author: MOON LANDRIEU, Judge Pro Tempore.

text:
    James M. WILLIAMS and Houghtaling & Williams, L.L.C. v. Nicholas MANZELLA and Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C.
    No. 2007-CA-0090.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 2009.

      William E. Wright, Jr., Beverly A. De-laune, Deutseh, Kerrigan & Stiles, L.L.P., New Orleans, LA, for James M. Williams and Houghtaling & Williams, L.L.C.
    Brian L. Reboul, John B. Krentel, Brian Reboul & Associates, L.L.C., Metairie, LA, for Nicholas Manzella.
    Gus A. Fritchie, III, David O’Quinn, McDonald G. Provosty, Irwin, Fritchie, Urquhart & Moore, L.L.C., New Orleans, LA, for Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C.
    (Court Composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME, Judge Pro Tempore MOON LANDRIEU).
   MOON LANDRIEU, Judge Pro Tempore.

11 In this action for a declaratory judgment filed by the plaintiffs/appellees, attorney James M. Williams (“Mr. Williams”) and his employer, the law firm of Houghtaling & Williams, L.L.C. (“Houghtaling & Williams”), the defendant/appellant, Nicholas Manzella (“Mr. Manzella”), appeals from two separate judgments rendered by the district court. The first, an interlocutory judgment rendered on May 22, 2006, denied Mr. Man-zella’s peremptory exceptions of no right of action and no cause of action as well as a declinatory exception of lack of subject matter jurisdiction. The second, a final judgment rendered on December 1, 2006, granted motions for summary judgment in favor of Mr. Williams, Houghtaling & Williams, and Mr. Williams’ former employer, the law firm of Gainsburgh, Benjamin, David, Meunier and Warshauer (“Gainsburgh, Benjamin”), and denied a motion for summary judgment filed by Mr. Manzella.

FACTS AND PROCEDURAL HISTORY

In May 2002, Mr. Williams, while employed by the Gainsburgh, Benjamin law firm, filed suit on behalf of Mr. Manzella against United Parcel Service, Inc. |2(“UPS”), Mr. Manzella’s former employer, alleging racial discrimination, wrongful termination and intentional infliction of emotional distress. UPS denied the claims, asserting that Mr. Manzella was terminated for falsifying or “padding” his delivery logs and payroll fraud. Later, in July 2003, Mr. Williams left Gainsburgh, Benjamin and went to work at Houghtal-ing & Williams. However, he continued to represent Mr. Manzella in the suit. On March 19, 2004, the U.S. District Court rendered a summary judgment in favor of UPS, dismissing Mr. Manzella’s suit.

On March 29, 2004, Mr. Williams timely filed a notice of appeal in the federal district court. Both the signature block on the notice of appeal pleading as well as the accompanying cover letter, which was printed on the Houghtaling & Williams law firm stationary, identified Mr. Williams as an attorney at the firm and listed the law firm’s address as 3500 North Hullen Street, Metairie, LA 70002.

On April 6, 2004, the Clerk of the U.S. Fifth Circuit Court of Appeals sent Mr. Williams a letter which acknowledged the docketing of Mr. Manzella’s appeal and requested Mr. Williams to sign and return an enclosed counsel appearance form. The clerk, however, mailed the letter and appearance form to Mr. Williams at Gains-burgh, Benjamin, 1100 Poydras Street, Suite 2800, New Orleans, LA 70163, his former law firm’s address.

|oOn April 8, 2004, the Clerk of the U.S. Fifth Circuit Court of Appeals mailed a briefing notice to Mr. Williams at Gains-burgh, Benjamin’s address on Poydras Street. The briefing notice stated that the appellant’s brief was due within forty (40) days of the date of the order, which was May 18, 2004.

Following Mr. Williams’ departure from Gainsburgh, Benjamin, the law firm waited for his mail to accumulate before forwarding it to him at Houghtaling & Williams’ address. As a result, Mr. Williams did not receive the letter and appearance form until April 14, 2004.

On April 15, 2004, Mr. Williams returned the completed appearance form to the U.S. Fifth Circuit Court of Appeals, indicating Houghtaling & Williams as his current law firm and its address as 3500 North Hullen Street, Metairie, LA, 70002. In the cover letter transmitting the completed form, Mr. Williams informed the court that the prior correspondence was inadvertently sent to his former law firm’s address.

Gainsburgh, Benjamin forwarded the April 8, 2004 briefing notice to Mr. Williams on May 26, 2004; he received it the next day. Thus, by the time Mr. Williams learned of the briefing deadline, it already had passed. Coincidently, on that same day, Mr. Williams also received a copy of a judgment dated May 26, 2004, from the U.S. Fifth Circuit Court of Appeals, dismissing Mr. Manzella’s appeal for want of prosecution.

On June 3, 2004, pursuant to Federal Rules of Appellate Procedure with Local Rules and Internal Operating Procedures of the Fifth Circuit, Local Rule |427.1.6, Mr. Williams timely filed a motion to reinstate Mr. Manzella’s appeal. UPS opposed the motion to reinstate the appeal and the U.S. Fifth Circuit denied the motion on June 29, 2004.

On June 6, 2005, Mr. Williams and Houghtaling & Williams filed a petition for declaratory judgment in Civil District Court for the Parish of Orleans against Mr. Manzella and Gainsburgh, Benjamin seeking a determination that Mr. Williams did not commit legal malpractice during his legal representation of Mr. Manzella. Two days later, on June 8, 2005, Mr. Man-zella filed a legal malpractice suit against Mr. Williams, Houghtaling & Williams, and Gainsburgh, Benjamin in the 24th Judicial District Court for the Parish of Jefferson. Also, in response to Mr. Williams’ petition for declaratory judgment, Mr. Manzella filed peremptory exceptions of no cause of action and no right of action and a declinatory exception of lack of subject matter jurisdiction, which the trial court denied.

Thereafter, Mr. Manzella filed a motion for summary judgment, arguing that Mr. Williams committed legal malpractice in failing to timely file the appellate brief with the U.S. Fifth Circuit Court of Appeals and/or in failing to remedy “[t]he deficiency which caused the dismissal” by not filing the brief within the prescribed period as set forth in the Local Rule 27.1.6. Mr. Williams, Houghtaling & | ¡Williams, and Gainsburgh, Benjamin filed cross motions for summary judgment arguing that Mr. Manzella cannot establish a prima fa-cie case of legal malpractice.

In granting summary judgment in favor of Mr. Williams, Houghtaling & Williams, and Gainsburgh, Benjamin, and against Mr. Manzella, the trial court, in reasons for judgment, stated:

The (sic) is no genuine issue of material fact in dispute as to whether or not Williams, Houghtaling & Williams, and Gainsburgh were negligent in handling of this matter. Williams notified the court and opposing counsel of his new mailing address. All memorandum submitted in Manzella’s litigation contained Houghtaling & Williams’, (sic) name and correct mailing address. Williams’ correct firm affiliation was clearly set forth in the Notice of Appeal. Williams had no indication that the Fifth Circuit would send appeal information to Gains-burgh and not Williams & Houghtaling. Thus, neither Williams nor Houghtaling <& Williams, were negligent.
Gainsburgh, Williams’ former law firm, received mail that was sent by the U.S. Fifth Circuit to Williams. It was the practice of Gainsburgh to wait for mail to accumulate before forwarding it to Williams’ new address. Gainsburgh simply passed along mail addressed to a former employee. Gainsburgh was not negligent in their actions.

Mr. Manzella appealed from the May 22, 2006 interlocutory judgment and the December 1, 2006 judgment.

DISCUSSION

Where a justiciable issue exists, La. C.C. P. articles 1871-1882, relative to declaratory judgments, give to courts of record the authority to issue declarations, where appropriate, that have the force and effect of final judgments and decrees. These articles, however, do not vitiate the other articles the Louisiana Code of Civil Procedure. Cf Burton v. Lester; 227 La. 347, 353, 79 So.2d 333, 335.

| (;To obtain a declaratory judgment, a party must file a pleading to a court of competent jurisdiction setting forth a demand for the enforcement of a legal right. La. C.C.P. art. 421. The pleading is adversarial in nature and not simply an impersonal request for an advisory opinion.

In his petition for declaratory judgment, Mr. Williams states no facts and makes no allegations that the defendants, Mr. Man-zella and Gainsburgh, Benjamin, abridged or were about to abridge his rights. He merely recites his actions in representing Mr. Manzella and asks the court to find him without fault.

One can only assume that the legal “right” Mr. Williams seeks to enforce is the “right” not to be sued by Mr. Manzella for legal malpractice, which is a right clearly given to Mr. Manzella pursuant to La. C.C. art. 2316. Furthermore, pursuant to the Louisiana Code of Civil Procedure articles on venue (La. C.C.P. arts. 42, 73 and 74), Mr. Manzella had the option to sue Mr. Williams, Houghtaling & Williams, and Gainsburgh, Benjamin either in Orleans Parish or Jefferson Parish, where he filed two days after Mr. Williams had sued for declaratory judgment in Orleans Parish. The petition of Mr. Williams, if granted, would effectively deprive Mr. Manzella of his option to bring the tort action against Mr. Williams in Jefferson Parish.

Nonetheless, in this case, Mr. Williams’ petition for declaratory judgment does not state a cause of action against Mr. Manzel-la nor does it set forth a justiciable issue or controversy upon which the court can grant Mr. Williams the relief that he seeks, i.e., a finding that he did not commit legal malpractice before a 17legal claim has been made against him by Mr. Manzella. See Burton v. Lester, supra. Therefore, we reverse the May 22, 2006 judgment, in part, to grant the peremptory exception of no cause of action.

Furthermore, because an amendment to Mr. Williams’ and Houghtaling & Williams’ petition for declaratory judgment would not cure the deficiency, see La. C.C.P. art. 934, we vacate the December 1, 2006 judgment rendered in favor of Mr. Williams, Houghtaling & Williams, and Gainsburgh, Benjamin and dismiss Mr. Williams’ and Houghtaling & Williams’ suit for declaratory relief.

REVERSED IN PART; VACATED AND DISMISSED.

McKAY, J., concurs in the result.

BELSOME, J., concurs with reasons.

BELSOME, J., concurs with reasons.

|TI write separately to emphasize the effect that James Williams’ and Houghtal-ing & Williams’ actions had on Nicholas Manzella’s rights.

Mr. Manzella sought legal advice and counsel from attorney, James Williams and his then employer, Gainsburgh, Benjamin, David Meunier & Warshauer, and later his successor firm, Houghtaling & Williams. During the course of that representation, Mr. Manzella’s claims were dismissed with prejudice for failing to file an appellant brief. Regardless of the circumstances surrounding that failure, Mr. Manzella lost his chance to be heard.

Rather than waiting to see if their actions or non-actions would result in Mr. Manzella filing a claim for damages, Williams and Houghtaling & Williams improperly sought declaratory relief from any and all wrongdoing associated with their handling of the claim entrusted to them by Mr. Manzella. That misguided request for absolution ignored the fundamental concepts upon which our civil justice system is founded.

By filing a petition for declaratory judgment, James Williams and Houghtaling & Williams dictated the time and place in which Mr. Manzella was forced to defend his right to maintain a legal malpractice action against them. 1.¿People injured by other’s actions or inactions are granted rights through the Louisiana Civil Code. The statutes governing the pursuit of a cause of action allow potential plaintiffs to assert their claim to a proper venue within a given prescriptive period. The intent of those statutes is to allow an injured party time to ascertain the necessary information to adequately evaluate a potential claim of liability against another party. Mr. Manzella’s right to assert a cause of action is a vested property right protected by the guarantee of due process. The trial court erred when it divested Mr. Manzella of his legal right to assert a claim against an alleged tortfeasor.

There is no language in the Declaratory Judgment Act or related case law that suggests the intent of the act was to supersede all other rights granted to potential plaintiffs by Louisiana statutes. Declaratory actions are depicted as a procedure to “promote the simple, expedient trial of cases where the nature of the questions involved lend themselves readily to trial without the usual formalities to the end that resolution may be speedily achieved.” This case does not fit into that category. Had the trial judge ruled in Mr. Manzella’s favor, the issue of damages would still have to be resolved. That type of piecemeal litigation is inconsistent with the spirit of our state laws and the Declaratory Judgment Act.

Applying the Declaratory Judgment Act in the scope of tort litigation deprives an injured party of his due process rights. If we expand the use of the Declaratory Judgment Act to determine liability in tort cases we will create yet another obstacle for plaintiffs seeking to assert their legal rights.

Although I write separately, I concur in the result.

      . The suit was originally filed in the 24th Judicial District Court for the Parish of Jefferson, but was removed to the United States District Court for the Eastern District of Louisiana on the grounds of federal question and diversity jurisdiction.

      . The appeal record contains a copy of a letter dated July 24, 2003 that Mr. Manzella sent to Gainsburgh, Benjamin, discharging the firm as his attorney and instructing the firm to give his file to Mr. Williams.

      . The Internal Operating Procedures for the Fifth Circuit Local Rule 27.1.6 provides:
      Reinstatement of Cases Dismissed by the Clerk: The court normally will not reinstate a case dismissed by the clerk under 5th Cir. R. 27.1.6 unless:
      The deficiency which caused the dismissal has been remediated; and The Motion for reinstatement is made as soon as reasonably possible and in any event within 45 days of dismissal.

      . La. C.C. art. 2316 provides, "[ejvery person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

      . At the argument before the panel of five (5) judges, counsel for Mr. Manzella voluntarily withdrew his assignment of error which addressed the trial court's denial of his declina-tory exception of lack of subject matter jurisdiction. Because Mr. Manzella asserted no specific assignment of error regarding the trial court’s denial of his peremptory exceptions of no cause and/or no right of action, that is not an issue in this appeal. This Court, however, may notice the peremptory exceptions of no cause and/or no right of action on its own motion pursuant to La. C.C.P. art. 927 B.

      . La. C.C. art 2316.

      . See Burmaster v. Plaquemines Parish Government, 2007-2432, p. 17 (La.5/21/08), 982 So.2d 795, 808 (citing Lott v. Plaley, 370 So.2d 521 (La. 1979), Burmaster v. Gravity Drainage District No. 2, 366 So.2d 1381 (La. 1978)).

      . Couvillion v. James Pest Control, Inc., 98-2382, p. 2 (La.App. 4 Cir. 3/3/99), 729 So.2d 172, 174.


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    Jimmie BOBB v. DEPARTMENT OF POLICE.
    No. 2009-CA-0591.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2009.

      Raymond C. Burkart III, Burkart & Associates, L.L.C., Covington, LA, for Plaintiff/Appellant, Jimmie Bobb.
    Penya Moses-Fields, City Attorney, Nolan P. Lambert, Chief Deputy City Attorney, Victor L. Papai, Jr., Assistant City Attorney, Shawn Lindsay, Assistant City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge EDWIN A. LOMBARD).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| lieutenant Jimmie Bobb (Lt. Bobb), an employee of the Department of Police for the City of New Orleans (NOPD), appeals a decision of the Civil Service Commission (Commission), denying his appeal of the discipline imposed by the appointing authority, the NOPD. For the following reasons, we reverse.

The NOPD hired Lt. Bobb on May 25, 1973, and on November 17, 2007, promoted him to his current status.

By letter dated February 13, 2008, the NOPD suspended Lt. Bobb for violation of department defensive driving techniques in connection with an accident on March 15, 2007. The March 15, 2007 accident occurred as Lt. Bobb drove the wrong way on a one-way street. Lt. Bobb was also ordered to attend an Accident Avoidance Training Course for one day, on his own time. The letter of February 13, 2008 further provided, “you the operator shared a portion or all the responsibility for the accident/incident, in which the operator of the department vehicle has disregarded laws and policies governing traffic laws and/or safe driving practices.”

Lt. Bobb appealed the decision of the NOPD to impose discipline as a result of the accident to the Commission. The Commission appointed a hearing officer to 12take testimony, and a hearing was held on May 6, 2008. At the hearing, the parties stipulated that on March 15, 2007, Lt. Bobb did drive the wrong way on a one-way street and was involved in an accident. The accident resulted in damages to the police vehicle in the amount of $17,826.88 and damages to the other vehicle in the amount of $5,375.00.

Capt. Bryan Weiss, a member of the NOPD’s Accident Review Board (ARB), testified that the ARB reviews accident reports, and thereafter decides whether or not discipline should be imposed on the driver involved in the accident. Following a hearing, the ARB determined that Lt. Bobb drove carelessly in violation of 17271 MCS Chapter 154, Section 383, relative to careless operation, and drove against traffic, a violation of 17271 MCS Chapter 154, Section 601. The ARB recommended to the NOPD that Lt. Bobb receive a five-day suspension and attend a driver’s training course.

Capt. Weiss based his recommendation on a finding of fault against Lt. Bobb for driving the wrong way on a one-way street. Capt. Weiss recalled that Lt. Bobb stated at the hearing before the ARB that he did not know it was a one-way street. Capt. Weiss testified there were directional signs, but that he would not be able to testify to that himself, and expressed his belief that the officers who investigated the accident would testify before the hearing officer that there were directional signs in place. Capt. Weiss stated that he believed that Lt. Bobb got distracted and was driving at an excessive rate of speed, and was careless both in speeding and going the wrong way on a one-way street. According to Capt. Weiss, Lt. Bobb should have been familiar with the area as he spent more than one tour with the Fifth District, and, being a police officer, he should be familiar with the sign.

^Detective Mike Wahl testified that he interviewed the other driver, Wanda Davis, and determined that the vehicles contacted and that the police vehicle rotated and made a second contact with the vehicle driven by Ms. Davis. The police vehicle traveled further and struck a house. Detective Wahl photographed the scene and identified the pictures of Ms. Davis’ view as she approached the intersection revealing that Ms. Davis would be able to see the one-way sign as she approached the intersection, indicating that Lesseps was a one-way street. Detective Wahl did not calculate the speed at which Ms. Davis was traveling at the time of the accident.

Detective Wahl stated that he would have issued a citation to Lt. Bobb for going the wrong way on a one-way street if tickets were issued in an accident with a City vehicle, but that he would not have issued a citation for careless operation. Detective Wahl testified he noted on the report that Lt. Bobb was not distracted, and that Lt. Bobb stated he was traveling at a rate of speed of ten to fifteen miles per hour, which is consistent with trying to sneak up on someone conducting a narcotics transaction.

Lt. Bruce Little testified that he was the passenger in Lt. Bobb’s vehicle and was his immediate supervisor on the night of the accident. They received a Code 2 emergency call that indicated that narcotics-related activity was occurring and involved suspects who might possibly be armed. Lt. Little testified that it is the passenger’s job to navigate and when an intersection is approached, tell the driver that the intersection is clear. Lt. Bobb and Lt. Little proceeded to the scene, and Lt. Little told Lt. Bobb to turn once they reached the street Lt. Little guessed to be Lesseps Street. Approaching Lesseps Street from N. Robertson Street, there is no sign indicating the name of the street. Lt. Little testified that there were no street 14signs or traffic control signs at that point, that the area was essentially deserted and unmarked, and that neither he nor Lt. Bobb was aware Lesseps Street was a one-way street until they were at the actual intersection where the accident occurred. According to Lt. Little, Lt. Bobb had been in the Fifth District for only a few months at the time of the accident and it takes several months to become even vaguely familiar with a district. Lt. Little testified, “It was a guess, especially at night, which street you were on, whether you were familiar with the district or not, unless you could recognize a landmark, there was a lot of difficulty of which street is which.”

Lt. Little testified that there were cars parked on both sides of Lesseps Street, facing both lake-bound and river-bound. Lt. Little stated he believed Lt. Bobb bore no culpability due to the lack of street signs and the lack of one-way signs, and said that he did not consider his telling Lt, Bobb to turn onto the street he believed to be Lesseps Street a direct order, but Lt. Bobb should respond unless he deemed the instruction to be unsafe or illegal.

Lt. Bobb testified that, at the time of the accident, he had been in the district only a few months and was not familiar with the area, having had no previous tours with the Fifth District. Lt. Bobb revealed that the district is still in disarray, with houses displaced, signs and street lights down, in the aftermath of the levee failures of 2005. Lt. Bobb stated he was learning the district by using a map, when he was in the car by himself, and by following along with what Lt. Little would tell him when they rode in a vehicle together. The map of the district upon which he relied did not indicate whether streets where one- or two-way, and he did not know Lesseps Street was a one-way street because he was not familiar with the district. Lt. Bobb stated that he listened to Lt. Little because he believed that Lt. Little |Bknew the district, and also noted that “[tjhere was no lighting. It was dark, but there was no street lighting.”

Lt. Bobb admitted that even on one-way streets, it is common for cars to be parked on both sides of the street, facing in either direction, in the Fifth District, and stated that he was focused on driving and finding the suspected narcotics subject. Lt. Bobb contradicted Captain Weiss’ testimony that he had told the captain that he had tunnel vision. Lt. Bobb testified he did not have any distractions the night of the accident, “except for it was dark, but there were no distractions, per se.”

Lt. Bobb denied that he was speeding, claiming that he was driving at a speed of ten to fifteen miles per horn* to insure that the perpetrator does not pass by unnoticed by the police. Lt. Bobb stated the amount of damage resulted from the accident coupled with the vehicle’s having struck the house.

The Commission denied the appeal and upheld the discipline imposed by the NOPD. The Commission determined the officers were “cruising the neighborhood looking for individuals in the area suspected of drug dealing, but they were not in actual pursuit of a suspect.” The Commission further determined:

After reviewing the record we cannot agree with Appellant’s (Lt. Bobb) arguments. Though Appellant is correct that there was no one-way sign at the corner of North Robertson and Lesseps (when he initially made the wrong turn onto Lesseps) he went four blocks down Lesseps before he had the accident and on the corners of two of those four blocks there were one-way signs which should have alerted Appellant that he was going the wrong way.

The Commission has authority to “hear and decide” disciplinary cases, which includes the authority to modify as well as to reverse or affirm a penalty. La. Const, art. X, § 12; Pope v. New Orleans Police Dept., 04-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The Commission has the duty to decide | (¡independently from the facts presented whether the appointing authority has good and lawful cause for taking the disciplinary action. Razor v. New Orleans Police Dept., 04-2002, p. 3 (La.App. 4 Cir. 2/15/06), 926 So.2d 1, 4. The appointing authority is charged with the operation of its department and it is within its discretion to discipline an employee for sufficient cause. The Commission is not charged with such discipline. The authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Pope, supra, 04-1888, at 5-6, 903 So.2d at 4.

The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept, of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept, of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The civil service system protects civil service employees only from firing or other discipline without cause. La. Const, art. X, § 12; Cornelius v. Dept, of Police, 07-1257, pp. 5-6 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724.

The decision of the Commission is subject to review on any question of law or fact upon appeal to this court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const, art. X, § 12; Cure v. Dept, of Police, supra, 07-0166 at p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court should not modify the Commission order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the Commission is “arbitrary and 17capricious” if there is no rational basis for the action taken by the Commission. Cure, 07-0166, p. 2, 964 So.2d at 1095.

Lt. Bobb argues that the Commission committed legal error by failing to exercise properly its constitutional duty to review independently the facts and circumstances of this ease to determine if lawful cause existed to impose discipline. Lt. Bobb’s second and third assignments of error also address whether or not the Commission acted arbitrarily and capriciously in determining that cause existed to impose discipline.

In this instance, the NOPD imposed discipline, finding Lt. Bobb drove carelessly and against traffic. The NOPD further charged in its disciplinary letter that, “the operator shared a portion or all the responsibility for the accident/incident, in which the operator of the department vehicle has disregarded laws and policies governing traffic laws and/or safe driving practices.” The NOPD bore the burden of proving these charges.

In support of this assignment of error, Lt. Bobb first points to the Commission’s statement that he and Lt. Little were “cruising the neighborhood looking for individuals in the area suspected of drug dealing, but they were not in actual pursuit of a suspect.” Lt. Little testified they received a Code 2 call, which is an emei'-gency-type call, and in this instance, the call indicated that narcotics-related activity was occurring and involved suspects that might possibly be armed. We agree that the NOPD presented no evidence that Lt. Bobb and Lt. Little were “cruising the neighborhood.” However, the Commission’s mischaracterization of the testimony does not bear on whether or not the NOPD proved the charges contained in the disciplinary letter.

| sNext, Lt. Bobb contends that the Commission ignored the testimony and evidence regarding the lack of signs warning Lt. Bobb that he was traveling in the wrong direction. Lt. Bobb notes the Commission cited transcript pages 74-75, wherein the hearing officer stated:

I want to clear this up for the Commission, because during this break we were able to find out some things, and that is that between Robertson and Marais there are four intersections, okay. That’s fact. And whatever could have been testified to before, because we have a report from another supervisor that we know for a fact that there were no directional signs at Robertson and Lesseps and that there are signs, one-way signs, at the other intersections. And my contention here, too, is that if you are going the wrong way you are not going to see them anyway because they are for people going the right way. But the other intersections did have directional signs, but where the appellant (Lt. Bobb) turned there were no signs. And this was very late, very dark, very few street lights, and we’ve got pictures in the record. This is all for the Commission to determine and look at, okay. But there are four intersections, and the other intersections had some controls for people who were driving the right way.

First, we note that there is no identification of the supervisor who provided this alleged report. Further, the alleged report of the unknown supervisor was not properly and officially introduced into evidence. In City of New Orleans v. Young, 08-0653, 08-0654, pp. 2-3 (La.App. 4 Cir. 11/12/08), 999 So.2d 49, 50, citing Denoux v. Vessel Management Services, Inc., 07-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88, this Court noted that “evidence not properly and officially introduced cannot be considered, even if physically placed in the record.” In this instance, the report of the unknown supervisor was not placed into the record. Furthermore, the hearing officer’s conclusion concerning the evidence and testimony is not evidence properly and officially introduced at trial.

The properly introduced evidence and sworn testimony indicate that the only directional signs were located at the intersection of Lesseps Street and Marais Street. Capt. Weiss twice indicated that the testimony of the investigating officers |9was required to determine what, if any, directional signs were present on Lesseps Street

The investigating officer, Detective Wahl, testified that there were no one-way-signs at the intersections along Lesseps Street from N. Robertson Street to Marais Street The accident occurred at the intersection of Lesseps Street and Marais Street Lesseps Street runs in a north-south direction and Marais runs in a west-east direction. A one-way sign is located on the western side and the eastern side of Lesseps Street The one-way signs are placed to warn drivers proceeding upon Marais Street that Lesseps Street is a one-way street. Lt. Little also testified that there were no street signs or traffic control signs, and said that neither he nor Lt. Bobb were aware that Lesseps was a one-way street until they were in the actual intersection where the accident occurred.

Additionally, Detective Wahl and Lt. Bobb testified that it was dark at the time of the accident and that there were hardly any functioning lights. The vehicle’s lights illuminated what was directly in front of the vehicle. In the event that signs would have been located at intersections prior to Marais Street, those signs would not necessarily have been seen by Lt. Bobb or Lt. Little due to the lack of lighting. Any one-way signs at the intersection were not intended to warn those proceeding upon Lesseps Street that they were on a one-way street. Those signs were directional signs for vehicles approaching Lesseps Street, not those traveling upon Lesseps Street

Also, the Commission concluded Lt. Bobb “drove the police car four blocks the wrong way down Lesseps Street until it collided with a car having the right-of-ways proceeding down Marais Street.” (Emphasis supplied in the original.). However, a review of the Fifth District map admitted into evidence reveals that Lt. |1()Bobb could have traveled no more than three blocks when his car collided with the vehicle driven by Ms. Davis. From N. Robertson Street to N. Villere Street is the first block; from N. Villere Street to Urquhart Street is the second block; and from Urquhart Street to Ma-rais Street is the third block.

Furthermore, Capt. Weiss stated Lt. Bobb, being a police officer, should be more familiar with the signs indicating that he might possibly be going up a one-way street the wrong way. The Commission cited no testimony or evidence in the record to support the conclusion that Lt. Bobb should have known that Lesseps Street was a one-way street. Indeed, the evidence and testimony show that there were no directional signs along Lesseps Street until the intersection with Marais Street. There were only a handful of cars and those cars were parked on both sides of the street and were parked facing both directions. The only light was provided by the police car’s headlights. Our review of the record reveals no evidence that would have indicated to Lt. Bobb that he was traveling the wrong-way down a one-way street. Capt. Weiss stated Lt. Bobb should have been familiar with the area as he spent more than one tour with the Fifth District. However, that conclusion is contradicted by the testimony of both Lt. Little and Lt. Bobb that Lt. Bobb was, at the time of the accident, in the first few months of his first tour in the Fifth District.

Moreover, Lt. Little and Lt. Bobb testified that Lt. Bobb was traveling at ten to fifteen miles per hour. Detective Wahl, Lt. Little, and Lt. Bobb revealed such a speed is necessary to “sneak up” on a person suspected of conducting a narcotics transaction. Indeed, the NOPD presented no evidence that Lt. Bobb was speeding.

In this instance, the NOPD did not offer credible evidence that Lt. Bobb operated the police vehicle in a careless manner. Therefore, we find there is no rational basis for the decision of the Commission denying Lt. Bobb’s appeal of the _J_y careless operation charge. Although Lt. Bobb drove the wrong way down a one-way street, the NOPD did not offer credible evidence that Lt. Bobb disregarded the laws in so doing. The NOPD assigned Lt. Bobb to the Fifth District just a few months prior to the accident. He testified that he was not very familiar with the district. Lt. Little testified it normally takes several months to become vaguely familiar with a district. It should also be noted that Lt. Bobb started his assignment in the Fifth District in the aftermath of the 2005 levee failures, in the course of which the Fifth District received severe and devastating damage. More than two years later, the area still lacked street lights and street and directional signs. Lt. Bobb testified that he attempted to familiarize himself with the district and utilized a map when not with Lt. Little to learn the area covered by the Fifth District. However, the map did not indicate one-way streets. Considering the state of the Fifth District at the time of the incident, it is understandable that Lt. Bobb was not sufficiently familiar with the area to know which streets were one-way. Therefore, we find there is no rational basis for the decision of the Commission denying Lt. Bobb’s appeal to the Commission regarding the charge of driving against traffic. Therefore, we are compelled to conclude that the Commission acted arbitrarily and capriciously in denying Lt. Bobb’s appeal. Considering this finding, Lt. Bobb’s fourth assignment of error is moot.

Accordingly, the decision of the Commission is reversed.

REVERSED AND RENDERED.


author: DECUIR, Judge. COOKS, J.,

text:
    Luke DELAHOUSSAYE v. LIVE OAK GARDENS, LTD.
    No. 09-246.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 2009.
    Rehearing Denied Nov. 25, 2009.

      Michael B. Miller, Attorney at Law, Crowley, LA, for Plaintiff-Appellant: Luke Delahoussaye.
    W. Michael Stemmans, M. Todd Alley, Michael J. Taffaro, Jennifer E. Frederick-son, Stemmans & Alley, Baton Rouge, LA, for Defendants-Appellees: Live Oak Gardens, Ltd., Bridgefield Casualty Insurance Company.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

11 Luke J. Delahoussaye was a heavy equipment operator with Live Oak Gardens, Ltd. when he was injured on the job on January 3, 2006. Delahoussaye was paid compensation benefits until he returned to work but filed this contested claim for benefits after his employment was terminated in November of 2006. The workers’ compensation judge awarded supplemental earnings benefits, which were subject to a credit for all business income received by Delahoussaye as a result of his ownership interest in two local companies. Medical benefits, penalties, and attorney fees were also awarded. Delahoussaye has appealed the business income credit awarded in favor of the employer. The employer has neither appealed nor answered the appeal. For the following reasons, we affirm.

The record reveals the following chronology of events. The workers’ compensation insurer, Bridgefield Casualty Insurance Company, paid weekly indemnity and medical benefits from the time of injury through May 16, 2006. On that date, the claimant returned to work in a light-duty supervisory position created for him, earning pre-injury wages and benefits. He worked in that position until November 16, 2006, when he was terminated by his employer. The evidence in the record indicates that Live Oak management felt De-lahoussaye’s continued employment was creating morale problems, as Delahous-saye was receiving the same pay for what was seen by other employees as less work; plus, he occasionally conducted other business activities solely for his own profit during his work day at Live Oak. While Delahoussaye’s other business activities did not constitute full-time employment, the evidence shows that he did occasional work that consisted of monitoring jobs, making contacts, picking up or hauling supplies, and answering questions or calls.

12Upon termination by Live Oak, compensation benefits were not reinstated. The defendants were aware that Delahous-saye was a one-half owner of J.L.Hydro-seeding, LLC, an erosion control business, and a one-third owner of Southern Innovative Services, LLC, an excavation and sales business. Live Oak was aware that Delahoussaye had income from these businesses; indeed, the companies often did business together and the president of Live Oak, Michael Richard, authorized De-lahoussaye’s involvement in the ventures. However, neither Live Oak nor its insurer were informed of the amount of that income. Hence, the workers’ compensation judge concluded the defendants “[were] never in a position to even estimate an amount to tender” as supplemental earnings benefits.

The Workers’ Compensation Act requires injured employees who are receiving indemnity benefits to report business income monthly by filing a Louisiana Department of Labor form referred to as Form 1020. The form requires information on self-employment or involvement in any business enterprise, including “farming, sales work, operating a business (even if the business lost money), child care, yard work, mechanical work, or any type of family business.” The worker must describe the type of business, his job duties, and the amount of income received from the business. In the instant case, Dela-houssaye did not complete any Form 1020s.

The parties do not dispute Delahous-saye’s eligibility for supplemental earnings benefits, nor do they contest the factual conclusions regarding the award of penalties and attorney fees. Rather, the question raised in this appeal is whether the trial court erred in concluding that Dela-houssaye’s earnings from his business interests operate as a credit against any indemnity benefits the defendants might owe after Delahoussaye’s termination from his modified job at Live Oak. The trial court gave the following analysis:

| .-¡Business income is to be used in the calculation of supplemental earnings benefits. In Lafleur v. Hartford Insurance Company, 449 So.2d 725 (La.App. 3 Cir.1984), the employee and his wife opened a sausage kitchen after his injury disabled him from his job of injury. The court found that the lower court had correctly assigned one-half of the business profits of the community business to the employee’s post-injury wage credit. In Caparotti v. Shreveport Pirates Football Club, [33,570 (La.App. 2 Cir. 8/23/00), 768 So.2d 186, unit denied, 00-2947 (La.12/15/00), 777 So.2d 1230], the court specifically held that profits from the claimant’s business would be treated in the same manner as wages for the purpose of calculating supplemental earnings benefits.
In those cases, the claimants became self-employed only after them work injuries. In the present case, Delahous-saye’s businesses existed prior to his injury with Live Oak and continued after his injury. Mr. Delahoussaye’s counsel correctly asserts that under current jurisprudence, the claimant’s business earnings cannot be included in the calculation of the average weekly wage, citing cases including Lott v. Louisiana [Power & Light], 377 So.2d 1277 (La.App. 3 Cir.1979) and Guillory v. Interstate Hotels[ & Resorts, 05-650 (La.App. 3 Cir. 12/30/05), 918 So.2d 550.] ...

Delahoussaye contends that because the business income cannot be included in the average weekly wage calculation, it cannot be credited against him as post-injury earnings....

While Delahoussaye’s counsel is correct that using income from other employment for the post-injury calculation but not in the calculation of average weekly wage deprives the employee of the maximum protection of his earnings, the Third Circuit already considered that possibility in Lott when it stated that the law, as presently constituted, may, in certain isolated cases, not fully provide for the employee’s loss of earning capacity.... Malone and Johnson also address this concern in the following discussion of the Jones [v. Orleans P. Sch. Bd., 370 So.2d 677 (La.App. 4 Cir.1979) ] case:

However, upon closer examination, the alleged unfairness is less apparent. The Act is not a wage-insurance plan. Rather, it is a legislative scheme intended to insure a basic minimum subsistence to persons now wholly or partially unable to earn their prior wage to work-related injuries. This is apparent when one considers the plight of two injured workers now wholly disabled. Even if one earned $500 per week prior to the injury and the other $1000 per week, they receive precisely the same benefit check: the statutory maximum. The higher-paid worker may argue that this is unfair, and he would be right if the legislative objective were a wage-replacement plan. But the legislative intent is to guarantee basic subsistence levels thought to be reasonable and economically feasible, not to | ^replace wages at pre-injury levels. If the higher-paid worker wants a wage-replacement plan, he will have to purchase it in the private sector. Wex S. Malone & H. Alston Johnson
III, Workers’ Compensation Law and Practice, 13 Louisiana Civil Law Treatise, § 277 (4th ed.2002). See also Malone & Johnson, Workers’ Compensation Law and Practice, 14 Louisiana Civil Law Treatise, § 324 (4th ed.2002).

After considering the position advocated by each side, we find the ruling of the workers’ compensation judge to be correct. Delahoussaye’s involvement in the operation of J.L. Hydroseeding and Southern Innovative Services was minimal but clearly more than just an investment. We conclude, therefore, that the type of business income generated by Delahoussaye must be treated as any other post-injury business earnings. It should have been disclosed on a Form 1020. It will be used to offset supplemental earnings benefits as the law provides in La.R.S. 23:1221.

Finally, in this appeal, the claimant has requested additional attorney fees for work performed pursuant to the appeal. We decline to grant the claimant’s request as his appeal has been unsuccessful.

For the above and foregoing reasons, the judgment appealed from is affirmed in all respects. Costs of the appeal are assessed to the claimant, Luke J. Delahous-saye.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissent.

11While I agree a portion of Delahous-saye’s “business profits” should be offset to account for his “labor” in creating the companies’ combined net profit, the total profit of his business ventures are not attributable to his labor and do not constitute earnings within the contemplation of the Act. Rather, the total “profit” line in this case reflects two amounts — one solely attributable to Delahoussaye’s labor and the other solely a return on his investment which is not subject to SEB offset.


author: SULLIVAN, Judge.

text:
    Truell HOLLOWAY v. CITY OF OBERLIN.
    No. 09-324.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 2009.

      J. Bryan Jones, III, Attorney at Law, Lake Charles, LA, for PlaintiffyAppellant, Truell Holloway.
    Steven J. Bienvenu, Falgoust, Caviness & Bienvenu, Opelousas, LA, for Defendant/Appellee, City of Oberlin.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   SULLIVAN, Judge.

| ¶ Truell Holloway appeals a judgment that dismissed his claims against the City of Oberlin (the City) with prejudice. We affirm.

FACTS AND PROCEDURAL HISTORY

Holloway filed suit against his employer, the City, on October 12, 2006, as a result of an incident that had happened at work on February 21, 2006, when a co-worker, Travis Slate, put something into a can of juice that Holloway later consumed. Holloway alleged that, as a result of his having ingested the tampered juice, he became ill and now suffers from severe physical and mental problems. Holloway averred that because the incident occurred on the job and was employment-related and because his co-worker put something into his juice with either the intent to make him ill or with knowledge that it was a substantial certainty that he would become ill, the incident amounted to an intentional tort within the meaning of the intentional tort exception to the exclusive remedy provisions of the Louisiana Worker’s Compensation Act. Accordingly, Holloway alleged that the City was vicariously liable to him for the intentional tort committed by its employee, Slate. He sought damages for past and future medical expenses, past and future pain and suffering/mental anguish, past and future lost wages, loss of earning capacity, and disability.

In its answer to Holloway’s petition, the City averred that the incident occurred as the result of an ongoing, non-employment-related, dispute between Holloway and Slate. It alleged that, because Slate’s actions were not within the course and scope of his employment and because Slate’s actions were not done in furtherance of the [2City’s business, the City could not be held vicariously liable for Slate’s actions, whether negligent or intentional.

The matter proceeded to a bench trial on November 18, 2008. Following the presentation of Holloway’s case-in-ehief, the City made an oral motion for involuntary dismissal on the ground that Holloway had not proven that Slate’s actions had been committed in conjunction with his job duties or in furtherance of the City’s objectives. The trial court granted the motion and dismissed Holloway’s claims against the City with prejudice at his cost. Holloway now appeals, alleging in his sole assignment of error that the trial court committed manifest error in granting the City’s motion for involuntary dismissal on the basis that the City had no vicarious liability for Slate’s intentional tort where it was undisputed that the incident arose because of a dispute Slate had with Holloway concerning items in the employee refrigerator.

DISCUSSION

This court discussed the law concerning involuntary dismissals in Koonce v. Dous-ay, 06-1498, p. 3 (LaApp. 3 Cir. 3/7/07), 952 So.2d 893, 895-96, stating:

Louisiana Code of Civil Procedure Article 1672(B) provides:
In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.
“The trial court is granted much discretion in determining whether to grant an involuntary dismissal.” Boone v. Reese, 04-979, p. 5 (La.App. 3 Cir. 12/8/04), 889 So.2d 435, 438 (citing Kite v. Carter, 03-378 (La.App. 3 Cir. 10/1/03), 856 So.2d 1271). If after considering and weighing the plaintiff’s evidence, the trial court determines that the ^plaintiff has not met his burden of proof, it must dismiss the plaintiffs case. Gauthier v. City of New Iberia, 06-341 (La.App. 3 Cir. 9/27/06), 940 So.2d 915. “The trial court’s grant of an involuntary dismissal is subject to the well-settled manifest error standard of review.” Id. at 918.

In Armand v. Lachney, 05-763 (La.App. 3 Cir. 2/1/06), 921 So.2d 1196, this court held that the City of Alexandria was not vicariously liable to an employee for an altercation between him and another city employee during work hours and on city property, even if the co-employee’s actions amounted to an intentional tort. We explained:

An employer may be found liable under the intentional tort exception to the Workers’ Compensation Act, where an employee commits an intentional tort which results in injury to a co-employee. LeBrane v. Lewis, 292 So.2d 216 (La.1974). However, as noted by the supreme court in Baumeister v. Plunkett, 95-2270, pp. 3-4 (La.5/21/96), 673 So.2d 994, 996-97:
“An employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours.” Scott v. Commercial Union Ins. Co., 415 So.2d 327, 329 (La.App. 2d Cir. 1982) (citing Bradley v. Humble Oil & Refining Co., 163 So.2d 180 (La.App. 4th Cir.1964)). “Vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer’s objective.” Id.
More specifically, our LeBrane v. Lewis decision considered the following factors in holding an employer liable for a supervisor’s actions in stabbing his fellow employee:
(1) whether the tortious act was primarily employment rooted;
(2) whether the violence was reasonably incidental to the performance of the employee’s duties;
(3) whether the act occurred on the employer’s premises; and
(4) whether it occurred during the hours of employment.
14292 So.2d at 218. This does not mean that all four of these factors must be met before liability may be found. Miller v. Keating, 349 So.2d 265, 268 (La.1977). But as we noted above in Scott, an employer is not vicariously liable merely because his employee commits an intentional tort on the employer’s premises during working hours. 415 So.2d at 329. See also Tampke v. Findley Adhesives, Inc., 489 So.2d 299 (La.App. 4th Cir.), writ denied, 491 So.2d 24 ([La. ]1986); McClain v. Holmes, 460 So.2d 681 (La.App. 1st Cir.1984), writ denied, 463 So.2d 1321 ([La.]1985). The particular facts of each case must be analyzed to determine whether the employee’s tortious conduct was within the course and scope of his employment. Scott, 415 So.2d at 329.
“This court has stated that: ‘Under LeBrane, an employer is responsible for an employee’s intentional tort when his conduct is so closely connected in time, place, and causation to his employment duties that it constitutes a risk of harm attributable to the employer’s business.’ ” Craft v. Wal-Mart Stores, Lie., 01-564, p. 5 (La.App. 3 Cir. 10/31/01), 799 So.2d 1211, 1215, writ denied, 02-132 (La.3/22/02)[J 811 So.2d 933, (quoting Lyons v. Bechtel Corp., 00-364, p. 10 (La.App. 3 Cir.12/27/00), 788 So.2d 34, 42, writ denied, 01-282 (La.3/23/01), 787 So.2d 996.)

Id. at 1198-99. The basis for the dispute in Armand involved a duck plucker, a personal item that the city permitted to be stored on its premises. Affirming the trial court’s dismissal of the city on summary judgment, this court noted that the deposition testimonies of the two employees involved in the fight made it clear that the dispute between them was strictly personal and completely unrelated to their employment or any of their work duties. Accordingly, we found no evidence to support the plaintiffs claim that his co-employee’s “conduct was ‘so closely connected .... to his employment duties’ as to ‘constitute a risk of harm attributable to’ the City’s business.” Id. at 1199 (quoting Craft v. Wal-Mart Stores, Inc., 01-564, p. 5 (La.App. 3 Cir. 10/31/01), 799 So.2d 1211, 1215).

Holloway and his mother, Bernadine Le-day, were the only witnesses to testify at trial. When questioned by his attorney about the incident between him and Slate, | ^Holloway stated, “Well, as far as I know, we used to get along, but I don’t know what happened.” When asked whether he recalled ever having any type of dispute with Slate, Holloway explained that sometimes Slate “would say things that was maybe out of order and I would correct him and I’d say, ‘That’s kind of out of order. You shouldn’t do that.’ ” Later, under cross-examination, Holloway stated that he never had any disagreements with any co-worker before this incident. When asked whether he knew why the incident had occurred, Holloway responded that he never tried to hurt anyone and that he “couldn’t understand why anyone would put something into [his] drink.” Holloway’s mother testified about his mental condition and personality before and after the incident.

Holloway introduced eleven exhibits at trial, all but one of which addressed his medical bills and his claim for damages. Exhibit P-2 consists of the certified records from the Thirty-third Judicial District Court concerning the criminal prosecution of Slate for simple battery following the incident. Contained therein is the following voluntary statement which Slate gave the day after the incident in question:

I Travis Slate went to the Dollar Store and [bought] some Libby juice, put sleep aid in because he eat an drink up ever .thing and it was supposed be a joke. I sorry. It was about a week ago and forgot. Sorry.

According to court minutes dated July 20, 2006, Slate entered a plea of no contest to the charge of simple battery. He was sentenced to thirty days in the parish jail, suspended, and six months of supervised probation. He was ordered to stay away from and to make restitution to Holloway.

Before ruling on the City’s motion for involuntary dismissal, the trial court referred to Artnand and LeBrane and the factors to be considered in determining whether an employer can be held vicariously liable for an intentional tort committed | (-.by an employee on the employer’s premises and during working hours. In granting the motion, the trial court stated:

[I]n this particular case, even assuming that this incident was an intentional tort, ... the facts in this case make it absolutely clear to the Court that it is beyond equivocation that the conduct which caused the injuries to Mr. Holloway, they’re not closely connected to Mr. Holloway’s employment so as to constitute a risk attributable to the town’s business.

On appeal, Holloway contends that the trial court erred in finding that the dispute was not employment-related. He submits that the City provided a refrigerator to its employees to facilitate their being able to eat and drink throughout the day, thereby increasing their productivity. It follows, Holloway argues, that the City had “an interest in preventing items from being taken from the employee refrigerator,” and thus, a dispute concerning items in that refrigerator should be classified as employment-related because it concerned the conditions of his employment. In that regard, he likens this case to that of Benoit v. Capitol Manufacturing Co., 617 So.2d 477 (La.1993), wherein the supreme court reversed a decision of this court to affirm the trial court’s dismissal of an action brought by an employee against his employer and a co-employee seeking to recover damages from a battery inflicted on him by the co-employee.

In Benoit, the fight between the employees involved whether the rear door to their work place should be kept opened or closed. The plaintiff, Benoit, was struck on the hand with a broom stick by a co-employee, Bennett, who was attempting to close the rear door. Testimony revealed that Bennett had been involved in a prior argument with another employee about wanting the door closed. Earlier on the night of the altercation, Bennett had complained to his supervisor about wanting the door closed because he was cold, and the supervisor had told him to put on a jacket. lyBennett had also, although not in the presence of Benoit, “emphatically announced his intention of closing the door,” which had been left opened by Benoit several hours earlier. Id. at 480. The fight took place when Benoit tried to keep the rear door open as Bennett was trying to close it. In reversing the two lower courts, the supreme court found that the broom stick battery was “clearly ‘employment-rooted’ ” because it concerned the temperature in the work place and, thus, the lower courts were in error for not casting the employer in judgment for the plaintiffs injury. Id. at 479.

The City claims that Holloway failed to present any evidence to support his assertion that he and Slate had an ongoing, work-related dispute. It further claims that Holloway failed to prove that Slate’s actions were done in furtherance of the employment objectives of the City. The City contends that because this incident occurred as a result of a co-employee’s attempt at playing a joke on Holloway, the incident was completely unrelated to the City’s employment objectives. Thus, the City argues that this case is on all fours with Amand, and Holloway’s reliance on Benoit is misplaced. As a result, the City submits that the trial court did not err in finding that it was not vicariously liable for the acts of Slate, and thus, in granting its motion for involuntary dismissal.

We have reviewed the evidence in its entirety and we have found no support for Holloway’s claim that the incident between him and Slate was employment-related. Holloway, himself, testified that he had never had a prior disagreement with any of his co-workers and that he had no idea why anyone would have tried to harm him. There was absolutely no evidence offered to prove his claim that the incident was the result of an ongoing work-related dispute. In addition, although both Holloway and the City speculate in their appellate briefs as to the purpose of the | ^employee refrigerator and when the employees had access to it, no evidence was offered concerning the employee refrigerator. The incident appears to have been the result of a practical joke gone bad that clearly had nothing to do with the employment objectives of the City and for which the City cannot be held vicariously liable, despite the incident having occurred on City property between two City employees during work hours. Accordingly, we find no error in the trial court’s granting of the City’s motion for involuntary dismissal after the close of Holloway’s case-in-chief and the resulting dismissal of his claims against the City under the intentional tort exception to the exclusive remedy provisions of the Louisiana Worker’s Compensation Act.

DECREE

The judgment of the trial court in favor of the City of Oberlin, dismissing the claims against it by Truell Holloway with prejudice, is affirmed in its entirety. All costs of this appeal are assessed to Truell Holloway.

AFFIRMED.


author: WILLIAMS, J.

text:
    NORTH DESOTO ESTATES, L.L.C., Plaintiff-Appellee, v. David W. JOHNSON and Cynthia C. Johnson, Defendants-Appellants.
    No. 44,760-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 14, 2009.

      Donald L. Brice, Jr., Shreveport, for Appellants.
    Robert E. Plummer, Mansfield, for Ap-pellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   WILLIAMS, J.

LThe defendants, David and Cynthia Johnson, appeal a judgment in favor of the plaintiff, North DeSoto Estates, LLC. The trial court found that the Johnsons had violated the subdivision building restrictions and ordered that they replace the garage roof or remove the structure. For the following reasons, we reverse and render.

FACTS

In November 2005, Bradley Sepulvado, manager of North DeSoto Estates, LLC (“North DeSoto”), filed a plat for the Northwood Estates subdivision in the De-Soto Parish conveyance records. In January 2006, Sepulvado filed a document in the public records entitled “Northwood Estates Unit 1 Restrictive Covenants.” In December 2006, David and Cynthia Johnson purchased a house on Lot 20 in North-wood Estates with a deed providing that the sale was subject to “any restrictions, easements and servitudes of record.” Additionally, the Johnsons’ title insurance policy stated that their property was subject to the restrictive covenants recorded in the public records of DeSoto Parish.

In January 2007, Sepulvado stopped at Lot 20 to ask David Johnson about items that he had placed in his driveway and stated that there were subdivision rules against leaving things in front of the house. Johnson answered that he was in the process of moving into the house and planned to build a garage. After beginning construction of the detached garage, Johnson was visited by Sepulvado and Scott McFerren of North DeSoto. They gave Johnson a copy of the subdivision building restrictions and informed him that the garage needed siding to match the material used on |2the house and a concrete floor. The parties disagreed on whether they had discussed a requirement of an 8-12 roof pitch for the garage at that time.

On January 25, 2007, North DeSoto’s attorney sent a letter by certified mail notifying Johnson that the garage violated the restrictive covenants of Northwood Estates, Unit 1. After receiving the letter, Johnson stopped construction and spoke with Sepulvado. As a result of that discussion, Johnson agreed to make changes as stated in a February 2007 letter to North DeSoto, including installation of exterior siding with the same material used in the main dwelling and a concrete floor. Believing that the changes satisfied Sepul-vado’s objections, Johnson resumed construction of the garage.

Some days after the garage rafters were installed, Sepulvado called the Johnsons and said that the subdivision covenants required the garage to have a roof with 8-12 pitch. After reading the language of the building restrictions, Johnson believed that an 8-12 roof pitch was not required for the garage and did not make such a change. Subsequently, the plaintiff, North DeSoto, filed a petition to enforce the restrictive covenants against the defendants, David and Cynthia Johnson.

After a bench trial, the court issued written reasons for judgment, finding that the building restrictions had been validly recorded, that the language was unambiguous and that the defendants knowingly violated the restrictions in building the garage roof. The trial court rendered judgment ordering the defendants to either replace the metal roof with a shingle roof at an 8-12 pitch or remove the garage from the lot within 90 days of the | ¿judgment date. Defendants appeal the judgment.

DISCUSSION

In three assignments of error, the defendants contend the trial court erred in finding that the building restrictions unambiguously required that the garage have a shingle roof with an 8-12 pitch. Defendants argue that the building restrictions are subject to two reasonable interpretations and must be construed in favor of the unrestricted use of the immovable. We do not address the assignment regarding applicability of the covenants, but assume that the building restrictions were properly recorded so as to give sufficient notice to purchasers of lots shown in the separately filed subdivision plat.

Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses and improvements. LSA-C.C. art. 775. Doubt as to the existence, validity or extent of building restrictions is resolved in favor of the unrestricted use of the immovable. LSA-C.C. art. 783. Building restrictions are to be strictly construed. Cashio v. Shoriak, 481 So.2d 1013 (La.1986); Whitaker Construction Company, Inc. v. Larkin Development Corporation, 34,297 (La. App.2d Cir.12/6/00), 775 So.2d 571. The intent of building restrictions must be ascertained according to the words therein, their usual meaning and with consideration of the context of the words in the document. Payne v. Melancon, 34,667 (La.App.2d Cir.9/17/01), 793 So.2d 1286. If the instrument purporting to create a building restriction is susceptible to more than one reasonable interpretation, thereby creating ambiguity and doubt as to the subdivider’s intent, the interpretation that |4Ieast restricts the property will apply. Head v. Gray, 41,290 (La.App.2d Cir.8/23/06), 938 So.2d 1084.

In the present case, the building restrictions provide in pertinent part:

Construction is limited to single family dwellings, garages and other peripheral structures that are at least 1 but not more than 2 ½ stories above the ground. All residences must be of new construction, (brick) with a centrally cooled and heated living area of 1800 square feet or more built on site with a concrete slab foundation. It should have a minimum roof line of 8-12 pitch.
All above ground construction that is detached from the main residence is bound by the same building restrictions and must be constructed with the same type of exterior materials as the main dwelling.

The word “should” is permissive and generally denotes discretion. Louisiana Seafood Management Council v. Louisiana Wildlife & Fisheries Commission, 97-1367 (La.5/19/98), 715 So.2d 387.

In reviewing the particular restrictions at issue in light of the whole instrument, we note that in contrast to the building restrictions couched in mandatory language, such as the provisions stating residences “must be” new construction and driveways “must be concrete,” the provision stating that a residence “should have” a roof with 8-12 pitch employs permissive language. Thus, a reasonable interpretation of the restriction is that installation of a roof with 8-12 pitch was not mandatory for a residence, but was a recommendation. Similarly, another provision suggests that subdivision lot owners along the lake “should” form a committee to provide for upkeep. Forming a committee was not mandatory for such lot owners.

|¡r,Consequently, third parties, such as defendants, who relied on the language of the building restrictions could reasonably conclude that since a roof with 8-12 pitch was not mandatory for the residence, a detached garage would not be required to have such a roof. Because the building restriction is susceptible to more than one reasonable interpretation, the language is ambiguous and creates doubt as to the extent of the restriction. Therefore, the interpretation that least restricts the use of the property is applicable and the trial court erred in finding that defendants were required to install a garage roof with 8-12 pitch.

The building restrictions are silent regarding the type of material to be used in construction of the roof for either a residence or garage. In asserting that defendants’ garage must have a shingle roof because the residence has such a roof, plaintiff relies on the building restriction language stating that construction detached from the residence “must be constructed with the same type of exterior materials as the main dwelling.” Neither the word “exterior” nor the term “exterior materials” is defined in the building restrictions. Thus, the issue is whether a reader of the restrictions could reasonably interpret the reference to exterior as meaning the outside walls of the residence and not including the roof.

In considering their ordinary meaning, the words exterior and roof are not synonymous, since exterior refers to the outside surface of something whereas roof most often means the top covering of a building. Although the broadest possible understanding of a building’s exterior could include the roof, building restrictions are to be narrowly construed and a person could 1 (¡reasonably interpret exterior as referring to the outer walls of the house and not the roof. In addition, the relevant building restriction language requires that the residence be of new construction with an exterior of brick. Since a person would not reasonably expect the roof to be built of brick, the language of the building restrictions indicates that the exterior of the residence does not incorporate the roof.

Thus, the building restriction stating that a garage be built with the same type of exterior materials as the main dwelling could reasonably be interpreted as requiring only that the exterior walls of the residence and garage be built with the same type of materials. Because the building restriction is susceptible to two reasonable interpretations, the resulting ambiguity raises doubt as to the extent of the restriction that must be resolved in favor of the unrestricted use of the property. Consequently, the trial court erred in ordering the defendants to replace the metal roof of the garage with a shingle composite roof. In reaching this conclusion, we pre-termit discussion of the defendants’ remaining assignments of error.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is reversed. Judgment is hereby rendered in favor of the defendants, David and Cynthia Johnson, and the plaintiffs claims are dismissed with prejudice. All costs, including those in the district court and on appeal, are assessed to the plaintiff, North DeSoto Estates, LLC.

REVERSED AND RENDERED.


author: GREMILLION, Judge. AMY, J.,

text:
    Tida Rose BOURGEOIS v. BROWN’S DELI & MARKET, INC.
    No. 09-290.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 14, 2009.

      Mark Zimmerman, Lake Charles, LA, Attorney for Plaintiff/Appellee, Tida Rose Bourgeois.
    Matthew D. Crumhorn, Rabalais, Un-land and Lorio, Covington, LA, Attorney for Defendant/Appellant, Brown’s Market & Deli, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

L Brown’s Market & Deli, Inc. (Brown’s) appeals the judgment of the workers’ compensation judge (WCJ) allowing its employee, Tida Rose Bourgeois (Bourgeois), to obtain treatment from a second orthopedic surgeon; ordering that Bourgeois be supplied with a spinal cord stimulator; and assessing Brown’s with a $2,000 penalty and $4,500 in attorneys fees for failing to approve the spinal cord stimulator. Bourgeois answered the appeal and requests that we award additional attorney fees for work performed in the appeal. For the reasons that follow, we affirm and award Bourgeois additional attorney fees.

FACTS

Bourgeois was employed at Brown’s when, on January 1, 2005, she slipped on ice while in the freezer. As a result, she sustained a scapholunate dislocation in her left wrist. An orthopedic surgeon, Dr. M. Alan Hinton, performed an open reduction and internal fixation of the dislocation and reconstruction of the scaphoid lunate ligament on January 6, 2005. Dr. Hinton ordered Bourgeois off work.

Soon after surgery, Bourgeois began to complain of left elbow pain. Dr. Hinton ordered an MRI that revealed no injury or defects to the elbow. Dr. Hinton felt these problems were more probably than not related to Bourgeois’s wrist trauma.

In March 2005, Bourgeois reported to Dr. Hinton that she was experiencing pain in her left shoulder. Dr. Hinton immediately suspected that Bourgeois was developing or had developed reflex sympathetic dystrophy (RSD), but ordered an MRI of the shoulder to rule out trauma and an EMG/nerve conduction study of the left arm to rule out carpal tunnel syndrome. The MRI ruled out trauma, as Dr. Hinton suspected, and he referred Bourgeois to a pain management specialist for treatment | ¡.of RSD.

Brown’s obtained an independent medical examination (IME) of Bourgeois from Dr. Patrick Juneau, in June 2005. He confirmed the diagnosis of RSD and concurred in the referral to pain management.

Initially, Bourgeois saw Dr. Kevin Gorin for pain management. Dr. Gorin treated Bourgeois until December 2005, when he closed his practice.

Bourgeois’s current pain management specialist is Dr. Christopher Y. Lew of Slidell, Louisiana, whom she first saw in February 2006. Dr. Lew confirmed the diagnosis of RSD and began a regimen of treatment.

In March 2006, Bourgeois complained to Dr. Lew — for the first time to any health care provider — of neck pain. During this same visit with Dr. Lew, Bourgeois indicated to him that her attorney suggested that she obtain a second opinion regarding her wrist, as Dr. Hinton had indicated that he had nothing more to offer her. Dr. Lew desired an MRI of the neck, and agreed that a second opinion regarding Bourgeois’s wrist would be useful.

Brown’s sent Bourgeois back to see Dr. Juneau in May 2006, after the cervical complaints materialized. He saw no causal relationship between the on-the-job accident and the cervical complaints. Dr. Juneau opined that Bourgeois had reached maximum medical improvement (MMI). In addition to Dr. Juneau, Bourgeois was sent to Dr. Sandra Weitz, a pain management specialist of Brown’s choosing. Dr. Weitz opined that there was no causal relationship between the cervical complaints and the accident.

In September 2007, the WCJ appointed Dr. Clark A. Gunderson, a Lake Charles orthopedic surgeon, to perform an IME. Dr. Gunderson diagnosed Bourgeois |swith a complex regional pain syndrome — essentially, RSD — and opined that the late-onset cervical complaints were not related to the on-the-job accident. He further opined that Bourgeois was restricted from lifting more than five to ten pounds, with her right hand only.

In November 2007, Bourgeois returned to Dr. Hinton, who indicated that she continued to have pain, loss of motion and dysfunction in the wrist. He reported that she was not at MMI. However, in April 2008, Dr. Hinton reported to Bourgeois’s vocational rehabilitation counselor, Jeanne Tarver, that Bourgeois was at MMI from an orthopedic standpoint.

Dr. Lew disagrees with the other physicians in this matter, and feels that Bourgeois’s cervical complaints are the result of “sympathetic cervical disc disease,” and are causally related to the on-the-job accident. He also requested that Bourgeois be approved for a trial of a spinal cord stimulator to see whether it would provide any relief from the “chronic pain she has in her neck and to her left upper extremity,” resulting from her sympathetic disc disease.

Bourgeois’s Disputed Claim for Compensation (Form 1008) was filed in April 2005. In the 1008, Bourgeois requested that she be allowed to seek treatment with Dr. Robert Morrow, an orthopedic hand surgeon in Lafayette, Louisiana, specializing in hand and wrist problems.

The case was tried on submissions, stipulations and briefs. The principal issues were the causal relationship between the cervical complaints and the accident, the referral to Dr. Morrow, the trial of the spinal cord stimulator and penalties and attorney fees. The WCJ found that the cervical complaints were not related to the on-the-job accident, ordered that treatment with Dr. Morrow be authorized and ordered |4that the spinal cord stimulator be authorized. She also awarded Bourgeois a $2,000 penalty for Brown’s refusal to authorize the stimulator and awarded her $4,500 in attorney fees.

ANALYSIS

Standard of Review:

A finding by a WCJ that medical treatment is necessary is reviewed under the manifest error standard. Figgins v. Wal-Mart, 06-806 (La.App. 3 Cir. 11/15/06), 945 So.2d 153, writ denied, 06-2977 (La.2/16/07), 949 So.2d 421. That standard requires that the appellate court, in order to reverse, must find that the record reflects that there is no reasonable basis for the WCJ’s factual determinations. Clay v. City of Jeanerette, 99-1421 (La.App. 3 Cir. 5/31/00), 768 So.2d 609, writ denied, 00-2006 (La.10/27/00), 772 So.2d 124. Similarly, we are bound by the same standard in reviewing a WCJ’s assessment of penalties and attorney fees. Metoyer v. Roy O. Martin, Inc., 03-1540 (La.App. 3 Cir. 12/1/04), 895 So.2d 552, mit denied, 05-1027 (La.6/3/05), 903 So.2d 467.

Further, the responsibility of determining which, among differing experts, is most credible is reserved to the trier of fact. Mistich v. Volkswagen of Germany, Inc., 95-0939 (La.1/29/96), 666 So.2d 1073. If a trial court gives greater weight to one expert’s testimony, this finding cannot be reversed absent manifest error. Gautreau v. Gautreau, 96-1548 (La.App. 3 Cir. 6/18/97), 697 So.2d 1339, writ denied, 97-1939 (La.11/7/97), 703 So.2d 1272.

The decision to impose penalties is a factual question, which will not be disturbed on appeal in the absence of manifest error. Frank v. Kent Guidry Farms, 01-727 (La.App. 3 Cir. 5/8/02), 816 So.2d 969, writ denied, 02-1608 (La.6/27/03), L847 So.2d 1273.

Referral to Dr. Robert Morrow:

Dr. Lew discussed referring Bourgeois to Dr. Morrow for surgical evaluation in his report of January 19, 2007. That is the only mention of Dr. Morrow in any of Dr. Lew’s reports. But it is clear that, although this referral came at the suggestion of Bourgeois’s attorney, Dr. Lew thought it prudent.

Dr. Hinton’s records contain several inquiries from the third party administrator for Brown’s asking whether he had referred Bourgeois to Dr. Morrow. All were answered in the negative. However, his records do not indicate that he disagreed with the referral.

In her report to Brown’s dated June 20, 2008, Dr. Weitz opined that Bourgeois’ upper extremity complaints result from carpal tunnel syndrome, and that a referral to a hand specialist would be appropriate. The question was apparently never presented to Dr. Gunderson, whose report does not mention a referral.

Thus, Bourgeois’s treating pain management specialist opined that a referral to Dr. Morrow would be appropriate. The pain management specialist who provided Brown’s with a second opinion concluded that a referral to a pain management specialist was appropriate. We have no other medical opinion on the referral. We, therefore, find that the record reveals a reasonable basis for the finding of necessity of the referral to Dr. Morrow. There is no manifest error in the WCJ’s ruling.

Spinal Cord Stimulator:

The WCJ’s finding that the cervical complaints were not related to the on-the-job accident is not before the Court. Bourgeois does not suggest on appeal that a causal relationship exists. The significance of the cervical complaints is why, if they | (iare not related, the request for a spinal cord stimulator should have been granted and Brown’s assessed with penalties and attorney fees for not authorizing one.

Dr. Lew, in a letter dated March 6, 2008, stated:

I am trying to get approved for a spinal cord stimulator trial. The purpose of this is to see whether this modality will give relief for the chronic pain she has in her neck and to her upper left extremity. The current diagnosis for her left upper extremity is symptomatic cervical disc disease with radicular pain in her left upper extremity as well as referred pain into her neck. She also has chronic regional pain syndrome (reflex sympathetic dystrophy) involving the left upper extremity.

Elsewhere in his records, Dr. Lew lists Bourgeois’s diagnoses as, “I. Cervical disc disease and cervical radiculopathy. 2. Mul-tifactorial upper and lower extremity pain with reflex sympathetic dystrophy, radicu-lopathy, and soft tissue pain.” Dr. Lew devoted several reports to discussion of the causal relationship between the cervical complaints and the on-the-job accident. Indeed, he devoted enough ink to this issue that one could easily be led to conclude that his treatment of Bourgeois — including the spinal cord stimulator trial — was almost consumed with treating the cervical complaints. Clearly, Brown’s sees the stimulator trial as solely intended to treat the cervical complaints. Bourgeois asserts that the stimulator trial has nothing to do with her cervical complaints. This is not the only mention of a spinal cord stimulator trial, though.

Dr. Lew drafted an explanation of the spinal cord stimulator trial that was appended to a report he submitted on January 24, 2008. In that report, Dr. Lew stated that the stimulator was usually intended for relief of severe pain in a limb or limbs, including conditions such as RSD. It also could be useful for certain forms of trunk pain.

Dr. Weitz addressed the origin of Bourgeois’s complaints and the need for a 17stimulator in her report of June 28, 2008. Dr. Weitz opined that Bourgeois’s upper extremity complaints result from carpal tunnel syndrome, bulging cervical discs or a combination of the two. However, while she disagreed with the diagnosis of RSD, she did confirm that a stimulator was useful in the treatment of that condition when other modalities had failed.

We note, however, that long before Bourgeois’s cervical complaints surfaced, the trial of a spinal cord stimulator had been discussed. Dr. Gorin, in his report of May 17, 2005, to Dr. Hinton discussed the fact that he had successfully utilized a TENS unit to treat Bourgeois. Based upon this success, Dr. Gorin opined that a spinal cord stimulator trial might provide Bourgeois with more relief.

It is clear. The WCJ determined that the spinal cord stimulator trial was intended to treat RSD after weighing the opinions of the doctors. A reasonable basis for this determination is reflected in the record. Therefore, we cannot overturn that finding. Accordingly, the order that Brown’s provide the spinal cord stimulator trial is affirmed.

Penalties and attorney fees:

An employer is required to furnish reasonable and necessary treatment to its injured employee. Failure to pay medical benefits results in the imposition of a penalty; however, the penalty is not imposed if the claim is reasonably controverted or if nonpayment results from conditions over which the employer or insurer had no control. La.R.S. 23:1201(F)(2). A claim is reasonably controverted when the employer or insurer produces factual or medical information that reasonably counters the claimant’s evidence. Davis v. Jones Baldwin Music Co., 27,545 (La.App. 2 Cir. | «11/1/95), 662 So.2d 803. Brown’s presented only Dr. Weitz’s opinion that Bourgeois did not have RSD, but that if she did, a spinal cord stimulator would be an appropriate treatment when all else had failed. There exists a reasonable basis in the record for the imposition of penalties and attorney fees. There is no manifest error in the award.

Additional Attorney Fees:

We have long held that an employee who successfully defends the workers’ compensation judge’s ruling should be entitled to additional fees. See Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. Bourgeois is entitled to additional attorney fees in the amount of $3,000.

CONCLUSION

The weight of the evidence suggests that Bourgeois sustained an injury to her left wrist that evolved into a complex regional pain syndrome, RSD. Brown’s is obligated to provide Bourgeois with reasonable and appropriate medical care. This includes the referral to a hand specialist, Dr. Morrow, and providing the spinal cord stimulator trial recommended by Dr. Lew. The failure of Brown’s to provide the spinal cord stimulator trial, which had been recommended as far back as 2005 — before Bourgeois’s neck complaints arose — necessitates the imposition of penalties and attorney fees. Bourgeois is entitled to additional attorney fees in the amount of $3,000. All costs of the appeal are assessed to Appellant, Brown’s Deli & Market, Inc.

AFFIRMED.

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

AMY, J.,

concurring in part and dissenting in part.

|,I respectfully dissent from that portion of the majority opinion affirming the worker’s compensation judge’s determination that the claimant “is entitled to a second choice of orthopedic doctor[.]” Louisiana Revised Statutes 23:1121(B)(1), provides a claimant with the right to “select one treating physician in any field or specialty.” After this initial choice, prior consent from the employer must be obtained before the employee may change treating physicians within the same field or specialty. Id.

It is unquestioned that the claimant’s choice of orthopedist is Dr. Alan Hinton. In reasons for ruling, the workers’ compensation judge determined that the claimant’s request to see another orthopedist was a “reasonable one and should be authorized by the employer/carrier.” However, the reasonableness of the claimant’s request for a second choice of physician within a particular field is not the inquiry of the statutory scheme. Rather, La.R.S. 23:1121(B)(1) gives the claimant the right to choose only one physician in given field or specialty. This is true even in instances where a claimant’s choice of physician has released him or her to return to work. See, e.g., Cheatham v. Luberski, Inc., 43,-603 (La.App. 2 Cir. 9/17/08), 996 So.2d 373; Wiley v. Kenneth Parker Logging, 97-1247 (La.App. 3 Cir. 3/6/98), 711 So.2d 297. The statute’s limitation to one choice of physician is in place to prevent a claimant from |2physician shopping or hopping from one physician to another. See Smith v. Southern Holding, Inc., 02-1071 (La.1/28/03), 839 So.2d 5.

It is only when an employer’s denial of a request to change physicians is not reasonably controverted that the workers’ compensation statutes provide further guidance on the issue and, in that instance, the focus is on the reasonableness of the employer’s denial of the claimant’s request. See La.R.S. 23:1201(F) (mandating the assessment of penalties and attorney fees for “failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121” unless the claim is reasonably controverted). This case did not inquire into whether the employer’s denial was reasonably controverted, i.e., entitlement to penalties and attorney fees for the denial of the second choice of physician. Instead, it required the workers’ compensation judge to determine whether the claimant was entitled to her second choice of orthopedist absent her employer’s approval. Under the facts of this case, I find no legal mechanism by which the workers’ compensation judge approved the claimant’s request.

Accordingly, I would reverse the workers’ compensation judge’s granting of the claimant’s request for a second choice of orthopedist. Like the majority, however, I find that the record supports the workers’ compensation judge’s award of the spinal cord stimulator as well as the associated penalties and attorney fees. I also join in the majority’s award of additional attorney fees for work performed on appeal.

      . The presence of bulging discs at the C5-6 and C6-7 levels was confirmed in an MRI dated August 10, 2006.