weekly wage properly calculated and obtaining for her penalties in association with the failure to correctly pay her compensation rate for the depri-val of her medical care with Dr. Smith, and although this trial proceeded over a course of three days, this was certainly not a trial necessitating three days to be tried, and Mr. Flournoy argues for himself that he should be entitled to a Twenty-Five Thousand Dollar ($25,-000.00) attorney fee as this Court awarded such a sum in the matter of Doyle versus Vernon Parish School Board, 958 So.2d 1190, with regard to a three-day trial. That was a very complicated trial, very difficult issues, nothing protracted about the trial due to complications from failure to provide Pretrial Statement, et cetera, or clearly defined issues. Everything was clearly defined in the Doyal. Everybody knew what was happening and the representation was excellent in that case.
That’s not to say that Mr. Flournoy did not do a good job for Ms. Williams in this case. It is simply to say that this Court does not believe that an attorney fee award of Twenty-Five Thousand Dollars ($25,000.00) is appropriate. The Court does award an attorney fee of Six Thousand Five Hundred Dollars ($6,500.00) which I feel is on the high end of being appropriate since the issues are well settled in a workers’ compensation law. Nothing difficult about them, although some similarly presented in some type of convoluted fashion requiring a three-day trial.

While taking into consideration the above, we point out that counsel for Ms. Williams was able to correct Ms. Williams’ average weekly wages, reinstate her TTD | esbenefits, obtain SEB on her behalf, and gain approval for treatment by Drs. Smith and Gunderson. The WCJ also awarded her $10,000.00 in penalties based on numerous violations by Tioga Manor of La. R.S. 23:1201(F) and (I). These include the termination, under-payment, and late payment of indemnity benefits, the discontinuance of Dr. Smith’s treatment, the refusal to authorize and pay for Dr. Gunderson’s treatment, the failure to pay mileage, and the failure to pay for reasonable and necessary medical expenses (Rapides Regional Medical Center and Red River Pharmacy). On appeal, we have increased two of the penalties awarded from $2,000.00 each to $4,000.00 each, for a total of $16,000.00 in penalties.

It is apparent from this result that counsel for Ms. Williams did exert a degree of skill and ability in the furtherance of his representation and that he obtained a very favorable result on her behalf. Although the WCJ stated, and Tioga Manor argues on appeal, that the issues in this matter were not complicated and that the trial’s two-day length was a direct result of counsel for Ms. Williams’s failure to timely file and clarify the trial issues, the results in this instance speak for themselves. Furthermore, the WCJ’s oral reasons for judgment covered approximately seventeen legal-sized pages. Obviously, numerous issues were raised and addressed and the length of trial cannot totally be blamed on Ms. Williams’ counsel.

Considering the foregoing, we find that the WCJ’s award of $6,500.00 in attorney fees is abusively low, and we raise that to a more appropriate amount of $15,000.00.

DISPOSITION

Based upon the foregoing reasons, we amend the WCJ’s judgment to increase from $2,000.00 to $4,000.00 the penalty for Tioga Manor’s termination of Ms. ^Williams’ indemnity benefits and increase from $2,000.00 to $4,000.00 the penalty for its discontinuance of Dr. Smith’s treatment. We further amend the WCJ’s judgment to increase the award of attorney fees from $6,500.00 to $15,000.00. The judgment of the WCJ is affirmed in all other respects. The costs of this appeal are assessed to the defendant, Tioga Man- or Nursing Home.

AFFIRMED AS AMENDED.

      . The WCJ used the date of February 4, 2005 in his oral reasons. However, Ms. Williams’ employment records show that she worked a partial day on February 4, 2005.

      . The WCJ’s oral reasons for judgment discuss the period of time between July 2007 through the date of Ms. Williams’ surgery in late August 2007. The judgment lists the time period as being between July 24, 2006 through August 26, 2007. However, as SEB was already awarded for these months in 2006, July 24, 2006 was obviously an error and the correct year should have been 2007.

      . The WCJ, in his oral reasons, awarded penalties of $2,000.00 for the incorrect payment of benefits; $2,000.00 for the failure to pay Dr. Gunderson; $2,000.00 for the failure to pay Rapides General Medical Center; $2,000.00 for the combined discontinuance of Dr. Smith’s treatment and the failure to pay Red River Pharmacy; and $850.00 for the late payment of benefits. This amounts to $8,850.00 in penalties. However, the actual $8,000.00 awarded in penalties in the WCJ’s judgment accords with the cap set out in La. R.S. 23:1201(F).


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge. PETERS, J.,

license: Public Domain

text:
    RAPIDES PARISH POLICE JURY v. CATAHOULA DUCK CLUB & LODGE L.L.C., et al.
    No. 09-64.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 18, 2009.
    Ricky L. Sooter, George I. Fine, Pro-vosty, Sadler, deLaunay, Fiorenza & So-bel, Alexandria, LA, for Plaintiff/Appellant-Rapides Parish Police Jury.
    Richard E. Lee, Pineville, LA, for Defendant/Appellee-CatahouIa Duck Club & Lodge L.L.C., et al.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   THIBODEAUX, Chief Judge.

[jThe Rapides Parish Police Jury appeals the trial court’s grant of an exception of prescription dismissing the Catahoula Duck Club & Lodge L.L.C. from the Police Jury’s attempt to obtain a declaratory judgment seeking to annul a sheriffs sale and recognizing that it has a right of way servitude across rural property located in that parish. The trial court recognized that the Police Jury was entitled to notice of the sheriffs sale. Relying on La. R.S. 13:3886.1(A), however, it determined that the one year prescriptive period provided for in the statute applied to the nullity request. We affirm, but for reasons different from those relied upon by the trial court.

I.

ISSUE

We shall determine whether the Police Jury’s request to nullify a public sale on the basis of a federal due process violation was proper and whether La. R.S. 13:3886.1(A) applies under the circumstances of this case.

II.

FACTS

The immovable property at issue is located in the Northeast Quarter of the Northwest Quarter of fractional Section 4, Township 5 North, Range 3 East of Rap-ides Parish and was acquired by Richard Daigre in two separate transactions. Richard Daigre died on April 10, 2001, and on July 8, 2003, the administrator of his succession, James L. Broadwell, III, and the then President of the Rapides Parish Police Jury, Richard W. Billings, executed a document entitled “SERVITUDE OF UWAY FOR PUBLIC ROAD” (Servitude Agreement) which purports to grant the Police Jury “a servitude and right of way over and across [the Daigre property].”

Attached to the Servitude Agreement are two plats. The first was prepared by Frank L. Willis, a land surveyor, and dated September 26, 1984. The plat depicts the property at issue and shows a dirt or gravel road traversing part of the property, running from the northeast to the southwest across the property, and connecting with a public road on the west side of the property. The northeast end of the road does not completely traverse the property. The second plat, which is dated August 14,1998, was also prepared by Mr. Willis and shows a twelve-foot wide gravel road in the same location as the road shown on the 1984 plat. The primary difference between the two plats is that in the second, the road completely traverses the property on the northeast side. It is this twelve-foot strip that constitutes the right of way granted to the Police Jury.

This litigation arises because on February 20, 2004, while the property was still under administration, the Southern Heritage Bank instituted foreclosure proceedings on the property. This action resulted in a public sale of the property at a Rap-ides Parish Sheriffs sale on September 27, 2006. The Police Jury received no notice of any step in these proceedings.

After it purchased the property at the public sale, the Southern Heritage Bank conveyed the property to Thomas Reich, who subsequently entered into agreements transferring an interest in the property to the defendants in this litigation: the Cata-houla Boys Hunting and Social Club, Inc.; the Catahoula Duck Club; Richard E. Lee; and, Betty Lee Kirst Dent. On April 4, 2008, the Police Jury brought suit against these defendants, seeking to nullify the public sale and to have its servitude recognized. Thereafter, the Catahoula Duck Club filed exceptions of prescription and |3no cause of action. After a hearing, the trial court granted the exception of prescription, and the Police Jury perfected this appeal.

III.

LAW AND DISCUSSION

The Police Jury sought relief from the trial court based on the United States Supreme Court holding in Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983). There, the Supreme Court held that before a state may deprive a person of a legally protected right to life, liberty, or property, it must first provide notice which is reasonably calculated, under all circumstances, to apprise the interested party of the pending action and afford them an opportunity to object. In Mennonite, a mortgagee learned two years after the fact that property on which it held a mortgage was sold pursuant to a tax sale. In that instance, an Indiana statute provided for notice by three consecutive weeks of publication and by notice posted at the courthouse. Under the facts of Mennonite, the Supreme Court held that constructive notice via publication alone was unreasonable, especially as the mortgagee’s address was easily ascertainable. Because the mortgagee’s address was discoverable, the Supreme Court held that, in that instance, notice reasonably calculated to inform the mortgagee of the pending suit would have been through personal service or by mail.

The Police Jury argued that the July 2003 Servitude Agreement conveyed to it a property interest entitling it to notice of the foreclosure proceedings, and that the failure to provide it with notice violated its due process rights as provided for in U.S. Const, amend. XIV, as recognized by the Mennonite decision. In its treasons for judgment, the trial court agreed with the Police Jury’s argument that it was entitled to notice pursuant to Mennonite, but concluded that the prescriptive period set forth in La. R.S. 13:3886.1(A) applied and that the Police Jury’s claim had prescribed. Louisiana Revised Statutes 13:3886.1(A) provides in pertinent part:

The failure to notify any lienholder or other interested person having an interest in the property shall not affect the rights of the seizing creditor nor invalidate the sheriffs sale; nor shall any lien, privilege, or other encumbrance that is inferior to the rank of the lien of the seizing creditor affect the property after the sheriffs adjudication. The exclusive remedy for any person affected by the provisions of this Subsection shall be to institute a claim by summary pleadings, within one year from the date of the sheriff’s adjudication, proving that he has been damaged by the failure to notify him.

(Emphasis added).

We decline to address the Police Jury’s argument that the trial court’s holding violated its Fourteenth Amendment due process rights by refusing to find that the sale of the subject property via sheriffs sale was null and void for failing to provide it with prior notice as required by Mennonite, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180. This argument, as expressed on appeal, is an indirect constitutional attack on La. R.S. 13:3886.1, and the Police Jury did not challenge the constitutionality of La. R.S. 13:3886.1. The Police Jury itself framed the issue as, “[c]an Louisiana Revised Statute 13:3886.1, which attempts to provide a one year prescriptive period to remedy the failure of notice, limit the Federal Constitutional notice requirement?” Thus, the Police Jury is asserting that La. R.S. 13:3886.1 provides an unconstitutional limitation on the federal constitution’s Fourteenth Amendment due process provisions.

As stated by the Louisiana Supreme Court in State v. Hatton, 07-2377, p. 13 (La.7/1/08), 985 So.2d 709, 718, we are “not required to decide a constitutional issue unless the procedural posture demands that [we] do so.” The party raising the 1 Bissue bears the burden of proving a statute unconstitutional. Id. To do so, the complaining party must first raise the statute’s unconstitutionality in the trial court, through specific pleadings which particularize the grounds for the claim. Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/30/94), 646 So.2d 859. Furthermore, the pleading attacking the statute’s constitutionality must be served on the attorney general, affording him the opportunity to be heard on the issue. La. R.S. 49:257(C) and La. Code Civ.P. art. 1880. Here, none of the aforementioned requirements have been met, and we will not address the constitutionality of La. R.S. 13:3886.1. Thus, the only issue we have before us is whether the prescriptive period set forth in La. R.S. 13:3886.1 applies in this ease.

Considering only that issue, we find that La. R.S. 13:3886.1 does apply, and the Police Jury’s request for relief has prescribed. The sheriffs sale occurred on September 27, 2006, and the Police Jury did not file this suit until April 4, 2008. Pursuant to La. R.S. 13:3886.1(A), the Police Jury had one year from September 27, 2006, to institute its action for damages. As its April 4, 2008 petition was beyond the one-year-time limit, the trial court’s grant of judgment in favor of the Catahou-la Duck Club was correct.

IV.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting the exception of prescription in favor of the Catahoula Duck Club & Lodge L.L.C. is affirmed. We assess all costs of this appeal to the Rapides Parish Police Jury and set the amount of those costs at $570.50, as required by La. R.S. 13:5112.

AFFIRMED.

PETERS, J., dissents and assigns written reasons.

SAUNDERS, J., dissenting for reasons assigned by Judge Peters.

PETERS, J.,

dissenting.

hi agree with the factual background set forth in the majority opinion as well as its conclusion that the constitutionality of La. R.S. 13:3886.1 is not before us. However, I do not agree with the majority that the Rapides Parish Police Jury’s (Police Jury) claim had prescribed pursuant to that statute.

In its reasons for judgment, the trial court concluded that the failure to provide notice to the Police Jury of the foreclosure proceedings violated the Police Jury’s due process rights as provided for in U.S. Const, amend. XIV and as recognized by Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1988). Because the Catahoula Duck Club did not appeal or answer the Police Jury’s appeal, the trial court’s judgment on this issue is a final judgment and we cannot address the merits of that judgment. Thus, the only issue before this court is the trial court’s ruling that the Police Jury’s action is governed by La. R.S. 13:3886.1, and therefore had prescribed. However, unlike the majority, I do not find that this issue is before us in the context of a constitutional attack on the statute itself.

In its prayer for relief, the Police Jury did not seek damages as allowed by La. R.S. 13:3886.1. Instead, it requested that the sheriffs sale be declared null and void to the extent that the sale purported to extinguish the right of way created by the 12July 8, 2003 Servitude Agreement. Nor did the Police Jury raise the constitutional issue in its pleadings. Instead, it suggested that La. R.S. 13:3886.1 was not applicable to the matter at hand. I agree that the statute is not applicable, as the sale is an absolute nullity as it applies to the Police Jury, and “no peremptive or prescriptive period can breathe life into something that never existed.” Pardon v. Moore, 39,949, pp. 10-11 (La.App. 2 Cir. 8/17/05), 908 So.2d 1253, 1259 (citing Gram Realty Co. v. Northern Homes, Inc., 308 So.2d 502 (La.App. 1 Cir.1975)).

Although in the context of a tax sale and not a foreclosure, this court, in Smith v. Brooks, 97-1338, p. 7 (La.App. 3 Cir. 4/15/98), 714 So.2d 735, 739, held that “the failure to give notice of the tax delinquency and sale to the record owner rendered the tax sale an absolute nullity.” That being the case, this court held, “the passage of the peremptive period [provided by La. Const, art. 7, § 25(C) ] had no effect on the record owner’s right to seek nullification of the tax sale, deferring to the supremacy of the Fourteenth Amendment to the United States Constitution as interpreted in Mennonite.” See also, Parkview Oak Subdivision Corp. v. Tridico, 95-604 (La.App. 1 Cir. 11/9/95), 667 So.2d 1101, writ denied, 96-622 (La.5/10/96), 672 So.2d 921, (wherein the first circuit specifically excluded coverage of La. R.S. 13:3886.1 in a similar tax sale situation).

The first circuit addressed the issue before us in the context of a third possessor not receiving notice of a foreclosure proceeding by a mortgage holder in Henderson v. Kingpin Development Co., 01-2115 (La.App. 1 Cir. 8/6/03), 859 So.2d 122. In that matter, the plaintiff purchased a tract of immovable property that had been mortgaged by his ancestor in title, with a balance due and owing on the mortgage at the time he acquired title. Thereafter, the mortgagee instituted foreclosure proceedings on the property, using the statutory scheme for foreclosure as set out in La.Code Civ.P. arts. |s2635-2638. The original mortgagor received notice, but the only other notice was the advertisement of the sheriffs sale, which appeared in the newspaper.

The court in Henderson recognized that “there is no statutory requirement that the present owner receive notice of the seizure” in the case of a foreclosure proceeding and that a third possessor can protect himself by complying with the request notice of La. R.S. 13:3886. Id. at 127. Notwithstanding that recognition, the court went on to say that a third possessor’s request for notice pursuant to La. R.S. 13:3886 “does not relieve the responsible state actor in a particular case from exercising the reasonable diligence appropriate in the circumstances to ascertain, reasonably, the identity of an individual or entity subject to the deprivation of his or its property.” Id. Furthermore, the court concluded:

[A] seizing creditor who avails itself of Louisiana’s foreclosure procedures is constitutionally obligated to provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action. Davis Oil Company [v. Mills], 873 F.2d [774,] 778 [ (5th Cir.), cert. denied, 498 U.S. 937, 110 S.Ct. 331, 107 L.Ed.2d 321 (1989)], citing Mullane [v. Central Hanover Bank & Trust Co., 339 U.S. 306], 70 S.Ct. [652,] 657; see Bonner v. B-W Utilities, 452 F.Supp. 1295, 1300 (W.D.La.1978). The decision in Mennonite sets forth a federal constitutional requirement; thus, its holding regarding standards for notice cannot be altered by a state statute such as LSA-R.S. 13:3886.1, and federal law is controlling in this circumstance. See Parkview Oak Subdivision Corporation v. Tridico, 95-0604 (La.App. 1st Cir.11/9/95), 667 So.2d 1101, 1104, writ denied, 96-0622 (La.5/19/96), 672 So.2d 921.

Id. at 129.

In the matter before us, the correctness of the trial court’s determination that the Police Jury’s Fourteenth Amendment due process rights were violated is not before us. The effect of this determination leaves us with a null and void foreclosure sale as it applies to the Police Jury. That being the case, the prescriptive provisions |4of La. R.S. 13:3886.1 do not apply. Thus, the rights granted to the Police Jury by the Servitude Agreement remain in full force and effect.

I would reverse the judgment of the trial court dismissing the Police Jury action, and would remand for further proceedings.

      . Mr. Daigre obtained the property in two separate transactions, one being the acquisition of a 1.37 acre tract, and the other being the acquisition of a 22.320 acre tract. The larger tract surrounds the smaller on three sides, and they share a common northern boundary with an adjacent tract.

      . None of the other defendants filed exceptions, and we find nothing in the record to suggest that the other defendants at any later time joined with the Catahoula Duck Club filings or acquiesced therein. Therefore, the only issue before us relates to this single defendant's filings.


author: PAINTER, Judge.

text:
    James LASTRAPES, et ux v. PROGRESSIVE SECURITY INSURANCE COMPANY.
    No. 09-367.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      Ian A. MacDonald, Attorney at Law, Jones Walker, Lafayette, LA, for Defendant-Appellant, Progressive Security Insurance Company.
    Patrick C. Morrow, Attorney at Law Morrow, Morrow, Ryan & Bassett, Opel-ousas, LA, for Plaintiffs-Appellees, James Lastrapes and Geraldine Lastrapes.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| plaintiffs and Defendants appeal the jury’s award of damages as well as the trial court’s rulings on certain post-trial motions. For the following reasons, we affirm in part, reverse in part, and render.

FACTUAL AND PROCEDURAL BACKGROUND

James Lastrapes was involved in an automobile accident on November 13, 2004. His 1999 Chevy van was struck once in the rear door by a vehicle driven by Leslie Vizinat while she was attempting to make a left hand turn. The van sustained $1,599.81 in property damages. Mr. Las-trapes alleges that he injured his neck, shoulders, and back. He and his wife filed suit against Ms. Vizinat and his own uninsured motorist carrier, Progressive Security Insurance Company. Plaintiffs’ claims against Ms. Vizinat were settled prior to trial.

Mr. Lastrapes did not seek treatment in connection with injuries he allegedly received in the accident in question until two days later on November 15, 2004, when he saw his family physician, Dr. Kirk Elliot, and complained of neck pain. Dr. Elliot diagnosed cervical “acute myofascial strain” and recommended physical therapy three times per week. Mr. Lastrapes did attend physical therapy three times per week from December 13, 2004, until late January. He underwent an MRI of the cervical spine on February 18, 2005. This test revealed mild multi-level spondylosis. He was then referred to Dr. Steve Rees, a pain management specialist. On January 14, 2006, Mr. Lastrapes was involved in another automobile accident, wherein he rear-ended another vehicle. Mr. Las-trapes was then referred to an anesthesiologist/pain management specialist who provided several cervical epidural steroid injections to Mr. Lastrapes over the period from December 7, 2006 through October 23, 2007. He |¡>also began treatment with Dr. George Williams, an orthopedic surgeon, on July 10, 2007. Progressive contends that Mr. Lastrapes did not inform Dr. Williams of the occurrence of the January 14, 2006 accident. Dr. Williams ultimately recommended a three level cervical decompression and fusion and discography of the lower lumbar spine. Mr. Lastrapes contends that he was retired but very active prior to the subject accident and that, even though he had some health problems and occasional mild back pain before this accident, he never had neck pain.

Jill Doiron initially handled Mr. Las-trapes’ claim against Progressive. During the two years that she handled the claim, Progressive made payments to Mr. Las-trapes totaling $67,890.00. The claim was transferred to Cheryl Tardo for handling after Mr. Lastrapes filed suit. Ms. Tardo admitted that she received the recommendation for surgery by Dr. Williams but did not take his deposition or otherwise follow up with Dr. Williams to determine whether or not he related the surgery to the subject accident. Instead, Ms. Tardo came to the conclusion that reasonable minds could differ on the relationship of Mr. Lastrapes’ neck condition and recommended surgery to the subject accident. She based this conclusion on the fact that Dr. Williams’ records and report made no mention of the January 14, 2006 accident, that Mr. Las-trapes’ physical examination was normal, that Mr. Lastrapes had no complaints of neck or back pain, and that Dr. Williams’ report did not specifically relate the need for surgery to the subject accident.

This matter proceeded to trial by jury. The jury returned a verdict denying Mr. Lastrapes’ claim for future medical expenses, future pain and suffering, past mental anguish, future mental anguish, loss of enjoyment of life, loss of consortium, and penalties and attorney’s fees. The jury did award $88,000.00 in past medical | .¡expenses and $125,000.00 in past pain and suffering to Mr. Lastrapes. Mr. Las-trapes then moved for a judgment notwithstanding the verdict (JNOV) and, alternatively, for additur and/or new trial. The trial court denied Mr. Lastrapes’ motion for additur but granted a JNOV on the claim for penalties and attorney’s fees. The trial court found that Progressive was arbitrary and capricious in its handling of the claim and awarded $72,575.00 in penalties and $24,192.00 in attorney’s fees. Progressive appealed, asserting that the trial court abused its discretion in granting the JNOV because the jury correctly concluded that reasonable minds could differ on whether Lastrapes was entitled to an additional unconditional tender under the UM provisions of Progressive’s policy, that the trial court’s conclusion that Progressive was arbitrary and capricious was manifestly erroneous, and that the award of $7,500.00 in expert fees to Dr. Williams was an abuse of the trial court’s discretion. Mr. Lastrapes answered the appeal and again asked for increases in the amount of damages he was awarded and to be awarded damages for those amounts that the jury denied. We affirm the trial court’s award of penalties and attorney’s fees and the jury’s awards of $88,000.00 in past medical expenses and $125,000.00 in past pain and suffering. We reverse the trial court’s denial of Mr. Lastrapes’ motion for JNOV with respect to the award of future medical expenses, future pain and suffering, loss of enjoyment of life, and loss of consortium.

DISCUSSION

We first address those assignments of error with respect to motions for JNOV, new trial, and/or additur. Plaintiffs argue that they are entitled to awards for future medical care and loss of consortium as well an increase in general damages. |4Progressive, on the other hand, argues that the trial court erred in granting the JNOV and finding that it was arbitrary and capricious.

“The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion.” Martin v. Heritage Manor South Nursing Home, 00-1023, p. 6 (La.4/3/01), 784 So.2d 627, 632.

This court has recently noted that:

The mechanism by which a judgment notwithstanding the verdict may be granted is provided by La.Code Civ.P. art. 1811. In describing the circumstances under which a JNOV is appropriate, the Louisiana Supreme Court has explained that the procedure is to be used only when the facts and circumstances favor one party so overwhelmingly that reasonable men could not arrive at a contrary verdict. Anderson v. New Orleans Public Service, 583 So.2d 829 [ (La.1991).] It is inappropriately used in cases in which the evidence merely preponderates in favor of the moving party. Id. Also, we are mindful that the motion must not be granted if there is evidence in opposition that is of such quality and weight that it would permit “reasonable and fairminded men in the exercise of impartial [judgment]” to reach different conclusions. Id. at 832. Finally, the court cautioned that, in weighing whether a JNOV is appropriate, the court should not weigh witness credibility and should resolve all reasonable inferences/factual questions in favor of the non-moving party. Id. See also Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00); 774 So.2d 84. On review, an appellate court employs a two-part inquiry when considering whether a JNOV is appropriate. Davis, 00-445; 777[4] So.2d 84. First, applying the same criteria as the trial court, the appellate court must determine if the trial court erred in granting the motion. Id. Next, if the appellate court determines that the standard was correctly applied to the jury verdict at the trial level, the appellate court must then review the JNOV granted using the manifest error standard of review. Id.

Smoot v. Hernandez, 08-1121, pp. 3-4 (La.App. 3 Cir. 3/4/09), 6 So.3d 352, 356-7, (footnote omitted), citing Bowie v. Young, 01-715, p. 12 (La.App. 3 Cir. 3/20/02), 813 So.2d 562, 570-71, writ denied, 02-1079 (La.6/21/02), 819 So.2d 335.

Additionally, this court has already noted that “[t]he insurer is required to take substantive and affirmative steps to accu-muíate the facts necessary to evaluate a |5claim.” Guillory v. Lee, 08-661, p. 18 (La.App. 3 Cir. 12/10/08), 998 So.2d 891, 902, citing McClendon v. Econ. Fire & Cas. Ins. Co., 98-1537 (La.App. 3 Cir. 4/7/99), 732 So.2d 727.

Progressive contends that the trial court committed legal error in granting the JNOV in favor of Mr. Lastrapes and awarding him $72,575.00 in penalties and $24,192.00 in attorney’s fees because reasonable minds could differ on whether Mr. Lastrapes was entitled to an additional unconditional tender under the UM provisions of Progressive’s policy. This argument is intertwined with Progressive’s argument that the trial court committed manifest error in finding that Progressive was arbitrary and capricious in its handling of Mr. Lastrapes’ claim in that it failed to depose Dr. Williams within thirty days of receiving his July 10, 2007 report. We agree with the trial court that Progressive was arbitrary and capricious in not taking the deposition in a timely manner and, therefore, affirm the trial court’s grant of a JNOV in favor Mr. Lastrapes as well as its award of penalties and attorney’s fees. Some sort of follow up with Dr. Williams, be it by deposition or otherwise, was necessary following receipt of his recommendation for surgery. Failing to do so was obviously contrary to the requirement that Progressive “take substantive and affirmative steps to accumulate the facts necessary to evaluate a claim.” Id. Had Progressive followed up on Dr. Williams’ recommendation and informed him of the subsequent accident involving Mr. Lastrapes, they might well have found that the recommendation was unrelated to the subject accident. However, Progressive may not act upon “random choice” or “personal whim” as it did in this case. Reed v. State Farm, Auto. Ins. Co., 857 So.2d 1012, 1020 (La.2003).

| ,;Mr. Lastrapes had the burden of proving his claims by a preponderance of the evidence. He had to prove that the subject automobile accident caused injuries and what amount of damages would adequately compensate him for those damages. Coutee v. Beurlot, 06-2943 (La.9/5/07), 964 So.2d 304. With regard to surgery, he had to prove with medical testimony that the subject automobile accident more probably than not caused a condition which requires surgery and the cost of the surgery; he also had to prove that more probably than not he will have the surgery in the future. Basco v. Liberty Mut. Ins. Co., 05-143 (La.App. 3 Cir. 8/17/05), 909 So.2d 660.

In Basco, 909 So.2d at 666, we noted that:

It is well settled that, in reviewing an award of general damages, the role of an appellate court is to review the exercise of discretion by the trier of fact. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976). Importantly, on review, an appellate court should rarely disturb an award of general damages because “the discretion vested in the trier of fact is ‘great,’ and even vast.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is only when the trier of fact has abused its much discretion that the appellate court may disturb the award, but then only to the extent of lowering it to the highest point or raising it to the lowest point which was reasonably within the discretion of the trier of fact. Id. However, this principle of appellate review applies only when a litigant “questions the adequacy of a monetary award in a case which is otherwise uncomplicated by factual errors relating to the cause or duration of the plaintiffs disability.” Mart v. Hill, 505 So.2d 1120, 1128 (La.1987). More specifically, the principles stated in Coco and reiterated in Youn “are not applicable when a res nova review of quantum must be made to compensate a plaintiff for damages which the trial court did not believe were causally related to the accident.” Id. In the instant case, Mr. Basco is not questioning the adequacy of a monetary award for future loss of enjoyment of life; instead, he is questioning the jury’s failure to make any award for that item of damages. Thus, should we find error, we are not bound by the highest/lowest constraints in recognition of the jury’s discretion.
We also recognize that, as pointed out in Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70, an award in one category of damages does not automatically require an award in others. In that case, 17a jury awarded the plaintiffs medical expenses they incurred but failed to award general damages. The supreme court refused to hold that, as a matter of law, such a verdict must always be erroneous. Rather, the supreme court stated that “it would be inconsistent with the great deference afforded the factfinder by this court and our jurisprudence to state that, as a matter of law, such a verdict must always be erroneous.” Id. at 76. Instead, the reviewing court “must ask whether the jury’s determination that plaintiff is entitled to certain medical expenses but not to general damages is so inconsistent as to constitute an abuse of discretion.” Id. If the reviewing court reaches that conclusion, it must then “conduct a de novo review of the record.” Id.

It was the duty of the jury to determine the credibility of the witnesses, including Dr. Williams, and to accept or reject their opinions in whole or in part. Sportsman Store of Lake Charles, Inc. v. Sonitrol Sec. Sys. of Calcasieu, Inc., 99-201 (La.10/19/99), 748 So.2d 417. Considering the record as a whole, we are of the opinion that the jury concluded that Mr. Lastrapes did suffer major injuries as a result of the November 13, 2005 automobile accident but did not accept his claims that his neck problems were caused by the accident and that he would undergo the cervical decompression and fusion in the future. However, our review of the record leads us to the conclusion that this finding by the jury is not supported by the record and is an abuse of the jury’s vast discretion. With regard to general damages in the amount of $125,000.00, we cannot say that this award is an abuse of the jury’s vast discretion. We therefore amend the jury’s award of damages as follows and reverse the trial court’s refusal to award additional sums for loss of consortium and future damages.

With respect to future medical expenses, we find that an award of $100,000.00 is reasonable under the circumstances. Dr. Williams testified that the estimated cost of surgery would be between $94,800.00 and $114,300.00. It is clear that Mr. Lastrapes will continue to incur medical expenses, including prescription medications |8and follow-up care, whether or not he decides to undergo the recommended surgery. We also find that an award of $50,000.00 for future pain and suffering is reasonable.

The law is clear that “damages for loss of enjoyment of life are recoverable upon proof that the party’s lifestyle has been detrimentally altered or that the injured party has been forced to give up activities because of his injury.” Basco, 909 at 667, citing Simms v. Progressive Ins. Co., 38,804 (La.App. 2 Cir. 9/29/04), 883 So.2d 473, writ denied, 04-2871 (La.1/8/05), 893 So.2d 78. We find that the jury abused its discretion in failing to award any amount for loss of enjoyment of life. Mr. Lastrapes testified that he has suffered a loss of his ability to travel, to maintain his yard, and to do many of the other activities he enjoyed most. His pain is chronic and has severely limited his activities. Accordingly, we reverse the rejection of this element of damages and award $20,000.00 for Mr. Lastrapes’ loss of enjoyment of life.

We further find that Mrs. Las-trapes proved that a loss of consortium related to her husband’s injuries. Mrs. Lastrapes testified extensively on the adverse effects this accident has had on her relationship with her husband. She testified that they were no longer intimate and that most of their activities had been curtailed by his chronic pain. Therefore, we award $10,000.00 for Mrs. Lastrapes’ loss of consortium.

DECREE

For all of the foregoing reasons, the judgment of the trial court is affirmed in part and reversed in part. We hereby render judgment in favor of Mr. Lastrapes in the amount of $100,000.00 in future medical expenses, $50,000.00 in future pain and suffering, and $20,000.00 for loss of enjoyment of life. Furthermore, we hereby render judgment in favor of Mrs. Las-trapes in the amount of $10,000.00 for her loss of consortium. Additionally, we decline to award any further attorney’s fees to Mr. |flLastrapes regarding work done on this appeal. All costs of this appeal are assessed to Defendant-Appellant, Progressive Security Insurance Company.

AFFIRMED.