author: PICKETT, Judge. COOKS, J.,

text:
    Kelli P. METCALF, etc. v. CHRISTUS HEALTH SOUTHWESTERN LOUISIANA d/b/a St. Patrick Hospital.
    No. 09-869.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2010.

      Steven Broussard, Broussard & Hart, LLC, Sulphur, LA, for Plaintiffs-Appellants, Kelli P. Metcalf, Judy L. Metcalf.
    Robert S. Kleinschmidt, Jr., Lake Charles, LA, for Defendant-Appellee, Christus Health Southwestern Louisiana d/b/a St. Patrick Hospital.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

| ,The appellants, Kelli Metcalf and Judy Metcalf, as tutrix of Karen, Kasey and Kayla Metcalf, appeal the judgment of the trial court that Christus Health Southwestern Louisiana d/b/a St. Patrick Hospital (St. Patrick Hospital) perfected a valid healthcare provider lien on the proceeds of an insurance settlement.

STATEMENT OF THE CASE

Chad Metcalf was injured in a car accident on March 26, 2006. He was taken to St. Patrick Hospital, where he died from his injuries. His estranged wife, Kelli Metcalf, and his mother, Judy Metcalf, as tutrix of Chad and Kelli’s three children, settled a claim with GEICO, the insurer of the car in which Chad was riding at the time of the accident. St. Patrick Hospital attempted to file a lien against the proceeds of the insurance settlement to recover $25,703.53 in expenses incurred in its treatment of Chad. At issue in this case is the validity of that lien.

The Metcalfs argue that the lien was deficient in two respects. First, they argue that the statute requires the location of the health care provider to be included. Second, they argue that the statute requires the lien to be sent by certified mail, return receipt requested. The attorney for the Metcalfs, Steven Broussard, acknowledged receiving a faxed copy of the lien from Credit Services of Louisiana, the agent for St. Patrick Hospital. Nevertheless, the Metcalfs claim that they never waived the requirement that the lien be sent by certified mail, return receipt requested. The Metcalfs also made other claims in an attempt to defeat the lien in their petitions, all of which have been dismissed.

The trial court heard the matter on May 27, 2008. It found that the lien was valid. Despite the fact that the location of St. Patrick Hospital was not listed on the 12lien, the trial court took judicial notice of the fact that it is located in Lake Charles. The trial court found that the requirement that the lien be sent by certified mail, return receipt requested, was waived when Mr. Broussard’s office accepted the faxed copy of the lien. The trial court signed a judgment dismissing the claims regarding the validity of the lien on June 5, 2008.

The Metcalfs filed a Motion for a New Trial, which the trial court purported to deny by writing denied across the face of the order setting a hearing on the motion. The Metcalfs appealed. On appeal, this court dismissed the appeal in an unpublished opinion, finding the denial of the Motion for a New Trial insufficient and remanding for a hearing on the motion. Metcalf v. Christus Health Southwestern Louisiana, 08-1269 (La.App. 3 Cir. 12/10/08), 997 So.2d 905. On remand, the Metcalfs reurged the Motion for a New Trial, which was denied by the trial court in open court on April 13, 2009. The Metcalfs now appeal.

ASSIGNMENT OF ERROR

The Metcalfs assert one assignment of error:

The trial court erred in finding that the subject lien was valid after acknowledging that the lien notice did not contain the required “location of the interested health care provider” and it was not sent by certified mail, return receipt requested, all as required by Louisiana Revised Statute 9:4753.

DISCUSSION

Louisiana Revised Statute 9:4752 states, in pertinent part:

A health care provider, hospital, or ambulance service that furnishes services or supplies to any injured person shall have a privilege for the reasonable charges or fees of such health care provider, hospital, or ambulance service on the net amount payable to the injured person, his heirs, or legal representatives, out of the total amount of any recovery or sum had, collected, or to be collected, whether by judgment or by settlement or compromise, from another person on account of such injuries, and on the net amount payable by any insurance company under |sany contract providing for indemnity or compensation to the injured person.

In this case, St. Patrick Hospital attempted to secure a lien against the proceeds of the Metcalfs’ settlement with GEICO, the insurer of the driver of the car in which Chad Metcalf was a passenger when he was injured. Louisiana Revised Statute 9:4753 , at the time St. Patrick Hospital attempted to perfect this lien, sets forth the written notice required to effect the lien:

The privilege created herein shall become effective if, prior to the payment of insurance proceeds, or to the payment of any judgment, settlement, or compromise on account of injuries, a written notice containing the name and address of the injured person and the name and location of the interested health care provider, hospital, or ambulance service is mailed by the interested health care provider, hospital, or ambulance service, or the attorney or agent for the interested health care provider, hospital, or ambulance service, certified mail, return receipt requested, to the injured person, to his attorney, to the person alleged to be liable to the injured person on account of the injuries sustained, to any insurance carrier which has insured such person against liability, and to any insurance company obligated by contract to pay indemnity or compensation to the injured person. This privilege shall be effective against all persons given notice according to the provisions hereof and shall not be defeated nor rendered ineffective as against any person that has been given the required notice, because of failure to give such notice to all those persons named herein.

“Lien statutes are stricti juris and must be strictly construed.” Sam v. Direct General Ins. Co. of La., 06-1116, p. 3 (La.App. 3 Cir. 2/7/07), 951 So.2d 482, 485 (citing Davison v. Winford, Co., Inc., 02-342 (La.App. 3 Cir. 10/2/02), 827 So.2d 1255).

The record is clear in the case before that the lien sent by St. Patrick Hospital to the attorney for the Metcalfs was not sent by certified mail and did not include the | Jocation of the healthcare provider. The trial court erred in finding that the lien was valid as against the Metcalfs.

St. Patrick Hospital argues that the doctrine of equitable estoppel should preclude the Metcalfs from challenging the validity of the lien. We reject this argument. We also find that whether everyone knew where St. Patrick Hospital is located is irrelevant, in that the statute requires that the location of the health care provider be included on the notice purporting to create the lien.

Motion for Peremptory Exception of No Right of Action

At the oral argument of this matter, St. Patrick Hospital filed a peremptory exception of no right of action alleging that the Estate of Chad Metcalf, and not the plaintiffs in this matter, is the proper party to bring this suit. A peremptory exception of no right of action may be filed at any stage of the proceedings, even on appeal. La.Civ.Code Proc. art. 927; Teachers’ Ret. Sys. of La. v. La. State Emp. Ret. Sys., 456 So.2d 594 (La.1984). “[T]he purpose of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. It assumes that the petition states a valid cause of action and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation.” Garber v. Badon & Ranier, 07-1497, p. 5 (La.App. 3 Cir. 4/2/08), 981 So.2d 92, 97, writ denied, 08-1154 (La.9/19/08), 992 So.2d 943.

In this case, the lien is effective against the proceeds of the insurance settlement, which were payable to the plaintiffs herein, Kelli and Judy Metcalf. Therefore, the Metcalfs have a right of action to set aside the lien insofar as they have an interest in the proceeds of the settlement upon which St. Patrick’s Hospital | r,attempted to perfect the lien. Therefore, the exception of no right of action is overruled.

CONCLUSION

The exception of no right of action filed in this court is overruled. The judgment of the trial court is reversed, and the lien filed by St. Patrick Hospital against the proceeds of the settlement paid by GEICO to Kelli and Judy Metcalf is declared invalid. The case is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed against the defendant, St. Patrick Hospital.

REVERSED AND REMANDED.

COOKS, J., concurs and assigns written reasons.

COOKS, J.,

Concurs in the Result.

| ,1 agree with the majority’s reasoning that the lien is defective in that it was not sent by certified mail and did not provide the location of the healthcare provider seeking to perfect the lien, as required by the provisions of La. R.S. 9:4758.

I believe, however, there is an additional, compelling reason why this lien is invalid as to the surviving spouse and surviving minor children of the decedent. The evidence shows the lien was directed to “The Estate of or Representative Chad W. Met-calf.” A letter authored by Mr. Broussard as attorney for the minor children, and indicating he represents the estate of Chad Metcalf, informed Christus that these three children listed on the check were seeking to recover damages for the wrongful death of their father from GEI-CO as insurer of the alleged negligent driver. He further states that the funds issued by GEICO made payable to the children and Kelli Metcalf are “not a matter of inheritance” from Chad’s estate.” Mr. Broussard’s legal secretary, Rachel Koonce, also testified that Broussard & Hart made “a claim for the Metcalfs for the death of the children’s father” and that this is what the settlement check from GEICO represents in payment. Christus has made no attempt at any stage of these proceedings to contend that the funds it seeks to lien are an asset of Chad’s estate. In fact, it directs the notice of lien to “The Estate of Chad W. Metcalf’ and |.¿argued in the trial court and in this court that the children have no cause of action against Christus to attack the lien because Chris-tus’ claim is against Chad’s estate. It is precisely for this reason that I believe the law does not entitle Christus to place a lien on the check issued by GEICO made payable to “Kelli Metcalf and Herbert E. Met-calf And Judy L. Metcalf As Custodial Guardians Karen Metcalf, Kasey Metcalf, & Kayla Metcalf ...”

La. Civ.Code art. 2315.2 provides

A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

In Walls v. American Optical Corporation, 98-0455 (La.9/8/99), 740 So.2d 1262, the Louisiana State Supreme Court stated

In Louisiana, the wrongful death action is authorized by La.C.C. art. 2315.2. The provision clearly and unambiguously expresses that the wrongful death action compensates the beneficiaries for their own injuries suffered as a result of the victim’s death. Therefore, the plaintiffs’ injury in a wrongful death action occurs when the victim dies.

Christus, having been informed by Mr. Broussard that these funds belonged to the children of the deceased as settlement for their wrongful death claim, and having seen that the check was made payable to these children through their lawful guardians and tutrix, acted in bad faith by attempting to lien proceeds which they had no reason nor basis to believe they had any right to claim. I would remand the case to the trial court for purposes of determining an amount of attorney fees and damages which would fairly compensate these children for the lien improperly placed upon their patrimony.

      . The statute was amended by 2008 La.Acts No. 611, § 1. The amendment added "facsimile transmission with proof of receipt of transmission” as an acceptable form of notice.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    Kermit L. WALTERS, Jr., Plaintiff-Appellee, v. Betty W. GOSS and State Farm Mutual Automobile Insurance Agency, Defendants-Appellants.
    No. 45,064-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.

      Nelson, Zentner, Sartor & Snellings, L.L.C. by Thomas G. Zentner, Jr., Monroe, for Appellants.
    Breithaupt, Dunn, Dubos, Shafto & Wolleson, LLC by K. Lamar Walters, III, Travis Oliver, Monroe, IV, for Appellees.
    Before BROWN, STEWART & PEATROSS, JJ.
   PEATROSS, J.

[ ,In this suit for damages, Plaintiff, Dr. Kermit L. Walters, Jr., sued Defendants, Betty Goss and her insurance company, State Farm Mutual Automobile Insurance Company (collectively referred to as “Defendants”), in Monroe City Court, alleging that Ms. Goss was at fault for a motorcycle accident occurring on March 21, 2007. The trial judge agreed with Dr. Walters and found Ms. Goss to be 100% at fault for the accident. Consequently, the trial judge awarded Dr. Walters $18,500 in general damages and $209 in medical expenses with legal interest thereon and court costs. Defendants now appeal. For the reasons stated herein, we reverse the judgment of the trial court and render judgment in favor of Ms. Goss, dismissing the claims of Dr. Walters with prejudice.

FACTS

The accident in question occurred on March 21, 2007, at the intersection of North 6th St. and Hudson Lane in Monroe, Louisiana. Dr. Walters was driving his Honda motorcycle in the east lane of North 6th St. in a northerly direction while Ms. Goss was driving her Buick automobile on Hudson Lane in a westerly direction. A stop sign is located at the intersection directing motorists on Hudson Lane to stop before crossing North 6th St.

Neither party disputes the fact that no impact ever occurred between Dr. Walters’ motorcycle and Ms. Goss’s Buick during the accident in question. According to Dr. Walters, he had turned onto and began traveling north on North 6th St. when he observed Ms. Goss’s vehicle, approximately |2one block ahead of him, at the intersection of North 6th St. and Hudson Lane.

Ms. Goss had pulled up to the intersection where the stop sign was located and stopped; however, her view was obscured by various poles and signs on North 6th St. To enable herself to better see the oncoming traffic, Ms. Goss pulled several feet forward toward, and then passed, the white stop line until she was approximately four feet from the intersection, where she came to a complete stop. In spite of having pulled forward past the stop sign and white stop line to get a better view of oncoming traffic, Ms. Goss’s vehicle never entered the intersection.

At this time Dr. Walters, who testified that he was traveling at 25 mph, was approximately 100 feet from the intersection. When Dr. Walters saw Ms. Goss pull up to the stop sign, stop and then pull forward past the white stop line, he assumed she would not stop at the intersection. Consequently, Dr. Walters applied the brakes on his motorcycle and steered left, away from Ms. Goss’s vehicle, causing his bike to skid and “lay down” in the street.

As a result of the accident, Dr. Walters sustained various injuries, including abrasions on his hands, elbow and knee, bruising to his thigh and chest, and a Morton’s neuroma (an injury to the nerve between the second and third toes of his right foot). According to Dr. Walters, he still experienced pain and numbness in his right foot nearly two years after the accident.

13As previously stated, Dr. Walters sued Ms. Goss claiming that she was at fault for causing the accident. The trial judge agreed with Dr. Walters and found that Ms. Goss was 100% hable in causing the accident. The trial judge then awarded general damages, medical damages and court costs to be paid by Defendants to Dr. Walters.

Defendants now appeal.

DISCUSSION

On review, an appellate court may not set aside the findings of fact by the trial court unless those findings are clearly wrong or manifestly erroneous. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). An appellate court must not base its determination on whether it considers the trier of fact’s conclusion to be right or wrong, but on whether the fact finder’s conclusion was reasonable. Stobart, supra.

In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646; Stobart, supra. The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270.

14Where the fact finder’s conclusions are based on determinations regarding credibility of a witness, the manifest error standard demands great deference to the trier of fact because only the trier of fact 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. Rosell, supra. With regard to decisions of law, however, a trial court’s ruling is subject to de novo review. Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90.

In Defendants’ first assignment of error, they contend that the trial judge erred in finding Ms. Goss to be 100% at fault in causing the accident. La. R.S. 32:123 provides:

A. Preferential right of way at an intersection may be indicated by stop signs or yield signs.
B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.
C. At a four-way stop intersection, the driver of the first vehicle to stop at the intersection shall be the first to proceed. If two or more vehicles reach the four-way stop intersection at the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.
D. The driver or operator of a vehicle approaching a yield sign shall slow down to a speed reasonable for the existing conditions, or shall stop if necessary, before entering the cross walk on the near side of the intersection or, in the event there is no cross walk, at a clearly marked stop line, but if none, then at the point nearest the intersecting |5roadway where the driver has a view of approaching traffic on the intersecting roadway. Having slowed or stopped in this manner, the driver shall yield the right of way to any pedestrian legally crossing the roadway on which he is driving, and to any vehicle in the intersection or approaching on another highway so closely as to constitute an immediate hazard.
E. (1) Any person who is found guilty of or pleads guilty or nolo contendere to a violation of the provisions of this Section shall be subject to the following penalties:
(a) If the violation results in the injury of another person, the offender shall be fined two hundred dollars and may be subjected to a driver’s license suspension for a period of not less than thirty days, or both.
(b) If the violation results in the serious bodily injury of another person, the offender shall be fined five hundred dollars and may be subjected to a driver’s license suspension for a period of not less than ninety days, or both.
(c)If the violation results in the death of another person, the offender shall be fined one thousand dollars and may be subjected to a driver’s license suspension for a period of not less than one hundred eighty days, or both.
(2) For purposes of this Section, “serious bodily injury” shall mean a bodily injury which involves unconsciousness, extreme physical pain, or protracted and obvious disfigurement, protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

With regard to intersections where the driver without the right of way has a partially obstructed view, the Louisiana Supreme Court stated the following in Toston v. Pardon, 03-1747 (La.4/23/04), 874 So.2d 791:

The jurisprudence indicates that stopping is only half the duty, the other half is not to proceed until determining that the way is clear. Guillot v. Valley Forge Ins. Co., 99-1044, p. 4 (La.App. 3 Cir. 12/8/99), 753 So.2d 891, 894. The second duty is heavier and requires an even greater degree of care when the intersection is blind, or partially obstructed. Continental Ins. Co. v. Duthu, 235 So.2d 182, 186 (La.App. 4 Cir.1970) [writ refused, 256 La. 820, 239 So.2d 346 (La.1970)]. A driver entering a superior highway where his view is obstructed is under a duty to proceed with extraordinary caution. Taylor v. State, 431 So.2d 876, 879 (La.App. 2 Cir.1983).

| fiIn their argument, Defendants stress the fact that Ms. Goss’s vehicle never entered the intersection where the accident occurred. Defendants contend that Dr. Walters overreacted in assuming Ms. Goss’s vehicle would enter the intersection, thereby causing his own accident and alleged injuries. Defendants assert that, since Ms. Goss only moved forward past the stop sign and white stop line in order to get a better view of oncoming traffic, but never actually entered the intersection, there should not have been a finding of liability or fault on her part. We agree.

Ms. Goss fulfilled her duties as required by La. R.S. 32:123 and Toston v. Pardon, supra, by stopping at the stop sign and then by proceeding with “extraordinary caution.” Once Ms. Goss realized that she did not have a clear view of oncoming traffic from her position where she was stopped at the stop sign due to the various hanging signs and poles, she pulled forward toward the white stop line in an attempt to get a better view. On arriving to the white stop line, Ms. Goss determined that her view remained obscured by the various hanging signs and poles; but, rather than pulling forward blindly into the intersection, Ms. Goss proceeded cautiously and pulled past the white stop line several more feet, stopping short of the intersection, in an attempt to get a view of oncoming traffic without entering the intersection.

Ms. Goss’s attempts to gain a full view of the oncoming traffic in the intersection by pulling her vehicle forward several feet at a time, coupled 17with her ultimate decision not to enter the intersection, indicate that she exercised the “greater degree of care” and “extraordinary caution” required by the driver without the right of way who is attempting to cross a blind or partially obstructed intersection. Toston v. Pardon, supra. Ms. Goss continued to yield to oncoming traffic, in spite of her obscured view. At no point did Ms. Goss’s vehicle even partially enter the intersection or Dr. Walter’s path on N. 6th St.

According to the testimony of officer Corporal Albert Edminston, the investigating officer at the scene of the accident and a motorcycle rider with over 20 years of experience, Dr. Walters could have taken more safe evasive action by simply moving into the left hand lane of his two-lane, one-way street. Officer Edminston testified that Dr. Walters appeared to have overreacted in the situation by braking and “laying down” his bike when Ms. Goss never even entered the intersection.

We find Officer Edminston’s testimony persuasive, and agree that Dr. Walters could have easily avoided the accident by slowing his motorcycle and, if necessary, by moving to the left hand lane farthest from the point of entrance for Ms. Goss’s vehicle. Additionally, assuming arguendo that Dr. Walters had ultimately chosen not to slow his motorcycle or move to the opposite lane, no accident would have occurred since Ms. Goss made the prudent decision to never enter the intersection because her view was obscured.

Considering the aforementioned, we find that the trial court had no reasonable basis upon which to find Ms. Goss liable for Dr. Walters’ | ^motorcycle accident and, further, in assessing her with 100% fault.

Additionally, in light of our finding that Ms. Goss is not liable in this matter, we pretermit any discussion of damages.

CONCLUSION

For the foregoing reasons, the judgment of the trial court finding liability on the part of Defendants, Betty W. Goss and State Farm Mutual Automobile Insurance Company, is reversed. Costs of this appeal are assessed to Dr. Kermit L. Walters.

REVERSED AND RENDERED.

      . It is undisputed by both parties that Ms. Goss's vehicle never entered the intersection. Additionally, Ms. Sharon West testified at trial that, while she did not witness the accident, she was traveling a short distance behind Ms. Goss because the two had just left choir practice at the same time. Ms. West testified that, once she arrived at the scene of the accident, Ms. Goss's vehicle was clearly stopped several feet prior to the entrance of the intersection.


author: JAMES F. McKAY III, Judge.

text:
    Leander WINFORD v. DEPARTMENT OF POLICE.
    No. 2009-CA-0770.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 3, 2010.
    James E. Stovall, Covington, Louisiana, for Plaintiff/Appellant.
    Penya Moses-Fields, City Attorney Of Orleans Parish, Nolan P. Lambert, Chief Deputy City Attorney of Orleans Parish, Victor L. Papai, Jr., Assistant City Attorney of Orleans Parish, Parfait Mwez, Law Clerk, New Orleans, Louisiana, for Defendant/Appellee.

      (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD).
   JAMES F. McKAY III, Judge.

h Leander Winford appeals the decision of the Civil Service Commission denying her back wages and emoluments. We affirm the Civil Service Commission’s decision.

Leander Winford was employed as a police officer with the New Orleans Police Department (“NOPD”), stationed with the Seventh District, and had permanent status as a civil service employee. On August 28, 2005, all NOPD officers were placed on activation status due the impending landfall of Hurricane Katrina and its projected aftermath. Officer Winford reported for duty on August 28, 2005, but failed to return and report to duty on September 1,' 2005. As a result of this action she received a notice of termination for job abandonment on October 24, 2005.

In the immediate aftermath of Hurricane Katrina, NOPD officers and their families were permitted to stay at the Emergency Operations Center (EOC) to ensure their safety from the hazardous conditions. They were allowed to bring some of their saved personal belongings. Officer Winford accompanied by seven |2members of her family were staying at the Seventh District EOC on Chef Ment-eur Hwy. and Read Rd. During this stay, members of Officer Winford’s family were accused of stealing the property of other officers. Objects belonging to the other officers were found to be in the possession of the appellant and her family. As a result, Sergeant Keller and Lieutenant Lohman ordered her and her family to leave the EOC.

After leaving the EOC, the appellant took her family to the New Orleans Convention Center. The appellant asserts that upon the orders of Lieutenant Thompson, she returned to the EOC. When she arrived at the EOC, Sergeant Keller and Lieutenant Lohman again requested that she leave the premises. She informed them that she was evacuating with her family; the appellant ultimately evacuated to Columbus, Georgia. She returned to New Orleans in November of 2005 and inquired about filing a complaint against the officers that had directed her and her family to leave the EOC. The appellant made no attempt to pursue this complaint. She never brought a formal complaint with the Public Integrity Bureau. However, the NOPD did initiate a Public Integrity Bureau investigation of the theft claims, but when all of the officers involved in the matter had either resigned or had been terminated for job abandonment, the internal investigation was concluded.

The appellant appealed her letter of termination dated October 24, 2005, and a hearing on the matter was held on March 21, 2006. The Civil Service Commission (“Commission”) ruled that the appointing authority had violated | Leander Winford’s due process rights, as per Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), by denying her a pre-investigation investigation. However, in a decision of consolidated cases this Court ruled that Loudermill was not applicable to the consolidated cases and remanded them for a hearing on the merits. Rashi Reed, et al. v. Dept. of Police, 2006-CA-1498 (La. 4 Cir. 10/10/07), 967 So.2d 606.

At the subsequent hearing no further evidence was presented and the matter was submitted for a decision. The Commission determined that the appellant had been ordered off the job consequently; no abandonment had occurred. The Commission additionally found that department policy would have led to a 120 day suspension, dui’ing which investigations and hearings could be held followed by termination, if warranted. The Commission ordered Leander Winford be reinstated to the NOPD, but denied back pay for the period spent away from her employment as she had failed to report to the NOPD her availability to return to duty.

The appellant argues that the Commission erred in denying her back wages and emoluments. Her argument is based on the Commission’s decision that she was wrongfully terminated from her job with the NOPD as she did not abandon her job but was following the orders of her supervisors. As statutory support she sites to La. R.S. 49:113 and Civil Service Commission Rule II § 11.1, which provide: La. R.S. 49:113 provides,

Employees in the state or city civil service, who have been illegally discharged from their employment, as found by the appellate courts, shall be entitled to be paid by the employing agency all salaries and wages withheld during the period of illegal separation, against which amount shall be credited and set-off all wages and salaries earned by the employee in private employment in the period of separation.

|4Rule II § 11.1 provides,

In all appeals to the Commission under these Rules wherein a final judgment has been rendered by either the Commission, the Court of Appeal, Fourth Circuit, or the Louisiana State Supreme Court, immediate steps shall be taken by the City to fully comply with the judgment. This restoration shall include, where appropriate, reimbursement for all back wages and emoluments due and accrued annual and/or sick leave, less an offset for any wages earned during the period for which back pay was restored.

STANDARD OF REVIEW

Decisions of the Commission are subject to appellate review on any questions of law or fact. La. Const. Art. X, Section 12(B); Walters v. Department of Police of New Orleans, 454 So.2d 106, 113 (La.1984). The standard of review is whether the Commission’s conclusion is arbitrary or capricious, or manifestly wrong. Cha-Jua v. Department of Fire, 439 So.2d 1150, 1151 (La.App. 4 Cir.1983). However, although the Commission’s factual findings may not be modified absent manifest error, the review of procedural decisions and questions of law falls within this court’s traditional plenary function. As such, we are not limited to abuse of discretion or arbitrary and capricious standards of review in these instances. Perkins v. Sewerage and Water Bd., 95-1031 (La.App. 4 Cir. 2/29/96), 669 So.2d 726, 728. A determination is arbitrary or capricious only when no rational basis exists for the action taken. Mendoza v. Department of Police, 2008-0062 (La.App 4 Cir. 8/20/08), 991 So.2d 1155, 1163.

DISCUSSION

The authority of both State and City Civil Service Commissions is derived from Article X of the Louisiana Constitution. The civil service provisions in the state constitution and the rules of the Commission are designed to protect public |5career employees from political discrimination by eliminating the “spoils” system. La. Const. Art. X, § 1 et seq.; Bannister v. Department of Streets, 95-0404, p. 4 (La 1/16/96), 666 So.2d 641, 645. Essentially, civil service laws and rules establish a system under which “non-policy forming” public employees are selected on the basis of merit and can be discharged only for insubordination, incompetency or improper conduct, and not for religious or political reasons. Id. To further these goals, and in addition to its primary function as a quasi-judicial body, the civil service commission is empowered to generally supervise the civil service system and to establish rules for that system’s administration. Civil service rules thus have the effect of law. La. Const. Art. X, § 10(A)(4). The Constitution provides that no person who has gained permanent status in the classified civil service shall be subjected to disciplinary action except for cause expressed in writing. La. Const. Art. X, § 8(A). Civil Service Commission Rule II § 4.1 provides that “regular employees in the classified service shall have the right to appeal disciplinary actions to the Commission.”

Based on the facts of this case and the evidence presented to the Commission, the record establishes that the appellant failed to determine an acceptable return date in violation of departmental rules and is not necessarily entitled to reinstatement with back wages and emoluments.

The appointing authority argued that Civil Service Commission Rule II § 11.1 expressly states that reimbursements for all back wages and emoluments due shall be restored where appropriate. Here, despite reinstating the appellant, the Commission decided to deny the appellant’s back wages and emoluments based on | fithe appellant’s failure to make the necessary communication with the NOPD concerning her situation and when she should return.

In this matter, the Commission interpreted its own rule in determining whether or not the reinstatement of back wages and emoluments for the absent period was appropriate. Based on Civil Service Commission Rule II § 11.1, the Commission has the discretion to determine when it is appropriate to award back wages and emoluments as part of a final judgment. The language of the rule expressly states that the restoration includes back wages and emoluments only when appropriate.

After reviewing the record, we find that the appellant’s argument is fatally flawed. The Commissions decision was not arbitrary or capricious, and was rationally based on the Commission’s discretion to determine if the restoration of back wages and emoluments is appropriate. The decision is affirmed.

AFFIRMED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Guadalupe ERAZO and Luis G. Erazo, Individually and or Behalf of their Minor Children Luis A. Erazo, Yesenia Erazo and Daniel Erazo, and Patricia Gonzales v. Chris MORTON.
    No. 09-CA-661.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 9, 2010.
    Rehearing Denied April 14, 2010.

      C. Byron Berry, Jr., Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Dayal S. Reddy, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKS HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

lain this proceeding concerning a landlord’s alleged failure to repair leased premises, defendant/appellant Chris Morton (“Morton”) appeals a judgment he characterizes as a default judgment. Morton contends that the trial court erred in granting the judgment because the evidence was insufficient to establish a prima facie case. Morton additionally contends that the trial judge erred in denying his motion for new trial. For the reasons that follow, we dismiss the appeal as untimely.

FACTS AND PROCEDURAL HISTORY

The following allegations were developed from trial testimony and exhibits introduced into evidence:

On August 16, 2002, plaintiffs Guadalupe Erazo, Luis G. Erazo, Luis A. Erazo, Yesenia B. Erazo, Daniel B. Erazo, and Patricia Gonzalez entered into a Presidential lease agreement with Morton. In the lease agreement, the plaintiffs agreed to pay Morton $750.00 monthly for an apartment located at 3013 Ridgelake Drive, Metairie, Louisiana.

On December 11, 2003, the plaintiffs filed a petition for damages in First Parish Court, naming Morton as defendant. They alleged that in the August 16, 2002 lease, the defendant agreed that he “shall be responsible for the repair of ... plumbing ... provided the repair is not caused by a misuse of neglect by the Lessee.” The plaintiffs further alleged that the defendant breached that clause of the lease by failing to rectify plumbing problems in the apartment and that they were harmed as a result. This matter was eventually set for trial on June 30, 2008. Despite being personally served with notice setting this matter for trial, Morton failed to appear at trial. The plaintiffs presented testimony of three witnesses and introduced numerous exhibits into evidence. At the conclusion of the trial, the court ruled in favor of the plaintiffs.

The trial court rendered its judgment on March 12, 2009. The trial court awarded each of the plaintiffs $1,500.00 in general damages. The trial court additionally awarded Guadalupe Erazo hotel expenditures, vehicle storage facility costs, the cost of replacing a bed frame, two months rent, double the amount of the plaintiffs’ security deposit, and attorney’s fees.

UNTIMELINESS OF THE APPEAL

We need not address the defendant’s assignments of error, because his appeal is untimely.

La. C.C.P. art. 5002(A) provides that “[a]n appeal from a judgment rendered by a city court or a parish court may be taken only within ten days from |4the date of the judgment or from the service of notice of judgment, when such notice is necessary.” However, “[w]hen an application for new trial is timely filed ... the delay for appeal commences on the day after the motion is denied, or from service of notice of the order denying a new trial, when such notice is necessary.” La. C.C.P. art. 5002(B). The delay for applying for a new trial from a judgment in parish court is three days exclusive of holidays. La. C.C.P. art. 4907(B). Where notice of judgment is required, this delay commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment. Id.

The trial judge signed the judgment at issue on March 12, 2009. The record indicates that the defendant filed a motion for new trial on March 23, 2009. In the motion for new trial, Morton admitted that he “received the Notice of Signing of Judgment on March 14, 2009.” After a hearing, the motion for new trial was denied on May 18, 2009. Morton filed a Motion for Devolutive Appeal on June 18, 2009. The motion was granted on June 23, 2009.

The record is clear that Morton did not appeal the parish court judgment within ten days of the date of the judgment or from service of the notice of judgment as required by La. C.C.P. art. 5002(A). Under the provisions of La. C.C.P. art. 4907(B), the three-day delay period for requesting a new trial commenced on March 16, 2009. Accordingly, Morton’s motion for new trial was untimely filed and his ten-day delay period for appealing the trial court’s judgment began on March 14, 2009. See also Myles v. Turner, 612 So.2d 32, 35 (La.1993) |B(“we hold that the 10-day appeal delay provided for in La.Code Civ.Proc. art. 5002 commences to run upon receipt of notice of judgment rather than upon the mere mailing of said notice.”) (emphasis in original). Morton did not file his Motion for Devolutive Appeal until 96 days had elapsed.

When an appellant fails to timely take and perfect an appeal, the appellate court lacks jurisdiction to hear the appeal and may dismiss it on its own motion. State Farm Mut. Auto. Ins. Co. ex rel. Robinson v. Jimenez, 98-1057 (La.App. 5 Cir. 1/26/99), 726 So.2d 465, 466. Accordingly, because it was not timely filed, Morton’s appeal is not properly before this Court, and it is hereby dismissed.

DECREE

This appeal is dismissed. Costs of this appeal are taxed to Morton.

APPEAL DISMISSED.

      . The parties dispute the nature of the proceedings below and the judgment rendered by the trial court. Morton contends that the trial court issued a default judgment. In their brief to this Court, the plaintiffs contend that the “[t]he trial court's judgment in favor of Plaintiffs was proper because it was rendered following a trial on the merits in which competent evidence was presented and in which Defendant waived all objections by failing to appear.” In any event, we need not consider whether the trial court issued a default judgment or whether the judgment was rendered following a trial on the merits because we dismiss the appeal as untimely.

      . Luis A. Erazo, Yesenia B. Erazo, and Daniel B. Erazo are the natural children of Guadalupe Erazo and Luis G. Erazo. Guadalupe Era-zo, Luis G. Erazo, Luis A. Erazo, Yesenia B. Erazo, Daniel B. Erazo, and Patricia Gonzalez will collectively hereafter be known as the "plaintiffs."

      . We note that this admission constitutes a judicial confession. An admission in a pleading falls within the scope of a judicial confession and is full proof against the party making it. Goines v. Goines, 08-42 (La.App. 5 Cir. 6/19/08) 989 So.2d 794, 797; Tucker v. St. Tammany Parish School Bd., 03-2401 (La.App. 1 Cir. 9/17/04), 888 So.2d 235, 237. Written motions constitute pleadings. La. C.C.P. art. 852.

      . Morton received the notice of signing of judgment on March 14, 2009. March 14, 2009 was a Saturday. Saturdays and Sundays are counted as days of public rest and legal holidays pursuant to La. R.S. 1:55(A)(1). See also Floridi v. Floridi, 08-1306 (La.App. 5 Cir. 4/28/09), 13 So.3d 206, 208. Under La. C.C.P. art. 5059(3), legal holidays are “included in the computation of a period of time allowed or prescribed, except when ... [t]he period is less than seven days.” The delay period for filing a motion for new trial in this case was three days. Accordingly, legal holidays are not included in the computation of the three-day delay period for requesting a new trial and the period commenced on Monday, March 16, 2009.


author: McMANUS, Judge.

text:
    Alberto QUERAL and Vincente Davis v. LATTER & BLUM, INC., Richard Murdock, Sidney Mahoney, Ernest A. Warrendorf, Mary Cazezu Warrendorf & ABC Insurance Company.
    No. 09-CA-246.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 9, 2010.
    Rehearing Denied April 6, 2010.
    Regel L. Bisso, Regel L. Bisso, L.L.C., Attorney at Law, Metairie, Louisiana, for Plaintiff/Appellant.
    Michael P. Bienvenu, Seale, Smith, Zu-ber & Barnette, Attorney at Law, Baton Rouge, Louisiana, for Defendants/Appel-lees.
    George Pivach II, Timothy Thriffiley, Pivach, Pivach, Hufft & Thriffiley, Attorneys at Law, Belle Chasse, Louisiana, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and Jude G. GRAVOIS.
   McMANUS, Judge.

[^Plaintiffs, Alberto Queral and Vincente Davis, file this appeal from the trial court’s grant of exceptions of prescription on behalf of the defendants, which resulted in the dismissal of all of plaintiffs’ claims. For the reasons assigned below, we reverse the trial court’s judgments granting the exceptions of prescription.

STATEMENT OF THE CASE

On February 12,1998, plaintiffs, Alberto Queral and Vincente Davis, purchased a home, located at 200 Terry Parkway, from Mary and Ernest Warrendorf (“the War-rendorfs”). The property was listed and advertised for sale by Latter & Blum, Inc. realtors. A paper flyer advertising the home for sale was available and provided information about the house, including the fact that it was “custom built on pilings”. Murdock Richard was the listing agent on the property for Latter & Blum. Sidney Mahoney, another agent with Latter & Blum, also worked with the plaintiffs concerning this property. According to Queral, both Mahoney and Richard assured him the house and brick fence around the yard were structurally sound and not defective.

Latter & Blum supplied plaintiffs with a property disclosure statement signed by the Warrendorfs on October 2, 1997. The statement was later signed by Queral and Davis on December 8, 1997. Amongst other things, the statement provided that no alterations had been made to the property, no building permits had 14been obtained for any work, and the Warrendorfs knew of no defects in the foundation of the home.

After purchasing the home, Queral noticed thin cracks in the house in approximately May or June of 1998. In November 1998, an air conditioning repairman was working in the attic of the house and noticed unusual bolts. He indicated to Queral that these bolts would only have been put there if a major repair had been done by an engineer.

In December 1998, plaintiffs hired Robert B. Anderson Consulting, Inc. to inspect the property. Anderson, a structural engineer, performed the inspection of the house on April 1, 1999. He submitted a written report to plaintiffs on April 5, 1999. The written report stated the foundation type of the house was a “[p]ost-tensioned slab on ground”, meaning the house was not built on pilings. The report further explained Anderson’s observations that the brick fence leaned significantly and there appeared to have been tie-backs that had been removed. Anderson recommended that the brick fence be secured with either tie-backs or pilasters, or preferably be removed and replaced with a more stable fence structure. With regards to the settlement of the house, Anderson found the differential movement to be average for this area and found it did not appear to be a current cause for concern. He found the slab and superstructure of the residence to be in satisfactory condition and performing adequately.

On April 4, 2000, plaintiffs filed a petition naming the Warrendorfs, Latter & Blum, and Richard as defendants. Plaintiffs alleged defendants made fraudulent misrepresentations that the house was built on pilings prior to the sale. Therefore, they sought redhibition of the sale and return of the purchase price. On February 23, 2003, the plaintiffs filed a First Amended, Supplemental, and Restated Petition alleging the specific redhibitory defect was a differential settlement in the property.

|fiOn March 22, 2007, the Warrendorfs filed an exception of prescription arguing the plaintiffs’ petition was prescribed on its face because it was filed over two years after the purchase of the home. Further, the Warrendorfs alleged that even if the plaintiffs proved they knew of the settlement differential at the time of the sale, the plaintiffs had constructive notice of the problem by March 1999. Therefore, the Warrendorfs argued the one year prescriptive period began to run at that time and the April 4, 2000 petition was prescribed. The Warrendorfs’ exception was heard on May 21, 2007 and denied by the trial court on July 9, 2007. Latter & Blum and Richard also filed an exception of prescription on June 4, 2007. This exception was heard by the trial court on April 80, 2008 and granted on July 14, 2008.

On July 24, 2008, plaintiffs filed a motion for new trial on the grant of the trial court’s exception of prescription in favor of Latter & Blum and Richard. The War-rendorfs then re-urged their exception of prescription on August 5, 2008. On November 13, 2008 the trial court granted the Warrendorfs’ re-urged exception of prescription, dismissing all claims of plaintiffs. On December 1, 2008, the trial court denied plaintiffs’ motion for new trial.

Upon plaintiffs’ request, the trial court submitted written reasons for judgment on the denial of the motion for new trial and the grant of the re-urged exception of prescription.

Plaintiffs now appeal the judgment granting the exception of prescription in favor of Latter & Blum and Richard, the judgment granting the exception of prescription in favor of the Warrendorfs, and the denial of the motion for new trial. On appeal, plaintiffs argue the notice of cracks is not automatic notice of a defect sufficient to start the running of prescription. They allege the defect was discovered on April 5, 1999, the date the engineers report was received. Therefore, Rthe plaintiffs argue the April 4, 2000 petition was filed within one year of the discovery of the defect.

Plaintiffs further argue there are two different causes of action, an action for fraud and negligent misrepresentation and an action for redhibition. Plaintiffs contend prescription is determined differently for each of these claims. Plaintiffs argue prescription tolls one year from the discovery of the defect for the redhibition claim and one year from the discovery of the fraudulent misrepresentation itself for the negligent misrepresentation claim. They allege the fraud and misrepresentation by defendants was not discovered until the engineers report was received on April 5, 1999.

DISCUSSION

The plaintiffs’ action against Latter & Blum, its agents, and the Warrendorfs is for redhibition, based on fraudulent or negligent misrepresentations made by defendants with regards to the type of foundation that existed beneath the house. La. C.C. art. 2584 governs prescription of these claims, and states, in part:

A. (1) The action for redhibition against a seller who did not know of the existence of a defect in the thing sold prescribes in four years from the day delivery of such thing was made to the buyer or one year from the day the defect was discovered by the buyer, whichever occurs first.
(2) However, when the defect is of residential or commercial immovable property, an action for redhibition against a seller who did not know of the existence of the defect prescribes in one year from the day delivery of the property was made to the buyer.
B. The action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.

Plaintiffs allege the Warrendorfs and Latter & Blum, through its agents, knew or should have known, that the house was not built on pilings. Therefore, pursuant to La. C.C. art. 2534(B), this action prescribes one year from the day the [7defect was discovered by the buyer. The plaintiffs have alleged the defect is the fact that the house is not built on pilings, and their cause of action against defendants includes the fraudulent misrepresentations made prior to the purchase which led the plaintiffs to believe the house was built on pilings. Therefore, discovery of the defect would occur when the plaintiffs learned the house was not built on pilings.

Queral testified in his deposition that he began noticing cracks in the house in approximately May or June of 1998. The air conditioning repairmen was in the attic and alerted Queral to the unusual bolts, which indicated a major repair had been done, in November 1998. Queral then proceeded to investigate any possible problems by hiring Anderson to perform an inspection. The inspection was conducted on April 1, 1999. However, Anderson’s written report with his findings was not presented to the plaintiffs until April 5, 1999. It was this report that actually stated the house was not built on pilings, but was instead a “[p]ost tension slab on ground.”

We note that Queral had some knowledge of the cracks in the walls and possible problems before the inspection was even completed, which is what prompted him to hire Anderson. However, there is no indication the plaintiffs knew of the lack of pilings under the house prior to receiving Anderson’s report. Thus, we find the plaintiffs did not discovery the defect complained of, that the house was not built on pilings, until the April 5, 1999 engineer’s report.

Similarly, in Gad v. Granberry, 2007-117 (La.App. 3 Cir. 5/30/07), 958 So.2d 125, the plaintiff homeowners filed a redhibition action based on fraud or negligent misrepresentation against the sellers of the home, after discovering settlement of the home and foundation problems. Defendant filed an exception of prescription arguing the claim had prescribed because it was filed more than one | Ryear after discovery of the defect. The trial court granted the exception of prescription. The plaintiffs appealed, and the Third Circuit reversed the trial court’s decision finding the plaintiffs did not have constructive knowledge of the defect until a second engineer’s report showed the house was structurally unsound due to settlement differential, even though the plaintiffs had investigated problems and made recommended repairs before the report was received. The Third Circuit found the plaintiffs were not informed of the origin of the problem or the extent of the damage until consulting with the architect and receiving the second engineer’s report.

In this case, we find, as the Third Circuit did in Gad, that the plaintiffs did not have constructive knowledge of the defect, or the fact that the house was not built on pilings, until the engineer’s report which was given to plaintiffs on April 5, 1999. As in Gad, the plaintiffs in this case noticed some problems prior to the engineer’s inspection and report, but did not know the extent, or the fact that the house was not built on pilings until the report was prepared and delivered by Anderson. Thus, the claims against defendants would have prescribed one year from that date, or April 5, 2000. Plaintiffs’ suit was filed April 4, 2000. Thus, it was timely filed and not prescribed.

In accordance with the above, we find the trial court erred in granting the exception of prescription in favor of the Warren-dorfs, Latter & Blum and Richard. Therefore, the trial court’s judgment granting these exceptions is reversed and the matter is remanded to the trial court for further proceedings.

REVERSED; MATTER REMANDED.


author: SAUNDERS, Judge.

text:
    Lechia BAKER v. SUMMIT NURSING HOME.
    No. 09-1007.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.
    Michael D. Bass, Guglielmo, Lopez, Opelousas, LA, for Defendant Appellee, Summit Nursing Home.
    Lechia Baker, In Proper Person, Le-Compte, LA, for Plaintiff Appellant, Lec-hia Baker.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

11 This is a workers’ compensation case where the employee, after the employee’s counsel appropriately withdrew, failed to attend the mandatory pre-trial conference. As a result, the workers’ compensation judge set a contradictory hearing to determine whether to dismiss the employee’s claim. After the employee failed to attend the contradictory hearing, the workers’ compensation judge dismissed the employee’s claim, without prejudice, and allowed the employee thirty days to reinstate her claim for good cause shown. Rather than attempt to reinstate the claim, the employee filed this appeal. Under La.R.S. 23:1310.1(C) and Louisiana Administrative Code, Title 40, Part I, Chapter 57, § 5705, we find no error in the workers’ compensation judge’s judgment and affirm.

FACTS AND PROCEDURAL HISTORY:

Lechia Baker (Baker) filed a claim for workers’ compensation benefits via a disputed claim for compensation, Form LDOL-WC-1008, against Summit Nursing Home (Summit) on August 21, 2008. At the time, she was represented by counsel.

After filing Form LDOL-WC-1008, a telephone status conference was conducted on October 23, 2008. The workers’ compensation court provided counsel for both parties with a date for mandatory pre-trial mediation conference and a date for trial.

Baker’s counsel later filed a motion to withdraw from representing her. In that motion, counsel specifically acknowledged receiving notice of the pre-trial mediation date, April 24, 2009. Baker’s counsel further indicated in the certificate of service that he had forwarded to Baker, at her current address, the motion to withdraw and pre-trial mediation date.

Baker failed to attend the pre-trial conference on April, 24, 2009. The 1^Workers’ Compensation Judge (WCJ) then set a contradictory hearing to determine whether Baker’s claim should be dismissed based on her failure to appear and participate at the pre-trial mediation conference.

The contradictory hearing was set for June 15, 2009. Despite receiving notice of the hearing, Baker did not attend. As a result, the WCJ dismissed her claim without prejudice, and allowed Baker thirty days to reinstate her claim for good cause shown.

Baker never sought to reinstate her claim within the thirty days allowed. Rather, she filed this devolutive appeal. In her brief, Baker failed to list any assignments of error. Instead, Baker’s brief is a recitation of the facts dealing with the alleged merits of her claim against Summit.

DISCUSSION OF THE MERITS:

Baker has failed to properly construct a brief that names any assignments of error in the WCJ’s judgment. Instead, Baker argues the merits of her claim, which was never adjudicated by the WCJ, as she failed to reach that point in the proceedings. Accordingly, the only possible ground for appeal is that Baker’s case was improperly dismissed. Given that Baker is representing herself in this appeal, in an abundance of caution and in the interest of justice, we -will conduct a general review of the WCJ’s judgment dismissing her case.

Louisiana Revised Statutes 23:1310.1(C) states the following:

The director [of the Office of Workers Compensation] shall have the authority to adopt reasonable rules and regulations, including the rules of procedure before the workers’ compensation judges, according to the procedures established by the Administrative Procedure Act. All rules and regulations, properly approved and promulgated under the Administrative Procedure Act, shall be consistent with the Workers’ Compensation Law and shall be binding in the administration of that law.

| <¡Under the authority granted by La. R.S. 23:1310.1, the Louisiana Administrative Code, Title 40, Part I, Chapter 57, § 5705, entitled “Abandonment” was promulgated, the text of which follows:

A. A claim may be dismissed at the judge’s discretion after contradictory hearing properly noticed by the court for lack of prosecution for the following reasons:
4. Where a party fails to appear for a properly noticed conference;
C. Dismissal under this Rule shall be without prejudice. Any order of dismissal shall allow for reinstatement of the action within thirty (30) days for good cause shown.

In the case before us, the record indicates that Baker was given notice of the mandatory pre-trial mediation conference. Baker’s counsel, in his motion to withdraw, acknowledged receiving notice of the conference and relaying that information to his client. These actions by counsel for Baker adhered to Louisiana Administrative Code Title 40, Part I, Chapter 55, Subchapter I, § 5547(A), which states:

A. When an attorney seeks to obtain an ex parte order to withdraw as counsel for a party, he shall include in his application the last known address of the claimant along with a statement that he has given written notice to the party he was previously representing that he is no longer of counsel to him and of the status of the case on the court’s docket. The attorney shall certify to the court that he has given notice to all counsel of record at the same time and in the same manner as notification to the court. A copy of such written notice and certification shall be attached to the application for the ex parte order for withdrawal. An attorney who has been permitted by ex parte order to withdraw shall give notice of same to all parties.

Despite receiving this notice, Baker failed to participate in or attend the pretrial mediation conference. Under Louisiana Administrative Code, Title 40, Part I, Chapter 57, § 5705(A), the WCJ was within his discretion to set the contradictory shearing regarding whether to dismiss Baker’s claim. When Baker failed to attend that contradictory hearing, the WCJ, as is within his discretion, dismissed her claim without prejudice, allowing her to reinstate the claim within thirty days for good cause shown. The record shows that Baker never took any steps to reinstate her case within the thirty days granted by the WCJ. Accordingly, we find no error by the WCJ in dismissing Baker’s claim against Summit.

CONCLUSION:

Baker took this devolutive appeal to the WCJ dismissing her claim against Summit. In brief, Baker did not list any assignments of error, nor did she argue that the WCJ was improper in dismissing her claim. Rather, Baker argued the merits of her claim for entitlement to workers’ compensation benefits. Given that Baker represented herself, we conducted a general review of the WCJ’s judgment dismissing her claim. We found no error in the judgment. Thus, we affirm the WCJ’s judgment and assess all costs of this appeal bo Baker.

AFFIRMED.


author: CARAWAY, J.

text:
    C.R. GLEASON and Martha Gleason, individually and on behalf of their son, Donnie Ray Gleason, Plaintiffs-Appellants, v. LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS d/b/a Northwest Developmental, et al., Defendant-Appellee.
    No. 44,947-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 10, 2010.

      Susan E. Hamm, for Appellant.

      John 0. Hayter, III, Shreveport, for Ap-pellee.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

hln this medical malpractice action arising from the death of a 47-year-old severely mentally challenged man, the trial court granted summary judgment in favor of the defendant developmental care facility due to the lack of expert medical evidence that defendant breached the standard of care. The plaintiffs claim that the defendant was negligent in its supervision, allowing its patient to swallow a foreign object which caused a severe bowel obstruction. Plaintiffs further claim that defendant’s medical treatment for its patient’s bowel obstruction amounted to malpractice. Finding that material fact issues exist from the evidence presented for summary judgment, we reverse and remand for further proceedings.

Facts

The plaintiffs in this malpractice action are C.R. and Martha Gleason, the parents of Donnie Ray Gleason (“Donnie”), a 47-year-old mentally challenged man who resided at the Northwest Louisiana Developmental Center (“Northwest”), an intermediate care facility. Donnie’s medical reports indicate that he had been a resident of Northwest since December of 1974. Donnie was nonverbal and incapable of self-medicating, arranging or monitoring his own medical assistance.

On December 23, 2002, after two earlier unsuccessful attempts, Donnie was transported to Willis Knighton Medical Center (“Willis Knighton”) in Bossier City, Louisiana, to undergo a routine CT scan and EEG after he suffered a seizure while on pass with his parents. Donnie was sedated for the procedures. Upon Donnie’s return to Northwest the same | ¡.afternoon, he was lethargic and placed in the infirmary. A summary of the Northwest Nurses’ Progress Notes from December 25, 2002, report in relevant part:

12:30 a.m. — Donnie began hyperventilating. At this time, the charting nurse reported that she “could not determine last B.M., checked and found high, hard impaction.” A suppository was administered which agitated Donnie.

12:50 a.m. — Skin damp, small amount of brown emesis, lungs clear. Re-positioned. No results from suppository.

1:00 a.m. — Notified Physician’s Assistant. Received order to give enema and call Physician’s Assistant in one hour if no results. May repeat enema.

1:05 a.m. — Enema administered.

1:15 a.m. — Small amount of dark brown emesis; increased respiratory distress. Nurse removed digitally large, hard impaction containing foreign objects. (3 or 4 cord like material approx. 4"-6" long attached to a round object). More palpated higher but unable to reach these. Specimen saved in diaper and placed in lab refrigerator.

1:25 a.m. — Moderate dark brown emesis. Oxygen mask cleaned and re-applied. Increased respiratory distress.

1:30 a.m. — Physician’s Assistant arrived. Ordered 911 to be called and requested ambulance for respiratory distress.

1:40 a.m. — 911 EMS arrived. Moderate amount of dark brown emesis, respira-tions very labored.

2:05 a.m. — 911 EMS removed Donnie to waiting ambulance and transported to Willis Knighton Bossier City.

This documentation shows that Donnie had ingested a foreign object which caused a bowel impaction that precipitated Donnie’s fecal vomiting. Presumably due to his condition, Donnie was unable to expel the vomit and breathed some of the gastric content into his respiratory tract. At Willis |sKnighton, Donnie was placed on a ventilator in the intensive care unit and diagnosed with bowel obstruction, respiratory failure and aspiration pneumonia relating to the vomit aspiration. The medical records show that by January 2, 2003, Donnie was removed from the ventilator. In subsequent days he had “improved significantly” according physician’s notes and was going to be transferred to a step down unit. Unfortunately, however, on January 6, 2003, Donnie once again went into respiratory distress and was placed on the ventilator. Subsequently, Donnie developed further ventilation and lung complications and he was coded. Willis Knighton medical staff were unable to revive him.

The plaintiffs filed a medical malpractice complaint with the Louisiana Patient’s Compensation Fund against Willis Knigh-ton, Dr. Stuart LeBas and Dr. Thomas Rodsuwan and Northwest, Dr. Thomas Rodsuwan and Tommy Robinson, P.A. The medical review panel reached a favorable decision for both defendants on December 12, 2006. Specifically regarding Northwest, the panel concluded:

The evidence does not support the conclusion that the defendants, NORTHWEST LA. DEVELOPMENTAL CENTER, DR. THOMAS ROD-SUWAN and TOMMY ROBINSON, P.A., failed to comply with the appropriate standard of care as charged in the complaint.

14More specifically, the opinion also noted as follows:

When the patient returned from WK-Bossier, he was under close observation in the infirmary. We find no evidence to suggest that the patient ingested a foreign object while at the NWLDC or its infirmary. In the time period immediately prior to the procedures and following, he had appropriate supervision that ensured the patient would not ingest a foreign object. When he developed respiratory distress we agree with all steps taken to evaluate and treat him. We find this was done in an appropriate and timely manner. We find that each defendant met the standard of care in all instances.

Despite the unfavorable medical review panel ruling, on March 12, 2007, plaintiffs instituted a malpractice suit in district court against both Willis Knighton and Northwest alleging in part Northwest’s failure to properly supervise Donnie’s medical treatment, to monitor him, to recognize the seriousness of the patient’s condition and inadequate monitoring of the patient’s respiratory status.

On July 22, 2008, Northwest filed a motion for summary judgment on the grounds that plaintiffs had no expert opinion to support their claim that the defendants breached the applicable standard of care. Attached to Northwest’s motion was a copy of the opinion of the medical review panel and copies of the unanswered interrogatories propounded by Northwest to plaintiffs requesting the identity of plaintiffs’ medical expert.

The summary judgment hearing was set for October 20, 2008, continued from an original August date. In a telephone conference between counsel and the court on October 16, 2008, plaintiffs’ counsel requested a second continuance of the hearing which was rejected by the court. The parties agreed that the court would rule without hearing the arguments of counsel. The court ordered that plaintiffs’ opposition and evidence be filed |son October 20, 2008, and allowed defendants until October 24, 2008, to respond. On October 20, 2008, plaintiffs submitted an opposition to the summary judgment and a motion to substitute the executed affidavit because the expert affidavit submitted in opposition to the summary judgment was not signed. Included as exhibits to the opposition was the unsigned affidavit of plaintiffs’ expert, Joanne Gongora, RN, MSN (“Gongora”), a nurse of 32 years. In her affidavit Gongo-ra stated that she had rendered care to clients with health concerns similar to Donnie’s and had experience in treating patients with signs of respiratory distress and the safe administration of enemas. Gongora reviewed the medical records of Northwest and Willis Knighton, interrogatories and documents revealed through discovery and the position paper of Northwest in rendering her opinion. Based upon her review of these items as well as her training and experience, Gongora concluded that Northwest breached the standard of care as follows:

[T]he standard of care was breached by nursing personnel at NWLDC/Rose-wood Infirmary and resulted in Donnie aspirating stomach contents containing fecal matter. It is further her opinion that the standard of care was breached by nursing personnel at Willis Knighton Bossier Health Center that resulted in Donnie experiencing respiratory compromise.

More specifically, Gongora concluded that Northwest breached the standard of care as follows:

• Failure to maintain a safe environment and properly supervise Donnie Gleason and prevent him from swallowing a foreign object(s);
• Failure to properly assess and intervene appropriately for a client with an abdominal obstruction such as Donnie Gleason;
Failure to recognize that the client had aspirated fecal matter;
• Failure to remove restraints in a timely manner while giving an enema even after noting dark brown emesis;
|f* Failure to recognize that Donnie Gleason was in respiratory distress; and
• Failure to notify appropriate personnel regarding obvious deteriorating in the health status of Donnie Gleason.

The court orally ruled on the motion on October 27, 2008, and granted summary judgment in favor of Northwest on the grounds that the unsigned affidavit was insufficient to establish a breach of the duty of care. A judgment memorializing the ruling was signed by the court on November 12, 2008.

On November 21, 2008, plaintiffs filed a motion for new trial seeking reconsideration of the summary judgment ruling on the grounds of the properly executed expert affidavit which plaintiffs claimed to have received on October 27, 2008. Plaintiffs argued that proof of causation was unnecessary because causation was not made an issue by Northwest or the medical review panel. Nevertheless, plaintiffs argued that the medical records established that Northwest “caused Donnie Gleason to aspirate fecal matter which, along with treatment necessitated by the aspiration, resulted in his death.” Plaintiffs further argued that the breaches in the standard of care by both defendants “in failing to maintain airway patency and adequate oxygen saturation levels resulted in Donnie’s re-intubation that resulted in pneumothoraces and ultimate death.”

Northwest opposed the motion for new trial on the grounds that plaintiffs’ submission of the signed affidavit was untimely. Further, Northwest argued that it was the plaintiffs’ burden to prove causation in a medical malpractice action. The new trial was called to hearing on January 12, 2009. The court heard the arguments of counsel and denied plaintiffs’ 17new trial motion on February 19, 2009, after concluding that the expert affidavit did not establish a causal link between Northwest’s nursing care and the resulting injury. This appeal by Northwest of only the February 19, 2009 denial of new trial judgment ensued.

On appeal, the plaintiffs argue that the trial court erred in denying a new trial on the grounds that plaintiffs would not be able to bear their burden of proof regarding causation. Specifically, plaintiffs contend that the court needs no additional information apart from the medical records, Gongora’s affidavit and the medical review panel finding to determine causation in this matter. Further, plaintiffs argue that causation was not made an issue either by the medical review panel or defendants’ summary judgment motion.

Discussion

To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880; Tillman v. Eldridge, 44,460 (La.App.2d Cir.7/15/09), 17 So.3d 69. Although causation is not explicitly included among those elements for which proof must be made through expert medical testimony, typically expert testimony is required to prove causation when the resolution of that issue is not a matter of common knowledge. Id.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary-judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, supra.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

The burden of producing evidence at the hearing on the motion for summary judgment is on the mover (normally the defendant), who can |9ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. Once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Samaha v. Rau, supra.

Initially, regarding the unsigned affidavit of plaintiffs’ expert and the motion for new trial, we will consider the affidavit, now signed, for our de novo ruling under these circumstances. In particular, we note that the trial court did not reject altogether consideration of the affidavit at the motion for new trial even though the plaintiffs were clearly delinquent in obtaining the signature of Nurse Gongora for the presentation of their opposition.

Considering plaintiffs’ claims in a broad sense, we find the initial act of the alleged negligence concerns Northwest’s lack of watchful care over this severely disabled individual which allowed him to ingest a “round object” containing gauze. Such a negligence claim, like the entrustment of a minor or incompetent person into the care of a guardian, involves the alleged breach of a duty to protect another from a danger which the party with the disability cannot appreciate. Temporary custodians of children, such as school personnel and day care workers, are charged with the highest degree of care towards the children left in their custody, but are not insurers | ulof the children’s safety; supervisors must follow a standard of care commensurate with the age of the children under the attendant circumstances. Bell v. USAA Cas. Ins. Co., 80,172 (La.App.2d Cir.1/21/98), 707 So.2d 102, writs denied, 98-0712, 98-0766 (La.5/8/98), 718 So.2d 433, 434; Glankler v. Rapides Parish School Bd., 610 So.2d 1020 (La.App. 3d Cir.1992), writ denied, 614 So.2d 78 (La.1993); Drueding v. St. Paul Fire & Marine Ins. Co., 482 So.2d 83 (La.App. 4th Cir.1986). Intermediate care facilities which care for the mentally challenged are held to the standard of care applicable to hospitals. Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974); Clark v. G.B. Cooley Service, 35,675 (La.App.2d Cir.4/5/02, 813 So.2d 1273), writ denied, 813 So.2d 1273. A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care to a particular patient depends upon the circumstances and facts of the case. Id. Therefore, from these principles, this medical malpractice action involves in part a claim of ordinary negligence regarding supervisory care where an understanding of the duty or standard of care owed to Donnie does not require medical expertise.

|nThe facts presented in Northwest’s defense of this matter through its motion for summary judgment point out and suggest that plaintiffs cannot prove how or when Donnie ingested the gauze. Northwest also shows that two days before Donnie’s respiratory trauma and the discovery of his bowel impaction, Donnie was in the custody of Willis Knighton on December 23 for the EEG and CT scan procedures he received at the hospital. Nevertheless, from Nurse Gongora’s review of the Willis Knighton and Northwest records for December 23 and for Northwest’s care thereafter, she concluded that Northwest failed to properly supervise Donnie so as to prevent him from swallowing the foreign object.

Our review of the record indicates to us that a material fact issue remains regarding Northwest’s duty to protect Donnie from the danger that could result from his access to an object such as a roll of gauze which the circumstances indicate he may have swallowed. The facts presented in connection with the motion for summary judgment demonstrate that Donnie was primarily in Northwest’s custody in the days leading up to the discovery of the gauze-related impaction on December 25. This circumstantially indicates a possible breach of Northwest’s standard of care for its supervision of its mentally challenged patient. The extent of the custody which Willis Knighton maintained over Donnie on December 23 may be urged by Northwest and weighed in the trial of this matter. However, this summary judgment setting is not appropriate for the weighing of the competing inferences regarding Donnie’s custody by both caregivers preceding the discovery of the impaction on December 25.

| ^Regarding the issue of causation, the bowel impaction clearly caused Donnie’s distress on December 25 resulting in his hospitalization. The plaintiffs’ survival action seeks damages for the pain and suffering Donnie experienced prior to his death. While the causation relating to Donnie’s death is not as clear and will require further medical testimony presented by the plaintiffs, we find that the plaintiffs’ claims overall for the survival and wrongful death actions should proceed to trial. Additionally, the other claim of plaintiffs concerning Northwest’s affirmative acts of medical treatment which it rendered on December 25 may be the subject of a specific motion for partial summary judgment. However, given the con-nexity of plaintiffs’ claims as a whole and the lack of a specific ruling for a partial summary judgment by the trial court, we reverse the trial court’s summary judgment ruling in its entirety.

Conclusion

Finding that material fact issues remain, we reverse the trial court’s grant of summary judgment and remand for further proceedings. Costs of this appeal are assessed to appellee.

REVERSED AND REMANDED.

      . A lab report completed on January 2, 2003, described the foreign object as "apparent light tan gauze material.”

      . Willis-Knighton is not involved in this appeal.

      . Relating to Willis-Knighton the written reasons for conclusion read as follows:
      We find that the foreign objects ingested by the patient on or prior to December 25 contributed to his admission to the hospital. However, we find that the foreign objects did not contribute substantially to the events which eventually led to his demise on January 6.
      We find the critical care treatment provided by the defendants was timely and appropriate. Specifically, the patient was intubated and ventilated in accordance with the standard of care. The pneumothoraces were discovered and treated in a timely and appropriate fashion.
      Concerning efforts for resuscitation, we find that the defendants acted expeditiously and in an appropriate manner.

      . When the motion for appeal refers to a specific judgment denying a motion for new trial yet the appellant exhibits a clear intention (from her brief, argument and evidence as a whole) to appeal instead the judgment on the merits, then the appeal should be considered. Rose v. Rose, 44,467 (La.App.2d Cir.6/24/09), 2009 WL 1782811.

      . The plaintiffs' claims against Northwest additionally involve the affirmative medical treatment provided to Donnie in the four hours on December 25, 2002, immediately before his respiratory distress which caused his EMS transport to Willis Knighton.


author: LOLLEY, J.

text:
    Jerome GOLDSBY, Plaintiff-Appellee, v. PILGRIM’S PRIDE CORPORATION, Defendant-Appellant.
    No. 45,046-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 10, 2010.

      Dona K. Renegar, for Appellant.
    Carlton L. Parhms, Monroe, for Appel-lee.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

[¡In this worker’s compensation claim, defendant, Pilgrim’s Pride Corporation (“Pilgrim’s Pride”), appeals the decision of the Office of Workers Compensation, First District East, Parish of Ouachita, State of Louisiana, which found in favor of claimant, Jerome Goldsby. For the following reasons, we affirm in part and reverse in part.

FACTS

Jerome Goldsby, a former line employee of Pilgrim’s Pride, filed a disputed claim for compensation on February 23, 2007, alleging injury to his hands as a result of an accident on April 4, 2005. Goldsby amended his claim in February 2008 seeking cervical fusion surgery to treat his neck pain. Pilgrim’s Pride does not dispute the claimant’s bilateral carpal tunnel syndrome and paid indemnity and medical benefits accordingly. However, Pilgrim’s Pride does take issue with Goldsby’s claim that his neck condition is work-related. Goldsby contends that he started having neck problems due to an injury on or about April 4, 2005, when he felt sharp pain in his neck as a result of putting a marination tank together. Ultimately, Goldsby’s treating physician recommended cervical fusion surgery to relieve his pain.

The matter went to trial, and the Workers’ Compensation Judge (“WCJ”) found Goldsby was entitled to the cervical surgery, as well as temporary benefits from February 9, 2006, through the present, until released to return to work following surgery. In addition, the WCJ awarded attorney’s fees and penalties against Pilgrim’s Pride. Pilgrim’s Pride now appeals.

RLAW AND DISCUSSION

Factual findings in a worker’s compensation case are subject to the manifest error or clearly wrong standard of appellate review. Player v. International Paper Company, 39,254 (La.App.2d Cir.01/28/05), 892 So.2d 781. 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. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). A plaintiff in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Graham v. Nissan, 39,656 (La.App.2d Cir.06/29/05), 907 So.2d 213.

The worker’s testimony alone may be sufficient to satisfy this burden, provided that two elements are satisfied: first, there must be no other evidence which discredits or casts serious doubt on the worker’s version of the incident; and second, the worker’s testimony must be corroborated by the testimony of fellow workers, his spouse and other close family members, friends, or the introduction of medical evidence. Kidd v. Brown Radiator & Frame, 38,729 (La.App.2d Cir.12/22/04), 890 So.2d 796, writ denied, 2005-0172 (La.03/24/05), 896 So.2d 1042.

Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Lewis v. Chateau D’Arbonne Nurse Care Center, 38,394 (La.App. 2d Cir.04/07/04), 870 So.2d 515. When there is a 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 its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Louisiana R.S. 23:1301 provides:

No proceeding under this Chapter for compensation shall be maintained unless notice of the injury has been given to the employer within thirty days after the date of the injury or death. This notice may be given or made by any person claiming to be entitled to compensation or by anyone on his behalf.

Louisiana R.S. 23:1305 provides:

A notice given under this Subpart shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, nature, or cause of the injury, or otherwise, unless it is shown that the employer was in fact misled to his detriment thereby. Lack of notice or delay in giving notice shall not be a bar to proceedings under this Chapter if it is shown that the employer, or his agent or representative, had knowledge of the accident or that the employer has not been prejudiced by such delay or lack of notice.

The workers’ compensation law recognizes that the significance of an injury may not be immediately apparent and provides for a limited extension of the prescriptive period when the injury does not “develop immediately after the accident.” La. R.S. 23:1209(A).

Work-Related Accident

Pilgrim’s Pride argues that the WCJ erroneously found in favor of Golds-by and specifically contends that none of Goldsby’s treating physicians’ records nor the Pilgrim’s Pride plant records document support of any accident or injury that would give rise to Goldsby’s neck pain. Pilgrim’s Pride asserts that Goldsby’s neck pain is related to a degenerative disc disease, which is specifically excluded from the classification of an ^occupational disease granted coverage under the worker’s compensation statutes. See La. R.S. 23:1031.1(B)

Here, the WCJ not only found that Goldsby’s testimony was persuasive but more importantly that it was credible. Goldsby testified that he sustained an injury to his neck while he was putting together a marination tank. In an affidavit, Kin-yada Gipson, a former coworker, stated that she recalled Goldsby informing her that he injured his hands and neck while working at Pilgrim’s Pride on or about April 4, 2005. Goldsby’s wife also recollected that Goldsby hurt his neck at work and explained it happened while working on the marination tank. Since Goldsby’s claim was corroborated by Gipson and his wife, we cannot find that the WCJ was manifestly erroneous in her determination, by a preponderance of the evidence, that a work-related accident occurred giving rise to his neck problems.

Furthermore, issues with Goldsby’s neck and shoulders were documented as early as 2005. After being approved by Pilgrim’s Pride, Goldsby started going to physical therapy to help with his carpal tunnel syndrome; however, the medical records document therapy for his neck and shoulders as well. Goldsby saw several physicians and completed several tests for his continuing neck pain including to rule out that an “accident” was the cause of his neck pain. Three years later one of Golds-by’s physicians, Dr. Donald Smith, opined in his deposition that even if Goldsby had a cervical degenerative disease, it “may be relatively or completely asymptomatic until a specific episode of injury may aggravate that and | .¡subsequently require some therapy.” According to Dr. Smith’s findings, Goldsby’s medical records “were not inconsistent with that scenario based on the history.” It is well-settled an employer is liable for workers’ compensation when the initial injury is aggravated by medical complications or a subsequent injury, if the complications are caused by the work-related injury. Allor v. Belden Corp., 393 So.2d 1233 (La.1981); Brooks v. Madison Parish Service Dist. Hosp., 41,-957 (La.App.2d Cir.03/07/07), 954 So.2d 207, writ denied, 2007-0720 (La.05/18/07), 957 So.2d 155. At the very least, Dr. Smith’s testimony supports the claim that Goldsby’s issues could manifest itself after a work-related accident.

While Pilgrim’s Pride makes much of the fact that Goldsby’s accident with the “marination tanks” was not mentioned in any medical records, the WCJ found Goldsby’s testimony to be more persuasive. Furthermore, the Louisiana Supreme Court has found that a delay in reporting an injury is not fatal to a claim for compensation; rather, under appropriate circumstances it may be more corroborative of a claimant’s initial unawareness of the seriousness of the injury resulting from the first incident than it is any cause to doubt the claimant’s credibility about its occurrence. See West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La.1979). Goldsby may not have realized the gravity of his condition that resulted in the neck and shoulder pain since the medical records indicate his acute pain originally stemmed from his hands and wrists.

In addition, Pilgrim’s Pride asserts that Goldsby’s cervical disc disease was a preexisting condition; however, we did not find that there | fiwas any proof offered by defendants establishing that he was actively suffering from, or being treated for, any neck or cervical pain prior to receiving treatment for his wrists. So considering, after a thorough review of the record, we cannot find that the WCJ was clearly wrong in her findings.

Penalties and Attorney’s Fees

Pilgrim’s Pride appeals the WCJ’s grant of penalties and attorney’s fees and argue that they were not warranted. We agree.

Failure to make timely payments subjects an employer to penalties and attorney’s fees unless the claim is reasonably controverted. La. R.S. 23:1201. For a claim to be reasonably controverted, an employer must have some valid reason or evidence upon which to base its denial of benefits. Brown v. Texas-LA Cartage, Inc., 1998-1063 (La.12/01/98), 721 So.2d 885. The employer must have engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the information presented by the claimant. Id. The determination that penalties and attorney fees are warranted is determined based on the facts known by the employer at the time of its refusal. Spence v. Industrial N.D.T., 31,744 (La.App.2d Cir.03/31/99), 731 So.2d 473. The assessment of penalties and attorney fees is a finding of fact which should not be disturbed on appeal absent manifest error. Id.

Here, the record supports that the claim was reasonably controverted and that Pilgrim’s Pride rightfully questioned whether Goldsby’s neck pain was a result from an on-the-job accident. Since Goldsby did not amend his |7claim until February 2008 to indicate that he requested cervical fusion, Pilgrim’s Pride was not “technically” aware of Goldsby’s ongoing neck pain. It is also understandable that Pilgrim’s Pride felt the need to investigate further since the medical documentation does not clearly reflect whether Goldsby fully disclosed the accident to his various physicians. We find this was a non-frivolous legal dispute, and, as such, we reverse the WCJ award of attorney’s fees and penalties.

CONCLUSION

For the foregoing reasons, we reverse the award of attorney’s fees and penalties against Pilgrim’s Pride. In all other respects, we affirm the WCJ’s judgment in favor of Jerome Goldsby. Costs of this appeal are to be borne by Pilgrim’s Pride.

AFFIRMED IN PART, REVERSED IN PART, RENDERED.