author: KYZAR, Judge.

text:
    Christy ROBINETTE v. OLD REPUBLIC INSURANCE COMPANY, et al.
    CA 17-79
    Court of Appeal of Louisiana, Third Circuit.
    10/4/2017

      Philip E. Roberts Ungarino & Eckert, LLC 600 Jefferson Street, Ste 850 Lafayette, LA 70501 (337) 235-6268 COUNSEL FOR DEFENDANT APPELLANT: Old Republic Insurance Company Joseph Zeno, Jr.
    William H. Eckert Ungarino & Eckert, LLC 600 Jefferson Street, Ste 850 Lafayette, LA 70501 (337) 235-5656 COUNSEL FOR DEFENDANT APPELLANT: Old Republic Insurance Company Joseph Zeno, Jr.
    Keith P. Saltzman Anderson & Dozier P. O. Box 82008 Lafayette, LA 70598-2008 (337) 233-3366 COUNSEL FOR PLAINTIFF APPELLEE: Christy Robinette
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion (S), and Van H. Kyzar, Judges.
   KYZAR, Judge.

[, This matter arose as the result of an accident involving a vehicle driven by defendant, Joseph Zeno, Jr. (Zeno), in which the plaintiff, Christy Robinette (Robi-nette), was a passenger. Defendants, Zeno and Old Republic Insurance Company (Old Republic), appeal 'from the grant of a-Motion for Summary Judgment on the issue of liability in favor of the plaintiff. For the reasons herein, we affirm the judgment of the trial court:

FACTS AND PROCEDURAL HISTORY

On October 21, .2013, the defendant, Zeno, and the plaintiff, Robinette, were involved in an automobile accident in which Robinette- claims to have been injured. On this day, Zeno had driven to Robinette’s school, Blue Cliff College in Lafayette, in order to pick her up for lunch. Robinette got into the passenger side of the vehicle. Though it is disputed how-the argument began, both, parties admit that they quickly entered in to a heated discussion. Zeno asserts in his affidavit that Robinette became verbally abusive,- screaming and cursing-at him as he attempted to exit the parking lot of the school.

Because of this, Zeno states, he attempted to return Robinette to her school rather than continue on to their planned lunch. At this point, Zeno was approaching the exit of the parking lot and was on a downward incline, causing the back of his vehicle to sit higher than the front. It is undisputed that Zeno placed the vehicle in reverse and applied pressure to the accelerator. When the vehicle accelerated in reverse, it collided with the vehicle behind it.

The plaintiff filed suit claiming damages for bodily -injuries as a result of the collision. She asserts that the - accident' was caused solely as a result of the negligence of Zeno as driver of the vehicle. In answer to the petition, defendants | ^admitted that Robinette was a guest passenger at the time of the accident in the vehicle, which was being driven by Zeno, owned by his employer, Genuine Parts Company, and insured by Old Republic. Genuine Parts Company, as owner of the vehicle, was voluntarily dismissed. The remaining defendants allege that the accident was caused solely, or. alternatively in part, by the negligence of the plaintiff-in distracting Zeno as he attempted to operate the vehicle.

On July 21, 2016; Robinette filed a Motion for Summary Judgment on the issues of liability and'insurance coverage in regards to injuries purportedly sustained by Robinette as a result of the accident; At the hearing on that motion, held on September 6, 2016, the parties agreed as to the existence of requisite insurance coverage, Only the 'question of liability- was disputed. After arguments by counsel,: the trial court found that there was no genuine issue of material 'fact and granted Robi-nette’s motion for partial summary judgment, establishing insurance coverage and liability against the défendants. Defendants appeal that judgment as to the issue of liability only,

ASSIGNMENT .OF ERRORS

On appeal, defendants urge only one assignment of error, which states:

The trial court abused its discretion in granting Plaintiffs Motion for Summary Judgment when material issues of fact remain unresolved and by not correctly, applying the burden of proof rule contained in [La.Code Civ.P. art. 996(D)] by failing to construe all--“factual inferences reasonably drawn from. the evidence in favor of the party opposing the Motion” and resolving all doubt “in the opponent’s. favor.” Watters v. Dep’t of Soc. Servs., 2003-0703 (La.App. 4 Cir. 5/14/03), 849 So.2d 724, 731 citing Willis v. Medders, 2000-2507, p. 2 (La. 12/08/00), 775 So.2d 1049, 1050.

OPINION

Appellate courts review summary judg-. ments de novo under the same criteria that governed, the trial court’s consider.ation of whether or not summary judgment |swas appropriate. Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991); Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97); 702 So.2d 818, unit denied, 97-2737 (La.1/16/98); 706 So.2d 979, Beard v. Grey Wolf Drilling Co., 00-345 (La.App. 3 Cir. 11/2/00), 774 So.2d 287. Louisiana’s Code of Civil Procedure Article 966(A)(3) states that summary judgment shall be rendered forthwith after an opportunity for adequate discovery, if “the motion, memorandum, and supporting documents show that there is no genuine issué'as to material fact'and that the mover is entitled to judgment as a matter of law.”

On appeal, defendants argue summary judgment was not appropriate as issues of material fact remain in regards to the question of liability. Defendants also contend that the correct burden of proof rule was not applied, as required by the provisions of La. Code Civ.P., art. 966, which provides, in pertinent part:

D. (1) The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s1 claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

. Defendants maintain that because there are variations in.the accounts of-the event given by Robinette and Zeno, certain material facts remain disputed. They further assert the factual contentions contained in their affidavits were not provided the required deference given to the claims of a non-movant for summary judgment pursuant to La.Code Civ.P. art. 966. This court recognizes the requirement to construe factual inferences that are reasonably drawn from the evidence in favor of the party opposing the motion. See Johnson v. State Farm Ins., 8 So.3d 808, 808 (La.App. 2009). All doubt is to be | ¿resolved in the non-moving party’s favor. Id. However, not all facts or assertions regarding a certain event will be relevant in the consideration of summary judgment.

The threshold question in reviewing a trial court’s grant of summary judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97); 701 So.2d 498, writ denied, 98-50 (La.3/13/98); 712 So.2d 882. Grey Wolf Drilling Co., 774 So.2d at 289. Facts are material, for purposes of summary judgment, if they determine the outcome of the' legal dispute, and the determination of the materiality of a particular fact must be made in light of the relevant substantive law. Id. Thus, summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. Kumpe, 712 So.2d at 882; Grey Wolf Drilling Co., 774 So.2d at 289. Defendants contend that because Zeno and Robinette offer differing accounts, material facts remain in dispute. The following facts, however, are undisputed: 1) at the time of the accident, Zeno was driving the vehicle and Robinette was a guest passenger in said vehicle; 2) the two‘parties were having a heated 'discussion; 3) during this discussion and while attempting to exit the school parking area, Zeno put the truck he was driving in reverse and pressed on the accelerator; and 4) this acceleration caused Zeno’s truck to strike the vehicle behind it.

The claim leveled against defendants in the current proceeding is one of negligence. Defendants argue Robinette bears some percentage of comparative fault for the accident, stating that Robinette began screaming, yelling, and cursing at Zeno “in á very insulting and1 distracting manner” immediately prior to the accident, and these actions make her liable, either solely or in part, as she ^distracted Zeno from driving. No party argues that Robinette struck, obstructed the vision of, or physically interfered with Zeno in his operation of the vehicle at any time.

Louisiana’s case law has consistently held that a driver’s-negligence is not imputed to a guest passenger. Adams v. Sec. Ins. Co. of Hartford, 543 So.2d 480, 485 (La.1989); Jagers v. Royal Indemnity Company, 276 So.2d 309 (La.1973); Gaspard v, LeMaire, 245 La. 239, 158 So.2d 149 (1963); Felt v. Price, 240 La. 966, 126 So.2d 330 (1961); White v. State Farm Mut. Auto. Ins. Co., 222 La. 994, 64 So.2d 245 (1953); Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292 (1945); Squyres v. Baldwin, 191 La. 249, 185 So. 14 (1938); Lawrason v. Richard, 172 La. 696, 135 So. 29 (1931); Churchill v. Texas & Pac. Ry. Co., 151 La. 726, 92 So. 314 (1922); Daull v. New Orleans Ry. & Light Co., 147 La. 1012, 86 So. 477 (1920); Maritzky v. Shreveport Rys. Co., 144 La. 692, 81 So. 253 (1919); and Peterson v. New Orleans Ry. & Light Co., 142 La. 835, 77 So. 647 (1918). A driver’s negligence is not imputable because it is unrealistic to hold that a guest passenger factually has any control or right of control over the motorist with whom he rides. Nowell v. State Farm Mut. Auto. Ins. Co., 576 So.2d 77, 80 (La. Ct. App. 1991), writ denied, 580 So.2d 923 (La.1991). Louisiana law does recognize that a passenger in- a motor vehicle can have fault imposed where there is a joint venture, an independent negligent act by the passenger, or a showing that the rider had actual or constructive .knowledge of a driver’s incompetence or impaired ability to operate the vehicle. This theory has only been used, however, in special and out—| fiof-the-ordinary situations. It has not been used, in.Louisiana or other jurisdictions, to hold a guest passenger subject to comparative fault where the passenger, knowingly or otherwise, entered the vehicle of a driver in a heightened emotional state, as defendants argue herein. There is no precedent in Louisiana law for holding a guest passenger contrib-utorily liable under these conditions.

Defendants cite multiple out-of-state cases to support their contention that Robinette’s contributory negligence remains a genuine issue of material fact. While the conclusions of law reached are not finding upon this court, we will address each of the cited cases as they are easily distinguishable .from the facts presented herein. Defendants cite Kuebler v. Kuebler, 90 A.D.3d 1611, 936 N.Y.S.2d 448 (2011), in which a New York appellate court found that the question of a plaintiff-passenger’s actions in terms of potential comparative fault defeated summary judgment. However, that case involved the failure of a father to supervise his son, an unlicensed driver with a learner’s permit. Id. As that court notes, “A licensed driver supervising an unlicensed driver with a learner’s permit owes a duty. ..to take necessary measures to prevent negligence on the part of the driver with the learner’s permit (see generally Lazofsky v. City of New York, 22 A.D.2d 858, 254 N.Y.S.2d 349). Kuebler, 90 A.D.3d at 1612, 936 N.Y.S.2d 448. The court’s |7analysis centered on the fact that the plaintiff had a clear duty by law, and whether the breach of that duty, supported by evidence, constituted a genuine issue of material fact in the granting of a summary judgment. Id. In the case at hand, Zeno was a licensed and experienced driver whom Robinette, as a guest passenger, had no duty to supervise and, thus, could not be liable for any breach thereof.

Defendants next cite a decision from the Supreme Court of Oklahoma which discusses the possibility of active negligence on the part of a passenger. That court introduces the theory and sets forth the example of passengers who - had been drinking heavily, teasing a newly-licensed driver about his cautious driving, and actively urging him to drive at high speeds in a neighborhood with winding roads. See Snyder v. Dominguez, 2008 OK 53, 202 P.3d 135, 139 (2008). This idea of active negligence comes from common law principles and the Restatement (Second) of Torts (1965), which states that an individual may be liable if he or she knows that another person’s conduct constitutes a breach of duty and gives “substantial assistance or encouragement to the other” to breach that duty. Defendants have offered no evidence that Robinette encouraged Zeno to act negligently or that she assisted him in so doing. There is no showing of Robinette encouraging or substantially assisting Zeno in his decision to place the vehicle in reverse and accelerate while another vehicle was behind his own. Absent such evidence, the theory of active negligence contemplated by the Oklahoma Supreme Court, supra, and put forth by defendants clearly does not apply in this instance.

Defendants finally point to a New Jersey appellate court decision which found that a passenger in a motor vehicle has a duty not to interfere with the |sdriver’s operations. Kubert v. Best, 432 N.J.Super, 495, 515, 75 A.3d 1214, 1226 (App. Div. 2013). Louisiana courts, and other jurisdictions, have found that a passenger can be at fault where there is an independent negligent act by the passenger. Sledge v. Continental Cas. Co., 25,770 (La. App. 2 Cir. 6/24/94), 639 So.2d 805. The Kubert court dealt-with the issue of texting while driving, again in clear violation of local law, ultimately finding summary judgment to be proper on the issue of liability. The court goes on to give examples of actions that might breach a passenger’s duty to not interfere with the driver’s operations, including holding a piece of paper in front of the driver’s face or urging the driver to look at or read a text message or cell phone screen.' Kubert, 432 N.J.Super at 515, 75 A.3d 1214. Defendants do not allege Robinette obstructed Zeno’s view or in any way physically interfered with his operation of the vehicle. None of the cited cases have found an ordinary guest passenger, who has no duty to supervise, at fault for the use of words or phrases that do not relate to the operation of the vehicle or encourage the driver to take his eyes off of the roadway or otherwise act negligently. In other words, no showing has been made, nor does any jurisprudence support, that a passenger may be held liable merely for participating in an emotional or heated discussion .with a driver at the time of an accident.

Defendants proclaim a passenger has a duty to avoid yelling or screaming in such a manner as to distract the driver from operating a vehicle and that Robinette’s actions violated this duty, making her solely or partly at fault in causing the accident. However, as the New Jersey appellate court notes and this court reiterates: It is the primary responsibility of the driver to obey the law and to avoid distractions. Imposing a duty on a passenger to avoid any conduct that might | theoretically distract the driver would open too broad a swath of potential liability in ordinary and innocent circumstances. Courts must be careful not to. create a broadly worded duty and run the risk of unintentionally imposing liability in situations far beyond the parameters we, now face. The Louisiana Supreme Cqurt has shown that it intends to move with caption in .expanding new .areas of delictual responsibility. Edwards v. Louisville Ladder Co., 796 F.Supp. 966, 971 (W.D. La.1992). Acceptance of defendants’ assertion that Robi-nette’s actions of screaming and yelling breached a duty and place her at fault for causing the accident' would require the adoption of a cause of action for comparative fault of a guest passenger more expansive than any recognized in' any jurisdiction in this country.

Robinette did not strike Zeno, encourage him to take his eyes off the road, or do anything to impede Zeno’s operation of the vehicle other than purportedly screaming, yelling, and cursing. To impose liability upon a passenger for such would allow drivers to avoid responsibility for their own actions any -time a passenger acted out of turn. Every conversation has the potential to be distracting, but no court has held that a conversation mitigates a driver’s responsibility to avoid acting negligently. If a motorist is driving a parent and children, and the children are screaming, yelling, or otherwise behaving in a distracting manner in the backseat, is the parent vicariously liable in the case of an accident? Is a passenger who turns up a car radio to a volume that is arguably distracting to be held partially liable for a driver’s negligence? If the song playing loudly on the stereo contains potentially offensive language, is the guest passenger then liable for a driver’s distraction? Clearly not. While this court does not condone the behavior of which [inRobinette is accused, we decline to impose liability here on a guest passenger who- was merely participating in a discussion with the driver, however heated. We find Robinette did not breach any duty, owed to Zeno. A motorist has a duty of care which includes the duty to keep his vehicle under control and to .maintain a proper, lookout for hazards. Clarkston v. Louisiana Farm Bureau Cas. Ins. Co., 07-0158, (La.App. 4 Cir. 7/2/08), 989 So.2d 164. It is the primary duty of the driver to obey the law and avoid distractions. A passenger is entitled to entrust- his safety to the driver. Gaspard v. LeMaire 245 La. 239, 158 So.2d 149 (1963).

Both Zeno and Robinette admit to being engaged in a heated discussion at the time of the accident. Some dispute remains between the parties as to the degree to which the argument escalated. However, even if we fully accept Zeno’s version of the event, this court will not impose liability on Robinette in these circumstances. Zeno, the driver of the vehicle, chose to return Robinette to her school with no request or demand from her. Zeno chose the manner by which he attempted to do so. Zeno undisputedly put the vehicle into reverse and pressed down on the accelerator with no urging or assistance from Robinette. Pursuant to these facts, there is simply no basis in Louisiana law upon which to impose passenger liability. Once the motion for summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Hyman v. E. Jefferson Gen. Hosp., 04-1222 (La.App. 5 Cir. 3/1/05, 4), 900 So.2d 124, 126; Foster v. Consolidated Employment Systems, Inc., 98-948 (La.App. 5 Cir. 1/26/99), 726 So.2d 494, writ denied, 99-0523 (La. 4/30/99), 741 So.2d 14. There must be a genuine or triable issue of relevance and materiality on which reasonable persons could disagree in order to defeat such a motion. Rowley v. Loupe, 96-918 (La. App. 115 Cir. 4/9/97), 694 So.2d 1006, 1008. In the current case, the relevant material facts are before the court and undisputed. As such, the grant of summary judgment on the issue of liability was proper as a matter of law.

DISPOSITION

Por the reasons set forth herein, we affirm the ruling of the trial court on the issue of liability. Costs of this appeal are assessed to defendant-appellants.

AFFIRMED.

      . Sledge v. Cont’l Cas. Co., 639 So.2d 805 (La. Ct. App. 1994) (finding that a father-passenger could be held partially negligent for causing an accident where he asked his 15-year-old son to drive at 3:00 a.m., knowing the teen had gotten less than an hour of rest but would be unlikely to refuse a request from his father, and promptly went to sleep himself, leaving the unlicensed teen driver alone and unsupervised); Adams v. Security Ins. Co. of Hartford, 543 So.2d 480 (La. 1989) (finding that a guest passenger may- be found guilty Of contributory negligence for a failure to protest a driver’s negligence, but only in special circumstances which indicate that a passenger’s protests might have influenced a driver to operate more prudently); Nowell v. State Farm Auto. Ins. Co., 576 So.2d 77 (La.App. 2d Cir. 1991), writ denied, 580 So.2d 923 (La. 1991) (which held a passenger has a. duty to ' avoid exposing himself to risk by riding with an intoxicated driver, if the alcohol-induced impairment of the driver is a substantial cause of the driver’s negligence and if the passenger voluntarily rides with the intoxicated individual or where there is a showing that the driver was impaired to such a degree that his conduct and driving would cause the passenger to know, actually or constructively, of the driver’s condition sp as to support the finding the passenger was comparatively negligent either in riding with the driver or in not protesting the driver’s operation of the vehicle); Daugherty v. Casualty Reciprocal Exchange Ins. Co., 522 So.2d 1323 (La.App. 2d Cir. 1988) (finding recovery by guest passenger was lessened, but not totally' barred, by the- assumption of risk doctrine where - both passepger and driver were high from their joint participation in .drug use over several hours and driver told passenger she was tired and did not wish to drive the rest of the trip).

      . See Adams v. Security Ins. Co. of Hartford, 543 So.2d 480, 485 (La. 1989); White v. State

        Farm Mut. Auto. Ins. Co., 222 La. 994, 64 So.2d 245, 42 A.L.R.2d 338 (1953).

      . Kubert v. Best, 75 A.3d 1214.

      . Id. at 516, 75 A.3d 1214


source: Caselaw Access Project

author: CONERY, Judge.

license: Public Domain

text:
    Jake CHIMENTO v. KDM ELECTRIC/RAPIDES PARISH WORK RELEASE
    17-147
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017

      Donna U. Grodner, Grodner & Associates, 2223 Quail Run, B-l, Baton Rouge, Louisiana 70808, (225) 769-1919, COUNSEL FOR PLAINTIFF/APPELLANT: Jake Chimento
    Robert A. Dunkelman, Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, L.L.P., Post Office Box 1786, Shreveport, Louisiana 71166-1786, (318) 221-1800, COUNSEL FOR DEFENDANTS/APPELLEES: KDM Electric of Alexandria, LLC, The Standard Fire Ins. Co.
    Court composed of-John D. Saunders, John E. Conery, and D. Kent Savoie, Judges.
   CONERY, Judge.

11 Claimant, Jake Chimento (Mr. Chimen-to), appeals the November 9, 2016 judgment of the Workers’ Compensation Judge (WCJ) denying his claim for indemnity benefits, medical benefits, medical expenses, penalties, and attorney fees from his employer KDM Electric of Alexandria, LLC (KDM) and its insurer, The Standard Fire Insurance Company (Standard). Mr. Chimento alleged that on September 25, 2012, he received an electrical shock which precipitated a heart attack and fall from a ten foot ladder. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Chimento’s 1008 Disputed Claim for Compensation was filed on July 11, 2013, against his employer EDM. This workers’ compensation claim is a companion case to Mr. Chimento’s tort suit seeking damages for injuries received in the same incident which occurred on September 25, 2012. In the tort case, the trial court granted KDM’s and Standard’s motion to compel dismissal of Mr. Chimento’s tort claims against the only remaining defendants, KDM and Standard. This judgment in favor- of KDM and Standard in the tort case is also on appeal by Mr. Chimento before this panel, docketed as 17-146, and is addressed in a separate opinion.

Mr. Chimento was incarcerated at the time of the alleged September 2012 incident'and had been working for KDM since February 21, 2011, as an electrician’s helper under the auspices of the Rapides Parish work release program. KDM and Standard filed a motion for summary judgment on September 23, 2014, and a cross-motion for summary judgment was filed by Mr. Chimento on October 27, 2014. The WCJ heard the cross-motions and issued oral reasons on December 2, 2014, denying Mr. Chimento’s motion, and granting KDM and Standard’s | ¡motion which dismissed with prejudice all claims made for both medical and indemnity benefits. A judgment reflecting the WCJ’s ruling was signed on December 16, 2014. Mr. Chimen-to filed a motion for reconsideration/new trial, which was granted by the WCJ after hearing on January 12, 2015, for reasons assigned in open court. Judgment granting a new trial was signed on January 29, 2015.

Trial on the merits in this matter was held on August 4, 2016. A court order had been signed by the WCJ ordering the Department of Corrections (DOC) to transport Mr. Chimento so he could attend the proceedings. However, his counsel provided the WCJ with the address of the wrong DOC facility housing Mr. Chimento, and he was not transported to attend the hearing. In lieu of his live testimony, his two depositions, the first taken April 17, 2014, in connection with this workers’ compensation case, and the second taken February 8, 2016, in conjunction with the tort case, were submitted into evidence without objection by all counsel.

Following the close of testimony, the WCJ allowed the submission of post-trial memoranda by both parties. In his post-trial submission to the WCJ, counsel for Mr. Chimento attached ’documents and made references to documents and testimony that was not introduced into evidence at the trial of the matter. Counsel for KDM filed a motion to strike and sought sanctions. The WCJ issued oral reasons in open court granting KDM’s motion to strike; but denying sanctions. The judgment striking from the record all attachments to Mr. Chimento’s post-trial submission was signed on September 27, 2016.

The WCJ gave oral reasons for ruling on October 26, 2016, finding in favor of KDM and Standard, dismissing Mr. Chi-mento’s claims for indemnity benefits, | ¡¡medical benefits, medical expenses, penalties, and attorney fees. A formal judgment was issued by the WCJ on November 9, 2016, from which Mr. Chimento has timely appealed.

ASSIGNMENT OF ERRORS

Mr. Chimento has assigned the following errors on appeal:

1. The Trial Court erred in finding that Mr. Chimento failed to submit sufficient evidence to. carry his burden of proof. Manifest error on the facts and error of law in failing to allow Mr. Chi-mento a presumption.
2. The Trial Court erred in its evi-dentiary rulings.
The proffered testimony of Jake Chi-mento, III and Keri Chimento Kelly, who are the ádult children of MR.' CHI-MENTO and the expert report of Dr. Glenn Kelly should have been admitted. Error of Fact and law. '
The Trial Court should not have relied upon evidence offered on summary judgment that was not offered at trial.
3. The trial Court erred in making multiple erroneous'findings of fact that are inconsistent with the evidence offered at trial.—Error of fact and law.
4. The Trial Court erred in finding ■because medicaid paid, ■ KDM is “absolved’’ from reimbursing the Medicaid lien [,]■ and from paying the balance owed to the health care providers.—Error of fact and law.
. 5. The Trial Court Erred in finding • the Medicaid billing was'all. paid, where St. Cabrini had to write off $164,476.91 as well as other providers.—Error of law
6. The Trial Court erred in failing to award indemnification.—Error of law,
7. The Trial Court Erred in finding the attorney time and expense offered post-trial, but before judgment was untimely.—?Error of law..

JjJjAW and discussion

Standard of Review

The standard of review to be utilized in workers’ compensation cases was discussed in LeBlanc v. Wal-Mart Stores, Inc., 15-558, pp. 10-11 (La.App. 3 Cir. 11/4/15), 177 So.3d 1125, 1132-33, noting:

The standard of review in a workers’ compensation' claim is ‘well established and was succinctly stated in Bracey v. City of Alexandria; 13-16, pp. 2-3 (La. App. 3 Cir. 6/5/13), 115 So.3d 1211, 1214-16, writ denied, 13-1934 (La. 11/8/13), 126 So.3d 455 (quoting Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La. App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La. 6/14/02), 818 So.2d 784):
Factual findings in workers’ compensation cases are subject to the manifest error'or clearly wrong standard of appellate review. ’ Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94); 633 So.2d 129. In applying the manifest errór standard, the appellate court must determine not whether the trier of fact was right or wrong, but .whether the factfinder’s conclusion was a reasonable one. Stobart v. State, 617 So.2d 880,(La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of • fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).
“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). “[T]he manifest error standard of appellate review applies in workers compensation cases and great deference is accorded to the [workers’ compensation judge’sl.faetual findings and reasonable evaluations of credibility.” Central Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ 5denied, 04-315 [ (La.4/2/04), 869 So.2d 880 ] (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61)

Claimant’s Burden of Proof.

The WCJ in its written reasons for ruling correctly defined the burden of proof required of a claimant seeking benefits from his employer under the. Louisiana Workers’ Compensation Act and stated:

An employee is entitled to workers’ compensation benefits if the employee receives personal injury- by accident arising, out of and in the course of employment. La.R.S. 23:1031(A), McLin v. Industrial Specialty Contractors, Inc., 2002-1539 (La. 7/2/03), 851 So.2d 1135, Scott v. Super 1 Foods, 45,636 (La. App. 2d Cir. 9/29/10), 48 So.3d 1133. An employment-related accident is an unexpected or unforeseen, actual, identifiable, precipitous event happening suddenly or violently, with or -without , human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration. La.R.S. 23:1021(1).
Although the Workers Compensation Law is liberally construed in favor- of coverage, the claimant’s burden of proving an accident is not relaxed. The claimant must prove by a preponderance of the evidence that that an accident occurred, and the resulting disability is related- to the on-the-job injury. The worker must also prove this by a preponderance of the evidence, and prove, as well, by a preponderance of the evidence, that medical care received was a result of injuries sustained in any alleged accident.

A claimant has to establish a work-related accident by a preponderance of the evidence, as outlined by the supreme court in Bruno v. Harbert Int'l Inc., 593 So.2d 357 (La.1992). Bruno further stated that “[a] worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by'the circumstances following the alleged incident.” Id. at 361.

IsAssignment of Errors One and Three

Mr. Chimento claims that the- WCJ erred in finding that he failed to carry his burden of proof to show that he received an electrical shock which precipitated his heart attack and fall from a ten foot ladder, causing alleged injuries to his head and neck. We do not agree and find that the record more than adequately supports the WCJ’s conclusion that Mr. Chimento did not receive an electrical shock, but suffered a heart attack due to severe coronary artery disease, which caused his fall and the resulting alleged injuries to his head, and neck.

The WCJ in its reasons for ruling referenced affidavits from KDM employees'that were submitted in support of KDM and Standards’ motion for summary'judgment Which indicated “that at- the location Mr. Chimento was working which was the ceiling area, that this area in the ceiling hé was working was not electrified and all the electricity to that area' had been cut off.” Mr; Chimento argues that this was improper as the affidavits were not offered into evidence at trial on the merits. However, as discussed, below, .the testimony and evidence submitted at trial more than adequately support the WCJ’s conclusion that the conduit pipe Mr, Chimento. was working on at the time of the accident did not contain any wires and was not electrified. .

Testimony of Randall Scott Lemons

Randall Scott Lemons is the ówner of a company that provides environmental and safety services. He testified at trial as' an expert in the area of OSHA regulations based on his certification by the Department of Labor to teach OSHA safety. Part of his business operation is to conduct inspections on behalf of clients after an accident on a job site, determine if an OSHA investigator should be informed, and then render a report.

|70n September 25, 2012, at approximately 10:44 a.m., Mr. Lemons was informed of Mr. Chimento’s accident at the Mid-South Occupational Plant. Radeliff Construction (Radeliff), the general contractor, requested that Mr. Lemons investigate and he arrived at the scene at approximately 11:30 a.m. Mr. Lemons’ mission for Ratcliff was to determine if OSHA'should be called to investigate the accident. -

'When Mr. Lemons arrived at the scene, Mr. Chimento had just been taken to the hospital by Acadian Ambulance. Due to the blood in the area, Mr. Lemons did not climb the ladder to check the ceiling area where Mr. Chimento had been working. Mr. Lemons was directed to Brandon Wynn, a. former work release inmate who had completed his sentence and was working full time for KDM as a beginning electrician, a position above an apprentice but not yet a full time electrician. Mr. Wynn was working with Mr. Chimento and was the closest individual to the ladder at the time of the accident.

According to Mr. Lemons’ trial testimony, “I just wrote down, what I was told,” by Mr. Wynn which is stated below in answer to cross examination by counsel for KDM:

Q All right. And so, that part yoü wrote down here is, “employee was on ladder and received electric shock.” Okay. And then it says, “employee did not initially fall, but sat on top of ladder.” That’s correct?
A That’s correct.
Q Employee said he could not see and passed out?
A. That’s correct.
Q When employee passed out he fell approximately 10 feet from the ladder on to the side of the banister then to the concrete floor?
A That’s correct.
IsQ. Mr. Wynn gave him aide. So in your report the employee told Mr. Wynn that he could not see, correct?
A That’s correct.
Q There’s nowhere in your report where it says that the employee told Mr. Wynn that he received an electric shock is there?
A No.

Mr. Lemons further testified that he did not question Mr. Wynn about “how he went about determining that this employee had been subject to an electric shock.” Mr. Lemons then observed and photographed the scene, which had not been disturbed since the accident occurred. He photographed the round recessed ceiling lights which were illuminated. He indicated he was unsure if he met with Steve Martin, vice ¡president of KDM, on the day of the accident, because it was a long time ago, but Mr. Martin was at the meeting held the next day when the OSHA inspection occurred..

Mr. Lemons testified that he was not an accident investigator. He had never qualified as an expert or testified in court as an accident investigator or rendered any conclusions about “whether a person was or was not subject to electric shock.” His only involvement in the accident- was to determine if OSHA should be involved, and in this case, he determined that OSHA should be notified.

After Mr. Lemons was qualified as an expert in the area of OSHA regulations, he gave his opinion on the OSHA investigation. He testified when questioned by counsel for KDM as follows:

Q - Okay. Now if an employee OSHA comes in and does an investigation and if they find that that employee was exposed to an |9electric shock hazard and that it caused him to have a myocardial infarction or heart attack, that it caused him to fall off a ladder, sustain injury would that be sanctionable where they could issue some kind of sanctions or fines against KDM?
A Yes.
Q Okay, and you were aware that someone after you advised your client to bring OSHA in someone from OSHA came out and conducted an investigation?
A Yes.
Q Did you conduct any follow up at any time to determine if OSHA had in fact issued any types of fines or sanctions against KDM?
A Well on that aspect, what I’d like to elaborate a little bit. Once I finish with my initial investigation,'it was basically on to KDM. OSHA came in I was aware thát they came in because they had to come in to make sure, we had shut the job site down. And they had to come in and look at everything they told me to leave everything the way it was, don’t touch anything. And then I went back and checked eventually because, if you want to look at it, I don’t know if we can put that Exhibit in there. But the inspection detail from OSHA I wanted to get an update on where we were at and it shows that case had been- closed. It didn’t show any type of violations or monetary fines or anything like that.

Mr. Lemons then explained that there is a Department of Labor website, which is part of the public record, that contains records of all companies and the results of any OSHA investigations conducted after an alleged work place incident involving that company. The inspection detail from OSHA admitted into evidence at trial indicated the OSHA investigation was opened on September 26, 2012, and closed on November 16, 2012, without any finding of sanctions.

Mr. Lemons further testified:

And if there was a finding of some type of electrical hazard, that led to this injury, would you just see closed there or would you see something different?
IkA. You’d see something different.
Q What would you see?
A You’d see, it’ll list the code of federal regulations that was violated, it might be say lock out tag out ánd show what was affected in the statute and the fine. •
Q Okay, so again with your -knowledge of OSHA compliance requirements if there was an electrical shock that it had . been determined by OSHA to have caused this accident, there would have been some violation of a particular federal regulation, code of federal regulation with the fine. And you’d be able to find that on this computer?
A Yes. It could have been several.
Q But the fact that it’s closed indicates to you that there was no...
A The case is closed there’s nothing, no finding of any...
Q [Tjhere was no finding any electrical safety violation there?
A Right, no finding of anything that would cause a violation. OSHA also came the next day to give, they wouldn’t open the site back up if it wasn’t safe to work
Q Other than Mr. Wynn’s statement are you aware of there being any other evidence that would indicate that this man was shocked?
A No.

Mr. Lemons’ report indicated that the OSHA inspector identified as “Robin” also conducted a voltage test at the incident site the day after the accident. He stated, “[i]n Robin’s opinion was no power.”

Testimony of Steven Matthew Martin

Steven Matthew Martin, Vice—President of KDM, also testified at trial. Mr. Martin came .to the scene after the accident and was aware of the statement made by Brandon Wynn to Mr. Lemons that Mr. Chimento had allegedly received an electrical shock. Upon , his arrival .at-the scene, and shortly after Mr. Chimento was transported to the hospital, Mr. Martin instructed Travis Brazil, Mr. Wynn’s |nimmediate supervisor, to climb up the ladder with a voltage meter to test the circuit arid make sure the electricity to the area was riot on. Mr. Wynn and a supervisor from Radcliff, the general contractor, were also present when Mr. Brazil checked the area where Mr. Chimento had been working prior to the accidéñt and confirmed there was no electricity to the area.

Mr. Wynn was required to miake an accident report by 'KDM as part of its policy and procedures. Although he had initially told Mr. Lemons that he thought Mr, Chimento had received a shock, after witnessing the testing of the area for voltage, he retracted his statement made to Mr. Lemons shortly after the incident that Mr. Chimento had received an electrical shock while working on the ceiling while on the ladder.

Mr, Martin also confirmed when questioned by the WCJ that the area where Mr. Chimento was working was new construction and involved the installation of fluorescent lighting between two air conditioner vents. The other fluorescent light in the area was not illuminated, as the electricity had been turned off on that circuit. The round lighting fixtures which appear to be lighted in the photographs of the area were also discussed with the WCJ. These lights were identified as recessed lighting, and Mr. Martin testified that they were on a different circuit from the fluorescent fixtures where Mr. Chimento was working, which had no electrical power at the time of the accident.

Mr. Chimento’s Deposition Testimony

Mr. Chimento did not testify at the trial due to an error in the paperwork that would have provided him the opportunity to appear. Instead, all parties agreed to 112allow the submission' of Mr. Chimento’s two depositions in lieu of trial testimony. The first deposition was taken on April 17, 2014, and the second taken on February 8, 2016.

In the first deposition, taken in connection with this workers’ compensation ease, Mr. Chimento testified that he had no memory of the accident. He stated:

Q.. Now, do you remember. anything about the accident itself, what happened to you on that day?
' A. I know what people told me.
Q. We, I’m trying to find you, first of all, what you have a specific recollection of. That’s all gone now?
A. The only thing I know-is what I was informed had happened,

However in the second deposition on February 8, '2016, Mr, Chimento testified that he remembers getting “hit in [his] hand with some electricity.” However, later in his deposition when he was questioned about what he was doing at the time of the incident, he testified “I wasn’t pulling pipe, I was putting pipe in.” Mr. Martin testified at trial that “[p]ipe is conduit.” Mr.^ Chimento’s deposition testimony also indicated that'despite his counsel’s assertions that wires were in the pipe, he stated “they [the wires] were never pulled in at the time I was there.”

When Mr. Martin was questioned'about the testimony of Mr. Chimento, he confirmed that there were no electrical wires in the conduit that Mr. Chimento was installing:

Q And so he’s putting conduit up above these acoustic tiles?
A Yes, sir.
Q That don’t have any wires in-them yet, right? .
A That’s correct.

LsMr. Chimento’s testimony alone, as stated in his depositions, fails to meet the two required elements necessary to meet his burden of proof required by. the jurisprudence articulated in Bruno, “(1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Bruno, 593 So.2d at 361.

The WCJ, in its reasons for ruling, made a credibility determination and found that the testimony of Mr, Lemons and Mr. Martin controverted the .evidence and statements submitted in support of Mr. Chimento’s claim that he received an electric shock that eaused his heart attack. The WCJ found in its oral reasons for ruling:

I find the testimony of Mr. Lemons and Mr. Martin to be much more credible than the assertions made by Mr. Chi-mento, when a review of the medical records indicate that there’s no indication of any electric shock except for the purported statement of Mr. Wynn. But he did, Mr.-Wynn himself, did change his own statement, and possible records from Acadian-Ambulance that indicated ,a possible electric shock. And then there are photographs introduced into evidence of Mr, Chimento,. where Mr. Chi-mento alleges he has some burn injuries on his hands, but Mr. Chimento is a ley [sic], person and there’s no medical corroboration, particularly from Dr. Haj Murad in his deposition, that Mr. Chi-mento- had any burn injuries on his hands or anywhere else on his body as-a result of being electrocuted on the date in question. .

We therefore Arid that the "record more than amply supports the WCJ’s ruling that Mr. Chimento failed to carry his burden of proof that an electric shock caused- his heart attack, subsequent fall from the ladder, and alleged injuries to his head and neck. .

Assignment of Error Two

Mr. Chimento claims the WCJ erred when it denied the addition of two witnesses, Jake Chimento, III, and Keri Chimento Kelley, who are the adult luchildren of Mr. Chimento, as well as the expert report of Dr. Glenn" Kelly. The WCJ found that this case was approximately four years old at the time of trial. Mr." Chimento had tried unsuccessfully to stay the trial while 'he whs incarcerated, but the WCJ denied the motion to stay. Writs were denied by a panel of. this court in a ruling dated January 26,2016. • .

1 Therefore, Mr. Chimento knew from that time forward that the WCJ intended to proceed with trial, which was fixed for August 4, 2016. Several scheduling orders had been issued by the WCJ during the pendency of these proceedings, and each required that all pre-trial statements and witness lists be submitted to the1 WCJ and opposing counsel thirty days before trial. The WCJ ■ and opposing counsel received Mr. Chimento’s witness - list three days before trial, which listed for the first time Mr. Chimento’s adult children, Mr. Chi-mento, III, and Ms. Kelley. Although the WCJ and opposing counsel also received RDM’s witness list three days before trial, the witness list of KDM had no new witnesses listed. Mr. Chimento claimed that to exclude the two new witnesses was unfair as KDM had possible notice from subpoenas issued to the new witnesses and therefore was not surprised by their addition. The WCJ sustained RDM’s objection stating the following, “That’s why there’s a Court Order. That’s what Court orders are all about. I need pretrial statements 30 days before trial, not three days before trial, not the day of trial, that avoids all the problems we ran into this morning.”

The WCJ further excluded “an affidavit” from a Cardiologist, Mr. Glenn P. Kelly, based on objection of counsel for KDM that he did not receive the document until the day before trial. The document was also not submitted to the WCJ until |1Bthe day before trial, and was not actually an affidavit, but • a June 10, 2016 letter to counsel for Mr. Chimento from Dr. Kelly. The doctor does not say he has ever examined Mr. Chimento and further states “based on our discussion, I render the following opinion.”

In excluding the document, the WCJ stated, “I’ll sustain the objection, if this is offered as expert testimony, there is no way I’ll have the ability to judge the qualifications or whoever this Kelly individual is to satisfy my own self as a court.” The WCJ then denied Mr. Chimento’s request to submit the doctor’s curriculum vitae. Both the testimony of the two witnesses and Dr. Kelly’s June 10, 2016 letter were proffered for the record on appeal.

A panel of our sister circuit in Vernon v. Wade Correctional Inst., 26,053, p. 5 (La. App. 2 Cir. 8/19/94), 642 So.2d 684, 688, discussed the application of La.Code Civ.P. art. 1551 which “gives a court wide discretion to provide for implementation of a pretrial order and to insure that the terms of the pretrial order are enforced. The theory inherent in pretrial procedure is the avoidance of surprise and the allowance of the orderly disposition of the case.” Based on the record before us we find the WCJ did not abuse his discretion in sustaining RDM’s objections to the witnesses and document untimely disclosed as per the WCJ’s pretrial order and find assignment of error two without merit.

Assignment of Errors Four, Five, and Six

Mr. Chimento argues that the WCJ erred in failing to award him any medical expenses or indemnity benefits. As previously stated, the WCJ found that Mr. Chi-mento failed to establish by a preponderance of evidence that he was electrocuted, which resulted in a heart attack, subsequent fall from a ladder, and alleged injuries to his head and neck.

| ujThe WCJ further found in its reasons for ruling:

[Tjhere’s no evidence in the record anywhere that he has any disability from anything that happened on that day, particularly any injuries to his head in the fall from the ladder; moreover, he’s incarcerated. If there were such evidence he would not be entitled to any indemnity benefits and he’s not entitled to any medical expenses. There were no medical bills introduced into evidence, say, for a possible bill from Neurology and Sleep center Dr. Zeibo, but there’s no indication in those medical records that anything there had to do with any incidents that occurred on September 25th of 2012 in particular, since there’s been a lack of evidence establishing any electrocution. There are Kurby [Kirby] Pharmacy bills, but all of those dates of services there predate the incident. There was introduced into evidence a medicaid lien of $15,524.13 for his time, initially, at Cabrini Hospital. Of course, having found that he failed to prove by a preponderance of the evidence that he had an electrocution injury, these bills are not recoverable.

In support of its reasons, the WCJ properly cited the supreme court case of Benoit v. Turner Indus. Group, L.L.C., 11-1130 (La. 1/24/12), 85 So.3d 629. The Louisiana Supreme Court in Benoit discussed both medical expenses paid and written off by Medicaid. In the case of medical expenses paid by Medicaid, the supreme court provided:

Reading the statute as a whole, it is clear that under La.R.S. 23:1212(A) [] the payment of medical expenses by Medicaid extinguishes any claim for the employee against the employer for those expenses. La.R.S. 23 1212(B) [] carves out a narrow exception, whereby the state is granted a right to recover these expenses from the employer.

117⅞ at 632.

The Benoit Court also held that medical expenses written off by Medicaid were also not recoverable by an employee against an employer and reversed the written off amount of $422,043.59 previously awarded by the WCJ in that case stating:

Medicaid is a free medical service, and no consideration is given by a patient to obtain Medicaid benefits. As a result, claimant would receive an improper windfall if he was allowed to recover for medical expenses which have been reduced by health care providers as a result of their contractual arrangements with Medicaid. Such double recovery of damages is not permitted under Louisiana law. See Gagnard v. Baldridge, 612 So.2d 732 (La.1993) (“Double recovery would be in the nature of exemplary or punitive damages which are not allowable under Louisiana law unless expressly provided for by statute”).

Id. at 635.

In this case, the WCJ noted that there was no actual bill from the hospital in the record, but there was an indication of medical payment by Medicaid while Mr. Chimento was in the hospital, including the bill from Acadian Ambulance. The WCJ also found, on the last page of the bill paid by Medicaid, that “services had been provided under Louisiana’s Medicaid program, and payable pursuit [sic] to that program, so then again, as well under the Benoit case, there could never be a recovery for any benefits, any medical expenses paid.”

Accordingly, the WCJ concluded, “This would absolve KDM Electric from the responsibilities for paying any sort of medical bill that may be associated with any head injury sustained by Mr. Chimento from his fall off the ladder on September 25, 2012.” We agree and find the WCJ correctly dismissed all claims made by Mr. Jake Chimento with prejudice and at his costs.

[ Assignment of Error Seven

Counsel for Mr. Chimento assigns as error the WCJ’s ruling that the submission of a request' for attorney fees was untimely and argues that La. Code Civ.P. art! 2088, the divesting of jurisdiction of a trial 'court, or in this case the WCJ, 'does not apply to workers’compensation cases. Mr. Chimento argues that the request for attorney fees was submitted before final judgment, was signed, and was therefore timely.

Louisiana Revised Statute 23:1201(F) governs, the award of attorney fees in a workers’ compensation case. Louisiana Revised Statute 23:1202(F)(2) further provides, “This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or. insurer had no control”. The WCJ dismissed .all claims made by Mr. Chimento, and therefore no attorney fees award, is recoverable. Accordingly, Mr. Chimento’s assignment of error seven is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the Workers’ Compensation Judge dat-. ed November 9, 2016, is affirmed in, its entirety, dismissing-with prejudice, and at plaintiffs sole cost all claims made by Jake Chimento against KDM Electric of Alexandria, LLC, and its insurer The Standard Fire Insurance Company. All costs of this appeal are assessed to the plaintiff, Jake Chimento.

AFFIRMED.

      . The WCJ provisionally admitted Mr. Lemons' report over the objection of KDM. However, the WCJ did not allow Mr. Lemons to state his opinion about whether or not Mr. Chimento has received an electrical shock, as that was beyónd his expertise.

      . The WCJ had issued a court order for Mr. Chimento to appear at the hearing, but due to an error made by counsel for claimant, ■ the wrong DOC was served with the order for transport,

      . Chimento v. KDM Electric of Alexandria, 15-1200. (La.App. 3 Cir. 1/26/17).

      . Louisiana Revised Statutes 23:1212(A) provides (emphasis added):
      Except as provided in Subsection B, payment by any person or entity, other than a direct payment by the employee, a relative or friend of the employee, or by Medicaid or other state medical assistance programs of medical expenses that are owed under this Chapter, shall extinguish the claim against the employer or insurer for those medical expenses.

      . Louisiana Revised Statutes 23:1212(B) provides (emphasis added), “Payments by Medicaid or other state medical assistance programs shall not extinguish these claims and any payments made by such entities shall be subject to recovery by the state against the employer or insurer.”


author: EZELL, Judge.

text:
    Jeffrey BROUSSARD v. ASCO VENTURE HOLDINGS, et al.
    WCA 17-90, WCA 17-91
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017

      Kim Purdy Thomas, Patrick F. Cole, Ann Rene Shores, Thomas, Soileau, Jackson, Baker & Cole, L.L.P., 401 Edwards St., Suite 2015, Shreveport, LA 71101, (3Í8) 216-5058, COUNSEL FOR DEFENDANTS/APPELLANTS: Liberty Mutual Insurance Co., Asco Venture Holdings
    Lawrence N. Curtis, P.O. Box 80247, Lafayette, LA 70598-0247, (337) 235-1825, COUNSEL FOR PLAINTIFF/APPEL-LEE: Jeffrey Broussard
    Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard - Ezell, Judges.
   EZELL, Judge.

■ hAsco Venture Holdings and its insurer, Liberty Mutual Insurance Company (herein after collectively referred to as “Defendants”), appeal the decision of the workers’ compensation judge below awarding Jeffery Broussard $25,468.18, plus penalties and attorney fees, for Defendants’ failure to fully pay a prior judgment against them. For the following reasons, we affirm the decision of the workers’ compensation judge.

Mr. Broussard was injured while working as a truck driver for ASCO in 2004. The Defendants paid him workers’ compensation benefits from the time of his accident through the present time. In 2007, Mr. Broussard’s orthopedic surgeon recommended he lose weight so that he could safely undergo back surgery for his 2004 injuries. After several attempts through various methods over the next few years, four doctors, including two of Defendants’ own second medical opinion physicians, recommended bariatric surgery to facilitate Mr. Broussard losing weight. Despite their own doctors “strongly recommending]” the surgery, Defendants twice failed to approve it, making Mr. Broussard financially responsible for the surgery, which was performed in July of 2009. Mr. Broussard eventually filed a 1008 claim form seeking to force Defendants, to pay the costs of his treatment.

In August of 2009, a workers’ compensation judge ordered Defendants to pay Mr. Broussard for “all medical bills incurred, but not yet paid” stemming from the workplace accident, specifically listing bills incurred that totaled $58,336.91, including the cost of the bariatric surgery. Mr. Broussard was also awarded penalties and attorney fees in the amounts of $8,000.00 and $16,000.00, ^respectively. Defendants did not appeal that judgment. Rather than seeking review or paying the judgment as ordered, Defendants instead directly paid the medical providers listed in the judgment at discounted fee schedule rates, rather than the full amounts ordered.

In December of 2009, Mr. Broussard filed the current 1008 claim form, seeking enforcement of the judgment and penalties and attorney fees for Defendants’ failure to fully pay. After several delays, the workers’ compensation judge ruled that the Defendants underpaid the 2009 judgment by $25,468.18 and that the underpayments were not due to any cause beyond Defendants’ control. The workers’ compensation judge further ordered Defendants to pay penalties and attorney fees of $6,112.36 and $15,000.00, respectively. From that decision, Defendants appeal.

On appeal, Defendants assert six assignments of error. Defendants claim that the workers’ compensation judge erred in: ordering judgment in Mr. Broussard’s favor in the amount of $25,468.18; in failing to apply the workers’ compensation fee schedule to the 2009 judgment; in denying their exception of no right of action; in failing to apply La.R.S. 23:1212; in denying Defendants’ motion to modify the 2009 judgment; and in awarding Mr. Broussard penalties and attorney fees.

Non-payment of Judgment

Defendants’ first two assignments of error claim that the workers’ compensation judge erred in awarding Mr. Broussard $25,468.18, as they assert the workers’ compensation judge should have applied the workers’ compensation fee schedule to Mr. Broussard’s medical bills. Defendants assert that , they have fully | ^complied with the 2009 judgment if the fee schedule is applied. Because those assignments of error overlap, we will address them together.

As noted in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La. 7/1/97), 696 So.2d 551, 556 (alteration in original):

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La. 2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, p. 4-5 (La. 1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate- court must determine not whether the triér of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman, 93-1530 at p. 5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two ■ permissible views- of the evidence, a- factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La. 1990).

The reasoning for a defendant’s failure to pay a final, nonappealable judgment within thirty days is a finding of fact subject to the manifest error standard of review. Wilzcewski v. Brookshire Grocery Co., 10-1148 (La.App. 3 Cir. 3/16/11), 59 So.3d 530.

Defendants argue that Mr. Brous-sard’s medical expenses should have been reduced to the amount recoverable under the workers’ compensation fee schedule as mandated by La.R.S. 23:1203(B). However, when an employer denies a claim, the employer ;can be required to' pay the actual medical expenses incurred by its employee and cannot avail itself of the fee schedule. Louviere v. Food & Fun, Inc., 06-469 (La. App. 3 Cir. 10/11/06), 941 So.2d 155; Smith v. Roy O. Martin Lumber Co., 03-1441 (La.App. 3 Cir. 4/14/04), 871 So.2d 661, writ denied, 04-1311 (La. 9/24/04), 882 So.2d 1144.

|/This is because claimant is then forced to fund the costs of medical treatment himself and because, if the employer denies the claim from the outset, it has no right to pre-approve any treatment. La. R.S. 23:1142(E); Smith v. Roy O. Martin Lumber Co., supra. Since Defendant has continuously denied its liability, . it is liable for the actual medical expenses incurred by Plaintiff.

Lemons v. Georgia Pac. Corp., 42,950, p.11 (La.App. 2 Cir. 2/13/08), 976 So.2d 307, 314, writ denied, 08-587, 08590 (La. 5/2/08), 979 So.2d 1288, 1289.

As noted above, Defendants continuously denied-Mr. Broussard’s claims for bariatric surgery. He was therefore forced to unilaterally schedule the surgery at his own expense. Because they denied the claim, the prior workers’ compensation judge ruled that, the Defendants could not benefit from the fee schedule. Defendants did not appeal that decision.-

Moreover, we note that the bills that were the subject of the 2009 judgment are not truly at issue in the current litigation, as that decision is not currently before this court. Rather, what is in dispute here is whether Defendants actually complied with that 2009 judgment as ordered. It is clear and uncontested that Defendants failed to tender payment in accordance with the 2009 judgment. Instead, Defendants attempted what can only be described as an “end run” around that judgment by unilaterally paying the medical bills described therein at the reduced fee schedule rates, rather than the higher priced bills incurred by Mr. Broussard and specifically ordered to be paid in the judgment. To reiterate, Defendants paid the fee schedule amounts after being ordered to pay the fall amounts, in direct contravention of that judgment. Their partial payments did not satisfy that judgment. Though the Defendants could have sought to appeal the 2009 judgment, Defendants did not, and did not seek to modify the judgment until 2015, years after the judgment became final, years after they failed to comply with the judgment, Rand years after Mr. Broussard filed his disputed claim .for compensation for. their failure to pay.

Defendants claim that the effect of this court enforcing the 2009 judgment would amoúnt to a windfall for Mr. Broussard. However, we note that had the Defendants timely paid the judgment to Mr. Brous-sard, as rendered, that would not be the case. Defendants created that situation when they, of their own accord, paid the medical providers at the lower fee schedule rates, despite being directly ordered not to. Prior to that action on their part, the bills were Mr. Broussard’s alone, as Defendants had denied his claim for baria-tric surgery. Defendants did not approve Mr. Broussard’s .bariatric surgery, despite the fact that two of their own second medical opinion physicians recommended the surgery. The workers’ compensation judge ruled in 2009 that the Defendants could not avail themselves of the fee schedule, at that time, because of this denial and the fact that Mr. Broussard would have been forced to cover the cost of the procedure himself, but for its 2009 ruling. Again, . Defendants did not appeal that 2009 decision.

We find no error in the current workers’ compensation judge’s determination that 1 the Defendants should not be able to afford themselves ■ the benefits of the fee schedule now, for failing to comply with a prior judgment that specifically denied its use. The fact that medical providers accepted the lesser amounts from the Defendants does not change the content of the 2009 judgment against them, nor the very specific awards, listed therein. Defendants should not be afforded their own windfall for willfully failing to comply with the 2009 judgment as written. These assignments of error are devoid of merit. •

IfiWo Right of Action

The Defendants next claim that the workers’ compensation judge erred in denying their exception of no right of action, claiming that Mr. Broussard is not a proper party to bring the action for the underpayment of 'the judgment. We disagree.

Whether a right of action exists is a question of law requiring a de novo review. Guidry v. East Coast Hockey League, Inc., 02-1254 (La.App. 3 Cir. 3/5/03), 844 So.2d 100, writs denied, 03-1457, 03-1469, 031471 (La. 11/21/03), 860 So.2d 543 (citing Mississippi Land Co. v. S & A Properties II, Inc., 01-1623 (La.App. 3 Cir. 5/8/02), 817 So.2d 1200).

The 2009 judgment set forth a specific amount to be paid to Mr. Broussard, $53,336.91, based on specific medical expenses considered by' the court at that time. Mr. Broussard’s health care providers are not parties to this suit, nor were they parties to the prior claim that, gave rise to the 2009 judgment. That judgment did not order the Defendants to pay the medical providers,, it was granted in favor of Mr. Broussard alone. This assignment of error is without merit.

Offsets under Louisiana Revised Statutes 23:1212

The Defendants next claim that the workers’ compensation judge erred in failing to apply La.R.S. 23:1212 for payments made to medical providers from other sources. Louisiana Revised Statutes 23:1212(A) provides that:

Except as provided in Subsection B, payment by any person or entity, other than a direct payment by the employee, a relative or friend of the employee, or by Medicaid or other state medical assistance programs of medical expenses that are owed under this Chapter, shall extinguish the claim against the employer or insurer for those medical expenses. This Section shall not be regarded as a violation of R.S. 23:1163. If the employee or the employee’s spouse actually pays premiums for health insurance, either as direct payments or as itemized deductions from their salaries, then this offset will only apply in the same percentage, if any, that the employer of the 17employee or the employer of his spouse paid the health insurance premiums.

As noted in Lemons, 976 So.2d at 314,

This provision is not self-operating. Authement v. Wal-Mart, 02-2434 (La. App. 1st Cir. 9/26/03), 857 So.2d 564. The employer must plead its La. R.S. 23:1212 offset and prove it with evidence showing that a payment of a certain amount of the employee’s medical expenses was made by a person other than the employee, a relative or friend of the employee. Id.; Gros v. Gaudin, 02-309 (La.App. 5th Cir.10/16/02), 831 So.2d 304.

There is nothing in the record which indicates that the Defendants pled or asserted any rights under La.R.S. 23:1212 prior to the 2009 judgment. Again, it seems as though the Defendants are seeking to relitigate the 2009 judgment they did not appeal. Moreover, the workers’ compensation judge in the instant matter considered the Defendants’ current La. R.S. 23:1212 claims and found that the Defendants did not sufficiently prove them at trial; There is nothing in the record before this court indicating that that finding is in error.

Modification of Judgment

The Defendants next claim that the workers’, compensation judge erred in failing to modify the 2009 judgment against them. The Defendants claim that under La.R.S. 23:1310.8(A)(1), the workers’ compensation judge has broad discretion to modify or amend a judgment. Louisiana Revised Statutes 23:1310.8(A)(1) provides that the “jurisdiction of the workers’ compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified.” As noted in Gabriel v. Lafourche Parish Water District, 12-797 (La.App. 1 Cir. 82/25/13), 112 So.3d 281, 285, writ denied, 13-653 (La. 4/26/13), 112 So.3d 848 (footnote omitted):

The modification power of LSA-R.S. 23:1310.8(A) and (B) exists for the purpose of modifying awards due to a change in the worker’s condition; Because changes in medical condition and disability status are dynamic and ongoing by their nature, the legislature enacted LSA-R.S. 23:1310.8(A) and (B) to afford needed flexibility to ensure that benefits correspond to such changes. Res judicata thus cannot preclude litigation seeking a change in the amount of compensation benefits based upon a change in disability. Chaisson v. Central Crane Service, 2010-0112 at p. 944 So.3d at 888 n. 6.

A judgment of the workers’ compensation judge can only be modified “on the ground of a change in conditions.” La.R.S. 23:1310.8(B); See Anzalone v. Allstate Ins. Co., 97-866 (La.App. 1 Cir. 4/8/98), 714 So.2d 18, writ denied, 98-2180 (La. 11/13/98), 730 So.2d 939; Gabriel, 112 So.3d 281. Nothing in the record indicates that Mr. Broussard’s condition has changed or that his right to workers’ compensation benefits was being relitigated in any way.

Moreover, La.Code Civ.P. art. 1951 provides, in pertinent part: “On motion of the court or any party, a final judgment may be amended at any time to alter the phraseology of the judgment, but not its substance, or to correct errors of calculation.”

Pursuant to La. C.C.P. art. 1951, amendment of a final judgment is permissible, as long as it does not alter the substance of the judgment. Greene v. Highlands Ins. Co., 14-223 (La.App. 3 Cir. 10/8/14), 159 So.3d 496, 501; Ryland v. St. Mary’s Residential Training School, 03-27 (La.App. 3 Cir. 4/30/03), 843 So.2d 1237, 1240, writ denied, 03-1536 (La. 10/3/03), 855 So.2d 311. In Tunstall v. Stierwald, 01-1765 (La. 2/26/02), 809 So.2d 916, 920, the Louisiana Supreme Court stated, “a judgment may be amended by the court only when the amendment takes nothing from or adds nothing to the original judgment.”

Mangiaracina v. Avis Budget Group, Inc., 16-211, p. 5 (La.App. 5 Cir. 9/22/16), 202 So.3d 171, 175.

|aWe find that reducing a prior judgment, unappealed by the Defendants, by roughly half would certainly take from that judgment in violation of La.Code Civ.P. art. 1951. We can find no abuse of the workers’ compensation judge’s broad discretion in his refusal to modify the 2009 judgment.

Penalties and Attorney Fees

Defendants finally claim that the workers’ compensation judge erred in awarding penalties and attorney fees. Again, we disagree.

A workers’ compensation judge is given great discretion in finding that penalties are due, and this discretion will not be overturned unless it is clearly wrong. Harvey v. B E & K Constr., 30,285 (La. App. 2 Cir. 8/19/98), 716 So.2d 514.

Louisiana Revised Statutes 23:1201(G) provides for penalties and attorney fees as follows:

If any award payable under the terms of a final, non-appealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

We can find nothing in the record which indicates the workers’ compensation judge below abused his great discretion in awarding penalties and attorney fees. The 2009 judgment was a final, nonappealable judgment, and the Defendants clearly did not pay it as ordered. The Defendants’ failure to fully pay the award within thirty days after it became due did not result from conditions over which they had no control. Rather, the Defendants purposefully paid lesser |10amounts than ordered by that judgment. The workers’ compensation judge did not err in awarding claimant penalties and attorney fees as provided by La.R.S. 28:1201(0).

In his brief, Hr. Broussard’s counsel seeks additional attorney fees for the work done on appeal. ‘“However, he did not file his own appeal nor answer the appeal, so he is not entitled to additional attorney’s fees for the work performed on the appeal’.” Johnson v. St. Frances Nursing & Rehab. Ctr., 14-599, p. 15 (La.App. 3 Cir. 12/23/14), 155 So.3d 689, 698 (quoting Dugas v. Aaron Rents, Inc., 02-1276, p. 4 (La.App. 3 Cir. 3/5/03), 839 So.2d 1205, 1208); See also La.Code Civ.P. art. 2133.

For the above reasons, the decision of the workers’ compensation judge below is hereby affirmed. Costs of this appeal are hereby assessed against the Defendants.

AFFIRMED.

      . Mr. Broussard’s back injury was described by his doctors as a contributing factor in his obesity.