author: h STEWART, J.

text:
    Marilyn TITTLE, Plaintiff-Appellant, v. BROOKSHIRE’S GROCERY COMPANY d/b/a Super One Foods, Defendant-Appellee.
    No. 37,445-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Street & Street by C. Daniel Street, Monroe, for Appellant.
    Hudson, Potts & Bernstein, by Gordon L. James, Monroe, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   h STEWART, J.

In this slip and fall case, the plaintiff, Marilyn Tittle, appeals from a judgment dismissing her lawsuit against the defendant, Brookshires Grocery Company d/b/a Super One Foods (Super One). The trial court concluded that Super One did not breach its duty of care. Finding no error in the trial court’s judgment, we affirm.

FACTS

The slip and fall incident at issue occurred around noon on October 17,1999, at a Super One located on Cypress Street in West Monroe, Louisiana. While operating a forklift and stocking pallets of cooking oil near the front of the store, David Wassack, a Super One utility clerk, dropped a case of oil onto the floor. One or more of the bottles ruptured, resulting in an oil spill on the floor. Anthony Johnson, a retail account representative of Coca-Cola assigned to the Super One store, witnessed the spill while he was stocking a Coca-Cola vending machine at the front of the store. Johnson assisted Wassack with the clean-up.

Wassack placed a wet floor sign, also referred to in the record as a cone, over the spill. He also placed á stock cart over the area of the spill. In addition, Johnson placed his own stock cart in position to block the spill area. Wassack asked Johnson to inform customers about the spill while he went to the back of the store for more wet floor signs and cat litter to absorb the oil. Johnson then commenced directing customer traffic through the register aisles and away from the spill.

At trial, the plaintiff and Anthony Johnson gave different accounts of what took place upon the plaintiffs entrance into the store. The plaintiff | ¡testified that as she entered the store, she noticed a group of four to six men engaged in conversation while standing around the vending- machines. She hesitated a moment because she thought something had happened in the store. She testified that the men did not notice her or say anything to her, so she “cracked a half smile and walked past them.” She then noticed some Zatarain’s dirty rice mix on a shelf. As she walked over to get a box of dirty rice mix, she fell to the floor and became covered in oil. The plaintiff denied seeing the wet floor sign until after her fall. She testified that the sign was blocked from her view by the men who were standing around the vending machines. She denied seeing any oil on the floor before the fall, and she denied seeing any stock carts in the area of the spill.

Anthony Johnson testified that he warned the plaintiff of the oil spill and she ignored the warning. Johnson testified that he told her about the oil spill and directed her to go through the registers. He further testified that the plaintiff just looked at him and walked on past him. . He explained that he “was in her face” when he warned the plaintiff of the spill and that she acknowledged his warning by looking at him and smirking. He then turned his attention to other customers and thought that the plaintiff had just walked past the spill. Johnson testified that it was not his job to forcibly stop customers. Johnson disputed the plaintiffs claim that a group of men was standing around the vending machines in conversation when she entered the store. He claimed that two other Coca-Cola representatives were standing around while he directed the customer traffic.

| aJohnson also testified that the plaintiff would have had to move the wet floor sign out of the way to get where she was when she fell. Johnson explained that a stock cart was up against the wet floor sign and that another cart was covering the other half of the spill area. Terry Calhoun, a cashier at Super One, heard the plaintiff holler and observed her on the floor after the fall. Calhoun testified that it appeared the plaintiff had kicked one of the stock carts away from the spill when she fell.

Super One employees assisted the plaintiff after the fall and provided first aid for a cut on her elbow. She then continued shopping and drove herself home. After suffering substantial pain allegedly due to the fall and incurring medical bills for treatment of aggravated pre-existing conditions, the plaintiff filed suit against Super One.

The case was tried before the judge. The trial judge found that the oil on the floor presented an unreasonable and foreseeable risk of harm to the plaintiff and that Super One created the risk of harm and had actual notice of it. However, the trial court also found that Super One did not breach the duty of care it owed to the plaintiff. The trial judge concluded that Super One did all it could do in that its employee who caused the spill immediately put out a warning sign, placed a cart in the area of the spill, and directed Johnson to stand guard. Moreover, the trial judge found Johnson’s testimony “compelling.” From the judgment dismissing her lawsuit, the plaintiff now appeals. She argues that the trial court erred in failing to assign any fault to Super One.

| ¿DISCUSSION

The burden of proof which a plaintiff must satisfy when a claim is brought against a merchant for a slip and fall injury is set forth in La. R.S. 9:2800.6(A) and (B) as follows:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless such finding is clearly wrong. Stobart v. State, 92-1328 (La.4/12/93), 617 So.2d 880; Rosell v. ESCO, 549 So.2d 840 (La.1989). In fact, “where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, supra; Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990). The issue to be resolved by the reviewing court is not whether the | ¡drier of fact was right or wrong but whether the factfinder’s conclusion was a reasonable one in light of the evidence in the record. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305; Stobart, supra.

The trial court concluded, and we agree, that the oil spill presented an unreasonable risk of harm to the plaintiff, that the risk of harm was reasonably foreseeable, and that the merchant (Super One) had actual notice of the spill. The trial court further found that Super One exercised reasonable care in its effort to protect patrons, particularly the plaintiff, from the spill. It is this finding that is the basis of contention on appeal. Specifically, the plaintiff argues that while she might be assessed some percentage of fault, Super One is also at fault.

In an ordinary tort action, comparative fault principles govern from the onset. However, for slip and fall cases governed by La. R.S. 9:2800.6, the law requires that the plaintiff prove, as a condition precedent to recovery, the three elements set forth in La. R.S. 9:2800.6(B), which includes the merchant’s failure to exercise reasonable care. When the plaintiff fails to prove the statutorily required elements, there is no need for the comparison of fault because the law does not allow the plaintiff to recover damages from the merchant.

The trial judge was faced with two opposing accounts of what occurred when the plaintiff entered the store and encountered the spill. Unquestionably, there was a wet floor sign in the immediate vicinity of the spill. There was also testimony that stock carts were blocking the area of the spill. The plaintiff testified that she only saw the sign after her fall, and |fishe disputes the presence and location of stock carts in the area of the spill. However, the primary focus of the dispute is whether Johnson warned the plaintiff of the spill. Johnson and the plaintiff provided differing accounts of whether he warned the plaintiff of the spill.

In deciding that Super One satisfied its duty of care, the trial court relied on the testimony of Johnson, which the court described as “compelling.” It is the factfin-der’s duty to weigh credibility and to accept or reject all or part of a witness’s testimony. Collins v. Shelter Mutual Ins. Co., 36,528 (La.App.2d Cir.12/11/02), 833 So.2d 1166, writ denied, 2003-0124 (La.3/21/03), 840 So.2d 539. Where there is a conflict in the testimony, reasonable evaluations of credibility should not be disturbed on appeal. Rosell, supra. The accounts given by the plaintiff and Johnson are not reconcilable on the facts presented, as might be the case if a patron had not heard or not understood a warning. Here, the plaintiff unequivocally testified that she was not warned of the spill. Johnson unequivocally testified that he warned the plaintiff of the spill and “was in her face” when he did so. It was Johnson’s impression that the plaintiff simply ignored the warning. After observing the witnesses and listening to their testimony, the trial judge apparently made .a credibility determination and accepted Johnson’s testimony as true. The plaintiff has not shown the trial court’s determination to be unreasonable. In light of evidence establishing the presence of the wet floor sign in the area of the spill and a verbal warning of the spill given to the plaintiff by Johnson, we find no error in the trial | .¿judge’s conclusion that Super One exercised reasonable care in handling the spill and did not breach the duty of care owed the plaintiff.

CONCLUSION

For the above assigned reasons, we affirm the trial court’s judgment dismissing the claims of Marilyn Tittle against Brook-shires Grocery Company d/b/a Super One Foods. Costs of this appeal are assessed to appellant, Marilyn Tittle.

AFFIRMED.


source: Caselaw Access Project

author: JjMICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jerome HULBERT.
    No. 2003-KA-1149.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 20, 2003.
    Rehearing Denied Sept. 9, 2003.

      Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Plaintifi/Ap-pellee.
    Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., Judge LEON A. CANNIZZARO JR.).
   JjMICHAEL E. KIRBY, Judge.

This appeal concerns a resentencing only. Because we find no error, we affirm the appellant’s sentence.

Jerome Hulbert was found guilty of one count of distribution of cocaine by a twelve-person jury on March 6, 2001. On August 22nd he was sentenced as a third offender to serve twenty years at hard labor. Both Hulbert and the State appealed his sentence. This Court affirmed the conviction and vacated Mr. Hulbert’s adjudication as a third offender as well as his sentence and remanded the case for resen-tencing. State v. Hulbert, 2001-2174 (La.App. 4 Cir. 10/30/02), 832 So.2d 337.

The facts of the case are not relevant.

Mr. Hulbert submitted a brief in which he argues that (1) the district court erred in denying the motion to suppress the evidence and (2) the evidence was insufficient to support the conviction; however, his conviction was affirmed in his earlier appeal, and this appeal is from resentenc-ing only. Therefore, we cannot consider his arguments.

|2In an assignment of error through counsel, the defendant argues that his fifteen-year sentence as a second offender is excessive.

At the sentencing hearing on April 4, 2003, the district court announced that the State had filed a double bill against Mr. Hulbert and then asked the defendant if he had reviewed the document. Mr. Hul-bert answered affirmatively. The district court then questioned Mr. Hulbert about his decision to plead guilty to the multiple bill. After going through each of his Boy-kin rights, the court asked:

Do you understand that the sentencing range as a multiple offender in this case is a minimum of 15 to a maximum of 60 years and the sentence you will receive will be 15 years at hard labor?

The defendant then answered that he understood. The court next pointed out that Mr. Hulbert was not eligible for parole because he has two prior felony convictions and that his sentence was to be imposed without benefit of probation or suspension of sentence for the first five years, and again Mr. Hulbert responded that he understood.

We note that Mr. Hulbert received the minimum sentence that could be imposed on a second offender under La. R.S. 40:967(B) and La. R.S. 15:529.1. Further, the defendant entered a guilty plea to the multiple bill in which he acquiesced to a fifteen-year sentence.

The first question is whether the issue raised was preserved for appeal. A review of the appellate record reveals that the defendant did not object to the sentence or file a motion to reconsider the sentence as required by La.C.Cr.P. |sart. 881.1. In the absence of such an objection or filing of a written motion for reconsideration of sentence, he is precluded from urging any ground of objection to the sentence. See La.C.Cr.P. art. 881.1(D); State v. Robinson, 98-1606, p. 9 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 125; State v. Martin, 97-0319, p. 1 (La.App. 4 Cir. 10/1/97), 700 So.2d 1322, 1823; State v. Green, 93-1432, pp. 5-6 (La.App. 4 Cir. 4/17/96), 673 So.2d 262, 265; State v. Salone, 93-1635, p. 4 (La.App. 4 Cir. 12/28/94), 648 So.2d 494, 495-96.

Accordingly, the defendant’s sentence is affirmed.

AFFIRMED.

      . This Court found that, although the defendant had not been adjudicated a multiple offender, he was sentenced as a third offender under La. R.S. 15:529.1.

      . In its brief the State refers to several Supreme Court cases decided prior to the enactment of La.C.Cr.P. art. 881.1 in 1991 where the issue of excessiveness was preserved for appellate review even though no motion for reconsideration of sentence was filed and no objection was made at sentencing. However, in State v. Mims, 619 So.2d 1059 (La.1993), the Supreme Court held that a defendant must file a motion to reconsider the sentence within thirty days of sentencing in which he sets forth specific grounds of error. If the defendant does- not allege a specific ground for excessiveness in his motion, then he is limited to a bare claim of excessiveness. In the case at bar, the defendant did not object that his sentence was excessive at the time when the district court had jurisdiction to change or correct it; thus, this court cannot consider the argument.


author: h CARAWAY, J.

text:
    STATE of Louisiana, Appellee, v. Edward Ray TROTTER, Jr., Appellant.
    No. 37,325-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 2003.

      John Cued, Jr., for Appellant.
    Edward Ray Trotter, Jr., Pro Se.
    Paul M. Carmouche, District Attorney, Edward M. Brossette, J. Thomas Butler, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   h CARAWAY, J.

A jury convicted the defendant of possession of a Schedule II CDS (Cocaine), 28 grams or more but less than 200 grams. He was adjudicated a third felony habitual offender and sentenced to serve a term of life imprisonment without benefits. The defendant now appeals. For the following reasons, the defendant’s conviction and sentence are affirmed.

Facts

On or about October 7, 1999, the defendant, Edward Ray Trotter, Jr., (“Trotter”) was placed under surveillance when officers with the Caddo Bossier Narcotics Task Force (“Task Force”) received a tip from a confidential informant (“Cl”) that someone was selling drugs on Midway Street in Shreveport. The Task Force orchestrated two controlled buys between the Cl and Trotter, both of which occurred at Trotter’s residence on October 7, 1999. Later, the Task Force sought and obtained a search warrant for the residence. While the Task Force was getting ready to execute the warrant at approximately 6:00 p.m. on October 8, officers observed Trotter as he left the residence in a vehicle with another man, a woman, and a baby. Two officers in a patrol unit followed the vehicle, observed a traffic violation and initiated a stop, during which stop the vehicle was searched and 4.4 grams of crack cocaine was recovered from the baby’s diaper.

Trotter was arrested and returned to his residence, where the Task Force, including a canine unit, was executing the warrant. Five or six female children between twelve and sixteen years old were at the house. |2 Trotter’s girlfriend, Alicia Tucker, who resided at the house, arrived home from work while the search was in progress. She was also handcuffed as the result of an officer’s discovery of a large amount of crack cocaine in a hallway attic. During the search, Trotter gave a confession concerning his possession of the cocaine.

The amount of recovered crack cocaine, which totaled approximately 58 grams, was enough for approximately 580 unit doses, street-valued at about one hundred dollars per gram. Forensic tests conducted later confirmed the substance consisted of 57.4 grams of crack cocaine. Some unused baggies and $2,000 cash, including $240 in buy money from the previous undercover sting operation, were recovered from a man’s black jacket located in a bedroom closet.

The initial bill of information charged Trotter with one count of violating La. R.S. 40:967(F)(l)(a), which is a possession charge of a Schedule II CDS (over 28, but less than 200 grams), “on or about October 8, 1999.” The record also contains an “Amended Bill of Information.” The amended bill charged Trotter with two counts of distribution of a Schedule II CDS in violation of La. R.S. 40:967(A)(1) and one count of Possession of a Schedule II CDS (Over 28, But Less Than 200 Grams), “on or about October 7, 1999.”

The defendant’s pre-trial motion to suppress the drug evidence and to quash the warrant for the search and any oral statements made to police was denied after hearings were held. At trial, in addition to the facts and circumstances related above, the defense presented testimony of Kenneth ^Pennington, Tucker’s cousin, who asserted that the crack cocaine found in the attic of the residence belonged to him. Pennington admitted that he is a convicted felon currently serving time for armed robbery and has two prior convictions for burglary.

After the State rested, defense counsel moved for a judgment of acquittal based upon the discrepancy between the date of the offense contained in the bill of information (October 7, 1999) and the evidence adduced at trial which indicated that the crime was allegedly committed on October 8,1999. The trial court denied the defense motion and ruled that based upon the reasoning of State v. Winnon, 28,654 (La.App.2d Cir.9/25/96), 681 So.2d 463, writ denied, 96-2576 (La.3/27/97), 692 So.2d 391, the date of the offense was not an essential element in the bill of information.

After the trial, the defendant was convicted as charged. Thereafter, the defendant’s post-trial motions were denied. He was found to be a third felony habitual offender and sentenced to serve a term of life imprisonment without benefits. The defendant now appeals.

Discussion

Trotter assigns as error the listing of October 7, 1999 in the amended bill of information as the date of the possession offense. Since the state’s case focused on his possession of the 57.4 grams of cocaine recovered by the search of Trotter’s residence on October 8, 1999, Trotter insists that the state presented insufficient evidence of any possession of cocaine on October 7. Moreover, Trotter argues that since the charged crime of ^distribution of cocaine did relate to activities on October 7, 1999, the defense was prejudiced by the confusion caused by listing the October 7 date in the amended bill. That prejudice presumably caused the defense to prepare only to defend against the alleged activities involving the Cl’s purchases of drugs on October 7.

La.C.Cr.P. art. 468 provides that the date of commission of an offense need not be alleged unless it is essential to the offense. When the date is not essential to the offense, an indictment shall be not held insufficient if it does not state the proper date, even if it states the offense to have been committed on an impossible day such as a day after the return of the indictment. State v. Winnon, supra. The jurisprudence holds that this immaterial defect of form is not a ground for relief where the defendant made no motion for recess and did not contend he was surprised or prejudiced by the error. Id.; State v. Hernandez, 410 So.2d 1381 (La.1982).

In this case, the amended bill of information did change the date from October 8 on the original bill to October 7. Nevertheless, each listing was an approximate date since both bills utilized the “on or about” language with the dates. Since the amended bill added two distribution charges, coinciding with the transactions on October 7, the change in date could be understood in light of those additional charges. Those charges, however, were dropped by the state and were not presented during trial at the reading of the amended bill to the jury before the opening statements. The reading to the jury of the possession charge in the amended bill was made with the “on or about October 7” date. Most importantly, the date is not essential to |Rthe crime of possession of Schedule II CDS. La. R.S. 40:967(F)(l)(a). Therefore, failure to prove Trotter’s possession on October 7 was immaterial to the establishment of the charged offense.

We likewise find no merit to the claim of surprise or prejudice. After the filing of the amended bill of information in November, 2000, Trotter proceeded with his motion to suppress his confession and the search of his residence and to quash the warrant leading to the search. All of those events pertained to the October 8 search of Trotter’s residence and were subject to pre-trial hearings. The defense therefore understood that the charges involved more than just the alleged sales of cocaine on October 7. At the trial following the reading of the amended bill and throughout the presentation of the state’s case, no objection was made nor surprise indicated by the defense regarding the state’s focus on the October 8 search of the residence. Trotter’s alibi defense pertained to the drugs discovered on October 8. Accordingly, finding no evidence of prejudice, this assignment of error has no merit.

Secondly, Trotter assigns as error the failure to suppress his confession to police which occurred during the search of his residence. He argues that he only admitted knowledge of possession of the cocaine after the officers threatened to take everyone in the house to jail, including his former girlfriend, her teenage daughters, and their friends. This threat of “family prosecution” is the basis for Trotter’s claim that his confession was involuntary.

| fiAt a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 00-1427 (La.5/11/01), 791 So.2d 1288; State v. Rogers, 476 So.2d 942 (La.App. 2d Cir.1985). Before a confession can be introduced into evidence, the state must affirmatively prove that it was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La. C.Cr.P. art. 703(D); State v. Roddy, supra. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. State v. Roddy, supra; State v. Walker, 28,577 (La.App.2d Cir.10/4/96), 681 So.2d 1023.

In State v. Jackson, 381 So.2d 485 (La.1980) and State v. Morvant, 384 So.2d 765 (La.1980), the Louisiana Supreme Court stated the principles under which the admissibility of a confession must be judged. As a matter of federal constitutional law, any confession obtained by any direct or implied promises, however slight, or by the exertion of any improper influence, must be considered involuntary and inadmissible. State v. Roddy, supra. In Louisiana, the statutorily mandated test for voluntariness is not whether a confession was induced by improper external forces, but whether the confession was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La. R.S. 15:451; State v. Roddy, supra.

|7The admissibility of a confession is a question for the trial court. State v. Roddy, supra. When determining admissibility, the trial court’s conclusions on the credibility and weight of testimony relating to the voluntary nature of the confession will not be overturned on appeal unless not supported by the evidence. State v. Benoit, 440 So.2d 129 (La.1983); State v. Roddy, supra; State v. Dailey, 607 So.2d 904 (La.App. 2d Cir.1992), citing State v. Jackson, supra. We place great weight upon the trial court’s factual determinations because of its opportunity to observe witnesses and assess credibility. State v. Roddy, supra; State v. Crews, 28,153 (La.App.2d Cir.5/8/96), 674 So.2d 1082. Also see State v. Durr, 28,197 (La.App.2d Cir.6/26/96), 677 So.2d 596; State v. English, 582 So.2d 1358 (La.App. 2d Cir.1991), writ denied, 584 So.2d 1172 (La.1991). Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Henderson, 31,986 (La.App.2d Cir.8/18/99), 740 So.2d 240; State v. Pittman, 585 So.2d 591 (La.App. 5th Cir.1991), writ denied, 586 So.2d 545 (La.1991).

In determining whether a ruling on a motion to suppress is correct, an appellate court is not limited to evidence adduced at the hearing on the motion but also may consider pertinent evidence given at trial. State v. Daniels, 614 So.2d 97 (La.App. 2d Cir.1993), writ denied, 619 So.2d 573 (La.1993).

During the nearly three-hour search, Trotter, Tucker and the adolescents were all segregated from each other in the house. Tucker said |sthat she and Trotter were never questioned together. She was questioned in her daughter’s bedroom. Detective Horne testified that at one point, when Trotter and Tucker were brought together, he explained to them that they would probably be going to jail because of the discovery of cocaine in their residence. Trotter initially denied any knowledge of the cocaine.

After Detective Horne advised Trotter of his Miranda rights, he interviewed him in the living room, in the presence of Sergeant Rehak. Detective Horne testified that he made no menacing statements, threats, inducements or promises to make the defendant give a statement. Trotter claimed that the narcotics belonged to him and that he purchased them from someone in Bossier City earlier that day. The defendant accurately described the amount, packaging and location of the cocaine to Sergeant Rehak. Detective Horne testified that Trotter’s statement was freely and voluntarily given. After Trotter confessed, Tucker was taken out of the handcuffs.

Tucker testified that when she arrived home, an officer grabbed her purse and threatened to take everybody to jail. After she entered the residence, she found the some of the children handcuffed in the living room. Three children were hers. Her two older girls, ages 15 and 13, and two or three neighborhood children were handcuffed. Her younger son was not. Some children were sitting on the couch and some were lying on the floor. Tucker stated that she did not know whether the police had threatened the children. She also admitted that at one point she was asked by the police if there was anywhere else for the children to go. Officer Rehak indicated that |9the older adolescents were handcuffed, but not for “very long,” and that the children were secured together where they could be observed for safety reasons.

Under these circumstances, the officer’s advising the two adults that they would probably go to jail because of the cocaine discovery at their residence was not coercive. It was a statement of what properly could occur. Although some of the adolescents were handcuffed while the search was executed, there was no showing that that was used to intimidate and coerce Trotter’s later confession. The officer denied threatening to jail the children, and Tucker admitted that she never heard such threat.

. Regarding the actual interrogation of Trotter, the testimony of the interviewing officer alone may be sufficient to prove the voluntariness of the statement. See State v. Henderson, supra; State v. Pittman, supra. The interviewing officer’s testimony was corroborated in large part by testimony of other officers who were present on the scene. This court places great weight upon the trial court’s factual determinations and credibility assessments, and the trial court did not err in determining that the state met its burden of proving that the defendant’s statement was free and voluntary. See State v. Roddy, supra and State v. Crews, supra. This assignment of error is therefore without merit.

Next, Trotter claims that the trial court erred when it failed to suppress the search of the residence on the basis of the insufficiency of the search warrant. In his motion to suppress, Trotter alleged the existence of the affidavit in support of the search warrant and its recitals concerning | inpurchases of crack cocaine by the Cl on October 7. The motion attacked the Cl alleging that he was “unreliable and was not provided the buy money” for the purchase by the Task Force. At the hearing, the affiant, Detective Horne, testified concerning the two purchases by the Cl which served as the basis for the search warrant. Detective Home also related his prior experience with the Cl. The defense presented no evidence disputing the facts contained in the affidavit and the trial court refused to invalidate the warrant. Trotter now argues that the trial court erred because the state never placed the warrant into evidence at the hearing on the motion to suppress.

This argument ignores the recognition by Trotter in his motion to suppress of the supporting substance for the search warrant and the defense burden for attacking the warrant. An affidavit supporting a search warrant is presumed to be valid. When a defendant proves that an affidavit contains false statements, it should be determined whether the misrepresentations are intentional or unintentional. Defendant must prove by a preponderance of the evidence that the affidavit contains intentional misrepresentations. See State v. Fugler, 97-1936 (La.App. 1st Cir.9/25/98), 721 So.2d 1, rehearing granted, amended on rehearing in part, 97-1936 (La.App. 1st Cir.5/14/99), 737 So.2d 894, writ denied, 99-1686 (La.11/19/99), 749 So.2d 668.

In State v. Johnson, 27,522 (La.App.2d Cir.12/06/95), 665 So.2d 1237, this court set forth the applicable law:

Probable cause exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonable trustworthy information are sufficient to support a reasonable | ^belief that an offense has been committed or that evidence or contraband may be found at the place to be searched.
* * *
Making material and intentional misrepresentations to a magistrate constitutes a fraud upon the courts and will result in the invalidation of the warrant and suppression of the items seized. A defendant bears the burden of going forward on an allegation that an application for a search warrant contains intentional misrepresentations such as would make it invalid. If the misrepresentations or omissions are inadvertent or negligent, the warrant will be retested for probable cause after striking the misrepresentations or supplying the omissions. (Citations omitted)

Also see State v. Mann, 431 So.2d 862 (La.App. 2d Cir.1983), writ denied, 439 So.2d 1074 (La.1983).

From this law, the state was not required to place the warrant into evidence. The defense motion recognized the substance of the supporting affidavit and the warrant, and the affiant was cross examined regarding the facts. The affidavit was presumed to be valid, and its substance was before the court. The defense presented no evidence demonstrating that the affidavit contained an intentional misrepresentation and makes no argument to this court of such deficiency. This assignment of error is without merit.

The next assignment of error concerns Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and challenges made by the defense and rejected by the trial court. During the jury selection process, the defense made a general challenge that the state exercised nine out of ten peremptory challenges to black prospective jurors. Finding a prima facia case supporting the challenge, the trial court went through the entire list of the peremptory challenges and required the state to give race-neutral explanations. The trial court found race-neutral reasons were given for | ^peremptory challenges to prospective jurors Sudds, James and Taylor, which Trotter now disputes. The trial court found that insufficient race-neutral reasons were given for prospective juror Black.

The United States constitution prohibits the State from engaging in purposeful discrimination on the grounds of race in the exercise of peremptory challenges. Batson, supra. Louisiana law codifies the Batson ruling in La.C.Cr.P. art. 795 C, which provides:

No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.

The race-neutral explanation need not be persuasive or even plausible. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). It will be deemed race-neutral unless a discriminatory intent is inherent in the explanation. The ultimate burden of persuasion as to racial motivation rests with, and never shifts from, the opponent of the peremptory exception. State v. Tyler, 97-0338 (La.9/9/98), 723 So.2d 939, cert. denied, 526 U.S. 1073, 119 S.Ct. 1472, 143 L.Ed.2d 556 (1999). The trial court’s findings with regard to a Batson challenge are entitled to great deference on appeal. Id.; Purkett v. Elem, supra. The finding of the absence of discriminatory intent comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how | ^reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

Trotter’s argument seeks a comparative analysis of the stricken venire persons’ responses to those responses by other jurors. The comparison of the treatment of the potential jurors of different races is essential to the establishment of the initial prima facie case and has been utilized by our supreme court in the measurement of the racially-neutral reason for the exercise of the prosecution’s challenge. In reversing the conviction under Batson in State v. Harris, 01-0408 (La.6/21/02), 820 So.2d 471, 476, the court stated:

The state also proffered that it was striking Brown because he was single and had no children. This justification is also unpersuasive as the record reflects that the state did not attempt to strike childless single white male venire-persons Louviere, Bordelon, Hidalgo, Lasaña, or Daigle.

This issue of comparative juror analysis has also been discussed in opinions of the federal circuit courts of appeal. In United States v. Guerra-Marez, 928 F.2d 665, 673 n. 9. (5th Cir.), cert. denied, 502 U.S. 969, 112 S.Ct. 443, 116 L.Ed.2d 461 (1991), the court noted that:

With respect to the defendant’s argument that other similarly situated veniremen were not challenged, “the defendant bears the burden of convincing the district court that the proffered reasons are pretextual by introducing evidence of comparability.”

Accord, United States v. McMillon, 14 F.3d 948, n. 5 (4th Cir.1994).

The Eighth Circuit has stated that peremptory challenges cannot be lawfully exercised against potential jurors of one race unless potential jurors |14of another race with comparable characteristics are also challenged. Devose v. Norris, 53 F.3d 201 (8th Cir.1995). Contrast, Burks v. Borg, 27 F.3d 1424 (9th Cir.1994) (noting that “the U.S. Supreme Court has not yet ruled on the role of comparative analysis in appellate review.”)

The defense contended that the purported race-neutral explanations for excluding, the African Americans from the jury were a mere pretext because the white jurors were not excluded on the same basis. Particularly, it was argued that the state sought to strike prospective jurors Sudds, Taylor and James because of their views that drug use is a “personal choice.” However, the defense contended that white jurors, Connell and Rately, who gave the same or similar answers, were not sought to be excluded by the state.

A review of the record indicates that jurors, Sudds and Taylor, were excluded following race-neutral explanations pertaining to matters other than their drug use views expressed during voir dire. Accordingly, Trotter’s argument regarding the exclusion of those jurors is factually incorrect.

Regarding the questioning of juror, James, the record reveals the following exchange:

Q.... Do you think the laws as written right now are good or do you think it should be someone’s personal choice whether they want to do drugs?
A. (Mr. Miller) Each man to his own. He’s got a right to do what he wants to do.
Q. Ms. Scott, how do you feel? I’m sorry, Ms. James.
A. (Ms. James) I think each his own. They can do whatever they like, I guess.

|1RIn contrast to James’s response, the responses of the two white jurors cited by Trotter in his argument both indicated that while drug use may be a personal choice, the law should be followed and applied. The comparative juror argument, therefore, fails to demonstrate that the responses of James and the two white jurors were the same. The race-neutral response given' by the state for James could support a finding of no discriminatory intent, and the decision of the trial court to exclude James was within its discretion. This assignment of error is without merit.

Decree

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

AFFIRMED.


author: J^MOORE, J.

text:
    Varnell BOYLSTON, Plaintiff-Respondent, v. Bruce TIDWELL, et al., Defendant-Applicant.
    No. 36,730-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 2003.

      Kirby D. Kelly, Russell 0. Brabham, Shreveport, for Respondent.
    Cook, Yancey, King & Galloway, by F. Drake Lee, Jr., Sidney Earl Cook, Jr., R. Don Evans, Jr., Shreveport, for Applicants Bruce Tidwell, Truman Arnold Co., Inc. and St. Paul Fire and Marine Insurance Company.
    Mayer, Smith & Roberts, L.L.P., by David F. Butterfield, Shreveport, for Applicants Roy Wren, Jack Pot Express, LLC d/b/a PennzMart and Transportation Ins. Co.
    Before WILLIAMS, PEATROSS and MOORE, JJ.
   J^MOORE, J.

Three defendants, Truman Arnold Companies, its employee Bruce Tidwell, and its insurer St. Paul Fire & Marine (collectively referred to as “TAC”), seek review of the district court’s ruling that granted a new trial to the plaintiff, Vamell Boylston. Finding merit in TAC’s position, we grant the writ and make it peremptory.

Factual and Procedural Background

The accident, a flash fire, occurred about 1:00 p.m. on December 6,1998, at a Pennz-Mart gas station on Jewella Road just north of 1-20 in Shreveport. Boylston, a night-shift employee of Red River Sani-tors, drove his daughter’s 1987 Pontiac Grand Am to the PennzMart to buy $4 of gas. He parked just to the north of the northmost fuel island, and then entered the store to pay for his gas; he also bought a cigar. While he was in the store, a gasoline tanker owner by TAC arrived to deliver fuel. The tanker parked between Boylston’s car and the fence on the north property line, only 5-10 feet from the car. The driver, Bruce Tidwell, testified that he saw the car parked there, but he had to park nearby because of close quarters and crowded conditions in the parking lot.

Boylston returned to his car and pumped his gas; he then got in the car, with the driver’s door window open, and stuck the cigar in his mouth. Meanwhile, Tidwell did not unload any gas, as he was too close to a parked car. However, he opened the vapor release valve at the rear of the tanker and removed a dust cap from the belly valve on its side. He was crouching down to finish his preparations when he heard a woman scream near the | ¡front of the store. He looked over his shoulder and saw a “flame coming out * * * back there by the back of my trailer” and going toward the parked car. He hurried over to the car to find Boylston still in the driver’s seat, patting out flames on his clothes. Tidwell pulled him out, patted away the rest of the flames, and walked him to the front of the store.

Boylston testified that he quit smoking sometime in 1997 and was only getting the cigar for his nephew, but admitted that he put the wrapped cigar in his mouth. He insisted he did not try to light it; however, Tidwell testified that in the moments after the accident, Boylston twice told him he tried to light the cigar. Boylston testified that he was about to turn his ignition when he heard a loud boom! and suddenly saw fire everywhere. He sustained first and second degree burns to 16-17% of his body.

Captain Moon of the Shreveport Police Department investigated the fire, questioning Boylston at the LSU Burn Unit. Boylston told Capt. Moon that he “started to light” the cigar but had not done so when the fire came in through the open window. In the car, which had been towed to Boylston’s house, Capt. Moon found burn patterns in the interior on the driver’s side, consistent with flames coming in the window. He found no burn pattern on the outside. He took photos of the car, including an unwrapped Swisher Sweet cigar on the console. Subsequent experts had to rely exclusively on Capt. Moon’s photos because Boylston’s daughter sold the car for scrap and it could not be located.

Boylston filed this suit in November 1999 against TAC and Jack Pot Enterprises, the owner of the PennzMart, and its insurer. Boylston alleged Lthat all defendants were strictly liable for his damages. TAC filed a third party claim against Jack Pot, citing a hold harmless clause in their lease. After jury trial began in March 2002, Boylston dismissed his claims against Jack Pot and the district court severed TAC’s contract claim. The trial took four days. The jury, by a 9-3 vote, found that the negligence of TAC was not a cause in fact of the plaintiffs injuries.

Before the court rendered judgment in accord with the verdict, Boylston moved for JNOV or new trial. After a hearing on July 15, 2003, the court denied JNOV. However, stating that it had never done so before, and “after careful consideration and a lot of thought,” the court granted a new trial, because it “believes that the result was clearly contrary to the evidence, * * * against the manifest weight of the evidence, which was that the vapors came from the truck.” This writ application by TAC followed.

On initial hearing, a panel of this court peremptorily denied the application. Boylston v. Tidwell, 36,730 (La.App. 2 Cir. 10/23/02) (unpublished writ denial). TAC then sought review from the supreme court, which granted the writ and remanded the case for briefing, argument and a full opinion. Boylston v. Tidwell, 02-2872 (La.2/7/03), 841 So.2d 740.

Applicable Law

A new trial shall be granted, upon contradictory motion of any party, “when the verdict or judgment appears clearly contrary to the law and the evidence.” La. C.C.P. art.l972(l). Although the granting of a new trial under this provision is mandatory, the jurisprudence interpreting it recognizes the trial judge’s discretion in determining whether the evidence 14is contrary to the law and evidence. The decision to grant or deny a new trial “requires a discretionary balancing of many factors.” Davis v. Wal-Mart Stores Inc., 00-0445 (La.11/28/00), 774 So.2d 84; Gibson v. Bossier City Gen’l Hosp., 594 So.2d 1332 (La.App. 2 Cir.1991). Nevertheless, the discretion of the trial court is not unlimited. In the recent case of Martin v. Heritage Manor South, 00-1023 (La.4/3/01), 784 So.2d 627, the supreme court emphasized:

The fact that a determination on a motion for new trial involves judicial discretion, however, does not imply that the trial court can freely interfere with any verdict with which it disagrees. The discretionary power to grant a new trial must be exercised with considerable caution, for a successful litigant is entitled to the benefits of a favorable jury verdict. Fact finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury’s responsibility. A motion for new trial solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury’s factual determinations and must be viewed in that light. Thus, the jury’s verdict should not be set aside if it is supportable by any fair interpretation of the evidence. Id, at p. 4, 784 So.2d at 630-631 (emphasis in original; internal citations omitted).

In considering a motion for new trial under art.1972, “the trial court may evaluate the evidence without favoring either party; it may draw its own inferences and conclusions; and evaluate witness credibility to determine whether the jury had erred in giving too much credence to an unreliable witness.” Joseph v. Broussard Rice Mill, 00-0628 (La.10/30/00), 772 So.2d 94. However, this does not mean that the trial judge can usurp the jury’s fact-finding role. Martin v. Heritage Man- or South, supra. In fact, the trial court is admonished to “state specific reasons for its ruling, which would greatly simplify and assist the review process.” Id, at 7, 784 So.2d at 633.

The standard of appellate review of a ruling on a motion for new trial is whether the trial court abused its discretion. Id, and citations therein. Although the trial court has much discretion regarding applications for new trial, “in a case of manifest abuse the appellate court will not hesitate to set the trial court’s ruling aside, or grant a new trial when timely applied for.” La. C.C.P. art.1971, Official Revision Comment (d).

In essence, the ruling on a motion for new trial implicates, and requires the appellate court to balance, two very important concepts: the great deference given to the jury in its fact finding role and the great discretion given to the trial court in deciding whether to grant a new trial. Davis v. Wal-Mart Stores, supra. “The scales are clearly tilted in favor of the survival of the jury’s verdict, but the trial court is left with a breadth of discretion which varies with the facts and events of each case.” Martin v. Heritage Manor South, at 6-7, 784 So.2d at 632.

In light of these precepts, we have closely reviewed the record evidence to determine whether the jury’s verdict is supportable by any fair interpretation of the evidence. Davis v. Wal-Mart Stores, supra. If it is, then the grant of new trial is an abuse of the trial court’s discretion. Martin v. Heritage Manor South, supra.

Discussion: Is the Verdict Supportable?

In support of his theory that TAC was responsible for his injuries, Boylston called several expert witnesses. Captain Moon, an expert in fire investigation, established that fire requires a fuel source and ignition. He | fifound that in this case, the fuel was gasoline vapors. He declined to identify the ignition source, even though Boyl-ston told him he had started to light the cigar. Capt. Moon testified that a lighter or a lit match, a car engine running nearby, or static electricity were about equal possibilities.

Retired Chief Bo Roberts of the Shreveport Fire Department agreed that the fuel was gasoline vapors. In a pretrial deposition, he said the ignition source was inside Boylston’s car. However, after reading Tidwell’s deposition, he felt the ignition occurred outside the car, yet he still could not say one source was more likely than any other. He noted that if the tanker had parked farther from the car, at least 25 ft., the accident probably could not have occurred. Finally, Chief Roberts stated that the wind had little effect on the accident, as gasoline vapors are 4-5 times heavier than air. The parties stipulated that the wind that afternoon was 16-20 knots from the south or southwest, a rather brisk breeze blowing from Boylston’s car toward the tanker.

Boylston’s primary witness was Dr. Dieter Heinz, a chemical engineer from California with expertise in the field of cause and origin of fire, and safety in the loading, transportation and unloading of petroleum products. He declared that TAC’s training manual was totally inadequate for today’s high-performance gaso-lines, and cited DOT regulations prohibiting anyone from having a lighted cigarette within 25 ft. of a motor vehicle containing flammable liquids. He also testified that a tanker must be grounded to prevent static discharge. In short, he felt that Tidwell violated several safety regulations.

|7Pr. Heinz testified that the fuel source was gasoline vapors that poured out of the vapor release valve on the back of the tanker when Tidwell opened it, and the ignition source was static electricity created when Tidwell placed the plastic cap on the metal rear end of the tanker. He concluded that this ignited the vapor trail, causing flames to flow from the “lean” to the “rich” end of the vapors. He explained that the “rich” end of the trail was near Boylston’s car because the 16 knot wind was channeled by the terrain to strike the broad side of the trailer and “bounce” back toward the Grand Am. This propelled the heavy gasoline vapors toward the car. Dr. Heinz could not rule out an ignition source inside the car, but he felt the vapors there would not be dense enough to catch fire.

On cross examination, Dr. Heinz admitted that when he initially formulated this scenario, he assumed that Tidwell had actually opened the belly valves and that 500 ml (half a quart) of gasoline had spurted out. When shown that this did not occur, he testified that the vapors came from the vapor release valve. He admitted that emitting a low concentration of the vapors from the vapor release valve was “unfortunately permissible.” He also admitted that according to the records he reviewed, the tanker itself had no defects.

Finally, Boylston presented a computer animation assembled by Marion Marks, an expert in computer animation. Based on Dr. Heinz’s opinions and the topographical data, this animation showed how gasoline vapors, depicted as particles or blobs, could blow backwards against the |swind and flow to Boylston’s car. He admitted using strictly Dr. Heinz’s data, and was unaware that the wind was at least 16 knots at the time (over 18& miles per hour).

TAC’s expert witness was Dr. Andrew Armstrong of Arlington, Texas, a chemist with particular application to fires and causes of fire. He discounted Dr. Heinz’s theory that static electricity emanated from the tanker because, under the circumstances, the rubber tires provided adequate grounding. He also disagreed with Dr. Heinz’s theory that gasoline vapors gushed out when Tidwell opened the vapor release valve; according to the bill of lading, the tank was not overfilled, and Tid-well did not describe any surge of pressure. Dr. Armstrong testified that Dr. Heinz’s scenario was impossible because if flammable vapors had poured from the vapor release valve, and a spark had been generated by setting the plastic cap on the metal bumper, the vapors would have exploded then and there-which obviously did not occur. He instead hypothesized that the gas vapors must have come from a gas spill on the pavement south of Boylston’s car.

Dr. Armstrong agreed that the “eddy” effect can cause a small amount of fluid to flow against the current, behind a large obstacle. However, he found nothing in the layout of the PennzMart that could have blown gasoline vapors against a strong wind and back to the Grand Am. He referred to a videotape made at the Pennz-Mart with a south wind, a gas tanker and a car situated as they were on the date of the accident. Streamers tied to sticks at various heights all blew to the north; nowhere did they blow | flsouth, or against the wind.

Dr. Armstrong theorized that the ignition came from a match or static electricity inside Boylston’s car; the fuel vapors came from a gasoline spill near the car. He explained that when the vapor ignited, it sent out a “shock wave” and a fire front, sucking in the air behind it; as the air returned, the flame flowed back to the car, and that is the part of the event that Tidwell saw only after he heard somebody shout.

Called as a rebuttal witness, Dr. Heinz admitted that Dr. Armstrong’s videotape of the wind characteristics at the Pennz-Mart was “awesome,” but said that it did not change his opinion. Notably, Dr. Heinz did not attempt to refute Dr. Armstrong’s “shock wave” theory or dispute his conclusion that Tidwell only saw the second half of the event.

In granting the motion for new trial, the district court found that the “manifest weight of the evidence” was that the vapors came from the tanker truck. We agree that a greater number of witnesses held this theory, and that the alternative sources of gasoline vapors, such as a spill near Boylston’s car or a fuel leak in it, are conjectural. However, these facts do not resolve the dilemma posed by Dr. Armstrong: if the fuel source was a stream of vapors gushing from the vapor release valve, then the vapors should have ignited then and there when Tidwell placed the cap on the bumper and created the spark. Obviously, this did not happen. The fact that the explosion did not occur immediately and at the rear of the tanker lends manifest weight to Dr. Armstrong’s theory.

LnDespite the supreme court’s admonition to “state specific reasons for its ruling,” Martin v. Heritage Manor South, supra, the trial court did not mention the ignition source. This failure, under the facts presented, is even more unsettling. Boylston’s theory depended on a finding that Tidwell generated a spark at the rear of the tanker; but as noted, Dr. Armstrong exposed a serious flaw in this hypothesis. The other theory is that ignition occurred inside the car, as Chief Roberts stated in deposition. At trial, Boylston was insistent that he did not light the cigar, as he had quit smoking sometime earlier. However, he told Tidwell twice at the scene that he tried to light the cigar; he made a similar admission to Capt. Moon, who also noted witness statements to that effect. Capt. Moon’s photos showed an unwrapped cigar on the console of the Grand Am, belying the claim that Boylston did not intend to smoke it himself. Given his inconsistent statements and his evasiveness on cross examination, the jury was entitled to discount much of Boylston’s testimony. In fact, at the hearing on the motion for JNOV or new trial, Boylston’s counsel conceded that the jury “was well within its right * * * to find that Mr. Boylston ignited a cigar.” R.p. 1424. Regardless of the source of the gasoline vapors, this evidence supports the jury’s implicit conclusion that the ignition source occurred inside the Grand Am.

As in Martin v. Heritage Manor South, supra, the instant verdict was informed by the scientific theories of highly qualified experts, both of whom presented understandable scenarios of how the accident occurred. If the defense theory is a “fair interpretation of the evidence,” the verdict must beJjjupheld. There was virtually no physical evidence, the lay testimony was conflicting, and the plaintiff had diminished credibility. The defense theory reasonably accounts for all these facts. By contrast, the plaintiffs expert utilized faulty initial assumptions, did not refute or discredit the defense’s theory, and most importantly, did not explain the apparent flaw exposed in his own theory. On this record we are constrained to hold that the defense theory is a fair interpretation of the evidence, and that the verdict accepting it is supportable by the evidence. The trial court therefore abused its discretion in granting the new trial. Martin v. Heritage Manor South, supra.

The Spoliation Charge

In defense of the new trial, Boyl-ston urges in brief that a prejudicial jury charge regarding spoliation denied him substantial justice and went against the manifest weight of the evidence. A new trial may be granted when the verdict, although free of legal error, does not do substantial justice or is against the manifest weight and probative effect of the evidence. Poland v. Poland, 34,085 (La.App. 2 Cir. 12/6/00), 779 So.2d 852, and citations therein. The trial court delivered instructions that included this charge:

If you can find a party has destroyed, altered, concealed, or failed to produce evidence within its control, you are allowed to presume that, had the evidence in question been presented, it would be unfavorable to that party.

At the hearing on the motion for JNOV or new trial, the trial judge remarked that when he inserted this charge, he thought the defendants had made a formal discovery request to inspect the Grand Am, but in fact there was no such request. The judge stated, “I have some concern about having | ^included the spoliation charge under those circumstances.” Boylston now argues the jury may have relied on this charge in reaching an “unjust decision” and that the resulting prejudice allowed the trial court to grant the motion for new trial.

We have closely reviewed the record and find no evidence that Boylston objected to this charge. In the recent case of Davis v. Witt, 02-3102 (La.7/2/03), 851 So.2d 1119, the supreme court analyzed the effect of an improper jury charge on a motion for new trial:

Turning now to the case before us, we find the trial judge’s reliance on improper jury instructions, the first articulation in support of his conditional grant of a new trial, was erroneous as a matter of law. It is well accepted a party may not assign as error the giving or the failure to give a jury instruction unless he objected to it at trial. La. C.C.P. art. 1793 C. As such, we have said that the failure to object to the inclusion of jury charge precludes a party from raising a claim that the trial judge erred by failing to properly charge the jury. Trans-Global Alloy Ltd. v. First Nat. Bank of Jefferson Parish, 583 So.2d 443, 448 (La.1991).
In the present case, the record shows the trial judge gave four particularized instructions on the duty of law enforcement officers: (1) they have exclusive power to regulate traffic; (2) they are duty-bound to exercise this power reasonably to protect life and limb and to refrain from causing injury or harm; (3) the scope of their duty is to choose a course of action that is reasonable under the circumstances; and (4) the moment a law enforcement officer becomes aware of a dangerous traffic situation, he/she has an affirmative duty to see that motorists are not subjected to an unreasonable risk of harm. At no time did the Davis children object to the inclusion of any of these jury charges or, as a matter of fact, to any others actually given. Accordingly, we find the trial judge erroneously relied upon improper jury instructions as a ground to conditionally grant a new trial. Id., at 19-20 (footnotes omitted).

113Simply put, Boylston did not object to the spoliation charge. Like the plaintiffs in Davis, he cannot now raise the charge as a justification for a new trial. Moreover, the trial court erred as a matter of law if it granted a new trial on this basis. Boylston’s reliance upon the charge to support the granting of a new trial clearly lacks merit.

Conclusion

For the reasons expressed, we find that it was an abuse of discretion for the trial court to grant a new trial as the jury’s finding, that the negligence of TAC was not a cause in fact of Boylston’s injuries, was supportable by a fair interpretation of the evidence. We therefore grant the writ, make it peremptory, and direct the entry of a judgment in accordance with the verdict. All costs are assessed to the plaintiff, Varnell Boylston.

WRIT GRANTED AND MADE PEREMPTORY.

      . Photographs in evidence also show that the lids to the underground tanks are located between the northmost fuel island and the north fence.

      . Mr. Marks played the 60-second animation on a video screen for the jury, but no copy of it on videotape, CD or otherwise was entered into evidence.

      . The videotape was admitted as Exhibit Tid-well — 10.

      . The record also shows that the spoliation charge was not part of TAC’s proposed jury charges, R.p. 520. Nevertheless, the court stated that the parties had discussed it at a charge conference.


author: I,WILLIAMS, Judge.

text:
    Doris FRAZIER, Plaintiff-Appellee, v. DOLLAR GENERAL, Defendant-Appellant.
    No. 37,298-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 2003.

      Stephen C. Resor, Michael Meunier, Gloria T. Lastra, New Orleans, for Appellant.
    Mark K. Manno, for Appellee.
    Before WILLIAMS, STEWART and TRAYLOR (Pro Tempore), JJ.
   I,WILLIAMS, Judge.

The defendant, Dollar General, appeals a judgment in favor of the claimant, Doris Frazier. The workers’ compensation judge (WCJ) awarded claimant temporary total disability (TTD) benefits and supplemental earnings benefits (SEB) and ordered defendant to pay the cost of a neurological evaluation. The WCJ also awarded claimant penalties and attorney fees for defendant’s failure to pay TTD benefits and the neurologist bill. The claimant filed an answer seeking an increased award for penalties and attorney fees and additional attorney fees for this appeal. For the following reasons, we amend the judgment and affirm as amended.

FACTS

On January 2, 2001, the claimant injured her lower back while working at a Dollar General store in Arcadia, Louisiana, when a roller conveyer tipped over and struck her as she unloaded a truck. The claimant went to the Christus Schumpert Arcadia Clinic and was examined by Dr. Terry Gardner, who diagnosed her with a low back strain. Claimant’s lumbar spine x-rays were normal. Dr. Gardner restricted claimant to light duty work and released her to return to regular duty work on January 5, 2001. On this date, however, the claimant performed light duty work as a cashier for two hours and then returned to the Arcadia Clinic complaining of back pain. Dr. Gardner restricted her from work until January 7, 2001, when claimant returned to the store and worked a full day as a cashier.

On January 8, 2001, the claimant again reported to the clinic with a complaint of back pain and was restricted from work on January 9, 2001. On January 10, 2001, claimant worked as a cashier for less than two hours hand returned to Dr. Gardner, who excused her from work and referred her to an orthopedist. Claimant did not return to work after that date.

On January 17, 2001, claimant visited Dr. Albert E. Dean, Jr., an orthopedic surgeon, with a complaint of persistent pain in her lower back and left leg. Dr. Dean reported that there was limited flex-ion in claimant’s back and that x-rays of the lumbar spine were normal. He prescribed Vioxx and recommended physical therapy. Dr. Dean restricted the claimant to light duty work. The next day, claimant saw Dr. Kushal Agarwal at the Jackson Parish Family Clinic complaining of back pain. Dr. Agarwal restricted claimant from doing any work for the period of January 18 through January 28, 2001.

In February 2001, an MRI of claimant’s lumbar spine was performed and showed a mild disc bulge at the L4-5 space without any narrowing of the neural foramen. On February 19, 2001, claimant returned to Dr. Dean with a complaint of back and left leg pain. She said that her left leg “went out” from under her the day before and she had fallen in her yard.

Dollar General paid claimant’s medical expenses, but refused to pay any workers’ compensation benefits or to pay for a neurological evaluation. In April 2001, the claimant filed a disputed claim for compensation with the Office of Workers’ Compensation (OWC) seeking indemnity benefits, approval for an evaluation by a neurosurgeon, penalties and attorney fees.

On April 20, 2001, claimant reported to Dr. Dean that she felt left knee pain as a result of her fall in February. Dollar General terminated claimant’s employment in May 2001 alleging that she had falsified | ^personnel schedules. In August 2001, the claimant’s attorney asked Dr. Dean if her back problem could have caused her left leg pain. Dr. Dean responded that based on the MRI, he could not say that claimant’s back injury caused her left leg symptoms. Dr. Dean last saw the claimant on August 22, 2001, when he recommended a repeat MRI of her lower back and restricted her to sedentary work.

In December 2001, claimant filed a motion requesting that defendant, Dollar General, be ordered to authorize orthopedic treatment for her left knee with Dr. Edward Morgan. In January 2002, claimant amended her motion to seek approval of a second lumbar MRI and an examination by Dr. Marco Ramos, a neurosurgeon. Subsequently, the WCJ denied the request for treatment by Dr. Morgan, but ordered defendant to approve the MRI and an evaluation by Dr. Ramos.

On February 12, 2002, claimant was examined by Dr. Ramos, who reported a positive straight leg-raising test on the left side. In March 2002, a repeat MRI of claimant’s lumbar spine showed mild desiccation of the L5-S1 disc without any neurological involvement. Despite the WCJ’s prior order, defendant refused to pay the cost of claimant’s initial evaluation by Dr. Ramos. Subsequently, Dr. Ramos ordered an EMG nerve conduction test, which did not indicate any evidence of radiculopathy. Dr. Ramos recommended another program of physical therapy and prescribed pain relief medication to alleviate claimant’s symptoms.

At the OWC hearing, the parties stipulated that claimant had sustained a work-related accident. After hearing the evidence, the WCJ |4ordered defendant to pay TTD benefits for January 6 and January 9, 2001 and from February 2-18, 2001, based on an average weekly wage of $224.95. The WCJ found that claimant .was incapable of earning 90% of her pre-injury wage and ordered defendant to pay SEB for the periods of January 17, 2001 to February 1, 2001 and from February 19, 2001 up to the date of trial and continuing. The WCJ determined that claimant had not forfeited her benefits under LSA-R.S. 23:1208 and ordered defendant to pay $300 for the neurological evaluation.

The WCJ assessed defendant with penalties of $2,000 and attorney fees of $2,000 for the failure to reasonably controvert its liability for TTD and for refusing to pay the cost of the evaluation by Dr. Ramos. The defendant appeals the judgment. The claimant filed an answer to the appeal seeking an increase in the award of penalties and attorney fees.

DISCUSSION

The defendant contends the WCJ erred in awarding claimant TTD benefits. Defendant argues that claimant is not entitled to TTD because she failed to produce any objective medical evidence of a disabling condition.

An injured employee seeking TTD benefits must prove by clear and convincing evidence that she is physically unable to engage in any employment, regardless of its nature, including employment while working in pain. LSA-R.S. 23:1221(1); Atwood v. Ewing Timber, Inc., 34,045 (La.App.2d Cir.12/15/00), 774 So.2d 1140. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable. Knotts v. Snelling Temporaries, 27,773 (La.App.2d Cir.12/6/95), 665 So.2d 657. A claimant may prove disability through medical and lay testimony. The WCJ must weigh all of the evidence to determine if the claimant has met his burden of proving temporary total disability. Atwood v. Ewing Timber, supra.

In the present case, claimant introduced into evidence the medical reports of her visits to several physicians. On the date of the work accident, claimant was seen by Dr. Gardner, who noted muscle spasms in her lower back. Dr. Gardner restricted claimant to light duty work until January 5, 2001. Claimant returned to work the same day and operated a cash register as light duty work for the remainder of her shift.

On January 5, 2001, the claimant worked a short time at the cash register, but returned to the clinic complaining of back pain. During his examination, Dr. Gardner noted muscle spasms in claimant’s lower back. He instructed her to stay off work and get bed rest on January 6, 2001 and return to work the next day. Dr. Gardner told claimant to return to the clinic on January 8 if she was still having pain. Claimant worked a full shift as cashier on January 7, 2001 and worked until 2:30 p.m. on January 8, when she returned to the clinic due to continued back pain. Dr. Gardner reported muscle spasms in claimant’s lower back and instructed her to remain off work on January 9, 2001 and return to light duty work with lifting restrictions the following day. On January 10, 2001, claimant worked for just over one hour before returning to the clinic with a complaint of continued pain in her 'back and left leg. Dr. Gardner again noted a muscle spasm in claimant’s lower back, diagnosed her with back strain and referred lfiher to Dr. Dean, an orthopedist.

On January 17, 2001, Dr. Dean examined the claimant, who complained of pain in her lower back and left leg. Dr. Dean found some limitation of flexion in claimant’s lower back. He diagnosed claimant with lumbar sprain and recommended physical therapy. Dr. Dean instructed claimant to return to light duty work on January 18, 2001.

However, the claimant presented on February 2, 2001, complaining of more severe back pain extending down her left leg. She stated that the pain prevented her from standing long enough to work as a cashier or to wash dishes. Dr. Dean noted that straight leg raising caused some pain in the claimant’s lower back. He ordered an MRI of the lumbar spine and instructed claimant to remain off work until the results were obtained. The MRI showed a mild disc bulge at the L4-5 space. Claimant next saw Dr. Dean on February 19, 2001, when he released her to return to light duty work with instructions to avoid any twisting, bending and prolonged standing or walking.

The record shows that the claimant introduced medical evidence demonstrating that on the dates of January 6 and January 9, 2001, and from February 2 through February 18, 2001, she was instructed by physicians not to work because of her injured physical condition, including the objective finding of muscle spasms and significant pain. In addition, the claimant testified that she could not work at those times because she was undergoing treatment for her work-related injury. Based upon the medical records and testimony presented, we cannot say that the WCJ was clearly wrong in | finding that claimant established by clear and convincing evidence that during the above specified dates, she was unable to perform any employment and was entitled to receive TTD benefits. The assignment of error lacks merit.

Supplemental Earnings Benefits

The defendant contends the WCJ erred in awarding SEB to claimant. Defendant argues that claimant failed to prove her inability to earn at least 90% of her pre-injury weekly wage.

The purpose of SEB is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993); Caparotti v. Shreveport Pirates Football Club, 33,570 (La.App.2d Cir.8/23/00), 768 So.2d 186. An employee is entitled to receive SEB if she sustains a work-related injury that results in her inability to earn ninety (90%) or more of her average pre-injury wage. LSA-R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in an inability to earn that amount under the facts and circumstances of the individual case. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the claim for SEB or establish the employee’s earning capacity, must prove by a preponderance of the evidence that the worker is physically able to perform a certain job, which was offered to the employee or was available in her or the employer’s community or reasonable geographic region. LSA-R.S. 23:1221(3) (c) (i); Banks, supra.

In the present case, claimant testified that after her work injury she sought treatment for persistent back pain and that her physicians restricted her to light duty work with limited standing, bending or lifting. Claimant stated that these restrictions prevented her from performing her prior job of assistant store manager, which involved unloading trucks, mopping the floor and stocking merchandise. Claimant testified that although she tried to perform the cashier position assigned by the defendant, her continuing back pain prevented her from standing for the prolonged periods required and that there was no way for her to sit down. Claimant stated that she was still experiencing back pain at the time of trial.

Medical' records show that Dr. Dean prescribed physical therapy for claimant in February 2001, and placed her on light duty with no prolonged standing or walking. In March 2001, Dr. Dean reduced claimant to sedentary duty because she complained her back pain had worsened. Sedentary duty was described as lifting a maximum of ten pounds with limited standing and walking. In April 2001, Dr. Dean noted that claimant’s back pain persisted and that a straight leg-raising test was positive on the left side. Dr. Dean restricted claimant to light duty and requested a repeat MRI of the lumbar spine. He again recommended a repeat MRI in August 2001.

In the initial neurological evaluation by Dr. Ramos in February 2002, the claimant continued to complain of recurring low back pain radiating to the left leg. Dr. Ramos noted limited range of motion of the lumbosacral |9spine with a positive straight leg-raising test on the left side. In March 2002, Dr. Ramos noted that claimant continued to complain of low back pain and he reviewed the results of the repeat MRI, which showed mild desiccation of the L5-S1 disc with no obvious indication of disc herniation. Dr. Ramos opined that claimant was not in a condition to resume any type of work activity at that time and he did not revise this opinion after his August 2002 examination.

The testimony and medical evidence support a finding that claimant could not perform her previous job of assistant manager or work a complete shift as cashier while standing for prolonged periods. Thus, based on the evidence presented and the degree of work restrictions placed on the claimant, we cannot say the WCJ was clearly wrong in finding that claimant was unable to earn 90% of her pre-injury wage.

Consequently, in order to avoid paying SEB to claimant or to establish her earning capacity, the defendant was required to prove that a suitable job was available. An employer can discharge its burden by establishing (1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region, (2) the amount of wages that an employee with claimant’s experience and training can expect to earn in that job, and (3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence. Banks, supra. A “suitable job” means a job that the claimant is not only physically capable of performing, but one that also falls within the limits of the claimant’s age, |inexperience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education. Banks, supra.

In the present case, defendant offered the testimony of Cynthia McBride, the store manager at the time claimant was injured. McBride testified that she assigned claimant to work at the cash register as a means of meeting the light duty restriction recommended by claimant’s physicians. McBride stated that claimant “was always offered any type of light duty at the store.” However, McBride did not identify any light duty job as available other than that of cashier.

McBride acknowledged that the cashier job required standing for extended time periods, but stated that the store would have accommodated any restriction given by claimant’s physician and could have placed a stool at the cash register to allow her to sit while working if needed. However, McBride admitted that at the time of these events, the defendant’s Arcadia store did not even have a stool on the premises.

In February 2001, Dr. Dean restricted claimant to light duty with no bending or twisting and no prolonged standing or walking. In March 2001, Dr. Dean restricted claimant to sedentary duty. In his deposition, Dean explained that with this restriction, the cashier job was questionable unless claimant could be seated while working. In April 2001, Dr. Dean returned claimant to light duty and recommended a repeat lumbar MRI. In August 2001, claimant again complained of recurring back and left leg pain. Dr. Dean observed that claimant appeared to be in a “good deal of pain” and ^restricted claimant to sedentary duty. In his deposition, Dean testified that the sedentary restriction applied mainly to claimant’s knee and that the restriction for her back would have been no heavy lifting or repetitive bending. Dr. Dean opined that the cashier position would not be a problem if claimant was allowed to sit and move around and not just stand still.

Despite the defendant’s contention that the cashier position was within claimant’s physical work restrictions, the testimony demonstrated that at the time the job was offered, claimant would not have been able to sit periodically while working as recommended by Dr. Dean, because the defendant did not allow cashiers to sit and did not make a stool available for the claimant. In addition, the cashier job duties involved repetitive twisting, bending and reaching to pick up and scan items contrary to the physicians’ consistent light duty restrictions.

Based upon this record, we cannot say the WCJ was clearly wrong in concluding that the defendant failed to make available a suitable job within the claimant’s physical capabilities. Consequently, the WCJ did not err in awarding SEB to the claimant.

Alternatively, the defendant contends the WCJ erred in awarding SEB after the date of May 22, 2001. Defendant argues that any disability after that date resulted from a knee injury unrelated to claimant’s work accident. If an accident caused a disability from which a worker would have recovered except for further disability produced by a separate, intervening cause, there is no liability for compensation beyond the disability produced by the job-related accident. Fontenot v. Trans Gulf, Inc., 95-342 (La.App. 1st Cir.11/9/95), 664 So.2d 1238.

The record does not support the defendant’s assertion that Dr. Dean’s testimony shows that claimant’s back condition had resolved by May 2001. To the contrary, in an August 2001 report, Dr. Dean noted that claimant continued to experience low back pain with limited motion in her back and pain with straight leg raising on the left side. Dr. Dean testified that he maintained lifting and repetitive bending work restrictions based upon claimant’s back condition through August 2001. Dr. Dean also recommended a repeat lumbar MRI at that time.

Additionally, in March 2002, Dr. Ramos examined the claimant, who continued to complain of low back pain. Dr. Ramos noted a limited range of motion in the lumbar spine with a positive straight leg-raising test. Dr. Ramos also reported that claimant was making progress with physical therapy and recommended a functional capacity examination.

After reviewing the record, we cannot say the WCJ erred in awarding SEB to claimant for the period through August 21, 2002 and continuing in accordance with LSA-R.S. 23:1221(3). We note that the amount of SEB to be paid is subject to change in any month in which the employer shows that the claimant is earning or is able to earn wages. Baker v. Libbey Glass, Inc., 32,748 (La.App.2d Cir.5/10/00), 759 So.2d 1007. The assignments of error lack merit.

Forfeiture

Defendant contends the WCJ erred in finding that claimant did not forfeit her right to workers’ compensation benefits. Defendant argues that | ^claimant forfeited any benefits by willfully misrepresenting her work status.

LSA-R.S. 23:1208 provides that it is unlawful for any person to willfully make a false statement or representation for the purpose of obtaining or defeating any benefit or payment. An employee who violates this statute shall, upon determination by a workers’ compensation judge, forfeit any right to compensation benefits. LSA-R.S. 23:1208(E). The forfeiture of benefits will occur upon proof that (1) there was a false statement or representation (2) willfully made (3) for the purpose of obtaining any benefit or payment. Figueroa v. Hardtner Medical Center, 35,678 (La.App.2d Cir.1/25/02), 805 So.2d 1267. The statute providing for the forfeiture of workers’ compensation benefits is penal in nature and must be strictly construed. Smalley v. Integrity, Inc., 31,247 (La.App.2d Cir.12/9/98), 722 So.2d 332.

In the present case, McBride testified that claimant did not say she had been released for regular duty on January 5 and 7, 2001, as provided by the physician notes. McBride stated that on those dates, claimant had worked as a cashier, which was considered light duty. McBride testified that she had not seen all of the medical notes excusing claimant from work. However, McBride acknowledged that generally, claimant had provided her with such medical notes after each doctor visit.

The claimant testified that after getting treatment for her work injury, she attempted to return to work, but often could not complete her light duty shift because her continuing back pain prevented her from standing for the required length of time. Claimant stated that she gave McBride the | uphysicians’ written notes excusing her from work and restricting her job duties. Claimant testified that on the occasions when she left work early, she had sought medical treatment because of the doctors’ instructions to return if her back pain continued. Claimant explained that she did not try to work between January 10, 2001 and January 17, 2001, because she understood that Dr. Gardner had excused her from work until she saw an orthopedist. This testimony is supported by Dr. Gardner’s written work certificate referring claimant to an orthopedist and stating that claimant “will be able to return to work on The claimant gave this note to McBride, as reflected by the manager’s written notation on the work schedule.

The WCJ heard the conflicting testimony and weighed the credibility of the witnesses. The evidence presented supports a finding that claimant submitted the physicians’ notes to the store manager and thus provided defendant with notice of the extent and effective dates of the work restrictions. Consequently, we cannot say the WCJ was clearly wrong in finding that defendant failed to prove that the claimant willfully made false statements for the purpose of obtaining benefits. The assignment of error is without merit.

Average Weekly Wage

The defendant contends the WCJ erred in calculating the claimant’s average weekly wage (AWW). Defendant argues that the AWW should be based on claimant’s average earnings over the four weeks preceding the accident because she chose to work fewer than 40 hours per week.

11BIf the employee is paid on an hourly basis and is employed for 40 hours or more, the average weekly wage shall be determined as his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or by 40 hours, whichever is greater. LSA-R.S. 23:1021(10)(a)(i). If the worker is paid hourly and was offered employment for 40 hours but regularly, and at his own discretion, worked less than 40 hours per week, then the AWW shall be the average of his total earnings per week for the four full weeks preceding the accident. LSA-R.S. 23:1021(10)(a)(ii).

In the present case, McBride testified that claimant, as a full-time assistant manager, could have worked up to 40 hours per week, but often chose to work fewer hours. This testimony was supported by the work schedule, which indicated that claimant worked 40 hours in only one of the four weeks preceding her job accident.

In light of the average weekly wage rate stated in the judgment, the WCJ impliedly found that the claimant did not meet the requirement of Section 1021(10)(a)(i), but regularly chose to work less than the 40 hours available per week, and we cannot say that this finding is clearly wrong. However, the WCJ’s method of calculating the AWW set forth in the judgment is not readily apparent from our review of the record. Considering the average of claimant’s total earnings for the four weeks preceding the accident, ending on January 5, 2001 and December 29, 22, and 15, 2000, the average weekly wage is the amount of $222.53, with a compensation rate of $148.35 per week. We shall amend the judgment accordingly.

| Necessary Medical Treatment

The defendant argues that the WCJ erred in ordering that defendant pay for the claimant’s evaluation by a neurosurgeon because the claimant failed to prove that such treatment was medically necessary. A workers’ compensation claimant may recover medical expenses that are reasonably necessary for the treatment of a medical condition caused by a work-related injury. Tatum v. St. Patrick’s Psychiatric Hosp., 32,616 (La.App.2d Cir.12/30/99), 748 So.2d 1276. The employee must prove by a reasonable preponderance of the evidence the necessity and relationship of the physician’s treatment to the work-related accident. LSA-R.S. 23:1203; Balsamo v. Jones, 28,885 (La.App.2d Cir.12/11/96), 685 So.2d 1140.

Here, the evidence showed that claimant sustained an injury to her lower back and continues to experience pain. She sought a neurological evaluation with Dr. Ramos for her recurring low back pain radiating to the left leg. Claimant related her symptoms to the work accident which had occurred approximately one year earlier.

In support of its position, defendant refers to Dr. Dean’s opinion that an evaluation of claimant by a neurosurgeon was not medically necessary. However, Dr. Dean’s deposition testimony indicates that he did not view such an evaluation as unreasonable, but believed that he was as capable of evaluating the claimant’s condition as was a neurosurgeon. In addition, Dr. Dean testified that he did not object to claimant having a medical evaluation by a neurosurgeon for a second opinion, but thought a better option was to obtain a repeat lumbar MRI, which he had requested in August 2001.

117Pespite Dr. Dean’s request, the defendant refused to approve a second MRI at the time. In the absence of this test, claimant subsequently sought a neurological evaluation when her pain symptoms did not resolve. Based upon this record, we cannot say the WCJ was clearly wrong in finding that claimant proved by a preponderance of evidence that the evaluation by Dr. Ramos was reasonably necessary to assess her medical condition. The assignment of error lacks merit.

Penalties and Attorney Fees

The defendant contends the WCJ erred in awarding claimant penalties and attorney fees. Defendant argues that such an award was not warranted because it had reasonably controverted the claim for compensation benefits.

The employer’s failure to provide payment of compensation or medical benefits owed shall result in the assessment of a penalty and reasonable attorney fees, unless the employer has reasonably controverted the claim. LSA-R.S. 23:1201(F); Baker v. Libbey Glass, Inc., 32,748 (La.App.2d Cir.5/10/00), 759 So.2d 1007. To reasonably controvert a claim, the employer must have sufficient factual or medical information to reasonably counter the evidence provided by claimant. Balsamo v. Jones, 28,885 (La.App.2d Cir.12/11/96), 685 So.2d 1140.

Statutory provisions permitting the assessment of penalties and attorney fees for nonpayment of workers’ compensation benefits are penal in nature and must be strictly construed. Davis v. Jones Baldwin Music Co., 27,545 (La.App.2d Cir.11/1/95), 662 So.2d 803. The WCJ’s decision concerning whether or not to assess statutory penalties and attorney fees |iawill not be disturbed absent an abuse of discretion. Balsamo v. Jones, supra.

In the present case, contrary to defendant’s assertion in its brief, Dr. Gardner had noted objective signs of muscle spasms when he restricted claimant from any work with instructions for bed rest on the dates of January 6 and 9, 2001. Subsequently, in February 2001, Dr. Dean noted that claimant’s straight leg-raising test was positive for pain in her lower back. Based on the claimant’s symptoms, Dr. Dean restricted her from working until after an MRI of the lumbar spine was obtained to assess a possible disc injury. Defendant has not shown that it possessed sufficient factual or medical information at the time to reasonably counter the clinical findings of Dr. Gardner or Dr. Dean with regard to claimant’s disability.

In addition, the defendant refused to pay for the claimant’s evaluation with Dr. Ramos despite the WCJ’s prior order that defendant provide for such a neurological examination. Thus, defendant cannot demonstrate a reasonable basis for believing that it was not liable to pay this court-ordered medical expense. Based upon this record, we cannot say the WCJ abused her discretion in assessing penalties and attorney fees for defendant’s failure to pay indemnity and medical benefits. The assignment of error lacks merit.

Answer to the Appeal

The claimant contends the WCJ erred in awarding inadequate attorney fees of $2,000. Claimant argues that the award should be increased given the time and effort expended by her attorney in this case.

LSA-R.S. 23:1201(F) permits imposition of a reasonable attorney fee for the failure to pay compensation or medical benefits. The amount |19awarded rests within the discretion of the WCJ and that determination will not be disturbed absent an abuse of that discretion. McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694; Ward v. Phoenix Operating Co., 31,656 (La.App.2d Cir.2/24/99), 729 So.2d 109. The factors to be considered in determining the amount of the attorney fee include the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the employee and the amount of time the attorney devoted to the case. McCarroll, supra; Ward, supra.

Here, the record shows that the claimant’s attorney conducted discovery, attended two depositions and filed a successful motion to require the defendant to approve the claimant’s second lumbar MRI and evaluation by Dr. Ramos. During the relatively brief trial, claimant’s attorney called one witness, cross examined the defendant’s witness and introduced into evidence a number of exhibits. The attorney succeeded in obtaining compensation benefits for claimant after devoting a reasonable amount of time to the case. After reviewing the record, we conclude that the attorney fee award of $2,000 is an abuse of discretion. We find that the amount of $4,000 is a reasonable award of attorney fees under the circumstances of this case. We shall amend the judgment accordingly.

The claimant contends the WCJ should have awarded separate penalties of $2,000 for defendant’s failure to pay indemnity and medical benefits. The judgment demonstrates that the WCJ considered defendant’s failure to pay compensation and medical benefits in assessing an aggregate penalty of $2,000. This determination was within the WCJ’s discretion and |?,nwe will not disturb the result.

Attorney Fees on Appeal

The claimant seeks additional attorney fees for work performed in connection with the appeal. An increase in attorney fees is usually awarded when the defendant appeals but is unsuccessful, and when the appeal has necessitated additional work on the part of claimant’s counsel. Caparotti v. Shreveport Pirates Football Club, 33,570 (La.App.2d Cir.8/23/00), 768 So.2d 186.

Here, although the calculation of the AWW has been amended, defendant’s appeal was otherwise unsuccessful. This appeal required additional preparation by claimant’s attorney, including submission of a brief and participation at oral argument. Consequently, we find that an increase in the award of attorney fees in the amount of $1,500 is reasonable in this case.

CONCLUSION

For the foregoing reasons, that part of the Office of Workers’ Compensation judgment specifying the claimant’s average weekly wage is amended and is hereby set at $222.53 for a weekly compensation rate of $148.35. The judgment is further amended to award an additional $3,500 in attorney fees for a total attorney fee award of $5,500. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to the defendant, Dollar General.

AMENDED AND AFFIRMED AS AMENDED.