author: STEWART, J.

text:
    Christopher A. RELEFORD, Plaintiff-Appellant v. BASTROP MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD, Defendants-Appellees.
    No. 44,915-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.

      Carl D. Walker, for Appellant.
    The Lawrence Law Firm by Leo Douglas Lawrence, for Appellees.
    Before STEWART, PEATROSS and DREW, JJ.
   STEWART, J.

liThe plaintiff, Christopher A. Releford, appealed a decision of the Bastrop Municipal Fire and Police Civil Service Board (“the Board”) denying his application to test for the position of chief of police. The district court affirmed the Board’s decision and granted its motion to dissolve a preliminary injunction previously entered in Releford’s favor to prevent the Board from certifying the names of persons eligible for the police chief position. Releford now appeals the district court’s judgment. Finding that the Board’s decision was made in good faith for cause and that the district court did not err in dissolving the preliminary injunction, we affirm.

FACTS

On February 22, 2008, Releford, a sergeant with the City of Bastrop Police Department, filed an application to take the competitive examination for the position of chief of police. The Board rejected Rele-ford’s application on the grounds that he did not have the time required in a position with supervisory responsibilities. Releford requested and was granted a hearing before the Board to challenge the rejection of his application.

At the hearing on April 21, 2008, Rele-ford sought to prove that he had the requisite supervisory experience to take the examination. Though he had been a sergeant for only 18 months, he argued that his experience as a field training officer in helping train probational officers and as a “set up” sergeant on days when a sergeant was absent from work should be considered in calculating his supervisory experience. Releford submitted | .¿the entirety of his pay records, a summary of the hours he claimed to constitute his supervisory experience from 1996 through 2006, and a history of his field training officer experience in support of his argument.

However, the acting chief of police, Jesse Walker, stated before the Board that Releford had no administrative experience at all and that while a patrol officer he had no supervisory experience. According to Walker, the first rank with supervisory experience is that of sergeant. Moreover, Walker explained that even when Rele-ford, as a patrol officer, was temporarily “set up” to sergeant when a sergeant was off, he would not have been acting as a supervisor on the shift. The supervisor would have been the captain, and no patrol officer is “set up” to captain.

After considering the matter in executive session, the Board voted to let its rejection of Releford’s application stand.

In accordance with La. R.S. 33:2501, Releford filed an appeal with the district court and requested injunctive relief to prevent the Board from administering the civil service test or from certifying any names of individuals eligible to fill the chief of police position. The district court granted a temporary restraining order enjoining the Board from certifying names of eligible persons for chief of police, and a preliminary injunction was subsequently issued with the consent of the Board’s president. However, the Board later filed a motion to dissolve the preliminary injunction on the grounds that Releford intentionally misrepresented information on his application and that he lacked the required supervisory and administrative work experience to qualify for the police chief position.

|sThe district court hearing occurred on March 2, 2009. The court heard Rele-ford’s civil service appeal first and then took evidence and heard arguments on the Board’s motion to dissolve the preliminary injunction. In a judgment rendered March 5, 2009, the district court upheld the Board’s decision rejecting Releford’s application. It found that the Board acted in good faith for cause and that a review of the entire transcript showed that the Board had a rational basis for its decision. Turning next to the Board’s motion to dissolve the preliminary injunction, the district court found it had been improvidently issued and ordered it dissolved. The district court concluded that injunctive relief was not appropriate considering that Releford lacked the requisite credentials for the police chief position.

DISCUSSION

Releford raises three assignments of error on appeal. First, he asserts that the trial court erred in allowing the Board to use the motion to dissolve the preliminary injunction to supplement the record of the civil service appeal. Second, he asserts that the district court used facts determined from the hearing on the motion to dissolve as a basis for its judgment affirming the Board’s decision to reject his application. Third, he asserts that the district court erred in affirming the decision of the Board rejecting his application to take the police chief exam. We will begin with Releford’s third assignment of error and review the civil service appeal decision under the applicable standards.

An employee under classified service may appeal any decision of the civil service board that is prejudicial to him. La. R.S. 33:2501(E)(1). The |4role of the reviewing court in civil service appeals is confined to a determination of whether the decision of the civil service board was made in good faith for cause. La. R.S. 33:2501(E)(3). The reviewing court looks only at the record and the evidence presented to the civil service board to determine whether its decision was made in good faith for cause. Walsworth v. Municipal Fire & Police Civ. Service Bd. of City of Shreveport, 567 So.2d 712 (La.App. 2d Cir.1990).

A decision made in good faith and for statutory cause cannot be disturbed on judicial review. Lee v. City of West Monroe, 39,611 (La.App.2d Cir.5/11/05), 902 So.2d 1202. Good faith does not exist if the decision of the civil service board was made arbitrarily or capriciously, or as a result of prejudice or political expediency. Id. Where there is no rational basis for the action taken, then the board’s action was arbitrary or capricious. Id.

Releford refers to the following statement by the Board’s president, Danny Barmore, as support for his argument that the Board’s denial of his application to test was arbitrary or capricious:

We’re letting that stand as it is. We’re letting it stand. We’re still rejecting it because we did not have enough time and everything to bring it up, and you want to bring it up in the earliest way that you can. Is that the way I understood it? All in favor, “Aye?”

All responded “Aye.”

The meaning of this statement about not having enough time to bring it up and wanting it brought up in the earliest way is not entirely clear. The record shows that Releford’s appeal was brought up to the Board. He was allowed to call a witness and present his evidence. The Board considered his appeal and voted to let its prior decision stand. We do not find that IfiBarmore’s unexplained statement alone shows the Board’s decision to let stand its prior rejection of Releford’s application to be arbitrary or capricious. Instead, the record of the civil service appeal reviewed as a whole shows that there was a rational basis for the Board’s decision.

The record of the civil service appeal hearing shows that the Board had previously considered and denied Releford’s application on the grounds that he did not meet the requirements for supervisory experience. Releford was promoted from patrol officer to sergeant on June 1, 2006. Thus, it appears that he had served 18 months in a supervisory position when he applied to take the exam for chief of police. Releford argued that he had over two years of supervisory experience as a patrol officer based on shifts when he had been “set up” to the position of sergeant and when he acted as a field training officer for new hires. In support of this argument, he introduced the entirety of his pay records, a summary of the hours he claimed to constitute his supervisory experience from 1996 through 2006, and a history of his field training officer experience.

During the civil sendee appeal, the Board also heard from the acting chief of police, Mr. Walker, who stated that Rele-ford had no administrative experience at all and that he had no supervisory experience as a patrol officer. Walker explained that the first rank with supervisory experience is that of sergeant. He also told the Board that even when Releford, as a patrol officer, was temporarily “set up” to sergeant when a sergeant was off, he would not have been acting as a supervisor on the shift. The supervisor would have been the captain, and no patrol officer is “set up” to captain.

IfiThus, the Board had to determine whether Releford’s “set up” time as a sergeant and his field officer training experience satisfied the qualifications for the civil service exam. Considering Walker’s statements about Releford’s experience, the Board could have reasonably determined that Releford’s temporary experiences as a “set up” sergeant and field training officer did not satisfy the requirement for supervisory experience. Most importantly, the qualifications set forth in the notices for the competitive civil service exam show that the Board’s decision to reject Rele-ford’s application was correct.

The posting notice for the police chief exam states the qualifications for candidates according to whether they have a bachelor’s degree in criminal justice or other related areas of study, an associate’s degree in criminal justice or a bachelor’s degree in an unrelated area, or a high school diploma or certificate of equivalency. Releford’s application shows that he does not have a college degree. According to the qualifications on the notice, candidates who lack a college degree must have “at least ten (10) years of progressively responsible experience in full time law enforcement positions, at least four (4) years of which must have been in positions which include administrative or supervisory responsibilities.” The qualifications clearly require experience in full time law enforcement positions. Thus, Releford’s temporary or “set up” time as sergeant and hours of field officer training do not constitute experience in full time law enforcement positions with administrative or supervisory responsibilities. Simply stated, Releford did not meet the qualifications for the police chief exam. There is no 17manifest error in the Board’s rejection of Releford’s application on the grounds that he lacked the requisite supervisory experience.

Releford’s remaining assignments of error also lack merit. The record does not support the argument that the district court used facts determined on the motion to dissolve the preliminary injunction as a basis for its determination of the civil service appeal. The district court separated the two matters by first hearing arguments on the civil service appeal and then taking evidence and hearing arguments on the motion to dissolve. The district court’s judgment also addresses the civil service appeal and the motion to dissolve as separate matters. The district court’s judgment shows that the finding that the Board’s decision was made in good faith for cause was based on the record of the civil service appeal and not on evidence presented in the motion to dissolve.

Lastly, we find no error in the dissolution of the preliminary injunction and no merit to Releford’s argument that it was error to conduct an evidentiary hearing on the motion to dissolve. Any interested party may move for dissolution of a preliminary injunction as provided by La. C.C.P. art. 3607. A judgment dissolving a preliminary injunction will not be overturned on appeal unless the record shows a clear abuse of the district court’s great discretion. Lake Bistineau Preservation Society, Inc. v. Seales, 40,583 (La.App.2d Cir.2/10/06), 922 So.2d 768, writ denied, 2006-0620 (La.5/26/06), 930 So.2d 27. Because the record shows that Rele-ford was clearly unqualified to take the police chief exam, there is no basis for the | ^preliminary injunction to remain in effect, and the district court did not abuse its discretion in ordering it dissolved.

CONCLUSION

For the reasons stated, the judgment of the district court is affirmed. Costs of this appeal are assessed against the appellant, Christopher A. Releford.

AFFIRMED.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Cheryl Griffin ROARK, et al, Plaintiffs-Appeilants v. LIBERTY HEALTHCARE SYSTEMS, LLC, et al, Defendants-Appellees.
    No. 44,913-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.
    Rehearing Denied Jan. 21, 2010.

      Anthony J. Bruscato, for Appellants.
    Hudson, Potts & Bernstein, L.L.P., by Gordon L. James, A. Jill Futch, for Appel-lees.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

11 After plaintiffs instituted a medical malpractice action in district court, the Louisiana Patient’s Compensation Fund (“PCF”) notified plaintiffs that defendant hospital was not a qualified health care provider. The defendant filed an exception of prematurity contending otherwise. After two hearings, the trial court granted the exception of prematurity on the grounds that the defendant was a qualified health care provider. The plaintiffs appeal. Finding no error in the judgment, we affirm.

Facts

Justin Dean Roark, Sr. was admitted to an Alexandria, Louisiana hospital with complaints of severe auditory hallucinations, paranoia and suicidal ideations. Upon the stabilization of Roark’s condition, he was transferred to the Lillian Louise Behavioral Hospital (“Lillian Louise”) in Farmerville, Louisiana on August 18, 2007. Lillian Louise is owned and operated by Liberty Healthcare Systems, LLC (hereinafter “Liberty Healthcare”). Roark was admitted with complaints of leg pain and sore throat. On August 25, 2007, Roark complained to his sister that his throat was swelling. After a Lillian Louise employee checked his oxygen levels, Roark fell asleep. Roark died later that day due to air passage obstruction caused by acute epiglottitis.

On August 20, 2008, Roark’s wife Cheryl, individually, and on behalf of the couple’s two minor children, filed a malpractice complaint under the Louisiana Medical Malpractice Act (“MMA”) with the Louisiana Division of Administration and a malpractice suit in district court against Liberty |2Healthcare and eight employees of Liberty Healthcare who were assigned the care of Roark on the day he died. On August 27, 2008, the Louisiana PCF sent correspondence to plaintiffs’ attorney acknowledging receipt of plaintiffs’ claim and advising as follows:

Please be advised that Liberty Healthcare System, LLC is not qualified as it pertains to this complaint.

In response to the suit, Liberty Healthcare filed an exception of prematurity, urging its status as a qualified health care provider which required plaintiffs’ claims to first be presented to a medical review panel. Liberty Healthcare filed a memorandum with attached exhibits in support of the claim that Liberty Healthcare and its employees were qualified health care providers. The exhibits included a copy of a document from the Louisiana Secretary of State, Commercial Division Corporations Database, which showed that Liberty Healthcare Systems, LLC formerly operated under the name Lillian Louise Behavioral Health Hospital. Liberty Healthcare also attached an October 21, 2008 copy of a “Certificate of Enrollment” from the PCF which purportedly showed that Lillian Louise Behavioral Health Hospital, d/b/a Liberty Healthcare Systems, was a qualified health care provider for the period January 7, 2007-January 7, 2008 (covering the date of the alleged tortious act). Liberty Healthcare also submitted an October 9, 2008 copy of another “Certificate of Enrollment” for Liberty Healthcare Systems, LLC covering the period of January 31, 2008-January 7, 2009.

An initial hearing on the exception of prematurity occurred on October 23, 2008. At the hearing, Liberty Healthcare’s counsel conceded [sthat the PCF had issued a letter to plaintiffs denying Liberty Healthcare’s qualified health care provider status. Counsel explained that the letter was in error because the PCF records failed to recognize the name change from Lillian Louise to Liberty Healthcare that occurred in December 2006 or January 2007. Counsel argued that the PCF ultimately issued two separate certificates of enrollment in both the current and former name for Liberty Healthcare, which were prima facie evidence of Liberty Healthcare’s qualified health care provider status.

Plaintiffs argued that further discovery was needed and requested a continuance of the matter. Counsel also objected to the documents submitted by Liberty Healthcare in support of the exception on the grounds of lack of authentication. Ultimately the parties agreed to continue the matter until December 18, 2008, and the trial court submitted the entire record into evidence without objection.

On December 16, 2008, Liberty Healthcare submitted a second supplemental memorandum in support of the exception of prematurity. Attached were copies of Liberty Healthcare’s answers to plaintiffs’ first set of interrogatories on December 10, 2008. Liberty Healthcare argued that the interrogatories established that the subject facility was initially known as Lillian Louise Behavioral Health Hospital, LLC which was founded in 2003. After the buyout of a partner, the name of the facility was changed to the current name of Liberty Healthcare Systems, LLC. Attached to the answers to the interrogatories were another copy of the Certificate of Enrollment for Liberty Healthcare from January 31, 2008-January 7, 2009, |4and a claims-made insurance policy issued by Evanston Insurance Company to Liberty Healthcare, effective January 7, 2008, through January 7, 2009, which Liberty argued established its qualified health care provider status as well as insurance coverage.

At the December 18, 2008 hearing, counsel for Liberty Healthcare submitted the above-noted memoranda and attachments into evidence without objection by plaintiffs. Counsel for defendants argued that the certificates of enrollment were piima facie evidence that Liberty Healthcare was a qualified health care provider and that the contrary PCF letter was submitted in error. Counsel for plaintiffs submitted three letters requesting discovery from defendants after the previous hearing and argued that defendants had failed to respond to discovery until December 12, 2008, when the above-noted answers to interrogatories were hand-delivered to defendants. Counsel also argued that the documentation submitted by defendants to support the exception was inadequate proof. After hearing the arguments of counsel, the trial court took the matter under advisement.

On January 21, 2009, the trial court rendered judgment granting Liberty Healthcare’s exception of prematurity without prejudice on the ground that Liberty Healthcare had shown by prima fade evidence through the submitted certificates of enrollment that it was a qualified health care provider under the MMA. This appeal followed.

Discussion

The purpose of the MMA is to limit the liability of health care providers who qualify by maintaining specified malpractice insurance and | ñby paying a surcharge to the PCF. A qualified health care provider is liable for malpractice only to the extent provided in the MMA, namely a qualified health care provider has no liability for any amount in excess of $100,000 plus interest. La. R.S. 40:1299.42(B)(2); La. R.S. 40:1299.45(A); Sewell v. Doctors Hospital, 600 So.2d 577 (La.1992); Roberson v. Arcadia Healthcare Ctr., Inc. 37,761 (La.App.2d Cir.7/9/03), 850 So.2d 1059.

To obtain the benefit of limitation of liability, a health care provider must become qualified by fulfilling the requirements of La. R.S. 40:1299.42(A), which provides as follows:

A. To be qualified under the provisions of this Part, a health care provider shall:
(1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section.
(2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1299.44.
(3) For self-insured health care providers, initial qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Initial qualification shall be effective for all other health care providers at the time the malpractice insurer accepts payment of the surcharge.

The requirement of proof of financial responsibility is further explained in La. R.S. 40:1299.42(E)(1) as follows:

E. (1) Financial responsibility of a health care provider under this Section may be established only by filing with the board proof that the health care provider is insured by a policy of malpractice liability insurance in the amount of at least one hundred thousand dollars per claim with qualification under this Section taking effect and following the same form as the policy of malpractice liability insurance of the health care provider, or in the event the health care provider is self-insured, proof of financial responsibility by depositing with the board one hundred twenty-five thousand dollars in money or represented by irrevocable letters of credit, federally insured certificates of deposit, bonds, securities, cash values of insurance, or any other security approved by the board. In the event any portion of said amount is seized pursuant to the | ¿judicial process, the self-insured health care provider shall have five days to deposit with the board the amounts so seized. The health care provider’s failure to timely post said amounts with the board shall terminate his enrollment in the Patient’s Compensation Fund.

These same requirements are reiterated in LAC 37:111.501, et seq., which governs the qualifications, conditions, and procedures required for PCF enrollment. The basic qualifications for enrollment are set forth in LAC 37:111.503, which requires a health care provider as defined by the MMA to demonstrate and maintain financial responsibility, to make an application for enrollment, and to pay the applicable surcharges. Of particular relevance is LAG 37:111.515 which provides as follows:

A. Upon receipt and approval of a completed application (including evidence of financial responsibility pursuant to § 505, § 507 or § 509) and payment of the applicable surcharge by or on behalf of the applicant health care provider, the executive director shall issue and deliver to the health care provider a certificate of enrollment with the fund, identifying the qualified health care provider and specifying the effective date and term of such enrollment and the scope of the fund’s coverage for that health care provider.
B. Duplicate or additional certificates of enrollment shall be made available by the executive director to and upon the request of an enrolled health care provider or his or its attorney, or professional liability insurance underwriter when such certification is required to evidence enrollment with the fund in connection with an actual or proposed malpractice claim against the health care provider.

These provisions demonstrate that a health care provider becomes enrolled in the PCF, and thus qualified, upon approval of an application, demonstration of financial responsibility to the satisfaction of the PCF, and payment of the applicable surcharge to the PCF. Upon satisfaction of these three basic requirements, a certificate of enrollment is issued, and this certificate establishes the health care provider to be a qualified health care provider under the MMA. Roberson, supra.

17The MMA does not provide coverage to health care providers who fail to qualify as health care providers under its provisions prior to commission of the tor-tious conduct. Abate v. Healthcare Int’l Inc., 560 So.2d 812 (La.1990). The courts have interpreted Abate, supra, to require that in order to be covered by the MMA, a physician who had a “claims made” policy must be qualified under the act at the time of the alleged tortious conduct as well as when the claim is made. Clark v. Ransom, 595 So.2d 710 (La.App. 5th Cir.1992), writ denied, 597 So.2d 1028 (La.1992); Williams v. Golden, 611 So.2d 718 (La.App. 4th Cir.1992).

The dilatory exception of prematurity provided in La. C.C.P. art. 926 questions whether the cause of action has matured to the point where it is ripe for judicial determination. Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-0451 (La.12/01/04), 888 So.2d 782. Under the MMA, a medical malpractice claim against a private qualified health care provider is subject to dismissal on a timely filed exception of prematurity if such claim has not first been reviewed by a pre-suit medical review panel. La. R.S. 40:1299.47; Williamson, supra. The burden of proving prematurity is on the exceptor. Therefore, the defendant health care provider must show that it is entitled to a medical review panel. Williamson, supra.

In the context of the pre-suit medical review panel, La. R.S. 40:1299.47 makes reference to the “certificate of enrollment” issued by the PCF, as follows:

B. (l)(a)(i) No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.
Is(ii) A certificate of enrollment issued by the board shall be admitted in evidence.

This is the only reference to the “certificate of enrollment” in the MMA. On this statutory authority for the allowance for the “certificate of enrollment” as evidence, the jurisprudence holds such certificate is competent evidence to establish a pnma facie case for the applicability of the medical malpractice law regarding claims against the party identified on the certificate. La. R.S. 13:3711, 3712; Hill v. Brentwood Hosp., 480 So.2d 875 (La.App. 2d Cir.1985); Goins v. Texas State Optical, Inc., 463 So.2d 743 (La.App. 4th Cir.1985).

Plaintiffs’ first assignment of error questions the trial court’s consideration of the documentary evidence attached to the memoranda of Liberty Healthcare. Specifically, regarding the certificates of enrollment from the PCF, plaintiffs claim that the documents were not authenticated. The certificates of enrollment are copies of a form document issued under the letterhead of the Louisiana Division of Administration. The documents appear to be signed by the executive director of the PCF, but contain no formal certification by the governmental body.

Despite the lack of authentication of the certificates, the record reveals that the certificates were offered into evidence at both hearings. While counsel for plaintiffs directly questioned the lack of authentication of the documents at the first hearing, he did not raise that flaw at the second hearing but instead directly responded with “no objection” to Liberty Healthcare’s offering of the documents attached to its memoranda. Clearly, | ¡¡this was not raised as an evidentiary objection at the second hearing, and the copies of the certificates of enrollment were received in evidence and could be considered in the court’s ruling.

Next, plaintiffs argue that the conflict between the August 27, 2008 letter from the PCF and its later certificates leaves in dispute the issue of Liberty Healthcare’s status as a qualified provider. Citing Abate v. Healthcare Int'l, Inc., supra, plaintiffs argue that Liberty Healthcare was required to prove that it (i) is a licensed health care provider; (ii) applied for qualified health care provider status on forms prescribed by the PCF; (iii) provided proof of financial responsibility; and (iv) paid the surcharge to the PCF.

The two certificates of enrollment were issued in October 2008, after the earlier letter of August 27. The August letter did not say that Liberty Healthcare was not a qualified health care provider in Louisiana, but instead attempted to make a judgment about Liberty Healthcare’s status “as it pertains to this complaint.” The PCF’s response did not address the effect of the prior status of “Lillian Behavioral Health Hospital, DBA Liberty Healthcare Systems,” which was later revealed to be a qualified health care provider by the certificate of enrollment issued in October. Most importantly, the “certificate of enrollment” is the statutorily authorized representation from the PCF which shall serve as “evidence” for resolution of such disputes over a health care provider’s status under the MMA. La. R.S. 40:1299.47(B)(1). Therefore, the August 27, 2008 letter which 110occurred before the issuance of the certificates of enrollment in this case is shown to be in error by the PCF’s later actions.

Additionally, although the MMA does not specifically address the necessary information to be provided by the “certificate of enrollment,” we find that the two certificates reveal the criteria to establish a prima facie case for the applicability of the MMA to this claim against Liberty Healthcare. Both certificates list Liberty Healthcare as an enrollee for the year in which the alleged malpractice occurred and the year in which the claim was made. They show Liberty Healthcare’s financial responsibility by listing the insurance that it carried in both years with Evanston Insurance Company. Both certificates state that surcharges for excess coverage were paid. Accordingly, the certificates of enrollment adequately established the pri-ma facie case that Liberty Healthcare is a qualified health care provider under the MMA regarding plaintiffs’ claim. Since we find that plaintiffs produced no evidence disputing Liberty Healthcare’s status, we affirm the trial court’s ruling.

Conclusion

For the foregoing reasons, the ruling of the trial court is affirmed. Costs of these proceedings are assessed to appellants.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, CARAWAY, PEATROSS and LOLLEY, JJ.

Rehearing denied.


author: PICRETT, Judge.

text:
    L.C. DESHOTEL v. VILLAGE OF PINE PRAIRIE.
    No. 09-670.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Rehearing Denied Jan. 27, 2010.

      Jonathan Clyde Vidrine, West & Vid-rine, Ville Platte, LA, for Plaintiff-Appel-lee, L.C. Deshotel.
    Randall Brian Reiser, Reiser Law Firm, Alexandria, LA, for Defendant-Appellant, Village of Pine Prairie.
    Court composed of ELIZABETH A. PICRETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PICRETT, Judge.

|, The Village of Pine Prairie (the Village) appeals a judgment of the trial court ordering it to pay the Village’s share of the contributions to the Municipal Police Employees’ Retirement System (MPERS) for former Police Chief L.C. Deshotel retroactive to the date of his appointment as chief in 1991. Chief Deshotel appeals the trial court’s judgment insofar as it denied his demand for the payment of interest and penalties for the purchase of credit in MPERS.

STATEMENT OF THE CASE

Chief Deshotel was appointed Chief of Police for the Village of Pine Prairie in September 1991. He subsequently ran for re-election and remained as chief of police until his retirement on December 31, 2008. Shortly after his initial appointment, Chief Deshotel asked Mayor Terrell McCauley if he was eligible for a retirement system. Mayor McCauley indicated that there was no retirement other than the Social Security system. In fact, this information was incorrect. Pursuant to La. R.S. 33:2373, any police employee in a municipality that had not passed an ordinance exempting the municipality from participation in MPERS before January 1, 1978 was automatically a member of MPERS unless he executed an affidavit opting out of the system. It is uncontra-dicted that the Village had not passed the required ordinance, and it never presented Chief Deshotel with any form giving him the opportunity to opt out of the system.

Chief Deshotel did not pursue the matter any further until Clifford Wayne Clark was hired as a police officer for the Village. When Mr. Clark was hired in 2001, he asked the mayor and the town clerk if he was eligible for any retirement, and they informed him that he was not. Chief Deshotel and Mr. Clark frequently Ldiscussed the issue of retirement. Mr. I.MIII Clark attended a police academy in St. Martinville from January through March 2004. While there, he discussed the retirement system with some of the other attendees and determined that he was likely eligible for MPERS. When Mr. Clark returned to the Village, he passed along this information to Chief Deshotel. Chief Deshotel accompanied Mr. Clark and two other Village police officers to a meeting with an attorney in Alexandria on about April 17, 2004. The attorney told Chief Deshotel and the officers that they were eligible for MPERS but they would have to buy back their earlier years in the system to get credit. Mr. Clark contacted MPERS, who informed him that the Village was required to give him the option to enroll MPERS. Mr. Clark asked MPERS to send the information to the Village. At this time, the Village began to offer retirement to all of its officers. However, the Village determined that because Chief Deshotel was over fifty at the time, he was ineligible to enroll in MPERS.

Chief Deshotel continued to pursue the matter. In October 2006, he got a copy of the MPERS handbook which indicated he was eligible for the system if he purchased his credit dating back to 1991 despite his age. He contacted an attorney and began discussions with MPERS and the Village. MPERS ultimately determined that he could become a member if he purchased all of his credit in the system back to his original date of hire within six months of his enrollment. He enrolled in the system and began making payments on October 26, 2006. The cost to purchase 15.14 years of credit (from September 5, 1991 through October 26, 2006) would be $131,628.06, broken down as follows:

Employer contributions $43,838.56
Employee contributions $22,065.80
Interest and Penalties for Late Enrollment $65,723.70

h Chief Deshotel entered into a payment plan with MPERS to pay the entire amount over five years. He demanded that the Village pay the employer portion and the penalties and interest. When the Village refused, he filed this suit on June 29, 2007.

Following a trial on November 18, 2008, the trial court found in favor of Chief Deshotel. The trial court denied the Village’s exception of prescription. The trial court ordered the Village to pay its portion, but specifically stated that no penalties or interest should accrue against Chief Deshotel’s account. The Village filed a Motion for a New Trial asking the trial court for a specific amount that the Village had to pay, but the trial court denied the motion. The Village and Chief Deshotel have both appealed the judgment of the trial court.

ASSIGNMENTS OF ERROR

The Village asserts three assignments of error:

1. The trial court committed legal error when it denied the exception of prescription.

2. The trial court committed legal error when it ruled that the Village owed the plaintiff a duty to (a) educate him on his legal rights and duties under the MPERS statute, and (b) provide plaintiff with an MPERS enrollment affidavit never given to the Village.

3. The trial court abused its discretion when it denied the “limited” motion for a new trial.

Chief Deshotel asserts one assignment of error, arguing that the trial court erred by not casting the Village with the penalties, interest, and experience costs.

DISCUSSION

We begin our analysis of this case by addressing the second assignment of error raised by the Village. The Village argues that the trial court erred in finding that it owed a duty to Chief Deshotel to inform him about MPERS. Instead, argues the LVillage, the Board of Trustees of MPERS has the duty to inform new employees that they are eligible for the retirement system.

“The question of whether a duty exists in a particular set of circumstance is a question of law for the court to decide.” Mathieu v. Imperial Toy Corp., 94-952, p. 5 (La.11/30/94), 646 So.2d 318, 322. This court has held that a school board does not have a duty to inform an employee about the existence of a public retirement system. Simon v. Lafayette Parish Sch. Bd., 93-700 (La.App. 3 Cir. 2/2/94), 631 So.2d 626. In our case, though, the evidence is uncontroverted that Chief Deshotel asked the mayor at the time he was appointed if he was eligible for a retirement system and that the mayor incorrectly told him that he was not. In fact, the statute creating MPERS clearly indicates that Chief Deshotel was eligible for membership in the retirement system in 1991. La. R.S. 33:2373. We find that while the Village may not have had a duty to inform Chief Deshotel about his eligibility, the Village, as his employer, did have a duty to give Chief Deshotel accurate information about his eligibility for MPERS. The Village breached that duty in 1991.

Having established that the Village owed a duty to Chief Deshotel, we now turn to the Village’s first assignment of error. The Village argues that Chief Des-hotel’s claims against the city have prescribed. We must agree.

The trial court found that the applicable prescriptive period is the ten year period for personal actions. In Fishbein v. State ex rel. Louisiana State University Health Sciences Center, 04-2482, p. 8 (La.4/12/05), 898 So.2d 1260, 1266 (footnotes omitted), the supreme court stated:

[Contributions to retirement plans are a form of deferred compensation. Consequently, we find that plaintiffs claim is one for compensation for services rendered. The applicable prescriptive period, then, is found in La. C.C. art. 3494, which provides that an action for the recovery of | r,compensation for services rendered is subject to a liberative prescription of three years.

The record is also clear that in April 2004, Chief Deshotel became aware that he should have been allowed to participate in the retirement system in 1991 after he attended the meeting with an attorney in Alexandria. While Chief Des-hotel could not remember the discussions at the meeting, Mr. Clark was clear that during this meeting they discussed the issue of the Village paying some portion of the retirement dating back to 1991. Whether or not prescription had been interrupted or suspended before April 2004, we find that prescription began to run when Chief Deshotel discovered that he had a claim against the Village. His continued reliance on the mayor’s advice did not suspend or interrupt prescription. Therefore, when Chief Deshotel filed suit in June 2007, the only claims that had not prescribed were those from June 2004 forward.

In its third assignment of error, the Village argues that the trial court erred by not casting the Village with a dollar amount of damages. In his assignment of error, Chief Deshotel argues the Village should be cast with the additional costs associated with the purchase of his previous time in the retirement system. Since we find that these claims have prescribed, we pretermit discussion of these assignments of error.

CONCLUSION

The judgment of the trial court is reversed. Costs of this appeal are cast against Chief Deshotel.

REVERSED.

GENOVESE, J., concurs in the result.


author: PICKETT, Judge.

text:
    BEAUREGARD MEMORIAL HOSPITAL v. Joy T. BARBER.
    No. 09-663.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Charles V. Musso Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Plaintiff/Appellant Beauregard Memorial Hospital.
    Michael B. Holmes Hebert, Holmes & Bertrand Kinder, LA for Defendant/Appel-lee Joy T. Barber.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PICKETT, Judge.

| The plaintiffs, Beauregard Memorial Hospital (BMH) and its insurer Highlands Insurance Company(in receivership)(hereinafter referred to collectively as BMH), appeal a decision by a Worker’s Compensation Judge (WCJ) finding that its disabled employee, Joy Barber, had not committed fraud, as contemplated by La. R.S. 23:1208, in her dealings with the sitters provided to her by BMH. We affirm the decision of the WCJ.

FACTS

The claimant, Joy Barber, a Certified Nursing Assistant (CNA), was employed by the plaintiff beginning in 1997. While in the course and scope of her employment, she was injured in two different incidents — the first in April of 1999 and the second in May 2000. Both incidents involved the lifting and/or turning of patients and both resulted in injuries to her back/neck requiring a number of surgeries. The surgeries left Ms. Barber with severe functional disabilities which limit her capacity to care for herself. Because of her functional disabilities, Dr. Dean Moore ordered sitters to help Ms. Barber care for herself. Ms. Barber had a number of different sitters. Beginning in 2004, sitter services were provided by D & C Caring Hands. Individual sitters took over in January 2005, beginning with Katy Dou-cet, who was followed by Amanda Mouton and Claudia Kibodeaux. The last sitter she had was Kelly Perry Lejeune. She engaged Ms. Lejeune’s services while renting a trailer from Ms. Lejeune’s parents. Hard feelings developed between the parties, and, in September 2007, Ms. Barber discharged Ms. Lejeune and moved to different accommodations. Shortly thereafter, Ms. Lejeune called Cindy Moore, an adjuster at BMH’s ^compensation carrier, and reported that Ms. Barber had insisted that Ms. Lejeune pay her half of the salary she received as Ms. Barber’s sitter.

That telephone call prompted BMH to file the current action. After a hearing on the matter, the WCJ found that the plaintiffs had failed to prove that Ms. Barber had violated La. R.S. 23:1208 and dismissed the action at the plaintiffs’ costs. The plaintiffs now appeal.

LAW AND DISCUSSION

The law applicable to the case sub judice was recently discussed by this court in Acadian Ambulance Service, Inc. v. Darbonne, 08-983, pp. 2-3 (La.App. 3 Cir. 2/4/09), 6 So.3d 855, 857-58, writ denied, 09-523 (La.4/17/09), 6 So.3d 799:

Louisiana Revised Statutes 23:1208 governs the parameters for determining if a claimant has committed fraud for the purpose of obtaining workers’ compensation benefits. The applicable sections of that statute read as follows:
§ 1208. Misrepresentations concerning benefit payments; penalty
A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.
Under the unambiguous and clear language of the statute, an employer claiming that an employee has violated La. R.S. 23:1208 must prove “that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. If the workers’ compensation judge finds that all three of “these requirements are met, Section 1208 applies and its forfeiture provisions must be enforced.” Id. at 14.
|sThe determination by a workers’ compensation judge as to whether a claimant has willfully made a false statement for the purpose of obtaining workers’ compensation benefits is a finding of fact and is, therefore, subject to the manifest error standard of review. Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313.
The determination of whether there is a false statement or representation willfully made for the purpose of obtaining any benefit or payment involves inherently factual determinations and, thus, this court’s review of those findings by the WCJ is governed by the manifest error standard. Under that standard of review, this court may only reverse the WCJ’s decision if we find (1) there is no reasonable factual basis for the finding in the record and (2) the finding is clearly wrong or manifestly erroneous.
Rowan Cos., Inc. v. Powell, 02-1894, 02-1895, p. 6 (La.App. 1 Cir. 7/2/03), 858 So.2d 676, 680, writ denied, 03-2177 (La.11/14/03), 858 So.2d 425 (citations omitted).
Moreover, we must keep in mind that La. R.S. 23:1208(E) is penal in nature. Any statute that is penal in nature must be strictly construed in favor of the one receiving benefits under that chapter of the law. Fontenot v. Reddell Vidrine Water Dist., 02-439, 02-442, 02-478 (La.1/14/03), 836 So.2d 14; Olander v. Schillilaegh’s, 04-725 (La.App. 3 Cir. 3/23/05), 899 So.2d 97.

Ms. Barber never claimed that she did not receive money from the sitters. She explained that the money she received from the sitters was, in one instance, to cover household expenses where the sitter and her family were sharing living quarters with Ms. Barber, and in the other instances, the money was to reimburse her for advances on the sitter’s salary or for money lent to cover expenses the sitter could not meet at the time. Although three of the sitters — Amanda Mouton, Claudia Kibodeaux, and Kelly Perry, testified that Ms. Barber demanded one-half of their wages, Cindy Moore, Ms. Barber’s claims adjuster, who had spoken to all of Ms. Braber’s sitters, testified that only Kelly Perry complained to her that Ms. Barber had demanded half [4of her pay. We note there was never any allegation that Ms. Barber made claims for any sitter service which had not been provided.

In her reasons for judgment, the WCJ stated the following (emphasis ours):

The sole issue is whether or not Barber committed fraud involving an arrangement with her sitters whereby the sitters would pay her [part of] the money the sitters earned from the insurer with Barber.
After reviewing the record, considering the law and the evidence, the Court finds that there is no proof of 1208 fraud. The evidence was so convoluted, it is very likely that if payments were made to Barber, the sitters paid reimbursements for expenses. There is absolutely no indication that the sitters’ services were not provided. These sitter services were recommended by Dr. Dean Moore. If the parties exchanged money, there seems to be a reasonable basis for the exchange.
Under these circumstances, the Court finds that Ms. Barber did not violate the workers’ compensation statute by wilfully making a false statement or representation for purpose of collecting workers’ compensation benefits. Therefore, the hospital’s] claim for relief is denied.

In KLLM, Inc. v. Reed, 00-295, p. 6 (La.App. 3 Cir. 10/11/00), 771 So.2d 728, 731, this court noted:

[Statutory forfeiture is a harsh remedy and, therefore, must be strictly construed. Benoit v. Frank’s Casing Crew, 97-1522 (La.App. 3 Cir. 5/20/98); 713 So.2d 762, writ denied, 98-1697 (La.10/9/98); 726 So.2d 31.... Whether an employee has forfeited his right to workers’ compensation benefits is a question of fact that will not be disturbed on appeal absent manifest error. Smith v. Quarles Drilling Co., 99-171 (La.App. 3 Cir. 6/2/99); 741 So.2d 829, writ denied, 99-1949 (La.10/8/99); 751 So.2d 227.

After reviewing the record, and particularly taking into account the WCJ’s advantage of being able to observe the demeanor of the witnesses, we are unable to say the WCJ’s decision is manifestly erroneous.

| .^Accordingly, for the reasons stated, the decision of the WCJ is affirmed. All costs of this appeal are assessed against the plaintiff/appellant, Beauregard Memorial Hospital.

AFFIRMED.


author: EZELL, Judge. THIBODEAUX, Chief Judge,

text:
    Patrick D. JOHNSON v. CONAGRA POULTRY COMPANY.
    No. WCA 09-646.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Rehearing Denied Jan. 13, 2010.

      Maurice Blake Monrose, Hurlburt, Pri-vat & Monrose, Lafayette, LA, for Defendant/Appellee, Conagra Poultry Company.
    George Arthur Flournoy, Flournoy, Doggett APLC, Alexandria, LA, for Plaintiff/Appellant, Patrick D. Johnson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

b This is an appeal from a workers’ compensation judgment. Patrick Johnson appeals the trial court judgment asserting that he is entitled to an increase in the award of penalties and attorney fees. He also complains that there was no award for reimbursement of medical travel expenses. Finally, Mr. Johnson complains that the trial court erred in ordering that any unpaid medication expenses should be paid to the pharmacy as opposed to him directly.

FACTS

Mr. Johnson was an employee of Cona-gra Poultry Company, now known as Pilgrim’s Pride, Inc., in Natchitoches. On September 29, 1998, he injured his back and leg while lifting bags of cement. He was reinjured on March 17, 2000. As a result of the accident, Pilgrim’s Pride has been paying benefits to Mr. Johnson.

On February 8, 2008, Mr. Johnson filed a disputed claim for compensation alleging that Pilgrim’s Pride had failed to pay timely or refused to pay for prescribed medications. He also asked for penalties and attorney fees in addition to legal interest.

A trial on the matter was held on October 14, 2008. The workers’ compensation judge (WCJ) assessed a penalty of $2,000.00 for late payment of prescriptions prescribed by Mr. Johnson’s treating physician. The WCJ assessed only a single penalty since the multiple prescriptions were prescribed by a single physician. Attorney fees in the amount of $2,500.00 were also awarded. The trial court also found that Mr. Johnson failed to submit any evidence of the miles he traveled to the doctor’s office or the pharmacy to pick up his medication, so it declined to make an award for travel expenses. The trial court further ordered Pilgrim’s Pride to pay all outstanding pharmacy bills directly to the pharmacy.

1 .PENALTIES

Mr. Johnson alleges that he is entitled to a penalty for each instance that a prescription was not paid. Mr. Johnson claims that he is entitled to the maximum penalty of $8,000.00 as opposed to the $2,000.00 awarded by the WCJ.

A trial court’s award of penalties and attorney fees in a workers’ compensation case is subject to the manifest error/clearly wrong standard of review. Ducote v. La. Indus., Inc., 07-1536 (La.App. 3 Cir.4/2/08), 980 So.2d 843. “[I]t is well established that the underlying reason for the imposition of penalties and attorneys’ fees in the workers’ compensation arena is to combat the indifference by employers and insurers toward injured workers.” Fontenot v. Reddell Vidrine Water Dist, 02-439, p. 14 (La.1/14/03), 836 So.2d 14, 24, rehearing granted in part on other grounds, 02-442 (La.4/21/03), 851 So.2d 917. Therefore, La. R.S. 23:1201(F) provides for “multiple penalties for multiple violations of compensation and medical benefits claims.” Id. at 27.

In Erwin v. Town of Jena, 08-137 (La.App. 3 Cir. 6/5/08), 987 So.2d 281, this court held that the failure to timely pay a claimant’s pharmaceutical expenses warranted an award of penalties and attorney fees. In that case, one request was made by fax transmittal on November 16, 2006, for the payment of prescription medications in the amount of $1,471.92. Reimbursement was not made within the sixty-day period. A statutory penalty in the amount of $2,000.00 was awarded.

In the present case, Samantha Lewis, a bookkeeper with Causey’s Pharmacy in Natchitoches, where Mr. Johnson had his prescriptions filled, testified about the payment of Mr. Johnson’s prescriptions. The trial court found Ms. Lewis’ testimony concerning billing and payments to be credible. She testified that there were prescriptions in May and June of 2007 that still remained unpaid. On each date, two ^prescriptions had been filled, but the pharmacy only received payment for one prescription.

Ms. Lewis testified that oi'iginally she would send the bills to Mr. Johnson’s attorney who would forward them along with demand letters to Sedgwick, the third-party administrator for Pilgrim’s Pride. These demand letters from the attorney are in evidence along with a bill from the pharmacy indicating the previous balance, the month’s charges, any payment, and the payment due. We note that there are no demand letters or bills in evidence for the months of October 2007 to April 2008.

Mr. Johnson’s attorney sent a demand letter on May 2, 2007, requesting payment of the attached Causey’s Pharmacy bill in the amount of $1,370.15. Continued requests for payment of the bill were submitted, with the bill finally totaling $1,529.05 before a payment was received. It appears that a payment towards the pharmacy bill was made sometime in the end of June or July 2007 in the amount of $1,376.68. The June 26, 2007 billing date indicates that this bill was ninety days past due. Continued monthly requests were made. A payment of $73.85 was received in September 2007, when the bill totaled $522.98.

In April 2008, Ms. Lewis started faxing bills to the Sedgwick adjuster. By May 1, 2008, the bill at Causey’s Pharmacy totaled $1,421.68. On June 24, 2008, a payment of $22.03 was made on the bill. In July 2008, Ms. Lewis testified that she received a payment of $1,270.88 which encompassed payment for medications prescribed from July 30, 2007 through June 24, 2008.

In Ducote, 980 So.2d 843, this court reviewed the jurisprudence concerning multiple penalties. This court noted that certain actions by an employer constituted a “single violation” because it was an ongoing violation. This court in Ducote found that the award of a single penalty for failure to pay six weeks of indemnity benefits |4was proper. See also Maricle v. Sunbelt Builders, Inc., 05-398 (La.App. 3 Cir. 11/2/05), 916 So.2d 1226, writ denied, 05-2506 (La.3/31/06), 925 So.2d 1261(a single $2,000.00 penalty was affirmed for the nonpayment of several weeks of compensation); Wyble v. Acadiana Preparatory Sch., 07-91 (La.App. 3 Cir. 5/2/07), 956 So.2d 722, writ denied, 07-1178 (La.9/14/07), 963 So.2d 1004 (more than one incidence of nonpayment of medical benefits was an ongoing violation subject to the imposition of one penalty).

The first circuit in Juracovich v. St. Anne General Hospital, 04-1323, p. 4 (La.App. 1 Cir. 6/10/05), 916 So.2d 264, 266, writ denied, 05-1819 (La.1/27/06), 922 So.2d 552, observed that:

From these cases, we can glean the following guidelines: bills from different medical providers can be considered as separate claims; failure to authorize a surgery by a particular doctor can be considered a separate claim from other treatment costs by the same doctor; the mileage expense associated with treatment by a particular provider is part of the claim for payment of that provider’s treatment; incorrect calculation of a benefit amount is a separate claim from the failure to actually pay benefits; and that reduction of a benefit amount constitutes yet another separate claim on which penalties may be imposed.

We find no error in the WCJ’s decision that the employer’s failure to timely pay bills Causey’s Pharmacy submitted was a single, ongoing violation. Sedgwick continued to make late, single, lump-sum payments toward the payment of the bill at Causey’s. Thus, we affirm the single penalty of $2,000.00.

UNPAID MEDICATION EXPENSES

Mr. Johnson argues that the WCJ erred in ordering payment of the unpaid medication expenses directly to Causey’s Pharmacy as opposed to ordering payment to him. Mr. Johnson claims that he would ultimately be responsible should the responsible third party not pay.

In Ardoin v. Kipling Korner Grocery, 01-1596 (La.App. 3 Cir. 4/17/02), 824 So.2d 371, this court held that reimbursement of workers’ compensation claimant’s medical expenses should have been awarded to the health care providers rather than to the claimant. Relying on La. R.S. 23:1034.2, this court found that this procedure would relieve the employee of the burden and insures that the employee gets the benefit of the reimbursement schedule, insuring that the health care provider receives reimbursement.

Therefore, we find that the WCJ did not err in ordering Pilgrim’s Pride to directly pay Causey’s Pharmacy for the casualty-related medication that was prescribed.

MEDICAL TRAVEL EXPENSES

Mr. Johnson also alleges that the WCJ erred in not awarding him reimbursement for his medical travel expenses. Mr. Johnson did not make a claim for reimbursement for travel expenses until he filed his pretrial statement. The trial court found that Mr. Johnson did not present any evidence to the court of the miles he traveled to the doctor or pharmacy, so he declined his claim for travel expenses. Mr. Johnson claims that all he sought was an order that Pilgrim’s Pride is responsible for all unreimbursed, work-related travel expenses.

Pursuant to La. R.S. 23:1203(D) an employer is responsible for the mileage expenses that are reasonably and necessarily incurred in order to obtain medicines and medical services. “However, a claimant must present evidence of such expenses.” Smith v. Roy O. Martin Lumber Co., 03-1441, p. 10 (La.App. 3 Cir. 4/14/04), 871 So.2d 661, 669, writ denied, 04-1311 (La.9/24/04), 882 So.2d 1144. Evidence of such expenses include the actual cost of the trip or the number of miles traveled. Lang-Parker v. Unisys Corp., 00-880 (La.App. 1 Cir. 10/5/01), 809 So.2d 441.

| fiMr. Johnson points out that he testified that he used his own car to go to the doctor’s office and gave his physical address. He further testified that the physical addresses of the pharmacy and doctor’s office were in the record as well as the billing records. Mr. Johnson claims that this court can use an internet map site and determine the mileage to each location and then use the evidence in the record to calculate the number of times he visited each facility. We find that this evidence falls far short of proving the expenses necessary for travel. It was Mr. Johnson’s job to establish his case, not the court’s.

We find no error in the WCJ’s ruling that Mr. Johnson did not establish a claim for reimbursement of medical travel expenses.

ATTORNEY FEES

The WCJ awarded $2,500.00 in attorney fees which, Mr. Johnson claims, is abusively low. There are several factors to be considered when determining the amount of attorney fees to be awarded in a workers’ compensation case which include “the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the claimant, and the amount of time the attorney devoted to the case.” Langley v. Petro Star Corp. of La., 01-198, p. 11 (La.6/29/01), 792 So.2d 721, 727 (citing McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694). Considering the above factors, we find that the attorney fee award of $2,500.00 is not so abusively low as to be manifestly erroneous.

Mr. Johnson has also asked for additional attorney fees for work performed on appeal. When a claimant requests additional attorney fees for work performed on appeal, it is usually when the defendant appeals and obtains no relief but additional work was required of claimant’s counsel. Ware v. Mitchell, 05-1289 (La.App. 3 Cir. 4/12/06), 928 So.2d 699. Since Mr. Johnson filed the appeal and did not obtain any 17of the relief he requested, we decline to grant additional attorney fees on appeal.

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to Patrick Johnson.

AFFIRMED.

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

THIBODEAUX, Chief Judge,

dissenting.

11 Today’s opinion allowing one penalty and not separate penalties for multiple violations encourages illicit conduct. It undermines the purpose of penal provisions and encourages an employer to not pay for valid pharmaceutical claims. Essentially, all an employer or insurance company has to do is refuse to pay in a timely manner for any medication expenses when they are submitted and then pay one lump sum at some point in the future. In a response to a demand for penalties, it consequently can validly argue that one claim is implicated and not multiple claims. This opinion guts the very reason that penalties are imposed.

Louisiana Revised Statutes 23:1201(F) provides for “the assessment of a penalty ... for each disputed claim ...(Emphasis supplied). A “claim” is a “demand for particular benefits.” Fontenot v. Reddell Vidrine Water Dist., 02-439, p. 15 (La.1/14/03), 836 So.2d 14, 25. Here, it is undisputed that several demands were made requiring a penalty for each demand for payment of a claim up to the $8,000.00 maximum limit. I note that the employer in Fontenot argued against a broad interpretation of Section 1201. It argued that such an interpretation, as I am proposing, would give rise to a penalty for each late payment, nonpayment, or refusal |2to pay compensation and medical benefits. The Louisiana Supreme Court rejected this argument. So should we.

For the foregoing reasons, I respectfully dissent.


author: LOLLEY, J.

text:
    Micah BAILEY, et al., Plaintiffs-Appellants v. Deanna DONLEY, M.D., Defendant-Appellee.
    No. 44,919-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.

      Nelson & Hammons by John L. Ham-mons, Annis Cornell Flouroy, for Appellants.
    Watson, Blanche, Wilson & Posner by Peter T. Cazzio, Chris J. LeBlanc, for Appellee.
    Before STEWART, GASKINS, LOLLEY, JJ.
   LOLLEY, J.

[ ,In this medical malpractice case, plaintiffs appeal a judgment from the First Judicial Court, Parish of Caddo, State of Louisiana, where a jury found in favor of defendant, Dr. Deanna Donley, M.D. Plaintiffs now appeal.

FACTS

On June 6, 2003, Charlotte Bailey came to Dr. Donley complaining of pain due to a work-related back injury that occurred sometime in the 1970s. Bailey gave Dr. Donley a letter from her treating psychiatrist who had recently retired, Dr. James Phillips, outlining the medications and dosage Bailey had been taking for the past 10 years to manage her pain. The text of the letter, dated August 14, 2002, reads as follows:

Deal’ Ms. Bailey,
The purpose of this letter is to document for you that you have been a patient under my care for almost 15 years. I first saw you in late 1980, when you were in the old P & S Hospital for treatment of chronic back pain. You were addicted to narcotics and Benzodi-azapines [sic]. You were profoundly depressed. The treatment that you received from me has been successful and included getting you off of the depressing narcotics that you were taking, i.e., Pereodan, Trodine and other narcotics plus Valium and other anti-anxiety drugs. For the past 10 plus years, you have been maintained on a minimal amount of medication including Tofranil PM 150 mgs at bedtime for recurrent chronic depression. You have been taking Methadone 10 mgs every 4 to 6 hours p.r.n. severe pain, averaging 3 to 4 a day. You take Phenergan 25 mgs with each Methadone to potentiate the pain relief. You take Paraflex 250 mgs, 1 or 2 q. 4 h p.r.n. muscle spasms. You take a laxative called Visicolate tablets, 5 mgs, 2 at bedtime when needed.
I am happy to say that you have succeeded for more than 10 years, in not requiring hospitalization for recurrent back pain. You have not, in any way, abused the medication that you are currently taking.
|2It is my recommendation that you seek the care of a family physician and make him aware that you have done extremely well for more than 10 years on this medical regime. You continue to be unable to do any significant manual work, standing for long periods of time, lifting, bending, stooping, etc., which renders you incapacitated to maintain gainful employment. You are on social security and you are disabled permanently and totally.
I hope this letter will adequately suffice for you to present to your next physician as a summary of your situation. I hope that your next physician will be willing to take care of your medical needs as well as care for you in the treatment of your chronic pain, which will need to be addressed for the remainder of your life.
Respectfully,
s/James H. Phillips, M.D.

When Dr. Phillips retired, he gave Bailey 400 10-mg pills of methadone so she could continue managing her pain while she looked for another doctor. Over the next two months, Bailey went to the emergency room several times for her pain and eventually needed pain medication since she had run out of her interim supply. She also asked for referrals to a physician as she was still without a doctor. The emergency room doctors gave her various short-term prescriptions for her pain before finally giving her a referral to Dr. Donley.

Dr. Donley agreed to take her as a patient, and proceeded to write her a prescription for Methadone and Phenergan, consistent with Dr. Phillips’ letter. However, Dr. Donley substituted Tofranil with another drug, Paxil, and gave Bailey samples to try out to see if she preferred it. Bailey came |aback to Dr. Donley on June 20th with a sprained foot and no other complaints were documented in her medical record. On July 5, 2003, Bailey died. According to the coroner’s report, Bailey died from “polypharmacy,” or multiple drug interaction. The drug screen in the autopsy report showed that along with the prescribed drugs in her bloodsteam which were not at toxic levels, she had an alcohol blood level of 0.045%.

Micah Bailey, Gerald Bailey and Elizabeth Bailey Treece (“plaintiffs”) filed this suit against Dr. Deanna Donley, M.D., alleging that she breached the standard of care in connection with her treatment of them deceased mother, Charlotte Bailey. On February 19, 2004, pursuant to the requirements of the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41 et seq., appellants filed a claim with the Louisiana Patients’ Compensation Fund where the claim was presented to a medical review panel (“MRP”). The MRP rendered a unanimous decision that the evidence did not support the conclusion that Dr. Donley failed to meet the applicable standard of care and stated:

The panel is of the opinion that the care and treatment by Dr. Donley was not below the expected standard of care for an internist in 2003. Dr. Donley’s initial evaluation of Ms. Bailey was very thorough, and she considered the letter from the psychiatrist. That letter did not recommend that Mrs. Bailey go to a psychiatrist but to a family physician. As an internist, Dr. Donley did not change the medication; she only substituted the Paxil, since Ms. Bailey had taken herself off of the Tofranil when she ran out of the medication several months earlier.
The panel is of the opinion that the medical literature does not contraindicate the use of Paxil and Methadone concomitantly. Polypharmacy should have revealed itself much earlier, most likely within two weeks. The dosage of 25mg of Paxil was not excessive. The drug screen did not show that the Methadone or Paxil were at toxic levels. However, Mrs. Bailey reported no |.tcomplications to Dr. Donley that would have warranted further testing.

Plaintiffs brought the instant action and this matter was tried before a jury which rendered a verdict in favor of Dr. Donley. Plaintiffs filed a motion for JNOV which the trial court denied. This appeal ensued.

LAW AND DISCUSSION

The plaintiffs’ sole assignment of error on appeal is that the jury was manifestly erroneous in concluding that Dr. Donley did not deviate from the applicable medical standard with regard to the treatment that she provided to decedent, Charlotte Bailey. Specifically, plaintiffs argue that the coroner’s finding that Bailey died from po-lypharmacy was caused by Dr. Donley’s multiple deviations from the applicable medical and pharmacological standards of care. In addition, plaintiffs allege that Dr. Donley failed to warn Bailey not to consume alcohol while on these medications.

The jury’s finding in a medical malpractice case is subject to manifest error review; it cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Tan ner v. Cooksey, 42,010 (La.App.2d Cir.04/04/07), 954 So.2d 335, writ denied, 2007-0961 (La.06/22/07), 959 So.2d 508. 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. The appellate court must |snot reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank, & Trust Co., 2001-2217 (La.04/03/02), 816 So.2d 270.

Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based on a credibility determination. Stobart, supra. But where such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Salvant v. State, 2005-2126 (La.07/06/06), 935 So.2d 646.

In a medical malpractice case, La. R.S. 9:2794(A) states the plaintiff has the burden of proving the following:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
|fi(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Resolution of each of these inquiries is a determination of fact which should not be reversed on appeal absent manifest error. Martin v. East Jefferson General Hosp., 582 So.2d 1272 (La.1991); Tanner, supra.

Where there are conflicting expert opinions concerning the defendant’s compliance with the standard of care, the reviewing court will give great deference to the conclusions of the trier of fact. Pinnick v. Louisiana State University Medical Center, 30,263 (La.App.2d Cir.02/25/98), 707 So.2d 1050. Here, in addition to the coroner’s report and the MRP’s decision, the jury had the opportunity to hear testimony from experts on both sides.

Plaintiffs’ Witnesses

The plaintiffs, Bailey’s children, all testified and agreed that their mother was in pain but with the prescribed medicine from Dr. Phillips, the pain seemed manageable. They also testified that it was difficult to find a doctor that was willing to treat their mother after Dr. Phillips retired since she was a worker’s compensation patient. They all acknowledged that Bailey had an occasional glass of wine.

The first expert witness, Dr. Paul Gene-cin, a professor of internal medicine at Yale Medical School, testified that in his opinion, Dr. Donley made numerous errors but specifically should not have reinstitut-ed the drugs at the same dosage that Dr. Phillips outlined in his letter. Dr. Genecin believed that Bailey had lost her tolerance for the drugs during the interim period without a doctor and her medication. In addition, Dr. Genecin also testified that he believed that substituting the Tofranil with Paxil was in |7error, because Tofranil also helped with her pain. Finally, according to Dr. Genecin, although the amount of prescription drugs that were found in her system were considered to be in the “therapeutic range,” the interaction among them can still be harmful.

Dr. Richard Williams, a psychiatrist and an addiction medicine specialist, opined that Dr. Donley violated the federal guidelines for dosage protocols. Dr. Williams testified that Dr. Donley should not have relied on Dr. Phillips’ letter as the starting point for Bailey’s medication. He also did not agree with Dr. Donley’s decision to substitute Paxil for the Tofranil. Dr. Williams opined that Bailey’s death was a result of the multiple drug interaction including the alcohol.

Defendant’s Witnesses

Dr. John Felty, one of the emergency room doctors who treated Bailey on April 29, 2005, testified that she came in with a chief complaint of needing pain medication. Dr. Felty, after reviewing her medical history and conducting a physical exam, prescribed her 30 10-mg tablets of methadone with instructions to take three to four times as needed for severe pain. Dr. Felty acknowledged that since Methadone is a narcotic he must first determine whether the patient’s need for the drug is legitimate before prescribing it. He also prescribed Bailey Flexeril, a muscle relaxer, and Phenergan. Dr. Felty also noted that he tried to refer her to a doctor for pain management.

Dr. Richard Haynie, one of the members on the MRP, testified that he did not believe there was a breach in the standard of care in this case. He |Rtestified that he has read the literature and believes that Paxil was a better drug, and a good choice to substitute for Tofranil, because it has fewer side effects. Dr. Haynie opined that Dr. Donley, as an internist, was qualified to change from Tofranil to Paxil. He also felt that Dr. Donley’s examination and questioning were thorough.

Dr. Carolyn Burton, also a member on the MRP, stated in her video deposition that the “Physicians’ Desk Reference” did not prohibit the dosages and the combination of Methadone, Phenergan, and Paxil were appropriate in this case. Dr. Burton opined that it was unlikely that Bailey had a “reaction” to these drugs given that the autopsy report concluded the amount in her system to be in the “therapeutic range.”

Dr. James Phillips, Bailey’s previous psychiatrist, testified that he had her on Methadone, Tofranil, and Phenergan for over 10 years and believed he was successful in managing her pain. Dr. Phillips also testified that he did not think Bailey ever abused the medication she was taking; however, he did know that she consumed alcohol, socially, despite his warnings against it. He further testified that given Bailey had been prescribed medication when she went to the emergency room during the interim period, it was his opinion that she would not have been out of medication very long before she saw Dr. Donley.

Dr. Donley testified that at the initial visit she did a series of tests including evaluating the strength and sensation of Bailey’s legs, the area she was suffering greatest from the pain, and found that to be consistent with the issues Bailey has discussed. Dr. Donley also testified that generally she |3did not make it a practice to give people narcotics when they first show up; however, the letter indicated that she did well with the drugs for ten years, so she made an exception. She testified that she gave Bailey samples of Paxil, because it has fewer side effects than Tofranil, and explained that if Bailey liked it she was going to give her a prescription. Dr. Donley also noted that she gave Bailey a follow-up appointment for four weeks later, but Bailey came in June 20, 2003, because she had injured her right foot. Dr. Donley testified that her notes did not indicate Bailey complained of any other pain.

The record reveals that the jury was presented with two permissible views of the evidence. However, the jury’s finding that Dr. Donley did not breach the standard of care in her treatment of Bailey is supported by the record. The MRP opinion clearly indicated that Dr. Donley did not breach the standard of care and challenged the coroner’s finding that “poly-pharmacy” was Bailey’s cause of death. The jury heard two of the three MRP physicians’ testimony that they still support their conclusion and that Dr. Donley was qualified to make the drug substitution. Dr. Haynie also confirmed that the fact the drug screen found the medication to be in the “therapeutic range” confirms that Bailey likely did not die from an adverse drug reaction.

In addition, Dr. Phillips testified that Bailey was fully aware that drinking alcohol while on the medications was not appropriate. However, she continued to drink her occasional glass of wine throughout the time she was his patient. The evidence also showed the warning labels on all | mprescribed medication bottles. The jury did not find the perceived lack of warning regarding consumption of alcohol and the drugs to be persuasive, and we agree.

Of notable interest is that Dr. Phillips prescribed Bailey doses that were not in accordance with the “federal guidelines” standard as set forth by plaintiffs’ expert. Also, Dr. Felty prescribed Flexeril, a muscle relaxer, for Bailey during her emergency room visit, which had not been a part of her regimen with Dr. Phillips; however, no evidence was presented on its possible drug interaction. In addition, plaintiffs’ own witness believed alcohol played a part in the “polypharmacjf’ cause of death. As such, we cannot find Dr. Donley responsible for Bailey’s untimely death.

Dr. Donley testified that she was not in the habit of taking on a methadone patient and made an exception after she saw how much pain Bailey was in. While we empathize with the plaintiffs’ loss of their mother, we do not wish to place a chilling effect on doctors who take on patients with pre-existing conditions or have a complicated medical history. In this matter, the jury was presented with two permissible views of the evidence regarding whether Dr. Donley breached the standard of care in her treatment of Charlotte Bailey. The jury chose to credit the MRP opinion, Dr. Donley and her experts over the evidence presented by the plaintiffs. The record does not contradict that finding.

CONCLUSION

After a review of the record, we do not find the jury was manifestly | n erroneous in its conclusion that Dr. Donley did not breach the standard of care in her treatment of Charlotte Bailey. Costs of this appeal are to be borne by the plaintiffs.

AFFIRMED.

      . p.r.n.: Pro re nata, a medical term for "as the situation arises” or “as needed.”

      . According to the record, because she had not had any success finding a doctor, Bailey asked for an appointment indicating she would be a “cash” patient; however, this was 2, pretext so she could be seen, as she was actually a workers' compensation patient.