author: PICRETT, J. AMY, J.,

text:
    Billy Ray WOODARD v. TOWN OF COLFAX.
    No. 09-892.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.
    Joseph Yuri Beck, Hunter & Morton, Alexandria, LA, for Claimant/Appellee, Billy Ray Woodard.

      Randall B. Reiser, D. Heath Trahan, Reiser Law Firm, Alexandria, LA, for Defendant/Appellant, Town of Colfax.
    Court composed of SYLVIA R. COORS, MARC T. AMY, and ELIZABETH A. PICRETT, Judges.
   PICRETT, J.

hThe defendant, Town of Colfax (Colfax) appeals a ruling by a Workers’ Compensation Judge (WCJ) finding that the claimant, Billy Woodard, suffered a disabling accident in the course and scope of his employment with Colfax and awarding the claimant the following: (a) supplemental earnings benefits, with a zero earnings capacity, beginning on the date Mr. Woodard discontinued working at the City of Colfax in July of 2007, until September 27, 2007, and (b) temporary total disability beginning on September 27, 2007, and continuing through present. The WCJ also ordered Colfax to authorize and pay for the discogram and repeat lumbar MRI recommended by Dr. George R. Williams and, if the he believes that the further testing continues to support the recommended surgery, that Colfax shall approve the lumbar surgery he recommended. In addition the claimant was awarded penalties, attorney’s fees and interest and costs.

On appeal Colfax alleges that the WCJ erred in the following: (1) in finding the claimant is disabled, (2) in finding that more diagnostic testing is necessary, (3) in finding that, depending on the tests results, that surgery may be necessary (at the defendant’s expense), and (4) in awarding penalties and attorney’s fees.

The claimant answered the appeal seeking an increase in attorney’s fees at the trial level and additional attorney’s fees for the defense of this appeal. The defendant filed a motion seeking to have the claimant’s answer to appeal dismissed as untimely. We affirm the ruling of the Workers’ Compensation Judge and dismiss the claimant’s answer to appeal as untimely.

| ¡¿FACTS

It was stipulated that on January 30, 2007, the claimant injured his low back lifting a storm grate during his employment with the Town of Colfax’s Street Department. The following day, the town referred Mr. Woodard to Dr. Jay Piland, the town physician. Dr. Piland treated Mr. Woodard conservatively, for what he diagnosed as a lumbar strain, for the next seven months. Treatment included rest, medication and epidural steriod injections. According to Mr. Williams, his condition worsened during that time, with his back pain extending into his left leg, down to his foot. Mr. Woodai'd testified that medication failed to totally relieve his pain. An MRI performed during this time period revealed a bulging disc at L4/L5 and, depending on what doctor one queried, several other abnormalities.

Toward the end of July, Mr. Woodard and his supervisor, Derrian Sapp, had a disagreement over the claimant’s working conditions and over his stopping at his house to get medicine. As a result, Mr. Sapp sent Mr. Woodard home on July 26, 2007, and Mr. Woodard was fired the next day.

Mr. Woodard’s condition did not improve and on September 27, 2007, he consulted Dr. Ray Williams, an orthopaedic specialist in Opelousas, who is now Mr. Woodard’s treating physician. Dr. Williams examined Mr. Woodard and read the MRI which had been previously done. In his opinion the MRI revealed “congenital stenosis at L3/L4 and L4/L5 with small disc protrusion and annular tear.” He agreed with Dr. Piland that Mr. Woodard could not work and started him on physical therapy and home stretching exercises. These treatments did not help.

The claimant was then referred to Dr. Frazer Gaar for a second medical opinion. Dr. Gaar examined Mr. Woodard on October 29, 2007. In his opinion, Mr. Woodard |Bwas suffering from a vascular necrosis of both hips, but he was close to maximum medical improvement from his back injury with a residual impairment rating of 5%. Dr. Gaar opined that surgery was not necessary and recommended that Mr. Woodard undergo a Functional Capacity Evaluation (FCE). On November 8, 2007, Mr. Woodard returned to Dr. Williams, who agreed with Dr. Gaar about the FCE and ordered the test. In February 2008, Dr. Williams, recommended decompression and fusion at the L4/L5 level.

Next, Mr. Woodard was referred to Dr. Gregory Gidman at the Acadiana Center for Orthopedic and Occupational Medicine for an Independent Medical Examination (IME). Dr. Gidman performed the exam on April 1, 2008, and concluded Mr. Woodard had only sustained a lumbosacral strain (he did agree that Mr. Woodard suffered from bilateral avascular necrosis). He also reviewed the MRI done in May of 2007, and opined the following:

There is no desiccation. The disc spaces are well preserved at all levels. At L4-5, there is a mild bulging with a small protrusion to the left. The L5-S1 level shows some mild facet arthropathy. There is no herniation or acute changes at any level.

This was the most conservative interpretation of Mr. Woodard’s MRI by any health care professional. In fact, Dr. Gidman opined that “the examinee’s MRI findings are compatible with his age and the labor he has done for years.” Dr. Gidman concluded that Mr. Woodard’s only “pathological disease” is bilateral avascular necrosis not related to his accident. He further stated that in his opinion Mr. Woodard had reached MMI; that he has a 3-5% whole body impairment; and that could resume work at medium level activities as established by his FCE.

Next, Mr. Woodard was referred to Dr. Mark F. McDonnell, a spine specialist in Lafayette for another opinion on May 21, 2008. Dr. McDonnell diagnosed Mr. | .Woodard with “post traumatic axial pain syndrome of the lumbar spine.” In his recommendations, Dr. McDonnell states:

3. ... I believe that the low back pathology is related to some type of lumbar disc injury. Decompression alone is not going to help him.
4. I would recommend that the patient have a pre-operative discogram of the lumbar spine. The MRI report suggests that L3-4 is normal. It appears, therefore that at least the L3-4, L4-5 and L5-S1 discs should be tested. In addition there is a question whether the L5-S1 disc is normal. If in fact it is normal, then the facet findings on the MRI at L5-S1 could possibly be observed. Of course, they would image better on a post discography CT scan, and a decompression of the foramen and lateral recesses at L5-S1 may be required.
5. If the discogram does show a good study with a normal control, and if it shows only concordant pain -with annular tear at L4-5, then I would agree with a posterior instrumentation fusion at L4-5 — assuming that the agrees to quit smoking.

In sum, two physicians, Drs. Gaar- and Gidman, did not believe that Mr. Woodard was in need of further medical treatment, especially surgery, while the other three physicians who examined and/or treated Mr. Woodard, Drs. Piland, McDonnell and Williams all agreed that he had sustained a work related injury to his lower back which required further medical treatment, i.e. testing and some type of surgery.

LAW AND DISCUSSION

In Monceaux v. R & R Construction, Inc., 05-533, pp. 5-7 (La.App. 3 Cir. 12/30/05), 919 So.2d 795, 798-801, wits denied, 06-585 (La.5/5/06), 927 So.2d 325, 06-636 (La.5/5/06), 927 So.2d 317, we reviewed the standard of review and the claimant’s burden of proof in a workers’ compensation case:

In Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court discussed the standard of review in workers’ compensation cases:
I.Jn worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir. 2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).

Recently, this court addressed a claimant’s burden in proving the he/she suffered a work-related accident:

In order to recover workers’ compensation benefits, an injured employee must prove by a preponderance of the evidence that he suffered a “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031(A). An “accident” is defined as an “unexpected or unfor-seen 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).

The Louisiana Supreme Court, in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992), expounded on what proof will satisfy an employee’s burden in proving a work-related injury:

|r,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. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or Mends. Malone & Johnson, supra; Nelson v. [Roadway Express, Inc., 588 So.2d 350 (La.1991)]. Corroboration may also be provided by medical evidence. West, supra.

In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases).

As stated in Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted):

When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Bigge v. The Lemoine Co., 04-1191, pp. 2-4 (La.App. 3 Cir. 3/2/05), 896 So.2d 269, 271-72.

In his reasons for his ruling, the WCJ stated:

In Mr. Woodard’s case, there is absolutely no showing by the Town of Colfax that it ever had available for Mr. Woodard a job that ever met any restrictions placed upon him by Dr. Piland. Mr. Woodard has shown by a preponderance of clear and convincing evidence based upon the objective findings in the medical testing and the opinions suggested in the medical records of the examining physicians other than [Drs.] Gaar and Gidman that he is unable to work and he is entitled to temporary/total disability benefits.

After examining the record in its entirety, including both lay and professional testimony, and the documentary evidence, we cannot say that the WCJ was manifestly erroneous in his findings regarding Mr. Woodard’s disability and his need for further testing and treatment.

Inasmuch as Colfax had notice of Mr. Woodard’s injury and knowledge that he was under a doctor’s treatment and on medication, we find no error in the award of penalties and attorney’s fees.

As to Mr. Woodard’s answer to appeal, we agree with the appellant, the answer was filed untimely. Hence, we will not consider the arguments raise therein.

Accordingly, for the reasons stated above, we affirm the judgment of the WCJ. We dismiss the answer to appeal as untimely. All costs of this appeal are taxed against the appellant, Town of Colfax.

AFFIRMED.

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

AMY, J.,

concurring in part and dissenting in part.

[,I agree with the majority that an affirmation is required as to the findings of disability, diagnostic testing, and penalties and attorney fees. However, I find merit in the employer’s assignment of error which questions that portion of the judgment ordering that: “If the treating physician believes that the further testing continues to support the recommended surgery, the City of Colfax shall approve the lumbar surgery recommended by Dr. Williams.” In my opinion, this order was premature as the testing had not yet been completed and pre-judged what may be medically necessary. Accordingly, I would reverse the judgment in this limited regard, leaving future events to determine the necessity of such issues.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Keven J. ST. MARIE v. Lisa M. ROY.
    No. 09-953.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      L. Lane Roy, Alyse Richard, Preis & Roy, Lafayette, LA, for Defendant/Appellant, Lisa M. Roy.
    Richard D. Mere, Richard D. Mere, Ltd., Lafayette, LA, for Plaintiff/Appellee, Keven J. St. Marie.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

hThis community property partition case involves the burden of proof under La.Civ. Code art. 2368 with respect to an owning-spouse. Neither party disputes that the claimant spouse met her burden under La. Civ. Code art. 2368, but the claimant spouse disputes whether the trial court correctly applied the burden of proof of the owning spouse.

The trial court found that the owning spouse had proven that part of the increase in value of his separate property was solely due to factors other than the uncompensated or undercompensated labor of one of the spouses. Thus, the trial court awarded the claimant spouse one-half of that enhancement in value that was not solely due to those other factors. The claimant spouse appealed this judgment, alleging one assignment of error. We affirm.

FACTS AND PROCEDURAL HISTORY:

Keven St. Marie (St. Marie) purchased a home located in Lafayette, Louisiana, in May 2004 for $151,000.00. The home had been appraised just before the purchase for $155,000.00. At the time, St. Marie was engaged to Lisa M. Roy (Roy). The couple moved into the home and performed some improvements to the home for which their labor was uncompensated. The couple married on October 23, 2004.

On July 25, 2005, St. Marie had an appraisal done of the home in order to obtain a second mortgage. The home appraised for $162,000.00. The home was again appraised on April 2, 2006. At this time, the home appraised for $193,000.00.

On May 10, 2006, St. Marie filed a petition for divorce from Roy. On February 21, 2007, a judgment of divorce was rendered. The judgment ordered that the community of acquets and gains be terminated retroactively to the date of filing the petition for divorce. On April 7, 2008, Roy filed a petition for judicial partition of [ gcommunity property, praying for partition of the former community in accordance with La. R.S. 9:2801. She attached to the petition a sworn, detailed, descriptive list of property which, in particular, set forth as a community asset the increased value of the home, located in the Lafayette area, at a fair market value of $39,000.00.

On May 23, 2008, St. Marie answered the petition and made a reconventional demand, seeking a partition of the former community of acquets and gains in accordance with La. R.S. 9:2801. He attached to his answer a sworn, detailed, descriptive list that listed the increase in value of his separate property as $0.00.

Both parties submitted memoranda in support of their positions in the matter and accompanying exhibits. On February 25, 2009, a hearing was held on the petition and reconventional demand for judicial partition of community property. The parties stipulated to the value of reimbursement and to possession of each item before the court, except for Roy’s claim for reimbursement under La.Civ.Code art. 2368.

The parties agreed that the home was the separate property of St. Marie. Further, St. Marie stipulated that he owed reimbursement to Roy for materials they purchased with community funds and used to make improvements on the home. The parties also stipulated that the home increased in value during the existence of the community. However, the parties disputed how and why the home increased in value.

The trial court found that Roy was entitled to compensation under La.Civ.Code art. 2368. The court used the initial appraisal of the value of the home, approximately $155,000.00, and the July 25, 2005 appraisal of the value of the home, approximately $162,000.00, as the basis for measuring the increase in value to the home from the uncompensated labor of the spouses. The trial court found that St. Marie had carried his burden of proving that the remaining increase in value of the home was solely due |sto the increase in demand attributable to Hurricanes Katrina and Rita. As such, the trial court found that Roy was entitled to one-half of approximately $6,000.00 under La.Civ.Code art. 2368. Roy appealed this judgment, raising one assignment of error.

DISCUSSION OF THE MERITS:

In her sole assignment of error, Roy argues that the trial court erred in disregarding the burden of proof of the owning spouse, St. Marie, which required him to rebut evidence that reimbursement was due under La.Civ.Code art. 2368 by showing that the increase in value to his separate property was due only to market conditions, and not at all from the common labor of the spouses. We find no merit in this assignment.

Louisiana Civil Code Article 2368 states:

If the separate property of a spouse has increased in value as a result of the uncompensated common labor or industry of the spouses, the other spouse is entitled to be reimbursed from the spouse whose property has increased in value one-half of the increase attributed to the common labor.

Our Louisiana Supreme Court, in Salley v. Salley, 95-387, p. 3 (La.10/16/95), 661 So.2d 437, 438-39, stated:

[A] claimant spouse under Article 2368 has the burden of proving: (1) the property is separate, (2) the property increased in value, and (3) the increase in value was based on the uncompensated or undercompensated labor of the other spouse; the burden then shifts to the other spouse to prove that the increase in value was due to factors other than the uncompensated or undercompensat-ed labor.

In the case before us, the trial court found that Roy met her burden of proof under La.Civ.Code art. 2368. St. Marie does not dispute this finding. The trial court then found that St. Marie met his burden of proof under La.Civ.Code art. 2368 by showing that some of the increase in value of the separate property was due solely to factors other than the labor of either spouse. As a result, the trial court awarded Roy |4one-half of the increase in value of the separate property that was not solely due to the increase in demand, and, thus, shortage of supply, of housing in the Lafayette area after Hurricanes Katrina and Rita.

Roy argues that this was an incorrect application of the law because the jurisprudence under former La.Civ.Code art. 2408, of which current La.Civ.Code art. 2868 is based upon, was such that the recovery by a claimant spouse was “an all or nothing proposition.” Deliberto v. Deliberto, 400 So.2d 1096, 1101 (La.App. 1 Cir.1981). As such, Roy argues that because she met her burden of proving that the value of the separate property increased due to either the uncompensated or undercompensated labor of either spouse, she was entitled to one-half of the increase in value of the separate property, in its entirety, regardless of the “hurricane effect,” unless St. Marie could show that the entire increase in value was due solely to factors other than that labor.

Roy attempts to bolster her argument by first citing Krielow v. Krielow, 93-2539 (La.4/11/94), 635 So.2d 180. In Krieloiv, our supreme court stated, “[b]y enacting Art. 2368, the legislature did not intend to overrule the jurisprudence interpreting Art. 2408. We shall continue to follow the standard pronounced by this court in Abraham [v. Abraham, 230 La. 78, 87 So.2d 735 (1956) ].” Id. at 184.

The standard at issue in Krielow was whether the trial court had applied the correct burden of proof under La.Civ.Code art. 2368 with respect to the claimant spouse. The trial court in Krielow, after finding that the claimant spouse had proved that the owning spouse’s separate property had increased in value, denied reimbursement because it found that the claimant spouse had failed to show that the increase in value was because of the owning spouse’s labor and not a result of other | factors. The appellate court in Krielow found that the trial court had applied the correct burden of proof. Our supreme court reversed, taking offense to the language the trial court used referring to the necessity that the claimant spouse show that the increase in value was not due to factors other than the labor of the spouses. Thus, the central issue in Krielow was the correct application of the burden of proof under La.Civ.Code art. 2368 with respect to the claimant spouse. Here, the issue raised by Roy relates to the burden of proof with respect to the owning spouse once the claimant spouse has met his or her burden of proof. At no time in the Krielow opinion did our supreme court address the specific issue raised by Roy. However, when dispensing the case, our supreme court stated:

Because Lynn Krielow has established on this record that Carl’s undercompen-sated community labor for KBI enhanced or increased Carl’s separately owned stock, the burden shifts to Carl, as the owner of the separate property, to prove that some or all of the enhancement occurred because of other factors. It is Carl who has failed to meet his burden of proof.

Krieloiv, 635 So.2d at 185(emphasis added).

This language in Krielow indicates that the owner spouse can show that some of the enhancement occurred solely due to factors other than undercompensated or uncompensated labor in order to have that increase in value not be included in the claimant spouse’s reimbursement claim. It is true that the Krieloiv court does not explicitly state that should the owner spouse show that some of the value en-haneement occurred solely because of a factor other than the undercompensated or uncompensated labor of one of the spouses, the claimant spouse’s reimbursement claim does not include that value. However, this court cannot find any reason why our supreme court would use the language cited above and have it be superfluous, nor why such a showing is irrelevant, as suggested by Roy’s argument that this is the | (iresult that the law mandates.

Moreover, the language of La.Civ.Code art. 2368 dictates that when an owning spouse can show that part of the enhanced value of an asset is solely due to a factor other than the undercompensated or uncompensated labor of a spouse, that value is not part of the claimant spouse’s reimbursement claim. Louisiana Civil Code Article 2368 states, “the other spouse is entitled to be reimbursed from the spouse whose property has increased in value one-half of the increase attributed, to the common labor (emphasis added).” While our supreme court did state in Krielow that La.Civ.Code art. 2368 did not change the standard or overrule the jurisprudence interpreting former Article 2408, the clear language of La. Civ. Code art. 2368 is that when the owning spouse can prove that part of the increase in value is not due to the uncompensated or undercompensated labor of the spouses, the claimant spouse’s reimbursement claim does not include that amount.

Roy also cites Abraham, 87 So.2d 735 for her contention that the trial court erred incorrectly applied the law concerning St. Marie’s burden of proof. Specifically, Roy cites the following language from Abraham, 87 So.2d at 739 (emphasis in original):

[W]hen it is shown that community labor, expenses or industry has provided an increase to the separate property, the burden shifts to the owner of the separate property to rebut this proof and affirmatively establish that the increase is due only to the ordinary course of things, rise in values or chances of trade.

Roy contends that this language unequivocally supports her position that she is entitled to one-half of the entire increase in value of St. Marie’s separate property because he did not prove that the entire increase in value of the property was solely due to other factors. We do not agree with Roy’s interpretation of this language.

|7Rather, we find this language unclear as to whether the owning spouse, when attempting to carry his or her burden, must show that all of the increase in value in the property, in its entirety, was due solely to the ordinary course of things, etc. Alternatively, the language could be interpreted to mean that the owning spouse can show that a part of the increase in value of the property was due solely to the ordinary course of things, etc. and have that increase in value removed from what the claimant spouse can recover in reimbursement. We find guidance at Abraham, 87 So.2d at 739, fn. 4, where the court stated, “[i]t is well settled that, where community funds are used to improve the separate property of one of the spouses, the other spouse is entitled to recover one-half of the enhanced value of the property resulting from the use of community funds under Article 2408 of the Civil Code (emphasis added).”

This language suggests that it is plausible for the increase in value of separate property to be analyzed to determine whether part of the increase is solely due to other factors. Further, Abraham, 87 So.2d at 739, fn. 4, intimates that if it is possible for parts of the increase in value to be analyzed individually, each part of the increase is deemed part of the reimbursement claim after the initial burden is carried by the spouse claiming reimbursement. However, if the owning spouse can carry his or her burden of proof by showing that an individual part of the increase is only due to factors other than the under-compensated or uncompensated labor of one of the spouses, then that part of the increase in value is removed from the reimbursement claim.

Further, in Salley, 661 So.2d at 439 (emphasis added), our supreme court stated, “because a spouse’s compensation in return for his labor or industry is community property, La.Civ.Code art. 2338, to the extent that the spouse’s \ ¿uncompensated or undercompensated labor increases the value of his separate 'property, the community has a claim against him.” Again, this language implies that should the owning spouse be able to show that an individual part of the increase in value of the separate property is attributable solely to factors other than the uncompensated or un-dercompensated labor, the claimant spouse’s reimbursement claim does not include that value.

Finally, Roy cites Bordelon v. Bordelon, 06-537 (La.App. 3 Cir. 11/2/06), 942 So.2d 708, writ denied, 06-2824 (La.2/2/07), 948 So.2d 1080, for the proposition that she should be awarded a one-half share in the full increase in the value of the property. Bordelon is distinguishable from the ease before us. In Bordelon, the owning spouse had a plot of land that was his separate property. After marriage, the couple constructed a home on the property for which the owning spouse’s labor was not fully compensated. Twelve years after the marriage was initiated, the couple divorced, and the property was sold. The value of the house was found to be $115,000.00. This court awarded the claimant spouse one-half of that amount, which was reduced due to other calculations not relevant to this case. Here, the record has an appraisal done after the improvements were made on the house, while the Bordelon court did not have such an appraisal that was made directly after the house was built. Second, the marriage in this case lasted less than two years, while the marriage in the Bordelon case lasted over twelve years. Thus, the effort necessary to maintain any improvements on the separate property was significantly greater, given a much longer period of time transpiring, as opposed to the brief time in the case before us. Finally, in the Bordelon case, the evidence presented by the owning spouse of factors other than undercompensated or uncompensated labor of either 19spouse was in dispute; however, the evidence of those factors in the case before us, the increase in demand after Hurricanes Katrina and Rita is un-contradicted.

Therefore, we decline to follow our sister court’s ruling in Deliberto that reimbursement claims such as the one before us is “an all or nothing proposition.” Id at 1101. Rather, we choose to follow the language of our supreme court cited above in Salley and in Abraham, 87 So.2d at 739, fn. 4. Once a claimant spouse has met his or her burden of proof, as stated in Salley, the claimant spouse is entitled to one-half of the entire increase in value of the separate property in full. However, once that spouse meets that burden of proof, the burden then is shifted to the owning spouse to prove that part of the increase in value of the separate property was due solely to factors other than the uncompensated or undercompensated labor of one of the spouses. If that burden is met, then that part of the increase in value is not part of the claimant spouse’s reimbursement claim. Therefore, in the case before us, we find that the trial court correctly addressed the burdens of proof in La.Civ. Code art. 2368; and, therefore we find no merit to Roy’s assignment of error.

ANCILLARY MATTER:

Although Roy did not specifically raise an assignment of error regarding the technique used by the trial court to value the property, she argued in brief that the trial court was manifestly erroneous in how it reached its decision as to the value of the separate property. Thus, in an effort to fully adjudicate the issues raised by Roy, we will address this issue.

This court, in Alford v. Alford, 94-1464, p. 7 (La.App. 3 Cir. 4/5/95) 653 So.2d 133, 136, stated:

It is well settled that, in valuing assets, the trial court is not required to accept, at face value, the valuation placed on assets by either Espouse. If the trial court’s valuations are reasonably supported by the record and do not constitute an abuse of discretion, its determinations should be affirmed.

We find that the trial court’s calculations with regard to the value of the separate property is supported by the record. St. Marie bought the property in May 2004 for $151,000.00. At that time, the property’s appraised value was $155,000.00. After performing some improvements on the property, in July 2005, for the purpose of obtaining a second mortgage on the property, St. Marie had the property appraised. The property appraised at that time for $162,000.00. Then, according to the testimony of J.R. Frank, a real estate agent familiar with area wherein the property is located, the property’s value increased significantly solely due to a shortage in housing supply resulting from a large increase in demand by the public after Hurricanes Katrina and Rita. The following is an excerpt of Frank’s testimony:

Q What occurred that changed real estate values in this area in August of 2005?
A Would have been the Katrina and Rita storms that took place, and that drove up a lot of property demand and sales of properties.
Q Did you see an across-the-board increase in appreciation values of the homes in Lafayette Parish?
A Yes, we did.
Q Was that increase startling, a very large increase?
A Very large increase, a large demand.
Q And if I then told you that a house that appraised in July of 2005 for a hundred and sixty-two thousand ($162,000) was then sold in July of 2006 for a hundred and ninety-five thousand ($195,000), would that be keeping in line with the appreciation due to the two (2) hurricanes?
A Yes, it would.
Q Would that be a full explanation, since there were no other 1 nimprovements between July of 2005 and July 2006?
A Yeah, it would due to the storms and the high demand of properties at that time. Because of the storms and an influx of people coming to the Lafayette area, it put a large demand on properties, and that caused a lot of builders to have to go out and build more properties, because the supply wasn’t there, so the demand was there. So it drove up the price of— the price of properties up.

Frank’s testimony provides a basis for the trial court to find that St. Marie met his burden of proving that the increase in value of the property from approximately $162,000.00 to $193,000.00 from July of 2005 to July of 2006 was solely due to factors other than the undercompensated or uncompensated labor of either of the spouses, namely the rise in demand resulting from Hurricanes Katrina and Rita. Therefore, we find that the trial court did not abuse its discretion in reaching its result.

CONCLUSION:

Roy raised one assignment of error, that the trial court erred in misapplying the burden of proof of St. Marie, which required him to rebut evidence that reimbursement was due under La.Civ.Code art. 2368 by showing that the increase in value to his separate property was due only to market conditions, and not at all from the common labor of the spouses. We found no merit in this assignment of error. We also addressed whether the trial court abused its discretion in valuing St. Marie’s separate property. We found support for the trial court’s judgment in the record. Accordingly, we affirm the trial court’s judgment. All costs of these proceedings are assessed to Roy.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    Thomas F. THIELS, et ux. v. Jonas Jeron DENNIS, et ux.
    No. 09-957.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      Ricky L. Sooter, George I. Fine, Pro-vosty, Sadler, deLaunay, Fiorenza & So-bel, Alexandria, LA, for Plaintiffs/Appellants, Thomas F. Thiels and Virginia Hanes Thiels.
    James E. Uschold, New Orleans, LA, Randal Bryan Tannehill, Tannehill & Sylvester, Pineville, LA, for Defendants/Ap-pellees, Jonas Jeron Dennis and Helen Winn Dennis.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

| plaintiffs, Thomas and Virginia Thiels, seek to enforce a servitude of passage and to prohibit a neighboring property owner from interfering with that servitude. Though the trial court ruled that the neighboring property owners’ gate crossing the servitude interfered with the right of passage, the trial court allowed the brick columns erected on the servitude to remain. Mr. and Mrs. Thiels appeal this portion of the trial court’s judgment because the brick columns unlawfully encumber the right of passage and, thus, must be removed. For the following reasons, we affirm in part and reverse in part in favor of Mr. and Mrs. Thiels. The title creating the servitude is clear regarding the width of the servitude of passage.

I.

ISSUE

We must decide whether the trial court erred in refusing to order the demolition of the brick columns erected on the servitude of passage.

II.

FACTS AND PROCEDURAL HISTORY

On October 8, 1979, Judy Thiels Snow and James A. Snow conveyed a twenty-four acre tract of land in Rapides Parish to Mr. and Mrs. Thiels. That same day, the Snows granted a fifty-foot wide predial servitude in favor of the twenty-four acres acquired by Mr. and Mrs. Thiels. Thereafter, the Snows conveyed to them an additional tract of land traversed by the aforementioned predial servitude.

In May 1982, James A. Snow and Judy M. Thiels conveyed the five acre servient estate by cash sale to Hardy LaCour. The survey attached to the sale to LaCour clearly shows the fifty-foot wide predial servitude at issue. In November | g2Q06, the LaCour heirs sold the servient estate to Defendants, Jonas and Helen Dennis. The legal description in the Act of Cash Sale of the servient estate to Mr. and Mrs. Dennis specifically refers to the original survey which shows the predial servitude.

The dominant estate has been farmed since Mr. and Mrs. Thiels’ original acquisition of the property in 1979. Beginning in 1998, they leased the dominant estate to Thomas Vanderlick. Vanderlick, his various family members, and vendors have used the predial servitude of passage to gain access to the dominant estate.

In September 2007, Thomas Thiels discovered that Mr. and Mrs. Dennis were erecting brick columns and a gate across the servitude of passage. Mr. Thiels advised the work crew of his servitude, but the work continued. Mr. and Mrs. Dennis then placed a locked gate on the servitude area.

Mr. and Mrs. Thiels filed a petition for possession and preliminary and permanent injunction seeking removal of the obstruction. The trial court issued a preliminary injunction restraining Mr. and Mrs. Dennis, or anyone acting on them behalf, from maintaining or erecting any fences, gates, or improvements within the predial servitude of passage. The trial court ordered them to restore access to the predial servitude within fifteen days.

The trial court held a trial on the permanent injunction. The trial court entered a permanent injunction directing the removal of the gates but allowing the servient estate to maintain the brick columns. The court referenced testimony from Vander-lick regarding his use of the servitude and reasoned that the brick columns did not impair Vanderlick’s current use of the servitude.

_|#1.

LAW AND DISCUSSION

Standard of Review

This case poses a question of law, as it involves the interpretation of codal articles. Thus, the appropriate standard of review is de novo.

An appellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. If the trial court’s decision was based on its erroneous interpretation or application of the law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court.

Domingue v. Bodin, 08-62, p. 2 (La.App. 3 Cir. 11/5/08), 996 So.2d 654, 657 (citations omitted).

Moreover, under the de novo standard of review, the appellate court gives no additional weight to the trial court but, instead, conducts a de novo review and renders judgment on the record. Id. Accordingly, we will review the record in its entirety to determine whether the trial court’s decision was legally correct.

Use and Extent of the Predial Servitude

Louisiana Civil Code Article 748 governs this servitude of passage, established by title. This article states, in part, “[t]he owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude.” Moreover, as the Louisiana First Circuit Court of Appeal stated in Dupont v. Hebert, 06-2334, pp. 8-9 (La.App. 1 Cir. 2/20/08), 984 So.2d 800, 807, writ denied, 08-640 (La.5/9/08), 980 So.2d 695 (citations omitted):

[T]he use and extent of a predial servitude are regulated by the title by which they are created and in the absence of such regulation, they are governed by the rules set forth in LSA-C.C. arts. 698 through 774. It is only where the title does not specify the extent of the right and the mode of its exercise that the extent of the servitude of passage is ^subject to interpretation based on what is suitable for the kind of traffic necessary for the reasonable use of the dominant estate.
Thus, when a predial servitude is created by contract, courts have found that the title by which the servitude was created regulated the use and extent of such a servitude. Furthermore, only if the title was silent as to the extent and manner of use of the servitude have the courts resorted to an examination of the intent of the parties to determine the purpose of the servitude. When the title provides the exact dimensions of the area affected by the servitude, that contract must be given full effect. The owner of the servient estate may not, by unilateral action, effectively take over the unused areas of the servitude by establishing permanent structures thereon.

Louisiana Civil Code Article 749 explains: “[i]f the title is silent as to the extent and manner of use of the servitude, the intention of the parties is to be determined in light of its purpose.” Here, title created the servitude in question. It is not silent regarding the extent of the servitude. It is undisputed that the title created a servitude of passage of fifty feet on the servient estate and that the brick columns constructed by Mr. and Mrs. Dennis lie within that area. The evidence reflects that construction of the brick columns narrows the passage from fifty feet to eleven feet.

The law is clear and unambiguous. Mr. and Mrs. Thiels are entitled to free and unencumbered use of their servitude. Mr. and Mrs. Dennis have no legal basis for either constructing a gate across the servitude or narrowing the servitude from fifty feet to eleven feet. Construction of the gate and columns impermissibly diminishes the use of the servitude by Mr. and Mrs. Thiels.

The trial court required only that Mr. and Mrs. Dennis remove the gate but allowed the brick columns to remain. The trial court’s reasoning that the current use of the servitude by Vanderlick did not warrant removal of the columns is inconsistent with La.Civ.Code arts. 748 and 749. Because the title contract clearly allowed for fifty-foot wide servitude of passage on the servient estate, the trial court |serred by interpreting testimony regarding use of the servitude. Dupont, 984 So.2d 800. No doubt exists that Mr. and Mrs. Thiels are entitled to clear passage for the full width of fifty feet. Thus, the judgment of the trial court with regard to the brick columns is reversed, and Mr. and Mrs. Dennis are ordered to remove the columns within fourteen days of the finality of this judgment.

IV.

CONCLUSION

Based upon the foregoing, we reverse the portion of the judgment of the trial court regarding the brick columns erected on the servient estate. We affirm the remaining portions of the trial court’s judgment. Costs of this appeal are assessed to Jonas Jeron Dennis and Helen Winn Dennis.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Specifically, the Snows conveyed 24.1 acres of land to Mr. and Mrs. Thiels.

      . Specifically, Vanderlick testified that he did not bring large farm equipment through the servitude of passage.


author: GENOVESE, Judge. THIBODEAUX, Chief Judge,

text:
    Darlene Kay TYSON and William Tom Tyson, Jr. v. Floyd KING and Hartford Insurance Company.
    No. 09-963.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.
    Gregory N. Wampler, Lemoine & Wam-pler, Pineville, Louisiana, for Plaintiffs/Appellants, Darlene Kay Tyson and William Tom Tyson, Jr.
    Joseph H. Garbarino, Law Offices of Jeff R. Rytlewski, Lafayette, Louisiana, for Defendants/Appellees, Floyd King and Property and Casualty Insurance Company of Hartford.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Lin this suit for personal injuries, Plaintiffs appeal the trial court’s grant of summary judgment in favor of Defendants. For the following reasons, we reverse and remand with instructions.

FACTS

On November 16, 2006, Darlene Kay Tyson was operating a motor vehicle southbound on Louisiana Highway 3225 (Highway 3225), a two-lane roadway in Rapides Parish, Louisiana, approaching its intersection with Ates Road. Simultaneously, Floyd King was proceeding northbound on Highway 3225. As Mr. King passed the intersection of Highway 3225 and Ates Road, he “blacked out” and crossed into the southbound lane of travel on Highway 3225. Mrs. Tyson, in an effort to avoid a collision with Mr. King, applied her brakes and lost control of her vehicle before coming to a stop on the roadway. As a result of her having to take this evasive action, Mrs. Tyson allegedly sustained personal injury. There was no impact between the Tyson vehicle and the King vehicle, nor was there any impact with the Tyson vehicle and any other vehicle or object.

Plaintiffs, Mrs. Tyson and her spouse, William Tom Tyson, Jr., filed suit against Defendants, Mr. King and his automobile liability insurer, Property and Casualty Insurance Company of Hartford (Hartford). Mr. King and Hartford filed a Motion for Summary Judgment which was heard by the trial court on September 22, 2008. At the conclusion of that hearing, the trial court deferred making a ruling “without further evidence.” Following additional discovery, Defendants reurged their Motion for Summary Judgment which came before the trial court on June 1, 2009. LThe trial court orally granted Defendants’ motion and signed a judgment consistent therewith dismissing the claims of Mrs. Tyson, with prejudice. Mrs. Tyson appeals.

ISSUES

Mrs. Tyson presents the following issues for our review:

1. Did the trial court err in finding that [Mrs.] Tyson was no more than a “witness” to the accident because there was no physical impact between her vehicle and the King vehicle?
2. Did the trial court err in failing to use a duty-risk analysis in deciding the [M]otion for [S]ummary [Judgment?

LAW AND DISCUSSION

Both parties assert that a de novo review is the appropriate standard of review to be applied in this case. Although, generally, the de novo standard of review is employed by appellate courts reviewing summary judgments, this court has previously recognized the following distinction:

In a case where there are no contested issues of fact, and the only issue is the application of the law to the undisputed facts, as in the case at bar, the proper standard of review is whether or not there has been legal error. Hatten v. Schwerman Trucking Co., 04-1005 (La.App. 3 Cir. 12/8/04), 889 So.2d 448, writ denied, 05-076 (La.3/18/05), 896 So.2d 1009 (citing Cleland v. City of Lake Charles, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs denied, 03-1380, 03-1385 (La.9/19/03), 853 So.2d 644, 645).

Bailey v. City of Lafayette, 05-29, p. 2 (La.App. 3 Cir. 6/1/05), 904 So.2d 922, 923, units denied, 05-1689, 05-1690, 05-1691, and 05-1692 (La.1/9/06), 918 So.2d 1054, 1055.

Based upon the record of these proceedings, we find that the material facts are not in dispute. Accordingly, we must determine whether the trial court’s grant of summary judgment constituted legal error.

In her first issue presented for our review, Mrs. Tyson asserts that the trial court | ^erroneously classified her as a “witness” to the subject accident given the absence of physical contact between her vehicle and Mr. King’s vehicle. She contends that “[a]s a result of [Mr. King’s] breach of [the] duty owed to her, she became a participant in the accident, even though there was no direct impact between the vehicles.” Mrs. Tyson argues that “[s]he does not seek to recover as a result of witnessing an injury to another; she seeks to recover because she was involved in a traumatic accident as a result of the defendant’s negligence.” Mrs. Tyson concludes that “[s]ince she was a participant in the accident[,] she is entitled to recover.” Because we find Mrs. Tyson’s second issue to be inclusive of this argument, we will address both of these issues together.

Mrs. Tyson asserts on appeal that the trial court erred in not applying a duty-risk analysis to the facts of this case. She argues that Mr. King’s actions, in crossing over the center line into her lane of travel, violated the provisions of La. R.S. 32:79. Mrs. Tyson contends that this statutory duty “was imposed to protect against the risk of injuries such as that suffered by [her]” and that Mr. “King breached this duty by [his] failure to abide by [La. R.S. 32:79].” Continuing with the duty-risk analysis, |4Mrs. Tyson, concludes that “[t]he breach of the duty by [Mr.] King resulted in injuries to [her].” Moreover, “[t]he mere fact that the vehicles of [Mr.] King and [Mrs.] Tyson did not physically collide does not excuse the breach of the duty by [Mr.] King, nor does it absolve [him] or [Hartford] of liability.”

To the contrary, Mr. King and Hartford classify the present matter as one involving a “non-accident.” In their words, under the duty/risk analysis, it presents “[t]he broader legal issue [of] whether the risk of a person being allegedly injured by bringing their vehicle to a stop without any impact or trauma to the vehicle is within the scope of protection afforded by a motorist’s duty to maintain control of their vehicle.” They conclude that the requisite element of “legal or proximate cause” which “considers whether the risk of harm was within the scope of protection afforded by the duty breached” is lacking in the present case.

We find that the transcript of the hearing on the Motion for Summary Judgment reveals that the trial court granted the motion solely on the basis of a lack of physical contact between the vehicles. At the hearing on the Motion for Summary Judgnent, the trial court stated the following:

Okay. All right, I was interested in finding out if there were any cases, — I looked, too, — Counselor, if there were any involving a personal injury where there was no contact. I could not find any either. So, the Motion for Summary Judgment is granted and you will have to take it up with [the] Third Circuit.

However, this ruling of the trial court constituted legal error as there is no statutory or jurisprudential requisite of a physical impact between vehicles for the imposition of liability in a personal injury case arising out of a motor vehicle accident. Rather, the proper analysis in this negligence action is the duty/risk analysis. This court has |firecently explained the duty/risk analysis as follows:

[I]n order for liability to attach under a duty/risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element). See Roberts v. Benoit, 605 So.2d 1032 (La.1991), on rehearing, 605 So.2d 1050, 1051 (La.1991).

Higginbotham v. Rapides Found., 07-538, p. 8 (La.App. 3 Cir. 10/31/07), 968 So.2d 1226, 1232 (quoting Davis v. Witt, 02-3102, pp. 10-11 (La.7/2/03), 851 So.2d 1119, 1127).

According to the record, and specifically the trial court’s reasons for judgment, the trial court granted summary judgment in favor of Defendants based solely upon the fact that “there was no contact.” We find that there is no statutory or jurisprudential requisite of a physical impact or contact between vehicles for the imposition of liability in a motor vehicle accident. The absence of physical contact between Mrs. Tyson’s vehicle and Mr. King’s vehicle does not necessarily absolve Mr. King from liability. The trial court committed legal error in granting Defendants’ Motion for Summary Judgment without due consideration of a duty/risk analysis.

Consequently, we reverse the trial court’s grant of summary judgment in this case and remand the case to the trial court with instructions that it address Defendants’ Motion for Summary Judgment pursuant to a duty/risk analysis.

DECREE

The judgment of the trial court granting summary judgment in favor of Floyd |fiKing and Property and Casualty Insurance Company of Hartford and dismissing the claims of Darlene Kay Tyson and William Tom Tyson, Jr., is reversed. The matter is remanded for further proceedings with instructions to the trial court that it address Defendants’ Motion for Summary Judgment pursuant to a duty/ risk analysis. Costs of this appeal are assessed against Defendants/Appellees, Floyd King and Property and Casualty Insurance Company of Hartford.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THIBODEAUX, Chief Judge, concurs in part and dissents in part and assigns written reasons.

THIBODEAUX, Chief Judge,

concurring in part and dissenting in part.

| ,A remand is neither necessary nor appropriate. Summary judgments are reviewed de novo, using the same criteria as the trial court in determining the appropriateness of a summary judgment, that is, whether there is a genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. See Schroeder v. Bd. of Supervisors of La. State Unit)., 591 So.2d 342 (La.1991). An intermediate appellate court has the authority, duty, and responsibility to decide the case if the record before us is complete. La.Code Civ.P. art. 2164; Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975). This record is complete for summary judgment purposes.

For the foregoing reasons, I respectfully dissent in part.

      . Mr. Tyson asserted a claim for loss of consortium. Both parties, in brief, refer singularly to the claims of Mrs. Tyson. Given the derivative nature of his claim and for purposes of this opinion, unless otherwise indicated, we will likewise collectively refer to the Plaintiffs’ claims as those of Mrs. Tyson.

      . Louisiana Revised Statutes 32:79 provides as follows:
      Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply.
      (1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
      (2) The department may erect signs directing slow moving traffic to use a designated lane or designating those lanes to be used by traffic moving in a particular direction, and drivers of vehicles shall obey the directions of such signs.

      . "The standard negligence analysis we employ in determining whether to impose liability under La.Civ.Code art. 2315 is the duty/risk analysis....” Rando v. Anco Insulations, Inc., 08-1163, 08-1169, p. 26 (La.5/22/09), 16 So.3d 1065, 1085.


text:
    In re SUCCESSION OF Donald Clay SMITH.
    No. 09-969.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.
    Rehearing Denied March 10, 2010.
    Walter Evans Dorroh, Jr., Jena, LA, for Appellees-Angela Smith Appleby and Winnie Moore Smith.
    James L. Carroll, Columbia, LA, for Appellant-Clayton Donnell Barnhill.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

|,Appellant, Clayton Donnell Barnhill, an alleged biological child of the deceased, Donald Clay Smith, claims that the trial court erred by sustaining Winnie Moore Smith and Angela Smith Appleby’s exception of prescription. Barnhill maintains that the trial court erroneously interpreted the 2005 Civil Code amendment that governs filiation actions. Reasoning that the amendment did not apply retroactively so as to revive expired and extinguished filiation claims, the trial court dismissed with prejudice Barnhill’s petition to amend the judgment of possession in favor of Smith and Appleby. For the following reasons, we affirm.

I.

ISSUE

We shall consider whether the 2005 Civil Code amendment governing filiation actions allowed a child, born outside of marriage, to bring a filiation action in 2008 and thereby claim a portion of the intestate deceased’s estate where (1) the child became twenty years of age in 1998, and (2) the deceased died in 2007.

II.

FACTS

Barnhill, born May 28,1978, claims to be a biological child of the deceased and Eunice Cruse Barnhill. At the time of Barn-hill’s birth, the deceased was married to Winnie Moore Smith, and Eunice Cruse Barnhill was married to Johnny Barnhill. The deceased never acknowledged Barnhill as his child. Barnhill never attempted to filiate to the deceased until this suit.

After the deceased’s death in 2007, his surviving spouse, Smith, and his surviving child born of this marriage, Angela Smith Appleby, filed a petition for |2possession. The trial court issued a judgment of possession recognizing Smith as the surviving spouse in community of the deceased and granting her a legal usufruct over the undivided one-half interest of the deceased’s and all of the community property. The trial court also recognized Appleby as the only heir of the deceased and placed her in possession as the owner of all the deceased’s property, subject to her mother’s usufruct.

Barnhill filed a petition to amend the judgment of possession and to establish paternity. Alleging that he is a biological son of the deceased, Barnhill requested disinterment of the deceased to collect his DNA for paternity testing. He further demanded, as a biological child of the deceased, ownership of a one-half interest in all of the deceased’s property.

Smith and Appleby filed an exception of prescription and peremption. They asserted that at the time Barnhill passed the age of nineteen, he lost the right to filiate under the law in effect at that time. Thus, they alleged that because Barnhill could not establish paternity, he had no claim to the deceased’s estate. Agreeing with Smith and Appleby, the trial court sustained their exception.

Barnhill appeals claiming that, based on the 2005 amendment to the Civil Code, the applicable peremptive period is one year from the day of the death of the alleged father, irrespective of the child’s age. Barnhill argues this peremptive period applies because the deceased died after the amendment became effective.

III.

STANDARD OF REVIEW

Appellate courts review for manifest error judgments on the exception of prescription. Credeur v. Champion Homes of Boaz, Inc., 08-1096 (La.App. 3 Cir. 3/4/09), 6 So.3d 339, writ denied, 09-1099 (La.9/4/09), 17 So.3d 965. On the other |shand, courts review statutory interpretations de novo because they present questions of law. Stewart v. Estate of Stewart, 07-333 (La.App. 3 Cir. 10/3/07), 966 So.2d 1241.

IV.

LAW AND DISCUSSION

The now-vacated La.Civ.Code art. 209 required a child not entitled to legitimate filiation to institute filiation proceedings “within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs.” Our legislature substantively changed this law by the Filiation of Parents and Children Act, effective June 29, 2005, No. 192, 2005 La. Acts 1444. The legislature made changes expressed in that Act “applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date.” 2005 La. Acts No. 192, § 3 (emphasis added).

The current law reads that “for purposes of succession only,” the peremptive period for a child to “institute an action to prove paternity[,] even though he is presumed to be the child of another man[,]” is one year “from the day of the death of the alleged father.” La.Civ.Code art. 197. Thus, under the prior law, the child’s age was extremely important. The current law, on the other hand, requires the child to bring the suit within one year of the parent’s death irrespective of the child’s age. Because the alleged heir in this case reached the age of nineteen in 1997, at the time the now-vacated La.Civ.Code art. 209 was in effect, the question is whether the 2005 amendment applies retroactively to revive this already-perempted filiation action.

This and other Louisiana courts have already examined the 2005 amendment’s effect. Thus, where the alleged father died prior to the amendment, but |,,the children’s appeal was pending when the amendment became effective, this court rejected the amendment’s applicability to the filiation actions of the alleged heirs who were well beyond nineteen years of age. In re Succession of McKay, 05-603 (La.App. 3 Cir. 2/1/06), 921 So.2d 1219, writs denied, 06-504, 06-631 (La.6/2/06), 929 So.2d 1252, 1253. This court explained that although, generally, prescriptive statutes are procedural, once the prescriptive period elapses, a party acquires a right to plead the exception of prescription. Id. (quoting Chance v. Am. Honda Motor Co., Inc., 93-2582 p. 2 (La.4/11/94), 635 So.2d 177, 178). A change in the right to plead the exception is a substantive change in the law. Id. Because procedural statutes that also change substantive law must be construed to apply only prospectively, we required a clear and unequivocal expression of legislative intent for the statute to apply retroactively. Id. This court concluded the language in section 3 of the Filiation of Parents and Children Act that “[t]he provisions of this Act shall be applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date” expressed no such legislative intent. Deciding that the alleged heirs’ claims for filiation prescribed when they reached nineteen years of age, this court held that the 2005 amendment did not revive their already-prescribed claims.

Although not a mandatory authority, our sister-jurisdiction has expressed a similar sentiment regarding the 2005 amendment’s effect in hi re Succession of James, 07-2509 (La.App. 1 Cir. 8/21/08), 994 So.2d 120, writ denied, 08-2302 (La.12/12/08), 996 So.2d 1119. There, the alleged heir was born in 1966. The alleged heir filed a filiation action in 2007, within one year of her alleged father’s death and after the 2005 amendment became effective. There, the court rejected the alleged hem’s argument that because it was a succession proceeding, her claim was not a true | ¿action for filiation but one to establish her heir-ship status: “the cause of action here is one to establish paternity or filiation; a prerequisite action necessary before Ms. Thibodeaux [the alleged biological daughter of the deceased] can qualify as an heir.” Id. at 125. Moreover, the court held that the Filiation of Parents and Children Act’s command to apply the amendment’s changes to all claims existing or actions pending on its effective date “refers to existing or viable causes of action and does not denote a matter that has prescribed or been perempted.” Id. at 125 (citing Cameron Parish Sch. Bd. v. ACandS, Inc., 96-895 (La.1/14/97), 687 So.2d 84). The court concluded that La. Civ.Code art. 209, in effect at the time the alleged heir reached nineteen years of age, extinguished her cause of action more than twenty years before she filed the suit.

Like the alleged heir in In re Sttccession of James, 994 So.2d 120, Barnhill strenuously attempts to convince this court that his right to inherit is independent from his right to filiate. Thus, Barnhill argues that because the right to inherit does not arise until the death of a parent, this court should allow him “to exercise a lawful previously non-existent right to inherit.”

Certainly, a right to inherit and a right to filiate are different rights. Yet, Barn-hill urges us to put the proverbial cart before the horse. As the James court correctly observed, in the case where the deceased is not an established parent, a filiation action is necessary before the alleged heir may assert the right to inherit. Thus, Barnhill does not have a “lawful previously non-existent right to inherit” until he proves his filiation to the deceased.

Here, Barnhill’s right to bring a filiation action was extinguished and ceased to exist nineteen years after his birth. Once that occurred, Smith and Appleby acquired the right to plead the exception of prescription. Passage of the 2005 |(iamendment brought a substantive change to a party’s right to plead the exception. Contrary to Barnhill’s assertions, the Filiation of Parents and Children Act’s command to apply the amendment’s changes to “all claims existing or actions pending on its effective date” did not clearly and unequivocally express the legislature’s intent to apply the 2005 amendment retroactively so as to revive his claim. We reiterate this court’s pronouncement in In re Succession of McKay, 921 So.2d 1219, and our sister jurisdiction’s holding in In re Succession of James, 994 So.2d 120, that, based on the language in section 8 of the Filiation of Parents and Children Act, the amendment applies to viable causes of action and not to ones that have already been extinguished. Unlike the mythological phoenix, Barnhill’s filiation claim cannot rise from the ashes. . Therefore, we find the trial court did not manifestly err by sustaining Smith and Appleby’s exception of prescription.

V.

CONCLUSION

The trial court’s dismissal of Clayton Donnell Barnhill’s suit with prejudice is affirmed. Costs of this appeal are assessed to Clayton Donnell Barnhill.

AFFIRMED.

GENOVESE, J., concurs in the result.

      . 2005 La. Acts No. 192, vacating La.Civ. Code art. 209 and adding La.Civ.Code art. 197.


author: CHATELAIN, Judge Pro Tempore.

text:
    Joseph SIMPSON v. LAFAYETTE CONSOLIDATED GOVERNMENT.
    No. 09-816.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      Mark A. AcKal, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Lafayette Consolidated Government.
    Daniel J. Dazet, Dazet & Associates, Baton Rouge, LA, for Plaintiff/Appellee, Joseph Simpson.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and DAVID E. CHATELAIN, Judges.
   CHATELAIN, Judge Pro Tempore.

Bin this workers’ compensation matter, Lafayette Consolidated Government (LCG) appeals a judgment the workers’ compensation judge (WCJ) rendered in favor of its employee, Joseph Simpson. Mr. Simpson answers the appeal seeking an award of attorney fees due to the handling of this appeal. For the following reasons, we affirm the judgment but decline to award Mr. Simpson attorney fees on appeal.

FACTS AND PROCEDURAL HISTORY

Mr. Simpson was injured in the late morning of October 3, 2002, when he was blown off the steps of a temporary trailer and thrown to the ground during Hurricane Lili. He was working as an Engineer Specialist 1 at the time, and his duties included checking the five major pump stations in the City of Lafayette during severe weather to ensure that they were operational and functioning properly. Mr. Simpson testified that as he was exiting the trailer which housed his office, a “strong gust of wind took [him], and the door just flung [him],” causing him to fall down four or five steps and hit the ground, landing on his knees. After he was unable to get up on his own, about eight of his coworkers carried him back into the trailer. An ambulance was called but could not come out because the weather conditions were too bad; therefore, his co-workers transported him to the emergency room (the ER) at Lafayette General Medical Center.

Dr. Angela Mayeux, an orthopaedic surgeon, treated Mr. Simpson in the ER. He complained of pain to both knees at the time of his admission. Within a week of the accident, Dr. Mayeux performed surgery on his left knee to repair a tear to his patellar tendon. Mr. Simpson attended physical therapy for approximately six months. Dr. Mayeux performed a second surgery on Mr. Simpson in August of 2004 |2to remove scar tissue from his left knee. Dr. Mayeux referred Mr. Simpson to Dr. Joseph Gillespie for pain management in May of 2005. At the time of trial, Mr. Simpson was still under the care of Dr. Gillespie.

At the urging of LCG, Mr. Simpson saw Dr. Michael Duval, an orthopaedic surgeon, for a second opinion on September 5, 2003. He was seen by Dr. Sandra Weitz, a pain management specialist, for a second opinion in October 2005. LCG sent Mr. Simpson to Dr. Wayne Lindermann, a physical rehabilitation physician, for a second opinion in February of 2006. Later, in August of 2006, LCG sent Mr. Simpson to Dr. Malcolm Stubbs, an orthopedist, for an independent medical examination (IME).

Mr. Simpson filed a Disputed Claim for Compensation on September 17, 2003, asserting that his wage benefits had been wrongfully terminated in August 2003 and requesting that he be allowed to seek treatment of his choice of pain specialist. On March 20, 2006, LCG filed a reconven-tional demand, asserting that Mr. Simpson was no longer temporarily totally disabled. It averred that he was capable of full-time, sedentary work and thus no longer entitled to indemnity benefits because he had refused to work at the modified, sedentary position LCG offered. In addition, LCG claimed that the medical treatment Dr. Gillespie currently provides is not reasonable and necessary.

At the July 22, 2008 trial, the parties stipulated that Mr. Simpson suffered an accident on October 3, 2002, that occurred within the course and scope of his employment with LCG. They further stipulated as to Mr. Simpson’s average weekly wage and that he had received weekly indemnity benefits through the date of trial. Finally, they stipulated that LCG relied on the medical opinion of Mr. Simpson’s ^treating physician, Dr. Mayeux, in denying treatment relative to his right knee. At the close of the testimony, the matter was taken under advisement. Oral reasons for judgment were rendered on December 17, 2008. Therein, the WCJ found that Mr. Simpson sustained an accident within the course and scope of his employment on October 3, 2002, which caused him injuries, including an injury to his right knee, thus making that injury compensable under the workers’ compensation statute. The WCJ denied LCG’s reconventional demand on the basis of its determination that LCG’s efforts to find Mr. Simpson suitable employment with regard to his disability were not fitted to his restrictions. Nevertheless, the WCJ directed Mr. Simpson to cooperate with any efforts LCG made to help him wean himself from narcotic medication. Written judgment was rendered on March 16, 2009.

LCG now appeals, claiming that the following findings made by the WCJ are not supported by the record and are manifestly erroneous, thus requiring reversal: (1) Mr. Simpson sustained personal injury to his right knee as a result of an accident arising out of and in the course of his employment with LCG; (2) Mr. Simpson is entitled to temporary total disability benefits (TTDs) and/or supplemental earnings benefits (SEBs); (3) LCG’s efforts to find Mr. Simpson suitable employment with regal'd to his disability were not fitted to his restrictions; and, (4) Mr. Simpson is entitled to the narcotic pain medication Dr. Gillespie prescribed.

DISCUSSION

The Louisiana Supreme Court set out the standard of review employed in workers’ compensation cases in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556 (citations omitted):

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In ^applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.

“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). A worker bringing a compensation action against his employer bears the burden of proving, as a threshold requirement, that he suffered “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031(A); Bruno v. Harberl Int’l Inc., 593 So.2d 357 (La.1992). The word “accident” as used in La. R.S. 23:1031 is defined as “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). A worker’s testimony alone may be sufficient to meet his burden of proving that a work-related accident occurred and that an injury was sustained, “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.” Bruno, 593 So.2d at 361. In determining whether the worker has met his burden of proof, the workers’ compensation judge “should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent 'circumstances casting suspicion on the reliability of this testimony.’ ” Id. (citations omitted).

The determinations by a workers’ compensation judge “as to whether the worker’s testimony is credible and whether the worker has discharged his ... burden of proof are factual determinations not to be disturbed on review unless clearly wrong |5or absent a showing of manifest error.” Id. Moreover, the factual findings of a workers’ compensation judge are entitled to great deference on appellate review. Hebert v. C.G. Logan Constr., Inc., 06-612 (La.App. 3 Cm. 11/2/06), 942 So.2d 77.

Did Mr. Simpson injure his right knee in the October 3, 2002 accident, thus entitling him to benefits under the workers’ compensation statute?

LCG insists that Mr. Simpson failed to prove a causal connection between his October 2002 accident and his right knee pain. It admits that while Mr. Simpson did complain of pain in both knees to Dr. Mayeux when she first treated him in the ER following the accident, her notes contained no mention of right knee pain for the next seventeen months. It points to correspondence from Dr. May-eux dated June 2, 2004, in which she stated that Mr. Simpson’s “current complaints of rig'ht knee pain were more likely than not unrelated to his accident of October 3rd 2002.” LCG refers to the August 2006 orthopaedic evaluation Dr. Stubbs prepared when he provided an IME to Mr. Simpson, wherein he stated that the MRI of Mr. Simpson’s right knee is “very much inconclusive” and that he did not feel that surgery to Mr. Simpson’s light knee was warranted at the time. LCG adds that there is no mention of any right knee pain in any of the notes documenting Mr. Simpson’s seventy-one physical therapy sessions. Finally, LCG refers to an Employee’s Report of Job Injury completed by Mr. Simpson nineteen days after his accident where he listed injuries to his left knee, left leg, lower back, and hip with no mention of injury to his right knee.

To the contrary, Mr. Simpson argues that LCG ignores that legal causation and medical causation are two different concepts and that medical evidence should not be relied upon to the exclusion of all other relevant evidence when determining whether an injury is compensable under the workers’ compensation statute. Mr. Simpson relies on Hammond v. Fidelity & Casualty Co. of New York, 419 So.2d 829, 832-33 (La.1982) (footnote omitted), wherein the supreme court explained the difference between the concepts of legal causation and medical causation, stating:

[The lower courts] failed to distinguish the “medical” meaning of cause from the “legal” meaning of cause. When the doctors speak of cause they are essentially speaking of etiology — the origin of disease; what initially causes a disease. When courts and lawyers speak of cause they are concerned with the question of whether the particular incident in question contributed to the plaintiff s disability by making manifest symptoms previously unnoticed. “Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence.” Haughton v. Fireman’s Fund Amencan Insurance Companies, 356 So.2d 927, 928 (La.1978).

In determining that the treatment to Mr. Simpson’s right knee was compensable under the workers’ compensation statute, the WCJ was persuaded by Mr. Simpson’s testimony that he injured both knees in the October 3, 2002 accident, but because his left knee had been more critically injured, the majority of the medical attention had been focused on it. The WCJ noted that Mr. Simpson testified that the problems with his right knee had increased with the passage of time. The WCJ agreed with Mr. Simpson’s argument that, given his size and the fact that he was “literally blown down the steps by the winds during a hurricane,” it was certainly plausible that he injured his right knee in the 2002 accident. In his reasons for judgment, the WCJ stressed that Mr. Simpson never had any problems with his right knee prior to the 2002 accident, but there are documented complaints regarding his right knee after the accident.

In Freeman v. Best Western Richmond Suites Hotel, 97-1462, p. 11 (La.App. 3 Cir. 4/22/98), 711 So.2d 438, 443, writ denied, 98-1393 (La.7/2/98), 724 So.2d 737 (citations omitted), this court wrote:

[7It is also important to note that an employee’s work-related accident is presumed to have caused his disability when it is proven that the disabling symptoms were not manifested before the accident, the disabling symptoms appeared after the accident, and there is either medical or circumstantial evidence providing a reasonable possibility of causal connection between the accident and disabling injury. Although, the claimant has the burden of proving that the accident somehow caused or contributed to the disability, the exact cause need not be found. Additionally, the question of the existence of a disability presents a legal and not purely medical question, which must be determined through a consideration of both lay and medical testimony.

The applicable standard of review dictates that we accord great deference to the WCJ’s findings of fact and reasonable evaluations of credibility. Given the totality of the evidence presented, including the initial report of a right knee injury, the surgical treatment of Mr. Simpson’s left knee injury, and the attendant pain management, we find no error in the WCJ’s finding that Mr. Simpson injured his right knee in the October 2002 work-related accident.

Is Mr. Simpson entitled to TTDs and/or SEBs? Did LCG prove that it found Mr. Simpson suitable employment with regard to his disability?

LCG insists that Mr. Simpson did not meet his burden of proving that he has an ongoing temporary/total disability or that he was physically unable to engage in any employment. According to LCG, all of the physicians who evaluated Mr. Simpson opined that he was capable of performing full-time, sedentary work as of August 2006 at the latest. Moreover, LCG submits that it bent over backwards to accommodate Mr. Simpson and to comply with the restrictions Dr. Gillespie placed upon his employment, but that Mr. Simpson refused to return to his job. In addition, LCG argues that with the help of Ms. Zelda Lagrange, a vocational rehabilitation counselor, Mr. Simpson was made aware of two medically-approved jobs, both of which he declined. Accordingly, LCG avers that the WCJ erred in concluding that | xMr. Simpson was entitled to TTDs and/or SEBs and in concluding that it did not offer Mr. Simpson employment fitted to his restrictions.

Mr. Simpson counters that the record fully supports the WCJ’s findings that he was not provided with a job consistent with the restrictions Dr. Gillespie provided and thus entitled to ongoing indemnity benefits. While Mr. Simpson does not dispute that LCG “made a valiant effort” to accommodate his return to employment, he submits that the evidence shows that he likewise attempted to return to his job at LCG, but his efforts were thwarted by his physical inability to meet the requirements placed upon him. As a result, Mr. Simpson submits that while commendable, the accommodations made by LCG to put him back to work fell short.

In March 2006 correspondence written to provide clarification on the work restrictions that he had placed on Mr. Simpson, Dr. Gillespie stated that Mr. Simpson could perform “a sedentary level at a self-paced level of activity,” adding that “[i]f you require anything more rigid then it is no longer self-paced.” Dr. Gillespie additionally directed that “self-pace can vary from day-to-day, week-to-week, hour-to-hour.” His advice to LCG was that it “pay [Mr. Simpson] by the job, let him do it at home, and avoid this unnecessary turmoil.” In ruling in favor of Mr. Simpson with regard to his claim for continuing indemnity benefits, the WCJ found that the phrase “self-paced employment” had “been stretched ... to its limits by both sides,” leading each “to proceed with their own self-serving definition” of the phrase. Noting that the vocational rehabilitation counselor worked on behalf of the employer, the WCJ found that the “lack of essential clarity” with regard to the restrictions placed on Mr. Simpson’s return to work by his treating physician was “scarcely the fault” of Mr. Simpson. As a result, the WCJ found that LCG’s efforts to find suitable |9employment for Mr. Simpson with regard to his disability were not fitted to his restrictions.

We have thoroughly examined the record. Although there is contradicting evidence with regard to Mr. Simpson’s right to continue to receive indemnity benefits, we conclude that the WCJ clearly articulated a reasonable basis for its decision to rule in favor of Mr. Simpson given the dispute over the meaning of the restrictions placed on his ability to return to employment, and we cannot say that such finding is manifestly erroneous or clearly wrong.

Is Mr. Simpson entitled to the narcotic pain medication prescribed by Dr. Gillespie?

LCG argues that Mr. Simpson failed to prove that his continued use of the short-acting, narcotic pain medication Dr. Gillespie prescribed is reasonable and necessary. It submits that all of the physicians who evaluated Mr. Simpson, other than Dr. Gillespie, opined that he should be prescribed long-acting, less sedating, pain medication.

Mr. Simpson acknowledges that the majority of the physicians involved in this matter agree that his pain medications should be changed. Nevertheless, he submits that there has been no actual change in his treatment protocol to affect such a change and that the WCJ was correct in finding that a court is not the proper venue to pursue such a change in medical treatment.

In denying LCG’s request for a ruling that Mr. Simpson was no longer entitled to the narcotics Dr. Gillespie prescribed, the WCJ stated that while he had no intention of ordering a treating physician to modify Mr. Simpson’s pain medication, he would order Mr. Simpson to cooperate with any efforts LCG made to facilitate his being weaned off narcotic medication.

|10We find no error in the WCJ’s refusal to alter Mr. Simpson’s medication, despite the overwhelming evidence that it is detrimental to him to continue taking narcotic medications. Obviously, if someone is addicted to narcotic pain medication, and the evidence suggests that Mr. Simpson has become so addicted, that person should be weaned off of such medication in a medically supervised manner; to do otherwise would be reckless.

Mr. Simpson’s answer to appeal

Although Mr. Simpson is correct in his assertion that LCG has simply reasserted on appeal the same arguments that it originally presented to the WCJ, we reject his characterization that LCG’s appeal was baseless. Notably, the WCJ did not award Mr. Simpson attorney fees or costs despite his having prevailed on all contested issues. The general rule is that an increase in attorney fees is usually allowed where the WCJ awarded a party attorney fees and that party is forced to and successfully defends an appeal, provided that the party properly requests such an increase. McKelvey v. City of Dequincy, 07-604 (La.App. 3 Cir. 11/14/07), 970 So.2d 682. Even though we have affirmed the judgment of the WCJ, we decline to award Mr. Simpson any attorney fees on appeal because the trial court did not award attorney fees and Mr. Simpson has cited no legal authority for us to award attorney fees for defending the judgment in such an instance. See Battiste v. Dolgencorp, 09-683 (La.App. 1 Cir. 10/27/09), 29 So.3d 616, 2009 WL 3446402; LaFleur v. M. Langenstein & Sons, Inc., 09-140 (La.App. 4 Cir. 7/15/09), 16 So.3d 1178.

InDECREE

For the foregoing reasons, the judgment of the WCJ is affirmed in all respects. Mr. Simpson’s answer to appeal is denied. All costs of this appeal are assessed against Lafayette Consolidated Government.

AFFIRMED. ANSWER TO APPEAL DENIED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . In response to questioning by the WCJ, Mr. Simpson testified that he weighed approximately 250 pounds at the time of the accident.


author: PETERS, J.

text:
    CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER (Cheryl Harr) v. McDONALD’S OF PINEVILLE and Louisiana Restaurant Association Self-Insurers Fund. Central Louisiana Ambulatory Surgical Center (Paul Troquille) v. McDonald’s of Pineville and Louisiana Restaurant Association Self-Insurers Fund.
    Nos. 09-0823, 09-0840.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.
    R. Bray Williams, Joe Payne Williams, Williams Family Law Firm, LLC, Natchi-toches, LA, for Plaintiff/Appellee, Central Louisiana Ambulatory Surgical Center.
    Stephen W. Glusman, Glusman, Broyles & Glusman, LLC, Baton Rouge, LA, for Defendants/Appellants, McDonald’s of Pineville and Louisiana Restaurant Association Self-Insurance Fund.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   PETERS, J.

The defendants in these consolidated workers’ compensation cases, McDonald’s of Pineville and Louisiana Restaurant Association Self-Insurers Fund, appealed the judgment of the workers’ compensation judge rendered in favor of the Central Louisiana Ambulatory Surgical Center (CLASC). CLASC answered the appeal, seeking additional attorney fees for work performed on appeal. After both sides complied with this court’s briefing schedule, but prior to oral argument, the defendants filed a motion to dismiss their appeals. This court granted their motion to dismiss, but reserved unto CLASC its claim for attorney fees. The attorney fee issue is the only issue before us on appeal.

A plaintiff who successfully defends a judgment on appeal is entitled to additional attorney fees upon request. Matt v. Agro Distribution, LLC, 05-291 (La.App. 1 Cir. 6/1/05), 904 So.2d 928. CLASC was successful in that regard despite the fact that this court was precluded from ruling on the merits of the underlying dispute because of the defendants’ dismissal of their appeal. Accordingly, we award CLASC $5,000.00 in attorney fees for work performed on appeal.

CONCLUSION

For the foregoing reasons, we render judgment in favor of Central Louisiana Ambulatory Surgical Center and against McDonald’s of Pineville and Louisiana Restaurant Association Self-Insurers Fund in the amount of $5,000.00, said award representing attorney fees for work performed on appeal by its counsel. We assess all costs of this appeal to McDonald’s of Pineville and Louisiana Restaurant Association Self-Insurers Fund.

JUDGMENT RENDERED.


author: GENOVESE, Judge.

text:
    George NORWOOD v. Michael R. GARBER.
    No. 09-956.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.
    George Norwood, In Proper Person, Ragley, Louisiana, Plaintiff/Appellant.
    Emmett C. Sole, Dallas K. Kingham, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, Louisiana, for Defendant/Appellee, Michael R. Garber.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| iPlaintifi/Appellant, George Norwood, appeals the judgment of the trial court granting the Motion to Enforce Mediation Settlement filed by Defendant/Appellee, Michael R. Garber. For the following reasons, we affirm the judgment of the trial court.

FACTS

This matter involves a legal malpractice lawsuit filed by Mr. Norwood against Mr. Garber on the basis that Mr. Garber’s representation of Mr. Norwood in a real estate transaction was allegedly negligent. The parties agreed to mediation. Pursuant to said mediation, the parties entered into a settlement and signed a settlement agreement. However, due to Mr. Nor-wood’s refusal to accept the settlement proceeds, Mr. Garber filed a Motion to Enforce Mediation Settlement. The trial court granted Mr. Garber’s motion and ordered Mr. Norwood to comply with the terms of the settlement agreement. Mr. Norwood appeals.

ASSIGNMENT OF ERROR

In his sole assignment of error, Mr. Norwood asserts that the trial court erred by dismissing his “claim inspite [sic] of clear and conviencing [sic] evidence showing that [he] was tricked into signing a settlement agreement!.]”

LAW AND DISCUSSION

Pursuant to the Alternative Dispute Resolution provisions of the Louisiana Mediation Act, La. R.S. 9:4111(A) provides:

If, as a result of a mediation, the parties agree to settle and execute a written agreement disposing of the dispute, the agreement is enforceable as any other transaction or compromise and is governed by the provisions of Title XVII of Book III of the Civil Code, to the extent not in conflict with the provisions of this Chapter.

| gLouisiana Civil Code Article 3071 provides: “A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.”

In his brief, Mr. Norwood alleges:
While engaging in a mediation settlement, I was quoted a $145,000 (ONE HUNDRED AND FORTY[-]FIVE THOUSAND DOLLARS) amount for settlement; however, I later learned that the amount quoted and the amount that I would actually receive had changed to an amount of $45,000 (FORTY[-]FIVE THOUSAND) for which I did not agree to; thus, there was no meeting of the mind[s] in order to conclude a settlement agreement.

Mr. Norwood further asserts that “the entire mediation process was tainted and tilted unfairly in Mr. Garber’s favor” due to a past professional partnership between the mediator/attorney, Bernard McLaughlin, and Mr. Garber’s counsel of record, Emmett Sole.

Mr. Garber counters by arguing that there was no evidence introduced at the hearing of this matter which substantiates Mr. Norwood’s “allegation that his signature on the mediation settlement agreement was obtained by fraudulent means.” Thus, Mr. Garber contends there are no grounds upon which this court can reverse the trial court’s judgment.

At the hearing on Mr. Garber’s Motion to Enforce Mediation Settlement, the trial court inquired, “[Y]ou’ve already admitted that you agreed to mediate. After this was all over, after visiting with the mediator and what have you, you signed a document memorializing your agreement to settle the case. Why did you change your mind?” Mr. Norwood replied, “Because the money is not right on the document. They changed the money.”

In LeBlanc v. State Farm Insurance Co., 03-1522 (La.App. 3 Cir. 5/26/04), 878 So.2d 715, this court affirmed the trial court’s granting of the defendant’s motion to compel the enforcement of a settlement. In LeBlane, this court held that without any evidence to support plaintiffs allegation that she signed the agreement under duress, “[b]y the clear language of [La.Civ. Code art. 3071], [the] Mediation Settlement Agreement signed by the parties ... constitute^] a legal and binding compromise.” Id. at 720.

In the instant matter, there was no evidence presented by Mr. Norwood to support his contention that he was tricked into signing the settlement agreement at issue herein. For the reasons stated above, we find no legal basis for reversing the trial court’s judgment in this matter.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court. All costs of these proceedings are assessed against Plaintiff/Appellant, George Norwood.

AFFIRMED.