author: 11 STEWART, J.

text:
    Sara SIMMS and Sidney Simms, Plaintiffs-Appellees v. PROGRESSIVE INSURANCE COMPANY, Charles Williamson, and State of Louisiana through the Department of Transportation and Development, Defendants-Appellants.
    No. 38,804-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 2004.
    Rehearing Denied Oct. 21, 2004.

      Hulse & Wanek by John Hulse, IV, Cook, Yancey, King & Galloway by Kenneth Mascagni, Shreveport, for Appellant Progressive Ins. Co.
    Cook, Yancey, King & Galloway by Kenneth Mascagni, Shreveport, for Appellant Charles Williamson.
    Pettiette, Armand, Dunkelman, Woodley & Byrd by Robert Dunkelman, Shreveport, Counsel for Intervenor Appellant La. Home Builders Association Self-Insurers Fund.
    Campbell, Campbell & Marvin by John C. Campbell, Minden, Unglesby, Koch & Reynolds by Lewis Unglesby, Baton Rouge, for Appellees Sara Simms and Sidney Simms.
    Before BROWN, STEWART and GASKINS, JJ.
   11 STEWART, J.

This is a suit for damages by Sara Simms, a pedestrian who was struck by a vehicle driven by Charles Williamson. The jury allocated fault between Simms and Williamson at forty-five percent and fifty-five percent, respectively, and awarded Simms general damages totaling $897,000, to be reduced by her percentage of fault. Simms’ husband received an award for loss of consortium in the amount of $103,000. Williamson and his insurers appealed. For the following reasons, we affirm the trial court’s judgment as to the finding and allocation of fault, and we amend the award of damages.

FACTS

On July 19, 2000, Sara Simms was struck by a vehicle as she crossed Louisiana Highway 531 to check her employer’s mail. The vehicle was driven by Charles Williamson, who was accompanied by his wife and grandson and was on his way to the airport in Shreveport. Neither Simms nor Williamson saw one another until a moment before impact. Williamson, who was traveling south along the highway, swerved to the left and into the opposite lane of travel in a last second attempt to avoid hitting Simms. Unfortunately, the rear passenger side of his vehicle hit Simms, sending her flying into the air and crashing on the hot pavement of the highway. ' Williamson’s vehicle then collided into an oncoming vehicle driven by Richard Jason Perot and flipped over in a ditch along the highway.

Simms’ injuries included multiple breaks in her left forearm and right lower leg, facial lacerations and abrasions, and burn injuries to her forearm from the hot pavement. She was transported by ambulance to a trauma center at Louisiana State University Medical Center (“LSUMC”), where she ^underwent surgery and remained hospitalized for approximately ten days. Her injuries required other surgical procedures and treatment over the months following the accident. Simms was not released to return to work until January 2002.

Simms sued Williamson and his liability insurer, Progressive Security Insurance Company (“Progressive”). A jury trial resulted in a verdict finding both Williamson and Simms negligent and allocating fifty-five percent of the fault to Williamson and forty-five percent of the fault to Simms. The jury awarded damages to Simms as follows:

Past Medical Expenses $ 66,000
Past Lost Wages $ 21,000
Pain & Suffering — Past and Future, Physical and Mental $ 435,000
Permanent Scarring and Disfigurement $ 150,000
Loss of Capacity for Enjoyment of Life $ 225,000

Additionally, the jury awarded Simms’ husband, Sidney Simms, loss of consortium damages in the amount of $103,000. Judgment was rendered in accordance with the jury’s verdict on September 8, 2003.

Williamson and Progressive filed a motion for a new trial. It was denied. This appeal followed. Columbia Casualty Company, Williamson’s excess insurer, joined in the appeal. Appellants seek review of the finding of liability on the part of Williamson, the trial court’s refusal to remove | .^certain jurors for cause, the trial court’s refusal to allow the depositions of Sara Simms and Richard Jason Perot into evidence, and the award of damages. Appellants also seek correction of the judgment to limit Progressive’s exposure to its policy limits plus interest.

DISCUSSION

Jury Selection

Appellants argue that the trial court erred during voir dire in refusing to remove six individuals for cause due to bias. They contend that these errors deprived them of a fair trial.

As provided in La. C.C.P. art. 1765(2), a juror may be challenged for cause when he “has formed an opinion in the case or is not otherwise impartial, the cause of his bias being immaterial.” A trial judge is vested with broad discretion in ruling on challenges for cause and will be reversed only when review of voir dire as a whole indicates an abuse of discretion. Riddle v. Bickford, 2000-2408 (La.5/15/01), 785 So.2d 795; Bannerman v. Bishop, 28,-382 (La.App.2d Cir.7/12/96), 688 So.2d 570, writ denied, 96-2755 (La.1/10/97), 685 So.2d 146. Criminal jurisprudence on challenges for cause may be considered in civil cases. Bannerman v. Bishop, supra.

In State v. Coates, 27,287 (La.App.2d.Cir.9/27/95), 661 So.2d 571, writ denied, 95-2613 (La.2/28/96), 668 So.2d 365, this court addressed the trial court’s discretion in ruling on challenges for cause as follows:

In order to preserve the issue for appeal, the defendant must object to the ruling refusing to sustain a challenge for cause. If the defendant has exhausted all of his peremptory challenges ... no showing of prejudice is needed; he need only show the erroneous denial of a challenge for cause.
|4A refusal by a trial judge to excuse a prospective juror on the ground he is not impartial is not an abuse of discretion where, after further inquiry or instruction (frequently called “rehabilitation”), the potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. “[A] challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably inferred.” (Citations omitted.)

See also State v. Johnson, 36,014 (La.App.2d Cir.6/12/02), 821 So.2d 652.

Appellants argue that four jurors, who were excused on peremptory challenges, should have been excused for cause due to bias. These four potential jurors were Amy Hawkins, Jtasha White, Marie Bat-ton, and Emmitt Bankston.

During voir dire, Amy Hawkins described herself as “a very sympathetic person” and stated it would be “hard” for her to put sympathy aside. When questioned about being able to put sympathy aside as a juror, Jtasha White answered, “I’ll try. I’m not going to say that I can completely, but I can try.” Defense counsel then questioned the jury panel, which included both Hawkins and White, about whether they could enforce the law as instructed by the court. The entire panel answered affirmatively. Plaintiffs’ counsel also received an affirmative response from the panel in answer to whether they could put aside sympathy and rule against Simms if she failed to prove her case. In challenging for cause, defense counsel even admitted that the potential jurors answered “yes” when asked if they could rule against Simms.

We find no abuse of discretion in the trial court’s denial of challenges for cause as to Hawkins and White. The record shows that while both Hawkins and White expressed concern about their ability to disregard sympathetic feelings, they also indicated that they could comply with the law as instructed by the court and rule against Simms. This is what our judicial system requires of jurors.

In a similar vein, Marie Batton also admitted that she did not know whether she could make a decision divorced of sympathy. She explained that she had “very soft feelings.” However, Batton also indicated that she could apply the law as instructed by the court and deny recovery to Simms if she was at fault. The trial judge read instructions pertaining to sympathy and asked Batton whether she could apply the law as a fair and impartial juror. Bat-ton replied that she could. Considering Batton’s answers, we find no error in the trial court’s refusal to dismiss Batton for cause.

Emmitt Bankston, who was involved in a prior incident, underwent thorough questioning by counsel for both sides and the trial court to determine whether he could serve as a fair and impartial juror. As did the three prior jurors, Bankston expressed some reservations about his ability to put aside all sympathy in deciding the case. However, Bankston was rehabilitated. He expressed to the court that he could judge the matter on the facts presented and follow the court’s directions. The trial judge decided that Bankston would not be excused for cause, and we find no abuse of discretion in this decision.

| ^Neither Bankston nor the other three jurors expressed responses which showed bias, prejudice, or the inability to render an impartial decision. Though they expressed the understandable difficulty of being able to totally divorce oneself from the natural inclinations toward sympathy, their answers revealed their willingness to decide the case based on the facts presented and law as instructed by the court. There was no abuse of the trial court’s broad discretion in denying the challenges for cause.

Appellants also argue that two other jurors, Deborah Pope and Kelli Philips, should have been excused for cause. Both served on the jury. Appellants contend that Pope should have been excused for cause, as she became visibly upset during questioning and revealed that she had been involved in a prior automobile accident with a pedestrian when she was sixteen. However, in response to questioning, Pope stated that she would be able to be fair. She told the trial judge that the trial would not be too emotional for her. Our review of Pope’s voir dire reveals no abuse of discretion on the part of the trial court in denying the challenge for cause. Neither bias, prejudice, nor an inability to render judgment according to law was shown on the part of Pope.

Appellants now assert that Kelli Philips should have been excused for cause due to the fact that she knew Richard Jason Perot, a witness to the accident. However, the record reveals no objection or challenge to Philips by the defense during voir dire. Philips explained that she had met Perot years before, that he was an acquaintance of her husband, and that he had last been to her home two years ago. There appeared to be no close |7personal acquaintance between Philips and Perot. There was no indication that knowing Perot would influence her decision-making in any way. When the trial judge indicated that he was inclined to keep Philips on the jury, defense counsel answered, <cWe acquiesce.” The record does not support appellants’ claim that Philips should have been dismissed for cause.

Introduction of Depositions

Appellants contend that the trial court erred in refusing to allow into evidence the depositions of Sara Simms and Jason Perot. The use of depositions is governed by La. C.C.P. art. 1450, which states in relevant part as follows:

A. At the trial ... any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
(2) The deposition of a party ... may be used by an adverse party for any purpose.

This court has typically construed this provision to allow the trial court discretion in admitting or refusing to admit into evidence the discovery deposition of a party, particularly when the deposition is repetitious of matters in the record. Orea v. Scallan, 32,622 (La.App.2d Cir.1/26/2000), 750 So.2d 483; Robledo v. Orr Motors of Louisiana, Inc., 582 So.2d 892 (La.App. 2d Cir.1991); Harrison v. State, Dept. of Highways, 375 So.2d 169 (La.App. 2d Cir. 1979).

| ¡¡Defense counsel sought to introduce Simms’ deposition for impeachment purposes on the grounds that there were inconsistencies between her trial testimony and deposition testimony as to the facts of the accident. Appellants argue that Simms’ failure to recall certain facts from the moments leading up to the accident is contrary to her deposition, calls her credibility into question, and is relevant to the determination of fault. Appellants also argue that the trial court’s failure to allow the deposition into evidence is legal error which requires this court to conduct a de novo review of the record. We disagree.

The record shows that Simms testified as to her recollection of the accident during direct examination and again on cross examination. Upon further questioning during cross examination, defense counsel impeached Simms with regard to particular facts which she claimed not to recall, such as where the van she was walking beside before she entered Highway 531 stopped, how long the van stopped before turning onto the highway, how long she waited before entering the highway after the van, and what she saw as she attempted to cross the highway. Defense counsel properly called Simms’ attention to statements in her deposition perceived to be inconsistent with her trial testimony. Simms did not deny making such statements, nor did she deny the truthfulness of her deposition testimony. Rather, she testified that she could not recall details of the accident and that her memory was not refreshed by references to her deposition. At the close of Simms’ testimony, defense counsel did not seek to introduce Simms’ deposition or the parts used for impeachment. Rather, defense counsel | fought to introduce the entire deposition at the close of trial. Noting that impeachment was well done, the trial judge refused to allow introduction of the entire deposition.

Considering this circuit’s interpretation of La. C.C.P. art. 1450, we find that whether to allow introduction of the deposition was a matter within the trial court’s discretion. We have reviewed both Simms’ testimony and the proffered deposition, and we find no abuse of discretion in the trial court’s ruling to deny introduction of Simms’ deposition; The thorough cross examination and impeachment brought to the jury’s attention any inconsistencies between Simms’ deposition and trial testimony regarding the moments leading up to the accident. Introduction of the entire deposition would have been repetitive of matters already on the record.

Appellants also seek review of the trial court’s refusal to allow introduction of Perot’s deposition into evidence for the purpose of undermining the testimony of Simms’ expert witness, A.J. McPhate. The defense asserted that introduction of Perot’s deposition was necessary to make clear to the jury that McPhate disregarded portions of Perot’s eyewitness account in giving his expert opinion at trial. However, this fact was made clear during McPhate’s testimony. McPhate admitted that he disregarded Perot’s placement of the van on the highway, Perot’s claim that Simms and the van entered the highway at the same time, and Perot’s contention that the van obstructed Williamson’s view of Simms. . McPhate explained that Perot was too far away and could have been mistaken in his positioning of the parties on the highway ahead of him.

[inThe jury had the benefit of McPhate’s testimony, which included extensive cross-examination about what part of Perot’s eyewitness account he disregarded in forming his opinion. The jury also heard Perot’s trial testimony. As such, all of the information relevant to an assessment of McPhate’s opinion was in the record. Introduction of Perot’s deposition would have been repetitive. We find no abuse of discretion by the trial court in disallowing introduction of Perot’s testimony.

Jury Instructions

Appellants contend that trier of fact erred in its allocation of fault by failing to apply the “sudden emergency doctrine.” They further contend that the trial court did not properly instruct the jury as to the applicable law.

When presented with allegations of improper jury charges, the reviewing court must assess the alleged “impropriety in light of the entire jury charge to determine if they adequately provide the correct principles of law as applied to the issues framed in the pleadings and evidence and whether they adequately guided the jury to the extent that it was prevented from dispensing justice.” Nicholas v. Allstate Ins. Co., 99-2522 (La.8/31/2000), 765 So.2d 1017. Adequate jury instructions are those that fairly and reasonably point to the issues and provide the correct principles of law for the jury to apply. Kessler v. Southmark Corporation, 25,941 (La.App.2d Cir.9/21/94), 643 So.2d 345.

An appellate court is charged to exercise great restraint before reversing a jury verdict because of erroneous jury instructions, as trial courts have broad discretion in formulating jury instructions. Nicholas v. Allstate Ins. Co., supra. The trial court’s judgment will not be reversed so long as the charge correctly states the substance of the law. Id. Where the jury has been erroneously instructed, an appellate court may conduct a de novo review of the facts from the record. Id.

The sudden emergency doctrine provides that a person “who finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or the best means to adopt to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to be the better method, unless the emergency is brought about by his own negligence.... ” Clark v. Natt, 32,548 (La.App.2d Cir.12/08/99), 748 So.2d 584, writ denied, 00-0084 (La.3/17/00), 756 So.2d 1142. The defense argued that Williamson’s view of Simms crossing the highway was blocked by a van, and her unexpected appearance in his path constituted a sudden emergency for which he was not at fault.

Review of the defense’s proposed jury instructions shows that they did not request a specific instruction on the sudden emergency doctrine. Therefore, we find no basis for the complaint that the trial court did not instruct the jury as to that doctrine of law.

Nevertheless, appellants argue that they requested the equivalent of sudden emergency charges in their proposed instructions. The defense sought to have the jury instructed, through a number of proposed variations, that a pedestrian may not leave a position of safety to enter the path of a vehicle which is so close that it cannot yield; that motorists are not insurers | iaof a pedestrian’s safety; that a motorist has no duty to guard against unexpected obstacles which he has no reason to anticipate and are difficult to discover; and that a motorist has no duty to anticipate a pedestrian where there is no crosswalk. The defense objected to the trial court’s omission of some of the specific proposed charges.

The trial court advised the jury as to the law of negligence, the respective duties of a pedestrian and driver as set forth in La. R.S. 32:213 and La. R.S. 32:214, and the principles of comparative fault, including the Watson factors. The court instructed the jury that pedestrians must exercise reasonable care when leaving a place of safety and must maintain a proper lookout. The instructions also stated that a motorist has a duty to see what an ordinarily prudent driver should have seen and to avoid striking pedestrians in the road. The trial court explained that a motorist “who observes, or who with the exercise of reasonable care should have observed, a pedestrian ... has a duty to avoid injuring the pedestrian if he ... can reasonable [sic] do so.”

Our review of the trial court’s instructions to the jury convinces us that the court properly advised the jury as to the substance of the law applicable in this matter. The charges were sufficient to inform the jury as to the issues presented and the correct principles of law, including the duties of the respective parties to the accident and the law applicable to determining negligence and assessing fault. We cannot conclude that the trial court’s failure to include the sudden emergency doctrine or the specific 1 ischarges proposed by the defendants misled the jury or prevented the jury from doing justice.

Because we find that the jury was adequately informed as to the applicable law, de novo review is not warranted. We will now review the jury’s allocation of fault under the manifest error standard of review. See Stobart v. State, Through DOTD, 92-C-1328, 617 So.2d 880 (La.1993) and Rosell v. ESCO, 549 So.2d 840 (La.1989) for the applicable, well-known law governing the manifest error standard of review.

As told to the jury, the respective duties of Williamson and Simms as motorist and pedestrian are set forth in La. R.S. 32:213 and 32:214. The pedestrian’s duty is provided in La. R.S. 32:213, in relevant part, as follows:

A. Every pedestrian crossing a roadway at any point other than within a marked cross walk or within an unmarked cross walk at an intersection shall yield the right of way to all vehicles upon the roadway.

The motorist’s duty is provided in La. R.S. 32:214, which states:

Notwithstanding the foregoing provisions of this Part, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway.

Motorists are charged with a duty to see what an ordinarily prudent driver should have seen under the circumstances, and to avoid striking pedestrians in the roadway ahead. Hanna v. Roussel, 35,346 (La.App.2d Cir.12/5/01), 803 So.2d 261; Jackson v. Scott Truck & Tractor, Inc., 31,933 (La.App.2d Cir.5/5/99), 736 So.2d 987. However, motorists are not the insurers of pedestrians’ safety. Jackson v. Scott Truck & Tractor, Inc., supra.

| uThe fact that an accident occurs does not create a presumption of negligence on the part of either party. Id. Even though the motorist commands a greater instrumentality of harm, the pedestrian must still prove that the motorist was negligent in order to recover. Bennett v. State, Through DOTD, 503 So.2d 1022 (La.App. 2d Cir.1987), writs denied, 505 So.2d 58 (La.1987). A determination of negligence in a case involving a pedestrian and a motorist rests upon the particular facts of each case and is governed by principles of comparative fault. Jackson v. Scott Truck & Tractor, Inc., supra.

From our review of the record, we find no error in the jury’s allocation of fault between Williamson and Simms. The accident occurred in daylight under ordinary driving conditions. As shown by photographs of the accident scene and as described by Tobey Whaley, the driver of the van and the person who spoke to Simms just prior to the accident, the accident occurred in a “fairly open area.” Simms was struck by Williamson’s vehicle as she crossed the highway to check a mailbox. Her testimony reveals no reason for her failure to see Williamson’s.oncoming vehicle and yield the right of way to him. Simms testified that she looked to the left and right of the highway and saw nothing to prevent her from crossing the road. Even once she got to the center line of the highway, she still did not see anything to prevent her from crossing the road. It is evident that Simms failed to see what should have been seen and that she entered the highway without yielding the right of way to oncoming vehicles. Clearly, Simms was at fault.

11sWilliamson admitted that he had a clear sight of the road ahead. However, defense counsel posited the theory that Williamson’s view of Simms was blocked by the van driven by Tobey Whaley. Whaley had been driving the van alongside Simms on Petrochem Drive and then turned onto the highway around the time that Simms began to cross the highway to reach the mailbox. The defense argued that the van entered the highway at the same time as Simms, blocking Williamson’s view of Simms. This was supported by expert analysis entered into evidence and the testimony of Perot, who was traveling north on Highway 531, witnessed the accident, and was struck by Williamson’s vehicle. Perot testified that he saw the van on Petrochem Drive and Simms next to it. The van turned onto the highway. Simms looked, walked out into the highway behind the van, and proceeded west across the highway without stopping. Cross examination established that Perot was about 1,000 feet away when he saw the van and Simms enter the highway.

The jury obviously rejected the defense’s theory. The jury’s decision was reasonable in light of Williamson’s own testimony during which he admitted that he had a clear sight shot of the road ahead and that nothing prevented him from seeing Simms in the roadway. Although Williamson testified that the only explanation he could come up with for not seeing Simms was that something must have blocked his view, he could not recall anything that actually blocked his view. In fact, Williamson testified that he did not even see the van. This testimony belies the defense’s theory of the case. The jury could have reasonably concluded that Williamson’s view|1fiwas not blocked by a van that he did not even recall seeing. In addition, the jury could have reasonably concluded that Williamson simply failed to exercise due care to see what an ordinarily prudent driver should have seen.

Having reviewed the testimony and evidence presented at trial, we find no manifest error in the jury’s finding of negligence by both parties and the allocation of fault between them. The allocation of fifty-five percent of the fault to Williamson and forty-five percent of the fault to Simms cannot be said to be clearly wrong or manifestly erroneous.

Damages

Appellants seek a reduction of the awards for general damages and loss of consortium. They argue that the award of general damages is excessive and is reflective of sympathy for Simms rather than responsive to the evidence presented.

General damages are those that may not be fixed with pecuniary exactitude. Mental and physical pain and suffering, inconvenience, loss of physical enjoyment, and other losses of lifestyle are damages that are not subject to exact measurement in monetary terms. Orea v. Scallan, supra.

Because the trier of fact is given great and even vast discretion in setting general damage awards, an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The initial inquiry in appellate review of general damages is “whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of |17the ‘much discretion’ of the trier of fact.” Youn, 623 So.2d at 1260. Thus, to determine whether the trier of fact abused its discretion in awarding damages, we must look first to the individual circumstances of the case.

Only when the award is in either direction beyond that which a reasonable trier of fact could have assessed for the effects of the particular injury on the particular plaintiff under the particular circumstances should the appellate court reduce or increase the award. Youn, 623 So.2d at 1261. The award may then be raised or lowered only to the highest or lowest point reasonably within the discretion of the trier of fact. Orea v. Scallan, supra. An appellate court should view the evidence in the light most favorable to the plaintiff in deciding whether an award is excessive. O’Brien v. Remington Arms Co., 601 So.2d 330 (La.App. 2d Cir.1992), writ denied, 604 So.2d 1003 (La.1992). If an articulated factual analysis shows an abuse of discretion by the trier of fact, then the appellate court may look to prior awards to determine the highest or lowest point within the trier of fact’s discretion. Youn, 623 So.2d at 1260.

The record establishes that the impact of Williamson’s vehicle threw Simms into the air and onto the hot pavement where she remained for some time until the ambulance arrived to transport her to LSUMC for treatment. She sustained burn injuries to her left forearm from the hot asphalt. She also sustained facial lacerations and abrasions, two broken bones in her left forearm, and severe brakes of both the tibia and fibula from her knee to ankle along the lower right leg. She remained hospitalized for ten days and underwent surgery to repair her broken bones.

11sFletcher S. Sutton, Jr., an orthopaedic surgeon who treated Simms, testified at trial. Dr. Sutton explained that Simms underwent a closed reduction of her left leg to align the bones and place an external fixation device attached by multiple pins along her leg. Simms also had an open reduction procedure to place a metal plate in her forearm and a closed reduction procedure on a bone near her wrist where pins were placed for stabilization. Following these procedures, Simms was bedridden and could do nothing for herself. She required the constant assistance of her family and friends.

After her discharge from the hospital, Simms underwent an additional painful procedure to adjust the device on her leg. Dr. Sutton testified that the external fixator device was finally removed from Simms’ leg after eight weeks, at which time a cast was placed from her groin to her toe. Once the cast was in place, she was encouraged to begin putting weight on her leg to stimulate healing. However, the leg required additional procedures due to angulation of the bone and slow healing of one of the breaks. The break was opened so that scar tissue could be scraped from between the broken bone. A bone graft was done with bone taken from her pelvis to pack around the break, and a metal rod was inserted down the middle of the bone from knee to ankle.

Dr. Sutton testified that Simms could walk short distances on level surfaces with the assistance of a walker after six months. Additionally, her arm was fully functional after six months. One year elapsed from the accident until she was able to ambulate without support. Simms’ recovery h ¡¡required extensive physical therapy. Dr. Sutton felt that everything turned out “pretty good” for Simms. He put no limitations' on her and advised her that she can do anything she wants to do. However, he did mention that Simms may have a little more risk of fracturing her left arm in the future due to a weak area created by the plate in her arm. Simms was involved in a subsequent accident in which she fractured that same arm, after which Dr. Sutton restricted her lifting over 10 to 15 pounds. Dr. Sutton released Simms to return to work in January 2002, but the record does not make clear whether her involvement in the second accident delayed her return to work.

After the cast was removed from her arm, Simms underwent treatment for the burn injury. She described the injury as looking like “raw hamburger meat” and being infected. The burned area had to be cleaned and treated with ointment at least twice a day. Dr. Kevin Sittig treated Simms beginning in July 2001 with compression therapy for the burn scars on her arm. This involved wearing a tight nylon sleeve over the arm to compress and remodel the scars. Dr. Sittig testified that Simms reached the maximum level of recovery in the burn area. She has a mature scar with soft and pliable skin texture. He also testified that the area is now more sensitive to ultraviolet light, so Simms will need to wear sunblock when outdoors. The scarred area may also take longer to heal if subjected to future trauma. The record also indicates that Simms has some scarring along her leg and hip due to the surgeries and fixator device.

Simms testified as to the great pain, suffering, and difficulties she endured while recovering from her injuries. She testified that she was Unmotivated to get better in time for her daughter’s wedding in May 2001, at which she was able to walk down the aisle with the assistance of her son. Simms attended physical therapy until June 2001. During the summer, she was able to walk short distances outdoors, go to the grocery store, and attend church. She also visited Gulf Shores; however, she explained that pain and discomfort from sitting for long periods required stops every two to three hours during the drive so that she could get out and walk a bit. Simms explained that her gait is now different and that she limps somewhat. She also claims that her leg has shortened as a result of the accident and that she can no longer wear the same type of shoes as before the accident. While working, she can sit up to one hour, but she is stiff after doing so. She also tires easily, but she is able to walk up to forty-five minutes with her friends. Simms complaints were corroborated by testimony from her husband, her daughter, and a friend.

The jury awarded Simms general damages totaling $810,000. Of this total amount, $435,000 was awarded for pain and suffering, $225,000 was awarded for loss of enjoyment of life, and $150,000 was awarded for permanent scarring and disfigurement. Upon considering the individual circumstances of this case in the light most favorable to the plaintiff, we are compelled to conclude that the jury abused its great discretion in awarding excessive general damages. We recognize that Simms’ injuries were serious. She underwent a difficult recovery period of more than a year involving multiple painful procedures and treatment for her broken bones and burn injury. Clearly, she endured significant pain and suffering during | Pj1that time. She was helpless for more than two months and dependent upon the help of others for all of her needs. However, Simms’ injuries were neither life-threatening nor permanently life-altering. As indicated by Dr. Sutton’s testimony, Simms made a good recovery and was released to do as much as she can. Simms is functional and able to work. Moreover, she is able to enjoy life with her family and friends, though at a bit slower pace than before the accident.

A survey of similar cases involving multiple injuries convinces us that though the award for pain and suffering is in the upper range of what a reasonable trier of fact could award, the amount is not so high as to constitute an abuse of the jury’s vast discretion. See Couvillion v. Shelter Mutual Ins. Co., 95-1186 (La.App. 1st Cir.4/4/96), 672 So.2d 277, wherein $245,000 awarded plaintiff with fractured tibia and fibula, fractured ribs, arm injury, and closed head injury; Gauthier v. Kansas City Southern Railroad Co., 96-529 (La.App. 3d Cir.11/6/96), 682 So.2d 993, writ denied, 96-2918 (La.1/24/97), 686 So.2d 867 and 96-2932 (La.1/24/97), 686 So.2d 868, wherein $425,000 in general damages awarded for fractures of femurs, knee, humerus, and tooth along with surgeries and other injuries; Cornish v. State, Through DOTD, 93-0194 (La.App. 1st Cir.12/1/94), 647 So.2d 1170, writ denied, 95-0547 (La.5/5/95), 654 So.2d 324, wherein plaintiff awarded $425,000 general damages for leg and hip fractures, facial lacerations, and multiple surgical procedures; and Lousteau v. K-Mart Corp., 03-1182 (La.App. 5th Cir.3/30/04), 871 So.2d 618, writ denied, 2004-1027 (La.6/25/04), 876 So.2d 835, wherein $450,000 in general Iggdamages awarded for comminuted and spiral femur fracture and knee problems.

While we do not find an abuse of discretion as to the award for pain and suffering, we do find that the jury abused its vast discretion in awarding $225,000 for loss of enjoyment of life. Loss of enjoyment of life is a compensatory element of damages recoverable upon proof that the injured party’s lifestyle was detrimentally altered or that the injured party was forced to give up activities because of his injury. Day v. Ouachita Parish School Board, 35,831 (La.App.2d Cir.8/8/02), 823 So.2d 1039, writ denied, 2002-2532 (La.12/19/02), 833 So.2d 343.

In Day, swpra, a high school freshman was awarded $50,000 for loss of enjoyment of life after a back injury rendered him unable to play high school football and baseball, adversely affected his school performance, and resulted in recurring pain that will limit his daily activities. In Horton v. McCrary, 620 So.2d 918 (La.App. 3d Cir.1993), aff'd in part, rev’d in part, 635 So.2d 199 (La.1994), the plaintiff was awarded $50,000 for loss of enjoyment of life due to a left femur fracture which caused him to lose a potential professional baseball career. Similarly, an award of $50,000 for loss of enjoyment of life was affirmed in Levy v. Bayou Indus. Maintenance Services, Inc., 2003-0037 (La.App. 1st Cir.9/26/03), 855 So.2d 968, for a plaintiff who lost independence and the ability to maintain the same high level of activity enjoyed prior to her injury. An award of $45,000 was affirmed in Matos v. Clarendon Nat. Ins. Co., 2000-2814 (La.App. 1st Cir.2/15/02), 808 So.2d 841, for a plaintiff in the prime of his life whose ^disabling back injuries deprived him of enjoying activities with his young child and foreclosed his participation in outdoors recreational activities.

Higher awards have been made in cases where the plaintiffs have sustained severe disabling conditions or injuries that impacted their ability to return to work. See Bourgeois v. McDonald, 622 So.2d 684 (La.App. 4th Cir.1993), writ denied, 629 So.2d 1177 (La.1993); Rivere v. Union Pacific Railroad Co., 93-1132 (La.App. 1st Cir.10/7/94), 647 So.2d 1140, writ denied, 95-0292 (La.3/24/95), 651 So.2d 295; and Cortez v. Zurich Ins. Co., 98-2059 (La. App. 1st Cir.12/28/99), 752 So.2d 957.

The record establishes that Simms’ recovery restricted her lifestyle for at least a year. However, the record also establishes minimal long-term impact on her ability to enjoy life. Although she complains of some recurring pain, particularly when sitting or walking for long periods, she has been able to resume her regular life activities. We find that the highest award reasonably within the trier of fact’s discretion for Simms’ loss of enjoyment of life is fifty-thousand dollars ($50,000).

We also find that the award of $150,000 for scarring and disfigurement was abusively high. In Morris v. Flores, 36,932 (La.App.2d Cir.3/7/03), 840 So.2d 1257, the plaintiff was awarded $25,000 for facial scarring along with other injuries. Total general damages of $35,000 were awarded in De Los Reyes v. USAA Cas. Ins. Co., 28,491 (La.App.2d Cir.6/26/96), 677 So.2d 668, to a plaintiff with significant scars on her leg and foot, lacerations, lumbar strain, and a neck injury. On the lower end, an award of $12,000 for bad scarring and disfigurement was granted to a plane l^crash victim in Marien v. Gen. Ins. Co. of America, 2002-545 (La.App.3d Cir.12/11/02), 836 So.2d 239, writ not considered, 2003-0578 (La.5/9/03), 843 So.2d 384, and writ denied, 2003-0474 (La.5/9/03), 843 So.2d 396 and 2003-0513 (La.5/9/03), 843 So.2d 397. A lower award of $5,000 for permanent scarring and discoloration from a leg injury was granted in Ludwig v. Jefferson Performing Arts Society, 98-48 (La.App. 5th Cir.1/25/00), 802 So.2d 655. Based on our consideration of the record and review of cases, we find that the highest award reasonably within the trier of fact’s discretion for the scarring of Simms’ forearm, hip, and leg to be $25,000.

Finally, we turn to the award of $103,000 to Sidney Simms for loss of consortium. An award of loss of consortium is made to compensate the claimant for loss of love and affection, loss of society and companionship, impairment of sexual relations, loss of performance of material services, loss of financial support, loss of aid and assistance, and loss of fidelity. Etheredge v. St. Paul Mercury Ins. Co., 35,832 (La.App.2d Cir.4/3/02), 814 So.2d 119. Sidney Simms’ testified about the care he gave his wife during her recuperation and recovery from her injuries. During the two months she was bedridden and during her long recovery, Mr. Simms helped to care for his wife. He missed fifteen days of work. Once he began working, he returned home to take care of the chores that his wife had ordinarily done. He testified that their life slowed down considerably after the accident. Initially, Sara could not leave the house because of her injuries, and she was later embarrassed about her arm and leg. Mr. Simms Lsalso testified that their romantic life considerably changed. Finally, he claimed that their plans to travel after retirement are on hold, since Sara can only ride in a vehicle for short periods of time.

Clearly, Mr. Simms’s testimony shows some basis for an award for loss of consortium. During Sara’s recovery, he was without the services, assistance, and personal companionship she normally provided. However, there was no indication of marital strain due to Sara’s condition. The testimony simply does not establish a reasonable basis for an award of $103,000. Such awards are generally made in instances where there is severe marital strain due to the serious, life-changing, or disabling nature of the injuries suffered. See Laing v. American Honda Motor Co., Inc., 628 So.2d 196 (La.App. 2d Cir.1993), writ denied, 94-0375 (La.3/25/94), 635 So.2d 239; Whiddon v. Hutchinson, 94-2000 (La.App. 1st Cir.2/23/96), 668 So.2d 1368, writ denied, 96-0731 and 96-0775 (La.5/10/96), 672 So.2d 923; and Castay v. ADM Groumark River Systems, Inc., 00-1489 (La.App. 5th Cir.3/14/01), 785 So.2d 47, writ denied, 2001-1058 (La.6/1/01), 793 So.2d 196 and 2001-1079 (La.6/1/01), 793 So.2d 199.

Based on this record, we find the highest award reasonably within the jury’s discretion to be $35,000 for the loss of consortium suffered by Mr. Simms. See Beckham v. St. Paul Fire & Marine Ins., 614 So.2d 760 (La.App. 2d Cir.1993), awarding $35,000 to husband who cleaned burn wounds and did chores for wife recovering from burns and surgery; and Sevario v. State, DOTD, 98-2250 (La.App. 1st Cir.11/10/99), 752 So.2d 221, writ denied, 99-3457 (La.4/7/00), 759 So.2d 760, and writ not considered, 99-g6382B (La.4/7/00), 759 So.2d 81 and 2000-0044 (La.4/7/00), 759 So.2d 82, awarding $35,000 to husband whose wife underwent multiple surgeries for pelvic, femur, and foot fractures.

Correction of Judgment

Finally, appellants seek to have the judgment corrected to reflect the policy limits under Progressive’s policy, which provided liability coverage to Williamson in the amount of $250,000. We decline to amend the judgment as requested. The record shows that plaintiffs’ counsel approved the judgment. No correction was sought in the trial court. Accordingly, we find no basis for correction by this court.

CONCLUSION

For the reasons stated, we affirm the judgment of the trial court in accordance with the jury’s verdict apportioning 55% of the fault to Williamson and 45% of the fault to Simms. However, the award of damages is amended to reflect an award for loss of enjoyment of life in the amount of $50,000, and an award for permanent scarring and disfigurement in the amount of $25,000. Accordingly, Simms is awarded total general damages in the amount of $510,000, subject to reduction by her percentage of fault. The judgment is also amended to reflect Sidney Simms’ award for loss of consortium in the amount of $35,000, subject to reduction by Sara Simms’ percentage of fault. Costs are assessed between the parties in accordance with their percentage of fault.

AMENDED IN PART AND AFFIRMED, AS AMENDED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, PEATROSS, and LOLLEY, JJ.

Rehearing denied.


source: Caselaw Access Project

author: hOSWALD A. DECUIR, Judge.

license: Public Domain

text:
    Kevin GOODBEIR v. CASTILLE MARBLE & GRANITE.
    No. 04-272.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellant, Kevin Goodbeir.
    Debra Talbot Parker, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendant/Appellee, Castille Marble & Granite.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLIE COLOMBARO WOODARD and OSWALD A. DECUIR, Judges.
   hOSWALD A. DECUIR, Judge.

In this workers’ compensation case, the claimant appeals from a judgment denying compensation benefits based on the failure to establish an on-the-job injury. For the reasons that follow, we affirm.

FACTS

On or about August 22, 2002, Kevin Goodbeir (a/k/a Kevin Thibeaux) was employed as a laborer for Castille Marble & Granite. On that date, Goodbeir and three co-workers were unloading an electrical box from a truck. For reasons that are unclear, the box dropped to the ground. Goodbeir alleges that the box struck him and knocked him down onto some scrap lumber injuring his neck, shoulder and back.

Goodbeir’s co-employees testified to the box falling but none could confirm that Goodbeir suffered an injury. Instead they testified that he continued to work until he was laid off two weeks later. Goodbeir claims that the employer put him on light-duty during that period, but the employer denies doing so.

After he was laid off, Goodbeir sought unemployment benefits and began treatment at the Sylvester Chiropractic Clinic for his back. Goodbeir denied that he had a preexisting back problem but the medical evidence showed a twelve year history of back problems. Subsequent to retaining counsel, Goodbeir sought treatment with Dr. Michael Heard. Dr. Heard diagnosed Goodbeir with “subjective neck pain, low back pain with radiculitis.”

After a hearing, the workers’ compensation judge found that Goodbeir had failed to establish the existence of a work-related accident and injury and, therefore, was not entitled to compensation benefits. Good-beir lodged this appeal, alleging error on the part of the workers’ compensation judge in denying benefits, denying penalties and attorney fees, and admitting evidence of misdemeanor convictions and felony convictions older than ten years.

| ¡ADMISSION OF PRIOR CONVICTIONS

Goodbeir first contends that the workers’ compensation judge erred in admitting evidence of his misdemeanor convictions and felony convictions over ten years old to attack his credibility. Louisiana Code of Evidence Article 609 specifically precludes the admission of the names of such convictions in civil cases unless the crime “[ijnvolved dishonesty or false statement.” See Smith v. Two R Drilling Co., Inc. 606 So.2d 804 (La.App. 4 Cir.), writ denied, 607 So.2d 560 (La.1992); Williams v. United Fire and Cas. Co., 594 So.2d 455 (La.App. 1 Cir.1991). Accordingly, we find the workers’ compensation judge erred in admitting evidence of these crimes for the purpose of attacking Goodbeir’s credibility. However, in this case we find the error to be harmless because Goodbeir was incarcerated for a portion of the period for which he sought benefits. Therefore, evidence that he had a criminal history was before the court to establish the period for which he was legally entitled to benefits.

WORK-RELATED INJURY

Goodbeir next contends that the workers’ compensation judge erred in finding that he failed to establish a work-related injury. We disagree.

The claimant seeking workers’ compensation benefits must prove by a preponderance of the evidence that she was injured in an accident in the course and scope of her employment. Burns v. Beauregard Nursing Ctr., 94-131 (La.App. 3 Cir. 10/5/94), 643 So.2d 443. In addition, the claimant must also establish a causal link between the accident and the subsequent disabling condition. Marks v. 84 Lumber Co., 00-00322 (La.App. 3 Cir. 10/11/00), 771 So.2d 751. If the evidence leaves the probabilities of causation equally balanced, the claimant has failed to carry her | .¡burden of proof. Bernard v. O’Leary Bros. Signs, Inc., 606 So.2d 1331 (La.App. 3 Cir.1992).

The trial court’s determinations with regard to the credibility of witnesses and the discharge of the claimant’s burden of proof are factual issues and should not be disturbed on appeal in the absence of manifest error. Bruno v. Harbert Int'l, Inc., 593 So.2d 357 (La.1992). The workers’ compensation judge’s assessments of the weight of the medical evidence are not to be disturbed unless clearly wrong. Chambers v. Louisiana Pacific Mfg., Inc., 97-1188 (La.App. 3 Cir. 4/22/98), 712 So.2d 608. Furthermore, where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed unless manifestly erroneous. Novak v. Texada, Miller, Masterson & Davis Clinic, 514 So.2d 524 (La.App. 3 Cir.), writ denied, 515 So.2d 807 (La.1987).

In this case, everything but the fact that the electrical box fell off the truck is disputed. In his oral reasons for judgment, the workers’ compensation judge specifically noted that his determination was based on credibility. After reviewing the record, we cannot say the findings of the workers’ compensation judge are manifestly erroneous or clearly wrong. Accordingly, this assignment has no merit. Having found that Goodbeir did not establish a work-related accident, we need not address the remaining assignment regarding penalties and attorney fees.

DECREE

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. All costs of these proceedings are taxed to the claimant, Kevin Goodbeir.

AFFIRMED.


author: hDECUIR, Judge.

text:
    Virgie DEJEAN v. ADMINISTRATOR, OFFICE OF EMPLOYMENT SECURITY, et al.
    No. 04-327.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.
    Gregory L. Landry, Jeffrey Reay Huggins, Acadiana Legal Service Corporation, Lafayette, LA, for Plaintiff/Appellant: Virgie Dejean.

      J. Jerome Burden, Department of Labor, Baton Rouge, LA, for Defendant/Ap-pellee: Louisiana Department of Labor, Office of Employment Security.
    James P. Doherty, Jr., Andrus & Doherty, Opelousas, LA, for Defendant/Appellee: Opelousas General Hospital.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLIE COLOMBARO WOODARD and OSWALD A. DECUIR, Judges.
   hDECUIR, Judge.

The appellant, Virgie Dejean, appeals the trial court’s affirmation of a decision of the Board of Review for the Office of Employment Security, denying her unemployment compensation benefits.

FACTS

Dejean worked as a unit clerk in the Emergency Room at Opelousas General Hospital. She worked for the hospital for nineteen years.

On May 4, 2003, she greeted a patient with jaw pain and difficulty speaking. She suspected an adverse drug reaction and asked the patient if she had taken anything. The patient denied having taken anything. Still believing the patient was having a drug reaction, she asked again about drug usage. The patient again denied taking anything. Nevertheless, Deje-an reported an adverse drug reaction to the duty nurse. The patient’s daughter was angered by the suggestion that her mother was using drugs and filed a complaint. Opelousas General subsequently terminated Dejean’s employment.

Following her termination, Dejean applied for unemployment compensation benefits. The Office of Employment Security denied her benefits after concluding that she had been terminated for misconduct. At the hearing, only Dejean appeared. Opelousas General mailed copies of Deje-an’s personnel record that purported to show prior instances of similar misconduct. The administrative law judge found that Dejean had been properly terminated for misconduct and denied benefits. The decision of the administrative law judge was affirmed by the Louisiana Board of Review. The decisions of the administrative law judge and the Board of Review were then affirmed by the Twenty-seventh Judicial District Court, Parish of St. Landry.

Dejean contends on appeal that: (1) the administrative ruling was not supported by legally sufficient and competent evidence; and, in the alternative that U(2) her conduct did not rise to the level of disqualifying misconduct. We note that the Louisiana Department of Labor, an appellee, filed a brief in support of Dejean’s contention in both this court and the court below. Opelousas General asks that the lower court judgment be affirmed.

DISCUSSION

Dejean first contends that the ruling of the administrative law judge is not supported by legally competent evidence in that only hearsay was offered to prove misconduct by Dejean. We agree.

In Barber v. Administrator, Office of Employment Sec., 95-770, pp. 2-3 (La. App. 3 Cir. 12/6/95), 664 So.2d 844, 846-47, we discussed this same issue as follows:

Under the provisions of La.R.S. 23:1634(B), our judicial review must be confined to questions of law. The findings of fact of the Board of Review are conclusive if supported by sufficient evidence and in the absence of fraud. Cox v. Lockwood, 373 So.2d 246 (La.App. 4 Cir.1979). While our review does not entail the weighing of evidence, drawing of inferences, re-evaluation of evidence or substituting the views of this court for those of the Board of Review as to the correctness of the facts, there must be legal and competent evidence to support the factual findings on which the administrative determination turns. Banks v. Administrator of Dept. of Employment, 393 So.2d 696 (La.1981). The burden of proof rests with the employer to prove misconduct and, at the administrative law judge level, that burden is not overcome by hearsay evidence or ex parte statements. Weatherly Labs. v. Adm’r, Office Emp. Sec., 94-317 (La. App. 3 Cir. 11/2/94), 649 So.2d 623.
As this court has previously noted, “Commencing with Lee v. Brown, 148 So.2d 321 (La.App. 3rd Cir.1962), it has been consistently held that although hearsay is admissible in an administrative hearing, it cannot be considered competent evidence and cannot be used in determining whether findings of the Board of Review are supported by “sufficient evidence” as required by statute.” Schlesinger v. Administrator of Office Employment Sec. Dept. of Labor, 583 So.2d 100 (La.App. 3 Cir.1991).

Opelousas General did not appear at the hearing and only submitted copies of Deje-an’s personnel records as evidence. These records are considered hearsay | ¡¡because no custodian of the records or other qualified witness of the employer testified. See La.Code Evid. art. 803(6). Accordingly, we find that no competent legal evidence supporting a finding of misconduct was introduced at the hearing. Therefore, Opelousas General failed to carry its burden of proof. The district court erred in affirming the findings of the administrative law judge and the Louisiana Review Board. This conclusion being dispositive, we need not address Dejean’s remaining assignment.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. All costs of these proceedings are taxed to Opelousas General Hospital.

REVERSED.


author: 11 SULLIVAN, Judge.

text:
    Eugene WELLS v. DUNHAM PRICE, INC.
    No. 04-209.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Scott J. Pias, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Eugene Wells.
    David S. Pittman, Rabalais, Unland & Lorio, Covington, LA, for Defendant/Appellant, Dunham Price, Inc.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   11 SULLIVAN, Judge.

Dunham Price, Inc. appeals an award of workers’ compensation benefits in favor of Eugene Wells. For the following reasons, we affirm.

Procedural History

This litigation stems from Mr. Wells’ allegation that he sustained a work-related accident on September 8, 1999, while driving a cement truck for Dunham Price. Dunham Price initially filed a disputed claim, contending that Mr. Wells did not suffer a work-related accident and/or that any injury or disability was not causally related to his employment. Mr. Wells subsequently filed his own disputed claim, seeking indemnity benefits, medical expenses, penalties, and attorney fees.

Dunham Price then filed a motion for summary judgment, which the workers’ compensation judge (WCJ) denied. However, in that judgment, the WCJ also awarded Mr. Wells medical and indemnity benefits. Upon Dunham Price’s appeal, we affirmed the denial of summary judgment, but we reversed the award of benefits as premature and remanded for trial on the merits. Dunham Price, Inc. v. Wells, 01-712, 01-713 (La.App. 3 Cir. 10/31/01), 799 So.2d 828. On remand after a trial, WCJ Constance Abraham-Handy ruled against Mr. Wells. On appeal of that judgment, this court, in an unpublished ruling, again remanded, ordering a new trial because the record could not be completed due to the deaths of both the WCJ and the court reporter. Wells v. Dunham Price, Inc., 02-960 (La.App. 3 Cir. 8/20/02). After a second trial, WCJ Sam Lowery awarded Mr. Wells medical and indemnity benefits, but denied his claim for penalties and attorney fees. This is the judgment that is the subject of the present appeal.

1 ¡.Discussion of the Record

At the second trial, Mr. Wells testified that, while driving a cement truck through rough terrain on September 8, 1999, his seat “bottomed out” after he struck something in the road. He described the immediate onset of a sharp, burning pain that shot down his left leg all the way to his foot. He also explained that, because he was in so much pain, he could barely continue driving and that, when he reached his destination, he had to ask another driver, Thomas Hockman, to unload his truck. Mr. Hockman confirmed that the drive had been over rough terrain and that he did unload Mr. Wells’ truck for him. Mr. Hockman testified that Mr. Wells did not state that he had been in an accident while driving, but it appeared to Mr. Hockman that Mr. Wells was hurt.

According to Mr. Wells, he reported the incident that day to the dispatcher, David Joshlyn (who was not called to testify), and later to the office manager, Melanie Conner. Mr. Wells remained off work for seven weeks, then he returned to work at light duty through February 26, 2000, when his pain prevented him from working any more. He was diagnosed with a herniated disc and underwent surgery in April of 2000. He returned to work full time for another company on May 5, 2001.

John Ardoin, the truck foreman, testified that other employees informed him that Mr. Wells had left work on September 8, 1999, because his back was hurting. Mr. Ardoin stated that he next saw Mr. Wells about a week later, when Mr. Wells asked him to file a workers’ compensation claim. Mr. Ardoin testified that he told Mr. Wells he would not file a claim because more than seventy-two hours had passed since the alleged accident and, further, that Mr. Wells told him he was not injured at |3work. Mr. Ardoin stated that Mr. Wells had complained of back problems in the past and that he had previously provided Mr. Wells with a support belt.

Ms. Conner, the office manager, testified that Mr. Wells asked her to file a workers’ compensation claim sometime between November of 1999 and February of 2000. She explained that she refused his request because he did not have a “specific injury” and that she told him he should use his health insurance for his medical expenses. Ms. Conner testified that she believed Mr. Wells was working at his home because she knew of concrete tickets showing deliveries at his address on days when he had called in sick. Ms. Conner also testified that she later prepared a report stating that Mr. Wells told her he was not injured at work, but she did not know where that report was at the time of trial. Called to the stand on rebuttal, Mr. Wells testified that his grandson did all of the concrete work at his home and that he did not say that his injury was not work-related.

Mr. Wells was treated by Dr. Randall Wagman on September 8, 1999 for complaints of low back pain and pain in the left buttock. Dr. Wagman’s records contain the notation, “pain in lower back x 1% weeks.” An MRI of September 14, 1999 revealed a “large herniated disc fragment” at L5-S1, with degenerative disc disease and diffuse bulging without herniation from L2-3 to L4-5. Dr. Wagman referred Mr. Wells to an orthopedic surgeon, Dr. Dale Bernauer, who performed a lumbar laminectomy, discectomy, and fusion on April 25, 2000. On March 27, 2000, Dr. Bernauer issued a letter stating, “[Mr. Wells] has a disc protrusion with extrusion of disc at L5-S1. This gentleman has a long history of driving a cement truck. This certainly could be a contributing cause for his disc herniation.”

|4At trial, Mr. Wells testified that he had been previously seen by other physicians for back problems. On cross-examination, he acknowledged that he had been seen by Dr. Cormier, a chiropractor, for low back pain with leg pain on May 15, 1995 and on January 4, 1999, and by Dr. Lebato, of Sulphur, Louisiana, for “lower back pain going down to leg (left side)” on January 8, 1999. He also testified that he underwent a lumbar MRI in January of 1999. However, the MRI results and the records of Drs. Cormier and Lebato were not introduced into evidence.

Ruling in favor of Mr. Wells, the WCJ stated that his judgment was based upon credibility determinations as well as a presumption of causation. On appeal, Dun-ham Price argues that the WCJ erred (1) in finding that Mr. Wells sustained an accident in the course and scope of his employment; (2) in awarding temporary total disability benefits in the absence of clear and convincing evidence; (3) in finding that Mr. Wells’ medical problems were caused by a work-related accident; and (4) in rejecting its claim for forfeiture of benefits under La.R.S. 23:1208.

Temporary Total Disability Benefits

Dunham Price argues that Mr. Wells failed to prove that he sustained an accident, that he suffered a work-related injury, and that he is entitled to temporary total disability benefits by clear and convincing evidence. Dunham Price further argues that we should review this case de novo because the WCJ improperly applied a presumption of causation in favor of Mr. Wells.

To recover workers’ compensation benefits, a claimant must establish a “personal injury by accident arising out of and in the course of his employment.” La.R.S. 23:1031(A). An “accident” is defined in La.R.S. 23:1021(1) as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly 1 fior violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” The claimant bears the burden of establishing a work-related accident by a preponderance of the evidence. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992); Douglas v. Grey Wolf Drilling Co., 03-515 (La.App. 3 Cir. 11/5/03), 858 So.2d 830. Where, as in the present case, the alleged accident is unwit-nessed:

[a] worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence.

Bruno, 593 So.2d at 361 (citations omitted).

The claimant must also establish a causal link between the work-related accident and the claimed disability. Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320 (La.1985). A claimant with a pre-existing disease or infirmity is not disqualified from receiving benefits if he can prove that the workplace accident aggravated, accelerated, or combined with the pre-existing condition to produce the claimed disability. Tate v. Cabot Corp., 01-1652 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, unit denied, 02-2150 (La.11/22/02), 829 So.2d 1044. “Thus, the element of causation is satisfied if the employee’s work-related accident was a factor in bringing about the employee’s disabled status.” Id. at 461 (quoting Rideaux v. Franklin Nursing Home, 95-240, p. 5 (La. App. 3 Cir. 11/22/95), 664 So.2d 750, 755, writ denied, 95-3093 (La.2/16/96), 667 So.2d 1058). Further:

[t]he employee’s workplace accident is presumed to have caused or aggravated [his] disability when [he] proves that: (1) before the accident, [he] had not manifested disabling symptoms; (2) commencing | fiwith the accident, the disabling symptoms appeared; and (3) there is medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and activation of the disabling condition. Once an employee establishes the presumption of a casual relationship, the employer must produce evidence and persuade the trier of fact that it is more probable than not that the injury was not caused by the work accident.

Id.

We will consider Dunham Price’s argument concerning causation first, as its outcome could affect the standard of review applied. Factual findings in a workers’ compensation case are governed by the manifest error standard of review, which requires only that the appellate court determine that the fact finder’s conclusions were reasonable. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. However, where one or more legal errors interdict the fact-finding process, the reviewing court should conduct a de novo assessment of the record. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502.

Dunham Price argues that the WCJ erred in applying a presumption of causation, given Dr. Wagman’s medical records indicating that Mr. Wells reported back pain “x 1 weeks” on September 8, 1999 and Mr. Wells’ admission that he had previously seen a chiropractor as late as January of 1999 for back pain and left leg pain. Noting the scarcity of the medical information in the record, the WCJ stated: “This boils down to credibility. It just gets down to being able to sit and look at somebody and being able to decide who’s telling the truth.” The WCJ then specifically found Mr. Wells’ explanation of being injured while driving the cement truck to be credible. The record before the WCJ also included Mr. Wells’ testimony that the pain he felt while driving the truck was “totally different” than before in that “it was mainly all the way down to my foot this time,” as well as Mr. Wells’ 17immediate inability to return to work for seven weeks. Although Dunham Price points to Mr. Wells’ admission that he had previously seen a chiropractor for back and leg pain, those medical records were not introduced at trial, making it impossible for us to evaluate the severity of the previous complaints. On this record, we find no eiTor in the WCJ’s decision to apply a presumption of causation, and in his implicit conclusion that Defendant failed to rebut that presumption.

Concerning the facts of the accident, we note the corroboration provided by the co-worker, Mr. Hockman, who testified that he had to unload Mr. Wells’ truck for him and that Mr. Wells appeared to be hurt upon arriving at his destination. We also note Mr. Wells’ two unsuccessful attempts to report the accident, the first to Mr. Ardoin a week later and the second to Ms. Connor either on the telephone in September 1999 or between November 1999 and February 2000. Although Mr. Ardoin and Ms. Conner both testified that Mr. Wells told them he was injured elsewhere, Ms. Connor admitted she could not locate a report she prepared memorializing that conversation. In Douglas, 858 So.2d 830, this court found no error in the WCJ’s conclusion that the claimant sustained an unwitnessed accident, notwithstanding inconsistencies in the medical records and the testimony of two co-workers that the claimant had reported to them that his injuries were not work-related. We likewise find no error in the present case, given the WCJ’s specific reliance on credibility evaluations.

Concerning disability, we note that the extent of Mr. Wells’ injury was not seriously disputed at trial. An MRI taken one week after the accident revealed a “large herniated disc fragment” at L5-Sl, and Mr. Wells underwent a laminecto-my, with discectomy and fusion, on April 25, 2000. We find no error in the WCJ’s Isconclusion that Mr. Wells proved his disability during the months he was off work by clear and convincing evidence as required by La.R.S. 23:1221(1)(e).

Forfeiture of Benefits

Dunham Price next argues that the WCJ should have found that Mr. Wells violated La.R.S. 23:1208, contending that he made a “myriad of false statements” in furtherance of his claim. Specifically, Dunham Price argues that Mr. Wells’ testimony that he injured himself at work is untrue, given the inconsistencies in medical records and the testimony of Mr. Ar-doin and Ms. Conner that Mr. Wells told them he had not injured himself at work.

In Douglas, 858 So.2d at 836, we discussed La.R.S. 23:1208 as follows:

Louisiana Revised Statutes 23:1208(A) provides, in part: “It shall be unlawful for any person, for the purpose of obtaining ... any benefit or payment under the provisions of this Chapter ... to willfully make a false statement or representation.”

“The only requirements for forfeiture of benefits under Section 1208 are 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, 94-3138, p. 7 (La.9/5/95), 660 So.2d 7, 12. However, because statutory forfeiture is a harsh remedy, it 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.

We find no error in the WCJ’s conclusion that Mr. Wells did not commit fraud. Mr. Wells admitted his prior back problems in his deposition, at trial, and in a post-hire questionnaire. A co-worker, Mr. Hockman, provided corroboration as to the events immediately following the accident. The disputed testimony concerns whether |9Mr. Wells told Mr. Ardoin and Ms. Con-nor that he did not injure himself at work. Considering the WCJ’s credibility determinations and Ms. Connor’s admission that she could not locate a document memorializing that conversation, we cannot conclude that the WCJ erred.

Decree

For the above reasons, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to Defendant-Appellant, Dunham Price, Inc.

AFFIRMED.


author: JjPETERS, J.

text:
    Jack MANUEL v. NORTHROP-GRUMMAN.
    No. 2004-0480.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Mark Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Jack Manuel.
    James J. Hautot, Judice & Adley, Lafayette, LA, for Defendant/Appellant, Northrop-Grumman.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.
   MEMORANDUM OPINION

JjPETERS, J.

Northrop-Grumman (Northrop) appeals a judgment awarding its employee, Jack Manuel, workers’ compensation benefits in connection with Mr. Manuel’s mental/mental claim. For the following reasons, we reverse.

Specifically, Mr. Manuel filed a claim for workers’ compensation benefits as well as penalties and attorney fees for “[mjental stress from senseless harranguing [sic] to sign off on time worked that wasn’t accurate.” Northrop disputed the claim and never paid any indemnity or medical benefits. Following a hearing on the merits, the workers’ compensation judge (WCJ) awarded Mr. Manuel temporary total disability benefits and medical benefits but declined to award penalties and attorney fees.

In support of the judgment, the WCJ gave the following reasons in part:

In this case, the claimant testified and [Jack] Abbott, the manager at Northrop Grumman. The claimant’s undisputed evidence is that he was approached several days about time sheets which had been changed, apparently by his supervisor. This supervisor had been reprimanded for the changes that were made to the time sheet; and while the initial incident occurred in April or May, the straw that broke the camel’s back, I suppose, occurred in January of 2003. The employer representative, Mr. Abbott, surprisingly didn’t have a lot of information to provide to the court. However, Mr. Abbott went so far as to call the claimant in to tell him that Human Resources would be taking a look at this issue of the time sheet change but that he shouldn’t get excited, and I think the Human Resources person that was to talk with the claimant was Mr. Jay Bradford....
The claimant testified that he had several meetings with Mr. Bradford and disputably has with Mr. Abbott wherein there were several discussions about this time sheet incident and that claimant was somehow ordered or directed to approve the time sheets. The claimant indicated he was told to either approve or disapprove and he said — he simply did not agree with the time sheets.
The claimant was ultimately hospitalized on January 29, 2003. The claimant said that his problems began on January 20, 2003, when Mr. Abbott took him into his office, sat him down and told him he needed to approve the documents. The claimant went to the nurse who |2took his blood pressure and it was high. He ultimately went over to Memorial Hospital. The claimant testified he feared he was about to lose his job.
While the court believes the case ... was blown grossly out of proportion, it does not change the fact that there is medical evidence to show that he had a psychological effect. The activities had a psychological effect on the claimant and, therefore, the court finds that this was a sudden, unexpected, or extraordinary stress for a period of days that escalated to claimant’s reaction on January 29, where he had to be ... taken to the hospital. As a result, the court finds that the claimant has proven by clear and convincing evidence that he suffered mental/mental injury.

(Emphasis added.)

Louisiana Revised Statutes 23:1021(7)(b) provides:

Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.

The record supports that Mr. Manuel did suffer a mental injury as a result of the job stress at issue. However, in Partin v. Merchants & Farmers Bank, 01-1560, p. 12 (La.3/11/02), 810 So.2d 1118, 1125, the supreme court explained that La.R.S. 23:1021(7)(b) “is not so much a definition of mental injury as it is a definition of compensable mental injury.” Importantly, “a mental injury is compensable depending upon the type of stress which triggers that injury.” Id. (emphasis added). Specifically, “the legislature intended that the nature of the stress itself be evaluated, rather than the stress being evaluated from the employee’s perspective.” Id. (emphasis added). As pointed out by the supreme court, “[i]f the stress were evaluated from the employee’s perspective, much wider recovery would result under subsection (7)(b) because nearly every employee would consider extraordinary a stress that caused him mental injury.” Id. The supreme court concluded that “the | «legislature intended to restrict recovery under subsection (7)(b) to those mental injuries that result from stresses which, by their nature, are sudden, unexpected, and extraordinary in the usual course of employment in that working environment.” Id.

In the instant case, the record supports that changes were made to Mr. Manuel’s time sheets. According to Mr. Manuel, for several days either Jack Abbott, a Northrop manager, or Jay Bradford, a Northrop human resource customer service representative, attempted to have him approve the time sheets with the changes. Mr. Manuel testified that he requested that an auditor be brought in to explain the changes on the time sheets to him but that his request was refused. Concerned that the changes were fraudulent, Mr. Manuel refused to approve the time sheets. Finally, Mr. Bradford told Mr. Manuel to write on the time sheets that he would not approve the changes. Mr. Manuel refused to write that he would not approve the changes but stated that he would instead write that he was in disagreement with the changes in accordance with his understanding of company policy. Mr. Bradford finally allowed Mr. Manuel to write that he was in disagreement with the changes. Then, according to Mr. Manuel, Mr. Bradford “slammed the top cover” of the stack of time sheets, hollered at him, and stormed off. Mr. Manuel testified that Mr. Bradford stated: “I’m through with you. I’m going to ton this over to the management. I’m going to let them deal with you.” At that point, Mr. Manuel feared that he would lose his job and began experiencing symptoms that resulted in his having to be taken to the hospital. Mr. Manuel admitted that no adverse job action has been taken against him.

As set forth above, the WCJ found that “the case ... was blown grossly out of proportion.” Thus, it is apparent that the WCJ found that the stress itself was not sudden, unexpected, and extraordinary in the usual course of employment. The | ¿record supports that Mr. Bradford was very unprofessional in the way he handled the situation, which resulted in Mr. Manuel fearing for his job. However, while unprofessional, Mr. Bradford’s conduct was not sudden, unexpected, and extraordinary in the usual course of employment. As stated in Partin, “[a] personnel action is not necessarily extraordinary because it is unfair from the employee’s point of view.” Id. at 1126. Nevertheless, the WCJ found Mr. Manuel’s claim compensa-ble because the stress “had a psychological effect on the claimant.” In accordance with Partin, the mere presence of a mental injury is insufficient to render a claim compensable. Thus, the WCJ erred in finding Mr. Manuel’s claim compensable, and we reverse.

DISPOSITION

For the foregoing reasons, we reverse the judgment below in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.1(B), and we assess costs of this appeal to Jack Manuel.

REVERSED.


author: JjTHIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Robert Thomas SMITH.
    No. 2004-338.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      James C. Downs, District Attorney— Ninth Judicial District Court, Michael W. Shannon, Assistant District Attorney, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    Karen G. Arena, Louisiana Appellate Project, Metairie, LA, for Defendant/Appellant, Robert Thomas Smith.
    Robert Thomas Smith, Louisiana State Penitentiary, Angola, LA, Pro Se.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., BILLIE COLOMBARO WOODARD, and OSWALD A. DECUIR, Judges.
   JjTHIBODEAUX, Chief Judge.

The Defendant, Robert Thomas Smith, pled guilty to manslaughter and aggravated robbery charges with an agreed-upon sentencing cap of sixty years for both charges. He reserved his right to appeal on grounds of excessive sentence. After being sentenced to consecutive terms of forty years at hard labor for manslaughter and twenty years at hard labor for aggravated robbery, the Defendant appeals his convictions and sentences.

Because the crime of aggravated robbery was nonexistent at the time of the commission of the offense, we reverse the convictions and sentences. The guilty pleas are vacated and set aside and we remand to the trial court for further proceedings with the result that the parties are in the same position which they occupied prior to the plea bargain. State v. Boudreaux, 402 So.2d 629 (La.1981).

LAW AND DISCUSSION

Validity of the Guilty Plea

The Defendant contends his guilty plea is null and void because he pled to an offense that was nonexistent at the time of the commission of the offense. The charging instrument alleges that the aggravated robbery occurred October 1, 2000; however, the crime of aggravated robbery was enacted and became effective August 15, 2001, almost one year after the commission of the offense. See 2001 La. Acts No. 347 § 1.

The State asserts on appeal that the Defendant and his attorney requested that he be allowed to plead guilty to aggravated robbery because it was not defined as a crime of violence. The State claims it acquiesced and allowed the Defendant to | ¡>plead to the crime although the parties were aware that aggravated robbery was not defined as a crime at the time of commission. According to the State’s brief, defense counsel assured them that he would not raise the issue on appeal and would raise only the excessive sentence issue. The State contends it proceeded with the plea agreement based upon this reassurance. The State argues that the Defendant received what he requested and this court should uphold the plea as it is a contract between the State and the Defendant. The State suggests that this claim was waived by the Defendant at the time of his plea and that if this court sets aside the conviction and sentence for aggravated robbery, the Defendant has breached the plea bargain and the matter should be remanded to either enforce the agreement or vacate the plea.

The Defendant filed a reply brief noting that most of the State’s factual allegations are not contained in the record. Accordingly, he requests this court not consider them on appeal. Additionally, the Defendant notes that a plea bargain is unenforceable if it is entered into without a lawful cause. The Defendant also contends that his guilty plea to manslaughter should not be affected because the charge arose out of a different case number than the aggravated robbery charge.

In response to the Defendant’s reply brief, the State requested and was granted leave of court to file a second brief. In this brief, the State contends that it contacted the Defendant’s trial counsel and he acknowledged that he requested his client be allowed to plead to aggravated robbery since it was not defined as a crime of violence. Although counsel stated he contacted Defendant’s appellate counsel and apprised her of these facts, she still persisted in her request to have the factual allegations set forth by the State in its original brief stricken. Despite the State’s request that trial counsel submit an affidavit reflecting the facts surrounding the plea bargain negotiations, he refused. The State requests that the pleas should be upheld |3and if this court determines the record is insufficient, that the case should be remanded for an evidentiary hearing for trial counsel to testify to these facts.

Jurisprudence exists which, although not directly on point, lends guidance on this issue. In State v. Alfred, 95-76 (La.App. 3 Cir. 5/3/95), 657 So.2d 116, the defendant pled no contest to a crime she could not have committed. Criminal abandonment, the crime to which the defendant pled no contest, requires that the abandoned child be under the age of ten. The charges in the bill of indictment did not state facts sufficient to charge the crime of criminal abandonment. Thus, this court recognized as error patent that the defendant legally could not have committed the offense to which she pled no contest and it reversed her convictions and sentences for criminal abandonment. Additionally, because Alfred’s guilty plea to the charge of second degree battery was part of the plea agreement with the charge of criminal abandonment, a crime the trial court had no authority to accept, this court found the plea to that charge was also invalid.

Similar action was taken by this court in State v. Presley, 99-802 (La.App. 3 Cir. 3/1/00), 758 So.2d 308. In Presley, this court discovered an error patent in the defendant’s guilty plea. Pursuant to a plea agreement, the defendant pled guilty to aggravated criminal damage to property and attempted assault by drive-by shooting, an offense which is not a recognized offense under Louisiana law. Thus, this court vacated the plea and set aside the convictions and sentences. The case was remanded for further proceedings with the instructions that the defendant had the option of either pleading guilty or proceeding to trial on the charged offenses and if he chose to plead guilty, the sentence imposed should be no greater than the original sentence.

iJn State v. Holmes, 03-177 (La.App. 3 Cir. 2/18/04), 866 So.2d 406, the defendant pled guilty to two counts of obscenity. On review of the denial of a post-conviction relief application, he alleged that his plea to one of the charges was invalid because the crime did not exist. At the time of the commission of the offense, one of the essential elements of the crime of obscenity was that the conduct occur in a public place or place open to public view. Within hours after the commission of the offense, the language of the statute was expanded by the legislature to encompass proscribed conduct occurring “in any prison or jail.” Since the conduct at issue in the case occurred in the jail shower, the amended language criminalized the defendant’s actions. The defendant argued that the application of the amended statute to his case constituted ex post facto application of law. This court determined that a prison shower was not a “place open to the public view” and that the defendant’s conduct did not constitute obscenity under the law as it existed at the time of the commission of the offense. Thus, this court reversed the defendant’s conviction and sentence for that charge.

The foregoing cases indicate the Defendant’s pleas should be vacated, but they do not discuss whether such an error may be waived, as alleged by the State. In Alfred, this court characterized a similar error, one in which the defendant legally could not commit the charged crime, as a jurisdictional defect. Such a defect cannot be waived by the entry of a guilty plea. The supreme court has stated:

[E]ven an un qualified plea of guilty does not preclude review of what are regarded as “jurisdictional” defects— those which, even conceding the accused’s factual guilt, do not permit his conviction of the offense charged. These include, for example: the lack of jurisdiction of the sentencing court, La. C.Cr.P. art. 362(1); the conviction represents double jeopardy, La.C.Cr.P. art. 362(2), State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974); Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); the prosecution, when instituted, had | ¡^prescribed, La.C.Cr.P. art. 362(7), see also State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974); the state lacked constitutional or legal power to try the accused for the offense charged, Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); State ex rel. Jackson v. Henderson, 283 So.2d 210 (La.1973); the statute under which the prosecution is brought is unconstitutional, State v. Bergeron, 152 La. 38, 92 So. 726 (1922); the charge brought by the indictment does not constitute a crime, State v. Watson, 41 La. Ann. 598, 7 So. 125 (1889); certain types of patent error preventing conviction for the offense, La.C.Cr.P. art. 920(2), see indicative listing at State v. Guillot, 200 La. 935, 9 So.2d 235, 239 (1942).

State v. Crosby, 338 So.2d 584, 588 (La.1976).

The State contends this case is similar to State v. Gobert, 02-771 (La.App. 3 Cir. 11/12/03), 865 So.2d 779, a case in which the defendant pled guilty despite a double jeopardy violation inherent in the plea agreement. From the record, this court determined that both the defendant and his attorney were aware of the violation, but the defendant chose to plead guilty to avoid the imposition of a mandatory life sentence. This court concluded that “fundamental fairness dietate[d] that Mr. Go-bert, who knowingly and intelligently entered a plea that raised double jeopardy concerns, [could not] attack the validity of that plea. Thus, we find that he waived his right to attack its validity.” Id. at 786. Earlier in the opinion, this court stated:

Generally, a guilty plea is considered a waiver of all non-jurisdictional defects and courts usually only review them to ensure that the plea was both counseled and voluntary. An exception to this rule exists for double jeopardy violations. A plea of guilty (or plea bargain) does not preclude a double jeopardy challenge when the violation is apparent on the face of the record. However, in United States v. Broce, [488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989),] the United States Supreme Court noted an important qualification to this rule when it stated: “We do not hold that a double jeopardy claim may never be waived.”

Id. at 784. (Footnotes omitted).

IfiThe Louisiana Supreme Court has also held an exception exists for double jeopardy violations. In State v. Arnold, 01-1899 (La.4/12/02), 816 So.2d 289, 290, the court stated:

Generally, guilty pleas constitute a waiver of all non-jurisdictional defects, see, e.g., State v. McKinney, 406 So.2d 160, 161 (La.1981), and generally courts review them only to ensure that the plea “was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989). Though the Supreme Court and this Court have created an exception to this rule for double jeopardy violations, Broce, 488 U.S. at 575-76, 109 S.Ct. at 765; State ex rel. Adams v. Butler, 558 So.2d 552, 553 n. 1 (La.1990), that exception applies only “where on the face of the record the court had no power to enter the conviction or impose the sentence.” Broce, 488 U.S. at 575-76, 109 S.Ct. at 765. Properly applied, the exception requires limited review of only the charging documents and plea colloquy. See Hagan v. State, 836 S.W.2d 459, 461 (Mo.1992).

Gobert, the case relied upon by the State, is distinguishable from the present case in that double jeopardy violations may be waived; most jurisdictional defects may not. See State v. Rivers, 28,565 (La.App. 2 Cir. 9/25/96), 681 So.2d 39, citing State v. Gooden, 523 So.2d 283 (La.App. 2 Cir.), writ denied, 530 So.2d 570 (La.1988).

A review of the foregoing case law dictates a conclusion that the Defendant’s plea should be vacated, the convictions and sentences should be set aside and the case remanded to the trial court for further proceedings. The parties are now in the same position as they were prior to acceptance of the plea bargain. State v. Boudreaux, 402 So.2d 629 (La.1981).

EXCESSIVENESS OF SENTENCE

The Defendant contends his sentences are excessive. This claim is now rendered moot.

IvCONCLUSION

For the foregoing reasons, the Defendant’s convictions and sentences are vacated and set aside. This case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED; CONVICTIONS AND SENTENCES VACATED AND SET ASIDE.

WOODARD, J., concurs in the result.

      . The aggravated robbery charge was filed under a separate docket number.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Robert Thomas SMITH.
    No. 2004-339.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.
    James C. Downs, District Attorney— Ninth Judicial District Court, Michael W. Shannon, Assistant District Attorney, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    Karen G. Arena, Louisiana Appellate Project, Metairie, LA, for Defendant/Appellant, Robert Thomas Smith.
    Robert Thomas Smith, Pro Se.

      Court composed of ULYSSES GENE THIBODEAUX, C.J., BILLIE COLOMBARO WOODARD, and OSWALD A. DECUIR, Judges.
   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of State of Louisiana v. Robert Thomas Smith, 04-338 (La.App. 3 Cir. 9/29/04), 883 So.2d 505, 2004 WL 2181076, the Defendant’s convictions and sentences are vacated and set aside. This case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED; CONVICTIONS AND SENTENCES VACATED AND SET ASIDE.

WOODARD, J., concurs in the result.