author: | ¶ Chief Judge WILLIAM H. BYRNES III.

text:
    Mary HOBSON v. EAST JEFFERSON GENERAL HOSPITAL.
    No. 2002-CA-1212.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 8, 2003.

      Joseph F. LaHatte, Jr., Roderick Alven-dia, New Orleans, LA, for Plaintiff/Appel-lee.
    Charles E. Sutton, Jr., Campbell, McCranie, Sistrunk, Anzelmo & Hardy, Metairie, LA, for DefendanVAppellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III).
   | ¶ Chief Judge WILLIAM H. BYRNES III.

The defendant-appellant, East Jefferson General Hospital (“East Jefferson”), appeals a judgment rendered on March 25, 2002, in favor of the plaintiff-appellee, Mary Hobson, condemning East Jefferson to pay Ms. Hobson temporary total worker’s compensation benefits from September 8, 1999 to the present and continuing until she is released by her treating physician to return to work. Appellant also appeals that portion of the judgment awarding the claimant penalties and attorneys fees.

At the outset, we wish to emphasize that claimant has benefited greatly in this decision from the deference due by this Court to the findings of the workers compensation judge, as this is a very close case. Because of the close nature of this case, we have hereinafter analyzed the record at great length in order to demonstrate clearly that we have made our decision based on a review of the record as a whole and not just those portions of the record supporting the result we reached. See Ambrose v. New Orleans Police Ambulance Serv., 93-3099 (La.7/5/94), 639 So.2d 216.

East Jefferson disputes neither the occurrence of the accident, nor the fact that it occurred in the course and scope of her employment with East Jefferson. | g This case revolves around the extent and causes of claimant’s injuries along with the reasonableness of East Jefferson’s efforts to accommodate those injuries in the workplace and the reasonableness of East Jefferson’s decision to discontinue the payment of benefits.

Plaintiff alleges that on June 8, 1999, she received soft tissue injuries in an auto accident causing her to experience pain in her neck and lower back. She sought conservative treatment from Dr. Michael Haydel at Premier Medical Rehabilitation. Not long thereafter, on July 26, 1999, plaintiff was involved in another auto accident resulting in similar complaints for which she again sought relief from Dr. Haydel. During this period of time, plaintiff did not miss a single day of work. Nor did she ask for any modification of her job requirements or complain of any discomfort during this period of time. She scheduled her physical treatments at Dr. Hay-del’s office so that they did not interfere with her work schedule at East Jefferson. East Jefferson does not dispute these facts as alleged by the plaintiff.

Plaintiff slipped and fell flat on the floor in a puddle of water on September 8, 1999, while in the course and scope of her employment, resulting in the injuries giving rise to this litigation. She testified that her lower back was in extreme pain and she was unable to lift her legs. Pain was radiating from her legs to her toes. Her pain was qualitatively and quantitatively much more intense than that she experienced as a result of the automobile accidents. With the assistance of her fellow employees she was treated at the emergency room at East Jefferson. Immediately thereafter, on September 10, 1999, appellant was placed on temporary total disability.

| ¡¡Claimant testified as follows concerning the June 8,1999 car accident:

A. ... I was involved in a car accident. I was hit in the rear area. At the time, I went to Ochsner Hospital. I was having neck and shoulder area pains. From there, I was seen by a Dr. Michael Haydel on North Causeway Boulevard.
Q. And what type — when you went to Dr. Haydel for that June 8th, '99 accident, what type of pain were you experiencing when you eventually went and saw him?
A. I was experiencing pain in my neck area, stiffness, and my shoulder area.
Q. How did your lower back feel at that time?
A. It was just some stiffness, but nothing really major down in the lower back, just the upper part of my body.
Q. Could you describe, if any, any pain in your legs?
A. None at all.

Claimant testified that on July 26, 1999, her car was again struck in the rear as a result of which she reported the following pains to Dr. Haydel:

A. Mostly, just like I said, the upper part of my body, my neck area stiffness, just like — and, basically, like I said, the upper part of my body.
Q. And, let’s focus on your lower back. How did your lower back feel after that second accident in July of '99?
A. I had stiffness, but it wasn’t nothing major with the lower part of my back.
Q. Your legs, if any, could you describe any type of pain you were feeling in your legs?
A. I didn’t have, really any pains in my legs.

Claimant continued to do physical therapy and to take, “I think Ibuprofens.” She was able to continue all of her normal activities both at work and in her daily life. After the September 8,1999 slip and fall at East Jefferson General Hospital she experienced extreme lower back pain that she had not felt after either of the two recent car accidents. She also testified that as a result of the fall,

I was having pains in my left leg. I was having pains in my right leg. They were radiating down my leg, like |4burning and tingling. And, then, it got to the point where it started going to my toes.

She complained to the emergency room doctors that her entire back was in pain. On September 10, 1999, East Jefferson had her examined by Dr. Tamimie and Dr. Hawley. She complained to them that she was “having headaches then, stiffness all over, pain all over. Pain seriously in the lower part of my back.” She began doing physical therapy through Dr. Tamimie’s office, but discontinued it after a few days “because I was in real, real, awful pain.”

Drs. Tamimie and Hawley ordered an MRI on her lower back which Dr. Hawley reviewed. She then went to see Dr. Meyers on October 5, 1999, who recommended physical therapy and “light-duty, ten-pounds restriction.” At first she went to physical therapy three times a week which was later reduced to two times per week. Dr. Meyers prescribed several medications but she could not recall what they were.

She went to see Dr. Mímeles on October 18, 1999, based on a referral by Dr. Tami-mie. Claimant testified that the only advice Dr. Mímeles gave her was to go back to Dr. Meyers who he knew to be a fine doctor. She further testified that she was instructed by Mrs. Peggy Venture from East Jefferson to visit Dr. Mímeles a second time. Again, according to the claimant, Dr. Mímeles commented only on the fact that she was seeing Dr. Meyers. He made no mention of what work duties if any she should be capable of undertaking.

Claimant attempted to return to work on December 7, 1999, when she was expected to perform all of her regular duties:

I told them, at that point, that I couldn’t continue to do this, because it was causing me pain. I told it to my supervisor. And, she told me, she said, “Well, they knew that they didn’t have light-duty in housekeeping | .¡department anyway, before they even sent you back here.” Because I was told that by her, Mrs. Peggy Venture, in the beginning, they didn’t have light-duty work. That’s why they put me out from October the 6th. Then, she said, ‘Well, take your time, rest if you have to.” And that was it.

Claimant continued under those conditions until December 15, 1999, at which time she was switched over to answer the phone on the fifth floor. From December 7, 1999, until December 15 she worked in extreme pain. She went to see Dr. Meyers on December 14.

On December 16, 1999, claimant was shifted to the dietary department. The duty there caused her such pain that it reduced her to tears which she reported to her supervisor who told her,

... that she would contact Mrs. Peggy Venture, because I had mostly spoke with her all the time, she would contact Mrs. Peggy Venture the next day, which would be December 17th. But, I haven’t heard from Mrs. Peggy Venture nor anyone else since that.

Claimant was in such pain that she was unable to work after that day. She testified that no one ever explained to her why she was assigned to do jobs that continued to cause her such pain. She further testified that Mrs. Peggy Venture called her at her home the next day, December 17, 1999, and told her:

“You know, I heard you left in pain crying. Maybe we can find something else for you to do.” And, I just really never heard from her since then.

Claimant testified that for the next two months she had pain in her lower back and legs, headaches, “pains just from top to bottom.” She continued treating regularly with Dr. Meyers until June 20, 2000. He gave her an epidural injection. As a result of a mediation on February 16, 2000, she was supposed to be offered a chance to return to work under appropriate light duty restrictions. She expected | ^someone from East Jefferson to contact her with a light duty assignment, but no one ever did. She was fired on February 24, 2000, for missing a corporate compliance meeting which she did not think was mandatory. She testified that the same instruction was offered repeatedly and could easily be made up. She has not worked since that time. East Jefferson produced copies of correspondence notifying claimant of the mandatory nature of the meeting.

On February 18, 2000, claimant slipped and fell in a wet area in a Winn-Dixie store. Up to that time she had experienced no amelioration in her symptoms arising out of her fall at East Jefferson. She testified that the pain she experienced in the fall at Winn-Dixie was nothing in comparison with the fall she experienced at East Jefferson, because at East Jefferson she “fell completely on my back.”

At the time of her Winn-Dixie fall she was still being treated by Drs. Haydel and Meyers. In connection with the Winn-Dixie fall she also started seeing Drs. Abraham Rudnick and Dr. Bickman. She underwent physical therapy with Dr. Rud-nick at the same time that she was still undergoing physical therapy with Dr. Meyers.

On May 31, 2000, she went for another MRI of her lower back as ordered by Dr. Rudnick. This MRI revealed a herniation of the L5-S1 lumbar area, as a result of which, Dr. Rudnick referred her to Dr. Charles Billings. Dr. Meyers released her to Dr. Billings at this point and recommended surgery.

On July 17, 2000, Dr. Rudnick ordered a myelogram and a CAT scan of her lower back. Claimant testified that these tests showed herniation as well as bulging at L2, L3, L4, L5, and SI.

Claimant testified that after reviewing X-rays from East Jefferson, Dr. Billings told her that surgery would be in her best interest. She went back to Dr. |7Mimeles in October of 2000. He did not recommend surgery at that time. She did not see Dr. Mímeles again after that. At the time of trial her pain had not improved. She cannot return to her work in the East Jefferson housekeeping department because both sitting and standing for any period of time is very painful for her:

Just to stand up and wash my hair, the bottom of my back feels like a hole is in it. Just to even get in my car sometime and get out causes me pain.

At the time of trial she was taking Vico-din four times a day. Before going on Vicodin she had been on Darvocet. She used to work out regularly at Puritan Sports, but had not been back since her fall at East Jefferson.

In August of 2001 she was involved in another automobile accident, when she was rear ended at a red light.

On cross examination, claimant admitted that after the June and July of 1999 auto accidents she was unable to engage in biking, swimming, health club workouts, etc. She testified that she told Dr. Haydel about her fall at East Jefferson on September 8, 1999, but there is no mention of it in his records:

Q. And, in fact, Mrs. Hobson, as of December 1999, when he released you, he still — it was your treating doctor’s position at that time, Dr. Haydel, that your problems were the result of the July 26th, 1999 accident; isn’t that correct?
A. My problems were the result of the July 26th accident?
Q. Yes.
A. That I was experiencing at that time?
Q. Yes. When he released you in December 1999?
A. Yes. That would be correct.

Is At Dr. Mímeles’ behest, Dr. Fleming conducted EMG and nerve conduction studies of the claimant’s back and legs, all of which came back in the normal range.

She filed suit against Winn-Dixie alleging that she suffered permanent disability as a result of the fall at Winn-Dixie.

Dr. Meyer only recommended surgery in August of 2000, after the Winn-Dixie accident.

Dr. Mimeles testified that when he first saw the claimant on October 18, 1999, he found no objective findings, only subjective complaints and restricted motion. His review of her MRI indicated only degenerative changes. He testified that the September 17, 2000 lumbar MRI CAT scan and the myelogram showed disk herniation at L5-S1 that had not existed at the time of the 1999 MRI and EMG.

Dr. Mimeles testified that it was a “no brainer” that if the original tests were in the normal range, but the test results were definitely different after the fall at Winn-Dixie, then the injury-abnormality, in this case the herniated disc, cannot be attributed to the earlier fall at East Jefferson.

Dr. Mimeles testified that:
Based on two negative studies, there is not a structural mechanical problem going on. There is not a ruptured disk, not a fissure, there’s not a broken bone. So, we’re at a soft tissue injury.
Everybody has ... different feelings. At six to eight weeks, this should be well on its way to resolving. Now, somebody asked me — at that time, she goes back to see Dr. Meyers, and he says, you know, I think she ought to go back, “Yes, she can go back, but it ought to be on light-duty for a while longer.” I have no problems with that. At this point in time, I’m thinking that I’ve done two diagnostic studies. They’re essentially normal. And, jfla soft tissue injury two months down the road should be well on its way, if it’s not back, but almost totally normal to almost normal.

When asked why he thought that as late as December 13, 1999, Dr. Meyers returned claimant to light-duty work, Dr. Mimeles responded:

I can’t speak for Dr. Meyers. When I get into soft tissue, and if you look at his notes, he mentions that this is a soft tissue sprain. He is not talking about a herniated disk, at least to — now, when you get into soft tissue injuries, I’m looking at notation, as a matter of fact, October 5th, the second page, “Findings suggest a cervical and lumbar strain. Light-duty work is advised.” That’s October 5th. You know, I’m talking about a month later even.

Dr. Mimeles went on to explain that he felt soft tissue injuries should resolve themselves in eight to ten weeks, but that Dr. Meyers might be of the opinion that it might take a little longer. Dr. Mimeles conceded that the estimated time in which a soft tissue injury should resolve itself is a matter concerning which reasonable medical practitioners could differ.

Dr. Mimeles said that the epidural that Dr. Meyers prescribed for the claimant in January of 2000 would not have been for a soft tissue injury:

If you’re getting an epidural, you’re usually getting an epidural for degenerative disk disease, nerve root inflammation, something around the spinal canal, because you’re putting this cortisone shot all the way down in the spinal canal. [Emphasis added.]

Dr. Mimeles could only offer conjecture as to why Dr. Meyers prescribed the epidural in January:

[Claimant] possibly continued to complain of pain down the leg, albeit, the diagnostic studies were negative. And, possibly, you know it’s an invasive procedure. It’s a stick. It’s pretty innocuous and benign to do an epidural steroid injection, but I can’t sit here and give you a definitive answer why Dr. Meyers decided to do that. [Emphasis added.]

ImBecause epidurals are not indicated for soft tissue injuries, claimant argues that we should infer more serious injuries. This would be rank speculation, not reasonable inference where nothing in Dr. Meyers’ records indicate more serious injuries, or even a suspicion of more serious injuries, or what the nature and cause of any such injuries might be.

Dr. Mímeles explained his reading of the MRI performed on the claimant in September of 1999 after she fell at East Jefferson:

The radiologist does not mention any disk herniation, protrusions or bulges. I think I mentioned at one place that I saw, maybe, a slight bulge at 4-5, that he didn’t mention. And, again, this is kind of to each his own. But, when you really look at it, the disk in question is not even at 4-5. Nobody talks about disk pathology at 5-1, which is the disk that herniated.

When asked if the East Jefferson fall could have possibly caused what might be interpreted as a bulge on the September, 1999 MRI, Dr. Mímeles responded:

That bulge is a possibility that it could have. It’s a moot question, because it has nothing to do with the pathology in question with the disk at L5-S1. [Emphasis added.]

When asked if it were possible that the February Winn-Dixie accident aggravated the injury claimant sustained at East Jefferson, Dr. Mímeles explained:

It could. It could. But, we’re talking hypothets. Now, when you get into what actually happened in this case, and you do another MRI and the myelogram CAT scan, there’s no mention of any pathology at 4-5. So, the disk in question, causing her pain down the leg, and I guarantee, if Dr. Meyers was here right now or Dr. Billings, and you’d ask them what level they were going to talk about doing surgery, if the patient consents to have surgery done, it’s at L5-Sl. So, dancing around a slight bulge that could have been caused by the accident or what is was caused by, is pretty much a moot question, because that has no more bearing on this case than the Indisk at Ll-2, you know, as far as I know — * * * the only disk is found is at 5-1.

The trial judge awarded claimant all past, present and future, medical benefits and expenses. We find that this award should be amended so that it does not include billings from Dr. Haydel because Dr. Haydel’s records (he did not testify at trial) contain the following notation:

The functional dynamics of the accident as described by the patient and the overall results of the physical exam and orthopedic tests determines more probable [sic] than not that the current condition is a result of the accident which occurred on 06/08/99, and the injuries were derived from the reported mechanism of insult. [Emphasis added.]

Thus, in the face of Dr. Haydel’s conclusion that the problems for which he was treating the claimant were most likely attributable to the automobile accident that occurred prior to the fall at East Jefferson, claimant has failed to prove any entitlement to recover medical expenses from East Jefferson incurred with Dr. Haydel.

Likewise, future medicals shall not include any operation to correct the problem at L5-S1. There is no evidence of that problem following the fall at East Jefferson in September of 1999. That problem does not surface until after the fall at Winn-Dixie. There is no testimony and no medical records to relate that problem to the fall at East Jefferson. To the contrary, Dr. Mímeles testified emphatically and convincingly that, to a medical certainty, the problem at L5-S1 was unrelated to the East Jefferson fall, and must be presumed to have originated with the fall at Winn-Dixie.

Dr. Meyer’s report from his first examination of the claimant on October 5, 1999, concludes with the following:

| ^Findings suggest a cervical and lumbar strain. Light duty work is advised with no lifting more than 10 pounds. She is to return in three to four weeks. We will re-assess her condition following a course of physical therapy. [Emphasis added.]

On November 2, 1999, Dr. Meyer reported that:

It is my impression that Ms. Hobson has a cervical lumbar strain with associated degenerative disc disease.

When Dr. Meyer saw claimant in early January of 2000, he noted that she had returned to work “six days ago” and complained that a moderate amount of bending aggravated her symptoms. However he reported that:

Examination reveals no objective findings in the lower extremity. Deep tendon reflexes, motor testing, and sensation are normal. Neuralgic testing is also normal in the upper extremities. I have recommended a lumbar epidural steroid injection as her previous MRI only revealed borderline stenosis and some degenerative disease. She is to continue her light duty work and Motrin is prescribed. She is to return in two months. [Emphasis added.]

On February 8, 2000, Dr. Meyer prescribed Motrin and .Flexeril, but ordered a cessation to physical therapy as it was ineffective. He continued to recommend light duty work, but once again noted no objective symptoms.

On March 28, 2000, Dr. Meyer wrote the report of his visit with the claimant following her fall at Winn-Dixie:

Mary Hobson presents 03/28/00 with lower back and bilateral leg pain. She reports going to Charity on 2/15/00 because of pain and, at that time, radio-graphs were taken of the thoracolumbar spine, which are reviewed today and are normal. She then reports slipping on a wet floor at Winn-Dixie on 02/18/00 and landing directly on her buttocks and left leg. She describes a twisting injury to the leg. This injury aggravated her pre-existing problem. Radiographs were taken on 02/18/00 at Ochsner of the lumbar spine. I hshave reviewed these and they are essentially normal. She is on Motrin.
.... Findings are suggestive of a lumbar strain. Light duty work has been recommended, and is to be continued if work is available.... [Emphasis added.]

The claimant makes much of the statement above in Dr. Meyer’s report that: “This injury aggravated her pre-existing problem.” However, this cannot be read to mean that the herniated disc at L5-S1 has anything to do with a pre-existing condition. There is nothing in the record to contradict Dr. Mímeles’ convincing and logical explanation of why it is a “no brain-er” that claimant’s herniated disc has nothing to do with her fall at East Jefferson.

On April 18, 2000, when Dr. Meyer examined the claimant he noted lower back, neck and bilateral leg pain. However, he made no new findings.

On June 20, 2000, Dr. Meyer reported that:

HISTORY: Mary Hobson presents 6/20/00 with lower back and bilateral leg pain as well as neck pain and numbness in both hands. MRIs were ordered by Dr. Rudnick and those reveal a herniation at L5-S1 directed to the left. No significant findings were noted in the cervical spine.
PHYSICAL EXAMINATION: Examination at this time reveals symmetric and equal deep tendon reflexes in both the upper and lower extremities with normal motor testing and sensation.
IMPRESSION: It is my impression that Ms. Hopson’s symptoms may be x-elated to her lumbar disc herniation. She also has symptoms in the upper extremities, which may be related to peripheral nerve entrapment syndrome. [Emphasis added.]
PLAN: EMGs are advised of her upper extremities along with a myelogram and CT of the lumbar spine. Flexeril and Naprosyn are prescribed.

The July 17, 2000 report on the myelo-gram noted:

|14Piffuse bulging of the L3-4 and the L4-5 discs is evident. There is a broad based central disc herniation identified at L5-S1 which is slightly eccentric to the left.

Dr. Meyer’s report of August 11, 2000 notes the findings of the July 17, 2000 myelogram and makes the following observations:

Physical exam reveals increased back pain with straight leg raising. Deep tendon reflexes, motor testing, and sensation are normal in the upper and lower extremities. Examination of the upper extremities reveals no objective findings.
It is my impression that Ms. Hobson has a lumbar disc herniation, which would benefit from surgical treatment. She is referred to Dr. Billings for evaluation and possible surgery. EMGs are still pending, as noted above. [Emphasis added.]

On August 22, 2000, Dr. Meyer reported that claimant had seen Dr. Billings and “is considered a surgical candidate to address her lumbar disc herniation.”

Dr. Billings’ reports of examinations on September 22, 2000, January 25, 2001, April 26, 2001, August 21, 2001, November 20, 2001, all refer to surgery for lumbar disc herniation which is identified at L5-Sl.

East Jefferson disputes neither the occurrence of nor the employment related nature of her fall on the premises. An intervening cause does not exist when an employee is involved in a second accident which aggravates a work related injury. George v. Marcantel Feed Stores, Inc., 434 So.2d 440 (La.App. 3 Cir.1983). The aggravation is regarded as a development of the initial accident even though it occurs away from the employer’s premises. Id.

At first, claimant testified that when she went back to work under medical orders for light-duty work no job modifications consistent with the medical directive were offered to her. However, on cross-examination, .regarding the |^modifications to her job duties when she went back to housekeeping in December of 1999, claimant gave the following testimony:

Q. They didn’t require you to mop, did they?
A. No. That’s the only thing I didn’t do, was mop.
Q, Well, they modified your job, they didn’t require you to mop.
A. To an extent.
Q. They didn’t require you to do the trash, lift the trash?
A. They didn’t require it?
Q. That’s right. They modified your job. They didn’t require you to do the trash.
A. They didn’t require me to do the trash, but I had to do it. [Emphasis added.]
They told me I didn’t have to mop and not to pull the trash, but if the guy’s not there helping me do it, it’s my job restriction, I have to do it.
BY MR. SUTTON:
Q. I’m going to refer you to this deposition in this case, Page 102, and make sure I’m reading this correctly. Page 102, line 1, Question: “Did they, in any way, modify your housekeeping duties to fit within your — ”. Answer: “Schedule.” Question: “Restrictions?” Answer: “My restrictions, yes, to an extent, because mopping was out. I didn’t have to mop. And, I didn’t have to pull any trash, because that was part of what other than that, everything I did.”
A. I didn’t have to pull any trash, let’s just say on that one day. But, I did that schedule for my week, three or four days.

Claimant underwent the following cross-examination regarding communications with her employer after her last day on the job:

Q. And, you testified, Mrs. Hobson, that after December 16th, 1999, your last day of work, you never heard back from Ms. Venture or anyone from East Jefferson about trying to return to work?
A. She called me that morning to find out what happened that night. She didn’t say, Mary, return to work. She asked me what happened. I told her that it was causing me problems, that I was in pain. I told her that I was going back to see Dr. Meyers. She was saying that you need to come back to |1fiwork. If you miss such and such days, you will be written up for it, blah, blah, blah, blah.
THE COURT:
No blah, blah, blah, blah blah.
THE WITNESS
Me and Mrs. Peggy Venture have — she said a few words and I said a few words and, basically I just hung up the phone.
BY MR. SUTTON
Q. Isn’t it a fact that after your last day of work, Ms. Venture called you many times—
A. No.
Q. — to talk about coming back to work?
A. No, sir. No, sir. No, sir.

East Jefferson’s attorney then confronted the claimant with her inconsistent deposition testimony:

Q. Question: “Did anyone from the hospital call or write you after December 16th?” Answer: “Peggy Venture called my house frequently.” Question: “And, what did Peggy and you talk about?” Answer: “We talked about why I left. I told her to talk to the lady in dietary. I ain’t going there right now. Don’t ask me. And, they would find something under the restrictions by Dr. Meyers, which they never did.” So, in fact, Ms. Venture did followup with you numerous times after December 16th?
A. I wouldn’t say numerous times. She had called me on one occasion.
Q. She called you frequently.
A. That was beforehand. That was before December the 16th. She called me before' — ■
THE COURT
I got your point, Counsel. You can move on.

Claimant could not recall having received any letters from East Jefferson in January about returning to work.

|17Ms. Peggy Venture described herself as a registered nurse in the Team Member Health Department. It was her task to investigate accidents and to follow the progress of employees from injury through their return to work. In doing so, she would receive the employee medical reports and would monitor and coordinate their medical treatment. As a result of claimant’s accident and the medical reports Ms. Venture received from claimant’s physician’s, Ms. Venture directed that claimant be assigned light-duty responsibilities. However, Ms. Venture admitted that she had no direct knowledge of whether the work actually performed by the claimant pursuant to her directive was within the limitations prescribed by claimant’s treating physician. She explained that although she had received letters from Dr. Meyer in October and from Dr. Mimeles in November indicating that claimant could return to light-duty work, there was no light-duty work available until December. On December 7, 1999, Ms. Venture reported back to the Environmental Services Department, but had problems with the work assignments there, so claimant was transferred to the dietary department where she was assigned to wrapping silver.

Ms. Venture also testified that she did not recall having talked to claimant after she stopped working in December. She conceded that it would be improper to “write up” the claimant for going to the doctor for a work-related injury. Ms. Venture also conceded that what claimant testified she actually did on the job would not have been within light duty restrictions, but she contended that, “That’s not what I placed her back to do.” However, she admitted that she had no personal knowledge of what work claimant actually performed. The hearing below concluded with the following colloquy between the judge and Ms. Venture:

J^THE COURT:
I just need a little clarification, Ms. Venture. It took you, what, about a month and a half to locate what you call a light-duty position?
THE WITNESS:
Yes, ma'am.
THE COURT:
For—
THE WITNESS:
Mrs. Hobson.
THE COURT:
—Mrs. Hobson. What was that position?
THE WITNESS:
She’d be working within her previous department, working in Environmental Services. It was my understanding that she was going to be doing things such as dusting—
THE COURT:
What was the position? I didn’t ask you about the duties. What was the position?
THE WITNESS:
Her same position.
THE COURT:
It was the same position?
THE WITNESS:
Yes.
THE COURT:
Housekeeping?
|1flTHE WITNESS:
Yes, ma'am.
THE COURT:
Okay. So, how did housekeeping become a light-duty position almost two months after she had been released to light-duty? What prevented you all from modifying those duties then in October, that you were able to do now in December; what prevented that?
THE WITNESS:
At the time, we did not have a light-duty program established. Agreements with the supervisors and their partners.
THE COURT:
Wait a minute. Are we talking about East Jeff General Hospital?
THE WITNESS:
Yes, ma'am.
THE COURT:
And, ya’ll have people getting hurt every day over there.
THE WITNESS:
Yes, ma'am.
THE COURT:
In housekeeping.
THE WITNESS:
Yes, ma'am.
THE COURT:
And, it wasn’t until this lady was hurt, ya’ll started that you establish a first— now, this is what you’re telling me, | ¡>nthe first light-duty position, this is my understanding, in housekeeping, was not established until December 1999?
THE WITNESS:
No, ma'am.
THE COURT:
Okay. Clear that up for me.
THE WITNESS:
Okay. Prior to, say, October, a light-duty program had been being discussed. And, it was going to different people who were speaking in regards to establishing a light-duty program. Up until then, we did not have a light-duty program.
THE COURT:
So, if you were injured at East Jeff, and you were performing your regular duties, which were above light duty, that would be medium heavy; is that right? Then you have light and sedentary? So, if you worked in a heavy or a medium position, and you were injured on one of those jobs, the doctor released you with restrictions, saying you could only do light-duty, prior to December 4th or whatever ya’ll had, what day you had, those persons could not come back to work at East Jeff; is that what you’re telling me?
THE WITNESS:
They could come back to work if their job could fit within their restrictions, depending on what their restrictions were.
THE COURT:
Uh-huh. Okay. So, the light-duty position you had for her would have been a modified housekeeping positing [sic] in Environmental—
THE WITNESS:
Environmental Services.
THE COURT:
|21 — Services.
THE WITNESS:
Yes, ma'am.
THE COURT:
All right. Answering the phone at the nurse’s station, is part of Environmental Services?
THE WITNESS:
No, ma'am.
THE COURT:
Okay. How did she get there? Well, she had difficulty—
THE WITNESS:
Right.
THE COURT:
—performing what you all said was light-duty, she had problems with that. Okay. So—
THE WITNESS:
We had contacted departments throughout the hospital, explaining to them that if we had people who had restrictions, could they possibly use light-duty assistance in different areas about their need for assistance.
THE COURT:
Okay. So, if on any given day, you have an employee with restrictions, who can’t perform the light-duty position that you had for her, she would report to work and, then, knowing that she can’t do the job, you would find other positions to put her in at the hospital that were available for that day?
THE WITNESS
Yes, ma'am.
JjgTHE COURT:
That would also meet the requirements of light-duty with those restrictions. Now, what if she reports one day and no department needs someone, what do you do then?
THE WITNESS:
Throughout the whole hospital?
THE COURT:
Uh-huh.
THE WITNESS:
I generally can find a department—
THE COURT:
Well, what if you can’t? Let’s say you can’t. What do you do with them?
THE WITNESS:
If I could not find a place for them to work within their physician’s restrictions, then we would look elsewhere.
THE COURT:
So, technically, there was no position for her after she could not perform the duties in housekeeping that had been modified, there really was no position for her. It was just every day you come to work, we’re going to try to find somewhere to put you; is that what we had gotten to?
THE WITNESS:
That may be the case on some occasions.
THE COURT:
Well, tell me this: Your December 29th letter, do you need to see it again?
THE WITNESS:
I still have it here.
ImTHE COURT:
You say, “As per our discussions, we have a limited duty program in place, and can accommodate your physical restrictions.” And, she was to report to work on January 3, of 2000; is that right?
THE WITNESS:
Correct.
THE COURT:
Okay. What does that mean, “temporary modified duty?”
THE WITNESS:
That means that temporarily they are unable to perform their previous position.
THE COURT:
So, what position did you have for her when you sent her this letter December 29th? When she came to work on the 3rd, where was she to go, what was she to do?
THE WITNESS:
She was to report to environmental services.
THE COURT:
Environmental Services. To do what?
THE WITNESS:
The functions that I had discussed with Mr. Grayline, dusting
THE COURT:
To do the same thing that she came to do in December, right?
THE WITNESS:
\9AI think I’m confusing you. The letter that I sent to her on the 29th of December, was for — she could have done light-duty in housekeeping. She could have done, depending on where she was— based upon my letter of December the 29th, I would not have put her back into a department, where she previously stated she had a problem. She would have gone to another answering phones, perhaps, in cardiology or multiple places throughout the hospital that do require assistance on a day to day basis.
THE COURT:
Anything else? Thank you, ma'am. You can step down.

We infer from this colloquy, supported by claimant’s testimony, that the work offered by East Jefferson on several occasions was not appropriate to her limitations. We find that the trial court could reasonably infer, as it obviously did, that East Jefferson did not really have a light duty work program compatible with claimant’s limitations. We find within the context of claimant’s repeated assignments to inappropriate job duties, that claimant’s actions were reasonable. East Jefferson does not contest the plaintiffs initial entitlement to benefits. We find no manifest error in the trial court’s implicit finding that the claimant did nothing subsequently to cause her to forfeit that entitlement. Based on all of the medical evidence discussed earlier in this opinion, we find no manifest error in the trial court’s finding that the claimant continues to be injured as a result of her fall at East Jefferson and that her injury was aggravated by a subsequent injury.

However, we find that the trial court erred in awarding the claimant penalties and attorneys fees. Claimant’s “Disputed Claim For Compensation” form complains primarily of a discontinuance of benefits effective December 1, 1999. Thus, this case is essentially a claim for discontinued benefits under La. R.S. 23:1201.2, not a claim for untimely benefits under La. R.S. 23:1201. This is | j»Kdispositive of the question of penalties because La. R.S. 23:1201.2 does not provide for penalties. In making this statement we follow the lead of the Supreme Court in J.E. Merit v. Constructors, Inc. v. Hickman, 2000-943 (La.1/17/01), 776 So.2d 435. We also adopt the excellent analysis found in Lejeune v. Laurrence Habetz Roofing Co., 2000-1743, p. 4-5 (La.App. 3 Cir. 4/4/01), 782 So.2d 1181, 1184:

The supreme court recently discussed the difference between Louisiana Revised Statutes 23:1201.2 and 23:1201(F), stating:
In instances where the employer fails to commence payment of benefits, penalties and attorney’s fees are authorized under La. R.S. 23:1201 F, unless the claim is reasonably controverted. See McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694. However, because the instant case involves discontinuation of benefits rather than failure to provide benefits, La. R.S. 23:1201.2, not La.R.S. 23:1201 F, [2000-1743 La.App. 3 Cir. 5] applies. See Williams v. Rush Masonry, Inc., 98-2271, p. 6 (La.6/29/99), 737 So.2d 41, 45 (“[s]ince this 1995 amendment, Section 1201.2 now addresses solely the discontinuance of payment of claims, while Section 1201 now addresses solely the timeliness of commencement of benefit payments and timeliness of continued payments.”)
J.E. Merit Constructors, Inc. v. Hickman, 00-943, p. 5 (La.1/17/01); 776 So.2d 435, 437 n. 6 (alteration in original).

As to attorneys fees, claimant must show that East Jefferson’s decision to discontinue benefits was arbitrary and capricious:

Louisiana Revised Statute 23:1201.2 provides that reasonable attorney’s fees are awarded as a penalty under the workers’ compensation law when an employer discontinues payment of benefits, and “such discontinuance is found to be arbitrary, capricious, or without probable cause.... ” “Arbitrary and capricious behavior is willful and unreasonable action, without consideration and regard for the facts and circumstances presented.” J.E. Merit, 776 So.2d at 437-38. “An award |Mof attorney’s fees in a workers’ compensation case is essentially penal in nature, as it is intended to discourage indifference and undesirable conduct by employers and insurers.” Id. “Attorney’s fees should not be imposed in doubtful cases, where a bona fide dispute exists as to the employee’s entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative.” Id. Furthermore, Louisiana Revised Statute 23:1201.2 does not provide for an assessment of penalties in the case of discontinuance of payment. Insurance Co. of North America v. Labit, 99-2448, 992449. (La.App. 1 Cir. 11/15/00); 772 So.2d 385.

Lejeune, p. 5, 782 So.2d at 1184.

The record clearly does not support claimant’s entitlement to medical expenses for future back surgery or for treatment by Dr. Haydel. As to the other medical expenses and benefits in general, the claimant was involved in so many other accidents that East Jefferson was not unreasonable in concluding that claimant’s continued incapacity was not attributable to her employment related fall. Such a conclusion was supported by Dr. Mímeles. East Jefferson’s conclusion that it had grounds for terminating claimant in February of 2000 when she failed to attend the mandatory employee meeting is supported by credible evidence. The fact that the workers compensation judge subsequently decided that claimant was entitled to be on disability at that time does not mean that East Jefferson was arbitrary and capricious:

[T]he only inquiry is whether the employer acted arbitrarily, capriciously and without probable cause in discontinuing the payment of compensation and medical benefits so as to warrant imposition of attorney’s fees under Section 1201.2. “Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation.” Brown, 98-1063 at 8-9, 721 So.2d at 890, referring to Black’s Law Dictionary 104, 211 (6th ed.1990).
| ^Awards of penalties and attorney’s fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. See International Harvester Credit v. Seale, 518 So.2d 1039, 1041 (La.1988).
The fact that an employer is subjectively motivated to avoid paying compensation is not determinative. Neither is the fact that an employer loses a disputed claim. Sharbono, 97-0110 at 11, 696 So.2d at 1389 (penalties and fees are never assessed automatically against the losing party); Winters v. City of Shreveport, 257 La. 245, 242 So.2d 236 (1970); Eaves v. Louisiana Cypress Lumber Co., 253 La. 741, 219 So.2d 771 (1969). On the other hand, the fact that no witnesses saw the alleged accident or that there was no immediate report of an accident by the plaintiff does not necessarily justify the denial of benefits. The employer must adequately investigate the claim, and the crucial inquiry is whether the employer had an articulable and objective reason for denying or discontinuing benefits at the time it took that action.

Williams v. Rush Masonry, Inc., 1998-2271, p., 8-9 (La.6/29/99), 737 So.2d 41, 45-46.

Those portions of the judgment sustained by this Court were based on the manifest error standard of review. There is definitely enough evidence in the record to support a contrary decision by the lower Court. As we find that East Jefferson had valid reasons supported by credible evidence, it was error for the trial court to assess penalties and attorneys fees. Broun v. Texas-LA Cartage, Inc., 1998— 1063 (La.12/198), 721 So.2d 885.

For the foregoing reasons we affirm that portion of the judgment below awarding benefits to the claimant, with the exception of medical expenses for Dr. Haydel and .future medical expenses for surgery for the herniated disc at L5-S1. | gsWe also reverse that portion of the judgment awarding attorneys fees and penalties to the claimant. All parties to bear their own costs.

AFFIRMED IN PART AND REVERSED IN PART

McKAY, J., CONCURS IN THE RESULT.


source: Caselaw Access Project

author: [,SOL GOTHARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Corey PAGE.
    No. 02-KA-689.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.
    Rehearing Denied Feb. 24, 2003.

      Paul D. Connick, District Attorney, Alan D. Alario, II, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   [,SOL GOTHARD, Judge.

Defendant, Corey Page, was convicted of ten counts of armed robbery in violation of LSA-R.S. 14:69 and one count of second degree kidnapping in violation of LSA-R.S. 14:44.1. Pursuant to a multiple offender bill of information, defendant was found to be a second felony offender on five of the underlying counts based on defendant’s prior conviction for second degree battery. The trial court sentenced defendant to the following: 1) 150 years on count one and 99 years each on counts two through five, all to run concurrently with each other but consecutive to all other counts; 2) 175 years on count six and 40 years on count eleven, to run concurrently with each other but consecutive to all other counts; 3) 160 years on count seven and 99 years on count eight, to run concurrently with each other but consecutive to all other counts; and, 4) 198 years each on counts nine and ten, to run consecutively with each other and all other counts. The sentence effectively totaled 881 years. All sentences were imposed without the benefit of parole, probation or suspension of sentence. Defendant now appeals his convictions and sentences.

FACTS

The eleven count bill of information can be categorized into four separate incidents.

| rJ HE INCIDENTS

1) Counts Six and Eleven

At approximately 2:00 a.m. on December 3, 1999, Walter Yrle was working at his computer repair shop, Computer Clinic, located on the Westbank Expressway, when the electricity went off. He packed up his laptop computer putting two deposit envelopes and the day’s receipts inside and left the store. As he locked up the store, he noticed the lights were on in the shop next to his and suspected foul play. He walked straight to his car when a masked man came from the side of the building yelling, “Get down or I’ll blow you away.” Mr. Yrle testified the man approached in a crouched position like a policeman moving with a weapon. Something black was protruding from the man’s left hand, which was covered with something red. Mr. Yrle stated the man was holding the item like a policeman would hold a gun. He believed the man was armed. Mr. Yrle could only see the man’s eyes and not his face.

Mr. Yrle was made to lay spread eagle in the parking lot. The man put something in Mr. Yrle’s back, told him not to move and took his car keys and laptop computer. The man then ordered Mr. Yrle into the trunk of the car. Mr. Yrle tried to resist but the man dragged him to the car, pushed him into the trunk and closed the trunk. Mr. Yrle testified the car stopped twice. At one point, the man asked Mr. Yrle for his ATM card but Mr. Yrle did not have one. At the third and last stop, Mr. Yrle heard the man rifling through the back seat. Mr. Yrle asked the man to leave his laptop to which the man agreed. The man then unlocked the trunk and told Mr. Yrle to count to 20 before opening the trunk. When Mr. Yrle got out of the trunk, he discovered he was on Downman Road in New Orleans East. Approximately $6,000 was missing from his laptop case, which included both deposit envelopes and the cash from the day’s receipts.

|42) Counts One through Five

Between 6:00 p.m. and 8:00 p.m. on December 30, 1999, Andrew Hungerford was working at his computer store, PC Direct, on Lapalco when two men masked with bandannas and armed with guns entered the store. The employees and customers were ordered to lie on the ground. One man approached Mr. Hungerford with a gun in his left hand and asked where the money was. Mr. Hungerford gave the man a tray of money containing between $300 $500. The man then made Mr. Hun-gerford walk to the back of the store where the man took Mr. Hungerford’s wallet. Mr. Hungerford was forced to his knees and then put face down on the floor where his hands and feet were taped.

Two other people in the store, David Moreau and Willie Jordan, Sr., were also put face down on the floor at which time their hands were taped behind their backs and their feet were taped. One man put a gun to the back of Mr. Moreau’s neck and took his wallet which contained between $50 $75. One man put a gun to Mr. Jordan’s chin and took his wallet and cell phone.

Van Dixon and his girlfriend were also in the store but they were not taped. One man put a gun to Mr. Dixon’s neck and asked for money. Mr. Dixon gave the man $5 and the remote for his alarm.

Also present in the store at the time of the robbery were Mr. Hungerford’s three minor nephews, ages 14 and 15. M.D., one of the teenagers, was approached by one man with a gun and told to empty his pockets. He gave the man $5 and a food stamp from his wallet.

The two masked men left through the front door. The victims untaped each other and called the police.

| b3) Counts Seven and Eight

Sometime after 10:00 p.m. on December 31, 1999, Felicia Knight and Sherylyn Ri-chardel were working at Domino’s Pizza on Barataría. Ms. Knight explained that the “carry out” usually closes at 10:00 p.m. but was kept opened because of the surrounding activity associated with New Year’s Eve-. A man, later identified as the defendant, approached the door. Ms. Knight “buzzed” him in because she thought he had ordered a pizza. As defendant opened the door, a second man wearing a bandanna on his face, ran into the store. Defendant put a gun in her face and ordered her to open the safe. While Ms. Knight was complying, a customer entered the store. Ms. Knight was ordered to lie down on the floor while defendant told the customer the pizza was not ready and to come back later. Ms. Knight then opened the safe and defendant took the money, approximately $300.

Meanwhile, the man with the bandanna ran to the back of the store where Ms. Richardel was located. The man yelled, “down on the floor,” at which time Ms. Richardel saw a gun. She was taken to the front of the store and made to lie face down. Ms. Richardel told the man she had money in her back left pocket, which he retrieved, along with her wallet in her right pocket.

The men then rifled through the office drawers before leaving the store through the back door. The men told Ms. Knight and Ms. Richardel to wait five to ten minutes before moving. Ms. Knight subsequently called the police on her cell phone.

4) Counts Nine and Ten

At approximately 10:80 p.m. on January 28, 2000, Peter and Gaynelle Hand returned to their home on Deerfield Road in Terrytown. Mr. Hand went inside while Mrs. Hand remained outside for a few minutes to straighten the Rear. When Mrs. Hand entered the house, someone pushed her inside from behind. She made several attempts to run outside but the person kept dragging her back inside the house by her arm. Mr. Hand, a retired New Orleans policeman who was weak from receiving radiation treatment for lung cancer, began to fight with the perpetrator as Mrs. Hand continued her attempts to get out of the house. The perpetrator was wearing a ski mask and was armed with a gun.

Eventually, Mr. and Mrs. Hand stopped resisting and were made to kneel on the floor. Mr. Hand was bleeding from the head where he was hit with the gun. The perpetrator took Mr. Hand’s wallet, Mrs. Hand’s purse and a pair of shoes that were in a Dillard’s bag.

After the perpetrator left, Mr. Hand grabbed a gun and went outside. He did not see anything and called the police. A Rolex with diamonds and a broken face, later identified as belonging to defendant, was found on the floor of the Hands’ home.

THE INVESTIGATION

Detective Scott Guillory investigated the armed robbery at PC Direct. He traced several calls made on the stolen cell phone after the robbery to Terrence Ellis. Detective Guillory interviewed Ellis who stated that he was picked up from work by defendant, Keenan Holmes, and Krystal Wilson on the night of December 30, 1999. Ellis testified that defendant and Holmes stated they had just robbed some people at a computer store. Ellis testified he did not see any money but stated defendant had a cell phone and Holmes had a gun and bandanna in the car.

Detective Guillory also interviewed Wilson, defendant’s girlfriend at the time, whose statement was similar to Ellis’ statement. Detective Guillory then obtained an arrest warrant for defendant and Holmes. Wilson also advised |7Petective Guillory that defendant told her of a robbery where he took $4,000 from a man, put him in the trunk and drove him to the east. Detective Guillory looked into the matter and discovered the incident had occurred on December 3, 1999. He interviewed the victim, Mr. Yrle, and subsequently obtained an arrest warrant for defendant on that incident. Wilson further advised Detective Guillory of the Domino’s robbery but he directed her to Detective John Carroll who was investigating that robbery.

In his investigation of the Domino’s pizza robbery, Detective Carroll obtained a description of one of the perpetrators from the victims. He learned defendant was a suspect in a series of similar robberies. Detective Carroll interviewed Wilson who advised she was present at the Domino’s when it was robbed. She explained she, defendant and a person identified only as “Little Mike” went to Domino’s for pizza. Wilson waited in the car while defendant and “Little Mike” went inside. She did not see what happened inside but was given money upon defendant’s return to the car. Wilson stated defendant admitted robbing the Domino’s the next day.

Detective Carroll prepared a photographic lineup containing defendant’s photograph. He showed the lineup to Ms. Knight who positively identified defendant as the person who robbed the Domino’s on December 31,1999.

Detective Carroll also investigated the Hand robbery. He found a Rolex with diamonds at the scene of the Hand robbery and remembered Wilson stated defendant was in possession of two Rolex watches with diamonds. He showed the Rolex to Wilson who stated the watch belonged to defendant.

Defendant was arrested on February 8, 2000. The police went to defendant’s home to execute the arrest warrant. Defendant was found lying next to an abandoned car in the backyard. He started to run but was caught and | Sarrested. A gun was found in the grass within reaching distance where defendant was initially lying.

At trial, Keenan Holmes, a co-defendant in the PC Direct robbery, testified that he and defendant robbed people in a computer store. Holmes also stated defendant told him about a robbery defendant committed at another computer store where he kidnapped a man, stole money, put him in the trunk of the man’s car and drove the man from the westbank to the eastbank. Holmes further testified defendant told him about a robbery he committed at Domino’s and another robbery he committed involving two old people where the man fought back.

Defendant testified in his defense. He denied he had ever been to the Computer Clinic or PC Direct. He denied going into Domino’s pizza on the night of the robbery. He suggested Ms. Knight identified him as the perpetrator because she had seen his picture in the newspaper as a suspect in the pizza robbery. Defendant further suggested Ellis testified against him because Ellis had a grudge against him. He also stated Holmes and Wilson were coerced into testifying against him. Defendant explained the discovery of his Rolex at the Hand residence by stating it had been stolen prior to the robberies in question.

| SUFFICIENCY OF EVIDENCE

In his second allegation of error, defendant specifically complains the evidence was insufficient on counts one through six and nine through eleven to prove his identity as the perpetrator of the crimes. Defendant asserts his identification on these counts was based only on the testimony of Keenan Holmes, Terrance Ellis and Krystal Wilson, all who testified that defendant told them he committed the armed robberies at issue. Defendant challenges their testimonies as unreliable, unbelievable and tainted.

Defendant also challenges the sufficiency of his identification in counts seven and eight. In these counts, defendant contends only one witness, the victim Felicia Knight, was able to identify him as the perpetrator. He questions the reliability of her identification based on publicity. He asserts Ms. Knight recognized him in the photographic lineup only after seeing his picture in the newspaper where he was identified as a suspect in the robbery.

Finally, defendant challenges the sufficiency of the evidence regarding count six, the armed robbery of Walter Yrle. Defendant alleges the State failed to prove all the essential elements of armed robbery. He argues that because the victim did not see a gun, the State at most proved first degree robbery.

When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Mayeux, 94-105 (La.App. 5 Cir. 6/28/94), 639 So.2d 828, 834.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In addition to proving the |instatutory elements of the charged offense at trial, the State is required to prove the identity of the perpetrator. State v. Vasquez, 98-898 (La.App. 5 Cir. 2/10/99), 729 So.2d 65, 69. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.

1. Proof of Defendant’s Identity in Counts One through Six and Nine through Eleven

Defendant argues the testimony of Keenan Holmes, Terrence Ellis and Krystal Wilson that defendant told them he had committed several robberies was insufficient to convict him of the computer store robbery (counts one through five), the robbery and kidnapping of Mr. Yrle (counts six and eleven), and the robbery of Mr. and Mrs. Hand (counts nine and ten). Defendant contends Holmes’ testimony was unbelievable because he was given a lenient sentence in exchange for his testimony against defendant. Defendant also maintains the testimonies of Ellis and Wilson were tainted but does not explain how.

In the three robberies at issue in these counts, the perpetrator was masked and the victims were unable to identify defendant as the perpetrator of the robberies. Keenan Holmes was a co-defendant in the computer store robbery (counts one through five). At the time of defendant’s trial, Holmes had pled guilty to all five counts of armed robbery and was promised a sentence between 10 and 25 years if he testified in defendant’s trial.

Louisiana jurisprudence provides that a defendant can be convicted on the uncorroborated testimony of an alleged accomplice. State v. May, 339 So.2d 764, 775 (La.1976). An accomplice is qualified to testify against a co-perpetrator even if the prosecution offers him inducements to testify. The inducements merely affect the witness’s credibility. State v. Neal, 00-0674 (La.6/29/01),11 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

At trial, Holmes testified that he and defendant robbed the computer store together. He explained the robbery in detail corroborating the testimony of the victims. Holmes testified defendant went into the store first wearing a black hooded sweater and bandanna. Holmes followed with a handgun and bandanna. Holmes stated defendant took one of the victims to the cash register and took the money out of the register. Defendant then started taping the victims. Holmes testified he took a wallet from one of the victims and defendant took a cell phone. Holmes also stated there were two kids in the store at the time of the robbery who were made to lie on the floor.

Holmes further testified that on the way to the computer store, defendant told him about another robbery at a computer store where defendant kidnapped a man, stole $4,000, duct-taped the man, put him in the back of his own car and drove him from the westbank to the eastbank. After Holmes and defendant robbed the PC Direct computer store, defendant told Holmes of a robbery he committed at Domino’s where he acted like one of the employees. Later, defendant called Holmes to see if Holmes “wanted to do something else” with him. At that time, defendant told Holmes about a robbery where he robbed two old people. Defendant explained the man fought back and defendant hit him with the pistol.

Defendant claims Holmes’ testimony identifying him as the perpetrator of the crimes is unbelievable because Holmes was offered a lenient sentence in exchange for his testimony. As stated above, inducements to testify merely affect the credibility of the witness. The credibility of a witness is within the sound discretion of the trier of fact. It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Hotoph, 99-243 (La.App.Jjj5 Cir. 11/10/99), 750 So.2d 1036, 1045, imrits denied, 99-3477 (La.6/30/00), 765 So.2d 1062, and 00-0150 (La.6/30/00), 765 So.2d 1066.

Holmes testified he gave the police the same information regarding the robbery he was involved in and the robbery involving the man in the trunk at the time of his arrest. Holmes explained that he did not have any “deals” when he gave his statement to the police. The jury was fully aware that Holmes had entered into a plea agreement with the State whereby he would testify against defendant in exchange for a lenient sentence. Nonetheless, the jury chose to believe Holmes that defendant was the perpetrator in the crimes at issue.

Defendant also complains the testimony of Terrence Ellis and Krystal Wilson was tainted but he does not specify how. Ellis testified that he was picked up by defendant and Holmes around 9:00 p.m. on the night of December 30, 1999, the date of the PC Direct robbery. Ellis testified defendant and Holmes told him they had just committed a robbery where they had robbed people and taped them up. Ellis stated defendant and Holmes were wearing dark colors. He also stated defendant had a cell phone and Holmes had a gun and bandanna. Ellis further testified that his phone number appeared four separate times on December 31, 1999 on S-19, the cell phone statement of victim, Willie Jordan, Sr.

During defendant’s testimony, he suggested there was a grudge between himself and Ellis. The jury heard all this testimony and obviously chose to believe Ellis.

Krystal Wilson, defendant’s girlfriend at the time of the robberies, testified as a rebuttal witness for the State. She stated she was picked up by defendant and Holmes on December 30, 1999 between 8:00 — 9:00 p.m. They then picked up Terrence Ellis. She was in the front passenger seat and Holmes and Ellis were in the backseat. She heard defendant tell Ellis he had just “hit a li slick,” or a robbery. Wilson stated defendant had a gun on his lap and a cell phone, which defendant said he got in the robbery.

Wilson also testified about the Domino’s pizza robbery. She explained that she was present in the car when the robbery occurred. She, defendant, and a person identified as “Mike” went to Domino’s to get pizza. Wilson stayed in the car and did not see what happened inside the store. Defendant gave her $100 and told her the next day that he had robbed the Domino’s.

Sometime later, the two passed a business on the Westbank Expressway. Defendant pointed out the business and told her about robbing a man of $4,000 and taking him across the river. Wilson also stated defendant called her from jail and told her he was sorry he had ever robbed the judge’s parents. Wilson did not know what happened in that robbery but testified defendant owned the Rolex watch with diamonds pictured in S-20, that was recovered from the Hand robbery.

On cross-examination, Wilson admitted the police told her they may charge her with the robberies unless she cooperated. She stated she did not want to testify. Also during her testimony, Wilson explained that she became pregnant with defendant’s baby and gave the baby up for adoption. She stated she was not angry with defendant for the pregnancy and adoption.

Once again, the jury heard all the testimony regarding possible inducements for Wilson’s testimony and possible grudges she may have harbored against defendant. Nonetheless, the jury obviously chose to believe Wilson that defendant had committed the robberies at issue.

Keenan Holmes and Krystal Wilson recounted testimony that identified defendant as the perpetrator of the robberies of the PC Direct computer store and Domino’s pizza and the robbery and kidnapping of Walter Yrle. Terrence Ellis’ testimony identified defendant as the perpetrator of the robberies at PC |uDirect. Many aspects of Holmes, Ellis and Wilson’s testimonies are corroborated by the victims’ testimonies. The jury heard all the evidence regarding inducements and grudges and apparently still chose to believe the testimony of Holmes, Ellis and Wilson. Viewing the evidence in a light most favorable to the prosecution, we find that a rational trier of fact could find, beyond a reasonable doubt, that defendant was the perpetrator the crimes in counts one through six and nine through eleven.

2) Proof of Defendant’s Identity in Counts Seven and Eight

Counts seven and eight relate to the Domino’s pizza robbery. Victim, Felicia Knight, was the only witness to identify defendant as being the perpetrator of the robbery. Ms. Knight testified that defendant was not masked and, therefore, she had a clear view of him. Ms. Knight explained she and defendant carried on a conversation with only three to four feet between them. She positively identified defendant as the perpetrator without hesitation in a photographic lineup and again in court.

Defendant suggests Ms. Knight recognized him from the newspaper as opposed to the night of the robbery. On cross-examination, Ms. Knight was asked whether she had seen or read any newspaper articles about the robberies or seen any pictures of any individuals in the newspaper. She replied that she had not.

It is the fact finder’s function to determine the weight of the evidence bearing on the defendant’s identification. It is not the appellate court’s function to reevaluate the credibility choices made by the fact finder. State v. Spencer, 93-571 (La.App. 5 Cir. 1/25/94), 631 So.2d 1363, 1370, writ denied, 94-488 (La.2/3/95), 649 So.2d 400.

The jury apparently chose to believe Ms. Knight’s testimony identifying defendant as the perpetrator of the armed robbery. Positive identification by |1Konly one witness is sufficient to support a conviction. State v. Cowart, 01-1178 (La.App. 5 Cir. 3/26/02), 815 So.2d 275, 283 (citing State v. Mussall, 523 So.2d 1305, 1311 (La.1988)). Viewing the evidence in a light most favorable to the prosecution, it appears a rational trier of fact could find, beyond a reasonable doubt, that defendant was the perpetrator of the Domino’s pizza armed robbery.

3) Sufficiency of the Evidence on Count Six

Defendant asserts there was insufficient evidence to convict him of armed robbery in count six, the incident involving Walter Yrle. He argues Mr. Yrle never testified that he saw a gun and, therefore, the State at most proved first degree robbery.

The elements of armed robbery are: 1) a taking, 2) of anything of value, 3) from the person or in the immediate control of another, 4) by the use of force or intimidation, 5) while armed with a dangerous weapon. LSA-R.S. 14:64; State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 965, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. Defendant only complains that the State failed to prove the last element of the crime, that he was armed with a dangerous weapon.

The term dangerous weapon “includes any gas, liquid or other substance or instrumentality which, in the manner used, is calculated or likely to produce death or great bodily harm.” LSA-R.S. 14:2(3). The “dangerousness” of the instrumentality by reason of the manner in which it is used is a question of fact for the jury to decide. State v. Ellis, 95-1005 (La.App. 5 Cir. 3/26/96), 672 So.2d 1007, 1108-1109. Various objects have been held to be dangerous weapons for purposes of LSA-R.S. 14:64 including an ink pen, tennis shoe, |1fimetal sign post, hammer, and liquor bottle hidden in a pocket. No weapon need ever be seen by the victim, or witnesses, or recovered by the police for the trier of fact to be justified in finding that defendant was armed with a dangerous weapon. State v. Ellis, supra at 1009.

In State v. Cotton, 94-384 (La.App. 5 Cir. 11/16/94), 646 So.2d 1144, this Court found sufficient evidence to uphold defendant’s armed robbery conviction where the victim testified the defendant approached him and pressed a hard, sharp object to his side. The defendant further told the victim to look straight ahead and he would not get hurt. The victim believed defendant had a knife but did not see a weapon. This Court explained that “Simply because the victim did not see- a dangerous weapon does not preclude an armed robbery conviction. When defendant creates an atmosphere of intimidation prompting the victim to reasonably react with fear for his life, an armed robbery conviction is justified.” Id. at 1146.

Also, see State v. Talbert, 416 So.2d 68 (La.1982), wherein the Louisiana Supreme Court upheld defendant’s armed robbery conviction even though the victim never saw a weapon.

In the present case, the victim, Walter Yrle, testified that a masked man approached him yelling, “Get down! Get down or I’ll blow you away.” Mr. Yrle specifically stated the man appeared armed and explained:

in his left hand, he, uh — left hand was also covered by something red. Uh, part of the hand stuck out, and there was something black coming out of there. And he held his had [sic] like this (Indicating), the way a policeman would hold it, and he was in sort of a crouched position, coming toward me.

|17As a result of defendant’s actions, Mr. Yrle laid spread-eagle on the ground. Mr. Yrle testified that the perpetrator then “put something in my back” and took his keys and laptop computer. Later in his testimony, Mr. Yrle was asked by the prosecutor whether he felt a weapon or anything touch him in his back at any time. Mr. Yrle replied “[y]es, when I was laying on the ground in the, uh — in the parking lot, uh, something was pressed to my back, uh, when he first came up to me.” Mr. Yrle could not say with any certainty that the gun introduced into evidence was the object he saw on the night of the robbery and stated on cross examination that he could not say whether the object he saw that night was even a gun.

The mere fact the victim did not see a dangerous weapon does not preclude an armed robbery conviction. Here, defendant created an atmosphere of intimidation when he approached the victim in a crouched position, holding a black object in his hand like a policeman would hold a gun, and threatened to “blow away” the victim if he did not cooperate. Mr. Yrle, clearly fearing his life, immediately laid down spread eagle in a parking lot. We find sufficient evidence to support the jury’s determination that defendant was armed with a dangerous weapon.

Defendant’s allegations that insufficient evidence exists to support his convictions are without merit.

EXCESSIVE SENTENCE

In his first allegation of error, defendant argues his aggregate 881-year sentence is excessive. He maintains the evidence against him was not overwhelming and contends he received a longer sentence than what is reserved for murderers. He contends that in nine out of the ten counts, the victims were not physically harmed. He argues the small amount of money taken in the [ 1srobberies and the method of the robberies do not justify his 881-year sentence. He points out his co-defendant, Keenan Holmes, only received 25 years total for five counts where he received 150 years for the same five counts. Defendant also asserts the consecutive nature of his sentence is excessive. He further argues he was impermissibly sentenced as a multiple offender on both counts nine and ten, the Hand robberies, because the two convictions arose out of the same criminal episode.

1) Enhanced Sentences on Counts Nine and 10

During the multiple offender hearing, the prosecutor advised the trial court that the State multiple billed defendant on four counts, one from each of the four incidents and all four counts being armed robberies. The prosecutor then specifically named the four armed robbery counts as being those related to the armed robberies of Peter Hand (count nine), Walter Yrle (count six), Andrew Hungerford (count one), and Cheryl Richardel (count seven). Although not mentioned by the prosecutor during the multiple offender hearing, the multiple bill shows count ten, the armed robbery of Gaynelle Hand, was included among the counts sought to be enhanced.

At the conclusion of the hearing, the trial court found defendant to be a second felony offender. The trial court then imposed sentence on all eleven counts with enhanced sentences on counts one, six, seven, nine and ten.

Defendant’s argument that he cannot be multiple billed on two counts that arise out of the same criminal episode has merit. When a defendant is convicted on the same day of separate felonies arising out of separate criminal offenses committed at separate times, he is subject to being adjudicated a | 19habitual offender as to each conviction. State ex rel. Porter v. Butler, 573 So.2d 1106, 1109 (La.1991). However, only one underlying conviction arising out of a multi-count bill of information can be enhanced when the convictions were entered on the same day and when the offenses arise out of a single criminal act or one criminal episode. Id.; State v. Luna, 00-858 (La.App. 5 Cir. 10/31/00), 772 So.2d 249, 259, unit denied, 00-3244 (La.10/2/01), 799 So.2d 495.

In the present case, counts nine and ten arise from one criminal episode committed at the same time on the same day. Mr. and Mrs. Hand were robbed in their house on January 28, 2001. Thus, the trial court erred in finding defendant a habitual offender as to each of these convictions. Accordingly, it is recommended that the findings and sentences of defendant under the habitual offender statutes on counts nine and ten be set aside and the case remanded to the trial court for resentenc-ing on counts nine and ten, with finding and sentencing as a habitual offender on only one of the counts, either nine or ten. See, State ex rel. Porter v. Butler, supra at 1107.

2) Excessiveness of Sentence on Counts One through Eight and Eleven

In the PC Direct computer store robberies, defendant was sentenced to 150 years on count one as a second felony offender and 99 years, the maximum allowed by law, on each of the counts two through five. The sentences were ordered to run concurrently with each other but consecutive to all other counts. In the Yrle incident, defendant was sentenced to 175 years as a habitual offender on count six, the armed robbery, and 40 years, the maximum allowed by law, on count eleven, second degree kidnapping. These sentences were also ordered to run concurrently with each other but consecutive to all other counts. For the Domino’s pizza robberies, defendant was sentenced to 160 years as a habitual offender on count seven and 99 years, the maximum allowed by law, Igpon count eight. Again, the trial judge ordered these sentences to run concurrent with each other but consecutive to all other counts. Excluding defendant’s sentences on counts nine and ten, which need to be set aside as discussed supra, defendant received a total of 485 years. All sentences were imposed without the benefit of parole, probation or suspension of sentence. Defendant complains that his aggregate sentence is excessive.

In sentencing defendant, the trial judge noted that defendant’s conduct during the crimes manifested deliberate cruelty to the victims and that he knowingly created a risk of death or great bodily harm to more than one person. The trial judge further noted that defendant deliberately faked insanity early in the proceedings and, thus, attempted to manipulate the court system to avoid facing justice.

Regarding the PC Direct computer store robberies, the trial judge noted that defendant did not physically hurt anyone but found defendant committed the crime with “military precision” and was not a novice. In imposing sentence in the Yrle incident, the trial court again noted defendant did not physically harm the victim. The court noted the Mr. Yrle believed he was going to die when defendant put him in the trunk. Regarding the Domino’s pizza robbery, the trial court stated defendant made the victims fear for their lives for a “long period of time.”

LSA-C.Cr.P. art. 881.1 requires a defendant to make or file a motion to reconsider sentence and state the specific ground upon which a motion to reconsider sentence is based, including a claim of exces-siveness, or he is precluded from raising the issue on appeal. In the present case, no objection was made to the sentence and no motion for reconsideration was filed by defendant. As such, defendant’s sentences can only be reviewed for \n constitutional excessiveness. State v. Anderson, 01-789 (La.App. 5 Cir. 1/15/02), 807 So.2d 956, 961.

Defendant does not contend that any sentence on its own is excessive. Rather, defendant urges that his sentences together are excessive because the trial judge imposed consecutive sentences and because he received more time than his co-defendant.

Both the United States and the Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const, amend. VIII; La. Const, of 1974, art. I, § 20. A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, unit denied, 00-1371 (La.2/16/01), 785 So.2d 839. Trial judges are granted great discretion in imposing sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. State v. Bacuzzi, 97-573 (La.App. 5 Cir. 1/27/98), 708 So.2d 1065, 1068-1069.

In reviewing a sentence for ex-cessiveness, this Court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing sentence. State v. Brown, 99-172 (La.App. 5 Cir. 9/28/99), 742 So.2d 1051, 1056, unit denied, 99-3148 (La.4/20/00), 760 So.2d 340. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the | ¡^offender, and 3) the sentence imposed for similar crimes by the same court and other courts. Id.

Defendant first contends his sentence is excessive because his co-defendant was promised a 10-25 year sentence for five counts of armed robbery where he effectively received a 150-year sentence. There is no requirement that co-defendants be treated equally by the sentencing judge. State v. Rogers, 405 So.2d 829, 831 (La.1981); State v. Francois, 01-807 (La.App. 5 Cir. 4/10/02), 817 So.2d 213, 216. The disparity of sentences between co-defendants is only a factor to be considered along with all other appropriate considerations in evaluating a contention that a sentence is excessive. State v. Quimby, 419 So.2d 951, 962 (La.1982); State v. Francois, supra. Defendant was involved in four separate incidents whereas his co-defendant was only involved in one of the incidents and, as previously noted, defendant was adjudicated to be a multiple offender.

Defendant also alleges the consecutive nature of his sentences results in an excessive sentence. LSA-C.Cr.P. art. 883 provides in pertinent part:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

Defendant’s convictions resulted from four separate courses of conduct that occurred on four separate days over a one-month period. Defendant received concurrent sentences on those counts arising from a single course of conduct. His four groups of sentences were then ordered to run consecutively with each other. Defendant’s consecutive sentences were justified and imposed |Min accordance with LSA-C.Cr.P. art. 883. See, State v. Dillon, 01-0906 (La.App. 5 Cir. 2/26/02), 812 So.2d 770, 774.

In the present case, defendant committed eight armed robberies and a second degree kidnapping on three separate days, excluding counts nine and ten. The victims were placed in grave danger and could easily have been killed. They were emotionally harmed as a result of the robberies. No presentence investigation report was ordered but the record shows defendant had a violent criminal history. He was found to be a second felony offender based on a prior conviction for second degree battery. In that conviction, defendant was charged with attempted murder but pled guilty to the lesser offense. Based on these circumstances, we find that defendant’s aggregate sentence is not constitutionally excessive.

We further note that a remand for re-sentencing on the issue of excessiveness of defendant’s aggregate sentence would be “an academic exercise which has no practical benefit to anyone.” State v. Franklin, 519 So.2d 292, 295 (La.App. 5 Cir.1988) (citing State v. Mosley, 466 So.2d 733 (La.App. 4 Cir.1985), writ denied, 468 So.2d 1202 (La.1985)). In Mosley, supra, at 736, the Fourth Circuit noted:

Whether his sentence is 99 years of 297 years he will be in jail for the rest of his life unless he is pardoned. Remanding for resentencing under these circumstances is an academic exercise which has no practical benefit to anyone. It is the type of exercise which subjects judges and lawyers to well deserved criticism for wasting time on technicalities.

As noted above, defendant does not complain that any one of his sentences is excessive. Thus, whether defendant spends 99 years, 160 years or 485 years is immaterial. He will be in prison for the rest of his natural life unless he is pardoned.

at In his third allegation of error, defendant alleges that the trial court erred in failing to recuse itself and appoint an ad hoc judge to hear the case.

Defendant filed a written motion to re-cuse on the basis he could not receive a fair and impartial trial because two of the victims were parents of Jefferson Parish Magistrate, Jeff Hand. Defendant maintained any judge sitting in the Twenty-Fourth Judicial District Court would be “biased, prejudiced and personally interested in the outcome” of the matter. He sought to have Judge Bodenheimer and any other judge in the Twenty-Fourth Judicial District Court recused from his case and sought the appointment of an ad hoc judge for all his proceedings. He alternatively requested that an ad hoc judge hear his motion to recuse.

No ad hoc judge was appointed to hear the motion to recuse. Rather, the motion was referred to another judge in the district, Judge Robert Pitre. At the hearing on the motion to recuse, no evidence was presented. Rather, defense counsel merely argued defendant could not receive an unbiased trial and would be prejudiced by the fact two of the victims were the parents of Jeff Hand, who was “very well known in this District.” In denying the motion, Judge Pitre stated:

I’ve gone over the recusal articles, there’s nothing in the recusal articles that would fit this situation. I don’t see any grounds, there’s no showing of bias or prejudice, or any personal interest on the part of Jeff Hand. I’m going to deny the motion.

The State argues defendant failed to preserve his right to appeal this issue because he failed to contemporaneously object to the trial court’s denial of his motion to recuse. The State cites LSA-C.Cr.P. art. 841 in support of its position. Article 841(B) specifically states, “The requirement of an objection shall not apply to the court’s ruling on any written motion.” Defendant’s | ^motion to recuse was in writing and, therefore, the contemporaneous objection rule is not applicable.

LSA-C.Cr.P. art. 671(A) provides:
(A) In a criminal case a judge of any court, trial or appellate, shall be re-cused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
(2) Is the spouse of the accused, of the party injured, of an attorney employed in the cause, or of the district attorney; or is related to the accused or the party injured, or to the spouse of the accused or party injured, within the fourth degree; or is related to an attorney employed in the cause or to the district attorney, or to the spouse of either, within the second degree;
(3) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause;
(4) Is a witness in the cause;
(5) Has performed a judicial act in the case in another court; or
(6) Would be unable, for any reason, to conduct a fair and impartial trial.

These grounds are exclusive, not illustrative. In re Lemoine, 96-0-2116 (La.1/14/97), 686 So.2d 837, 843, on reh’g, 96-0-2116 (La.4/4/97), 692 So.2d 358. The party desiring to recuse a trial judge shall file a written motion assigning the ground for recusal. LSA-C.Cr.P. art. 674. If a valid ground for recusal is set forth in the motion for recusal, the judge shall either recuse himself, or, in a court having two or more judges, as is the case in the instant matter, refer the motion to another judge of that court. LSA-C.Cr.P. arts. 674 and 675.

A trial judge is presumed to be impartial. In order to obtain a recusal based on bias, prejudice, and personal interest, the party seeking the recusal | afiinust establish more than conclusory allegations. State v. Davis, 00-1753 (La.App. 5 Cir. 4/24/01), 786 So.2d 834, 843. In State v. Parker, 96-1852 (La.App. 4 Cir. 6/18/97), 696 So.2d 599, 607, writ denied, 97-1953 (La.1/9/98), 705 So.2d 1097, the Fourth Circuit held that a recusal is not required simply on the basis the trial judge knew the victim’s family. In Parker, it was established the trial judge knew the victim’s nephew. The court stated that defendant had produced no evidence to support the allegations that the trial judge was bias or prejudiced.

Likewise, in the present case, defendant offered no evidence of Judge Bodenheimer’s bias or prejudice. At the hearing on the motion to recuse, defendant merely made a broad conclusory statement:

I filed a motion for a recusal, based on the fact that one of the victims — actually, two of the victims in one of the armed robberies that Mr. Page is charged with, were the parents of Mr. Jeff Hand, and my client feels that he cannot receive an unbiased trial, he would be prejudiced by the fact that Mr. Hand is very well known in this District.

Defendant did not even allege that Judge Bodenheimer knew Jeff Hand. There is nothing in the record to support defendant’s allegations that Judge Boden-heimer or any other judge in the Twenty-Fourth Judicial District Court was biased or prejudiced. Therefore, we find no error in the denial of defendant’s motion to re-cuse.

As requested by defendant, the record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We have reviewed the record and we find no errors patent in this case.

For the above-discussed reasons, defendant’s eleven convictions and the sentences in counts one through eight and eleven are affirmed. The court’s findings of habitual offender status on counts nine and ten, and his enhanced ^sentences on those two counts are vacated and set aside, and this matter is remanded.

CONVICTIONS IN ELEVEN COUNTS AND SENTENCES IN COUNTS ONE THROUGH EIGHT, AND ELEVEN ARE AFFIRMED; FINDING OF HABITUAL OFFENDER AND ENHANCED SENTENCES IN COUNTS NINE AND TEN VACATED AND SET ASIDE, CASE REMANDED.

      . Co-defendant, Keenan Holmes, was charged with armed robbery along with defendant in counts one through five.

      . The victim’s initials are used under the authority of LSA-R.S. 46:1844 which provides for the use of the initials of a crime victim who is a minor.

      . Mr. Hand was deceased at the time of trial.

      . First degree robbery is the taking of anything of value belonging to another from the person of another by the use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon. LSA-R.S. 14:64.1.

      . State v. Johnson, 598 So.2d 1152 (La.App. 1 Cir.1992), writ denied, 600 So.2d 676 (La.1992); State v. Munoz, 575 So.2d 848 (La.App. 5 Cir.1991), writ denied, 577 So.2d 1009 (La.1991); State v. Clark, 527 So.2d 542 (La.App. 3 Cir.1988), writ denied, 569 So.2d 977 (La.1990); State v. Smith, 450 So.2d 714 (La.App. 4 Cir.1984); State v. McMorris, 343 So.2d 1011 (La.1977).

      . The multiple bill was amended on November 29, 2001, the same day as the multiple offender hearing, to include count ten among the counts sought to be enhanced.

      . Defendant received 150 years on count one, 175 years on count six, 160 years on count seven, and 198 years each on counts nine and ten.

      . As a second felony offender, defendant faced an enhanced sentencing range of 45 xk years to 198 years. LSA-R.S. 15:529.1(A)(1)(a).

      . Defendant received a 150-year enhanced sentence on count one and 99 years on each counts two through five to run concurrently.