author: I WILLIAMS, Judge.

text:
    Ricky Dale MARTIN in the Interest of K.M., Plaintiff-Appellee, v. Cynthia Anderson Martin HARRISON, Defendant-Appellant.
    No. 37,891-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2003.
    Cynthia Anderson Martin Harrison, for Appellant in Proper Person.
    Gary A. Bowers, for Appellee, Ricky Dale Martin.
    John W. Wilson, Shreveport, for Appel-lee, KM.
    Before WILLIAMS, STEWART and MOORE, JJ.
   I WILLIAMS, Judge.

In this juvenile court proceeding, the defendant, Cynthia Martin Harrison, appeals a judgment denying her exception of lack of subject matter jurisdiction and granting the plaintiff, Ricky D. Martin, sole legal custody of the minor child, K. M., subject to supervised visitation by defendant each Saturday. For the following reasons, we reverse and remand to the district court for further proceedings.

FACTS

Ricky Martin (“Martin”) and Cynthia Martin Harrison were married in October 1983. Two children were born of the marriage, including K. M., the six-year-old minor child who is the subject of these proceedings. In May 2000, Martin filed for divorce requesting custody and child support. The parties were granted a divorce and Martin was named the custodial parent of the children subject to visitation by the mother. Subsequently, Cynthia Harrison married Douglas Jeffrey Harrison (“Harrison”) and they established a residence in Texas.

In November 2001, Martin began to suspect that his daughter was being abused because of the child’s comments and behavior following visitation with the mother. In February and March 2002, the child was interviewed by Suzanne Craig, a counselor at the YWCA and by Wendy Wester-man of the Gingerbread House Children’s Advocacy Center.

Subsequently, the plaintiff, Ricky Martin, filed a petition in Caddo District Court to modify custody and for relief under LSA-R.S. 46:2131, the Domestic Abuse Assistance Act. Martin, who was represented by counsel, alleged that the minor child had been sexually abused by Harrison during | ^visitation with defendant, Cynthia Harrison, with her knowledge. After a hearing, the trial court issued a protective order limiting the location of defendant’s visitation with the child to Caddo Parish and prohibiting Harrison’s presence during the child’s visit.

In May 2002, Martin filed a rule for contempt of the protective order and to stay or restrict visitation. Martin alleged that the minor child had been in the presence of Harrison during defendant’s visitation in May 2002 and that Harrison had taken pornographic photographs of the child. The defendant’s visitation was temporarily terminated and the matter was set for a hearing. After an extensive pretrial conference on July 31, 2002, the district court issued an interim order reinstating defendant’s visitation under the prior restrictions, ordering the parties to submit to an evaluation by a mental health professional, and scheduling a trial date.

The following day, August 1, 2002, Martin filed in proper person a petition in Caddo Juvenile Court seeking a protective order to stop the alleged sexual abuse of his then five-year-old daughter by Harrison. The juvenile court assumed exclusive jurisdiction of this case as a child in need of care proceeding and issued a temporary restraining order prohibiting visitation by defendant. On August 2, 2002, the juvenile court entered an amended order resetting the show cause hearing date. The defendant filed an exception, alleging that the juvenile court lacked subject matter jurisdiction of the action based on the pending domestic abuse proceeding brought in the district court pursuant to LSA-R.S. 46:2131.

At the August 14, 2002 hearing on the exception, the juvenile court | Jieard argument and stated that although taking exclusive jurisdiction was unusual in this context, the substance of the claim, which alleged abuse of the child and that the child needed protection, fit within the parameters of a child in need of care case. Additionally, the court pointed out that it was not exercising jurisdiction under Title XV, but under LSA-Ch.C. art. 303(2), a child in need of care proceeding pursuant to Title VI. The court denied the defendant’s exception to jurisdiction and appointed attorney John Wilson to represent the minor child.

On September 24, 2002, the adjudication hearing commenced and was continued because the juvenile court had granted attorney Spears’ motion to withdraw as counsel for defendant. The court appointed attorney Allen Haynes to represent the defendant. In October 2002, defendant stipulated that the child, K. M., was a child in need of care without admitting the allegations of the petition.

At the disposition hearing, the court heard testimony from Suzanne Craig, a sexual assault counselor, who reported the child’s statements to her of sexual touching and oral contact by Harrison. Craig also testified that the child described being photographed in sexual poses while the mother was present in the room. Craig opined that unless defendant’s visitation was supervised, there would be no controls to protect the child.

The court also admitted into evidence two videotaped interviews of the child conducted at Gingerbread House in Shreveport. The child stated that Harrison had removed her clothing, touched her sexually and took photographs of her undressed on the bed in a hotel room while defendant |4was present. The child said Harrison told her “Don’t tell or I’ll kill you.”

The trial court found that the defendant’s tacit involvement in Harrison’s improper behavior with the child and her efforts to influence the child to recant the allegations despite her knowledge of Harrison’s activities required that the defendant’s visitation be supervised until the court was convinced that she had been rehabilitated and would place her child’s safety before the pedophile desires of her husband.

The judgment of disposition ordered that the child remain in the sole legal custody of the father and that the defendant shall be entitled to supervised visitation with the child from 1 p.m. to 5 p.m. every Saturday. The judgment further ordered defendant to obtain mental health counseling to educate her on the issues of sexual abuse of children and how to protect her child from sexual predators. Defendant appeals the judgment.

DISCUSSION

The defendant contends the juvenile court erred in assuming exclusive jurisdiction of this case. Defendant argues that the juvenile court lacked jurisdiction because a proceeding to modify custody under the Domestic Abuse Assistance Act was pending in district court.

Any parent may seek relief on behalf of any minor child by filing a petition with the district court alleging abuse by the defendant. LSA-R.S. 46:2133. The petition shall state the name of the petitioner and each person on whose behalf the petition is filed, the circumstances concerning the alleged abuse and a request for a protective order. LSA-R.S. 46:2134.

Title XV of the Children’s Code creates a parallel procedure for | ¡^seeking a protective order from abuse in juvenile court. LSA-Ch.C. art. 1564 et seq. LSA-Ch.C. art. 303(9) provides for exclusive original jurisdiction of the juvenile court for any special proceeding authorized by Title XV, except domestic abuse prevention proceedings filed in a district court pursuant to R.S. 46:2131 et seq.

In the present case, when Martin became aware of the possible sexual abuse of his daughter, the remedy of a protective order was available under the parallel domestic abuse assistance provisions of LSA-R.S. 46:2131 and Ch.C. art. 1564. Martin and his counsel chose to file a petition in district court for relief on behalf of the minor child pursuant to Section 2131. Martin sought a protective order granting him custody of the child and suspending the defendant’s visitation rights. After a trial, the court issued a protective order requiring that defendant’s visitation occur in Caddo Parish outside of the presence of Harrison.

Approximately one month later, Martin filed a rule for contempt of the protective order and to stay visitation alleging that defendant had allowed Harrison to be present during her visitation and to take nude photographs of the child in sexually suggestive poses. The district court temporarily suspended defendant’s visitation until a hearing on the matter. After a pre-trial conference, the district court reinstated the defendant’s visitation subject to the previously imposed restrictions and scheduled a trial date.

Apparently dissatisfied with the district court’s decision, Martin filed a petition in proper person the next day in juvenile court seeking protection | Jrom abuse pursuant to Ch.C. art. 1564. Although the juvenile court would ordinarily have exclusive jurisdiction over such a petition, Ch.C. art. 303(9) expressly provides an exception to this jurisdiction when domestic abuse protection proceedings have been filed in district court, as was done in this case by Martin. The defendant filed an exception of lack of subject matter jurisdiction based on Article 303(9).

At the hearing on the exception, the juvenile court judge stated that Article 303(9) did not apply, because he was assuming jurisdiction of the case under Ch.C. art. 303(2), child in need of care, and not Title XV. However, the issue before the juvenile court was not whether the court has jurisdiction of child in need of care cases, but whether the court could exercise jurisdiction over Martin’s Title XV petition when Martin had previously filed domestic abuse assistance proceedings based on the same allegations in district court pursuant to R.S. 46:2131.

Pursuant to the express language of Article 303(9), the juvenile court was precluded from exercising jurisdiction over the case under these circumstances. A reasonable interpretation of the purpose of Article 303(9) is to prevent the very situation which occurred in this case, that is, a litigant who is dissatisfied with a ruling in district court will turn to the juvenile court in an effort to obtain a more favorable outcome. This act or procedure, generally referred to as “forum shopping,” is viewed unfavorably by this court.

The failure to apply the exception of Article 303(9) would render the statutory provision meaningless, and such a result could not have been ^intended by the legislature. While we may understand the desire to seek an alternate method to protect the child if unsatisfied with the trial court’s decision, the preferable course would have been for Martin’s counsel to file a writ application in this court seeking review of the district court’s interim order.

Considering the applicable statutory provisions, we conclude that the juvenile court erred in denying the exception of lack of subject matter jurisdiction and the judgment shall be reversed. Consequently, the adjudication of K.M. as a child in need of care and all other actions of the juvenile court in this matter are null and are hereby set aside.

CONCLUSION

For the foregoing reasons, the juvenile court judgment denying the exception of lack of subject matter jurisdiction is reversed and the exception is sustained. The juvenile court proceeding is hereby dismissed and all orders by that court are vacated. This case is remanded to the district court for further proceedings. Costs of this appeal are assessed to the appellee, Ricky Dale Martin.

REVERSED; JUVENILE COURT ORDERS AND DISPOSITION VACATED; REMANDED TO THE DISTRICT COURT.


source: Caselaw Access Project

author: I t STEWART, J.

license: Public Domain

text:
    Pastor Rick EDMONDS, Pastor Chuck Pourciau, Mike Welch and Brenda O’Brock, Plaintiffs-Appellees, v. The CITY OF SHREVEPORT, The Zoning Board of Appeals and Metropolitan Planning Commission, Defendants-Appellants.
    No. 37,645-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2003.
    Lunn, Irion, Salley, Carlisle & Gardner by W. Orie Hunter, III, Richard B. King, Jr., Counsel for Defendant Appellant D.V. II Shreveport LLC.
    John C. Milkovich, Counsel for Plaintiffs Appellees Mike Welch, Pastor Rick Ed-monds, Pastor Chuck Pourciau and Brenda O’Brock.
    Hargrove, Pesnell & Wyatt, by Scott C. Sinclair, Counsel for Plaintiff Appellee Muy Alto Corp.
    Jeansonne & Remondet, by Neil T. Erwin, Carl L. Ekendahl, Counsel for Defendants Appellees City of Shreveport, The Shreveport Planning Commission and Metropolitan Shreveport Zoning Board of Appeals.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   I t STEWART, J.

The defendant, D.V. II — Shreveport, L.L.C., (“D.V.”), appeals a judgment of the trial court declaring that “Section 106-47 of the Shreveport Code of Ordinances and La. R.S. 38:4727(C)(2)(b) stay the operation of a business upon the filing of an appeal to the Shreveport Metropolitan Zoning Board of Appeals from the granting of a certificate of occupancy by the Zoning Administrator.” Because we find that the trial court rendered an advisory opinion on a matter that had become moot, we reverse the trial court’s judgment and dismiss the claims of the plaintiff, Muy Alto Corporation.

FACTS

This litigation began as a zoning challenge by Pastor Rick Edmonds, Pastor Chuck Porciau, Mike Welch, and Brenda O’Brock, a group of citizens of Shreveport who objected to the proposed location of a sexually oriented business to be opened and operated by D.V. in the downtown area of Shreveport near the river front. Muy Alto Corporation (“Muy Alto”), which owns land adjacent to the site of D.V.’s business, joined as a plaintiff in the “Second Amended, Supplemental, and Restated Petition.” In addition to D.V., the defendants included the City of Shreveport, the Shreveport Metropolitan Zoning Board of Appeals (“ZBA”), and the Shreveport Metropolitan Planning Commission of Caddo Parish (“planning commission”).

In their first three petitions, which include the original petition as well as first and' second supplemental petitions, the plaintiffs were seeking judicial review of an informal or preliminary authorization by the planning | ^commission approving D.V.’s proposed site. Plaintiffs contended that D.V. was improperly authorized to locate a sexually oriented business within one thousand feet of protected sites in violation of a city ordinance. This preliminary authorization had been upheld by the ZBA and the Shreveport City Council. However, as addressed at a hearing on October 17, 2002 before the trial court, D.V. had not yet made a formal application for a certificate of occupancy and no such certificate had yet been granted. Moreover, it appeared that the informal authorization was without legal effect for purposes of judicial review.

On November 18, 2002, Muy Alto filed a third supplemental petition in anticipation of D.V.’s application for a certificate of occupancy to operate a sexually oriented business at the disputed site and the likely granting of the certificate of occupancy by the zoning administrator. In light of this eventuality and the appeal that would likely follow the issuance of the certificate of occupancy, Muy Alto sought a declaratory judgment interpreting Section 106-47 of Shreveport’s Code of Ordinances and La. R.S. 33:4727(C)(2)(a) as precluding the holder of a certificate of occupancy from opening or operating a business during the pendency of the appeal process. Muy Alto then filed a motion for partial summary judgment on December 2, 2002, asserting that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law interpreting La. R.S. 33:4727(C)(2)(a) and Section 106-47 as precluding D.V. from operating its business during the appeal process. In response to Muy Alto’s third | .¡supplemental petition, D.V. filed an exception of no cause of action. D.V. also filed an opposition to the motion for partial summary judgment.

On December 19, 2002, the trial court rendered an opinion granting Muy Alto the relief it sought. This ruling was vacated by a writ order of December 27, 2002, on the grounds that a certificate of occupancy had not yet been issued, no appeal had been taken from such issuance, and peremptory exceptions remained pending in the trial court.

On January 3, 2003, Muy Alto again filed a motion for partial summary judgment alleging that D.V. had obtained a certificate of occupancy and that Muy Alto had filed a notice of appeal with the ZBA. Therefore, Muy Alto again sought a declaration that Section 106-47 and La. R.S. 33:4727(C)(2)(b) would preclude D.V. from operating its business during the pendency of the appeal process. D.V. opposed the motion and filed exceptions of no cause of action and non-joinder of an indispensable party. Of most significance was D.V.’s contention that the stay matter was moot since the zoning administrator had, in accordance with Section 106-47(c), issued a certificate lifting the stay during the appeal process.

After a hearing on January 15, 2003, the trial court rendered judgments resolving all outstanding issues and Muy Alto’s motion for partial summary judgment. The trial court dismissed the claims asserted by the plaintiffs in the original petition and the first and second supplemental petitions upon granting exceptions filed by D.V. in response to those three petitions. The trial court denied D.V.’s exception of no cause of action as to the third supplemental petition, and granted Muy Alto’s motion for partial Lsummary judgment declaring that Section 106-47 and La. R.S. 33:4727(C)(2)(b) stay the operation of a business upon the filing of an appeal to the ZBA from the granting of a certificate of occupancy by the zoning administrator. D.V. now appeals the declaratory judgment granted on Muy Alto’s motion for partial summary judgment.

DISCUSSION

D.V. asserted four assignments of error on appeal. These included challenges to the trial court’s denial of exceptions of prematurity and non-joinder of an indispensable party; to the trial court’s issuance of an advisory opinion in the form of a declaratory judgment on an issue that had become moot; and to the trial court’s interpretation of Section 106-47 of the Shreveport Code of Ordinances. Because we find merit in D.V.’s argument that the declaratory judgment was merely an advisory opinion on an issue that had become moot, we have no need to address the other assignments raised by D.V. in its appeal.

In the judgment at issue, the trial court declared that

“Section 106-47 of the Shreveport Code of Ordinances and La. R.S. 33:4727(C)(2)(b) stay the operation of a business upon the filing of an appeal to the Shreveport Metropolitan Zoning Board of Appeals | Kfrom the granting of a Certificate of Occupancy by the Zoning Administrator.”

In granting Muy Alto’s motion for partial summary judgment, the trial court rendered a declaratory judgment as prayed for by Muy Alto in its third supplemental petition. Actions for a declaratory judgment require the existence of a justiciable controversy. Jordan v. Louisiana Gaming Control Bd., 98-1122, 98-1133 (La.5/15/98), 712 So.2d 74; American Waste & Pollution Control Co. v. St. Martin Parish Police Jury, 627 So.2d 158 (La.1993). It is well settled that courts will not decide abstract, hypothetical or moot controversies, or render opinions with respect to such controversies. Louisiana Associated General Contractors, Inc. v. State, Through Div. Of Admin., Office of State Purchasing, 95-2105 (La.3/8/96), 669 So.2d 1185.

In Jordan, supra, the supreme court addressed the issue of “justiciable controversy” by quoting the following passage from Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971):

A “justiciable controversy” connotes, in the present sense, an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of a conclusive character. Further, the plaintiff should have a legally protected interest at stake, and the dispute presented should be of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

An issue that has been deprived of practical significance and made abstract or purely academic is moot. American Waste, supra. Where the judgment can serve no useful purpose and give no practical relief, the matter is moot. Louisiana Assoc. General Contractors, supra.

| ^Section 106-47, the ordinance about which a declaratory ruling was sought, provides as follows:

Sec. 106-47. Appeals from decision of the zoning administrator.

(a) Any person aggrieved or any officer or department may appeal to the board of appeals from any order or decision of the zoning administrator.
(b) Such appeal shall be taken by filing with the zoning administrator and with the board of appeals, within the time provided by the rules of the board, a notice of appeal specifying the particular grounds upon which the appeal is taken. Upon receipt of a notice of appeal, the zoning administrator shall transmit to the board of appeals all of the original documents and materials, or true copies thereof, constituting the record upon which the order or decision appealed from was based.
(c) An appeal from the zoning administrator to the board of appeals shall stay all proceedings unless the zoning administrator certifies that, by reason of the facts stated in the certificate, a stay would in his opinion cause imminent peril to life or property. When such certificate is filed, proceedings shall not be stayed except by a restraining order granted, after due notice, to this zoning administrator, by the board of appeals or a court of proper jurisdiction.

(Emphasis added.)

Matters of record show that D.V. obtained a certificate of occupancy from the zoning administrator on January 3, 2003. On that same day, Muy Alto gave notice of appeal to the zoning administrator and the ZBA. Muy Alto also filed its second motion for partial summary judgment seeking a declaration that Section 106-47 and La. R.S. 33:4727(C)(2)(b) preclude D.V. from opening or operating a sexually oriented business at the disputed site during the pendency of the appeal process. Thereafter, on January 6, 2003, the zoning administrator, in accordance with Section 106-47(c), issued a certificate lifting the stay. The validity of the zoning 17administrator’s action in lifting the stay was not at issue before the trial court. Upon issuance of the stay lift by the zoning administrator, the issue of whether Section 106-47 would preclude D.V. from opening or operating its business during the appeal process became moot as the pending action involved neither a challenge to the actual issuance of the certificate of occupancy or to the validity of the stay lift certificate. The trial court’s declaratory judgment interpreting Section 106-47 served no useful purpose considering that the zoning administrator had lifted the stay and that the validity of that action was not before the trial court. Moreover, the judgment granted no practical relief to the parties under the existing facts.

We find the judgment at issue to be an improper advisory opinion on a moot issue. The judgment does not serve as a decree of a conclusive character between the parties, because it had no practical effect and resolved none of the substantive issues underlying the plaintiffs’ zoning challenge. Considering both the trial courts dismissal of the plaintiffs’ claims in the petition and first and second supplemental petitions and the stay lift granted by the zoning administrator, there was no existing immediacy and reality, and in fact no justiciable controversy before the trial court, to warrant the issuance of a declaratory judgment.

CONCLUSION

For the aforementioned reasons, we reverse the trial court’s judgment and dismiss the claims of the plaintiff, Muy Alto, seeking a declaratory judgment as set forth in the third supplemental petition. Costs of the appeal are assessed to the appellee, Muy Alto Corporation.

REVERSED.

PEATROSS, J., concurs.

      . In a writ order of May 2, 2003, a writ panel of this court determined the judgment at issue to be a final appealable judgment. The judgment granted the relief prayed for in the third supplemental petition, thus concluding the litigation. All other claims had been dismissed by the trial court's granting of D.V.'s exceptions as to the plaintiffs’ original, first, and second supplemental petitions.

      . We note that La. R.S. 33:4727(C)(2)(b), which governs boards of adjustment, was improperly referenced in this matter as pertaining to matters before the Board of Appeals, which was established by Section 106-46 of the Shreveport Code of Ordinances "in accordance with section 32 of Act 34, Acts 1954 and R.S. 33:140.32, as amended.” Section 106-46(a). Shreveport metropolitan planning is authorized by La. R.S. 33:140.1 et seq., and a board of appeals is specifically authorized by La. R.S. 33:140.32. See also Cook v. Metropolitan Shreveport Board of Appeals, 339 So.2d 1225 (La.App. 2d Cir.1976), writ denied, 341 So.2d 1123 (La.1977), footnote one.


author: | t CARAWAY, J.

text:
    STATE of Louisiana, Appellee, v. Timothy David TAYLOR, Appellant.
    No. 37,356-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2003.

      Daryl Gold, Shreveport, for Appellant.
    Don. M. Burkett, District Attorney, and H. Melissa Sugar, Assistant District Attorney, for Appellee.
    Before CARAWAY, DREW and TRAYLOR (Pro Tempore), JJ.
   | t CARAWAY, J.

A grand jury indictment charged the defendant with the January 7, 1999 first degree murder of an abducted victim in violation of La. R.S. 14:30. A jury found the defendant guilty of the charged offense and imposed a life sentence without benefit of parole, probation or suspension of sentence. Urging three assignments of error, the defendant claims that his conviction should be overturned. We affirm his conviction and sentence.

Facts

The facts and circumstances regarding the murder of the automobile salesman, Chester Howell, and the subsequent seven-state crime spree leading to the apprehension and arrest of Timothy Taylor (“Taylor”) are set forth by the Louisiana Supreme Court in the ease involving the accomplice, Michael Taylor. State v. Michael Taylor, 01-1638 (La.1/14/03), 838 So.2d 729. The crime in question began as a robbery/kidnaping of the victim and led to his murder in DeSoto Parish. Thereafter, in a seven-day time period, there were numerous crimes committed in other states leading ultimately to the arrest of defendant and Michael Taylor. Our review of the record in this case reveals that the same evidence of the murder and the other crimes were presented in this case as in State v. Taylor, supra, and we reference those facts of the companion case.

Discussion

Other Crimes Evidence

Prior to trial, the state notified Taylor of its intent to offer evidence of seven separate crimes that constituted an integral part of Taylor’s alleged berime spree. That evidence consisted of four acts of theft, a bank robbery in Lamoni, Iowa, the shooting of the Chief of Police of Lamoni, Iowa and an attempt to reenter the United States from Mexico while failing to declare $126,394.88. The defense and prosecution agreed to submit the matter on briefs.

Following the hearing, the trial court deemed the other crimes evidence admissible, specifically finding that evidence to be “so intertwined with the commission of the charged offense that the State could not accurately present its case without reference to this evidence,” and that the “probative value” of the evidence was not “outweighed by any danger of unfair prejudice .... ” Subsequently, Taylor filed a motion to reconsider the pre-trial ruling. Specifically, Taylor requested the court to revisit its determination relating to the evidence of the shooting of the police chief asserting that the prejudicial nature of that evidence far outweighed its probative value. On the grounds that there existed no such motion in law to reconsider its original ruling, the court summarily denied Taylor’s motion.

On appeal, Taylor contends that the prejudicial effect of the testimony setting forth extensive details of the crime spree, specifically relating to the in-depth details of the bank robbery and the police chiefs shooting, far outweighed the probative value of the evidence. Additionally, Taylor urges that the trial court erred in failing to allow him in his motion for | ¡¡reconsideration to specifically argue that the testimony regarding the details of the police chiefs shooting was prejudicial.

Generally, evidence of other crimes is not admissible to show that the defendant is a man of bad character who has acted in conformity therewith. However, under La. C.E. art. 404(B)(1) evidence of other crimes, wrongs or acts may be introduced when it relates to conduct, formerly referred to as res gestae, that constitutes an integral part of the act or transaction that is the subject of the present proceedings. Res gestae events constituting other crimes evidence are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. A close proximity in time and location is required between the charged offense and the other crimes evidence to insure that the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. State v. Taylor, supra. The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. Id. Res gestae evidence in Louisiana incorporates a rule of narrative completeness without which the state’s case would lose its narrative momentum and cohesiveness, with power not only to support | conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. Id.

Our review of the testimony and evidence presented by the state relating to the bank robbery and shooting of the police chief shows that it is substantially identical to that presented by the state in Taylor’s co-defendant’s trial in State v. Taylor, supra., p. 740-741 and fn. 6. In rejecting Michael Taylor’s very similar claims regarding the prejudicial nature of the evidence presented by the state, the court noted as follows:

[T]he prejudicial effect of the evidence admitted in the instant case does not substantially outweigh its probative value. Although all evidence of other crimes is prejudicial to defendant, the other crimes evidence was necessary to give the jury a complete picture of the events which gave rise to the instant offense and led to the defendant’s ultimate arrest along with a context within which to evaluate defendant’s assertions .... Furthermore, contrary to defendant’s claims, the state cannot be faulted for the amount of other crimes evidence introduced at trial given defendant went on a crime spree which spanned seven states.

Taylor, supra at 745.

Such reasoning applies to the present matter as well and we adopt this analysis in rejecting Taylor’s claim regarding the other crimes evidence. Moreover, we note that Taylor’s appeal claims are directed toward the scope of the other crimes evidence in general rather than any specific portion of the evidence’s presentation at trial. A review of the record shows that Taylor’s counsel only once offered a contemporaneous objection at trial to the prejudicial nature of the scope of the subject testimony in accordance with La. C.E. art. 403. Specifically, the witness was attempting to describe |Bthe police chiefs physical responses after the shooting. On that occasion, the trial court admonished the state to “watch out” for extraneous testimony. Upon that instruction, the state redirected the questioning. Otherwise, counsel offered no objection to the breadth of the remaining testimony relating to the bank robbery and shooting. That failure precludes Taylor from now complaining about the prejudicial nature of the testimony on appeal. La.C.Cr.P. art. 841.

Finally, Taylor’s argument that the trial court was required to reconsider its prior ruling likewise has no merit. The trial court had entertained the Prieur hearing pursuant to La.C.Cr.P. art. 720 and La. C.E. art. 404(B)(1), at which time it specifically weighed the prejudicial effect of the evidence under La. C.E. art. 403. Having afforded Taylor the hearing provided by law, it was within the trial court’s discretion whether to reconsider its ruling on the admissibility of the other crimes evidence, and its decision to deny reconsideration presents no error.

Closing Statements

In his final argument Taylor contends that the trial court erred in failing to grant a mistrial based upon statements made by the assistant district attorney (“ADA”) in closing argument. The ADA was discussing Taylor’s confession which he gave to federal law enforcement after his arrest. The ADA stated:

What else do we know from Timothy’s own statement? Michael’s driving. Timothy’s in the backseat with the gun and Michael elbows Tim. Tim takes this as a sign to pull out the gun. LTimothy is actively participating in this murder now, ladies and gentlemen. He pulled the gun out. Follower: Equal. Equal. Equal.
If all a person had to do when they’re charged with murder is say I didn’t do it. If they’re charged as a principal, I didn’t know my co-defendant was going to do it. If that’s all they had to do, we wouldn’t have a need for juries; we wouldn’t have a need for courts.

At the time of this statement, the defense objected and made a motion for a mistrial, complaining that the prosecutor’s argument was an indirect reference to the fact that the defendant did not testify. The trial court denied the motion. No request for an admonition was made.

Afterwards, the prosecutor continued:

If all a person had to do was say I didn’t know what the other person was gonna do, we wouldn’t have a need for all of this. But that’s why you’re here. To make the decision whether Timothy Taylor’s guilty of first degree murder.

On appeal, Taylor specifically argues that the statements suggest that a defendant must do more than plead not guilty and that the only inference the jury could draw from the prosecutor’s comments is that Taylor was required to testify.

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the district attorney, during the trial or in argument, refers directly or indirectly to the failure of the defendant to testify in his own defense. La.C.Cr.P. art. 770(3). La.C.Cr.P. art. 770(3) protects the defendant’s Fifth Amendment right against self-incrimination by preventing attention being drawn directly 17or indirectly to the fact that the defendant has not testified on his own behalf. State v. Mitchell, 00-1399 (La.2/21/01), 779 So.2d 698.

When the prosecutor makes a direct reference to the defendant’s failure to take the stand, a mistrial should be declared, and it is irrelevant whether the prosecutor intended for the jury to draw unfavorable inferences from defendant’s silence. However, when the reference to the defendant’s failure to take the stand is not direct, the court inquires into the remark’s “intended effect on the jury” in order to distinguish indirect references to the defendant’s failure to testify (which are impermissible) from statements that are not (which are permissible). State v. Johnson, 541 So.2d 818, 822 (La.1989). To support the granting of a mistrial, the inference must be plain that the remark was intended to focus the jury’s attention on the defendant’s not testifying. State v. Smith, 327 So.2d 355, 362 (La.1975); State v. Reed, 284 So.2d 574, 576 (La.1973).

When read in context, the ADA was attempting to deal with Taylor’s defense that he had no specific intent to commit the crime and was merely a follower of Michael Taylor. The argument can be understood as explanation of the meaning of Taylor’s role as a principal to the murder and as rebuttal of Taylor’s attempt to shift responsibility for the act to Michael Taylor. While the ADA’s comments can be questioned in that they give an obscure suggestion or inference regarding the defendant’s failure to testify, the clear intended effect was to rebut the defense testimony that was presented at trial in support of Taylor’s argument that Michael Taylor alone had the specific intent to commit the murder. The record before us is ^insufficient to disclose the plain inference that the remarks were intended to focus the jury’s attention on Taylor’s failure to testify. Thus, we find no error in the trial court’s refusal to grant a mistrial.

Conclusion

For the foregoing reasons, Taylor’s sentence and conviction are affirmed.

AFFIRMED.

      . Notably, the record shows that Taylor submitted no brief in opposition to the state's memorandum in support of the admissibility of other crimes evidence and apparently first presented a written argument to the court in a motion to reconsider the ruling.

      . There, Michael Taylor complained that the "massive evidentiary presentation” which detailed the week-long seven state crime spree "overwhelmed" the guilt phase of the trial and was unduly prejudicial to his case. Taylor, supra, pp. 740, 745.

      . State v. Prieur, 277 So.2d 126 (1973).

      . After trial, Taylor filed a written motion for mistrial on the same grounds which was denied by the trial court.


author: |,CARTER, C.J.

text:
    Arnold J. AMBEAU v. CAJUN CONSTRUCTORS, INC.
    No. 2002 CA 2503.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.
    Rehearing Denied Oct. 29, 2003.

      Yigal Bander, Baton Rouge, for Plaintiff-Appellant, Arnold J. Ambeau.
    Robert J. May, Metairie, for Defendants-Appellees, Cajun Constructors, Inc.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   |,CARTER, C.J.

This is an appeal from a decision by a workers’ compensation judge (WCJ) that plaintiff, Arnold J. Ambeau, forfeited his entitlement to workers’ compensation benefits pursuant to LSA-R.S. 23:1208.1. We affirm.

BACKGROUND

Plaintiff began working for defendant, Cajun Constructors, Inc., as a laborer on December 26, 2000. On that date, plaintiff completed and signed a Post Offer of Employment Medical Inquiry form, indicating that he had never suffered a previous injury to his lower back, that he had never had a medical problem concerning his lower back, and that he had never received medical treatment for any back problem. Plaintiff also completed and signed a health history form in connection with his pre-employment medical exam on the same date. In the health history form, plaintiff again indicated that he had never experienced any prior back pain or problems with a disc or muscle in his back. It is undisputed that both forms complied with the requirements of LSA-R.S. 23:1208.1 by clearly notifying plaintiff that his failure to answer truthfully could result in the forfeiture of workers’ compensation benefits in the future.

On April 28, 2001, while working in the tool room at a job site for defendant, plaintiff allegedly injured his lower back when he attempted to move a generator. He reported the unwitnessed accident to defendant, and defendant began paying wage indemnity and medical benefits to plaintiff. Plaintiff sought treatment at the Earl K. Long Medical Center emergency room and walk-in clinic (EKL) for lower back pain that was radiating into his right leg. On April 29, 2001, plaintiff complained to the emergency room physician that he had been experiencing lower back and right leg pain for approximately one month, but he did not specifically mention the work accident that had occurred the day before. EKL records indicate that plaintiff had received treatment in the EKL emergency room a few weeks earlier, on March 14, 2001, for lower back pain after lifting a water cooler at work. Plaintiff returned to EKL on May 10, 2001, for back pain related to the alleged generator-lifting incident of April 28th.

LOn May 25, 2001, plaintiff saw Dr. Steven L. Holmes for continued lower back and right leg pain. He was diagnosed with a lumbar strain and a herniated disc at the L5-S1 level. On May 29, 2001, plaintiff was seen by Dr. John E. Clark, who diagnosed degenerative lumbar disc disease at the L5-S1 level with a disc herniation producing right leg sciatica. Dr. Clark’s records indicate that plaintiff reported he was pain-free until the April 28th generator incident at work. Plaintiff saw a neurosurgeon, Dr. Horace L. Mitchell, on August 15, 2001, but did not report any prior low back problems or injuries. Based upon plaintiffs history and diagnostic tests, Dr. Mitchell recommended surgery to remove the herniated disc that plaintiff related to the April 28th work accident. However, on October 30, 2001, defendant suspended plaintiffs workers’ compensation benefit payments, disputing that a work accident had caused plaintiffs back injury. Plaintiffs surgery was never performed.

After defendant suspended plaintiffs workers’ compensation benefits, plaintiff filed a disputed claim for compensation on November 1, 2001. During the course of litigation, defendant discovered that plaintiffs medical records from EKL reflected that plaintiff was seen in the emergency room and walk-in clinic a total of eight times during 1991, once in 1993, and once in 1995, each time for low back pain with radiating pain into his right leg. The back pain was related to lifting a heavy garbage can in 1991 and picking up a refrigerator in 1993. The records also revealed that in 1991, plaintiff underwent diagnostic testing at EKL that confirmed he had a disc herniation at the L5-S1 level. Thus, plaintiffs medical history clearly revealed to defendant that plaintiff had previously sustained injuries to his low back in 1991 and 1993, and that he had been treated for a lower back condition with radiating right leg pain for many years prior to his alleged accident on April 28, 2001, and many years before he was hired by defendant on December 26, 2000. Therefore, it became evident that plaintiff had untruthfully answered questions regarding his medical history when he completed defendant’s Post Offer of Employment Medical Inquiry form and again when he completed the pre-employment medical exam health history form. The medical records also showed that plaintiff failed to disclose his prior injuries and Lproblems with his lower back to his treating physicians after the alleged work accident.

At trial on July 29, 2002, plaintiff admitted that he had misrepresented to defendant and to his doctors that he had not experienced prior back problems or injuries, and that his answers on the medical inquiry form and the medical history form were false. Plaintiff testified that he had simply forgotten about his prior back problems and that up until the injury on April 28, 2001, he had always been able to continue to work. Because he was always able to work, plaintiff testified that he did not consider his prior back problems to be serious. Based upon plaintiffs testimony and the documentary evidence, the WCJ concluded that although plaintiff proved that a work accident had occurred, he had forfeited his right to workers’ compensation benefits because he had made misrepresentations for the purpose of obtaining benefits and had violated LSA-R.S. 23:1208.1. A judgment was signed on July 31, 2002, dismissing plaintiffs claim at his cost. Plaintiff appeals, alleging that the WCJ committed manifest error in finding that he had willfully made misrepresentations in order to obtain benefits, and in finding that he had violated LSA-R.S. 23:1208.1.

LAW AND ANALYSIS

The Louisiana Workers’ Compensation Act contains an anti-fraud provision, LSA-R.S. 23:1208.1, that applies to employment-related questioning of an employee or prospective employee by an employer concerning a prior injury, when there is no pending workers’ compensation claim. Resweber v. Haroil Const. Co., 94-2708, p. 2 (La.9/5/95), 660 So.2d 7, 9. The statute results in the forfeiture of a claimant’s workers’ compensation benefits when (1) the claimant made false statements concerning a prior injury in response to such an inquiry, (2) the false statements are directly related to the medical condition for which the claimant is seeking benefits or to the employer’s ability to receive reimbursement [ ¡j'rom the second injury fund, and (3) the employer has provided contemporaneous notice to the claimant that false statements made in response to the inquiry may result in forfeiture of workers’ compensation benefits. Trench v. Harmony Const. Co., 95-1851, p. 4 (La. App. 1 Cir. 4/4/96), 672 So.2d 330, 332, writ denied, 96-1130 (La.6/7/96), 674 So.2d 973.

In the instant case, plaintiff concedes that he made false statements on defendant’s pre-employment questionnaire and health form regarding his medical history. Further, it is undisputed that defendant complied with the notice requirements of LSA-R.S. 23:1208.1, because both the questionnaire and the health form contained prominently displayed written notices advising plaintiff that his failure to answer truthfully may result in the forfeiture of his workers’ compensation benefits. Plaintiff admitted at trial that the lower back and right leg pain for which he was seeking benefits was the same pain he had experienced in 1991, many years before he was hired by defendant.

The WCJ made a factual finding that plaintiff had made misrepresentations for purposes of obtaining workers’ compensation benefits and that he had forfeited his right to benefits by violating LSA-R.S. 23:1208.1. Plaintiff argues that the WCJ’s reference to “misrepresentations” was a finding that he had forfeited his right to benefits under LSA-R.S. 23:1208. After a careful reading of the WCJ’s ruling, we disagree with plaintiffs interpretation. The WCJ specifically referenced LSA-R.S. 23:1208.1 in the judgment. The record clearly supports the WCJ’s finding that plaintiff made false statements (i.e. misrepresentations) concerning his previous lower back injuries and treatments in response to defendant’s pre-employment questionnaire and medical history health forms. The record also supports a finding that the false statements regarding the previous lower back problems directly relate to the medical condition (lower back pain) for which he now claims benefits. The existence of plaintiffs herniated disc at the L5-S1 level with radiating right leg pain before he was hired by defendant meant that plaintiff was susceptible to a subsequent aggravating injury at the L5-S1 level. An aggravation of plaintiffs lower back condition was very likely to occur given plaintiffs medical history. Thus, | f;defendant was prejudiced by the false statements in that plaintiff withheld information of his identical pre-existing medical condition. See Wise v. J.E. Merit Constructors, Inc., 97-0684, p. 6 (La.1/21/98), 707 So.2d 1214, 1217-18; Resweber, 660 So.2d at 16. The fact that the record also arguably supports the conclusion that plaintiff willfully made misrepresentations about his medical history to his treating physicians subsequent to the April 28th accident (evidencing a possible LSA-R.S. 28:1208 violation) is immaterial to the WCJ’s finding that a pre-accident, LSA-R.S. 23:1208.1 violation occurred.

A forfeiture of plaintiff’s workers’ compensation benefits is mandated by LSA-R.S. 23:1208.1 in this case. Because we affirm the judgment of the WCJ based on the direct relationship between plaintiffs admitted false statements and the medical condition for which he is claiming benefits, we need not address whether the false statements affected defendant’s ability to receive reimbursement from the second injury fund. See LSA-R.S. 23:1208.1; Suarez v. Anderson Industrial Scaffolding, 02-0195, p. 3 (La.App. 1 Cir. 12/31/02), 837 So.2d 142, 144, writ denied, 03-0351 (La.4/21/03), 841 So.2d 799; Trench, 672 So.2d at 333 n. 1.

The factual findings of a WCJ may not be disturbed on appeal absent a finding of manifest error. See Hull v. Fluker Farms, 00-0757, p. 6 (La.App. 1 Cir. 5/11/01), 787 So.2d 535, 539, writ denied, 01-2291 (La.11/16/01), 802 So.2d 612; Trench, 672 So.2d at 333. Just as the WCJ was not persuaded, we are not persuaded by plaintiffs assertion that he simply forgot about his previous lower back injuries and radiating leg pain, for which he had received medical treatment on numerous occasions prior to his hiring by defendant. Plaintiffs false statements made to defendant and his subsequent denials of a lower back condition were not inconsequential. The false statements regarding the previous back condition involved identical lifting-type injuries and identical documented complaints of lower back pain (a herniated disc at the C5-S1 level) with radiating right leg pain. Given plaintiffs medical history, the subsequent aggravation of his lower back condition was extremely likely to occur. Therefore, the false statements were directly related to the injuries that plaintiff alleged had occurred |7in the April 28th accident. Based on a review of the record as a whole, we find no manifest error in the WCJ’s judgment. We affirm the WCJ’s judgment dismissing plaintiffs claim at his costs. Costs of this appeal are assessed to plaintiff.

AFFIRMED.

      . Additionally, plaintiff argues in his brief, but does not assign as error, that the WCJ committed manifest error in failing to find that defendant had willfully made misrepresentations during discovery in order to avoid paying plaintiff workers’ compensation benefits. Because the issue was not assigned as error, we pretermit an in-depth discussion and simply note that we find no manifest error in the WCJ’s judgment. Uniform Rules — Louisiana Courts of Appeal, Rule 2-12.4.


author: I .WHIPPLE, J.

text:
    Samantha K. LEVY and Lars Levy v. BAYOU INDUSTRIAL MAINTENANCE SERVICES, INC. and Transcontinental Insurance Company.
    No. 2003 CA 0037.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.
    Rehearing Denied Oct. 29, 2003.

      Thomas L. Mahfouz, Morgan City, Dale P. Martin, Broussard, Counsel for Plaintiffs/Appellees, Samantha Levy and Lars Levy.
    Gary J. Beauchamp, Baton Rouge, Counsel for Intervenor, State of Louisiana, Office of Risk Management.
    George L. LaMarca, Metairie, Counsel for Defendants/Appellants, Bayou Industrial Maintenance Services, Inc., and Transcontinental Insurance Company.
    Before: WHIPPLE, KUHN, and McDonald, jj.
   I .WHIPPLE, J.

Defendants, Bayou Industrial Maintenance Services, Inc. (“BIMS”) and Transcontinental Insurance Company, appeal from a judgment of the trial court awarding damages in favor of plaintiff, Samantha K. Levy, and her husband, Lars Levy, as a result of injuries sustained by plaintiff in a slip and fall accident at her place of employment. For the following reasons, we reverse in part; affirm in part; vacate in part and remand.

FACTS AND PROCEDURAL HISTORY

On March 26, 1999, plaintiff, while employed as a social services counselor by St. Mary Alcohol and Drug Abuse Clinic (“ADAC”), slipped and hit her head on the floor while walking into a co-worker’s office at ADAC. Plaintiff sustained a concussion and subsequently suffered from post-concussion syndrome.

Joyce Gates, a janitor employed by BIMS, had recently mopped the hallway where plaintiff slipped. BIMS contracted with ADAC to provide janitorial services. Prior to and after her fall, plaintiff did not see a “Wet Floor” sign displayed in the area, although there were two “Wet Floor” signs readily available for use by BIMS. As a result of her fall and resulting injuries, plaintiff and her husband filed a petition for damages against BIMS, claiming that the negligence of its employees was the sole and proximate cause of the accident.

The matter proceeded to a bench trial on June 6 and 7, 2002. After hearing the testimony and considering the evidence, the trial court awarded judgment in favor of plaintiff and against BIMS, as follows :

|3Past Lost Wages: $ 41,399.00
Future Loss Wages: $267,195.00
Future Lost Earnings (July 1, 2002-July 1, 2003): $ 7,331.74
Health Ins. from January 2000 through Trial: $ 3,600.00 Health Ins. for 12 Months Following Trial: $ 1,440.00
Maid Services: $ 56,936.00
Future Medical Expenses:
Depakote: $ 30,124.00
Paxil: $ 47,291.00
Imitrex: $ 84,399.00
TENS Unit: $ 55,149.00
Psychotherapy: $ 5,200.00
Lab Costs $ 18,911.83
Dr. Gaddis: $ 13,951.00
Past Medicals: $ 64,079.43
Loss of Enjoyment of Life: $ 50,000.00
Permanent Disability and Impairment: $ 30,000.00
General Damages: $125,000.00
Loss of Consortium: $ 75,000.00

Thus, the trial court rendered a total award of $902,007.00 in favor of plaintiff and $75,000.00 in favor of Mr. Levy. The State of Louisiana, Office of Risk Management, intervenor, was awarded judgment on its intervention, in the amount of $60,848.48 for medical benefits paid, and $32,634.89, for weekly compensation indemnity benefits paid.

On appeal, defendants do not challenge liability. Instead, they contend that the trial court erred: (1) in awarding $267,195.00 in future lost wages; (2) in awarding excessive amounts for future medical expenses and maid services; (3) in allowing Lars Levy to testify as an expert on economic issues; and (4) in making a separate award for loss of enjoyment of life.

LDISCÜSSION

Assignments of Error Nos. One and Three (Future Lost Wages & Levy’s Testimony on Economic Issues)

In these assignments, defendants contend that the trial court erred in awarding plaintiff $267,195.00 in future loss wages, arguing: (1) that none of plaintiff’s physicians specifically testified that she was not able to return to work or to pass the licensed professional counselor exam; (2) that plaintiff failed to call a vocational rehabilitation counselor to testify as to what work plaintiff was capable of performing; (3) that plaintiff was earning more after the accident than she earned prior to the accident; and (4) that there was no competent evidence to support an award based on earnings of $45,000.00 per year, as the trial court improperly allowed plaintiffs husband, also a plaintiff in this case, to testify as an expert witness on critical economic issues. We first consider defendants’ challenge to the trial court’s evidentiary ruling allowing Mr. Levy to give expert, economic testimony, as our disposition of this challenge may affect our review herein.

A plaintiff is required to prove special damages by a preponderance of the evidence, and the findings of the trier of fact are subject to the manifest error standard of review. Fleniken v. Energy Corporation, 2000-1824, 2000-1825, p. 29 (La. App. 1st Cir.2/16/01), 780 So.2d 1175, 1195, writs denied, 2001-1268, 2001-1305, 2001-1317 (La.6/15/01), 793 So.2d 1250, 793 So.2d 1253, 793 So.2d 1254. Awards for loss of future income are intrinsically insusceptible of mathematical exactitude. Oliver v. Cal Dive International, Inc., 2002-1122, p. 6 (La.App. 1st Cir.4/2/03), 844 So.2d 942, 946. Although courts are not expected to calculate such awards with mathematical certainty, they cannot be based purely on speculation, conjecture, and probabilities. Naman v. Schmidt, 541 So.2d 265, 269 (La.App. 4th Cir.1989). As such, the judiciary must exhibit sound discretion in rendering awards that are consistent with the record and do not impose a hardship upon either party. Oliver, 2002-1122 at p. 6, 844 So.2d at 946.

An award of loss of future income is not based upon the difference between the plaintiffs earnings before and after a disabling injury. Rather, the award is predicated upon the difference between a plaintiffs earning capacity before and after a disabling injury. Lasyone v. Kansas City Southern Railroad, 1999-0735, p. 9 (La.App. 1st Cir.9/28/01), 809 So.2d 344, 350-351, writ denied, 2002-0093 (La.3/15/02), 811 So.2d 891.

Defendants contend that the trial court erred in allowing Mr. Levy to qualify as an expert in the field of substance abuse counseling and in accepting his “expert” testimony as to plaintiffs future lost wages. Thus, defendants contend the record does not support this award. After careful review, we agree.

Plaintiffs husband is the Administrative Director of the Drug Court Program in St. Mary Parish. Mr. Levy opined that based on his knowledge of the general field of counseling, but for the accident, his wife would have earned $75.00 per hour as a licensed professional counselor in a private practice. He testified that in his position as the administrator of the St. Mary Drug Court Program, he would have had no difficulty referring to his wife a minimum of twenty patients per week if she had become a licensed professional counselor. The trial court accepted Mr. Levy as an expert in the field of substance abuse counseling and clearly relied upon this testimony in determining the economic im-pactment of the accident. In doing so, the trial court stated:

The testimony of Mr. Levy qualified as an expert in this area and also from his general knowledge has testified that $45,000 per year would have easily been made by Mrs. Levy as |fia licensed professional counselor. Mr. Levy could have referred at least 20 hours per week work to Mrs. Levy as a licensed professional counselor in Morgan City.

Defendants argue on appeal that Mr. Levy’s testimony was “self-serving, extremely biased and should not have been permitted.” They contend the economic testimony was improperly favorable to the plaintiffs, noting that Mr. Levy, who testified as to the hourly income and yearly income of a licensed professional counsel- or, was not, nor had he ever been, a licensed professional counselor. Defendants argue he had no basis for claiming expertise on such economic issues and that the trial court erred in accepting Mr. Levy’s testimony.

Defendants further contend that because Dr. Randolph Rice’s economic report was the sole evidence submitted by plaintiffs in support of Mrs. Levy’s future lost wage claim, and the only information supplied to Dr. Rice in preparing his report was based on Mr. Levy’s testimony, the court erred in rendering any award for future lost wages, on the basis of Dr. Rice’s report.

Without determining the correctness of the opinions and facts set forth in Mr. Levy’s testimony, we agree that it was error for the trial court to accept Mr. Levy as an expert in the field of substance abuse counseling, and to then allow him to testify as to the hourly and annual wages of licensed professional counselors. In particular, in this case where both Mr. Levy and his wife are named plaintiffs, and further, where the figures set forth in his testimony were the sole basis for the monetary awards rendered to the plaintiffs, we find merit in defendants’ arguments.

While bias alone may not preclude a witness from being qualified as an expert, Mr. Levy has not shown that he possesses the relevant qualifications necessary to be an expert on this issue. See Pelts & Skins Export, Ltd. v. State, Department of Wildlife and Fisheries, 1997-2300, p. 4 (La.App. 1st Cir.4/1/99), 735 So.2d 116, 122, writs denied, 1999-2042, 1999-2036 (La.10/29/99), 748 So.2d 1167, 1168. As such, we find the trial court committed legal error in allowing Mr. Levy to testify in this capacity and then using his testimony as the basis for determining the amount of the lost future wage claim. On review, we find the court’s error interdicts the fact finder’s decision on this issue.

When the trial court commits legal error, which interdicts the fact finding process, the manifest error standard is not applicable. If the record is complete, the appellate court must undertake an independent de novo review of the record and determine which party or parties should prevail by a preponderance of the evidence. Ferrell v. Fireman’s Fund Insurance Company, 94-1252 pp. 3-4 (La.2/20/95), 650 So.2d 742, 745. However, “a de novo review, without any deference to the fact finder, is only appropriate when there is legal error implicit in the fact finding process or when a mistake of law forecloses the fact-finding process, such as when the fact finder’s decision has been tainted by an improper and prejudicial jury instruction or erroneously admitted prejudicial evidence.” Clement v. Frey, 95-1119, p. 2 (La.1/16/96), 666 So.2d 607, 612 (Lemmon, J. concurring).

While we recognize that as an appellate court, we are empowered under such circumstances to conduct a de novo review, we find that given the record before us, we are unable to do so. As the defendants correctly note, the findings and opinions set forth in Dr. Rice’s report were based solely on the figures and circumstances established by Mr. Levy. Dr. Rice testified that he did not perform any independent study to determine whether or not there were any jobs available in this state for a licensed professional counselor, which would pay an annual salary of $45,000.00. Also, in | «preparing his calculations, he was instructed to assume that plaintiff could never complete the licensing procedure for a licensed professional counselor, despite the recommendations of at least one of her attending physicians, Dr. Redden, that she complete the licensing process.

Because plaintiffs presented no other evidence to establish the value, if any, of her future wage loss claim, we are unable to determine the issue on the record before us. However, in the interest of fairness to the parties, we vacate the future wage loss award rendered by the trial court and remand this matter to the trial court to allow the parties to present the necessary evidence for proper determination of the amount, if any, plaintiffs should be awarded for Mrs. Levy’s claim for future lost wages.

This assignment has merit.

Assignment of Error Number Two (Future Medical Expenses and Maid Services)

In this assignment, defendants contest the trial court’s awards for future medical expenses and maid services. In order to recover future medical expenses, the appellate record must establish that future medical expenses will be necessary and inevitable. Richard v. St. Paul Fire and Marine Insurance Company, 94-2112, pp. 10-11 (La.App. 1st Cir.6/23/95), 657 So.2d 1087, 1093. An award for future medical expenses will not be supported in the absence of medical testimony that they are indicated and setting out probable cost. Rhodes v. State, Department of Transportation and Development, 94-1758, p. 21 (La.App. 1st Cir.12/20/96), 684 So.2d 1134, 1148, writ denied, 97-0242 (La.2/7/97), 688 So.2d 487.

| Nevertheless, when the record establishes that future medical expenses will be necessary and inevitable, courts should not reject the award because the record does not provide the exact value, if the court can determine from the record, past medical expenses, and other evidence a minimum amount that reasonable minds could not disagree would be required. Stiles v. K Mart, 597 So.2d 1012, 1013 (La.1992) (per curiam); LSA-C.C.P. art. 2164.

The evidence shows that after the fall, plaintiff lost her vision for approximately two minutes and immediately developed a “knot” on her head. She was transported by ambulance to Lakewood Hospital in Morgan City, where she presented with complaints of disorientation, headache, and soreness in her neck, shoulders and right side of her back. Plaintiff also complained of tingling sensations going down her right leg, when she arrived at the emergency room. The emergency room physician conducted an examination, ordered x-rays and a urine screen, and later released plaintiff to return home with certain restrictions and limitations.

On April 1, 1999, approximately six days after the accident, plaintiff was seen by Dr. Jeffrey C. Fitter, an orthopedic surgeon. At the visit, she complained of continuous headaches, dizziness, balance problems, soreness, stiffness, and an inability to move her neck from side to side with restricted motion. Dr. Fitter performed physical and neurological examinations and reviewed the cervical, thoracic, and lumbar spine x-rays taken at the emergency room.

As a result of his examination, he concluded that plaintiff had sustained a muscular injury to her neck and low back, which he classified as a cervical and lumbar strain. He further opined that, based on her symptoms, she had seemingly sustained a concussion in the accident. Dr. h nFitter prescribed a mild narcotic for pain and a muscle relaxer that he advised Mrs. Levy to take with caution and only after work.

Plaintiff returned to see Dr. Fitter on April 9, 1999. On this second visit, he concluded that her symptoms had not improved and that her findings on examination were more or less unchanged. In addition to her neck and back problems, she continued to complain of dizziness and was experiencing headaches and increasing problems on the job. Based on her difficulty in tolerating a full eight-hour work schedule, Dr. Fitter recommended that she restrict her work hours to four hours per day. After plaintiff returned on April 20, 1999 and May 4, 1999 with mild improvement, but persistent complaints of headaches and dizziness, Dr. Fitter ordered a CT scan and referred her to a neurologist, Dr. Kenneth Gaddis.

Dr. Gaddis first examined plaintiff on May 10, 1999. She presented with complaints of headaches, dizziness, and lower back and neck pain. Plaintiff indicated that she first became aware of the dizziness while waiting in the emergency room, soon after her fall. She described the feeling as an intermittent sensation that would vary from lightheadedness to true vertigo. The spinning sensations were, at times, so severe that her vision would blur and she would feel like she was losing her balance or was falling. Plaintiff further described chronic daily headaches, a pressure sensation that would vary in intensity throughout the day, and problems with her short-term memory, which she related to the slip and fall.

After conducting a neurological exam, Dr. Gaddis concluded that the symptoms plaintiff was describing were consistent with post-concussion syndrome and that she also may have developed a traumatic labyrinthitis. An MRI performed May 12, 1999 reported normal findings; however, ENG Id studies reported abnormal findings, supporting his diagnosis of labyrinth-itis. Dr. Gaddis suggested that she seek a full evaluation by an ENT specialist, Dr. Paul Gaudet, for treatment of her complaints of loss of balance and vertigo. However, during the course of her treatment, Dr. Gaddis also recommended physical therapy, prescribed Antivert for dizziness, and prescribed Depakote, which is an anti-convulsant medication for epilepsy, that also has the benefit of reducing the frequency of migraine headaches. Plaintiff was also taking Imitrex, which was primarily used as a migraine medication.

When plaintiff was seen by Dr. Gaddis on December 2, 1999, he concluded that her labyrinthisis was back to normal; however, she continued to complain of dizziness and presented with symptoms that suggested she was suffering from depression. In May of 2000, Dr. Gaddis prescribed Effexor, an anti-depressant, in response to plaintiffs complaints. Plaintiff attributed her difficulty in taking tests and problems with her short-term memory to her use of Depakote. Thus, Gaddis tried to reduce the dosage to help improve her cognitive abilities and also tried substituting it with other medications. Plaintiff reported no success with the other medications, and returned to the Depakote.

By November of 2000, Dr. Gaddis referred plaintiff to Dr. Marsha Redden, a clinical neuropsychologist, for evaluation and management of her depression. He also recommended physical therapy to help with her walking. On plaintiffs visit of April 17, 2001, Dr. Gaddis changed her anti-depressant prescription to Paxil. Dr. Gaddis recommended that plaintiff return to work in May of 2001, with the understanding that he would continue to monitor her medications periodically from that point. He testified that all of her symptoms were consistent with post-concussion 112syndrome and that he felt she could be on these prescribed medications to treat her symptoms for a number of years.

Plaintiff was seen by Dr. Gaudet, a specialist in the field of otolaryngology, on May 25, 1999, upon referral by Dr. Gaddis. Upon examination, Dr. Gaudet’s impression was that plaintiff had damaged the utricle or saccule of her inner ear in connection with the fall. Until the problem was corrected surgically, he recommended that due to her complaints of dizziness, she not drive or climb, and further recommended that she receive treatment from Dr. James Soileau, who practices in the field of otolaryngology, but specializes in ear and vestibular problems.

Dr. Soileau’s testing revealed a 37% reduced function of her right side, and problems with lower frequencies on her right side. Dr. Soileau opined that the inner ear crystals in plaintiffs inner ear chambers had been repositioned by the fall, and that plaintiff would be relieved of some of her complaints of dizziness and vertigo problems if the crystals were positioned back in place. He performed the first surgery on Mrs. Levy’s right ear on August 18, 1999. Surgery was performed on her left ear on September 15, 1999. After the surgeries, Dr. Soileau determined that the crystals were in place and in normal position. Because plaintiff complained of recurring dizziness and balance problems, Dr. Soileau referred her to his partner, Dr. Gerald Gianoli, a neurotologist who specialized in ear-related problems.

Dr. Gianoli eventually confirmed his diagnosis of (1) benign paroxysmal positional vertigo; and (2) a right perilymphatic fistula, which would account for her complaints and symptoms. On March 7, 2001, Dr. Gianoli performed a third surgery, to repair the fistula tear at North Oaks Hospital. The surgery was performed under general anesthesia, after which he discharged plaintiff with instructions that she restrict her activities to five [ 1sdays of bed rest, six weeks of prolonged rest, to avoid any strenuous activity, and that she engage in a prescribed routine of eye exercises. Dr. Gianoli classified the surgery as an overall success and noted that plaintiffs post-surgery visits revealed significant improvement, with her dizziness improving 80-85%. Dr. Gianoli recommended that plaintiff increase her activities back to a normal activity level with a continued regimen of exercise to improve her gait and walking. At the second post-operative visit, he recommended that she return to work under these restrictions.

On December 13, 2000, plaintiff began treatment with Dr. Redden, upon referral from Dr. Gaddis, for depression. She continued in treatment with Dr. Redden through the date of trial. Dr. Redden testified that plaintiff seemed to do better in dealing with the anxiety component of the depression while on Paxil, and thought she was actually in a “mourning” stage rather than a true “depression,” in terms of dealing with her limitations. Dr. Redden recommended that plaintiff speak to her employer about limiting her hours to 20-25 hours per week, with a corresponding cut in pay. Dr. Redden made these recommendations in response to plaintiffs complaints that by Thursday of an average work week she was so stressed and fatigued that she could hardly function. Dr. Redden also recommended that plaintiff obtain her licensed professional counselor certification. She testified that as a licensed professional counselor, plaintiff would have greater flexibility and independence in her schedule and employment options, suggesting that plaintiff could open a private practice and would have a greater chance of finding part-time employment.

1 ^Considering the above medical testimony, we address each challenged award separately, as raised in brief by defendants.

A.Depakote/Imitrex

Based on a monthly cost of $56.68 for Depakote and $158.80 for Imitrex, the trial court awarded plaintiffs the sum of $80,124.00 for Depakote and $84,399.00 for Imitrex for the remainder of plaintiffs life expectancy of 44.29 years.

Dr. Gaddis prescribed Depakote and Im-itrex, to reduce the frequency of plaintiffs migraine headaches. According to Dr. Gaddis’ medical records, plaintiff reported that when she had tried to stop taking the Depakote, her headaches became more frequent and more intense. Dr. Gaddis testified that he did not see any point in stopping the medications and stated that plaintiff may be on the medications for a number of years. Dr. Gaddis further testified that 30% of patients with post-concussion syndrome have some permanent residual neurological deficits. Inasmuch as several years had already passed since the accident, and plaintiff was still presenting with symptoms consistent with post-concussion syndrome, Dr. Gaddis anticipated these medications would be fairly permanent medication for her, as she could reasonably expect to present with symptoms in the foreseeable future and possibly for the rest of her life. Based on this testimony, the trial court concluded plaintiff will need medication indefinitely in order to help with the headaches.

hsGiven Dr. Gaddis’ testimony, we are unable to say the trial court manifestly erred in drawing this conclusion and in awarding plaintiff the cost of the Depakote and Imitrex.

B. Paxil

Plaintiff was also taking Paxil, an anti-depressant medication, which cost $88.98 each month. Using the same method of calculation, the trial court’s award included $47,291.00 for plaintiffs use of Paxil over the course of her life. Dr. Redden testified that she had seen some improvement in plaintiff since she began on Paxil in March 2002 and that she expected more improvement from plaintiff in dealing with her anxiety, barring any other unforeseen trauma. She expected that as plaintiff moved on, put the LPC exam behind her, and established job stability, she would hope for improvement.

However, Dr. Gaddis testified that plaintiff could expect to continue with the symptoms associated with post-concussion syndrome for the rest of her life.

Considering this testimony and the record in its entirety, we likewise find no error in the trial court’s inclusion of future expenses for Paxil in its award to plaintiff.

C. TENS Unit

Upon plaintiffs discharge, Dr. Fitter prescribed a TENS unit to enable plaintiff to give herself portable treatments for pain in her lower back, shoulder blades, and neck. The unit was able to be clipped on plaintiff’s belt and used throughout the day. Plaintiff testified that she wore the unit on a regular basis, and used it two or three days during the week, in the evenings during the week, and virtually all weekend. Dr. Fitter testified that the unit could be used indefinitely, and that he expected she would need it for quite a h ¿while. Moreover, Dr. Fitter’s medical diagnosis was that she suffered chronic cervical and lumbar strain muscle injuries which had passed into the long term stage. The supplies that accompany the unit, including electrodes and skin cream, cost $207.53 each month. Using this figure, the trial court awarded plaintiff $55,149.00, representing the cost of use of the unit and supplies over the course of plaintiffs life. Based on the testimony, the trial court concluded that plaintiffs neck and back problems were chronic.

Considering this testimony and the record herein, we also find no error in this award.

D. Lab Tests/Office Visits

Dr. Gaddis testified that in order to continue on Depakote, plaintiffs blood count would require monitoring, and blood work would be necessary to check her liver function three or four times a year. He testified that she would have to be seen by a physician a minimum of three times per year to refill the medications. Calculating the lab cost for 3.5 times per year, based on $122.00 per test, the trial court awarded plaintiff $18,911.83 representing the costs of such testing over the course of plaintiffs life. The trial court also awarded costs for a minimum of three office visits a year with Dr. Gaddis, as required in monitoring her medication. Using a cost of $105.00 per visit, the trial court’s award was $13,951.00.

On review, considering the medical testimony herein, establishing that future regular office visits and lab work will be necessary, we again find no manifest error in the trial court’s award for these medical expenses.

E. Maid Services

Plaintiff testified that prior to the accident, she employed a maid to come into her home and perform cleaning services at a cost of $40.00 per service, every other week. Plaintiff contended that since the accident, she |17has been unable to perform tasks such as cooking, washing and drying laundry, ironing, and folding clothes, and putting clothes away. She testified that after the accident, she increased the frequency of those services to a weekly basis at an increased cost of $65.00 every week. Based on her weekly housekeeping expenses, the trial court awarded plaintiff $56,936.00 for maid services over the course of her lifetime, again utilizing a lifetime expectancy of 44.29 years.

Louisiana law allows, as an element of damages, reasonable housekeeping expenses necessitated by the incapacity of an injured spouse. Prevost v. Cowan, 431 So.2d 1063, 1068 (La.App. 1st Cir.1983). However, this award has been rejected in cases where the plaintiff employed a housekeeper prior to the accident or injury, and the evidence failed to show that plaintiff would be unable to perform substantially all of the usual household duties of a homemaker. See Prevost and Odom v. Claiborne Electric Cooperative, Inc., 623 So.2d 217 (La.App. 1st Cir.1993), writ denied, 93-2464 (La.12/20/93), 629 So.2d 1171.

In Prevost, although the thirty-year-old plaintiff was released to return to her customary employment after suffering a concussion in an auto accident, she likewise continued to suffer from headaches, anxiety, irregular sleep patterns, difficulty in focusing or concentrating on any one thing for any length of time, and depression for which she sought treatment. On appeal, this court affirmed the jury’s decision denying damages for such housekeeping expenses, as the testimony showed that it was customary for plaintiff to employ a housekeeper and that plaintiff, in fact, had employed a housekeeper prior to the accident.

Additionally, we find the record herein is void of any evidence or expert medical testimony to show that plaintiff will require maid services for 11Rthe remainder of her life. Noteably, each of plaintiffs physicians testified that she is able to return to work. Although plaintiff remains “depressed” and testified that she gets tired after working all week, there was no medical testimony presented to show that plaintiff is physically incapable or incapacitated from such duties, nor is there evidence establishing the need for weekly maid services. Because we find no adequate basis in the record to support an award for maid services for the remainder of plaintiffs life, we vacate this portion of the judgment.

Thus, we affirm the awards for future medical expenses and reverse the portion of the judgment awarding maid services.

Assignment of Error Number Four (Separate Award for Loss of Enjoyment of Life)

The trial court awarded plaintiff $50,000.00 for loss of enjoyment of life citing plaintiffs inability to continue to roller skate, difficulty in flying in airplanes, difficulty in having (and enjoying) sexual relations with her husband, inability to accomplish her goal of becoming a licensed professional counselor, and loss of independence and ability to maintain the high level of activity she enjoyed prior to the accident.

Citing jurisprudence from the Fourth Circuit Court of Appeal in support of their position, defendants argue that the award for loss of enjoyment of life is duplicative. Defendants further argue that the award is not supported by the record, as it is based in large part on the erroneous belief that plaintiff will never become a licensed professional counselor, which defendants contend is uncertain.

haUnder the facts presented herein, we note that this court has consistently recognized an award for loss of enjoyment of life as a separate and independent item of damages from physical pain and suffering. For discussion and comparison with other appellate courts, see Matos v. Clarendon National Insurance Company, 2000-2814, pp. 8-9 (La.App. 1st Cir.2/15/02), 808 So.2d 841, 847-848. Moreover, on review of the record, the award clearly was based on multiple factors, and was not contingent on merely plaintiff’s ability or inability to become a licensed professional counselor.

As such, we find no error in the trial court’s rendition of an award for loss of enjoyment of life as a separate item of damages, nor do we find the award to be manifestly erroneous.

This assignment also lacks merit.

CONCLUSION

For the above and foregoing reasons, we reverse the portion of the July 18, 2002 judgment of the trial court awarding $56,936.00 for maid services, and vacate the portion of the judgment awarding plaintiff $267,195.00 in future lost wages. We remand the matter to the trial court for consideration of this claim and for further proceedings consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.

Costs of this appeal are assessed against the defendants, Bayou Industrial Maintenance Services, Inc. and Transcontinental Insurance Company.

REVERSED IN PART; AFFIRMED IN PART; VACATED IN PART AND REMANDED.

McDONALD, J., concurs.

      . Defendants were also cast with costs of $6,600.81 and legal interest.

      . Finding merit to this argument, we preter-mit consideration of defendants’ other challenges to the trial court’s award for future loss wages.

      . For brevity, we have not delineated the other aspects of plaintiff's injuries giving rise to past medical expenses in the amount of $64,079.43.

      . In arriving at each award, the trial court calculated the monthly cost of each medication, multiplied by 12 months to arrive at a yearly cost, then multiplied the yearly cost by 44.29 years, which was life expectancy suggested by Dr. Rice.

      . The testimony showed that prior to the accident, plaintiff was an avid roller skater.


author: J^FITZSIMMONS, J.

text:
    Kerry L. KING v. WILLSTAFF WORLDWIDE, INC.
    No. 2002 CA 2625.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.
    Rehearing Denied Oct. 29, 2003.

      Yigal Bander, Baton Rouge, Counsel for Plaintiff/Appellee Kerry L. King.
    John H. Taylor, Monroe, Joseph J. Schilleci, Joseph B. Guilbeau, Metairie, Counsel for Defendant/Appellant Willstaff Worldwide, Inc.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   J^FITZSIMMONS, J.

Plaintiff, Mr. Kerry L. King, filed a disputed claim for compensation on August 3, 2001. He sought from his employer, Willstaff Worldwide, Inc. (Willstaff), benefits allegedly due from a work-related accident that occurred on January 9, 2001. After a hearing, the workers’ compensation judge found that the plaintiff proved that the work-related accident caused his injuries. The judge found that Mr. King suffered a temporary total disability, and awarded benefits for the temporary total disability, supplemental earnings benefits (SEBs), penalties, and attorney fees. Defendant, Willstaff, appealed. We reverse in part.

Factual findings in a workers’ compensation case, including the award of statutory penalties and attorney fees, are subject to the manifest error or clearly wrong standard of appellate review. Parfait v. Gulf Island Fabrication, Inc., 97-2104, p. 4 (La.App. 1 Cir. 1/6/99), 733 So.2d 11, 16; Patterson v. Long, 96-0191, p. 15 (La.App. 1 Cir. 11/8/96), 682 So.2d 1327, 1337, writ denied, 96-2958 (La.2/7/97), 688 So.2d 499. “[W]here two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La.1993).

After a thorough review, we find no manifest error in the choice by the workers’ compensation judge on the issue of causality between the accident and the injury. The record provides a reasonable basis for the judge’s finding that the work accident caused the pneumonia, which subsequently developed into emphysema, and necessitated the surgical intervention and treatment. Nor can we say that the judge committed clear error by (1) relying on the report of clear lungs to eliminate a prior case of influenza as a cause, or (2) accepting |3Pr. William Cherry’s opinion on the development of a soft rine within a week to ten days after the accident. Although Dr. Cherry was no longer an active surgeon, he began treating Mr. King seven months after the accident, and was accepted, without objection, as an expert in thoracic and general surgery.

The record also reasonably supports the trial court’s factual basis for an award of SEBs. Mr. King was a thirty-eight year old high school graduate who had worked in the construction industry as a machinist and general laborer. His job with Willstaff involved general labor. At the hearing, Mr. King testified that he attempted to work after his surgery, but could not complete a full day of labor. He also testified that Willstaff did not have a light duty job available when he inquired. Willstaff did not rebut the showing made by Mr. King, or establish that suitable light duty jobs were available during the times Mr. King was released to work within restrictions. See Seal v. Gaylord Container Corporation, 97-0688, p. 8 (La.12/2/97), 704 So.2d 1161, 1166. From these facts, we find no manifest error in the finding that Mr. King met his initial burden of showing that his work injury caused his inability to earn ninety percent of his prior average wage. See La. R.S. 23:1221(3)(a); Seal, 97-0688 at pp. 7-9, 704 So.2d at 1166; Freeman v. Poulan/Weed Eater, 93-1530, p. 7 (La.1/14/94), 630 So.2d 733, 739. The determination on a SEBs claim is dependent on the particular “facts and circumstances” of each case, but must be made in light of the “jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989) (rehearing granted on other grounds). Therefore, we find no error in the judge’s ruling that Mr. King was unable to earn ninety percent of his pre-injury wage because of the work-related accident. See Seal, 97-0688, p. 8, 704 So.2d at 1166.

|4However, on this particular record, we must reverse the award of penalties and attorney fees awarded pursuant to Louisiana Revised Statutes 23:1201 and 1201.2. Whether an employer acted unreasonably in failing to pay benefits, or acted arbitrarily in terminating benefits, depends primarily on the facts existing and known at the time the employer acted. Parfait, 97-2104 at p. 16, 733 So.2d at 24. At the time the employer discontinued medical benefits and refused to pay other compensation benefits, the only medical report known to the employer designated the pneumonia as non-occupational. The report did not link the pneumonia to the work-related accident. Thus, the employer could have reasonably found no basis for continued investigation of the claim, until the Cherry report was submitted to it.

In rebuttal, Mr. Kng argues that Wills-taff was timely notified of the Cherry opinion and relies on the compensation claim filed in August of 2001 and a report from Dr. Cherry. While those items are in the record, neither establishes when Willstaff was notified of Dr. Cherry’s opinion linking the accident to the injury. The claim does not discuss the Cherry theory at all, and the report contains no date or indication of when, or if, it was sent to Willstaff. Nor does the record contain other proof that the Cherry opinion was sent or received by defendants, Willstaff or its insurer, until shortly before the hearing. Without proof that the Cherry opinion on linkage between the accident and the injury was received more than a few days before the compensation hearing, we will not impose a duty of further investigation on the defendants here. Based on the facts known to Willstaff or its insurer at the relevant time, the defendants acted reasonably. Thus, we find that the judge was clearly wrong in finding |5that: (1) defendants acted arbitrarily and capriciously in terminating the medical benefits, and (2) defendants did not have a reasonable basis for refusing to pay other compensation benefits.

For these reasons, we reverse the award of penalties and attorney fees. We affirm the judgment in all other respects. The costs of the appeal are assessed equally to plaintiff, Mr. Kerry King, and the defendant-appellant, Willstaff Worldwide, Inc.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

GAIDRY, J., concurs without reasons.

      . Willstaffs workers' compensation insurer also appeared as a defendant at the hearing through its attorney. However, the insurer did not appeal.

      . On February 22, 2002, defendants sought a review of Mr. King's medical records from Dr. Brooks Emory. The request letter noted the transmittal of "medical records” and contained a brief review of treatment from January through February 5, 2001. The letter, however, did not specifically reference Dr. Cherry's records or his opinion. Dr. Emory was deposed on April 23rd, 2002, the day before the hearing. During the deposition, Dr. Emory testified that in preparation he reviewed Mr. King’s medical records and reports by Dr. Cherry. However, it is not clear when Dr. Emory received the Cherry opinion, nor was any date of notice to the defendants given.

      . Having found merit to the appeal, we deny Mr. King’s request for damages for the filing of a frivolous appeal. See La. C.C.P. art. 2164.