author: CARTER, C.J.

text:
    STATE of Louisiana v. Clifford P. JAMES.
    No. 2002 KA 2079.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Walter P. Reed, District Attorney, Cov-ington, Dorothy A. Pendergast, Metairie, for Appellee, State of Louisiana.
    Joseph P. Anderson, Jr., Slidell, for Defendant/Appellant, Clifford P. James.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

      . Hon. Philip Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   CARTER, C.J.

Defendant, Clifford P. James, was charged by bill of information with aggravated incest, a violation of LSA-R.S. 14:78.1. He pleaded not guilty. The defendant was tried by a six-person jury and found guilty of the responsive offense of attempted aggravated incest, a violation of LSA-R.S. 14:27 and LSA-R.S. 14:78.1. The trial court denied the defendant’s motions for new trial and for postverdict judgment of acquittal and sentenced defendant to ten years’ imprisonment at hard labor. The trial court suspended five years of the sentence and ordered that defendant, upon his release, be placed under five years of supervised probation with general and special conditions. The defendant’s oral motion to reconsider sentence was denied. He now appeals, urging thirteen assignments of error.

FACTS

The defendant married R.M. around February 1998. The matrimonial domicile was in Slidell, Louisiana. R.M.’s daughter and son from a previous marriage, K.C. and N.C., lived with defendant and R.M. Between February 1, 1998, and April 30, 1999, defendant allegedly began engaging in inappropriate behavior with his stepdaughter, K.C., who was five years old when defendant’s alleged conduct began. K.C. testified that the defendant touched her “butt” (her buttocks) and her “behinie” (her vaginal area).

When asked how the defendant touched her buttocks, K.C. stated, “Well, I think it was the finger but I don’t really know.” K.C. further testified, “It — it felt painful when he was touching both of the things, and he was really licking and kissing both of the parts.” She later stated, “He did both cheeks and he actually stuck his tongue right in the middle of the crack.”

During February or March of 1999, defendant left the family home in Slidell to seek employment in Atlanta, Georgia. He later informed R.M. that he no longer wanted to be married. On December 10, 1999, while riding in the car, R.M. began ^questioning K.C. because she suspected that the defendant behaved inappropriately with her daughter. K.C. then informed her mother of defendant’s conduct. Defendant was ultimately arrested and charged with aggravated incest.

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, AND THREE

In his first assignment of error, defendant contends that the evidence was insufficient to support his conviction of attempted aggravated incest. In assignments of error numbers two and three, defendant contends that the trial court erred in denying his motions for post-verdict judgment of acquittal and new trial, which were also based on the issue of the sufficiency of the evidence. Defendant specifically avers that the videotaped interview of the victim was contaminated, that there were competing explanations for the allegations against him, and that there was a complete absence of physical evidence of sexual abuse.

The standard for reviewing the sufficiency of evidence is set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2788-2790, 61 L.Ed.2d 560 (1979). Under Jackson, the standard for testing the sufficiency of evidence requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. Jackson, 99 S.Ct. at 2789; State v. Rosiere, 488 So.2d 965, 968 (La.1986).

Defendant was convicted of attempted aggravated incest. Louisiana Revised Statute 14:78.1, the aggravated incest statute, provides in pertinent part:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
B. The following are prohibited acts under this Section:
U(l) Sexual intercourse, sexual battery, aggravated sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.
(2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.

The attempt statute, LSA-R.S. 14:27, provides in pertinent part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Thus, in order to support a conviction for attempted aggravated incest, the State is required to prove that defendant specifically intended to engage in an act listed in Subsection B of LSA-R.S. 14:78.1 with his stepdaughter; Such proof is indispensable, as specific intent to accomplish the offense is the sine qua non of the criminal offense of attempt. See State v. Trackling, 609 So.2d 206, 207 (La.1992) (per curiam). Specific intent is a state of mind and as such need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. See State v. Graham, 420 So.2d 1126, 1127 (La.1982); State v. Allen, 94-1941, p. 9 (La.App. 1st Cir.11/9/95), 664 So.2d 1264, 1272, writ denied, 95-2946 (La.3/15/96), 669 So.2d 433.

The trial took place on March 19, 2002. K.C. was nine years of age at the time of the trial. The acts that formed the basis of defendant’s conviction occurred between February 1998 and April 1999. Thus, the victim was between the ages of five and six when the incidents occurred.

During the trial, the State presented testimony of Dr. Sue Austin, Detective Shane Rogers, Officer Wanda Campbell, K.C., R.M., and Dr. Scott Benton. The | RState also admitted a videotaped interview of K.C. conducted by Dr. Austin at the Child Advocacy Center.

Dr. Benton first examined K.C. on June 30, 1998. Her pediatrician, Dr. Angela Smith Duthu, was concerned that K.C. may have been sexually abused. The physical examination revealed no abnormalities. However, Dr. Benton reported that K.C. related “adult sexualized behavior” with her brother and another girl and would “be at risk for future victimization if she incorporated this behavior into her way of being.” Dr. Benton examined K.C. again, after the allegations of the instant offense surfaced.

Defendant presented the testimony of Dr. Steven David Thurber to establish alternative explanations for the allegations. Defendant also introduced the testimony of several witnesses, including defendant’s two sisters and a friend of the family, who had observed defendant with the children on several occasions and did not notice any inappropriate behavior.

Defendant elicited testimony to show that K.C. had brought a previous claim of sexual abuse against D.O., the son of her biological father’s girlfriend, and then recanted. KC.’s testimony at trial indicated that D.O. pulled down her pants and stuck a pencil eraser in her “private part.” She stated that she did not know whether D.O. also did this to her younger brother, N.C. She explained that she told her dad that this incident did not happen only because she was “scared.” She further stated that her father was yelling at her, so she said it was not true. This alleged incident occurred when D.O. was eight or nine years old and K.C. was about five. D.O. testified that he never touched K.C. inappropriately. K.C.’s biological father and D.O.’s mother also testified. Neither believed that D.O. | (¡inappropriately touched K.C. or N.C. They testified that KC.’s statements concerning D.O.’s behavior were inconsistent.

During his testimony, defendant denied that he ever inappropriately touched either K.C. or N.C. He discussed the circumstances surrounding the end of his marriage. He also stated that he stopped sending R.M. a portion of his weekly earnings after he informed her that he wanted a divorce.

Defendant argued that the use of anatomically correct dolls “contaminated” the videotaped interview of the victim presented to the jury. He also presented several theories as to why the victim divulged allegations of sexual abuse to the interviewer, including coaching of the victim, maintenance of physical hygiene of the victim by defendant, fantasizing by the victim, and exposure of the victim to pornography.

Defendant further presented several arguments to support the claim that R.M. influenced the victim to make allegations against him. First, he underscores the fact that R.M. filed a petition for divorce on the ground of abandonment approximately two weeks prior to the disclosure of the allegations. The petition for divorce included claims for alimony and settlement of community property. Second, R.M. had been sexually abused as a child. Third, R.M. had a history of depression and use of medication. Finally, R.M. had been strongly counseled against marrying defendant. Defendant also underscores inconsistencies such as R.M.’s testimony that she woke up and found defendant in the victim’s bedroom in the middle of the night in February 1999, although she reported to the Office of Community Services that this incident occurred in November 1998.

After reviewing the record, we find that the State presented sufficient evidence at trial to show that defendant attempted to commit a sexual act on K.C. K.C.’s testimony alone provided enough evidence to support a conviction of 17attempted aggravated incest. A pertinent part of the victim’s testimony was as follows.

Q. Okay. When you mean that he was licking and kissing, you mean your behi-nie as well as your butt?
A. Yes.
Q. Let’s start with your behinie. That’s the front part in between your legs.

- Okay. Was he licking you on the outside or the inside?

A. Some parts was in the outside and some parts was in the inside.
Q. Okay. What about your behinie — ' your butt, I should say. You say that he touched and kissed and licked your butt.
When you said the middle of the crack, what part of your body is that, do you have a name for it?
A. The hole.
Q. The hole? He actually stuck it by the hole?
A. Yes.
Q. Did he stick it — how did he stick it in the — by the hole? Tell me what he did. Do you remember?
A. (Shakes head negatively.)
Q. You don’t want to talk about it?
A. No.

The statements made by the victim concerning the acts of defendant during her videotaped interview with Dr. Austin on December 22, 1999, were consistent with her testimony presented at the trial on March 19, 2002, and her disclosures during her examination with Dr. Benton. Defendant’s claim that the videotape may have been contaminated is unfounded. The use of dolls came after the victim disclosed the incidents of abuse. We do not find that the manner in which the interview was conducted created a risk of contamination.

The testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. See State v. Williams, 632 So.2d 351, 357 (La.App. 1st Cir.1993), writ denied, 94-1009 (La.9/2/94), 643 So.2d 139. The jury apparently found K.C.’s testimony credible and rejected defendant’s trial testimony and hypotheses of innocence. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Richardson, 459 So.2d 31, 38 (La.App. 1st Cir.1984). Where there is conflicting testimony about factual matters, the resolution of which depends on a determination of credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. Id. The credibility of witnesses will not be reweighed on appeal. “[T]he Jackson standard does not serve as a vehicle for a reviewing court to second guess the rational credibility determinations of the factfinder at trial.” State v. Juluke, 98-0341, p. 4 (La.1/8/99), 725 So.2d 1291, 1293 (per curiam). The evidence was sufficient to support defendant’s conviction for attempted aggravated incest. Assignments of error one, two, and three are without merit.

ASSIGNMENTS OF ERROR NUMBERS FOUR, FIVE, AND SIX

Defendant, in his fourth assignment of error, argues that the trial court erred in refusing to permit, after in camera inspection, discovery and inspection of records of the Ochsner Clinic-Slidell and Dr. Duthu. In assignments of error five and six, defendant contends the trial court erred in allowing, after in camera inspection, only partial discovery and inspection of the De-Paul Hospital records, the records of the Family Services of Greater New Orleans, and the records of the Department of Social Services.

Under the United States Supreme Court decision of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the state, upon request, must produce evidence that is favorable to the accused where it is material to guilt or punishment. This rule has been expanded to include evidence that impeaches the testimony of a witness where the reliability or credibility of that witness may be determinative of guilt or innocence. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). Where a specific request is made for such information and the subject matter of such a request is material, or if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the information to the trial judge for an in camera inspection. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976); State v. Cobb, 419 So.2d 1237, 1241 (La.1982).

The Supreme Court firmly established the test for determining materiality in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and that test has been applied by the Louisiana Supreme Court. See State v. Rosiere, 488 So.2d 965, 970 (La.1986). The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Bagley, 105 S.Ct. at 3383.

At the outset, we note that the referenced records have been sealed and made available for review on appeal. Thus, we have conducted an independent review of the records in question. Defendant was granted in camera inspection of all requested records, and the trial court made the following records available to defendant: the interview of R.M. by the Office of Community Services (OCS); the OCS interview with N.C.; sheriffs records regarding telephone calls from defendant to the sheriffs office from 10/1/98 to 3/1/99; a document entitled “The CPI Intake Risk Assessment Data Entry”; Dr. Scott Benton’s report on his h(interview with K.C.; .and excerpts from the St. Tammany Parish Sheriffs Office Detective Division Resume.

Defendant argues on appeal that R.M.’s medical records were relevant and material. He further argues that the trial court’s refusal to permit discovery and inspection of the Ochsner Clinic-Slidell records unfairly prejudiced him in preparing his defense, particularly in view of the fact that R.M. had been sexually abused as a child and had a history of depression and use of medication.

First, we note that the relevance of this information is tentative. Furthermore, the jury was well aware that R.M. had been sexually abused as a child and of her history of use of antidepressant medication. Thus, any further evidence of her condition or past sexual abuse would have been cumulative, and there is no reasonable probability that the result of the proceeding would have been different had it been introduced.

Defendant also states that he was unfairly prejudiced by the trial court’s refusing to permit discovery and inspection of the records of Dr. Duthu and permitting only partial discovery and inspection of the DePaul Hospital records and the Family Services of Greater New Orleans records. He states that KC.’s medical records and N.C.’s history of violent behavior toward his sister were relevant and material. He avers that he may have been able to use the medical records to impeach R.M. and K.C. to a greater extent and that the verdict may have been different.

The testimony presented by the State, however, revealed that no abnormalities were discovered when the victim was physically examined by Dr. Benton on two separate occasions, first after allegations concerning D.O. arose,and second, when the allegations against defendant were made. Dr. Benton stated, in regard to the physical exam conducted after the allegations against defendant, that the “exam showed that [K.C.] was a prepubital little girl who had normal female parts and a normal anus.” He also stated that “her physical exam on that day was within normal limits” and “neither confirmed nor ... denfied] what she told me had happened.” As aforementioned, Dr. Duthu first referred K.C. to Dr. Benton because she suspected that KC. might have been sexually abused. The defense was able to cross-examine Dr. Benton, and the results of his physical examination were favorable to defendant and made known to the jury. Furthermore, the trial court ordered that the progress notes from interviews with K.C. and the records of DePaul Tulane Behavioral Health Center on N.C. be made available to both counsel.

In assignment of error number six, defendant argues that the trial court erred in permitting only partial discovery, following in camera inspection, of the Department of Social Services’s records and St. Tammany Parish Sheriff’s Office Detective Division Resume. Defendant states that his inability to inspect these records in their entirety may have unfairly prejudiced him in attempting to show the unreliability of R.M.’s and K.C.’s trial testimony.

Our independent review of the documents in question reveals no abuse of discretion in the trial court’s decisions as to discovery. The trial court did not deny defendant discovery of any material, favorable, or exculpatory evidence. For the foregoing reasons, we find no merit in these assignments.

ASSIGNMENT OF ERROR NUMBER SEVEN

In the seventh assignment of error, defendant argues that the trial court erred in refusing to permit him to adduce into evidence, except via proffer, information regarding N.C.’s history of violent behavior toward his sister, K.C. Defendant | ^specifically avers that N.C.’s history of violent behavior toward his sister establishes that he could have, at all times pertinent to the allegations by K.C. against defendant, utilized duress, menace, psychological intimidation and influence by virtue of a position of control over KC. He further claims that N.C., as a “facilitator” of the allegations against him, is a person whose history of violent behavior toward his sister is relevant and material to the trial.

Incident report # 1998113313 of November 20, 1998, pertaining to N.C., was produced by the St. Tammany Parish Sheriffs Office, pursuant to defendant’s subpoena duces tecum, for in camera inspection by the trial court. Following in camera inspection, the trial court permitted full discovery and inspection by defendant of the incident report. The incident report, in pertinent part, states:

Having problems w/7 yo son threatening to kill his mother
Beats on his 5 yo sister
Tried to stab sister 1 month ago

Defendant claims that this report established that barely a year prior to the allegations by K.C., N.C. had committed acts of violence against his sister. He avers that the incident report suggests competing explanations for the allegations by K.C. against him and, therefore, constitutes both impeachment and exculpatory evidence. Defendant attempted to use this report to attack the credibility of K.C.

N.C. was not called as a witness. The trial court declined to admit the report, ruling that the information in the report was not relevant. Defendant later proffered the incident report and made it available for appellate review.

A witness may be cross-examined on any matter relevant to any issue in the case. La.Code Evid. art. 611 B. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La. Code Evid. art. 401. All relevant evidence is generally Inadmissible. La.Code Evid. art. 402. The trial court has considerable discretion in determining the relevancy of evidence. The ruling will not be disturbed absent an abuse of discretion. State v. Miles, 402 So.2d 644, 647 (La.1981).

Upon reviewing the incident report and the record, we find that the trial court did not abuse its discretion in ruling that the above report was inadmissible. Defendant has failed to link any acts of violence on the part of N.C. to the disclosures made by K.C. that form the basis of this case. K.C. clearly testified that no one told her to make these claims. Even if we were to find error in the trial court’s ruling as to the admissibility of this evidence, it is clear that the impact of the excluded evidence would have been minimal and that exclusion of the evidence was harmless beyond a reasonable doubt. See Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); see also LSA-C.Cr.P. art. 921. This assignment of error is meritless.

ASSIGNMENT OF ERROR NUMBER EIGHT

Defendant avers, in the eighth assignment of error, that the trial court erred in permitting Dr. Benton’s testimony regarding KC.’s complaint of sexual abuse by defendant. Defendant specifically states that Dr. Benton’s testimony regarding KC.’s allegations effectively bolstered K.C.’s credibility in the eyes of the jury. Defendant further contends that this error deprived him of his basic fundamental right of due process.

Louisiana Code of Evidence article 803(4) allows a hearsay exception for statements made for the purposes of medical treatment and medical diagnosis in connection with treatment. Defendant argues that portions of Dr. Benton’s testimony consisting of hearsay statements by the victim concerning allegations of sexual acts by defendant exceeded the permissible scope of article 803(4).

| uDr. Benton examined K.C. on two separate occasions. The second and pertinent examination took place on January 7, 2000. The doctor conducted a full pediatric examination and a sexual abuse examination. During the examination, K.C. stated that defendant touched her private parts and “licked and kissed my butt.” K.C. also told him that “the demon came out and went in [her] butt.” Dr. Benton stated that he was not sure what K.C. meant when she made this statement, and his attempts at clarification were futile. The doctor examined KC.’s vaginal and anal areas. The physical examination did not reveal any physical abnormalities.

Dr. Benton testified that it is his practice to take a complete oral history from the child to determine “any issues that the child might have that I might be able to help them with.” Thus, Dr. Benton’s questioning K.C. about the sexual abuse served a diagnostic purpose.

However, even if we were to find that the hearsay statements went beyond the scope of article 803(4), hearsay testimony that is improperly introduced into evidence will be considered harmless if it is cumulative and corroborative of other properly admitted evidence and did not contribute to the verdict. State v. Reed, 97-0812, p. 11 (La.App. 1st Cir.4/8/98), 712 So.2d 572, 578-579, writ denied, 98-1266 (La.11/25/98), 729 So.2d 572. In the instant case, we find that the admission of the hearsay statements of Dr. Benton did not contribute to defendant’s conviction. See Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). The State also presented the testimony of the victim that contained allegations consistent with those disclosed to Dr. Benton. Furthermore, the State introduced the videotaped interview of the victim with Dr. Austin. Thus, the hearsay statements included in the doctor’s testimony were cumulative of the direct evidence and the statements made by the victim during the videotaped interview. The victim’s testimony h-provided detailed descriptions of what she believed defendant did to her. The statements were consistent with the information that she relayed to Dr. Austin. As previously determined, the testimony of the victim alone was sufficient to establish defendant’s specific intent to commit the crime of aggravated incest and the commission of specific acts in furtherance thereof. For the foregoing reasons, we find that any error as to the admission of the testimony of Dr. Benton was harmless beyond a reasonable doubt. This- assignment of error is without merit.

ASSIGNMENTS OF ERROR ' NUMBERS NINE, TEN, AND ELEVEN

In assignment of error number nine, defendant avers that the trial court failed to properly consider the sentencing guidelines contained in LSA-C.Cr.P. art. 894.1. In the tenth assignment of error, he contends that the sentence imposed by the trial court was constitutionally excessive. Accordingly, he argues in the eleventh assignment of error that the trial court erred in denying his oral motion to reconsider sentence.

Article I, § 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Excessiveness of sentence is a reviewable question of law. See State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence may be excessive either by reason of its length or because the circumstances warrant a less onerous sentencing alternative. State v. Payne, 540 So.2d 520, 524 (La.App. 1st Cir.), writ denied, 546 So.2d 169 (La.1989). In other words, a sentence may be both within the statutory limits and constitutionally excessive.

A sentence is excessive when it is grossly out of proportion to the severity of the offense or nothing more than the needless and purposeless imposition of pain and suffering. To determine whether a penalty is grossly disproportionate to the crime, the court considers the punishment and the crime in light of the harm to society and whether or not the penalty is so disproportionate as to shock our sense |1fiof justice. A trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. Payne, 540 So.2d at 524.

To prevent the possible imposition of excessive punishment and to guide the trial court in its sentencing tasks, article 894.1 sets forth factors that justify a sentence of imprisonment and other factors that tend to indicate suspension of sentence or probation as more appropriate. State v. Vampran, 459 So.2d 1388, 1335 (La.App. 1st Cir.1984). In imposing sentence, a trial court must comply with the mandatory requirements of the article and individualize the sentence by stating for the record the considerations taken into account and the factual bases therefore. Id. Article 894.1 does not, however, require the trial court to list all of the factors listed therein to which it accorded weight in determining whether to impose a sentence of imprisonment. Id.

In the instant case, the trial court imposed a sentence of ten years at hard labor. The trial court suspended five years of the sentence and ordered that defendant be placed under supervised probation upon release, with general and special conditions. Louisiana Revised Statute 14:78.1 D provides that a person convicted of aggravated incest shall be fined an amount not to exceed $50,000, or imprisoned, with or without hard labor, for a term not less than five years nor more than twenty years, or both. As defendant was convicted of the responsive offensive of attempted aggravated incest, we must also refer to LSA-R.S. 14:27, which provides in subsection D(3):

In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

| y/Thus, the sentenced imposed by the trial court in the instant case was the statutory maximum length of ten years. The trial court did not, however, impose a fine.

Prior to sentencing, the trial court reviewed a presentence investigation report. At the sentencing hearing, defendant introduced the testimony of three witnesses. Those witnesses included defendant’s two sisters and his brother-in-law. Defendant also introduced an affidavit from Jeffrey R. Barnett, the director of human resources of Atlanta Freight Line Truck Sales, Inc., defendant’s former employer. The affidavit stated that Mr. Barnett would consider defendant for future reemployment. The trial court did not state its reasons for sentencing.

A trial court has broad discretion in the imposition of sentences; however, this discretion is not unbridled. State v. Tilley, 400 So.2d 1363, 1366 (La.1981); State v. Jackson, 98-0004, p. 11 (La.App. 1st Cir.11/6/98), 724 So.2d 215, 222, writ denied, 98-3056 (La.4/1/99), 741 So.2d 1283. As a general rule, maximum or near maximum sentences are to be reserved for the worst offenders and the worst offenses. State v. Soco, 441 So.2d 719, 720 (La.1983); State v. Adams, 525 So.2d 1256, 1260 (La.App. 1st Cir.), writ denied, 532 So.2d 130 (La.1988). In the instant case, we find that the trial court did not abuse its discretion in imposing sentence. Although a ten-year sentence was imposed, the trial court suspended one-half of the sentence, so that defendant will in effect be imprisoned for a total of five years. This is one-half of the maximum years of imprisonment allowed statutorily. Furthermore, as previously noted, the trial court could have imposed a fine of up to $25,000. The trial court knew defendant was a first offender. The trial court was also aware of the sordid facts of the instant offense and the effects of defendant’s act on the victim. The trial court denied defendant’s oral motion for reconsideration of sentence based on its reading of the record and the P.S.I. Based upon the record and the evidence from the trial court, we are unable to declare that |iathe trial court manifestly abused its discretion in sentencing defendant or in denying defendant’s oral motion to reconsider sentence. This court will not set aside the sentence as constitutionally excessive. These assignments lack merit.

ASSIGNMENT OF ERROR NUMBER TWELVE

In the twelfth assignment of error, defendant contends that the trial court erred in denying his oral motion to fix postconviction bail. This issue is more properly and timely raised by invoking the supervisory jurisdiction of this court pursuant to article 343 of the Code of Criminal Procedure. See State v. Simmons, 414 So.2d 705, 711 (La.1982). However, we will consider defendant’s claim as an assignment of error.

Louisiana Code of Criminal Procedure article 332 C provides that postconviction bail shall be imposed if a sentence of five years or less is actually imposed, but if the sentence exceeds five years, the trial court has discretion whether to allow bail. See State v. Strickland, 398 So.2d 1062, 1068 (La.1981). Defendant contends that a sentence of five years’ imprisonment was actually imposed by the trial court and thus postconviction bail should have been fixed.

Although defendant herein received the benefit of the suspension of one-half of the sentence imposed, the trial court, nonetheless, sentenced him to ten years’ imprisonment. Thus, bail pending appeal was a matter within the trial court’s discretion. The trial court did not abuse this discretion in denying bail pending appeal in this case. This assignment of error is without merit.

I! ¡ASSIGNMENT OF ERROR NUMBER THIRTEEN

In his thirteenth and final assignment of error, defendant asks that we review the record for errors discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

This court routinely reviews the record for errors patent, whether or not a defendant makes such a request. Under LSA-C.Cr.P. art. 920(2), our patent-error review is limited to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review, we find no errors patent on the face of the record in these proceedings.

CONVICTION AND SENTENCE AFFIRMED.

      . We shall discuss the results of the second examination in our treatment of assignment of error number eight.

      . We will address the relevance of evidence of the alleged violent behavior of N.C. in our discussion of assignment of error number seven.


source: Caselaw Access Project

author: KLINE, J. McCLENDON, J.,

license: Public Domain

text:
    Ruth RUSSELL v. SNELLING PERSONNEL.
    No. 2002 CA 1347.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.
    Greg Unger, Metairie, Counsel for Appellant Ruth Russell.
    Bradley Naccari, Metairie, Counsel for Appellee Snelling Peronnel.
    Before: FOIL, McCLENDON, and KLINE, JJ.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   KLINE, J.

This is an appeal from a workers’ compensation judgment granting a motion for summary judgment and dismissing Ruth Russell’s claim against her employer, Snelling Personnel, and the Louisiana Insurance Guaranty Association (“LIGA”). Ms. Russell filed this claim after her workers’ compensation benefits were interrupted due to the insolvency of Snelling’s workers’ compensation insurer, Rebanee National Insurance Company (“Reliance”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 15, 1999, Ms. Russell injured her left arm when she was struck by a forklift. At the time of her injury, Ms. RusseU was employed by Snelbng Personnel and the accident arose out of and was within the course and scope of her employment. As a result, temporary total disability indemnity benefits and medical benefits were paid to her.

On October 26, 2001, Ms. Russell’s TTD benefits and medical benefits were discontinued after Reliance, Snelling’s workers’ compensation carrier, was declared insolvent. On November 6, 2001, Ms. Russell filed a disputed claim for compensation with the Office of Workers’ Compensation against Snelling and LIGA, seeking penalties and attorney’s fees, costs and interest for Snelling’s failure to timely pay workers’ compensation benefits and for penalties and attorney’s fees for Snelling’s refusal to authorize a change of treating orthopaedic surgeons. LIGA assumed responsibility for payment of Ms. Russell’s TDD indemnity benefits and medical benefits and resumed payment to Ms. Russell on December 11, 2001, issuing a check retroactive to October 26, 2001.

On April 11, 2002, Snelling and LIGA filed a motion for summary judgment requesting that Ms. Russell’s claims should be dismissed because LIGA cannot be made to pay penalties and attorney’s fees for the alleged arbitrary and capricious conduct of the insolvent insurer, and that Ms. Russell admitted that she exercised her choice of orthopaedic specialist. Ms. Russell filed a cross |Rmotion for summary judgment asserting that no genuine issues of material fact exist and that a summary judgment should be awarded in her favor, awarding penalties and attorney’s fees against Snelling. An opposition to Ms. Russell’s motion for summary judgment was filed on behalf of Snelling thereafter.

A hearing was held on April 26, 2002. The workers’ compensation judge then rendered a judgment stating the following:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ Motion for Summary Judgment is GRANTED, DISMISSING WITH PREJUDICE plaintiffs claim for penalties and attorney’s fees against both Snelling Personnel and LIGA with respect to the suspension of plaintiffs workers’ compensation benefits from October 26, 2001 to December 11, 2001, due to the liquidation of Snelling Personnel’s workers’ compensation carrier, United Pacific Insurance Company. The Court finds that Snelling Personnel was not “at fault” in the termination/suspension of plaintiffs workers’ compensation benefits.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiffs Motion for Summary Judgment with respect to her request to select a second choice of orthopedic specialist is DENIED.

Ms. Russell appeals the WCJ’s judgment and asserts the following assignment of error:

The court erred by determining that Snelling was not at fault concerning the suspension/discontinuance of appellant’s workers’ compensation benefits.

LAW AND DISCUSSION

On appeal, summary judgments are reviewed de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Simmons v. Berry, 98-0660, p. 4 (La.App. 1 Cir. 12/22/00), 779 So.2d 910, 913-14; J. Ray McDermott, Inc. v. Morrison, 96-2337, p. 9 (La.App. 1 Cir. 11/7/97), 705 So.2d 195, 202, writs denied, 97-3055, 97-3062 (La.2/13/98), 709 So.2d 753, 754. A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of summary judgment does not dispose of the entire case. La. C.C.P. art. 966(E).

The motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Bergeron v. Williams, 99-0886, 99-0887, p. 4 (La.App. 1 Cir. 5/12/00), 764 So.2d 1084, 1087, writ denied, 2000-1697 (La.9/15/00), 768 So.2d 1281; Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. The motion should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, and is now favored. La. C.C.P. art. 966(A)(2). The initial burden continues to remain with the mover to show that no genuine issue of material fact exists. Bergeron v. Williams, 99-0886 at pp. 4-5, 764 So.2d at 1087. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Bergeron v. Williams, 99-0886 at p. 5, 764 So.2d at 1087; LeJeune v. Brewster, 97-2342, pp. 3-4 (La.App. 1 Cir. 11/6/98), 722 So.2d 74, 76. In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751.

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Hardy v. Bowie, 98-2821, p. 6 (La.9/8/99), 744 So.2d 606, 610; Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 at p. 27, 639 So.2d at 751. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.1991), unit denied, 596 So.2d 211 (La.1992). Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be | .¡resolved against granting the motion and in favor of a trial on the merits. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 at p. 27, 639 So.2d at 751.

Because the applicable substantive law determines the materiality of facts in a summary judgment setting, we now turn to a discussion of the applicable law. See J. Ray McDermott, Inc. v. Morrison, 96-2337 at p. 11, 705 So.2d at 203.

Ms. Russell claims that the WCJ erred in finding that Snelling was not at fault in the suspension/discontinuance of her workers’ compensation benefits. Ms. Russell argues that Snelling has always been responsible for payment of her workers’ compensation benefits and should have paid them when Reliance could no longer pay. Ms. Russell asserts that Snelling was notified via certified mail, which it received on November 13, 2001, that her benefits had been discontinued and that she was requesting that Snelling pay her benefits. Ms. Russell’s benefits were stopped on October 26, 2001. Her next payment was due on November 2, 2001. She received her next payment on December 11, 2001, from LIGA. Ms. Russell contends that Snelling did not reasonably controvert the claim and, pursuant to La. R.S. 23:1201(F), Snelling is liable for penalties in the amount of $1,950.00 ($50.00 per day for thirty-nine days) and a reasonable attorney’s fee of $10,000.00.

Two statutory provisions, La. R.S. 28:1201(F) and La. R.S. 23:1201.2, provide for the award of penalties and attorney fees in workers’ compensation cases. The applicable statutory authority for assessing penalties and attorney fees depends on whether the insurer failed to commence or pay benefits in a timely fashion or whether benefits that had been timely paid were discontinued. Killett v. Sanderson Farms, 2001-0277, p. 10 (La.App. 1 Cir. 5/10/02), 818 So.2d 853, 861. In Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 45 the Louisiana Supreme Court stated that La. R.S. 23:1201.2 applies only when an insurer or employer arbitrarily discontinues payment of benefits; La. R.S. 23:1201(F) applies only when there has been a failure to commence or pay benefits timely. The distinction drawn in the Williams case is significant because |fiboth penalties and attorney fees are recoverable under La. R.S. 23:1201(F), whereas only attorney fees are recoverable under La. R.S. 23:1201.2. Id.

Penalties and attorney fees shall be awarded if the employer or the insurer fails to timely pay benefits due claimant, unless the claim is reasonably controverted or such nonpayment results from conditions over which the employer or insurer had no control. La. R.S. 23:1201(F); Brown v. Texas-LA Cartage, Inc., 98-1063, p. 8 (La.12/01/98), 721 So.2d 885, 890. The supreme court in Brown stated that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfi-ivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed. Brown, 98-1063 at p. 9, 721 So.2d at 890.

Louisiana Revised Statute 23:1201.2 reads as follows:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims.

A determination of whether a discontinuation of workers’ compensation benefits is arbitrary, capricious or without probable cause, which triggers imposition of attorney fees, usually depends on the facts existing and known at the time benefits are terminated. Killett, 2001-0277 at p. 10-11, 818 So.2d at 862.

As stated by Ms. Russell, Snelling was notified via certified mail, which it received on November 13, 2001, that Ms. Russell’s workers’ compensation indemnity and medical benefits had been discontinued. Indemnity benefits were stopped on October 26, 2001, as a result of Reliance becoming insolvent. Ms. Russel’s next installment of weekly indemnity benefits was due on November 2, 2001. LIGA began paying workers’ compensation indemnity benefits on December 11, 2001, with an initial payment to include funds retroactive to |7October 26, 2001. The discontinuance of Ms. Russell’s benefits under these circumstances is not deemed an arbitrary or capricious action by Snelling.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge granting Snelling’s motion for summary judgment and dismissing Ms. Russell’s claim against Snelling, is affirmed. Costs of this appeal to be paid by Ms. Russell.

AFFIRMED.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurring.

I concur. Snelling Personnel did not discontinue, terminate or cause the discontinuation of payment of workers’ compensation benefits, nor was the interruption of benefits the fault of Snelling Personnel.

      . The workers’ compensation judge, in its judgment, refers to Snelling's workers' compensation carrier as United Pacific Insurance Company. United Pacific Insurance Company is a former subsidiary which was previously merged into Reliance along with other subsidiaries, as stated in the Order of Liquidation.

      . Gregory S. Unger, an intervenor and previous attorney for Ruth Russell, filed a motion for leave to file petition of intervention with this court on November 23, 2002. He asserted that he was retained by Ms. Russell to represent her in the instant claim, and he subsequently performed legal services on behalf of Ms. Russell, including the taking of the instant appeal. He prayed for recovery of reasonable attorney fees and costs by preference and priority from the proceeds of any settlement, compromise agreement or judgment in favor of Ms. Russell. His motion was referred to the merits. As the judgment of the WCJ dismissing Ms. Russell's claim is affirmed, Mr. Unger’s motion is rendered moot.


author: PETTIGREW, J.

text:
    Elouise THOMAS v. WAL-MART.
    No. 2002 CA 1356.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Robert A. Lenter, Ruben Hernandez, Jr., Metairie, for Plaintiff-Appellee El-ouise Thomas.

      Frank A. Flynn, Lafayette, for Defendant-Appellant Wal-Mart.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

In this case, defendant appeals a judgment of the Office of Workers’ Compensation awarding claimant temporary total disability benefits, penalties, and attorney fees in connection with a work-related accident. For the reasons that follow, we amend and affirm.

FACTS AND PROCEDURAL HISTORY

On January 29, 2001, claimant, Elouise Thomas, filed a disputed claim for compensation with the Office of Workers’ Compensation averring entitlement to workers’ compensation benefits. Ms. Thomas alleged that on October 22, 2000, during the course and scope of her employment with Wal-Mart, she injured herself while she was stocking merchandise in the stationery department. According to Ms. Thomas, her foot became tangled up in some shrink wrap on a large pallet, causing her to fall to the floor and strike her right knee.

Immediately following the accident, Ms. Thomas experienced pain in her right knee and was limping, but managed to complete her shift, which ended at 6:00 a.m. After returning home following her shift, Ms. Thomas notified Addie Bogan, personnel manager at Wal-Mart, that she had fallen. At that time, no accident report was generated as Ms. Thomas indicated that she was not hurting. However, later that afternoon, Ms. Thomas again contacted Ms. Bogan, indicating that she was in pain and needed medical treatment. It was then that Ms. Bogan advised Ms. Thomas to return to the store to complete an accident report and an associate’s statement.

Ms. Bogan subsequently scheduled an appointment for Ms. Thomas with Dr. Lianter Albert on October 24, 2000. Dr. Albert took x-rays, which revealed no signs of acute bony trauma, and prescribed Arthrotee and crutches for Ms. Thomas. Dr. Albert’s diagnosis was that Ms. Thomas had sustained a contusion to her right knee. He advised Ms. Thomas to stay off of work for two days and return to see him at that time. On October 26, 2000, Dr. Albert released Ms. Thomas to return to “light duty” work at Wal-Mart. According to the record, Ms. Thomas returned to Wal-Mart and answered the phones for a few days. Ms. Thomas was then asked to handle “light returns” by assisting |sother associates in gathering returns and other merchandise that had been placed on shelves or racks and putting them back in their appropriate places.

Dwain Paul, support manager at Wal-Mart, testified that he was in contact with Ms. Thomas and her doctors during this time to insure that she was being accommodated within her particular restrictions. At some point after Ms. Thomas began doing “light returns,” she complained to Mr. Paul that she was having problems with her knee and was not able to stand for long periods of time. It was at that time that Mr. Paul accommodated Ms. Thomas with a motorized handicapped cart to assist her with her duties. However, after she began using the motorized cart, Ms. Thomas started complaining of back pain associated with the use of the cart. When asked if he did anything to further accommodate Ms. Thomas, Mr. Paul testified that it was around this time that she stopped reporting to work.

According to Ms. Thomas’ medical records, she only saw Dr. Albert on three occasions. Dr. Albert then referred Ms. Thomas to Dr. Jeffrey C. Fitter at the Morgan City Orthopedic Clinic. Dr. Fitter’s records, which consist of various letters dictated by Dr. Fitter for the benefit of Claims Management, Inc. (Wal-Mart’s workers’ compensation carrier), were introduced into evidence at the hearing of this matter. A summary of Dr. Fitter’s treatment of Ms. Thomas follows.

Ms. Thomas first saw Dr. Fitter on November 15, 2000, at which time Ms. Thomas was complaining of right knee pain. Dr. Fitter noted that Ms. Thomas was “quite overweight.” Ms. Thomas was walking with a limp and still using a crutch, sometimes two, to assist her in walking. Dr. Fitter found that Ms. Thomas had a sprained right knee and significant degenerative changes. Dr. Fitter advised Ms. Thomas to continue with light duty work at Wal-Mart and prescribed a light wrap-around splint for her knee.

On December 1, 2000, Dr. Fitter found that Ms. Thomas was still symptomatic and unable to bear full weight because of pain in her right knee. It was during this visit that Ms. Thomas told Dr. Fitter that she was using a motorized cart to get around the store. Ms. Thomas complained that her legs had been swelling “quite a bit,” but Dr. Fitter noted her history of venous stasis. Dr. Fitter indicated that Ms. Thomas’ “recovery from her | ¿knee injury is complicated by her severe overweight condition, making mobility very difficult.” He noted further that Ms. Thomas’ “mobility won’t increase until symptoms of right knee pain improve.” Dr. Fitter advised Ms. Thomas to continue with her present light duty restrictions on the job and return in two weeks.

During her next visit with Dr. Fitter on December 15, 2000, Ms. Thomas was still complaining of persistent right knee pain and swelling of the entire right leg. She also indicated that she had been experiencing a degree of lower backache. Dr. Fitter noted that both of Ms. Thomas’ legs were swollen, with the right one more so than the left. Ms. Thomas was wearing support stockings at the time, something that she had been doing for venous insufficiency prior to her work injury. Dr. Fitter recommended that Ms. Thomas continue with light duty work and continue to wear the support stockings. Dr. Fitter further noted that with Ms. Thomas’ severe overweight condition and lower extremity edema, he was not optimistic that she would improve in the near future.

Ms. Thomas returned to see Dr. Fitter on January 11, 2001, at which time Ms. Thomas indicated that she had been seen by Dr. Gary Wiltz who advised her to stop working. Dr. Fitter found no significant change in Ms. Thomas’ condition, noting that she was still suffering from a lower backache and still showed signs of venous insufficiency in both legs. In a letter concerning this office visit, Dr. Fitter stated as follows with regard to Ms. Thomas’ prognosis:

She has significant degenerative disease in her right knee as well as severe venous insufficiency in both legs. These conditions are aggravated by her severe overweight problem and could make it unlikely that this patient is going to return to ambulatory status in the near future. Additionally she appears to be developing chronic low back problems which are probably also referable to her overweight condition. I have no objection to her being off work at this time.

The record contains an “Accident and Illness Report” dated January 11, 2001, wherein Dr. Fitter indicated that Ms. Thomas should not work for one month.

|fiThe next correspondence in Dr. Fitter’s records is a February 13, 2001 letter generated in response to a fax from Claims Management, Inc. wherein Dr. Fitter outlined the “complex nature” of Ms. Thomas’ problems. The following is an excerpt from this letter, detailing Ms. Thomas’ medical history and prognosis:

While I have been treating Ms. Thomas for a contusion or sprain of the [right] knee she has several pre-existing medical conditions which have seriously complicated and prolonged her management. Ms. Thomas had arthritic changes on initial x-rays of the [right] knee which certainly predated her injuries and have contributed to the chronic local discomfort in her knee. Ms. Thomas is also severely overweight, making it somewhat difficult for her to ambulate even in the best of circumstances and significantly limiting her ability to walk following her injury. Thirdly, the patient suffers from severe pre-existing venous insufficiency in both legs which has resulted in refractory swelling requiring strict elevation of both legs. Support stockings only partially control this problem.
Because of the patient’s injury and multiple pre-existing conditions I have recommended that she work strictly in a sitting position, I understand that she gets around the store in a customer’s electric shopping cart for the most part. She should continue with these work restrictions which have been documented in previous reports. Due primarily to her multiple pre-existing medical conditions I do not believe Ms. Thomas’ ambulatory status and ability to work is going to improve in the near future. I think it is realistic to assume that she now has recovered from the sprain or contusion of the right knee sustained in October of last year and remains limited primarily by her pre-existing condition. I would judge her to be at maximum medical improvement from her injury. I do not expect her medical conditions to improve however and think Ms. Thomas is a candidate for long term or permanent disability status because of these conditions.

Ms. Thomas returned to see Dr. Fitter on February 15, 2001, complaining that her back and knee symptoms were worse. At that time, Dr. Fitter found no significant changes on exam and indicated that her disability at that time was “due primarily to her multiple pre-existing conditions.” With regard to Ms. Thomas’ work status, Dr. Fitter noted the recommendation by Dr. Wiltz that she “stay off work primarily because of her description of increased backache while operating her motorized cart” and acknowledged that he concurred with that recommendation. In fact, in an “Accident and Illness Report” dated February 15, 2001, Dr. Fitter recommended that Ms. Thomas remain off work for one month, after which time he would re-evaluate her status.

On March 23, 2001, Ms. Thomas was again examined by Dr. Fitter. He found no significant changes on exam. Ms. Thomas was walking with the assistance of a “quad cane” but indicated that she was only able to walk a maximum of 50 to 100 feet without | ^having to stop for a rest. Dr. Fitter noted that Ms. Thomas had been off work at the recommendation of Dr. Wiltz, a decision he concurred with on Ms. Thomas’ last visit. However, he indicated that Wal-Mart wanted Ms. Thomas to consider returning to “some very light work.” Dr. Fitter apparently discussed this option with Ms. Thomas, who agreed that she could work as long as she was’ allowed to do so while constantly sitting down. According to the record, Dr. Fitter was to see Ms. Thomas again in six weeks; however, there is no indication that she ever returned to see Dr. Fitter. There are no further work excuse slips in the record from Dr. Fitter concerning Ms. Thomas’ work status.

Also introduced into evidence at that hearing of this matter were the records from Dr. Wiltz concerning his treatment of Ms. Thomas. Ms. Thomas was first examined by Dr. Wiltz on December 20, 2000, at which time she complained of pain in her right knee and lower back. Dr. Wiltz advised Ms. Thomas “to have rest and decreased weight bearing and elevation of her feet.” On December 27, 2000, Ms. Thomas returned to see Dr. Wiltz with the same complaints. It was at this time that Dr. Wiltz first advised Ms. Thomas that she should refrain from all work. Ms. Thomas was seen on three other occasions by Dr. Wiltz, January 10, 2001, February 8, 2001, and March 19, 2001. Throughout the course of her treatment with Dr. Wiltz, Ms. Thomas remained off work at his recommendation. The last work excuse slip in the record from Dr. Wiltz indicates that Ms. Thomas was excused from work from March 19, 2001, the date of her last visit with Dr. Wiltz, until June 18, 2001. There is nothing in the record to suggest that Ms. Thomas had any follow-up treatment with Dr. Wiltz after her last appointment on March 19, 2001.

Ms. Thomas’ claim for compensation proceeded to hearing on March 8, 2002. The workers’ compensation judge heard testimony from Ms. Thomas, Ms. Bogan, and Mr. Paul, allowed the introduction of various documents into evidence, including the medical records from Ms. Thomas’ treating physicians, and took the matter under |7advisement. The judge subsequently rendered judgment on April 12, 2002, finding that (1) Ms. Thomas’ current disability status was caused by the work-related accident of October 22, 2000; (2) Ms. Thomas was entitled to temporary total disability benefits; (3) Ms. Thomas did not have her choice of physician in the field of orthopedics; and (4) Wal-Mart was arbitrary and capricious in the handling of Ms. Thomas’ claim’ thus entitling her to $2,000.00 in penalties and $2,000.00 in attorney fees. It is from these judgments that Wal-Mart has appealed, assigning the following specifications of error:

1. The trial court committed manifest error when the court found plaintiff, El-ouise Thomas, was entitled to workers’ compensation benefits when the plaintiff failed tp carry the requisite burden of proof regarding medical connexity of the work accident and her right knee condition.
2. The trial court committed manifest error when the court found plaintiff, El-ouise Thomas, was entitled to temporary total disability benefits without specifying the duration of such benefits.
3. The trial court committed manifest error when it found Wal-Mart was arbitrary and capricious and awarded penalties and attorney’s fees when there were substantial and [legitimate] disputes over the extent of work related injury and/or work related disability, if any.

STANDARD OF REVIEW

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 651, 666. As an appellate court, we cannot set aside the factual findings of the workers’ compensation judge unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, | salthough the appellate court may feel that its own evaluations and inferences are as reasonable. Id.

As a threshold requirement, a claimant in a workers’ compensation action must establish “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031(A). Thus, in order for a claimant to be entitled to recover workers’ compensation benefits, he must prove, by a preponderance of the evidence, that a work-related accident occurred and that an injury was sustained. A claimant’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Jackson v. Savant Insurance Company, 96-1424, p. 3 (La.App. 1 Cir. 5/9/97), 694 So.2d 1178, 1180. See also Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992).

In workers’ compensation cases, a disability is presumed to be the result of the work-related accident if the claimant was in good health before the accident, and the symptoms of the disability appear after the accident and continue to manifest themselves. This presumption is available when sufficient medical evidence is introduced to show a reasonable possibility of a causal connection between the disability and the work-related accident, or that the nature of the accident raises a natural inference that such a causal connection exists. LeBlanc v. Cajun Painting Inc., 94-1609, p. 10 (La.App. 1 Cir. 4/7/95), 654 So.2d 800, 807, writs denied, 95-1706, 95-1655 (La.10/27/95), 661 So.2d 1349, 1350. Thus, when there is proof of an accident and a following disability, without an intervening cause, it is presumed that the accident caused the disability. Jackson, 96-1424 at 3, 694 So.2d at 1180. Additionally, where the employee suffers from a preexisting medical condition, he may still prevail if he proves the accident aggravated, accelerated, or combined with the disease or infirmity to produce a disability for which compensation is claimed. Peveto v. WHC Contractors, 93-1402, p. 2 (La.1/14/94), 630 So.2d 689, 691. Whether an employee met his burden depends upon the totality of the evidence, including lay and medical testimony. Tate v. L & A Contracting, 26,110, p. 5 (La.App. 2 Cir. 9/21/94), 643 So.2d 263, 267, writ denied, 94-2834 (La.1/27/95), 649 So.2d 385.

TEMPORARY TOTAL DISABILITY BENEFITS

In its first two assignments of error, Wal-Mart attacks the award of temporary total disability benefits (TTD) in this case, alleging that Ms. Thomas failed to carry her burden of proving a medical connexity between the work-related accident and her right knee condition. Further, Wal-Mart contends that the workers’ compensation judge erred in not specifying the duration of the TTD benefits.

An employee is entitled to temporary total disability benefits (TTD) if he sustains a work-related injury “producing temporary total disability ... to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience.” La. R.S. 23:1221(l)(a). When such an employee is not working, TTD compensation is proper “only if the employee proves by clear and convincing evidence, unaided by any presumption of disability,” that he is physically unable to engage in any employment or self-employment, “including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.” La. R.S. 23:1221(l)(c). To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. Bank of Winnfield and Trust Company v. Collins, 31,473, pp. 4-5 (La.App. 2 Cir. 2/24/99), 736 So.2d 263, 266.

In the instant case, the record shows Ms. Thomas reported the accident to her employer on the day it occurred. Thereafter, Ms. Thomas began complaining of right knee pain. She initially sought medical treatment associated with this injury on October 24, 2000, and was advised to stay off of work for two days. On October 26, 2000, Ms. Thomas was released to return to light duty work at Wal-Mart. Ms. Thomas continued to perform her duties at Wal-Mart until December 27, 2000, when Dr. Wiltz advised her to stop working. According to Ms. Thomas’ medical records, this was due primarily to Ms. ImThomas’ “description of increased backache while operating her motorized cart,” which had been provided to assist her with her duties at Wal-Mart. However, there is also evidence that Ms. Thomas was still experiencing right knee pain at this time and was unable to walk more than 50 to 100 feet without having to stop and rest. Dr. Wiltz treated Ms. Thomas through March 19, 2001, at which time he provided Ms. Thomas with a work excuse keeping her off of work through June 18, 2001.

Dr. Fitter treated Ms. Thomas for complaints of right knee pain and lower back pain from November 15, 2000, at which time his diagnosis was that Ms. Thomas had a sprained right knee and significant degenerative changes, through March 23, 2001, at which time Dr. Fitter discussed the possibility of Ms. Thomas returning to light duty work at Wal-Mart. With regard to Ms. Thomas’ treatment and prognosis, Dr. Fitter continually referred to her “multiple pre-existing conditions,” noting that venous insufficiency in both legs and her severe overweight condition “have seriously complicated and prolonged her management.” Dr. Fitter was of the opinion that as of February 13, 2001, Ms. Thomas had completely recovered from the right knee injury sustained in the October work-related accident and had reached maximum medical improvement. Dr. Fitter noted that Ms. Thomas remained limited primarily by her pre-exist-ing medical conditions. Nonetheless, Dr. Fitter agreed with Dr. Wiltz that Ms. Thomas should not return to work, authorizing that she stay off of work through March 15, 2001.

Considering the evidence as a whole, both lay and medical, we are satisfied that Ms. Thomas sustained a work-related injury on October 22, 2000. The possibility of a causal connection between the work accident and Ms. Thomas’ disabling condition is reasonable. Accordingly, we find no manifest error in the workers’ compensation judge’s finding that Ms. Thomas has satisfied her burden of proving by clear and convincing evidence that she was disabled and entitled to receive TTD benefits during the time she was unable to work as a result of this work-related injury. Thus, the issue becomes the duration of any such award. As noted previously, the judgment rendered by the workers’ compensation judge on April 12, 2002, does not include a specified duration within which Ms. Thomas was to be paid TTD benefits.

In Louisiana Revised Statutes 23:1221(l)(d) provides as follows with regard to the duration of an award of TTD benefits:

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.

Furthermore, it is well settled that even the claimant who can perform only sedentary or light duty work is not entitled to TTD benefits. Fisher v. Lincoln Timber Company, 31,430, p. 11 (La.App. 2 Cir. 1/24/99), 730 So.2d 973, 980; Holden v. International Paper Company, 31,104, p. 2 (La.App. 2 Cir. 10/28/98), 720 So.2d 442, 444, writ denied, 98-2956 (La.1/29/99), 736 So.2d 834.

When asked at trial about whether she had returned to work at Wal-Mart, Ms. Thomas indicated she had not, noting that Dr. Wiltz had not released her to return to work because of her back and knee pain. Ms. Thomas testified further that she was disabled and could not work at all. Ms. Thomas was later asked if she would consider returning to work at Wal-Mart if Wal-Mart could offer her a job answering the phone. She responded as follows: “No, sir, because I’m getting my disability.” When pressed further about whether she had any interest in returning to gainful employment, Ms. Thomas indicated that because of her back pain, she did not think she would ever be able to work again.

According to the record, Ms. Thomas last sought medical attention for the incident in question on March 23, 2001, when she saw Dr. Fitter and discussed the possibility of returning to light duty work at Wal-Mart. Ms. Thomas’ last visit to Dr. Wiltz was on March 19, 2001, at which time Dr. Wiltz provided her with a work excuse for the period from March 19, 2001 through June 18, 2001. The trial of this matter was not held until March 8, 2002, almost an entire year after Ms. Thomas’ last documented visit to Dr. Fitter. There is nothing in the record before us to suggest that during this one year period Ms. | ^.Thomas received any medical treatment associated with the injury she sustained on October 22, 2000, or required any “continued, regular treatment by a physician.” See La. R.S. 23:1221(l)(d). Consequently, we cannot find that the record supports an award of TTD benefits past June 18, 2001, the latest date given by Dr. Wiltz with regard to Ms. Thomas’ work status. Moreover, because Ms. Thomas did, in fact, perform light duty work at Wal-Mart from the time of the accident through December 27, 2000, Ms. Thomas was not entitled to receive TTD benefits until December 27, 2000, the date on which Ms. Thomas was disabled to the point that she was “physically unable to engage in any employment.” See La. R.S. 23:1221(l)(c). Thus, we amend the judgment of the workers’ compensation judge to reflect that Ms. Thomas is entitled to receive TTD benefits commencing on December 27, 2000, and terminating effective June 18, 2001. Judgment will be rendered accordingly.

PENALTIES AND ATTORNEY FEES

In its final assignment of error, Wal-Mart contends the workers’ compensation judge erred in finding it was arbitrary and capricious in its handling of Ms. Thomas’ claim and in awarding penalties and attorney fees. Wal-Mart alleges that there are “substantial substantive and ongoing disputes regarding [Ms. Thomas’] demands for indemnity benefits and medical benefits.” Noting the substantial and legitimate disputes over the extent of work-related injury and/or work-related disability, Wal-Mart asserts that the judge’s award of penalties and attorney fees should be vacated and reversed. Finding no error in the judge’s award of penalties and attorney fees under the circumstances of this case, we disagree with Wal-Mart’s argument in this regard.

Statutes providing for penalties and attorney fees are penal in nature and must be strictly construed. Haws v. Professional Sewer Rehabilitation, Inc., 98-2846, p. 9 (La.App. 1 Cir. 2/18/00), 763 So.2d 683, 690. Pursuant to La. R.S. 23:1201(F), a workers’ compensation claimant is entitled to penalties and attorney fees if an employer |T ¡Jails to timely pay compensation benefits unless the claim is reasonably controverted or such nonpayment results from conditions over which the employer or insurer had no control. The test to determine whether the claimant’s right to benefits has been reasonably controverted is set forth in Watson v. Amite Milling Co., Inc., 560 So.2d 902, 906 (La.App. 1 Cir.), writ denied, 567 So.2d 614 (La.1990), citing Chelette v. American Guarantee and Liability Insurance, Inc., 480 So.2d 363, 367 (La.App. 3 Cir.1985), as follows:

[G]iven the facts, medical and otherwise, known to the employer or his insurer, did the employer or insurer have a reasonable basis to believe that medical expenses and compensation benefits were not due the employee. Stated another way, did the employer or his insurer have sufficient factual and medical information to reasonably counter the factual and medical information presented by the claimant. This test requires a close analysis of each workers’ compensation case.

Whether the refusal to pay or the discontinuation of benefits warrants the imposition of penalties and attorney fees is a factual question that will not be disturbed upon review in the absence of manifest error. Whiddon v. Livingston Parish Council, 2000-1349, p. 7 (La.App. 1 Cir. 9/28/01), 809 So.2d 421, 427, writ denied, 2001-2893 (La.1/25/02), 807 So.2d 837. A determination of whether a denial of compensation benefits was warranted depends primarily on the facts existing and known at the time that benefits are denied. The court must consider whether there was a “reasonable” basis for a dispute as to the employee’s entitlement to benefits. Goodman v. Manno Electric, Inc., 2001-2863, p. 5 (La.App. 1 Cir. 11/8/02), 835 So.2d 697, 701.

After a thorough review of the record, we cannot say that the workers’ compensation judge was manifestly erroneous in awarding Ms. Thomas penalties and attorney fees. Based on the information known to Wal-Mart concerning Ms. Thomas’ disability and work status, there was no reasonable basis for Wal-Mart’s dispute as to Ms. Thomas’ entitlement to benefits. Thus, Wal-Mart’s contention that penalties and attorney fees were not warranted because of a bona fide dispute as to Ms. Thomas’ entitlement to benefits is completely without merit.

^CONCLUSION

For the above and foregoing reasons, we affirm the judgment insofar as it found a compensable work-related injury, awarded TTD benefits to Ms. Thomas, and assessed penalties and attorney fees for Wal-Mart’s arbitrary and capricious handling of this claim. We amend the judgment, however, to award TTD benefits to Ms. Thomas commencing on December 27, 2000, and terminating effective June 18, 2001. All costs associated with this appeal are assessed against defendant-appellant, Wal-Mart Stores, Inc.

AMENDED IN PART AND AFFIRMED AS AMENDED.

      . Dr. Fitter's notes indicate that Ms. Thomas had not worked since December 7, 2000. However, according to the records from Dr. Wiltz, Ms. Thomas' first visit with him was on December 20, 2000. Moreover, the earliest notation from Dr. Wiltz that Ms. Thomas be excused from work is dated December 27, 2000.

      . In his progress notes for December 20, 2000, and throughout his records, Dr. Wiltz refers to Ms. Thomas' knee condition as a "fracture of the right patella.” However, there is nothing in the record before us to support this diagnosis. In fact, the October 24, 2000 x-ray of Ms. Thomas' right knee shows no signs of any fracture. Further, just two weeks after the incident in question, Dr. Albert's diagnosis was that Ms. Thomas had sustained a contusion to her right knee.

      . According to the record, Ms. Thomas began receiving $853.00 monthly in social security disability benefits in June 2001.

      . At this time, we pretermit any discussion as to whether Ms. Thomas may be entitled to another 1ype of benefit such as supplemental earnings benefits. That issue was never presented to the workers' compensation judge. Therefore, the record contains no evidence from which to make such a determination.


author: GUIDRY, J.

text:
    STATE CIVIL SERVICE COMMISSION v. DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY; Robert S. Hecker, Larry M. Toney, Warner Tureaud, Kevin L. Newman, Michael S. Sawyer, Joseph Trevigne, Penelope E. Hahn, Carol W. Henry, Joseph O. Labarriere, Michael A. Francis, Byron C. Tumblin, Casey M. Adams, Sr., Sean Rebennack, Kelvin J. Randall, Calvin J. Avery, Antoine C. Ferbos, I, Steven Dorsey, Russell Petta, Karen P. Adams, Linda L. St. Cyr, James E. Skelly, III, Johnny Clayborne, Dedra F. Milburn, Jerry C. Templet, Jr., Robert Lincoln, Kirk Braud, Ivory Scott, Michael P. St. Cyr, Sr., Neal J. Ricks, Allen L. Sallier, Jr., Thomas J. Brooks, Patrice Jackson, Cleveland Thomas, Joseph Elfer, Edward J. Kattengell, Howard Dennison, Collin Stevenson, Douglas A. Toro, Sr., Anthony P. Vallory, Jr., Jarrod R. L’Herisse, Sr, Melissa Matey, Wayne E. Franklin, Jr., Myron K. Mayes, Larry M. Francingues, Glenn J. Smith, Benjamin J. Green, Michael L. Allsbrook, Earl J. Brown III, Miguel T. James, Christopher M. Lanier; and Supplemental Pay Board of Review.
    No. 2002 CA 1901.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Robert R. Boland, Jr., Baton Rouge, Counsel for Plaintiff-Appellant State Civil Service Commission.
    Frank G. Desalvo, New Orleans, Counsel for Defendant-Appellee Director of Department of Public Safety, et al.
    Sidney L. Shushan, Claude A. Schlesinger, New Orleans, Counsel for Intervenor-Appellee Fraternal Order Of Police Louisiana State Lodge.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

The State Civil Service Commission (Commission) appeals a judgment by the trial court declaring that the Louisiana State Legislature has the authority to grant pay supplements in favor of a select group of state classified employees, the harbor police of the Port of New Orleans, in derogation of the uniform pay plan established under Chapter 6 of State Civil Service Rules. For the following reasons, we reverse and render.

FACTS AND PROCEDURAL HISTORY

On the ballot of the October 1999 election was a proposed constitutional amendment, which would have modified La. Const, art. X, § 10(A)(1) to add a new subsection that would have provided:

(b) Nothing herein - shall prevent the legislature from supplementing police department uniform pay plans from any available funds of the state, the department, the agency, or the political subdivision, provided that such supplement may be made available only for sworn, commissioned law enforcement officers employed on a full-time basis by such police department who serve the welfare of the public, in their capacity as police officers, by providing police services to the general public, by effecting arrests, issuing citations, and serving warrants while patrolling levees, bridges, waterways, and riverfronts.

However, the proposed amendment failed at the polls and did not become law. In the meantime, the state legislature passed Acts 1999, Nos. 1305 and 1375, which added paragraph (A)(2)(a) to La. R.S. 33:2218.2 that provides:

(2)(a) Every sworn, commissioned law enforcement officer employed on a full-time basis by a bona fide police agency of the state or its political subdivisions, other than the Department of Public Safety and Corrections and the Department of Wildlife and Fisheries, and headquartered in a municipality with a population in excess of four hundred .fifty thousand, and who serves the welfare of the public in the capacity of a police officer by providing police services to the general public through effecting arrests, issuing citations, serving warrants, patrolling levees, waterways, and riverfront areas or while patrolling' bridges that are within the boundaries of a municipality with a population in excess of four hundred fifty thousand shall be paid by the state extra compensation in the amount of three hundred dollars per month in addition to the compensation now paid to him by his employer out of self-generated revenue attributable to the agency | ¿employing such officers. To be eligible for the extra compensation, each such law enforcement officer shall have completed one year of service, and any such law enforcement officer hired after March 31, 1986, shall also have completed and passed a council-certified training program, as provided in R.S. 40:2405.

The passage of the aforementioned legislation was not linked to the passage of the failed amendment to La. Const. X, § 10(A)(1), although the proposed amendment would have specifically given the state legislature authority to pass La. R.S. 33:2218.2(A)(2)(a), had the amendment been adopted. The state legislature, nonetheless, enacted La. R.S. 33:2218.2(A)(2)(a). Thereafter, the law enforcement officers whose pay would be supplemented thereby, namely the harbor police for the Port of New Orleans, sought an increase in their pay pursuant thereto. The actions of the state legislature and the Port of New Orleans harbor police thus prompted the Commission to file suit against the harbor police and the director of the Department of Public Safety seeking injunctive and declaratory relief.

A hearing on the relief requested in the petition was held on June 3, 2002. After hearing the arguments of counsel and receiving a joint exhibit consisting of the written stipulations of the parties and a copy of Civil Service Rules, the trial court declared La. R.S. 33:2218.2 to be constitutional, denied the Commission’s request for injunctive relief, and dismissed the defendants’ exceptions raising the objections of no cause of action, no right of action, and lack of standing as moot. The trial court signed a written judgment to this effect on July 24, 2002. The Commission devolutively appeals the judgment, asserting as its sole assignment of error, the trial court’s failure to find La. R.S. 33:2218.2(A)(2)(a) unconstitutional.

DISCUSSION

As a preliminary matter, we note that on November 5, 2002, a constitutional amendment was passed whereby La. Const, art. VII, § 11(A) was amended and La. Const. art. VII, § 10(D)(3) was added expressly granting the legislature power to provide supplemental pay to law enforcement officers in the manner expressed in La. R.S. 33:2218.2(A)(2)(a). However, the effective date of that amendment is July 1, 2003. Thus, the matter before us is not rendered moot, and we will consider the issues raised in the Commission’s appeal.

Louisiana Constitution article X, § 10(A)(1) provides that the power and authority to regulate the compensation of employees in state classified service is vested in the Commission. The parties to this matter have stipulated that the employees whose salaries are at issue, the harbor police for the Port of New Orleans, are state classified employees. Thus, by a plain reading of the state constitution, the power to regulate the compensation of such employees has been vested in the Commission, and the provisions of La. R.S. 33:2218.2(A)(2)(a) are expressly in derogation of that authority relative to the aforementioned employees.

Nevertheless, the defendants argue that because La. Const, art. X, § 10(A)(1) does not state that the power vested in the Commission is exclusive, the state legislature was not precluded from enacting the statute in question. This court has interpreted the Commission’s power, as delineated under Article X, to be exclusive in areas where the Commission has exercised its broad rule-making powers. Leger v. Louisiana State University, 601 So.2d 20, 21 (La.App. 1st Cir.1992); Strickland v. State, Office of the Governor, 525 So.2d 740, 743 (La.App. 1st Cir.1988). The state supreme court has similarly held that a city civil service commission has the exclusive power to adopt rules regulating the classified service in the areas specifically enumerated in La. Const. Art. X, § 10(A)(1) and that a city governing authority cannot constitutionally infringe on the commission’s exercise of this power. See Lafleur v. City of New Orleans, 01-3224, p. 4 (La.12/4/02), 831 So.2d 941, 943-944. Thus, it is clear that the courts of this state interpret the power granted commissions under La. Const. Art. X, § 10(A)(1), whether state or city, as exclusive with regard to the enumerated areas specified | fitherein. Furthermore, the state supreme court is the final arbiter of the meaning of the state constitution and laws.

It has long been established that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177, 5 U.S. 137, 2 L.Ed. 60, 73 (1803). While it is undeniably true that “[t]he decisions of our state courts do not create or eliminate substantive rights as this is the proper function of the legislature,” Tullier v. Tullier, 464 So.2d 278, 282 (La.1985), when this court interprets legislative acts, it is giving meaning in particular cases to what the legislature has enacted as law; it is saying what the law is.

Bourgeois v. A.P. Green Industries, Inc., 00-1528, p. 11 (La.4/3/01), 783 So.2d 1251, 1260. (Emphasis added.) Thus, we are not persuaded by the defendants’ arguments that the state legislature could enact La. R.S. 33:2218.2(A)(2)(a) because La. Const. Art. X, § 10(A)(1) does not expressly use the word “exclusive” when delineating the powers exercised by the Commission.

In so finding, we must conclude that the trial court erred in finding that La. R.S. 33:2218.2(A)(2)(a) is constitutional since, by providing that the specified law enforcement officers shall be paid “extra compensation in the amount of three hundred dollars per month,” it is clearly in derogation of the uniform pay plan for employees in classified service established by the Commission.

We also are not persuaded by the defendants’ argument that La. R.S. 33:2218.2(A)(2)(a) is a constitutional exercise of the legislature’s plenary power to enact legislation under La. Const, art. VI, § 14, the “minimum wage” law. That article provides, in pertinent part,

(A) No law or state executive order, rule, or regulation requiring increased expenditures for any purpose shall become effective within a political subdivision until approved by ordinance enacted, or resolution adopted, by the governing authority of the affected political subdivision or until, and only as long as, the legislature appropriates funds for the purpose to the affected political subdivision and only to the extent and amount that such funds are provided, or until a law provides for a local source of revenue within the political subdivision for the purpose and the affected political subdivision is authorized by ordinance or resolution to levy and lycollect such revenue and only to the extent and amount of such revenue. This Section shall not apply to a school board.
(B) This Section shall not apply to:
(5) A law providing for civil service, minimum wages, hours, working conditions, and pension and retirement benefits, or vacation or sick leave benefits for firemen and municipal policemen. [Emphasis added.]

The case relied on by the defendants as authority that the requirements of La. Const, art. X, § 10(A)(1) can be circumvented by legislative action pursuant to La. Const, art. VI, § 14 is New Orleans Firefighters Association v. Civil Service Commission of City of New Orleans, 422 So.2d 402 (La.1982). We find that case clearly distinguishable and thus inapplicable to the matter before us.

In that case, the legislation providing for the calculation of pay owed to firefighters, who fell under the classified service regulated by the city civil service commission, was exempted from the exclusive jurisdiction of the city civil service commission by the express provision of La. Const, art. VI, § 14(B)(5). Thus, pursuant to La. Const, art. VI, § 14(B)(5), the court held that “the commission is ordered to revise its uniform pay plan in accordance with [La. R.S. 33:1991, et seq. and La. R.S. 33:2001, et seq.]” for firemen. New Orleans Firefighters Association, 422 So.2d at 414-415. (Emphasis added.) There is no corresponding constitutional provision excepting the harbor police in state classified service from the exclusive jurisdiction of the Commission in the case before us.

Neither do we find La. R.S. 33:2218.2(A)(2)(a) to be a reasonable exercise of the legislature’s authority to enact legislation pursuant to its police power. The legislature’s right to exercise police power may not be irrevocably alienated, surrendered, or abridged. Merritt McDonald Construction, Inc. v. Parish of East Baton Rouge, 98-1032, p. 6 (La.App. 1st Cir.5/14/99), 742 So.2d 564, 568, unit denied, 99-3195 (La.1/14/00), 753 So.2d 218. However, the courts have a responsibility to review legislation enacted pursuant to the legislature’s police power to determine whether the exercise of such authority is reasonable. In reviewing such legislation, courts should not rely on mere assertions by the legislature that the action taken is pursuant to its police power. New Orleans Campaign for a Living Wage v. City of New Orleans, 02-0991, pp. 12-13 (La.9/4/02), 825 So.2d 1098, 1106-1107.

The police power of the state is generally definable only by the facts and circumstances on a case-by-case basis; however, it has been described as the state’s inherent power to govern persons and things, within constitutional limits, for the promotion of general health, safety, welfare, and morals. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170, p. 11 (La.3/2/99) 739 So.2d 748, 757.

Other than the general assertion in brief that “[i]n the era of domestic terrorism by foreign enemies, there is every reason to uphold a statute which awards supplemental pay to Harbor Police who guard a vital facility,” the defendants present no other documented basis for why the passage of La. R.S. 33:2218.2(A)(2)(a) is a reasonable exercise of the legislature’s police power. The defendants presented no empirical data or other documentation to prove that the legislation was passed in response to heightened security needs in the area of the Port of New Orleans, nor has it been shown that due to the lack of sufficient compensation, there has been an inability to maintain a sufficient, active police force to patrol the Port of New Orleans. Rather, the defendants’ assertion in brief appears to be a blatant attempt to bootstrap the traumatic events of recent years to the otherwise unconstitutional action of the legislature in enacting legislation in derogation of the authority of the Commission, as pronounced in La. Const, art. X, § 10(A)(1). It is noted that La. R.S. 33:2218.2(A)(2)(a) became effective on July 1, 1999, more than two years prior to the tragic events of September 11, 2001. | nThus, we find no merit in the defendants’ claim that the enactment of La. R.S. 33:2218.2(A)(2)(a) was a reasonable exercise of the legislature’s police power.

Accordingly, we find La. R.S. 33:2218.2(A)(2)(a) to be unconstitutional and clearly violative of the exclusive power granted the Commission under La. Const, art. X, § 10(A)(1).

CONCLUSION

Therefore, based on the foregoing discussion, we find that the trial court erred in finding that La. R.S. 33:2218.2(A)(2)(a) does not violate the exclusive authority of the Commission to regulate the compensation of employees in classified service under La. Const, art. X, § 10(A)(1). Finding that La. R.S. 33:2218.2(A)(2)(a) does violate La. Const, art. X, § 10(A)(1), we reverse the judgment of the trial court to declare the statute unconstitutional and to grant the Commission the injunctive relief requested. Costs of this appeal in the amount of $6,883.32 are assessed to the defendants.

REVERSED AND RENDERED.