author: SUSAN M. CHEHARDY, Judge.

text:
    WHOLESALE PRINTABLES v. LOGO EXPRESS MARKETING, INC. and Raju R. Sadhwani.
    No. 09-CA-880.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 9, 2010.

      Dennis J. Elfert, Attorney at Law, Hou-ma, LA, for Appellee, Wholesale Printa-bles.
    Elmer G. Gibbons, III, Attorney at Law, Metairie, LA, for Appellant, Logo Express Marketing, Inc. and Raju R. Sadhwani.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

|2On Appeal, Logo Express Marketing, Inc. seeks review of the judgment on open account against it in favor of Wholesale Printables, Inc. For the following reasons, we affirm.

Plaintiff, Wholesale Printables, filed suit on open account against defendants, Logo Express Marketing, Inc. and Raju R. Sa-dhwani, for unpaid invoices, returned checks, and “finance charges” totaling $156,900.77 with legal interest, attorney fees, and costs. In this case, Wholesale Printables (“WP”) sells printable merchandise, such as t-shirts and hats, on which others paint, screen, or embroider their emblems. Logo Express Marketing, Inc. (“Logo”) has purchased t-shirts and other printable merchandise from WP since 2002. Throughout their business relationship, Mr. Sadhwani of Logo would place an order then he or one of his designated employees would pick up the order at WP’s Harahan warehouse.

At trial, WP presented evidence that, as early as April 22, 2005, Logo picked up merchandise from WP without immediately tendering payment. WP presented testimony from its Secretary/Treasurer, Debbie Marchiafava, that, according to their accounting system, as of August 31, 2005, Logo had an outstanding balance |,..of $143,676.75 with their company. At trial, WP introduced original invoices and reprints of unavailable invoices, which Marchiafava testified were either damaged or destroyed when WP’s Harahan warehouse was damaged by Hurricane Katrina.

At trial, Mrs. Marchiafava, and two former WP employees, Leann Oubre and Mike Melville, testified about the computer accounting system that WP used in its daily business. In short, when a customer places an order with WP, the WP customer service representative inputs the order into the computer system. The computer system generates a “pick ticket” that details the order, and warehouse employees assemble the order for pickup by or delivery to the customer. Thereafter, an office employee prints an invoice for the order on a three-part form consisting of a white page, a yellow page and a green page.

In WP’s ordinary course of business, when an order is picked up by the customer, the customer pays for the merchandise in WP’s office (attached to the warehouse) before receiving the goods. After receiving payment, the WP employee gives the white and green pages of the invoice to the customer and retains the yellow copy for their files. On a daily basis, all payments and yellow copies are couriered to WP’s Baton Rouge office to be processed by the accounting department. At trial, WP introduced evidence of unpaid invoices to Logo, totaling $140,885.61, plus returned checks from Logo totaling $4,579.80, and accrued “finance charges” of $11,435.36.

WP employees, Leann Oubre and Mike Melville, who worked in WP’s Harahan location, testified that Logo’s orders were usually picked up by one of Mr. Sa-dhwani’s employees, Jeff or Sylvester. Further, Ms. Oubre and Mr. Melville identified initials on a number of invoices as Jeffs or Sylvester’s initials. Furthermore, Ms. Oubre testified that she remembered Mr. Melville, the office manager, personally handling some of Logo’s orders because Logo, since it was a |4“big” customer, was allowed to pick up merchandise without making payment, i.e., “on credit,” which was unusual. Mr. Melville also verified that, in order to cultivate a business relationship, he personally dealt with Logo’s employees when they came to pick up orders.

At trial, Mr. Sadhwani admitted that the undisputed invoices accurately reflect that Logo currently owed WP about $10,000.00 for mei-chandise. Mr. Sadhwani could not, however, verify his employee Jeffs initials on a number of invoices. Oddly, he admitted that, if Jeff testified that the initials were his, then Mr. Sadhwani would agree that Logo was responsible for the invoices. He did verify that Sylvester had initialed several invoices for pick-up.

On June 6, 2008, the trial judge rendered judgment in favor of WP and against Logo for $143,676.75 with judicial interest. However, the trial judge denied WP’s claim against defendant, Raju R. Sa-dhwani and refused to award attorney fees. In his written Reasons for Judgment, the trial judge opined:

To prove a claim on open account, the plaintiff creditor must prove the account by demonstrating its normal course of business and introducing supporting testimony regarding the accuracy of the account. See, National Gypsum v. Ace Wholesale, 96-215 (La.App. 5 Cir. 11/26/96), 685 So.2d 306, 308-09. Once plaintiff establishes a prima facie case, the burden shifts to the defendant to prove the inaccuracy of the account. Id.
After considering the evidence presented at trial, the credibility of the witnesses, and the post-trial memoran-da, the Court finds that the plaintiff Wholesale satisfied its burden to prove the principal amount due on Logo Express’ account. Wholesale presented multiple witnesses and records to establish Wholesale’s normal course of business with respect to placing orders.
Defendants, on the other hand, failed to present credible evidence to dispute the principal amount owed on the account. The evidence further indicates that prior to April 2005, Logo Express purchased a considerable volume of merchandise from Wholesale. Therefore, defendants’ arguments that Logo Express did not make the purchases at issue simply are not credible. As a result, the Court finds that Wholesale is entitled to a judgment against defendant Logo ^Express in the amount of $143,676.75, which represents the principal amount due on the account.

On appeal, Logo seeks review of that judgment. Logo, in its appellate brief, admits that it still owes WP for the amounts reflected by the returned checks, which is $4,579.80. Further, Logo admits that it owes specific invoices to WP, totaling $12,005.62.

On appeal, however, Logo argues that the trial judge erred in finding that it owed WP for amounts claimed under any other invoices. Specifically, Logo denies the following invoices: (1) 83B757 for $ 2,293.92; (2) 838996 for $ 2,870.64; (3) 840732 for $ 5,328.00; (4) 842052 for $ 3,391.20; and (5) 844937 for $ 1,341.24. Logo claims that the invoices are not initialed by a Logo employee, which means that Logo did not receive the invoiced merchandise. These disputed original invoices total $15,225.00.

Further, Logo specifically denies responsibility for any invoice that was a “computer generated print out that plaintiffs representative claim[s] to be copies of additional outstanding invoices.” Logo denies responsibility because there is no proof that these invoices, which total $70,129.94, reflect merchandise that was actually received and/or not paid for by his company. Moreover, these invoices are not the original invoices and, as such, were not maintained in the normal course of business and were inadmissible since there is no proof that the original invoices were destroyed, as WP claims.

Finally, Logo asserts that it paid cash for many invoices, which was not credited to Logo’s account by WP’s employees. In support of its arguments, Logo relies on Cline v. George Kellett & Sons, Inc., 96-456 (La.App. 5 Cir. 11/14/96), 685 So.2d 206. This Court, in Cline, found that Kel-lett was not entitled to recover on an invoice not kept in course of normal business procedures:

The trial judge concluded Kellett had not met its burden of establishing a prima facie case since there was no showing the unstamped and unsigned delivery ticket was kept in the course of business. Furthermore, the evidence also shows that the normal procedure for delivery was that the delivery drivers attempt to obtain a signature and if this could not be done then an explanation would be written on the ticket. Thus, this delivery ticket further deviated from Kellett’s normal business practice. Additionally, there was no supporting evidence of the accuracy of the ticket since Bernard testified he did not know whether this delivery had been made. Thus, the burden did not shift to Cline to prove the inaccuracy of this delivery.

Cline, 685 So.2d at 208.

Wholesale responds that it established a prima facie case, which shifted the burden of proof to Logo to disprove the existence or correctness of the account. Wholesale notes that “proof of delivery” is not required to establish a prima facie case where records show that books were kept in a normal course of business and indicated that merchandise has been sold and delivered. Jacobs v. Holloway, 589 So.2d 31 (La.App. 5th Cir.1991); Cline v. Kellett & Sons, Inc., 96-456 (La.App. 5 Cir. 11/14/96), 685 So.2d 206. We agree.

It is well settled that a court of appeal may not set aside a finding of fact by a trial court in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Upon review, we find no error in the trial judge’s finding that WP established prima facie evidence of the principal amount due on Logo’s account. Accordingly, the judgment is affirmed. Costs of this appeal are assessed against appellant, Logo Express Marketing, Inc.

AFFIRMED.

      . The specific invoices are (1) 833707 for $ 1,996.10; (2) 834379 for $ 161.60; (3) 834671 for $ 552.96; (4) 834699 for $ 727.92; (5) 835394 for $ 231.60; (6) 835396 for $ 4,579.20; (7) 835446 for $ 968.40; and (8) 838449 for $ 2,787.84.


source: Caselaw Access Project

license: Public Domain

text:
    AMSOUTH BANK v. Riley Truman SESSIONS and Mark Bryan Sessions.
    No. 09-CA-504.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 9, 2010.
    Wayne A. Maiorana, Jr., Joseph E. Fick, Jr., Attorneys at Law, Metairie, LA, for Appellant, AmSouth Bank.
    David Greenberg, Adrian F. Lapeyron-nie, III, Attorneys at Law, Gretna, LA, for Appellee, Riley Truman Sessions.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

|aOn appeal, AmSouth Bank seeks review of the trial court’s grant of Riley Sessions’ exception of no cause of action and dismissal of its case against him. For the following reasons, we reverse and remand.

On April 5, 2002, Riley Truman Sessions (“Riley”) and Mark Bryan Sessions (“Mark”), as co-makers, signed a promissory note in the amount of $171,190.28, made payable to AmSouth Bank (“AmSouth”), bearing interest at a rate of 7.625% per annum. In the “General Provisions” clause of the note that Riley and Mark signed, they agreed that “our liability under this Note will be on a ‘solidary’ or ‘joint and several’ basis with one another for all purposes.” On May 19, 2006, An-South filed suit against Riley and Mark Sessions in the 24th Judicial District Court for the Parish of Jefferson seeking payment of the unpaid balance of the note totaling $65,380.72, plus interest, costs and attorney’s fees.

Service was requested on Riley and Mark Sessions at 852 Mystic Avenue, Gretna, Louisiana. On or about July 26, 2006, AmSouth filed A Motion to 13Appoint Special Deputy to effect service of process on Riley, which was granted. The record does not reflect a return of service from either special deputy appointed to effect service.

Meanwhile, Mark entered into a Consent Judgment with AmSouth Bank agreeing to “judgment herein in favor of the plaintiff, AmSouth Bank and against the defendant, Mark Bryan Sessions, in the principal sum of $65,380.72,” plus interest from the date of demand until paid, “plus 25% of principal and interest as attorney’s fees, and all costs of these proceedings.” Judgment was filed with the court and signed by the trial judge on September 19, 2006. The Consent Judgment specifically reserved AmSouth’s rights “to pursue eo-defendant(s) for all relief to which [Am-South] is entitled against that defendant(s) in these proceedings.”

On November 24, 2008, AmSouth filed a second Motion to Appoint Special Deputy to effect service of process on Riley, which was granted. Again, the record before us does not reflect a return of service.

On January 30, 2009, Riley filed an exception of no cause of action on the basis that “the promissory note sued upon by AmSouth Bank was merged into a September 19, 2006 judgment rendered by the court, and as a result, the promissory note now sued upon no longer exists as a distinct obligation or litigious right....” On March 23, 2009, after a hearing, the trial judge granted Riley’s exception of no cause of action and dismissed AmSouth’s “allegations” against Riley with prejudice. In her Reasons for Judgment, the trial judge stated:

The critical issue in this case is whether the Consent Judgment between Mark Bryan Sessions and AmSouth extinguished the obligation evidenced by the original promissory note. Considering the case law cited by defendant, the Court finds that it did. The Consent Judgment reduced the entire remaining balance of the promissory note to a judgment against Mark Bryan Sessions. Therefore, the promissory note ceased to exist as a distinct obligation or litigious right. The Consent Judgment became the new obligation.
LFurthermore, based upon the case law cited by defendant, the reservation of rights included in the Consent Judgment has no effect. Once the obligation was reduced to a judgment, AmSouth had no rights left to reserve against Riley Truman Sessions. The obligation under the note was satisfied by the judgment against Mark Bryan Sessions. While the Court felt that the arguments by counsel for AmSouth were persuasive, the Court cannot ignore the clear language of the case law cited by defendant. AmSouth had the right to pursue one or both defendants for the entire sum owed on the note; however, once AmSouth secured a judgment against Mark Bryan Sessions for the entire sum, the obligation under the note ceased to exist as a litigious right. Therefore, AmSouth no longer has a cause of action against Riley Truman Sessions.

AmSouth now seeks relief in this Court.

In Cleco Corp. v. Johnson, 01-0175 (La.9/18/01), 795 So.2d 302, 304, the Louisiana Supreme Court enunciated the standard for reviewing the grant of an exception of no cause of action:

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015 (La.11/30/94), 646 So.2d 885. The exception is tried on the face of the pleadings and the court accepts the facts alleged in the petition as true, determining whether the law affords relief to the plaintiff if those facts are proved at trial. Barrie v. V.P. Exterminators, Inc., 93-0679 (La.10/18/93), 625 So.2d 1007. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the court of appeal and this court should subject the case to de novo review because the exception raises a question of law, and the lower court’s decision is based only on the sufficiency of the petition. Mott v. River Parish Maintenance, Inc., 432 So.2d 827 (La.5/23/83).

On appeal, AmSouth argues that the trial court erred in holding that once a Judgment is issued toward one solidary obligor, the obligation ceases as to all other solidary obligors and/or makers of a promissory note or debt instrument, and that the obligation under the note ceased to exist as a litigious right. In support, AmSouth quotes the language of the promissory note, reiterating that Riley and Mark knew that their liability is “solidary” or “joint and several.”

|¡“An obligation is solidary for the obli-gors when each obligor is liable for the whole performance.” La. C.C. art. 1794. Pursuant to La. C.C. art. 1795: “An obli-gee, at his choice, may demand the whole performance from any of his solidary obli-gors. A solidary obligor may not request division of the debt. Unless the obligation is extinguished, an obligee may institute action against any of his solidary obligors even after institution of action against another solidary obligor.”

This allows for the possibility of separate judgments. La. C.C. art. 1795; Frank’s Door & Bldg. Supply, Inc. v. Double H. Const. Co., 459 So.2d 1273 (La.App. 1st Cir.1984). Performance rendered by one of the solidary obligors extinguishes the obligation and “relieves the others of liability toward the obligee.” La. C.C. art. 1794. Finally, proof of extinguishment of the obligation is the defendani/obligor’s burden. La. C.C.P. art. 1005.

Based on the above principles, our de novo review reflects that, despite having previously obtained the consent judgment against Mark, AmSouth does have a cause of action against the co-maker for the entirety of the joint indebtedness under the law of solidarity. See Bank One v. SWC Corp., 36,043 (La.App. 2 Cir. 8/14/02), 823 So.2d 1060, 1063-1064. Accordingly, we reverse the trial judge’s ruling on Riley’s exception of no cause of action and remand for further proceedings. Costs of this appeal are assessed against appellee, Riley Truman Sessions.

REVERSED AND REMANDED.

      . The note was secured by a mortgage in favor of AmSouth Bank on immovable property located at Lot 18, Creekwood Place, Unit One, in Mobile County, Alabama with the physical address of 7551 Creekwood Drive, Mobile, Alabama.


text:
    John J. FREEMAN v. ELLIOTT COMPANY.
    No. 09-CA-921.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 9, 2010.

      Joseph G. Albe, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant, John J. Freeman.
    Robert J. May, Attorney at Law, Me-tairie, LA, for Defendant/Appellee, Elliott Company.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

12This is a workers’ compensation proceeding in which the claimant appeals the ruling of the workers’ compensation judge that he forfeited his right to receive any further benefits. We affirm.

FACTS

John J. Freeman was employed by Elliott Company as a steam turbine mechanic when he sustained a back injury in a work-related accident on January 22, 1998. He underwent several surgeries over the course of time and attempted to perform light-duty jobs for his employer, but eventually was laid off by Elliott. As a result of the injury he received medical benefits and indemnity benefits for several years.

In September 2004, Freeman was involved in a non-work-related motor vehicle accident. He filed suit regarding that accident and the suit eventually was settled. He neither notified Elliott Company of the pendency of the lawsuit nor sought the company’s approval before settling it.

In November 2007 Freeman filed a Disputed Claim for Compensation against Elliott Company and its workers’ compensation insurer, Hartford Fire [¡¡Insurance Company (both hereafter collectively called “Elliott”). Freeman complained that Elliott had refused to authorize medical treatment recommended by his treating physicians. He also sought attorney’s fees and penalties for nonpayment for his medical treatment.

In answer Elliott denied that Freeman is entitled to additional benefits or to penalties and attorney’s fees. Elliott asserted its right to reduce benefits and to various credits/offsets pursuant to La. R.S. 23:1206, La. R.S. 23:1212, and La. R.S. 23:1225. Elliott further asserted the right to a credit for any amounts that Freeman receives or has received from third parties as a result of his alleged job injuries, as well as a credit for any wages that he earned with any employer after the date of this accident. Finally, Elliott asserted the right to a credit for any amounts that it paid to or on behalf of Freeman as a result of the January 22, 1998 job accident.

In January 2008, Elliott ceased payment of benefits for the 1998 injury. In December 2008 Freeman filed an Amended and Supplemental Disputed Claim for Compensation. He sought a determination that he is permanently and totally disabled as a result of the 1998 accident, reinstatement of his disability benefits and medical payments, and penalties and attorney’s fees.

In answer to the amended and supplemental claim, Elliott denied that Freeman is entitled to additional benefits, denied that he requires additional medical treatment as a result of the January 1998 job accident, and denied that he is entitled to penalties and attorney’s fees. Elliott asserted that, pursuant to La. R.S. 23:1102(B), by settling his claim against a third party without Elliott’s prior written approval, Freeman forfeited the right to additional benefits. Elliott |4reiterated its rights to reduction/offset of and/or credits against benefits pursuant to La. R.S. 23:1206, 23:1212, and 23:1225.

At the start of trial, the parties stipulated that Freeman was an employee of Elliott Company on January 22,1998; that he suffered an accident in the course and scope of his employment on that date; that Hartford Fire Insurance Company is the workers’ compensation insurer of Elliott Company for the January 1998 accident; and that Freeman’s average weekly wage for the four weeks prior to his January 1998 accident was $1,059.28.

The issues at trial were the extent of Freeman’s present disability as a result of the January 1998 accident, whether Freeman is entitled to penalties and attorney’s fees for premature and unwarranted cessation of his benefits, and whether Freeman forfeited his rights to additional workers’ compensation benefits by settling the lawsuit arising out of the 2004 accident without Elliott’s written approval. Freeman filed into evidence his medical records from numerous healthcare providers, as well as a rehabilitation job analysis, a job accidents report, and his earnings statement. Elliott filed in evidence the depositions of Freeman and of his treating psychiatrist, as well as a copy of the pleadings from Freeman’s tort suit arising out of the 2004 vehicle accident.

After taking the case under advisement, the workers’ compensation judge dismissed Freeman’s claim with prejudice and at his costs. In written reasons incorporated into the judgment, the judge held that Freeman had forfeited his right to additional compensation as a result of his January 22, 1998 job accident. The judge concluded that Freeman did not carry his burden of proving by clear and convincing evidence that he is permanently and totally disabled. Citing Freeman’s testimony that he occasionally provides and is paid for renovation services to customers, the judge found that Freeman presented no medical evidence to support |shis claim of permanent total disability. The judge stated further that the only medical evidence regarding Freeman’s disability status was the deposition of his psychiatrist, who testified that Freeman is disabled from a psychiatric standpoint only to the extent that he is disabled from a physical standpoint. The judge noted that Freeman introduced no evidence of total disability from a physical standpoint.

Freeman appeals. He asserts the trial court erred (1) by finding that Freeman had forfeited his rights to additional benefits, and (2) by failing to grant Elliott a credit against future benefits instead of finding that Freeman forfeited his rights to additional workers’ compensation benefits pursuant to La. R.S. 23:1102(B).

LAW AND ANALYSIS

Forfeiture of Right to Future Compensation

La. R.S. 23:1101 provides that any person who has paid compensation to an employee may bring suit to recover such amount from a third person whose action has aggravated the employee’s pre-exist-ing injury for which compensation is due. La. R.S. 23:1101(B)-(C).

Either party (whether employee or employer) who files suit against the third party shall notify the other in writing. La. R.S. 23:1102(A)(1). In addition, “[i]f the employee ... fails to notify the employer or insurer of the suit against the third person or fails to obtain written approval of the compromise from the employer and insurer at the time of or prior to such compromise, the employee ... shall forfeit the right to future compensation, including medical expenses.” La. R.S. 23:1102(B).

If the employee makes a compromise with the third person, the employer/insurer shall be liable to the employee for any benefits in excess of the full amount paid by the third person, “only after the employer or the insurer receives a dollar for dollar credit against the full amount paid in compromise ... | fiand only if mitten approval of such compromise is obtained from the employer or insurer by the employee or his dependent, at the time of or prior to such compromise.” (Emphasis added.) Id.

La. R.S. 23:1102(C) provides, “For purposes of this Section, ‘third person’ shall include any party who causes injury to an employee at the time of his employment or at any time thereafter provided the employer is obligated to pay benefits under this Chapter because the injury by the third party has aggravated the employment related injury.” (Emphasis added.)

Freeman argues no medical evidence was introduced at trial to prove either that the auto accident aggravated any of his pre-existing back problems, or that his psychological problems were aggravated by the auto accident. He asserts Elliott failed to carry its burden of proving the third-party accident caused an injury or aggravation to his condition that obligates Elliott to pay additional workers’ compensation benefits. Freeman asserts that his disability before and after the auto accident was mainly due to his psychological injuries, and that he has not reached maximum medical improvement. He states there was no evidence that his mental injuries from the work accident were aggravated by the auto accident.

Freeman contends he was not required to seek approval of the settlement from Elliott and did not forfeit his right to future compensation benefits, because Elliott failed to prove it has any past or future exposure to pay workers’ compensation benefits due to any injuries suffered by Freeman in the auto accident.

In response, Elliott cites Freeman’s deposition testimony, in which Freeman related having undergone several surgeries by Dr. Bonati, specifically the following colloquy:

|7Q. Going back before your automobile accident now. After your last surgery with Dr. Bonati, were you still having back pain?
A. No.
Q. So you had no symptoms, and then you were involved in this automobile accident in 2004?
A. Yes, sir.
Q. And you had recurring back pain?
A. Yes, sir.

Elliott points out this testimony is consistent with the trial testimony of Freeman’s wife, who stated that before the September 2004 accident, Freeman’s back was as good as it had been at any time since his job accident.

Freeman’s testimony also is consistent with the medical records of Dr. Stefan Pribil, who treated Freeman for the injuries he sustained in the September 2004 automobile accident. Dr. Pribil’s notes for November 9, 2004 stated that Freeman had pre-existing back problems related to his job accident, but that he was “doing reasonably better until he was in an accident on September 10, 2004.” Dr. Pribil noted that Freeman told him that “other than hip pain his back was better and did not have much radiating pain.” On August 25, 2004 Dr. Pribil reported that prior to the automobile accident Freeman “was doing quite well,” but since the accident, “he has not been able to do much and is in constant pain.” Dr. Pribil also noted that since the automobile accident Freeman “has been in intractable pain.”

The workers’ compensation judge relied on Haynes v. United Parcel Service, 2005-2378 (La.7/6/06), 933 So.2d 765. In Haynes the Louisiana Supreme Court found that the court of appeal erred in reversing the judgment of the Office of Workers’ Compensation which held a claimant forfeited his right to workers’ compensation benefits by settling claims for subsequent accidents without his employer’s approval. Haynes, 2005-2378 at p. 1, 933 So.2d at 766. The court stated,

|sThe 1989 amendment to LSA-R.S. 23:1101 allows compensation insurers reimbursement from persons who aggravate work-related injuries and thereby extend the obligation to pay compensation benefits.
Under La. R.S. 23:1101(0, it is clear that if the third-party tortfeasors aggravated Mr. Haynes’ work-related injury, his employer would have reimbursement rights against them and Mr. Haynes would have an obligation to obtain written approval from his employer prior to settling with these tortfeasors, under the penalty of forfeiting his benefits pursuant La. R.S. 23:1101(B).

Haynes, 2005-2378 at 6, 933 So.2d at 769.

[Wjhen a work-related injury is subsequently exacerbated, the aggravation is regarded as a development of the initial accident, and not an intervening cause, even though it occurs away from work and even after the employment is terminated. It is thus a compensable injury, for worker’s compensation purposes, thereby obligating the employer to continue paying compensation benefits.

Hanover Ins. Co. v. Allstate Ins. Co., 554 So.2d 1261, 1264 (La.App. 1 Cir.1989).

Considering the above, we conclude the workers’ compensation judge correctly found that the injury in the 2004 auto accident aggravated Freeman’s prior job-related injury and that he forfeited his rights to future benefits by failing to obtain Elliott’s written approval at the time of or prior to the compromise.

Availability of Buy-Back Provision

Freeman asserts he is entitled to “buy back” his rights, even if this Court affirms the ruling he forfeited his rights to future compensation. He relies on the following language from La. R.S. 23:1102(B):

Notwithstanding the failure of the employer to approve such compromise, the employee’s or dependent’s right to future compensation in excess of the amount recovered from the compromise shall be reserved upon payment to the employer or insurer of the total amount of compensation benefits, and medical benefits, previously paid to or on behalf of the employee, exclusive of attorney fees arising out of the compromise; except in no event shall the amount paid to the employer or insurer |9exceed fifty percent of the total amount recovered from the compromise. Such reservation shall only apply after the employer or insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim.

Freeman asserts that Elliott was not required to pay additional compensation benefits as a result of the auto accident and, further, that Elliott has not paid any benefits since the accident. He argues this relieves him of his obligation to pay anything to buy back his right to compensation.

Elliott does not contest Freeman’s right to buy back his right to benefits, but asserts the statute requires that Freeman first pay Elliott an amount equal to the benefits previously paid, up to fifty percent of the settlement proceeds. Elliott argues that Freeman’s right to additional worker’s compensation benefits remains forfeited because he has not offered to buy back his rights.

The right to buy back is not conditioned upon notification and approval.... Rather, we interpret the “buy back” provision of R.S. 23:1102(B) — “Notwithstanding the failure of the employer to approve such compromise” — to mean “in spite of’ and includes those situations where the employee fails to give notice of a proposed compromise and as a result, fails to obtain his employer’s approval. An employee has the right to buy back his workers’ compensation and medical benefits regardless of notice and approval by tendering an amount in conformance with the statute.
* * *
The statute is conspicuous in its absence of a time limitation for the tender. The buy back clause simply says future benefits “shall be reserved upon payment ...” without specifying when payment must be made.

Diebold v. Louisiana Coca Cola Bottling Co., Ltd., 542 So.2d 52, 54 (La.App. 4 Cir.1989).

The workers’ compensation judge did not address the issue of Freeman’s “buyback” right. However, the court’s ruling that Freeman is not permanently [inand totally disabled indirectly deals with that issue, at least insofar as Freeman’s right to permanent total disability benefits.

Permanent Total Disability

Freeman has not appealed the determination that he is not permanently and totally disabled. Accordingly, that part of the ruling is final. Nevertheless, we address it out of an abundance of caution, as it relates to the buy-back provision.

La. R.S. 23:1221(2)(a) defines permanent total disability as the inability of an employee “to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience.”

La. R.S. 23:1221(2)(b) provides that “compensation for permanent total disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.” The statute further provides,

[Wjhenever the employee is not engaged in any employment or self-employment ..., compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

La. R.S. 23:1221(2)(c).

|nIt is the trial court’s function to determine the weight to be accorded medical and lay testimony in a workers’ compensation claim for award of disability benefits, and its factual determination should not be disturbed on appellate review unless it is clearly wrong and trial judge has committed manifest error. Starkman v. Munholland United Methodist Church, 97-661, p. 15 (La.App. 5 Cir. 1/14/98), 707 So.2d 1277, 1284, writ denied, 1998-0400 (La.3/27/98), 716 So.2d 891.

Under the language of La. R.S. 23:1221, the workers’ compensation judge did not err in finding that Freeman is not permanently and totally disabled. The judge’s factual findings are not clearly wrong.

The trial court’s ruling did not forbid Freeman from taking advantage of the “buy-back” provision, but the determination that Freeman is not entitled to future benefits for permanent total disability prohibits Freeman from employing the buyback for future permanent total disability benefits. The issue of whether Freeman is disabled to a lesser extent, and the duration of that disability, was not part of the ruling and has not been raised on appeal.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the claimant, John J. Freeman.

AFFIRMED.

      . In some of the pleadings, Elliott refers to itself as “Elliott Turbomachineiy.” According to Freeman, Elliott Company is in the business of rebuilding steam turbines and compressors for the oil industry.

        . Freeman v. Miller, No. 623-658, 24th Judicial District Court, Parish of Jefferson, State of Louisiana; filed August 15, 2005; dismissed October 29, 2007 on motion of the plaintiffs.

      . These include the following: under La. R.S. 23:1206, credits for voluntary payment of benefits not due and payable when made; under La. R.S. 23:1212, offset for medical expenses; under La. R.S. 23:1225, offset for receipt of Social Security disability benefits, credit for receipt of unemployment compensation benefits, and reduction for receipt of disability benefits under plans funded by any employer of Freeman and/or receipt of other workers' compensation benefits.

      . According to Freeman, the reason he was given was that “the ten-year limitation was over." We construe that as a reference to the 520-week limitation on supplemental earnings benefits imposed by La. R.S. 23:1221(3)(d).


author: WALTER J. ROTHSCHILD, Judge.

text:
    Nester Miranda PAYAN v. FRANCIS CHIMENTO ENTERPRISES, INC.
    No. 09-CA-826.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2010.
    Charlsey J. Wolff, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.

      Donald E. McKay, Jr., Dean M. Arrue-barrena, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|2This is an appeal from a ruling rendered in this worker’s compensation case. For the reasons stated herein, we affirm.

Claimant herein, Nelson Miranda Payan, initially filed a disputed claim for compensation in September of 2007 against his employer Chimento Enterprises as a result of work-related injuries he sustained on September 17, 2007. In June of 2008, the parties entered into a partial settlement and release with reservation of rights which was approved by the workers’ compensation judge. By order of the court dated August 8, 2008, Mr. Payan’s claims against his employer were dismissed subject to the reservation of rights.

On September 25, 2008, claimant filed a second disputed claim for compensation against Chimento Enterprises seeking medical treatment in the form of a MRI of his lumbar spine which he asserts was related to the same on-the-job injury. He also asserts a claim for the employer’s failure to |sauthorize his choice of physicians and for penalties and attorney’s fees for his employer’s unreasonable actions.

Chimento Enterprises and their insurer, Protective Insurance Company, (hereinafter “defendants”) responded with an Exception of No Right of Action and/or No Cause of Action, stating that this claim had been previously settled by the parties and that defendants had been released from liability pursuant to the judgment of dismissal rendered on August 8, 2008. Defendants attached a copy of the settlement agreement, and argued that although claimant reserved his right to assert certain claims following the settlement, treatment of his back was not included in the reservation and as such this claim was fully dismissed. Defendants further argued that claimant identified work-related back injuries prior to the settlement and release, and defendants provided copies of claimant’s discovery responses and deposition testimony to support this argument.

Claimant opposed this exception on the basis that the correct legal pleading to address this issue should have been an exception of res judicata. Claimant contends that based on applicable law, the settlement documents relied on by defendants do not preclude claimant from seeking medical benefits for the injuries to his back which were caused by the work-related accident. Further, claimant contends that lump sum settlements in workers’ compensation matters are not favored and will only be maintained when confected in strict conformity with statutory standards, citing La. R.S. 23:1271.

Following a hearing on defendants’ exception, the workers’ compensation judge rendered its ruling on February 27, 2009 granting the exception “on the issue of the back injury, because it is res judicata.” |4 Claimant filed a motion for new trial and/or rehearing, and this motion was denied on June 17, 2009. Claimant now appeals from this ruling on the basis of several assignments of error.

On appeal, claimant first argues that an Exception of No Cause of Action is the improper vehicle to preclude claimant from proceeding pursuant to previously executed release documents. Claimant contends that the correct pleading was an exception of res judicata, and that defendants improperly attached evidence to support their exceptions in contravention of the procedures for this exception as provided in La. C.C.P. art. 931.

It has long been recognized that a court will look to the import of a pleading and not be bound by the title. Every pleading is to be construed so as to do substantial justice. La. C.C.P. art. 865. The caption of the pleading does not control. Rather, the court is obligated to determine the substance of the pleading. Atchley v. Atchley, 01-67 (La.App. 5 Cir. 5/30/01), 788 So.2d 690, 693, citing Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980). Upon review of the pleading in this matter, we find no error in construing defendants’ pleading according to its substance as an exception of res judicata.

Claimant next argues that even if the pleading was construed as an exception of res judicata, the evidence submitted fails to show that the issue in question was actually litigated and was essential to the judgment as provided by La. R.S. 13:4231. Specifically, claimant contends that the [ .^settlement and partial release agreement is ambiguous and does not clearly preclude the litigation in this matter. Claimant contends that the issues which would have been litigated involved authorization for knee surgery and payment of medical bills, and the issue of the back injury was not before the court at that time. Thus, claimant contends that the exception was improperly granted. We disagree.

The record in this case indicates that claimant filed the original disputed claim for compensation on September 24, 2007 alleging injuries to claimant’s neck, back, bilateral knees and bilateral elbows as a result of a September 17, 2007 work-related injury sustained while claimant was employed as a full-time delivery driver by Chimento Enterprises. In this claim, claimant asserted that no wage benefits or medical expenses had been paid, and requested penalties and attorney’s fees for failure to pay benefits or medical expenses. In addition, claimant sought approval of his choice of physician.

The record also shows that during a pretrial mediation conference held on June 13, 2008, the parties “reached an agreement to compromise the majority, but not all, of the issues between them.” The record further contains a Partial Release and Waiver of Rights signed by claimant, Nes-ter Miranda Payan.

The above agreement was approved by the workers’ compensation judge by judgment rendered on August 1, 2008. On August 8, 2008, the | ¡¡disputed claim for compensation was dismissed. The terms of the judgment indicated that defendants paid the sum of $6,000 to claimant, approved knee surgeries recommended by Dr. Hoffman and paid for the emergency room treatment and out of pocket medical expenses. The judgment also provided as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Francis Chimento Enterprises, Inc. and Protective Insurance Company be and the same are forever released and relieved from any and all liability for claims of Nestor Miranda Payan, including but not limited to claims for penalties and attorney’s fees of any nature and kind arising up to and including June 13, 2008 under Title 23, Title 10 of the Revised Statutes of Louisiana, growing out of any accident or injury occurring on or about September 17, 2007. However, notwithstanding any provision above, Nestor Miranda Payan reserves the right to assert claims of any nature arising out of the alleged injury to his elbows, alleged carpal tunnel injury, alleged need for surgery to correct same and/or any other action or inaction of Francis Chimento Enterprises, Inc. or Protective Insurance Company which occurs after June 13, 2008. Nestor Miranda Payan further reserves the right to request reimbursement of mileage associated with medical treatment received at any time following the September 17, 2007 work accident.

Claimant contends that as treatment for his back injury was not at issue in this litigation, the settlement and release were not applicable to these claims, notwithstanding the absence of a specific reservation of rights to pursue a claim for medical expenses related to his back. Claimant argues that the burden of proof is on defendants to establish the requisites for a valid compromise, including the parties’ intent to settle the differences being asserted in the action in which it is interposed, citing Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741, 747. Further, claimant asserts that the compromise instrument is the law between the parties and must be [ interpreted according to the parties’ true intent. Claimant contends there was no intent to compromise his claims for treatment for his back injury, and therefore the settlement agreement does not preclude his present claims.

However, a reading of the compromise agreement in this case clearly indicates that claimant agreed to release defendants from all claims arising out of the September 2007 work-related injury. Claimant also specifically agreed to dismiss all proceedings against defendants, and only reserved the right to assert claims for “the alleged injury to his elbows, alleged carpal tunnel injury, surgical correction of same” and any other action or inaction of defendants which occurred after the date of the settlement agreement. The record in this case, including the disputed claim and the corresponding discovery, makes it clear that claimant was alleging injury to his back as a result of the September 2007 accident. However, a reading of the settlement documents clearly shows that claimant failed to reserve his rights to pursue these claims involving his back, although the claims for injury to his elbow and the alleged carpal tunnel problem were specifically reserved to be resolved at a later date.

We fail to find merit in claimant’s argument that the settlement documents are ambiguous. Rather, we find the agreement signed by claimant to be clear and unequivocal: claimant released defendants from all liability for his disputed claim, except for the alleged injury to his elbows and carpal tunnel and any actions occurring after the date of the settlement agreement. If the original claim only involved the knee surgery and penalties as claimant suggests in brief, there would have been no need to reserve his rights as to his elbows and carpal tunnel claims. Further, if claimant intended to reserve his rights as to his back injury, such a claim would have 18been reserved in the settlement agreement. As the back injury clearly existed prior to the date of the settlement agreement, we find that these claims were included by the parties in the settlement negotiations. We find that claimant’s claims for medical expenses related to his back were settled and compromised, and this compromise bars any future litigation of these issues.

Further, although claimant relies on La. R.S. 23:1271 regarding lump sum settlements, we fail to find this statute to be applicable in the present situation. As indicated by the settlement documents, this is not a lump sum settlement as contemplated by La. R.S. 23:1271, but rather is expressly stated to be a “partial settlement.” There has been no resolution of compensation benefits in this agreement, and claimant reserved his right to seek benefits for injury to his elbows and carpal tunnel problems, surgery for correction of same and any other action or inaction of defendants which may occur after the date of the settlement agreement. By its express terms however, there is no reservation of rights as to any claims for an injury to claimant’s back and this claim is therefore precluded by agreement of the parties.

Accordingly, we find no error of the workers’ compensation judge in granting an exception of res judicata as to claimant’s claims for medical expenses related to his back injury. The judgment is therefore affirmed.

AFFIRMED.

      . 4231. Res judicata
      Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
      (1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
      (2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
      (3)A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.


author: TOBIAS, Judge. MURRAY, J.,

text:
    Sylvia W. TANKERSON v. Paul VALLAS, et al.
    No. 2010-C-0102.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 2010.

      James D. “Buddy” Caldwell, Attorney General, Michael C. Keller, Phyllis E. Glazer, Tanya L. Irvin, Assistant Attorneys General, Louisiana Department of Justice, Litigation Division, New Orleans, LA, for Relator, Louisiana Recovery School District.
    Willie M. Zanders, Sr., New Orleans, LA, for Respondent, Sylvia W. Tankerson.
    Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR.
   TOBIAS, Judge.

| Jfhe sole issue presented for our review is the res nova issue of whether the respondent, Recovery School District (“the RSD”), is a juridical person capable of suing or being sued directly or whether it is an agency within the Louisiana Department of Education (“the DOE”) and the Louisiana Board of Elementary and Secondary Education (“BESE”), juridical entities that by law are capable of suing and being sued. For the reasons that follow, we find that the RSD is not a juridical person and that the proper party to be sued in a claim for or against the RSD is the DOE. Accordingly, we grant the application for supervisory writs of the relator, the RSD acting through the DOE, reverse the judgment of the trial court overruling the relator’s exception of lack of procedural capacity, and render judgment sustaining the exception of lack of procedural capacity, thereby dismissing the RSD as a party from this suit.

The respondent, Sylvia W. Tankerson, filed suit against the RSD, the DOE, and three individuals seeking damages for alleged wrongful discharge from employment, breach of contract, and negligent infliction of emotional distress. The relator filed the dilatory exception of lack of procedural capacity asserting that | gits was not a juridical person capable of filing suit or being sued; the RSD sought a judgment dismissing them from this suit with prejudice. The RSD asserts that it does not function independently of the DOE in matters relating to funding, personnel, and property matters.

Contrariwise, the respondent asserts that the RSD is a juridical person, separate and distinct from the DOE and BESE. In support of her position, she proffers:

(1) a photocopy of a written “Delegation of Authority” dated 21 February 2008 from Paul G. Pastorek, the State Superintendent of Education and the executive officer of the DOE delegating authority to co-defendant, Paul Valias, the superintendent of the RSD, purportedly approved by Linda M. Johnson, President of BESE dated 6 December 2007;
(2) a photocopy of an announcement by the FEMA, the Federal Emergency Management Agency, stating that it is providing the RSD with $147.8 million for public assistance grants for four RSD schools;
(3) a photocopy of a judgment rendered on 28 August 2008 in the Civil District Court for the Parish of Orleans (“CDC”) in the matter of “Arlene M. Kennedy v. Paul Vallas, et al” relating to preliminary injunctive relief and directing that “the Louisiana Department of Education’s Recovery School District” from terminating Ms. Kennedy from employment;
(4) a photocopy of a judgment rendered on 31 July 2009 in the CDC denying “the Recovery School District’s exception of prescription filed in the matter of "Ronald Heumann d/b/a Ronald Heumann and Associates v. Recovery School District and Orleans Parish School Board;”
(5) a photocopy of a plaintiffs ex parte order of dismissal with prejudice based upon a settlement signed on 21 April 2009 in the CDC suit entitled “Avery A. Johnson v. Recovery School District ”; and
(6) her affidavit wherein she states among other things that she was a recruiting specialist for the RSD.

We find that none of the foregoing items supports the proposition that the RSD is a juridical person capable of suing or being sued directly.

In Roberts v. Sewerage and Water Bd of New Orleans, 92-2048, p. 10 (La.3/21/94), 634 So.2d 341, 347, the Court held that

In the absence of positive law to the contrary, a local government unit may be deemed to be a juridical person separate and distinct from other government entities, when the organic law grants it the legal capacity to function independently and not just as the agency or division of another governmental entity. 1 Sands & Libonati, § 2.18 and authorities cited therein, §§ 2.19, 2.20.

Reviewing the quoted language, the trial court reasoned that because La. R.S. 17:1990 D(l) gave the RSD the authority to employ such staff as it deemed necessary and the delegation of authority (item (1) proffered by the respondent) from the DOE to RSD made the RSD an “independent school district,” the RSD was a juridical person capable of suing and being sued.

We disagree with our colleague on the trial court. La. R.S. 17:1990 A(2) specifically mandates that the RSD be administered by the DOE and is subject to the Dapproval of BESE. Further the “Delegation of Authority” by the State Superintendent of Education to the RSD grants only limited authority over personnel matters; the RSD cannot, among other things, dismiss or institute discipline against some employees, reduce workforce under La. R.S. 17:81.4; institute extended sick, maternity, or military leave; or grant sabbaticals.

La. R.S. 36:642 A states that

The Department of Education is created and shall be a body corporate with the power to sue and be sued. The domicile of the department shall be in Baton Rouge.

La. R.S. 17:1 A states “The Louisiana State Board of Elementary and Secondary Education, sometimes referred to hereinafter in this Part as the board, is created as a body corporate.” Likewise La. R.S. 17:51 makes a parish school board a “body corporate with power to sue.” The statute authorizing the RSD (La. R.S. 17:1990) contains no equivalent language; to the contrary, the RSD is an “intermediate educational unit” which “shall be administered by the state” DOE with the approval of BESE.

We conclude that the RSD does not function independently of the DOE and BESE as it is not a body corporate capable of being sued or suing directly. The proper party in any claim by or against the RSD is the DOE.

For these reasons, we grant the relator’s application for supervisory writs. We reverse the judgment of the trial court overruling the dilatory exception of lack of procedural capacity and render judgment sustaining that dilatory exception.

WRIT GRANTED: JUDGMENT REVERSED; RENDERED.

MURRAY, J., concurs with reasons.

McKAY, J., concurs in the result.

MURRAY, J.,

concurring with reasons.

hi agree that the Recovery School District is not a juridical person capable of suing or being sued. I, therefore, concur in the granting of the supervisory writ.

      . The RSD is sometimes referred to as the Louisiana Recovery School District.

      . See La. C.C. art. 24.

      .We note the discrepancy in dates in this document; that is, we are left with the unexplained reason that the BESE President is approving on 6 December 2007 a delegation of authority taking place more than 75 days later on 21 February 2008.

      . We lack evidence of the pleadings that were filed in the suit; one does not know whether the RSD was appearing therein as agent for the DOE.

      . Again, we lack evidence regarding in what capacity the RSD appeared in the case; only the caption names the RSD as a party and one does not know whether the RSD appeared in the suit as the DOE’s RSD.


author: TOBIAS, Judge.

text:
    Bruce L. FEINGERTS v. AMERICAN CASUALTY COMPANY OF READING.
    No. 2009-CA-1209.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 2010.

      James A. Babst, Hamilton Brown & Babst, LLC, New Orleans, LA, for Appellant, Bruce L. Feingerts.
    Kevin A. Marks, Jessie Schott Haynes, Galloway Johnson Tompkins Burr & Smith, New Orleans, LA, for Appellant, American Casualty Company of Reading, PA.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   TOBIAS, Judge.

|tIn this workers’ compensation case, both the claimant and the workers’ compensation insurer have appealed the judgment by the Office of Workers’ Compensation (“OWC”). After reviewing the record and applicable law, we reverse the award of mileage and amend the medical expenses. In all other respects, the judgment is affirmed.

The claimant/appellee/cross-appellant, Bruce L. Feingerts (“Feingerts”), was involved in a traffic accident on 8 February 2001, when his vehicle was struck from behind by a large truck. Feingerts, a New Orleans attorney, was on his way to the airport for a flight to Washington, D.C. for business. Feingerts stayed at the accident scene while the police investigated the accident. He testified that his head felt “scrambled” by the impact. When the police were finished, Feingerts drove to Walgreens to purchase something for his headache, and then went home. He stated that upon arriving at his house, he vomited to the point of dry heaves, called his teenage son, Bradley, and laid down. When Bradley arrived, he found his father’s car parked in front of a neighbor’s house with its trunk smashed and his father visibly “out of it.” He took his father to the emergency room of a local |2hospital. Bradley testified to his father’s strange behavior while at a pharmacy to pick up the prescriptions issued in the emergency room; he believed his father had suffered a serious concussion and had some memory loss.

The initial diagnosis was a cervical strain. Feingerts decided to attend to his business in Washington despite the accident. He flew to Washington the next morning, but was unable to leave the bed in his hotel room, experiencing neck and back pain, headaches, and minor abdominal pain.

After returning to New Orleans, Fein-gerts saw a neurologist who treated him conservatively with a soft neck collar and medication. Feingerts states that the headaches were so severe that they interfered with his ability to practice law. An orthopedist restricted him to four to six hours of work per day. Once the headaches subsided, Feingerts attended physical therapy. He sought medical treatment for a variety of medical conditions which he claims were caused by the accident.

In 2007, Feingerts underwent neck surgery in which two discs were removed and the affected areas were fused with cadaver bone. The effect of the surgery relieved Feingerts’ neck pain, allowing him to cease the use of pain medication, and restored neurological function to his left arm.

Feingerts contends that the abdominal pain did not resolve for 19 months. He asserts that he has suffered permanent bladder and bowel dysfunction due to nerve-root impingement of the spine. He has been seeing a psychiatrist for depression since 2002 and asserts that a neurop-sychologist found significant | ¡¡neurological defects attributable to the accident. Fein-gerts complains of his inability to concentrate and short-term memory loss that have affected his ability to practice law since the accident.

Appellant/cross-appellee, American Casualty Company of Reading, PA (“American”) provided a policy of workers’ compensation insurance to Feingerts’ law firm, Feingerts and Kelly. American agreed to the request for a stipulation that the accident occurred while in the course and scope of Feingerts’ employment. However, American disputed the medical causation of Feingerts’ numerous medical complaints, the details of the accident and its impact on him, the nature and extent of Feingerts’ injuries, and his entitlement to indemnity benefits.

The matter was tried on May 2007 with a judgment rendered in October 2007. The OWC concluded that Feingerts failed to prove that he sustained a permanent brain injury resulting from the accident and was not entitled indemnity benefits or penalties and attorney’s fees. However, the OWC held that Feingerts could recover payment for his medical treatment in the amount of $187,661.95, and related mileage for certain injuries that were caused or exacerbated by the accident. The OWC also awarded all costs associated with depositions and expert physicians.

On 26 October 2007, American filed a motion for clarification and amendment of the judgment, or, in the alternative, motion for new trial for reargument only. On the same date, Feingerts also filed a motion for new trial.

|4On 21 April 2008, the OWC granted a new trial and held that the only new evidence Feingerts could introduce was that relating to his brain injury. The new trial took place in December 2008; it consisted of argument and the introduction of evidence relative to the brain injury claim. The amended judgment was fairly consistent with the first judgment. Ultimately, the OWC held that any injury not specifically listed within the body of the judgment was not related to or caused by the accident at issue. Again, the OWC determined that American was responsible for the payment of medical bills and mileage, excluding payment of those costs associated with any evaluation of Feingerts that took place outside Louisiana. The rest of the judgment remained the same.

American has assigned two errors for our review. First, it contends that the OWC erred by concluding that the accident caused or exacerbated the physical injuries or conditions enumerated in the judgment. Second, American argues that it should not be responsible for Feingerts’ medical bills and expenses, out-of-pocket expenses, mileage, and legal interest when Feingerts did not prove the treatment modalities and costs owed.

Feingerts also appealed, alleging that the OWC erred by failing to award (1) supplemental earning or temporary total disability benefits; (2) medical expenses incurred with the treatment of his lower back; (3) expenses incurred in connection with the 2007 brain scan; and (4) penalties and attorney’s fees.

|5The Louisiana Supreme Court set out the standard of review to be 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.

American’s first assignment of error concerns factual findings made by the OWC. Specifically, the OWC held that the accident caused or exacerbated the following physical and mental injuries:

1. mental confusion;
2. concussion;
3. cervical injury requiring surgery;
4. weight gain;
5. depression;
6. urinary incontinence;
7. fecal in continence; and
8. sexual dysfunction.

However, OWC found that Feingerts did not carry his burden of proof that he sustained a permanent brain injury as a result of the accident.

An employee is entitled to compensation benefits if he or she suffers a personal injury by an accident arising out of and in the course of employment. La. R.S. 23:1031. The Supreme Court has stated that under this statute a successful claimant’s proof must show personal injury which is the result of an accident, which accident arises out of and in the course of employment. Buxton v. Iowa Police Department, 09-0520, pp. 11-12 (La.10/20/09), 23 So.3d 275, 283. The [(¡chain of causation required by the statutory scheme as adopted by the legislature in La. R.S. 23:1031 is that the employment causes the accident, the accident causes injury, and the injury causes disability. The employee has the burden of proving, by a preponderance of the evidence, that the resulting disability is related to an on-the-job injury. Id. at p.12, 23 So.3d at 283.

The parties introduced numerous doctors’ depositions, along with doctors’ evaluations, letters, and test results. Some of those physicians related Feingerts’ injuries to the accident, while others did not. The OWC also heard Feingerts’ testimony over a period of three and one-half days. Based on our review of the record, we find that the OWC was clearly wrong in some of its findings, as discussed herein.

Mental Confusion/Concussion:

Feingerts suffered from sleep apnea before the accident; he first sought treatment for the condition in 1994. Many of the doctors testified that both a mild concussion and sleep apnea would produce the same symptoms: morning headaches, poor concentration, memory loss, depression, and fatigue. In fact, Feingerts had several of the risk factors for sleep apnea, such as being male, being overweight, and having physical abnormalities that were not caused by the accident. Sleep studies before and after the accident yielded the same diagnosis of severe obstructive sleep apnea. The studies also demonstrated that Feingerts could sleep normally when using a Continuous Positive Airway Pressure (“CPAP”) system; however, Fein-gerts refused to use the equipment.

17Gregory S. Ferriss, M.D., a neurologist and sleep specialist, began treating Fein-gerts for sleep apnea in 1994. He indicated that the sleep studies performed both before and after the accident indicated severe obstructive sleep apnea, which was effectively treated by CPAP. He prescribed CPAP on at least two occasions, but Feingerts said he could not tolerate it. A dental appliance was effective except when he slept on his back or in REM sleep, but not as effective as the CPAP. Dr. Ferriss also noted that during his course of treatment of Feingerts for almost a decade, Feingerts failed to follow good sleep hygiene, which also contributed to his problems. He last saw Feingerts in February 2002.

In September 2003, N. Knight Worley, M.D., performed surgery on Feingerts’ palate, tongue, and nose to relieve the condition. A sleep study in June 2003 showed improvement but he still suffered from mild to moderate sleep apnea. Depending on the doctor, Feingerts reported a continued problem with sleep apnea or that the problem had been resolved and no longer a factor to his then present complaints. However, because the sleep apnea was not caused or aggravated by the accident, we find the cost of subsequent treatment and/or tests for sleep apnea cannot be recovered from American.

William Oser, III, M.D., a neurologist, saw Feingerts on 13 February 2001, just five days after the accident. At that time, Feingerts reported that he had recently been in a motor vehicle accident where his vehicle was struck from behind. In taking the history, Dr. Oser was not told that the claimant “may” have Rstruck his head on the steering wheel as he later told his other doctors. Dr. Oser testified that he saw no bruising on Feingerts face five days after the accident. The MRI brain studies ordered by Dr. Oser were normal and he never saw any objective or cognitive evidence of a brain injury.

Dr. Oser diagnosed Feingerts with “post-concussion syndrome,” a condition that usually resolves itself on its own in six weeks to six months. When Dr. Oser saw the claimant in January 2003, he could not say whether the continued complaints of headaches and poor concentration resulted from the accident or the sleep apnea. He had never heard of a post-concussion syndrome lasting years without some objective evidence of a head injury.

No doctor witnessed Feingerts’ complaints of poor concentration, slurred speech, poor vocabulary, or forgetfulness. In fact, his many doctors stated that his speech was spontaneous and fluent, he was quite articulate, he answered questions appropriately, and he had no problem recounting his extensive medical history since the accident. As stated above, no medical doctor found any objective evidence of a brain injury, except for Paul G. Harch, M.D., who specializes in hyperbaric medicine.

| nDr. Harch first saw Feingerts on 10 August 2004. He had been referred by a neurologist and a neuropsychologist for Hyperbaric Oxygen Treatment (“HBOT”). Dr. Harch admitted that HBOT is not used extensively for closed head trauma and has not been approved by the FDA for that purpose. He also agreed that no objective evidence of a brain injury was found. All Dr. Harch could point to was a single-photon emission computed tomography (“SPECT”) brain scan that indicated a diffuse heterogeneous .pattern that was consistent with a diagnosis of post-concussion syndrome, among other diagnoses. This pattern improved after just one HBOT, however, Dr. Harch stated that (1) the pattern could have been caused by other events and (2) reading a SPECT is not an exact science. Dr. Harch stated that he believed Feingerts’ description of the accident but was not called upon to give an opinion on causation. Although Dr. Harch prescribed 40 courses of HBOT, Feingerts only kept 32 appointments.

While Feingerts may have suffered a mild concussion from the accident, the doctors agreed that the condition would have resolved on its own with six months to a year. For post-concussion syndrome to last beyond that period, objective findings of a brain injury would be present. We do not find Dr. Harch’s testimony persuasive in light of the overwhelming testimony to the contrary. In addition, because the trial court did not find that Feingerts’ sleep apnea was caused by the accident, American is not responsible for treatment of that condition post accident, save the initial studies performed by Dr. Ferriss in 2002.

| ^Hypertension:

We also find no evidence in the record that Feingerts’ hypertension was related to the accident. He has a family history of hypertension and no doctor testified that the accident more probably than not caused this condition. He cannot recover medical expenses for conditions unrelated to the accident.

Urinary and Fecal Incontinence/Sexual Dysfunction:

The trial court found that these conditions were caused by the accident. On the other hand, the court excluded Feingerts’ claim of a low back injury. We agree that the record does not support the existence of a low back injury. No doctor testified that it was more probable than not that a cervical injury can cause these conditions. In fact, Neil Baum M.D., a urologist, specifically related the incontinence and sexual dysfunctions to lumbar herniations at the L3-4 and L4-5 interver-tebral discs. Because the evidence supports a finding that the accident did not cause Feingerts’ low back injury, that injury could not have caused these conditions.

Cervical Injury Requiring Surgery:

The primary injury for which the claimant sought treatment was a cervical injury that eventually required surgery. Feingerts saw several doctors for this condition and received various opinions as to whether the injury was related to the accident.

It is undisputed that x-rays and MRIs taken shortly after the accident were negative for a cervical disc injury, but showed cervical spondylosis or degenerative chronic changes in the neck from normal wear and tear. However, MRIs taken in 2004, 2005, and 2006 revealed a multilevel herniation requiring surgery. Feingerts consulted with at least three orthopedic spine surgeons and, in January 1^2007, Richard L. Corales, Jr., M.D., performed neck surgery. Dr. Corales testified that the herniated discs were caused by the accident. Despite testimony to the contrary given by several doctors, we cannot say that the trial court was manifestly erroneous in making this determination, although we might rule differently if such was our duty.

Weight Gain:

We are puzzled by the trial court’s finding that Feingerts’ weight gain was caused by the accident when the record does not contain evidence to support this conclusion. In addition, no evidence exists that Feingerts sought medical treatment for this condition or that any medical expenses were incurred. Consequently, we find that the trial court erred in making this finding for it is manifestly erroneous.

Depression:

We have reviewed the testimony by Christopher D. Meyers, M.D., a psychiatrist, and Susan Andrews, Ph.D., and William Black, Ph.D., both neuropsychologists who performed neuropsychological evaluations on the claimant, on the issue of Fein-gerts’ depression. Dr. Meyers testified that Feingerts’ depression was caused by the accident and Dr. Andrews testified that his psychiatric state and impaired functionality level were also related to the accident. Dr. Black, who found inconsistent test results that could not be explained, testified that he believed that Feingerts was most likely suffering from somatoform disorder, a mental disorder characterized by physical symptoms that mimic physical disease or injury for which no identifiable physical cause exists, or possibly hypochondria, another mental disorder where a person has an excessive | ^preoccupation or worry about having a serious illness. However, neither Dr. Andrews nor Dr. Black found that Feingerts was disabled from a psychological perspective.

When asked if sleep apnea could cause depression, every doctor questioned answered in the affirmative. Dr. Meyers determined that Feingerts had no cognitive deficits but diagnosed him with depression. In a letter dated 24 May 2004 from Dr. Meyers to the claimant’s attorney, he stated:

It remains my opinion that his psychiatric problems with mood, focus, and motivation, as well as the aggravation of problems with his sleep, are attributable to the head injury he suffered in his accident.

However, because we agree with the trial court that Feingerts did not suffer a permanent brain injury in the accident, we cannot rely on Dr. Meyers’ opinion in this regard. All the neurologists agree that a mild concussion would have resolved itself by the time Feingerts began seeing Dr. Meyers in April 2003, more than two years post-accident.

An independent psychiatric examination was performed in late 2004 by Richard Roniger, M.D., who agreed that Feingerts was depressed. He made the diagnosis of a “pain disorder” patient, who presents with complaints centering on physical pain. He explained that a pain disorder can exist with an emotional condition, such as depression and anxiety, and is influenced by psychological factors. Dr. Roniger agreed that a diagnosis of pain disorder would encompass the things that a somatoform disorder would also incorporate, the diagnosis made by Dr. Black.

| [.¡Although sleep apnea can cause depression, we cannot say that the trial court was manifestly erroneous in finding that Feingerts’ depression was the result of, or possible aggravated by, the accident. Even if Feingerts is suffering from some other mental disorders as opined by Drs. Roniger and Black, they appear to have been triggered by the accident. It is a well-known principle of law that one takes a victim as he finds him. Without evidence of Feingerts’ mental condition prior to the accident, we agree with the OWC.

American’s second assignment of error concerns the awards for medical expenses and mileage associated with the medical treatment Feingerts received. Specifically, American argues that the sole evidence in the record of what medical expenses are owed was a list compiled by Feingerts of all the medical expenses allegedly owed him. It also argues that Feingerts is not entitled to reimbursement for the medical expenses paid by his private health insurance.

We have examined the record on appeal and find that “Book A” of Feingerts’ exhibits contains an itemized list of his medical bills totaling $187,661.95. However, behind the itemized list are copies of the actual medical bills incurred by him. Most of the bills demonstrate or disclose what treatment was received and who paid for the treatment, whether Feingerts himself or his private health insurer. However, because the records contain medical bills for conditions not caused by the accident as analyzed above, we reduce those amounts to the amounts set forth as follows:

1. Dr. Susan Andrews $ 4,400.00
2. Dr. Bradley Bartholomew (neurosurgeon) 4,414.00
3. Dr. Neil Baum not related
4. Dr. Siddharth Bhansali (hypertension) not related
5. Dr. Richard Corales 23,501.00
6. Southern Orthopedic Specialists 4,327.00
7. Dr. Paul Harch not related
Im8. Dr. Stephen Harkness (tests for hernia) 642.00
9.Dr. Robert Link (ER doctor) 178.94
10. Dr. Christopher Meyers 14,040.00
11. Dr. Frank Oser, III 645.00
12. Advanced Neurological Center 4,761.00
13. Dr. Charles Smith (internist/family doctor) not related
14. Diagnostic Imaging 3,812.00
15. East Jefferson General Hospital (surgery) 54,414.00
16. ER Doctors 235.00
17. Memorial Medical Center (tests) 6,891.00
18. Mercy-Baptist Radiology 635.00
19. Stand-Up Open MRI 9,600.00
20. Tulane University Hospital (physical therapy) 3,856.50
21. Walgreens 4,923.63

We also excluded $175.00 charged by Dr. Andrews and $2,040.00 charged by Dr. Meyers for those appointments Feingerts missed. The amounts set forth above reflect these deductions.

American also contends that it is entitled to an offset for those amounts paid by Feingerts’ private health insurer pursuant to La. R.S. 23:1212, which provides in pertinent part:

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

However, the medical expense offset provision is not self-operating; the employer must plead its offset and prove it with evidence showing that a payment of a certain amount of workers’ compensation claimant’s medical expenses was made by a person other than claimant, a relative or friend of the claimant. Lemons v. Georgia Pacific Corp., 42,950, p. 10 (La.App. 2 Cir. 2/13/08), 976 So.2d 307, 314, writ den., 08-0587, 08-0590 (La.5/2/08), 979 So.2d 1288, 1289.

While this court has not addressed the issue, we note that other courts of appeal have ruled similarly to the Second Circuit. See Authement v. Wal-Mart, 02-2434 (La.App. 1 Cir. 9/26/03), 857 So.2d 564 (employer not entitled to a statutory medical expense credit or setoff against workers’ compensation claimant’s medical expenses where employer did not set forth the extin-guishment of the claim as an affirmative defense and submit evidence at trial proving the amount of the credit); Alford v. Acadian Ambulance Service, Inc., 96-639 (La.App. 3 Cir. 11/6/96), 682 So.2d 942 (under workers’ compensation law credit for payment of medical expenses must be pleaded); Sears v. Berg Inc., 99-457 (La.App. 5 Cir. 9/28/99), 742 So.2d 760 (to be entitled to credit against medical expenses under workers’ compensation law employer must judicially assert its right to the credit and submit evidence at trial showing payment of a certain amount of claimant’s medical expenses, thereby proving amount of the credit).

In light of the rulings of our brethren, we adopt the same principle of law. In order for American to have availed itself of the provisions of La. R.S. 23:1212, it had to plead the offset as an affirmative defense and prove the amount of the offset at trial. This it did not do, and therefore it is not entitled to the credit.

As for the issue of mileage, generally a claimant can recover the costs incurred for medical treatment or evaluation. Pursuant to La. R.S. 23:1203 D:

D. In addition, the employer shall be liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services, medicines, and prosthetic devices, which the employer is required to furnish under this Section, and for the vocational rehabilitation-related | ^mileage traveled by the employee at the direction of the employer. When the employee uses his own vehicle, he shall be he shall be reimbursed at the same rate per mile as established by the state of Louisiana for reimbursement of state employees for use of their personal vehicle on state business.

Although Feingerts would be entitled to a reimbursement for his mileage, no evidence is present in the record on appeal to prove this element of damage. Therefore, we agree with American on this issue and amend the judgment accordingly.

Feingerts has assigned four errors for our review. First, he contends that the OWC erred by failing to award supplement earnings benefits (“SEB”) or temporary total disability benefits (“TTD”). On the issue of indemnity and earning capacity, the OWC analyzed the documents entered into evidence by Fein-gerts and stated:

From this evidence presented, this OWC Court can not determine the actual earnings of claimant. The claimant is the sole remaining officer of a law corporation.
The federal corporate tax returns show the following:
1999:
Earnings paid to claimant: $150,000 But net operating loss of the corporation of-$42,419.
2000:
Earnings paid to claimant: $126,000 But net operating loss of the corporation of-$60,966.
2001:
Earnings paid to claimant: $24,000 But net operating loss of the corporation of-$99,889.
117The federal Individual tax returns of claimant shed even less light on what his earnings were for these relevant periods of time.
Based on this evidence, it cannot be definitely stated that for the year 2000, that claimant’s real earnings were $126,000.00. He was paid those amounts but the corporation was operating at a loss while the claimant was the sole person dictating the amount of salaries to be paid. It appears from this evidence that the corporation began to lose money in 1999 (-$42,419) and again in 2000 (-$60,966) and again (now post-accident) in 2001 accident. The corporation was spiraling downward prior to the accident.
Based on “statement 4” of the 2002 Federal Corporate return, the corporation did not lose money in the prior years of 1994,1995, 1996,1997, and 1998 because no New Operating Loss (NOL) is listed as available for carryover in that 2002 return.
The individual tax returns for claimant did show that he paid taxes on those amounts of income stated in the corporate federal returns. But, that does not make them the true earnings of the claimant who had the sole authority to direct the amount that he was to be paid. And, clearly if the corporation if [sic] operating at a loss, the amount of compensation being paid out is at question.
Therefore, this OWC Court can not determine what actual earning loss was suffered by [claimant] as a result of this accident.

After reviewing the same evidence, that being the various tax returns of Feingerts and his professional law corporation, we do not find that the OWC was clearly wrong or manifestly erroneous in this decision. Therefore, we find this assignment to be without merit.

Feingerts’ second assignment of error concerns the OWC’s failure to award him medical benefits incurred for the treatment of his alleged lower back injury. The medical testimony both supported and refuted this claim. Again, we find this to be an issue of fact that is not manifestly erroneous.

In his third assignment of error, Feingerts argues that the OWC erred by failing to award him the expenses incurred to have the 2007 brain scan. This scan [18was performed shortly after the first trial in Nevada. However, the scan was not introduced into evidence. Thus, the findings are not a part of the record on appeal, preventing Feingerts from carrying his burden of proof. We find that the OWC was correct in omitting this injury.

Finally, Feingerts asserts that the OWC erred when it failed to award penalties and attorney’s fees for American’s failure to act on his demands for medical treatment and payment of disability benefits. In this regard, the OWC stated:

No penalties were awarded and no attorney’s fees were awarded as defendant did reasonably controvert all issues.

This is a finding of fact by the court based on the evidence in the record. We do not find it manifestly erroneous or clearly wrong.

Based on the forgoing, we reverse the judgment in part with respect to the award for mileage, and amend the amount of medical expenses from $187,661.95 to $141,276.07. In all other respects, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART; RENDERED.

      . In its brief, American contends that the OWC found that Feingerts did not sustain a brain injury as a result of the accident; thus, it could not award medical expenses for mental confusion or concussion. American is incorrect. The OWC found that Feingerts sustained these two injuries but did not suffer from a permanent brain injury.

      . Dr. Ferriss also recalled a particular conversation he had with the claimant and stated: "But I remember having the reaction my own self of, oh, my goodness, he’s trying to blame everything on the accident. That was what I thought to myself.”

      . For example, Feingerts told Paul G. Harch, M.D. that he had his head on the steering wheel and had a bruise on his forehead that later diagnosed as a frontal sinus fracture. These claims are patently false and not supported by the record.

      . Susan Andrews, Ph.D., and William Black, Ph.D., both neuropsychologists, performed objective neuropsychological evaluations on the claimant. Dr. Andrews testified that Fein-gerts suffered from an impaired functionality level as the result of the accident. On the other hand, Dr. Black testified that the results from his evaluation were inconsistent in a way that could not be explained. He concluded that he could not say “more probably than not” that the claimant’s psychiatric state was related to the accident. In fact, he believed that Feingerts was suffering from so-matoform disorder, a mental disorder characterized by physical symptoms that mimic physical disease or injury for which there is no identifiable physical cause. Instead, the symptoms that result from a somatoform disorder are due to mental factors. In people who have somatoform disorder, medical test results are either normal or don't explain the person’s symptoms. People who have this disorder may undergo several medical evaluations and tests to be sure that they do not have an illness related to a physical cause or central lesion, http://en.wikipedia.org/wiki/ Somatoform-disorder.

      . See fn. 3 and 4, supra. Several of the doctors who testified found Feingerts overly focused on his various medical conditions and the lawsuits against American and the driver who was at fault for the accident.