author: | .BROWN, C.J.

text:
    Wilbur FLINTROY, Plaintiff-Appellee, v. SCOTT CUMMINS SALVAGE, Defendant-Appellant.
    No. 36,857-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 10, 2003.
    Rehearing Denied April 3, 2003.

      Lunn, Irion, Salley, Carlisle & Gardner, by J. Martin Lattier, Shreveport, for Appellant.
    E. Roland Charles, Samuel H. Thomas, Tallulah, for Appellee.
    Before BROWN, CARAWAY and PEATROSS, JJ.
   | .BROWN, C.J.

This disputed workers’ compensation claim was filed after the employer discontinued benefits. The Workers’ Compensation Judge (“WCJ”) found in favor of the employee, Wilbur Flintroy, and against the employer, Scott Cummins Salvage (“Salvage”), reinstating benefits and awarding penalties and attorney fees. For the following reasons, we reverse that part of the judgment awarding penalties and attorney fees. In all other respects, the judgment is affirmed.

Facts

Flintroy was employed as a mechanic at Salvage in Monroe, Louisiana. On October 2, 1996, Flintroy was in the process of cutting a gasoline tank off of a truck with an acetylene torch (blowtorch), when fumes ignited and the tank exploded. He sustained serious injuries to his eyes and hands.

Salvage paid temporary total disability (“TTD”) benefits from October 19, 1996, through October 18, 2000, at a weekly rate of $160.50. Flintroy’s benefits were terminated in October 2000 based on a report from Dr. Marion Milstead, an orthopedic surgeon, approving a modified yard worker job. Flintroy filed this disputed claim on February 2, 2001.

The WCJ found that Dr. Milstead’s opinion only pertained to Flintroy’s hands. Dr. Joseph Barron, who was claimant’s primary treating ophthalmologist, never gave his approval for Flintroy’s return to work after an April 24, 2000, eye surgery. The WCJ found that Salvage should have made an inquiry concerning Flintroy’s eyes prior to terminating his benefits.

On May 10, 2002, judgment was rendered. First, the WCJ considered | ¡..evidence of Flintroy’s ability to perform some type of work, but stated that the “type and extent of those activities must still be determined” and ordered the reinstatement of claimant’s TTD benefits at a weekly rate of $160.50, retroactive to October 19, 2000, and continuing until claimant is released to work by Dr. Barron. Second, the WCJ appointed a vocational rehabilitation counselor to assist Flintroy’s return to the workforce. Third, the WCJ ruled that the section listed under number four of the yard worker job description entitled “fine manipulation,” shall be specifically addressed by Dr. Barron. Fourth, claimant’s medical bills which related to his eye injuries were ordered to be paid. Finally, the WCJ awarded to claimant penalties in the amount of $2,000 and attorney fees in the amount of $8,000.

Salvage appeals, raising three assignments of error.

Discussion

Standard of Review

Factual findings in workers’ compensation cases are subject to the manifest error/clearly wrong standard of review. If the factfinder’s findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.07/01/97), 696 So.2d 551; Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). Louisiana workers’ compensation law is to be liberally construed in favor of coverage. Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989).

1 cReinstatement of Benefits/Vocation of Rehabilitation/Forfeiture Under La.R.S. 23:1208

Salvage claims the WCJ erred in reinstating TTD benefits, ordering additional vocational rehabilitation and failing to find that Flintroy had forfeited all benefits because of willful misrepresentations. After reviewing the evidence, we cannot say that the WCJ was clearly wrong in regard to these findings and conclusions.

Hand Injuries

Dr. Myron Bailey, an orthopedic surgeon, treated Flintroy for his hand injuries. Dr. Bailey stated that claimant’s right hand had multiple displaced fractures and multiple punctate (marked with dots or tiny spots) wounds and that his left hand had sustained severe lacerations. Flintroy underwent surgery on the date of the accident, which included surgical de-bridement of his lacerations and manipulation of the fractures. K-wires, or cross pins, were inserted into his right hand.

In December of 1996, Dr. Bailey attempted to restore Flintroy to light duty; however, no such work was available. In September 1997, a functional capacity evaluation noted that claimant would be able to return to some form of work. Flintroy underwent physical therapy as recommended, but it had little effect. He also experienced post-traumatic arthritis.

On January 13, 1998, Flintroy underwent a second hand surgery. On August 27, 1998, Dr. Bailey cleared him to perform “modified work activities” and released him from his care. Dr. Bailey also estimated a 20% permanent physical impairment to the hand.

|4In July of 2000, Dr. Marion Milstead, another orthopedic surgeon, examined Flintroy’s hands and had him undergo a series of tests. On September 1, 2000, Dr. Milstead noted that claimant’s nerve tests were normal and observed that he had attained maximum medical improvement. Dr. Milstead did note, however, that Flin-troy had significant grip strength deficit and changes typical of osteoarthritis, which he related to the gas tank explosion injury. Nonetheless, on October 13, 2000, he released claimant to perform light to medium work. Dr. Milstead opined that Flintroy’s condition was permanent and approved a modified yard worker job.

Eye Injuries

Flintroy was first seen by Dr. Gerald Broussard, an ophthalmologist. Dr. Broussard referred claimant to another ophthalmologist, Dr. Joseph Barron, who saw Flintroy on October 4, 1996. Both physicians observed that claimant’s corneas, which are the clear front part of the eyes, were studded with minute metallic fragments from the gas tank explosion. Dr. Barron noted that claimant’s right eye had corneal abrasion, but there was no penetration of the foreign metallic fragments in either eye. At that point, Dr. Barron believed that any residual deficit in vision would be mild and that these fragments would likely slough off in a few weeks.

| RStill experiencing eye discomfort, Flin-troy again sought medical attention from Dr. Broussard. Claimant was referred to Dr. Karen Pendleton, another ophthalmologist. She performed laser surgery on March 26, 1997. Dr. Pendleton opined that claimant would reach maximum medical improvement within six to nine months after the surgery; she noted that he would be ready for light duty work which would not require depth perception.

However, Flintroy’s right eye irritation and vision problems continued. On October 9, 1999, Dr. Barron performed a corneal transplant surgery, or a graft. By November 19, 1999, claimant began to develop corneal vascularization, which signifies an increased inflammation, at the top part of where the graft had been performed. Dr. Barron removed one of the sutures at the site of the inflammation. He also noted that claimant’s left eye had actually improved to 20/30 vision at that time.

On November 29, 1999, Dr. Barron opined that claimant was temporarily totally disabled and could return to work in eight to 12 weeks. Flintroy’s work restrictions included no lifting of anything over 40 pounds and protective eye-wear for both eyes.

|fiDr. Barron observed a rejection of the October 9, 1999, graft surgery on December 3, 1999. Flintroy was still complaining of pain in his right eye. Dr. Barron saw corneal swelling and administered an injection for the inflammation at the top part of the graft. On December 17, 1999, Dr. Barron reiterated that claimant was temporarily totally disabled; he also reiterated his prior work restrictions, and increased his restriction that claimant lift nothing over 35 pounds to prevent jarring open the graft site.

On March 21, 2000, Dr. Barron approved of the job position as a salvage yard worker for Flintroy. On April 24, 2000, however, Flintroy underwent an emergency surgery for a ruptured corneal graft in his right eye. Dr. Barron performed the surgery and resutured his corneal graft. At that time, Dr. Barron restricted Flintroy from returning to work for one month and “then (Flintroy) would not be able to work out of doors for approximately three months.” Dr. Barron saw claimant from April 24, 2000, through March 23, 2001. On each visit, Flintroy continued to complain of eye pain and that there was no improvement in his right eye. His corneal graft was still considered a failure as of March 23, 2001. Dr. Barron finally concluded that Flintroy had “completely lost useful vision” and had a permanent total disability in his right eye.

Term of Award for Temporary Total Benefits

At the time of Flintroy’s injury, La.R.S. 23:1221(l)(d) provided:

An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made, and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required, or six months after the injury |7whichever occurs first. If the claimant contends that his disability is of a temporary nature, but extends beyond this six-month period, he must submit a claim for extension of the period of temporary total disability under La.R.S. 23:1310.3.

Therefore, the initial award of TTD benefits will be for, at most, six months after the date of injury. If the employee contends that his disability is of a temporary nature, but extends beyond this six-month period, he must submit a claim for extension of the period of TTD under La.R.S. 23:1310.3. La.R.S. 23:1221(1)(d).

While it is true that La.R.S. 23:1221(1)(d) provides that the initial award can only be for six months after the date of injury, this is not the case when the parties stipulate that the disability is ongoing. Smith v. Morris, 2002 WL 31894844 (La.App. 1st Cir.12/20/02), - So.2d -; Hughes v. Carroll Timber Co., 96-0031 (La.App. 1st Cir.10/01/96), 694 So.2d 331. The stipulation eliminates the burden of proving that claimant’s disability extended beyond the initial six-month period. Accordingly, benefits will be awarded on an ongoing basis until it is proven that the claimant no longer suffers from a TTD. Id.

In the instant case, it was expressly stipulated by both parties that the injury occurred on October 2, 1996, within the course and scope of employment. The record does not reflect that a claim for extension of the period of TTD was filed by Flintroy. However, Salvage continued to pay TTD benefits from October 19, 1996, through October 18, 2000. Despite paying claimant benefits for four years, Salvage now urges for the first time in this appeal that it should have stopped payment on April 2,1997.

|sWe find this argument disingenuous. After Flintroy filed his 1008 claim on February 2, 2001, Salvage’s answer disputing the claim never mentioned the six-month limit as a reason for terminating his benefits. In light of these facts and the law, we reject the argument that the initial award of TTD benefits should have ceased after a period of six months from the date of injury, or on April 2, 1997. To hold otherwise would contradict the ratio legis behind Section 1221. Furthermore, we are mindful of the jurisprudential tenet in favor of finding coverage for a workers’ compensation claimant. See Daigle, supra. Such continuous payment of benefits over a four year period is tantamount to an implied stipulation to a longer period of disability. See Smith, supra; Hughes, supra.

Alternatively, Salvage is asking this court to reconsider the evidence and give less weight to the testimonies of claimant and Dr. Barron. While Drs. Bailey and Milstead cleared Flintroy to return to work, their opinion was extended only to their orthopedic specialty relating to his hand injuries. As previously stated, Dr. Barron, who treated Flintroy for the injuries he sustained to his eyes, never cleared him to return to work following the April 24, 2000, emergency surgery to his right eye. The WCJ did not reject or give less weight to any medical opinion but correctly limited the impact to the particular specialty involved.

Nevertheless, the WCJ recognized Flin-troy’s ability to perform some type of work but found that the type and extent must still be determined. That finding, together with recommencing vocational rehabilitation | flcounseIing, requires a consideration of the law regarding supplemental earning benefits (“SEB”).

SEB were established in 1983 as a method of replacement of lost wages for partially disabled employees. The benefits are designed to replace lost earning capacity of workers who do not fall under the definition of total disability. Allen v. City of Shreveport, 618 So.2d 386 (La.1993). Entitlement to SEB is governed by La. R.S. 23:1221(3). To recover these benefits, the employee must first prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent or more of the wages he earned before the accident. La. R.S. 23:1221(3)(a). Once the employee’s burden is met, the burden then shifts to the employer, who, if he wishes to defeat or reduce SEB, bears the burden of proving that the employee is physically able to perform a certain job, that the job was available to the employee, and that the job offered or available is in the employee’s or employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Daugherty v. Domino’s Pizza, 95-1394 (La.05/21/96), 674 So.2d 947; Joyner v. Davison Transport, Inc., 28,880 (La.App.2d Cir.01/22/97), 688 So.2d 623. The amount of SEB is then based on the difference between the average weekly wage earned by the employee prior to the accident and the employee’s earning capacity after the injury. Id.

Although suffering a total disability in his right eye, Flintroy appeared to be capable of doing some type of work by the time of trial. Thus, we affirm the reinstatement of TTD benefits up to the date of trial and | ^thereafter award supplement earning benefits (SEB). The amount to be paid for both TTD benefits and SEB is the same.

Vocational Rehabilitation Services

Salvage argues that the WCJ erred by ordering it to provide further vocational rehabilitation counseling to Flintroy. It asserts that it has fulfilled its obligation to provide vocational rehabilitation to claimant, who has been an uncooperative party to such services offered. Salvage points out that it made two modified job offerings to claimant in March of 2000 and October of 2000.

The requirements for the rehabilitation of injured employees are set forth in La.R.S. 23:1226, which states, in pertinent part:

A. When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services.
B. (1) The goal of rehabilitation services is to return a disabled worker to work, with a minimum of retraining, as soon as possible after an injury occurs.

While Salvage contends that Flintroy’s claims of continuing disability are false, medical evidence adduced proved otherwise. Claimant has demonstrated that he is entitled to rehabilitation services, since the facts indicate that he is an employee suffering from a work-related injury which precludes him from earning wages equal to the amount earned prior to the accident. See La.R.S. 23:1226(A). The goal of rehabilitation is to return the disabled worker to gainful employment as soon as possible, with a minimum of retraining.

InWe agree with the WCJ’s order to provide vocational rehabilitation to claimant and find that Salvage is obligated to continue in its effort to work with the vocational counselor and Flintroy’s medical providers in an attempt to return him to gainful employment as soon as physically possible.

La.R.S. 23:1208

Salvage argues that Flintroy violated La.R.S. 23:1208 and has therefore forfeited his entitlement to any benefits. Salvage urges that surveillance of Flintroy established that claimant was indeed working and performing various activities, contradicting his disability claim that he was unable to perform the modified job position Salvage had offered. Salvage argues that the surveillance performed on Flin-troy revealed him executing the following activities: performing manual labor with a hoe at an apartment complex; driving one of his vehicles on numerous occasions; picking up lumber at a lumber yard and walking to a trailer; driving a load of scrap metal on a flat bed trailer; placing skirting at the bottom of a trailer; and performing auto repair work underneath his truck at his residence. Salvage also notes how Dr. Barron found significant callouses on both of claimant’s hands on June 1,1998, and June 18,1998.

Salvage further contends that prior to the October 2, 1996, accident, Flintroy “was no stranger to litigation and claim injuries.” He filed a workers’ compensation claim for an alleged knee injury in a Sterlington plant explosion. In 1993, Flin-troy was involved in a staged automobile accident as part of an automobile insurance fraud scheme. He was indicted by a federal grand jury and pled guilty to conspiracy. Also, Flintroy [^admitted to filing a plethora of claims for neck and back injuries due to automobile accidents.

The judgment rendered by the WCJ does not speak to the issue of forfeiture of benefits, although the claim was made in the employer’s amended answer. We can infer that the judgment’s silence as to this issue is a rejection of Salvage’s claim as a whole. Alexander v. Roy O. Martin Lumber Co., 00-1344 (La.App. 3rd Cir.05/09/01), 784 So.2d 872, writ denied, 01-1684 (La.09/21/01), 797 So.2d 676; Collins v. Family Dollar Stores, Inc., 99-0622 (La.App. 1st Cir.05/12/00), 760 So.2d 1210, writs denied, 00-2356, 00-2363 (La.11/13/00), 773 So.2d 727.

La.R.S. 23:1208 authorizes forfeiture of benefits upon proof 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. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. Resweber v. Haroil Construction Co., 94-2708 (La.09/05/95), 660 So.2d 7. All of these requirements must be present before a claimant can be penalized. Nolan v. Rawls Farming Co., 35,086 (La.App.2d Cir.10/31/01), 801 So.2d 524, writ denied, 02-0001 (La.03/15/02), 811 So.2d 910; Harris v. Bancroft Bag, Inc., 30,431 (La.App.2d Cir.04/09/98), 714 So.2d 44. Because this statute is penal in nature, it must be strictly construed, both in its sub stantive ambit and in its penalty provisions. Chevalier v. L.H. Bossier, Inc., 95-2075 (La.07/02/96), 676 So.2d 1072; Smalley v. Integrity, Inc., 31,247 (La.App.2d Cir.12/09/98), 722 So.2d 332, writ denied, 99-0072 (La.03/19/99), 739 So.2d 782.

We find no merit to Salvage’s assertion that Flintroy has forfeited his right to receive benefits under La.R.S. 23:1208. The videotaped surveillance of claimant mostly showed him driving his truck and conversing with others. In fact, he kept his right eye shut and rubbed it unconsciously on several occasions. Neither the tape nor the surveillance reports ever portray Flintroy as lifting anything over 35 pounds, nor do they prove that he obtained payment of any kind in exchange for the alleged work performed. While Flintroy was convicted of conspiracy in a staged automobile accident and instituted other accident litigation, Salvage has not shown that he willfully made false representations. Certainly these incidents may test his credibility but are not proof of misrepresentation in this case. The WCJ’s findings are supported by the record and are not clearly wrong.

Penalties and Attorney Fees

Recovery of penalties and attorney fees is governed by La.R.S. 23:1201.2. In Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/01/98), 721 So.2d 885, the supreme court states:

In summary, both penalties and attorney fees are now recoverable under Section 1201 F if the employer or insurer fails to commence payments of benefits timely or to pay continued installments timely (or to pay medical benefits timely) unless the claim is reasonably controverted. However, only attorney fees generally are now recoverable under Section 1201.2 if the employer or insurer arbitrarily discontinues payment of benefits due. (Emphasis added).

u Alice Bond, a licensed vocational rehabilitation counselor, was retained by AIG Claim Services in January 2000 to provide vocational services. She met with claimant’s physicians and discussed the modified job offers on several occasions. After claimant’s emergency eye surgery, Ms. Bond met with Dr. Barron on May 26, 2000. We are cognizant that, according to Ms. Bond, Dr. Barron indicated to her that Flintroy could perform the position offered by Salvage at this meeting. Despite Ms. Bond noting that Flintroy could return to work, Dr. Barron, as Flintroy’s treating ophthalmologist, never formally cleared him to return to the offered job position at Salvage after his emergency eye surgery in April 2000.

Considering these circumstances, we cannot say that Salvage arbitrarily discontinued benefits. The WCJ was clearly wrong in making such a determination.

Therefore, we reverse the award of penalties and attorney fees.

Medical Expenses

Specifically, the judgment orders “any medical services received by the claimant as related to his eye injury shall be paid for and/or reimburse(d) to claimant.” (Emphasis added). The WCJ does not rule that Salvage is to pay for future medical expenses; therefore we can surmise that the judgment is only for those medical expenses already incurred by claimant for his eye injuries.

The relationship of the work-related accident to claimant’s eye injuries is unquestioned. After considering the testimonies of Drs. Barron and Pendleton, claimant’s surgeries, medicines, and treatments were indeed 11sof a necessary nature. See Taylor v. Columbian Chemicals, 32,411 (La.App.2d Cir.10/27/99), 744 So.2d 704. Flintroy carried his burden of proving, by a preponderance of the evidence, the necessity and relationship of the medical expenses for his eye injuries to the October 2, 1996 work accident. Id. We are unable to find that the WCJ was clearly wrong in ordering Salvage to pay for Flintroy’s medical expenses relating to his eye injuries.

Conclusion

For the foregoing reasons, we REVERSE that part of the judgment which awards penalties and attorney fees. In all other respects, the judgment is AFFIRMED except that from the date of trial, rather than temporary total disability benefits, supplemental earnings benefits are awarded. All costs of this proceeding are assigned to the employer, Scott Cum-mins Salvage.

REVERSED IN PART; AFFIRMED IN PART.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . The job description for a "salvage yard worker” who would work an eight hour day includes:
      1) Unbolting and removing fuel tanks from trucks;
      2) Cutting frames from diesel and gasoline engine trucks using acetylene torch;
      3)Sorting salvaged parts into appropriate rows using a forklift and a bin to move parts collected.
      Heavier objects are to be moved with a forklift. Objects weighing up to 20 pounds are to be sorted by hand. The forklift has one step and two safety rails for entry into its cab. An average eight hour day yard worker will enter and exit the forklift cab 20-30 times.

      . Specifically, Flintroy underwent an "Excimer laser phototherapeutic keratectomy” to remove residual corneal metallic (iron) foreign body deposits with associated "subepithelial scarring and superficial punctate keratopa-thy.”

      . While Dr. Pendleton was treating Flintroy, he was under Dr. Barron’s and Dr. Brous-sard's care concomitantly.

      .This procedure is specifically called a "penetrating keratoplasty” and involved the removal of tissue from the cornea and then the insertion of "donor tissue” into the precise location of excision.


source: Caselaw Access Project

author: JjDREW, J.

license: Public Domain

text:
    Barbara McKINNEY, Plaintiff-Appellant, v. U.L. COLEMAN and Louisiana Worker's Compensation Corp., Defendants-Appellees.
    No. 36,958-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 14, 2003.

      Law Offices of Jack M. Bailey, Jr. By Jack M. Bailey, Jr., J. Allen Cooper, Jr., Mary Lou Salley, Shreveport, for Appellant.
    Hudson, Potts & Bernstein By Jan Peter Christiansen, Monroe, for Appellees.
    Before BROWN, STEWART and DREW, JJ.
   JjDREW, J.

In this workers’ compensation proceedings, Barbara McKinney appeals the denial of her request for lumbar spine surgery. We affirm.

FACTS

McKinney alleges that on September 1, 1999, she was cleaning an apartment for defendant when she slipped and fell, injuring her back, hip and shoulders, and sustaining chemical burns to her buttocks. She also alleges that on October 26, 1999, she stepped off a sidewalk while at work and experienced severe low back pain.

An examination of the record reveals the following relevant medical history of McKinney:

September 1, 1999: Treatment by Dr. William Till for chemical burns secondary to the fall.
• September 2, 1999: McKinney complained of mid-back pain to Dr. Till.
• September 7, 1999: Treatment for the chemical burns by Dr. John Epling. McKinney was also apparently treated at the LSUMC Burn Center later that month.
October 18, 1999: McKinney was examined by orthopedic surgeon Dr. A. Edward Dean. She complained of pain in her lower back, left shoulder and right hip. It was evident to Dr. Dean that the pain was mainly in her lower back. X-ray of the lumbar spine showed no definite abnormalities, but there may have been some slight narrowing and sacralization at L5-S1. Dr. Dean felt that she should be referred to another physician because he was unable to be of any further assistance regarding her treatment. Dr. Dean released McKinney and referred her to Dr. Edward Simonton as she requested.
October 26, 1999: McKinney was treated by Dr. John Epling. She complained that she felt something pop in her back and experienced worsened pain after she stepped down off a sidewalk.
|g« November 2, 1999, to March 2U, 2000: McKinney was treated by a chiropractor, Dr. John Thompson. She reached .maximum chiropractic improvement in March 2000 and was released and instructed to visit her primary care physician.
• September 1, 2000: McKinney was treated by orthopedic surgeon Dr. Pierce Nunley. She complained of pain in her neck, left shoulder and left back. X-ray of the lumbar spine revealed some spondylosis at L4-5 and L5-S1. He diagnosed low back pain with possible stenosis. Among Dr. Nunley’s suggestions were a MRI of the cervical and lumbar spines, and physical therapy to evaluate and treat the cervical and lumbar spines.
• September 18, 2000, to November 20, 2000: McKinney underwent physical therapy as prescribed by Dr. Nunley.
• October 8, 2000: McKinney received MRI’s of the lumbar and cervical spines. Dr. Nunley’s interpretation of the lumbar MRI was “[degenerative disc disease at 4-5 with broad base disc bulge creating mild central steno-sis and moderate to severe lateral stenosis.”
October 13, 2000: Dr. Nunley noted that therapy had helped McKinney somewhat, and that her major complaint was low back pain. He recommended an epidural steroid injection (“ESI”) at L4-5. If she did not experience significant improvement after the ESI, then he thought she would be a good candidate for surgery.
October 18, 2000: The ESI was performed.
November 1, 2000: McKinney saw Dr. Nunley for a follow-up visit. There was little improvement from the ESI. Dr. Nunley believed that McKinney had exhausted her conservative management options. He noted that McKinney wanted to consider surgery, which he thought was reasonable. He recommended a discography.
November 27, 2000: Electro-diagnostic examination and nerve conduction studies were performed by Dr. David Adams. He found electro-diagnostic evidence of bilateral carpal tunnel syndrome, but no such evidence of radicu-lopathy was found in the upper or lower extremities.
Is •December 18, 2000: A discography was performed by Dr. Nunley at discs L3-4 and L4-5.
• December 20, 2000: Dr. Nunley explained to McKinney the results of the discography, which showed concordant pain at 4-5 and a control level at 3-4. He also discussed her options, which were to do nothing or to have a “fairly significant procedure on her back.” The surgical options included a posterior lumbar interbody decompression, a posterior lumbar interbody fusion and a pedicle screw instrumentation. Dr. Nunley advised McKinney that if she could live with the condition and be satisfied, then that would be his recommendation. If she could not, then he felt that surgery was reasonable.
March 28, 2001: McKinney was evaluated by Dr. Edwin Simonton for a second opinion on behalf of defendants. Dr. Simonton stated that McKinney “[did] not have clinical findings to indicate an active or on-going injury of an orthopedic nature which requires surgery.” He believed that she had a myoligamental strain of the lumbar spine, from which she was recovering well, and he felt that her back problems persisted due to her prolonged period of reduced activity. He opined that McKinney had previously reached maximum medical recovery, and had lost some ground due to her reduced activity. He thought she should be able to return to work at that time, with some temporary restrictions.

On December 12, 2001, McKinney amended her 1008 Claim Form to seek a lumbar decompression at L4-5 as recommended by Dr. Nunley. Defendants requested utilization review.

By letter dated December 17, 2001, McKinney received notice that she was to submit to an Independent Medical Examination (“IME”) in Monroe on January 21, 2002. McKinney filed a motion for a protective order praying that the WCJ appoint an IME physician in Shreveport. The 14WCJ denied the motion for a protective order. On March 28, 2002, this court granted McKinney’s supervisory writ and ordered the WCJ to appoint an IME physician from the Shreveporh-Bossier City area.

By letter dated April 17, 2002, claimant received notice from the Office of Workers’ Compensation that an IME had been scheduled with orthopedic surgeon Dr. Gordon Mead on April 29, 2002, to address the necessity of a lumbar decompression at L4-5.

Dr. Mead examined McKinney on April 29, 2002. He agreed with Dr. Nunley’s interpretation of the lumbar MRI as showing a diffuse L4 disc bulge. Dr. Mead remarked in his evaluation:

It is my impression that this lady most likely sustained cervical and lumbar strain and sprain at the time of her injury. At this time, I find no objective evidence to support anything other than a soft tissue strain of her cervical spine. It is impossible to tell whether the bulging lumbar disc on MRI is a naturally-occurring finding in this lady at the age of 41 or whether it has anything to do with her injury or her persistent complaints of back pain.
Due to her obesity and her general lack of objective findings, I would not recommend that this lady undergo any surgery. I am unable to explain the level of her complaints of pain based on objective findings.
In my opinion, she should be able to do at least light duty type work. I probably would recommend against heavy lifting and repeated bending because of the bulging lumbar disc. I think this is a permanent condition.
I think she has essentially reached maximum medical improvement. I would not recommend any further evaluation or specific treatment.

Accordingly, the OWC did not recommend the lumbar surgery.

|fiBy judgment rendered on July 30, 2002, the WCJ found that McKinney was not entitled to the lumbar decompression at L4-5. McKinney appealed.

DISCUSSION

Necessity of Surgery

McKinney first argues on appeal that the WCJ erred in giving greater weight to the opinion of the IME physician, Dr. Mead, rather than to the opinion of McKinney’s treating physician, Dr. Nunley. McKinney points out that Dr. Nunley is an orthopedic surgeon who practices in the subspecialty of spinal surgery, while Dr. Mead is a general orthopedic surgeon who does not perform spinal surgeries and is without a subspecialty. Dr. Simonton has not performed a surgical procedure in over a decade.

The general rule is that the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. Williams v. Wal-Mart Stores, Inc., 00-0863 (La.App. 4th Cir.5/16/01), 787 So.2d 1134. However, La. R.S. 23:1123 provides:

If any dispute arises as to the condition of the employee, the director, upon application of any party, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director. The medical examiner shall report his conclusions from the examination to the director and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.

Our emphasis.

Nevertheless, the opinion of the IME physician is not conclusive, and the WCJ must evaluate all of the evidence presented in making a decision as | fito the claimant’s condition. Jennings American Legion Hosp. v. Daigle, 01-621 (La.App. 3rd Cir.11/14/01), 801 So.2d 550. The significant weight given to the opinion of the IME physician can be lesser or greater depending on the qualifications or expertise of the physician, the type of examination he performs, his opportunity to observe the patient, his review of other physicians’ examinations and tests, and any other relevant factors. Green v. Louisiana Coca Cola Bottling Co., Ltd., 477 So.2d 904 (La.App. 4th Cir.1985), writ denied, 478 So.2d 910 (La.1985).

We note that Dr. Nunley did quite a bit of editorializing in his patient notes, initially about Dr. Simonton and then later in anticipation of Dr. Mead’s decision:

December 18, 2001 — OFFICE VISIT:
The patient is here for follow-up. Apparently she has seen Dr. Simonton for a second opinion, and he has denied surgery. I find this puzzling as the patient has x-rays but we have not released our MRI, so therefore he didn’t look at any studies. Also, he does not do fusions, so I am a bit curious as to why Worker’s Comp would want a second opinion on a complex case to be obtained from someone who actually doesn’t do the procedure.
May 8, 2002 — OFFICE VISIT:
The patient is here for follow up. She went to her second opinion with Dr. Mead. I haven’t read the opinion but I can almost assuredly know that it is not in favor of surgery. In my experience I have never seen Dr. Mead approve lumbar fusion surgery.
From a WC standpoint it also needs to be pointed out that Dr. Mead is not a spine surgeon. He does not do lumbar fusion surgeries and hasn’t in at least many years.
I do not feel that it is appropriate for a doctor to give a second opinion on a procedure that they do not do as part of their normal practice. They certainly cannot understand the ^indications and contraindications of the patient’s selection that’s needed in order to make an appropriate decision as a spine surgeon who does similar procedures as part of their normal practice.

Dr. Nunley also provided a lengthy rebuttal of Dr. Mead’s conclusion in a July 15, 2002, patient note:

There have been some questions that have come up regarding Ms. McKinney’s care and [I] would like to clarify my position.
Regarding objective evidence for the patient’s condition it needs to be pointed out that she does have significant objective evidence. This is evidenced by the findings on MRI. She also has a transitional syndrome which is seen on x-ray which is correlated with increased lumbar disc syndromes. She also has a discogram which is demonstrated positive concordant pain at L4-5 as well as a control level....
I do not believe that her obesity will substantially affect any outcome from surgery. I have certainly operated on many patients that are even more obese than she is and with our operative techniques, do not feel that this will affect her outcome. There are some increased risks in doing the surgery itself and sometimes it would take a little bit longer to rehabilitate after the procedure but the final outcome should not be substantially affected. As far as the question about her disc and whether or not it was degenerative or pre-existing, I feel strongly, based on the data collected to date and primarily the fact that she has concordant discogenic pain at L4-5 as well as the objective findings on MRI that with a reasonable degree of medical certainty, her disc is the focus of the principal pain syndrome that she suffers from and is more likely than not related to the slip and fall that she allegedly sustained on September 1,1999.
Although it is not a comfortable position to disagree with a colleague, I feel it is important since this patient’s future is at stake, I think I need to be candid about her complicated lumbar spine condition. A Fellowship trained, Board Certified surgeon who specializes and treats essentially only spinal conditions who is going to do a technique that is not even performed in this community. The fusion is performed by a few other surgeons in this community. It is inappropriate for any doctor, no matter what their credentials are to give an opinion on a Iscomplicated case like this, if they do not do this kind of surgery or at least similar kinds of surgery treating the same conditions. This by no means is a comment directly against Dr. Mead, more to the fact that this is a complicated case just as if it were a difficult shoulder case, I should not give an opinion on that even though I am a Board Certified surgeon and have done many shoulder cases in the past.

Dr. Mead had the benefit of various medical reports in reaching his conclusion that McKinney had reached maximum medical improvement and should not undergo any surgery. This was essentially the same conclusion reached by Dr. Simon-ton. Incidentally, in October of 1999, McKinney requested that Dr. A. Edward Dean refer her to Dr. Simonton. Although Dr. Nunley as McKinney’s treating physician was a strong advocate of surgery, we note that according to Dr. Nunley’s patient notes from December 2000, when he discussed treatment options with McKinney, he told her that he would recommend that nothing be done if she could live with her condition. In addition, we recognize that although Dr. Nunley was McKinney’s treating physician, he did not treat her for this injury until a year after she slipped and fell. Accordingly, we decline to disturb the credibility determination made by the WCJ in giving greater weight to Dr. Mead’s independent conclusion. The WCJ was not clearly wrong in denying the requested medical procedure.

Results of Discogram

McKinney next contends the WCJ erred in relying on statements from defense counsel that Dr. Mead reviewed the discogram results. The statements were made at the hearing to determine whether the lumbar surgery would be approved:

IJTHE COURT:] This Court would point out and would note that Dr. Mead had an opportunity to review the medical evidence presented from Dr. Simon-ton, as well as Dr. Nunley. However, the Court would note, I believe the parties, counsel for the parties, did indicate with one exception, Dr. Mead not having the benefit of the outcome of the disco-gram, is that correct?
MS. SALLEY: That is correct.
MR. CHRISTIANSEN: That is correct.
THE COURT: The Court would note that in most instances it would give primary weight to the Independent Medical Examiner; however, in this case, this Court would note that one additional piece of evidence, the outcome of the discogram. As such, the Court would note the greatest specialty possessed by Dr. Nunley; i.e., being an orthopedic surgeon with a subspecialty in spinal surgery. The Court would also note—
MR. CHRISTIANSEN: Judge, if I could back up for a second.
THE COURT: Yes, sir.
MR. CHRISTIANSEN: A thought just occurred to me that I just wanted to point out. Dr. Nunley discussed the results of the discogram in his December 29, 2000 note, and that would have been reviewed by Dr. Mead. So Dr. Mead may not have actually — I guess, I don’t know what kind of films or results you would have with a discogram, but Dr. Mead would have been able to review Dr. Nunley’s reports and would have seen that one report regarding the results of the discogram.
MS. SALLEY: I think the Court would say he didn’t address it in his findings.
MR. CHRISTIANSEN: That’s true. Dr. Mead did not address the discogram in his report.
THE COURT: Okay. The Court was under the impression that Dr. Mead did not see the discogram report. But as pointed out by Mr. Christiansen, based upon that, Dr. Mead, at best, having possession of the report of Dr. Nunley, the Court, at this particular time, would deny the surgery recommended by Dr. Nunley, and accord greater weight to the Independent Medical Examiner, Dr. Gordon Mead, in conjunction with the medical opinion of Dr. Edmond Simon-ton.

ImWe note that McKinney’s counsel, Ms. Salley, did not object to Mr. Christiansen’s statements to the court. Mr. Christiansen was not testifying, but simply pointing out to the court that the results of the disco-gram were contained in Dr. Nunley’s reports. Dr. Mead stated that he had “reports from Dr. Nunley’s office as well as the above-mentioned other reports.” Dr. Nunley’s reports consisted mostly of patient notes, separate MRI interpretations and the discography operative note and flow-sheet. The MRI interpretations were one of the “above-mentioned reports.” In the patient notes, which were cumulative in nature, Dr. Nunley referred to test results, his impressions and what he discussed with McKinney on all of her visits up to that point. Dr. Nunley discussed the discogram results with McKinney during a December 29, 2000, office visit. The notes from this visit are on page four of an eight-page patient record. Thus, if Dr. Mead did not have the actual discography operative note in his possession, then he would have had the patient notes in which the discography was discussed. Finally, the results of the discogram, which showed that McKinney experienced pain at L4-5, were not conclusive to the inquiry of whether the bulging disc was related to her job injury.

Notice

McKinney next complains that neither she nor her attorney received timely notice of the IME. La. R.S. 23:1124 provides, in part:

A. If the employee refuses to submit himself to a medical examination at the behest of the employer or an examination conducted pursuant to R.S. 23:1123, or in anywise obstructs the same, his right to compensation and to take or prosecute any further proceedings under this Chapter shall be suspended until the examination takes place. The employee shall receive \^at least fourteen days written notice prior to the examination. When a right to compensation is suspended no compensation shall be payable in respect to the period of suspension.

Our emphasis.

Defendants clearly violated this statute as the letter giving notice of the IME was dated April 17, 2002, with the IME set for April 29, 2002. McKinney also complains that her counsel did not receive a copy of this letter and did not learn of the IME until defendants filed a motion for a continuance on May 3, 2002.

However, the failure to provide McKinney timely notice did not prejudice her case. Objections to the qualifications of Dr. Mead were made perfectly clear in Dr. Nunley’s patient notes. In addition, McKinney’s counsel never objected to the untimely notice at the hearing. Finally, we take note of La. R.S. 23:1317.1, which provides, in part:

F. Objections to the independent medical examination shall be made on form LDOL-WC-1008, and shall be set for hearing before a workers’ compensation judge within thirty days of receipt. No mediation shall be scheduled on disputes arising under this Section.

Nothing in this record indicates that McKinney’s counsel filed this objection upon learning of Dr. Mead’s appointment. McKinney’s contention is without merit.

DECREE

At appellant’s cost, the judgment is AFFIRMED.

      . We recognize that Dr. Nunley stated in the December 13, 2001, patient notes that there "seems to be some confusion that all I am wanting is a lumbar decompression L4-5.” He then refers to the December 29, 2000, patient notes. He also later criticizes Dr. Mead's expertise regarding fusion surgery. Nevertheless, a lumbar decompression is the treatment sought by McKinney in her amended claim.


author: | t STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Ean Lavar JOHNSON, Appellant.
    No. 36,854-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 14, 2003.
    Rehearing Denied April 3, 2003.

      Indigent Defender Board, by William R. Warren, Louisiana Appellate Project, by James E. Beal, Jonesboro, for Appellant.
    Richard Ieyoub, Attorney General, James M. Bullers, District Attorney, C. Sherburne Sentell, III, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   | t STEWART, J.

The defendant, Ean Lavar Johnson, was convicted of possession of a firearm by a convicted felon and sentenced to 15 years at hard labor, without benefit of probation, parole or suspension of sentence. He appeals citing the insufficiency of the evidence. We find that the evidence was insufficient to find the defendant guilty and reverse his conviction and sentence.

FACTS

At approximately 1:45 a.m., on June 29, 2000, the Minden Police Department answered a disturbance call from the Southern Inn Motel. When they arrived, the officers saw a car leaving the scene, which they stopped a couple of blocks away for a child restraint violation. Four adults and two small children were in the car. The officers placed their spotlights on the car, and throughout the investigation and search, did not observe any furtive movements by any of the occupants of the car. As Officer Wayne Chandler approached the automobile, he noticed the strong smell of marijuana. He also noticed that the driver appeared to be intoxicated. Officer Chandler also recognized the defendant, who was in the backseat, from past narcotic arrests and convictions. As a result, Officer Chandler focused his flashlight on the defendant to watch and see if the defendant attempted to dispose of narcotics while everyone else was removed from the car. The officer did not observe the defendant making any type of movement that would indicate that he was throwing down anything. But, the officer felt that the defendant appeared to be nervous and hiding ^something. The officer pointed his flashlight at the defendant’s feet, but he did not see anything on the floorboard.

Officer Chandler ordered everyone out of the car, with the defendant being last. During this time the defendant was reluctant to leave, and repeatedly asked “why do I have to get out?” After the defendant exited the vehicle, Officer Chandler searched the car, and found a small, .25 caliber automatic pistol on the floorboard of the car, near where the defendant’s feet had been. All of the investigating officers testified that Officer Chandler placed the pistol on the top of the car and asked the occupants whose gun was it. None of the occupants replied. However, because of the defendant’s three prior felony convictions, he was charged with possession of a firearm by a convicted felon.

At trial, the state called Monica Eason as an adverse witness. She testified that she was in the car, sitting in the middle of the backseat, next to the defendant. She testified that she was an acquaintance of the defendant, and that they had just picked up the defendant to give him a ride home. Eason further testified that the pistol belonged to her, and that she had found it next to a trash dumpster about three months prior to that date. Eason testified that she had been carrying the pistol in her purse for that three months. She also testified that the police removed the defendant from the car first, and placed him in a patrol car. She further testified that as she was scooting across the backseat to get out of the car, she took the gun out of her purse, and attempted to push it up under the driver’s seat. Eason testified that when the officer held the gun up and asked to whom it belonged, she |sremained silent. After being searched by a female officer, she was allowed to leave. Six days later, Eason went to the police station to make a written statement that the pistol was hers, rather than the defendant’s. Under questioning by the state, Eason could not provide any details as to how the pistol worked, including where the safety was located. She testified that it was the first gun she had handled. In response to questions from the state, Ea-son acknowledged that by testifying, she was admitting to possible crimes involving the pistol.

Tinyia Reeder was also called as an adverse witness by the state. She testified that she was also in the backseat of the car with the defendant and Eason when it was pulled over by Officer Chandler. She did not own the car and did not know the owner. She testified that she and the defendant were only friends. Reeder testified that the police removed the defendant from the car first. She further testified that as the police removed the defendant from the car, Eason whispered to her that she had a gun, and that she had put the gun under a seat. Reeder did not see the gun. Reeder initially could not recall which seat, but later testified it was the right seat.

After Eason and Reeder testified, the state recalled Officer Chandler to again testify. He testified that his version of the facts differed “slightly” from the testimony of Eason and Reeder. He testified that he took the defendant out of the car last, not first as Eason and Reeder recalled. He again testified that he put the pistol on the top of the car and asked “whose gun is this?” and no one came forward. After-wards, the gun was placed into [4evidence. Officer Chandler testified that the safety on the pistol was on the left side of the frame, not the right side, as testified to by Eason.

Lieutenant Jacob Hortman, with the Webster Parish Sheriffs Department, testified that he attempted to lift fingerprints off of the pistol, using the vapors from super glue, but was unable to identify any of the partial prints recovered.

Officer Tim Morris, of the Minden Police Department, testified that he also was at the scene when the pistol was recovered. Officer Morris testified that he assisted in removing and searching the occupants of the car, and the defendant was the last person removed from the car. He further testified that as best he could recall, he did not see any objects passed between any of the passengers. He further testified that if the defendant had made any furtive movement, he would have seen it, but the defendant did not make any movements. Officer Morris did not see when Officer Chandler found the pistol.

Sergeant Marvin Garrett, of the Minden Police Department, testified that he responded to a complaint about a disturbance at the Southern Inn Motel, and observed a car leaving the Southern Inn Motel with a small child standing up in the car. He informed Officer Chandler by radio that the individuals responsible for the disturbance were in that car, and that there was a violation of the child restraint law. Sergeant Garrett testified that the defendant was the last person to be removed from the car. Sergeant Garrett testified that he felt it appeared that the defendant was reluctant to get out of the car. He further testified that for officer safety, he watched for hand |smovements by the occupants of the car and did not observe any that night. He also testified that none of the passengers from the car admitted owning the pistol.

The defendant testified on his own behalf. He testified that on June 29, 2000, he never saw or possessed the .25 caliber pistol. Instead, he testified that his friends, Eason and Reeder, stopped and gave him a ride. Moments later, the car was stopped by Officer Chandler. The defendant testified that Eason and Reeder were sitting in the backseat with him, and he did not see them with the pistol.

At trial, the state and the defendant stipulated that on the date of the offense, the defendant was a convicted felon. The jury found the defendant guilty as charged. A PSI was ordered. On July 15, 2002, the defendant was sentenced to 15 years at hard labor, without benefit of probation, parole or suspension of sentence. The defendant filed a motion to reconsider the sentence, which was denied. This appeal followed.

Although the defendant has raised a number of assignments of error, we will first address the sufficiency of the evidence as it is determinative of the issue before the court, pretermitting discussion of the other issues raised on appeal.

DISCUSSION

Sufficiency of the Evidence

Possession of a firearm by a convicted felon is covered by La. R.S. 14:95.1.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The state can prove possession of a firearm by a convicted felon by either actual possession or constructive possession. The jurisprudence on proving possession of a firearm by a convicted felon was summarized in State v. Neeley, 30,008 (La.App.2d Cir.12/23/97), 704 So.2d 443, at 446-447:

In order to convict a defendant of possession of a firearm by a convicted felon the state is required to prove beyond a reasonable doubt (1) possession of a firearm; (2) conviction of any enumerated felony; (3) absence of the ten year statutory period of limitation; and (4) general intent to commit the offense. La. R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983); State v. Lewis, 535 So.2d 943 (La.App. 2d Cir.1988); State v. Miller, 499 So.2d 281 (La.App. 1st Cir.1986). General intent is shown when the proof shows that the perpetrator carried on his person a firearm. State v. Woods, 94-2650 (La.App. 4th Cir.4/20/95), 654 So.2d 809, writ denied, 95-1252 (La.6/30/95), 657 So.2d 1035 (La.1997). However, when the perpetrator has not carried the firearm on his person, the state must show that the defendant’s intent amounted to an|7intent to possess rather than a mere acquiescence to the fact that there was a firearm in his presence. State v. Woods, supra; State v. Heacox, 543 So.2d 101 (La.App. 3d Cir.1989).
Nevertheless, constructive possession, as opposed to actual possession, is sufficient to satisfy the possession element. State v. Day, 410 So.2d 741 (La.1982); State v. Washington, 605 So.2d 720 (La.App. 2d Cir.1992), writ denied, 610 So.2d 817 (La.1993). Constructive possession is demonstrated when the state shows the firearm was subject to defendant’s dominion and control. State v. Washington, supra. (Emphasis ours.) A defendant’s dominion and control over a weapon constitutes constructive possession even if it is only temporary in nature and even if the control is shared. State v. Washington, supra, and cases cited therein.
It is well-settled that mere presence in an area where contraband is found or mere association with an individual found to be in possession of such does not necessarily establish possession. State v. Viera, 449 So.2d 644 (La.App. 4th Cir.1984), writ denied, 450 So.2d 962 (La.1984). However, an individual found in close proximity to an area where contraband is located may be considered in constructive possession if the contraband is subject to his dominion and control. The determination of whether there is “possession” sufficient to convict depends on the particular facts of the case. State v. Walker, 514 So.2d 602 (La.App. 4th Cir.1987); State v. Trahan, 425 So.2d 1222 (La.1983); State v. Heacox, 543 So.2d 101 (La.App. 3d Cir.1989).

In the present case, the state’s case as to actual possession of the firearm by the defendant is very weak. The state does not dispute that there is no direct evidence of actual possession of the firearm by the defendant. No one testified seeing the defendant holding the firearm, nor were the defendant’s fingerprints found on the firearm.

Moreover, this case involves an unusual fact situation. The state attempted to establish possession of the firearm by a convicted felon by calling witnesses who asserted the firearm was not the defendant’s, and arguing to the jury that these witnesses were lying. The state offered no | ¡^evidence to show that the defendant ever possessed or had any dominion or control over the firearm. Instead, the state argues that it established, beyond a reasonable doubt, by circumstantial evidence, that the defendant had constructive possession of the firearm.

Circumstantial evidence is defined as evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Lilly, 468 So.2d 1154 (La.1985); State v. Turner, 591 So.2d 391 (La.App. 2d Cir.1991), writ denied, 597 So.2d 1027 (La.1992).

In all cases where an essential element of the crime is not proven by direct evidence, La. R.S. 15:438 applies. As an evidentiary rule, it restrains the fact finder in the first instance, as well as the reviewer on appeal, to accept as proven all that the evidence tends to prove and then to convict only if every reasonable hypothesis of innocence is excluded. Whether circumstantial evidence excludes every reasonable hypothesis of innocence presents a question of law. State v. Shapiro, 431 So.2d 372 (La.1982); State v. Hammontree, 363 So.2d 1364 (La.1978).

In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The appellate court must determine whether the evidence, viewed in the light most favorable to the prosecution, [9was sufficient to convince a rational trier of fact that all of the elements of the crime had been proven beyond a reasonable doubt. State v. Nealy, 450 So.2d 634 (La.1984); State v. Doby, 540 So.2d 1008 (La.App. 2d Cir.1989), writ denied, 544 So.2d 398 (La.1989). An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Lott, 535 So.2d 963 (La.App. 2d Cir.1988). When circumstantial evidence forms the basis for the conviction, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. The court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events; rather, when evaluating the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

m There is no evidence to support a finding that the defendant had sufficient dominion and control over the firearm to constitute constructive possession of the firearm. Whether there was sufficient dominion and control depends on the particular facts of the case, but none of the facts in this case establish the defendant’s dominion or control over the firearm.

In cases involving constructive possession of contraband, the state must adduce more evidence than the defendant’s mere presence or proximity to the contraband. State v. Walker, supra. In State v. Toups, 2001-1875 (La.10/15/02), 833 So.2d 910, the officers saw the defendant sitting on a sofa in front of a coffee table with crack cocaine and paraphernalia in clear view. The supreme court found proof of constructive possession, based on the defendant’s obvious knowledge that the drugs were present, her relationship with the homeowner, evidence of recent drug use, and her proximity with the drugs. In State v. Blount, 01-844 (La.App. 5 Cir. 12/26/01), 806 So.2d 773, a .380 caliber pistol, without a clip, was found on the floorboard of Blount’s car, the loaded clip to the gun was found in his pocket, and Blount admitted to owning the gun. In contrast, in State v. Fisher, 94-2255 (La.App. 1 Cir. 12/15/95), 669 So.2d 460, writ denied, 96-0958 (La.9/20/96), 679 So.2d 432, a pistol clip in the felon’s pocket was found not to be constructive possession of the firearm he knew to be in his car, because his sister had testified that it was her pistol, it was in her purse, and she had earlier taken the clip out when giving the pistol to a guard. In State v. Lewis, 535 So.2d 943 (La.App. 2d Cir.1988), three firearms were found in three different locations in the Lewis home, including in a night stand Indrawer beside Lewis’ bed. So many guns in different locations, including beside his bed, was sufficient to establish that the defendant had dominion and control of the firearms.

In the present case, the state went to great lengths to have all of the police officers clearly testify that they were concerned about the defendant either throwing down contraband or having a weapon. The defendant was told to remain still. All of the officers testified that they closely and carefully watched the defendant to make sure that he did not dispose of any contraband. All of the officers testified that the defendant never moved, other than to get out of the car at their command. All of the officers testified that they did not see the defendant make any furtive movements that could be construed as having thrown down the pistol. Nor did the officers see any of the other passengers make any such furtive movements. The only evidence supporting the conviction is that the gun was found near the defendant’s seat in the car after his removal from the vehicle. Viewed in a light most favorable to the state, this testimony does not exclude other reasonable possibilities that: 1) the weapon was on the floorboard of the car prior to the defendant getting into the car; 2) one of the other passengers or the driver dropped the firearm on the floorboard before the police arrived; 3) one of the other passengers of the car was discreet enough in dropping the firearm while the defendant was being watched that the police did not see the movement, nor the firearm falling.

As such, it becomes difficult to see how a rational juror would find that by the defendant remaining motionless in the car proves he either ^possessed the firearm or had sufficient dominion or control over the firearm found near him to constitute constructive possession. Without further evidence to support either actual possession or dominion and control of the firearm, the defendant appears to have been convicted because of his mere presence in the area where the gun was found.

Additionally, any constructive possession argument is further weakened by the fact that the car was not the defendant’s. The state established that he was either a hitchhiker or a guest passenger. As such, the defendant had no dominion or control over the automobile to support a presumption of constructive possession. Nor does any of the evidence show that the defendant had any actual knowledge of the pistol being in the car.

The state’s reliance on the fact that none of the occupants of the car stepped forth to claim the gun when asked is irrelevant. This argument overlooks the fact that the defendant and the other occupants of the car had an absolute right to remain silent when questioned about a possible crime, and that this silence cannot be used against them. U.S. Const. amend. V; La. Const. art. 1, § 13.

The state attempted to prove its case by calling as witnesses the other two rear-seat passengers, both of whom asserted that the firearm was not the defendant’s, and then discrediting their testimony. It is apparent from the guilty verdict that the jury chose not to believe the two witnesses. Nonetheless, this court’s review of this case under the sufficiency-of-the-evidence evaluation of Jackson v. Virginia, supra, leads us to conclude that the evidence was not sufficient to convince a rational trier of fact of the defendant’s guilt beyond a | ^reasonable doubt. The evidence was not sufficient to prove either who possessed the firearm or that it was the defendant, and not the other passengers in the car, that had sufficient dominion and control over the firearm to constitute constructive possession. Accordingly, we are compelled to reverse the defendant’s conviction and sentence.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are reversed.

REVERSED.

GASKINS, J., dissents without reasons.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, PEATROSS, and KOSTELKA, JJ.

Rehearing denied.

GASKINS, J., would grant rehearing.


author: JjSTEWART, J.

text:
    Virginia Dyson SMITH, Plaintiff-Appellee, v. Jerome J. SMITH, Defendant-Appellant.
    No. 36,910-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 14, 2003.

      William H. Ledbetter, Jr., Bossier City, for Defendants-Appellants, The Succession of Jerome J. Smith and Marion Angela Carpenter Smith.
    James D. Hall, Bossier City, for Defendant-Appellant, Bossier City Fireman’s Pension and Relief Fund.
    Sockrider, Bolin, Anglin, Batte & Bowers, by D. Rex Anglin, Shreveport, for Plaintiff-Appellee, Virginia Dyson Smith.
    Before STEWART, PEATROSS and MOORE, JJ.
   JjSTEWART, J.

Marion Angela Carpenter Smith (“Marion”) and the Succession of Jerome Smith, Sr. (“Jerome”) appeal the trial court’s partition of proceeds from a Deferred Retirement Option Plan (“DROP”) and award of those proceeds to Virginia Dyson Smith (“Virginia”). The Bossier City Firemen’s Pension and Relief Fund (“Firemen’s Pension Fund”) appeals the award of survivor benefits under the Firemen’s Pension Fund to Virginia. Finding no merit in the appellants’ claims, we affirm.

FACTS

Virginia and Jerome, a Bossier fireman, were married in 1964 and divorced in 1988. The community of acquets and gains was terminated by petition to dissolve the community on September 2, 1987. Jerome married Marion on August 8, 1992. On March 31, 1993, Jerome enrolled in DROP. On March 16, 1998, Virginia filed a suit to partition the retirement benefits and pre-retirement survivor annuity under the Firemen’s Pension Fund.

Jerome died on July 14, 1999, at which time he was still employed by the Bossier Fire Department (“BFD”). He had been with the BFD since January 6, 1965. Marion was substituted in the suit as executrix of Jerome’s estate along with Jerome’s children. The Firemen’s Pension Fund and the BFD were later brought into the suit after a successful motion for a new trial by Marion.

When Jerome died, Marion was paid the lump sum of $111,489.00, as the designated beneficiary of DROP proceeds and special legatee of the DROP proceeds under the terms of Jerome’s will. Incidentally, this amount was later determined to have erroneously included interest and judgment li>;was entered in favor of the Firemen’s Pension Fund for the amount of the overpayment. Marion also received monthly retirement checks in the net amount of $1,499.23 from the Firemen’s Pension Fund.

The trial court found that since the money in the retirement account contained contributions from community funds while Virginia and Jerome were married, the entire balance, including the DROP program contributions, were subject to partition under Sims v. Sims, 358 So.2d 919 (La.1978). Accordingly, the court held that Virginia was entitled to $28,817.73 representing 32.44% of the lump sum payment received by Marion as a result of the DROP program and that she receive 32.44% of any benefit due and payable under the Firemen’s Pension Fund.

DISCUSSION

The issue of contention is Virginia’s entitlement to the survivor benefits and DROP proceeds. In Sims v. Sims, supra, the supreme court found that a party has an interest in a former spouse’s pension funds or rights when they become actually payable to or for the former spouse, in the proportion that they are attributable to the former spouse’s employment during the community. The court also set forth the formula to determine a party’s entitlement to a former spouse’s retirement benefits. The formula directs that the community interest in an unmatured retirement plan be expressed by a fraction, the numerator of which represents the number of years of creditable service that accrued during the existence of the community and the denominator of which represents the total years of creditable service. Sims directs that this fraction representing the ^community interest in the pension be multiplied by one-half to determine the non-employee spouse’s share of the retirement benefits. The employee spouse also receives one-half of the community fraction, as well as the full amount of the fraction representing the pre-and post-marriage years of service. See Also Bullock v. Owens, 35,078 (La.App.2d Cir.9/26/01), 796 So.2d 170; Withers v. Withers, 27,348 (La.App.2d Cir.9/27/95), 661 So.2d 529.

Survivor Benefits

In Johnson v. Wetherspoon, 96-0744 (La.5/20/97), 694 So.2d 203, the supreme court held that a former wife had a community interest in the survival benefits of her then deceased, former husband. The court also acknowledged that a “spouse’s right to receive an annuity, lump-sum' benefit, or other benefits payable by a retirement plan is, to the extent attributable to the spouse’s employment during the community, an asset of the community.” Johnson, supra citing Sims v. Sims, 358 So.2d 919, 922 (La.1978). The appellants assert that the trial court erred by interpreting the holding in Sims that “other benefits payable by a retirement plan,” also included survival benefits. The supreme court rejected this exact argument in Johnson, 694 So.2d at 206-7, noting that the Sims court stated:

[O]ur courts have uniformly held that, at the dissolution of the community, the non-employed spouse is entitled to judgment recognizing that spouse’s interest in proceeds from a retirement annuity, or profit sharing or contract, if and when they become payable, with the spouse’s interest to be recognized as one-half payments to be made insofar as they are attributable to the other spouse’s contributions or employment during the existence of the community.

| ¿Finally, as the Sims court declined to distinguish between retirement benefits and survivor benefits for the purposes of a community property partition, we too reject the appellants’ contentions and find that the trial court did not err by partitioning the survival benefits from the Firemen’s Pension and Relief Fund.

DROP Proceeds

Similarly, we reject the appellants’ contention that the trial court erred by partitioning the DROP proceeds. The appellants wish this court to follow the reasoning of Schlosser v. Behan, 98-280 (La.App. 5 Cir. 11/25/98), 722 So.2d 1129, writ denied, 98-3165 (La.3/26/99), 739 So.2d 791. In Schlosser, the fifth circuit affirmed a trial court ruling that the divorced wife was not entitled to share in the former husband’s DROP fund. The husband began working for the New Orleans Police Department one month before the parties were married. They were married in February 1968 and divorced August 1976. He entered the DROP program in 1993 and retired in 1996. He worked more than 25 years with the police department prior to entering the DROP program. He was married for 8]/¡ years. The fifth circuit found that, primarily because the husband did not enter the DROP program until 17 years after the termination of the community, the wife was precluded from receiving a portion of the former husband’s DROP benefits.

The reasoning of Schlosser has been criticized in Kenneth Rigby, Matrimonial Regimes: Recent Developments, 60 L.La.Rev. 405 (2000) This court has consistently held that such proceeds are subject to |ficommunity property division. McKinstry v. McKinstry, 36,285 (La.App.2d Cir.8/14/02), 824 So.2d 1260. Moreover the reasoning of Schlosser was specifically rejected by this court in Bullock v. Owens, 35,078 (La.App.2d Cir.9/26/01), 796 So.2d 170, and rejected by the third and fourth circuits in Sullivan v. Sullivan, 01-0006 (La.App. 3d Cir.6/13/01), 801 So.2d 1093 and Zalfen v. Albright, 2000-1225 (La. App 4 Cir. 7/18/01), 791 So.2d 800. The lynchpin of this conclusion rests upon the fact that even if a former spouse enters the DROP program after the termination of the community, the non-participating spouse is entitled to the portion of the funds that are attributable during the life of the community and such funds are subject to division according to the Sims formula. McKinstry, supra.

Consequently, we find that the trial court properly partitioned the DROP proceeds and the survival benefits in favor of Virginia Smith.

CONCLUSION

Based on the foregoing, we affirm the trial court. Costs are assessed to the appellants.

AFFIRMED.