author: | .JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Johnny P. BATTAGLIA.
    No. 03-KA-692.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.

      Holli Herrle-Castillo, Marrero, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Appellate Counsel, Andrea F. Long, Counsel of Record on Appeal, Gregory M. Kennedy, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   | .JAMES L. CANNELLA, Judge.

The Defendant, Johnny Battaglia, appeals from his conviction of indecent behavior with a juvenile and his enhanced sentence, as a second felony offender, to 10 years imprisonment, without benefit of parole, probation or suspension of sentence. For the reasons which follow, we affirm the conviction, amend the sentence, and as amended affirm it, and remand.

STATEMENT OF THE CASE

On June 2, 2000, the Jefferson Parish District Attorney filed a bill of information charging the Defendant with indecent behavior with a juvenile in violation of La. R.S. 14:81, which allegedly occurred on or about August 17, 1999. The Defendant was arraigned on June 14, 2000 and pled not guilty. The Defendant was found competent to stand trial on February 1, 2001 in a sanity hearing.

On April 30, 2002, the morning of trial, the trial court considered the Defendant’s motion in limine to exclude photographs and granted it in part and denied it in part. On April 30 and May 1, 2002, the case was tried before a six person jury which unanimously found the Defendant guilty as charged. On May | s21, 2002, the Defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial that were denied on that same date.

On May 21, 2002, the trial court sentenced the Defendant to imprisonment at hard labor for six years. The Defendant objected to the sentence and notified the trial court of his intent to file a motion for appeal. On June 20, 2002, the Defendant filed a written motion for appeal that was granted.

On August 30, 2002, the State filed a habitual offender bill of information against the Defendant, charging him as a second felony offender. On October 15, 2002, the Defendant denied the allegations of the habitual offender bill of information. On December 4, 2002, the Defendant admitted the allegations of the habitual offender bill of information. The trial court vacated the original sentence and sentenced the Defendant to imprisonment at hard labor for ten years, without benefit of parole, probation, or suspension of sentence.

FACTS

At trial the State introduced evidence, primarily through the victim’s testimony, that on August 17, 1999, at approximately 10:30 or 11:00 pm., at the Flower Gate Apartments in Metairie, the Defendant pulled A.C., age 16 at the time, into his apartment, locked the door, and grabbed her breast, buttocks, and between her legs. The State also introduced evidence to show that the Defendant offered A.C. $400 to have sex with him and $40 to allow him to take a photograph of her, either with or without her clothes on. A.C. refused to do either and managed to escape.

The State introduced into evidence several items found in the Defendant’s apartment after the Defendant voluntarily consented to having it searched: four |4photographs of nude women (State’s Exhibit 19 — one Polaroid photograph and three 35 mm photographs); a photograph of items on the counter in the Defendant’s apartment, including the photographs contained in State’s Exhibit 19, Yellow Pages, and a box of film (State’s Exhibit 15); a Polaroid camera, and film.

The Defendant testified that A.C. voluntarily came into his apartment to adjust the volume on his stereo, that she stayed a few minutes, and then left. He denied touching her, or offering her money for sex or to pose for a picture. The Defendant testified that he had used an escort service in the past, that the Polaroid photographs found in his apartment were taken by the women from the escort service of each other for his birthday, that he did not take the Polaroid photographs, and that he and his friends found the 35 mm photographs. The Defendant admitted to having a prior conviction in 1991 for carnal knowledge of a juvenile. He also stated that he was 48 years old at the time of the alleged offense. On appeal, the Defendant assigns three errors.

Assignment of error number two will be addressed first because the Defendant asserts issues on appeal that relate to both the sufficiency of evidence and one or more trial errors, including an error regarding the erroneous admission of evidence. When that is the case, the reviewing court should first determine the sufficiency of evidence by considering all of the evidence, including evidence the trial court may have erroneously admitted. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Mayeux, 94-105 (La.App. 5th Cir.6/28/94), 639 So.2d 828, 834. If the appellate court determines that the evidence was insufficient, then the Defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. However, if the appellate court finds that the totality of the evidence was sufficient to support the Defendant’s conviction, it must then determine whether the trial court erred in admitting the questioned evidence and, if so, whether the trial court’s error requires a reversal of the conviction or was harmless. State v. Alexis, 98-1145 (La.App. 5th Cir.6/1/99), 738 So.2d 57, 64, writ denied, 99-1937 (La.10/13/00), 770 So.2d 339.

ASSIGNMENT OF ERROR NUMBER TWO

The Defendant contends that the evidence was insufficient to support the conviction of indecent behavior with a juvenile, because the only evidence against him was the testimony of the victim and there was no physical evidence to corroborate her story. The Defendant asserts further that the fact that the victim did not want to call the police, and that he cooperated with the police, supports his position that the evidence did not establish his guilt beyond a reasonable doubt. The State argues to the contrary that the evidence was sufficient to support the conviction.

The standard for appellate review of the sufficiency of evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Lapell, 00-1056 (La.App. 5th Cir.12/13/00), 777 So.2d 541, 545, units denied, 00-3546 (La.9/14/01), 796 So.2d 675, 01-0439 (La.1/4/02), 805 So.2d 1192. A reviewing court is required to consider the whole record and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. Id.

The Defendant was convicted of a violation of La. R.S. 14:81, which provides in pertinent part:

A. Indecent behavior with juveniles is the commission of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than |Btwo years between the two persons, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child’s age shall not be a defense.

Thus, to convict the Defendant of this offense, the State must prove that (1) there was an age difference of greater than two years between the accused and the victim, who was not yet seventeen, (2) the accused committed a lewd or lascivious act upon the person or in the presence of a child, and (3) that the accused intended to arouse or gratify either his own or the victim’s sexual desires. State v. Stec, 99-633 (La.App. 5th Cir.11/30/99), 749 So.2d 784, 787. Specific intent need not be proven as a fact, but may be inferred from the circumstances and actions of the defendant. State v. Harrell, 01-841 (La.App. 5th Cir.2/26/02), 811 So.2d 1015,1019.

The evidence established that A.C. was 16 years old at the time of the offense and that the Defendant was a great deal more than two years older. A.C. identified the Defendant as the man who pulled her into his apartment, locked the door, grabbed her breasts, buttocks, and between her legs on her “private.” She testified that she saw four $100 bills lying on the counter, that the Defendant motioned to them and offered her $400 to have sex with him, that as they were struggling she saw Polaroid film on the counter, and that the Defendant offered her $40 to pose for a photograph. Detective Dyess and Officer Haase testified that A.C. relayed these events to them. Additionally, the officers recovered photographs of nude individuals and a camera from the Defendant’s apartment. The victim’s testimony and the officer’s corroboration of certain details of her testimony provided the necessary proof of the three elements of the offense.

Although the Defendant denied touching A.C. or offering her money for sex or to pose for a photograph, the jury apparently found the State’s witnesses more credible since it returned a guilty verdict.

|7In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the court, is sufficient to support a conviction. State of Louisiana in the Interest of L.A., 95-409 (La.App. 5th Cir.12/13/95), 666 So.2d 1142, 1144. In the present case, there is no internal contradiction or irreconcilable conflicts with the physical evidence. To the contrary, the physical evidence supports the victim’s testimony.

Based on the foregoing, we find that, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime of indecent behavior with a juvenile beyond a reasonable doubt and, thus, there was sufficient evidence to convict the Defendant of this charge. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER ONE

The Defendant argues that the trial judge erred in denying his motion in limine in part and allowing the State to introduce certain photographs into evidence (State’s Exhibits 15 and 19). The Defendant contends that the photographs were not relevant and, even if considered relevant, their probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and/or misleading the jury.

The State responded that the photographs were admissible to corroborate the testimony of the victim that the Defendant asked her to pose for photographs and that they provided motive for why the Defendant pulled the victim into his apartment.

The photographs at issue on appeal consist of four in State’s Exhibit 19, and one in State’s Exhibit 15. State’s Exhibit 19 included: (1) a photograph of the front of a nude woman standing with one hand on her thigh and the other hand on lathe wall; (2) a photograph of a nude woman sitting in a bathtub which shows her face, back, arms and legs; (3) a photograph of a nude woman standing sideways which shows her face, chest (not her breasts), left arm, with her right hand on a sponge over her breasts and soap on her body; and (4) a photograph of a nude woman standing in front of a shower curtain with a towel over the bottom portion of her body with her breasts showing. The first photograph was taken with a Polaroid camera. The other three photographs were taken with a 35 mm camera. State’s Exhibit 15 is a photograph of the four photographs described above, lying on a counter next to a box of film, several pages from a Yellow Pages book, two photographs of clothed women, a box, and a glass with a small amount of dark liquid at the bottom. It is evident that something was cut from the photograph, that being several other photographs of naked women that the trial judge excised from the picture.

The Defendant filed a motion in limine which requested that the trial court exclude photographs taken from the Defendant’s apartment of nude women and of himself on the basis that the photographs were not of the alleged victim and had nothing to do with the case. He stated that the photographs were merely being used by the district attorney to inflame the jury, thus prejudicing them against the Defendant.

The prosecutor argued that the female victim was going to testify that the Defendant asked her to pose for photographs either with or without her clothes on. The prosecutor contended that the photographs would corroborate the victim’s testimony as to one of the reasons why the Defendant pulled her into the apartment, and that it went to his intent as to why he had her in the apartment. He argued that the photographs had probative value that outweighed any prejudicial effect.

|3The trial judge reviewed the photographs. As the trial judge looked at the photographs, she asked the age of the individuals in the photographs. The prosecutor responded that they were individuals who the Defendant had hired from an escort service and that he did not know their ages. Defense counsel stated that the Defendant had said in his statement that none of them were juveniles and that they were prostitutes.

The trial judge stated for the record that the State had shown her 13 photographs, some showing spread legs with exposed genitalia at close range, and several with a female holding her own breasts. The trial judge chose photographs that she considered the least offensive. The trial judge stated that the bathroom photographs and the one Polaroid photograph of the naked woman standing up would be allowed. She said that she excised out all photographs of female and male genitalia and those photographs where the camera was at close range. The trial judge stated that she found those more prejudicial than probative. The trial judge explained that the photographs of the three or four naked women were not prejudicial, that the victim had made an allegation that the Defendant offered to take photographs of her, and that there was Polaroid camera film on the counter. The trial judge explained that the photographs corroborated the victim’s testimony that the Defendant offered to take photographs of her. She allowed the State to proffer the other photographs. Defense counsel objected.

In State v. Isenogle, 99-1269 (La.App. 5th Cir.4/25/00), 761 So.2d 95, 102, writ denied, 00-1454 (La.3/9/01), 786 So.2d 115, this Court set forth the law regarding admissibility of photographs:

For photographs to be admissible they must first be relevant, that is, they tend to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. arts. 401 & 402. However, even if relevant, photographs will be excluded if the probative value of the photographs is substantially outweighed by the 110danger of unfair prejudice, confusion of the issues or misleading the jury. La. C.E. art. 403.

In general, photographs which illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place, or thing depicted, are admissible, subject to the test that their probative value outweighs any prejudicial effect. State v. Richthofen, 01-500 (La.App. 5th Cir.11/27/01), 803 So.2d 171, 188, writ denied, 02-0206 (La.1/31/03), 836 So.2d 57. Photographic evidence is properly admitted unless it is so gruesome as to overwhelm the jurors’ reason and lead them to convict a defendant without sufficient evidence. Moreover, the cumulative nature of photographic evidence does not render it inadmissible if it corroborates the testimony of witnesses on essential matters. Id.

Generally, an appellate court places great weight upon a trial court’s ruling on the relevancy of evidence and such a determination will not be reversed absent a clear abuse of discretion. State v. Gaal, 01-376 (La.App. 5th Cir. 10/17/01), 800 So.2d 938, 950.

Based on the foregoing, we find that the trial judge exercised her discretion and restricted the number of photographs and the poses that were introduced. The photographs were relevant to corroborate A.C.’s testimony that the Defendant offered her money to pose for a photograph. The fact that the Defendant possessed numerous photographs of different nude women tended to show that the victim was telling the truth when she testified that the Defendant asked her to pose for a photograph. Therefore, the probative value of the photographs is not substantially outweighed by any possible unfair prejudicial effect that they may have created in the jury’s mind.

Thus, we find no error in the trial court ruling denying the motion in limine in part and allowing the admission into evidence of a limited number of the Inphotographs found in the Defendant’s apartment. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

The Defendant argues that the trial court erred in imposing the sentence without benefit of parole. The State agrees.

The Defendant was convicted of indecent behavior with a juvenile in violation of La. R.S. 14:81. The penalty provision for that offense states:

Whoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both, provided that the Defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893. La. R.S. 14:81(C).

The Defendant subsequently stipulated to being a second felony offender pursuant to La. R.S. 15:529.1, which provides that any sentence imposed under the provisions of that section “shall be without benefit of probation or suspension of sentence.” La. R.S. 15:529.1(G). After the Defendant stipulated to being a second felony offender, the trial judge vacated the original sentence and sentenced the Defendant to imprisonment at hard labor for ten years without benefit of “parole,” probation, or suspension of sentence. Neither La. R.S. 15:529.1 nor La. R.S. 14:81 provide that the Defendant’s enhanced sentence be served without benefit of parole. Thus, we find that the trial court erred in imposing the enhanced sentence without the benefit of parole.

Accordingly, we amend the sentence to allow for the possibility of parole in accordance with the applicable sentencing provisions. State v. Chirloiv, 99-142 (La.App. 5th Cir.6/1/99), 738 So.2d 679, 684-685, writ denied, 99-1996 (La.1/7/00), 752 So.2d 176.

TERROR PATENT

The record was reviewed for errors patent áccording to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). The review reveals the following.

The transcript reflects that the trial judge informed the Defendant that he had “two years from today’s date to file post conviction relief,” whereas the commitments indicate that the Defendant was informed he had “two years after judgment of conviction and sentence has become final to seek post-conviction relief.” The language of the transcript was incorrect and the language of the commitment was correct. However, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Therefore, we And that the Defendant was not properly informed under La. C.Cr.P. art. 930.8. We remand the case for the district court to inform the Defendant of the provisions of Article 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of the Court’s opinion and to file written proof of receipt of such notice in the record. State v. Stelly, 98-578, p. 6 (La.App. 5th Cir.12/16/98), 725 So.2d 562, 564.

We also find that, because the Defendant was convicted under La. R.S. 14:81, a “sex offense” as defined by La. R.S. 15:542(E), notification of the sex offender registration requirements is mandated. La. R.S. 15:540 et seq. However, the record does not indicate that the trial judge provided the Defendant with notification of the registration requirements of La. R.S. 15:542 as required by La. R.S. 15:543(A). Therefore, on remand, the trial court is ordered to inform the Defendant of the registration requirements of La. R.S. 15:542 by sending appropriate written notice to the Defendant within ten days of this opinion, and to file written proof in the record that the Defendant received such notice. State v. Stevenson, 00-1296 (La.App. 5th Cir.1/30/01), 778 So.2d 1165, 1166-1167.

| ^Accordingly, for the foregoing reasons, the conviction of the Defendant for the crime of indecent behavior with a juvenile and his enhanced sentence, as a second felony offender, as amended, to ten years imprisonment at hard labor without benefit of probation or suspension of sentence are affirmed. The case is remanded to the district court to provide proof in the record of the Defendant’s receipt of appropriate notice under La.C.Cr.P. art. 930.8, of the prescriptive period for post-conviction relief and, under La. R.S. 15:542, of the sex offender registration requirements.

CONVICTION AFFIRMED; ENHANCED SENTENCE AMENDED AND AS AMENDED, AFFIRMED; REMANDED.

      . The Defendant's motion for appeal was premature when it was filed after conviction and sentence, but before imposition of his enhanced habitual offender sentence. That procedural defect was cured by subsequent re-sentencing. State v. Balser, 96-443 (La.App. 5th Cir.l 1/14/96), 694 So.2d 351, 354.

      . Under authority of La. R.S. 46:1844, the victim's initials will be used because she was a juvenile at the time the crime was committed.

      . Defense counsel staled at trial that, according to the Defendant's statement, the photographs were of prostitutes and not of juveniles. She also agreed with the trial judge that the photographs were not evidence of other crimes.


source: Caselaw Access Project

author: hWOODARD, Judge. ^PETERS, J.,

license: Public Domain

text:
    Lucille BOUY v. TECHE ELECTRIC.
    No. 03-355.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 26, 2003.

      J. Louis Gibbens, Gibbens & Stevens, New Iberia, LA, for Plaintiff/Appellant, Lucille Bouy.
    Brenda L. Mistrot, Law Offices of Nan M. Landry, Lafayette, LA, for Defendants/Appellees, Teche Electric Cooperative, Inc. Wausau Insurance Company.
    Court composed of NED E. DOUCET, JR., Chief Judge, BILLIE COLOMBARO WOODARD, and JIMMIE C. PETERS, Judges.
   hWOODARD, Judge.

Mrs. Lucille Bouy appeals the WCJ’s grant of Defendants’ exception of no right of action. The WCJ found that her husband’s prior compromise of his claims against the Defendants for injuries he received in the course and scope of his employment in 1970 extinguished her right of action for death benefits. We reverse.

* * *

Mr. Emile Bouy, Jr., was injured in the course and scope of his employment with Teche Electric Cooperative, Inc. (Teche) in 1970. He lost one of his legs below the knee and suffered other injuries to both legs. In 1973, he settled his claims against Teche and its workers’ compensation insurer, Wausau Insurance Company (Wau-sau), for $9,000.00. Mr. Bouy’s wife alleges that he contracted Hepatitis C in some of the blood transfusions he had while being treated for his injuries and that the Hepatitis C led to his death in July of 2000.

Louisiana Revised Statutes 23:1231 legislates that the employee’s dependent has a right of action upon the employee’s death. As Mr. Bouy’s widow, Mrs. Bouy is presumed to be his dependent under the statute. Thus, she brought a claim for death benefits under the Workers’ Compensation Act. However, the compromise agreement that Mr. Bouy signed, explicitly purports to settle any and all rights of action against Teche and Wausau arising from the subject accident. Accordingly, the WCJ dismissed her claim on an exception of no right of action, finding that she had no right to bring the action because of Mr. Bouy’s earlier compromise of his claims. She was not a party to the compromise, but she signed it as a witness, and the court approved the compromise.

We must decide whether the compromise that Mr. Bouy entered into with Teche and Wausau deprives Mrs. Bouy of a right of action as his dependent.

Settlement/Compromise

The settlement agreement provides in pertinent part:

| ¡>The joint petition of the employee, employer and insurer setting forth the agreement of compromise settlement between the parties having been presented to the court and considered by it, and the court having discussed the said settlement with employee and with his attorney, and after considering all of the issues and disputes presented in this matter, and being of the opinion that there are substantial disputes existing between the parties, and that the compromise is fair and equitable and to the interest of employee and should therefore be approved.
IT IS ORDERED, ADJUDGED AND DECREED that the compromise settlement presented in the above entitled and numbered cause be and the same is hereby approved and found to be equitable.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the insurer pay to the employee, Emile Bouy, Jr., the sum of NINE THOUSAND AND NO/lOO ($9,000.00) DOLLARS in cash, in a lump sum and without discount, which amount will be paid to employee in addition to the medical expenses and compensation benefits previously paid by the insurer as alleged in the joint petition herein, which amount will be received in full, final and complete compromise settlement of all past, present and future claims, demands, compensation, medical expenses, costs, expenses, penalties, attorney’s fees, damages and any and all causes of action and rights of action whatsoever, which the employee may have and to which he may be entitled, known and unknown, anticipated and unanticipated under the Workmen’s Compensation Laws of the State of Louisiana, the tort laws and any and all other laws in any way resulting from and/or to result from the accident which occurred at the time and place shown in the petition filed herein, and any and all other accidents sustained by him in the past, arising out of or occurring in the course of his said employment.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that upon the payment of the amount hereinabove set forth, the employer, Teche Electric Cooperative, Inc. and the insurer, Employers Insurance of Wausau, its and/or their agents, employees, officers, directors, stockholders and representatives, and any and all other persons, firms, corporations, (including, but not in any way limiting the same thereto, the executive officers, directors and stockholders of said corporations), partnerships and parties whomsoever be and they are hereby discharged from any and all liability to employee under Workmen’s Compensation Laws of the State of Louisiana, the tort laws and any and all other laws whatsoever, as a result of the accident referred to in the petition filed herein, and any and all other accidents sustained by him in the past, arising out of or occurring in the course of his said employment.

Mrs. Bouy’s claim for death benefits is not covered in this compromise because we may not presume that a general forfeiture of all claims, no matter how broad, [ ..includes claims arising from the party’s death, rather than the injury. La.R.S. 23:1231 gave Mrs. Bouy a right of action upon Mr. Bouy’s death.

We are mindful that the fifth circuit has held that an employee can compromise the rights his dependent has for death benefits because the dependent’s right is derivative of the employee’s claims. These cases considered the employee’s compromise of his own claims to extinguish his or her dependent’s claim for death benefits, viewing the right to death benefits as a continuation of the injured employee’s right to benefits, rather than as a separate and distinct right, arising in the dependent’s favor. However, subsequent to these cases, regarding a similar cause of action, our supreme court has held that a wrongful death tort claim, under La.Civ.Code art. 2315.2, is not derivative of the tort victim’s claim for his or her injuries but, rather, is a separate and distinct action, arising in the beneficiary’s favor. Thus, we question whether the fifth circuit cases continue to have any validity.

Specifically, even recognizing the possible distinctions between claims for death benefits under the Workers’ Compensation Act and tort claims. for wrongful death under La.Civ.Code art. 2315.2, the supreme court’s guidance in evaluating whether a settlement agreement or compromise includes death claims, is instructive in either instance. While our supreme court has held that a pre-death release of a claim, arising from a person’s death, is not against public policy, it has also found that the parties’ intent to include such a release in the settlement agreement must be unequivocally reflected within the document, leaving no question that the parties contemplated such a claim.

In the instant case, the compromise is extremely broad but, also, extremely general in expressing the terms of the claims that the parties intended to compromise. Allegedly, Mr. Bouy’s Hepatitis C resulted from blood transfusions he received when he was treated for the injury to his legs in 1970. The compromise includes only rights and causes of action, arising from direct injuries to his legs. It does not purport to include injuries, arising out of treatment for the injuries. Furthermore, the parties |4were unaware that he had contracted Hepatitis C when they compromised the claim for his injuries; therefore, they could not have contemplated the inclusion of claims associated with it. Additionally, there is nothing within the compromise agreement’s language which indicates that they contemplated that Mr. Bouy’s injuries would cause his death.

Accordingly, we cannot find that the settlement agreement extinguishes Mrs. Bouy’s right of action to claim death benefits under the Workers’ Compensation Act. Thus, we reverse the WCJ’s grant of Teche’s exception of no right of action and remand for further proceedings.

CONCLUSION

Finding that the settlement agreement does not extinguish Mrs. Bouy’s right of action for death benefits, we reverse and remand the case for further proceedings. We cast the costs of this appeal on Appel-lees, Teche and Wausau.

REVERSED AND REMANDED.

DOUCET, C.J., concurs in the result.

PETERS, J., concurs and assigns written reasons.

^PETERS, J.,

concurring.

I agree with the result reached in Judge Woodard’s primary opinion in this matter, but disagree with the analysis. The sole issue before this court is whether Mrs. Bouy has a right of action, or whether there exists an “interest in [Mrs. Bouy] to institute the suit.” See La.Code Civ.P. art. 927(A)(5). Judge Woodard reaches the conclusion early in her analysis that Mrs. Bouy has a right of action when she states that La.R.S. 23:1231 “legislates that the employee’s dependent has a right of action upon the employee’s death” and that, pursuant to La.R.S. 23:1251(1), Mrs. Bouy is presumed to be Mr. Bouy’s dependent.

I would stop the analysis at that point and reverse the trial court judgment. The employer and its insurer may have other procedural vehicles wherein they can present their arguments concerning the terms of the settlement, but not through an exception of no right of action. In other words, the terms of the settlement may or may not ultimately defeat Mrs. Bouy’s right to recover, but will not defeat her right to bring the action. By statute, she is the party having the interest in instituting the suit.

      . La.R.S. 23:1251(1).

      . See Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741.

        .See, e.g., Condoll v. Johns-Manville Sale Corp., 448 So.2d 169 (La.App. 5 Cir.1984); Price v. Johns-Manville Sales Corp., 450 So.2d 758 (La.App. 5 Cir.1984).

      . Walls v. Am. Optical Corp., 98-455 (La.9/8/99), 740 So.2d 1262.

      . Brown, 630 So.2d 741.


author: _[iLEON A. CANNIZZARO, JR., Judge.

text:
    Scott P. FAUST, Anthony J. Faust, Jr., Husband of/and Dianne Faust and Cassandra Thomas v. GREATER LAKESIDE CORPORATION, d/b/a Lakeside Shopping Center Inc., Causeway Associates, ABC Management Company, Vinson Guard Services, Inc., d/b/a Lakeside Security, Sbarro Inc., and Sbarro America Inc., both d/b/a Sbarro’s Cafe’, et al.
    No. 2003-CA-0808.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 26, 2003.
    Rehearing Denied Jan. 15, 2004.

      Jerome M. Volk, Jr., Michael E. Escudier, D’Aquila, Volk, Mullins & Contreras, Kenner, LA, for Plaintiff/Appellants, Scott P. Faust, Anthony J. Faust, Jr., Husband of/and Dianne Faust and Cassandra Thomas.
    Adriel G. Arceneaux, Graham & Arcen-eaux, LLC, New Orleans, LA, for Defendant/Appellee, Vinson Guard Service, Inc.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge LEON A. CANNIZZARO, JR.).
   _[iLEON A. CANNIZZARO, JR., Judge.

This is an appeal from the trial court’s judgment dismissing the plaintiffs’ case against Vinson Guard Services, Inc. (“Vinson”) and its insurer. The case against these defendants was dismissed on the grounds of abandonment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

This case arises out of a robbery that took place in Lakeside Shopping Center in Metairie, Louisiana at Sbarro’s Café (“Sbarro’s”) in the food court of the shopping center. Cassandra Thomas and Scott Faust were employees of Sbarro’s, who were in the process of closing the restaurant for the evening when the restaurant was robbed by Benjamin Sanders and Merald Sampson, who were also Sbarro’s employees. During the robbery, Mr. Faust and Ms. Thomas were stabbed and severely injured. Mr. Faust, certain of his family members, and Ms. Thomas sued a number of defendants, including Sbarro’s, the shopping center, the perpetrators of the crime, Vinson, and several insurers.

The plaintiffs sought to hold Sbarro’s vicariously liable under the doctrine of re-spondeat superior for the damages they suffered as a result of the criminal acts of the Sbarro’s employees, Mr. Sanders and Ms. Sampson. The plaintiffs also | ^asserted claims against the shopping center, Sbarro’s, and Vinson based on the alleged failure of these parties to provide adequate security.

A number of the defendants filed a motion for summary judgment in this case, and the trial court judge granted the motion. The plaintiffs appealed that ruling, which was upheld by this Court on appeal. This Court held that Sbarro’s was not liable for the intentional torts of its employees who robbed the restaurant and that the shopping center and Sbarro’s did not commit an intentional tort by allegedly failing to provide adequate security measures to prevent the robbery. The plaintiffs filed a writ of certiorari with the Louisiana Supreme Court, requesting a review of this Court’s decision on appeal. The writ was denied. Faust v. Greater Lakeside Corp., 98-2853 (La.App. 4 Cir. 9/12/01), 797 So.2d 748, writ denied, 2001-3149 (La.2/1/02), 808 So.2d 343.

Vinson was not involved in the appeal, and Vinson and its insurer are now the only defendants remaining in this case. All other defendants have either settled the plaintiffs’ claims against them, or they have otherwise been dismissed from the case.

On July 3, 2002, Vinson and its insurer (collectively, the “Vinsons”) filed an Ex-Parte Partial Motion for Abandonment and to Dismiss with Prejudice. The Vinsons alleged in the motion that no step had been taken for a period of three years in the trial court in the prosecution of this case with respect to the Vinsons. The plaintiffs filed a memorandum opposing the motion for abandonment, in which they claimed that they had been actively prosecuting the case on appeal during the prior three years. The trial court, however, granted the motion to dismiss without prejudice on the ground of abandonment. The plaintiffs then filed a motion to set aside the dismissal, and the trial court granted the motion. The case |swas reinstated. The Vinsons, however, filed a motion to reconsider the reinstatement of the case. The trial court granted the motion to reconsider, and the trial court ultimately determined that the plaintiffs’ claims against the Vinsons had been abandoned. The suit against the Vinsons was again dismissed without prejudice. It is from this ruling that the plaintiffs are now appealing.

DISCUSSION

The sole issue on appeal is whether the plaintiffs’ suit against the Vinsons was abandoned. It is undisputed that there was no activity in this ease regarding the Vinsons for three years, but it is also undisputed that during that time, the plaintiffs were actively prosecuting an appeal with respect to other defendants in the case.

Standard of Review

The issue on appeal is a question of law. Therefore, this Court is required to determine whether the trial court applied the law appropriately. In Glass v. Alton Ochsner Medical Foundation, 2002-0412 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, this Court discussed the scope of appellate review of issues of law. This Court stated:

The standard of review of appellate courts in reviewing a question of law is simply whether the court’s interpretative decision is legally correct. Phoenix Assur. Co. v. Shell Oil Co., 611 So.2d 709, 712 (La.App. 4 Cir.1992). Furthermore, if the decision of the district court is based on an erroneous application of law rather that on a valid exercise of discretion, the decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-1072 (La.1983).

2002-0412, p. 3; 832 So.2d at 405. See also Sander v. Brousseau, 2000-0098, p. 4 (La.App. 4 Cir. 10/4/00), 772 So.2d 709, 711, where this Court stated that l/Mppellate review of a question of law involves a determination of whether the lower court’s interpretive decision is legally correct.”

Louisiana Code of Civil Procedure Article 561

La. C.C.P. art. 561 reads in relevant part as follows:

A.(1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The order shall be served on the plaintiff pursuant to Article 1313 or 1314, and the plaintiff shall have thirty days from the date of service to move to set aside the dismissal. However, the trial court may direct that a contradictory hearing be held prior to dismissal.
B.Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

In Clark v. State Farm Mutual Automobile Insurance Co., 2000-3010, p. 6 (La.5/15/01), 785 So.2d 779, 784, the Louisiana Supreme Court discussed three legal requirements that La. C.C.P. art. 561 imposes on plaintiffs. The first requirement is that a plaintiff must take some step toward the prosecution of a lawsuit. The second requirement is that the step must be taken in the proceedings and appear in the record of the suit, unless the action is formal discovery. The third requirement is that the step must be taken within the legislatively prescribed time period from the last step taken by either the plaintiff or the defendant.

| sThere are, however, two exceptions to the abandonment rule set forth in La;. C.C.P. art. 561. The first exception is based on the concept of contra non valen-tem, and it is applicable in situations where the plaintiff is prevented by circumstances beyond the plaintiffs control from prosecuting a case. The second exception is applicable when the defendant waives the right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. 2000-3010, p. 7; 785 So'.2d at 784-85.

In the Clark case, the Supreme Court stated that “[t]he jurisprudence has uniformly held that La. C.Civ. Pro. art. 561 is to be liberally construed in favor of maintaining a plaintiffs suit.” 2000-3010, p. 8; 785 So.2d at 785. Additionally, the Supreme Court has declined to allow suits to be dismissed as abandoned based on technical formalities. 2000-3010, p. 9; 785 So.2d at 786.

In the instant case, the last step taken in connection with the plaintiffs’ claim against the Vinsons was the filing of two pleadings into the record on April 23, 1999. This step was taken by the Vinsons. One pleading was an opposition to the continu-anee of a motion for summary judgment, which the Vinsons had filed against the plaintiffs, and the other pleading was a supplemental memorandum in support of the motion for summary judgment. The Vinsons contend that on April 24, 2002, the plaintiffs’ claims against them were abandoned under La. C.C.P. art. 561, because neither the plaintiffs nor the Vinsons took any further steps in connection with the plaintiffs’ claims against the Vinsons during the three year period that began on April 23,1999.

Prosecution of the Case During Appeal

The plaintiffs argue that the record reflects that the case was actively being prosecuted during the three-year period that began on April 23, 1999, because an | ^appeal was being pursued to reverse the trial court’s decision in favor of some of the defendants. The Vinsons argue that the appeal did not affect the Vinsons and that, therefore, the case was abandoned as to the Vinsons when the plaintiffs did nothing to prosecute their case against the Vinsons in the trial court while the appeal was pending in connection with other defendants.

In James v. Formosa Plastics Corporation of Louisiana, 2001-2056 (La.4/3/02), 813 So.2d 335, the Louisiana Supreme Court considered whether the abandonment period was interrupted with respect to both co-defendants when an appeal was taken with respect to only one of the two defendants. The Supreme Court held that the abandonment period was not interrupted as to the defendant that was not involved in the appeal.

In the James case, the Supreme Court stated:

[I]t is clear that when all the parties were litigating this suit in the trial court prior to that court’s ruling granting West-Paine’s exception of prescription, the abandonment period was interrupted as to all parties when any party took formal action in the trial court.
The question remains, however, whether the abandonment period was interrupted as to Formosa when plaintiff took actions in the appellate courts to pursue her action against West-Paine following the trial court’s dismissal of Wesb-Paine on prescription grounds. We conclude that it was not.

2001-2056, p. 6; 813 So.2d at 339 (emphasis added). Applying this ruling to the instant case, it is clear that the plaintiffs’ activity in pursuing an appeal against some of the defendants did not interrupt the abandonment period applicable to the Vin-sons, who were not involved in the appeal.

Exception to La. C.C.P. art. 561 Based on Contra Non Valentum

The plaintiffs argue that a stay order prevented them from pursuing their claims against the Vinsons in the trial court during the pendency of the appeal 17involving other defendants in this case. Where a party is prohibited from taking a step in the prosecution of a case because of circumstances beyond that party’s control, Louisiana courts have applied the doctrine of contra non valentem to interrupt the running of the abandonment period during the period of incapacity. The contra non valentem exception to the running of the abandonment period, however, contemplates a legal impediment that makes it impossible for a party to take the actions necessary to prevent the running of the abandonment period, and the exception has been given a very narrow scope. Deborah J. Juneau and Gayle M. Monica, Abandonment: An Evolving Concept of Liberative Prescription, 63 La. L.Rev. 341, 366-67 (2003).

In the instant case, a stay order was signed by the trial court on April 6, 1999, in connection with a writ application filed by the plaintiffs. On April 7, 1999, the Louisiana Supreme Court denied the writ application and denied the stay.

The stay order signed on April 6, 1999, is the only stay order in the record before us. While it is not completely clear from the record that the stay denied on April 7, 1999, was the same as the stay to which the April 6, 1999 order referred, we find it inconceivable that the plaintiff in an action can request a stay order, leave it in place for three years without taking any action to try to lift it, and then claim that the stay order prevented the case from being abandoned. Therefore, we find that the plaintiffs’ claim that they were prevented by a stay order from taking steps to prosecute the instant case against the Vinsons is without merit.

We also note that the plaintiffs claim that the Vinsons’ motion for abandonment was filed without the requisite affidavit that there had been no action Ltaken in the instant case for a three-year period. La. C.C.P. art. 561(A)(2). We find this claim to be without merit, because the record contains such an affidavit that was filed by the Vinsons with their motion for abandonment.

CONCLUSION

Based on the foregoing, we find that the plaintiffs’ suit against the Vinsons has been abandoned. Therefore, we affirm the trial court’s decision and her judgment dismissing the plaintiffs’ suit against the Vinsons without prejudice on the grounds of abandonment under La. C.C.P. art. 561.

AFFIRMED.

      . Mr. Sanders and Ms. Sampson pled guilty to their crimes and are now in prison serving a life sentence and a thirty-year sentence, respectively.

      . For a comprehensive discussion of article 561 and the concept of abandonment, see Deborah J. Juneau and Gayle M. Monica, Abandonment: An Evolving Concept ofLibera-tive Prescription, 63 La. L.Rev. 341 (2003).

      . Only two circumstances have been found to comply with the requirements of the contra non valentem exception. The plaintiff must show that he was either serving in the United States military or confined to a mental institution. Id. at 366-67.


author: I PATRICIA RIVET MURRAY, Judge.

text:
    Edward DANIEL, Jr. v. NEW ORLEANS PUBLIC SERVICE INC., et al.
    No. 2002-CA-2427.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 3, 2003.
    Rehearing Denied Jan. 15, 2004.

      Marie Riccio Wisner, New Orleans, LA, for Plaintiff/Appellant.
    Kenneth P. Carter, Joseph K. West, Margaret Jenkins Savoye, Entergy New Orleans, Inc., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY).
   I PATRICIA RIVET MURRAY, Judge.

The plaintiff appeals the trial court’s judgment dismissing his petition for worker’s compensation benefits. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

The original plaintiff, Edward Daniel, Jr., filed the instant lawsuit on April 4, 1987 against his employer, New Orleans Public Service, Inc. [“NOPSI”], seeking benefits for permanent total disability, as well as penalties for NOPSI’s alleged arbitrary and capricious failure to pay said benefits. Plaintiff alleged that he had experienced three injury-causing accidents while working as a master mechanic/welder/pipe fitter: (1) On January 29,1986, Mr. Daniel lost his grip on a boiler tube he was replacing, and it fell and struck him in the head; (2) On May 27, 1986, he snapped his neck and injured his back while pulling on pipe wrenches; and (3) On July 30, 1986, he became dizzy, slipped, and fell, injuring his back. According to the record, Mr. Daniel ceased working completely on August 7,1986.

On September 29,1986, Mr. Daniel filed a complaint with the Office of Workers’ Compensation [“OWC”] reporting his January 29th injury. On October 1 ¡,30, 1986, the OWC issued a recommendation in response to the complaint; the recommendation was that no disability benefits were owed, but that medical expenses should be paid by the employer. Contemporaneous with the first recommendation, the OWC also issued separate recommendations for the May 27th and July 30th injuries. Regarding the May 27th incident, the OWC recommended that only medical expenses be paid; however, with regard to the July 30th injury, the recommendation was that NOPSI should pay medical expenses plus temporary total disability benefits in the amount of $254.00 per week from October 8, 1986 until Mr. Daniel was “physically able to return to gainful employment.” NOPSI never disputed Mr. Daniel’s entitlement to medical expenses, which are not the subject of the instant case; NOPSI declined, however, to pay Mr. Daniel any workers’ compensation disability benefits.

Mr. Daniel never returned to gainful employment. With the workers’ compensation dispute unresolved, he applied for non-occupational long-term disability benefits from NOPSI’s insurance carrier, Connecticut General Life Insurance Company [“CIGNA”]. On December 19, 1986, NOPSI sent Mr. Daniel a letter informing him that by extending his sick leave and combining it with his vacation time, NOPSI had arranged for him to continue receiving his pay through February 10, 1987. On February 3, 1987, NOPSI was notified by CIGNA that Mr. Daniel had been conditionally approved for long-term disability benefits, which he began to receive as of February 11, 1987. The insurance carrier noted that Mr. Daniel would have to submit to an independent medical exam [“IME”] to confirm his continued eligibility for those benefits. Mr. Daniel continued to receive those ^benefits until June 30, 1987, when the benefits were terminated because Mr. Daniel had failed to show up for the IME scheduled in March. On the same date, NOPSI also terminated Mr. Daniel’s employment. The record shows that Mr. Daniel subsequently sought a review of the termination of benefits, but the termination was ultimately reconfirmed because Mr. Daniel failed to show up for a second IME scheduled on July 22,1987.

On April 4, 1987, while he presumably was still receiving long-term disability benefits, Mr. Daniel filed the instant workers’ compensation action seeking permanent total disability benefits as a result of the three aforementioned work-related accidents, as well as penalties for his employer’s alleged arbitrary and capricious failure to pay said benefits. On May 15,1987, NOPSI answered the petition and filed an exception of prematurity asserting that Mr. Daniel had not actually filed a claim with the OWC for either the May 27th accident or the July 30th accident. On May 29, 1987, Mr. Daniel filed a claim form referencing those two accidents. On June 29, 1987, the OWC issued a new recommendation with regard to the July 30th accident, finding that no temporary total disability benefits were owed Mr. Daniel but that his related medical expenses should be paid. NOPSI’s exception of prematurity was apparently never pursued.

On February 3, 1995, during the pen-dency of this litigation, Mr. Daniel died, and his daughter was then substituted as plaintiff. A bench trial was held in the ^district court on June 18-21, 2001. On May 6, 2002, the trial court rendered judgment in favor of NOPSI, dismissing the plaintiffs claim with prejudice. In brief Reasons for Judgment, the trial court found that NOPSI was justified in withholding benefits because: “There was no contemporaneous medical information from a physician indicating that the plaintiffs back or head problems were due to a work related accident. From what [NOPSI] knew at the time, Mr. Daniel was not entitled to benefits.”

On appeal, the plaintiff argues the trial court erred by concluding that the employee, Mr. Daniel, failed to establish the existence of a work related disability. Included in this argument by the plaintiff are specific assertions that the trial court erred by failing to award benefits pursuant to the October 30, 1986 recommendation of the Office of Workers’ Compensation [“OWC”], which the plaintiff contends NOPSI was conclusively presumed to have accepted, and that the trial court erred by declining to apply the “odd lot” doctrine. Finally, the plaintiff contends that the trial court should have assessed statutory penalties against NOPSI for its allegedly arbitrary and capricious refusal to pay benefits to Mr. Daniel.

DISCUSSION OF LAW

Workers’ compensation cases are reviewed according to the “manifest error-— clearly wrong” standard, which precludes the setting aside of the trial court’s findings of fact unless they are clearly wrong in light of the record viewed in its entirety. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706, 710. This standard applies particularly where there are credibility determinations involved. Owens v. Georgia Pacific Corp., 535 So.2d 990, 993 (La.App. 2d Cir.1988). However, the manifest error standard also applies in cases where the evidence before the trier of fact consists primarily or solely of written reports, documentary records and depositions. Alexander v. Pellerin Marble & Granite, supra, at 710.

In order to recover, the claimant in a workers’ compensation case must prove: (1) a [work related] accident; (2) a disability; and (3) a causal connection between the accident and the disability. Marks v. Pride Aviation, Inc., 95-971, p. 2 (La.App. 3 Cir. 1/31/96), 670 So.2d 376, 377. In the instant case, it is undisputed that Mr. Daniel had three work related accidents, which together form the basis for this lawsuit; the issue at trial was whether any of these accidents rendered him totally disabled.

The Louisiana Workers’ Compensation Act [“the Act”] in effect at the time of the claimant’s injuries is controlling. See Menard v. Winn Dixie Louisiana, Inc., 93-1497, p. 10 (La.App. 3 Cir. 6/1/94), 640 So.2d 775, 781. At the time of Mr. Daniel’s accidents in 1986, La. R.S. 23:1221(2)(c) provided, in pertinent part:

... [Compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding | fithe location or availability of any such employment or self-employment.

La.Rev.Stat. Ann. § 23:1221(West 1998) (emphasis added).

Pursuant to this statute, even if a worker seeking permanent total disability is in pain, he must work unless he proves by clear and convincing evidence that he is physically unable to engage in any type of employment whatsoever, including self-employment. Thomas v. Union Tank Co., 94-778, pp. 7-8 (La.App. 3 Cir. 12/7/94), 647 So.2d 581, 586-587. According to the jurisprudence, to prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable; that is, much more probable than its nonexistence. Johnson v. Temple-Inland, 95-948, pp. 6-7 (La.App 3 Cir. 1/31/96), 670 So.2d 388, 392; Hagan v. LSU Medical Center, 28,669, p. 6 (La.App. 2 Cir. 9/27/96), 681 So.2d 971, 975. The clear and convincing standard is a heavier burden of proof than the usual civil preponderance of the evidence standard but less burdensome than the beyond a reasonable doubt standard used in criminal law. Johnson, supra, p. 6, 670 So.2d at 392. ■ To carry the burden of proving disability by clear and convincing evidence, a workers’ compensation claimant must present objective medical evidence. Cormier v. Resthaven Nursing Home, 95,230, p. 5 (La.App. 3 Cir. 1/17/96), 670 So.2d 233, 237.

In addition, with regard to permanent total disability, the Act provides (and has so provided since 1916) that no compensation is to be paid for the claimant’s first week of disability unless the disability continues for at least six weeks from the date of the accident, at which time compensation for the first week becomes |7due. La. Rev.Stat. Ann. § 23:1224 (West 1998). Therefore, Louisiana courts have denied compensation benefits when the claimant has not missed more than seven consecutive days of work. Owens v. Georgia Pacific Corp., supra, 535 So.2d at 994.

In the instant case, the records introduced at trial show clearly that Mr. Daniel did not miss seven consecutive days of work as a result of either of his first two accidents, although he did have an extensive number of half days and time missed during the day to attend doctor’s appointments. Plaintiff alleged that NOPSI manipulated its records by reporting some of Mr. Daniel’s time off as regular sick leave or vacation time, but plaintiff failed to introduce any evidence at trial to support this allegation. Accordingly, the issue on appeal is whether the trial court was clearly wrong in determining that Mr. Daniel did not become disabled after the third accident on July 30,1986, either as a result of that accident or of the three accidents in combination.

DISCUSSION OF THE EVIDENCE

In the instant case, lay witnesses included Mr. Daniel’s daughter and stepson, and various NOPSI management personnel. The bulk of the evidence, however, was medical, with four physicians testifying and the reports, records, and/or depositions of at least nine other physicians introduced at trial.

The physician who saw Mr. Daniels the most frequently during the relevant time period was Dr. Robert Segura, who was qualified at trial as a specialist in industrial medicine. Beginning on January 30, 1986 (the day after Mr. Daniel’s | ¿first accident) and concluding on July 30, 1986 (the afternoon of the third accident), Dr. Segura treated Mr. Daniel approximately fifteen times for head, neck, and/or back pain, but on each occasion he released Mr. Daniel to regular or modified duty; he never found that Mr. Daniel was completely unable to work. Dr. Segura’s initial diagnosis after the January 29th incident was a scalp contusion with resulting posterior traumatic headaches. He ordered an EEG, the result of which was normal. Dr. Segura testified at trial that a post-concussion syndrome generally lasts for ten days to two weeks. He opined that Mr. Daniel’s headaches, which persisted beyond this time, could have resulted from many factors, including his hypertension, inner ear problems related to his prior mastoi-dectomy, and/or sinus problems.

In late February, Dr. Segura referred Mr. Daniel to a neurologist, Dr. Wendy Jamison. Mr. Daniel saw Dr. Jamison on February 27th and March 6th; Dr. Jami-son diagnosed him with post-traumatic headaches and ordered a CT scan to rule out a subdural hematoma, or bleeding in the brain. The CT scan came back within normal limits. Dr. Jamison testified at trial that she did not believe Mr. Daniel had a brain injury, but believed his headaches and dizziness were related to his prior history, particularly the mastiodecto-my of the left ear, which can cause balance problems. She also noted that Mr. Daniel had been involved in several car accidents, that he drank beer heavily and was on numerous medications. Dr. Jamison did not find Mr. Daniel to be disabled.

During approximately the same time period, Mr. Daniel was seen by two ear, nose and throat specialists, Dr. Gerald Vocke and Mr. Daniel’s own personal physician, Dr. Norma Kearby. Both noted that Mr. Daniel still had some inner ear 13problems due to the matiodectomy of the left ear he had undergone several years prior. After ruling out sinus problems and finding no other objective evidence to support Mr. Daniel’s complaints, both doctors suggested Mr. Daniel’s headaches and dizziness could be attributable to a post-concussion syndrome; neither, however, found Mr. Daniel to be disabled.

In May of 1986, NOPSI sent Mr. Daniel to see another neurologist, Dr. Susan Boston. Dr. Boston reported no objective findings to explain Mr. Daniel’s symptoms, and she did not find him to be disabled. At about the same time, Mr. Daniel underwent a psychological evaluation by Dr. Stanley Roskind, which also turned up no evidence of a psychological component to his pain.

Following Mr. Daniel’s second accident on May 27th, in which he allegedly injured his back while installing pipe, he was seen by Dr. Gernon Brown, an orthopedist. Mr. Daniel was complaining of low back pain, discomfort in his neck, and occasional numbness in his lower extremities. He also told Dr. Brown that he had sustained two prior injuries to his back, one in 1969 and one in 1979. Dr. Brown’s examination revealed complete motion of the cervical spine, lumbar spine, upper and lower extremities; no spasm of the neck musculature; normal volume of tone in the musculature of the upper and lower extremities; and normal sensation and circulation. Dr. Brown noted that Mr. Daniel’s records showed he had degenerative arthritis in his lumbar spine. After taking x-rays, Dr. Brown concluded Mr. Daniel had degenerative disc disease, which could cause recurrent back pain, but found no evidence of an acute or recent injury. He did not find Mr. Daniel unable to work.

In July, 1986, Mr. Daniel underwent a psychiatric evaluation by Dr. Greg Khoury. He did not find any pathology that would prevent Mr. Daniel from 1 mperforming his full work responsibilities. Dr. Khoury referred Mr. Daniel to a neurologist, Dr. Walt Truax, who ran a program at JoEllen Smith Hospital. Mr. Daniel apparently completed the program. Dr. Truax’s July 9, 1986 consultation notes reflect his belief that Mr. Daniel’s headaches and low back pain were “real,” but he did not consider Mr. Daniel to be disabled neurologically at that time. Dr. Khoury’s July 24, 1986 report to NOPSI also related that Mr. Daniel was suffering from post-concussive syndrome, which was not disabling.

Mr. Daniel suffered his third accident on July 30th, a slip and fall during which he allegedly re-injured his back. He saw Dr. Segura that afternoon, who did not find any evidence of a new injury but did note that Mr. Daniel was suffering from “preexisting lumbosacral degenerative disc disease.” Dr. Segura again cleared Mr. Daniel to return to regular duty that same day.

In September, 1986, after Mr. Daniel had not worked for about a month, Dr. Felix Rabito, a cardiologist, executed a non-occupational disability form for purposes of Mr. Daniel’s long-term disability claim, which form indicated that Mr. Daniel was totally disabled due to chronic low back pain from lumbar disc syndrome. On September 5, 1986, Mr. Daniel wrote a letter to Mr. Charles Wild of NOPSI stating Mr. Daniel’s belief that his disability was the result of his January 29, 1986 accident, which aggravated a pre-existing back injury he had incurred while working for NOSI in 1979. In his report dated October 9, 1986, Dr. Rabito stated that he had treated Mr. Daniels intermittently since 1976 for hypertension. Dr. Rabito opined in that report that Mr. Daniel had suffered an acute cervical strain and concussion on January 29,1986, and had “subsequently injured what has been a chronic back.” He concluded that Mr. Daniel was | n suffering from lumbar disc syndrome and was “not physically fit to return to his former occupation now or in the near future.”

Approximately one year later, in August, 1987, Mr. Daniels consulted a neurosurgeon of his own choosing, Dr. Edward Connolly, about his back and head pain. Mr. Daniel informed Dr. Connolly that he had suffered a work related accident in January of 1986. Dr. Connolly reviewed Mr. Daniels’ previous medical records and performed an MRI of his back and neck, as well as a complete clinical examination. He opined that Mr. Daniel had degenerative disc disease and that his pain was due to muscle tension headaches or hypertension. He did not state that Mr. Daniel was incapable of working.

At trial, plaintiff presented the testimony of Dr. Charles April, a radiologist who specializes in diagnostic studies of the spine. By reviewing and comparing a CT scan of Mr. Daniel’s spine done in 1984 and the 1987 MRI ordered by Dr. Connolly, Dr. April testified that the degeneration at the L3-4 and L4-5 levels had probably occurred between March of 1984 and September of 1987. He based his opinion on the fact that the 1984 scan showed those discs to be normal and the 1987 test showed evidence of “recent” degeneration. He also testified that the more advanced degeneration at the L5-S1 level had begun before 1984. He stated that all disc degeneration is caused by trauma, which could be a single episode of major trauma or the multiple minor traumas of a lifetime, also referred to as age-related wear and tear. Dr. April admitted that he could not say without a doubt what type of trauma' had caused the disc pathology in Mr. Daniel’s spine. The trial court would not allow Dr. April to give an opinion as to the probable cause, ruling that causation was outside his expertise.

| ^Psychiatrist Dr. Greg Khoury, who had examined Mr. Daniel in July of 1986, also testified at trial for the plaintiff. At trial, he stated that he could not recall having been given any of Mr. Daniel’s prior medical records at the time of his 1986 examination. Prior to trial, Dr. Khoury reviewed not only those records, but also Mr. Daniel’s entire medical history. Those documents included Charity Hospital records showing that approximately two years after his termination by NOPSI, Mr. Daniel was hospitalized for a psychiatric condition described as major depression with a paranoid psychosis. Dr. Khoury opined that Mr. Daniel’s January 29, 1986 head injury, which resulted in a post-traumatic concussion, was also a “causative element” in bringing about his eventual psychiatric illness.

ANALYSIS

The plaintiffs burden was to establish by clear and convincing evidence that Mr. Daniel was physically unable to engage in any type of employment as a result of a work related injury. Reviewing the medical evidence, we note that of numerous physicians whose opinions were considered by the trial court, only one, Dr. Rabito, believed Mr. Daniel to be physically disabled. Dr. Rabito, who is not a back specialist but a cardiologist, opined that Mr. Daniel was disabled due to aggravation of a chronic back condition allegedly caused by the first accident, which involved a piece of tubing that fell and struck Mr. Daniel in the head. Dr. Rabito did not testify at trial, however. From the documentary evidence attributable to him, it is not clear whether he considered Mr. Daniel to be disabled from his occupation as a welder or from any occupation whatsoever. In any case, the trial court could have reasonably believed that the opinions of the other medical experts outweighed that of Dr. Rabito. The only other expert testimony linking the accidents to a disability was Dr. Khoury’s opinion that Mr. Daniel’s eventual | ^-¡psychiatric collapse was triggered by the first accident years earlier; however, as we noted, the Act requires that the claimant be physically disabled to receive permanent total disability benefits.

In view of the evidence, we cannot find that the trial court committed manifest error in holding that the plaintiff failed to prove Mr. Daniel was totally disabled as a result of a work related injury. Where the evidence of experts differs, it is the responsibility of the finder of fact to determine which expert is most credible, and that determination will not be disturbed upon appeal so long as it is reasonable. Angulo v. ATH Painters and Construction, Inc., 98-2363, p. 8 (La.App. 4 Cir.5/5/99), 733 So.2d 1222, 1226. In cases such as the instant one, where all or a majority of the doctors who examined the claimant released him to return to work, the appellate courts have generally affirmed the trial court’s finding of no disability. See, e.g.: Broussard v. Grey Wolf Drilling Co., 562 So.2d 1006 (La.App. 3d Cir.1990); Williams v. Hospital Service, Inc., 95-214 (La.App. 5 Cir. 9/20/95), 663 So.2d 749. Similarly, in the instant record, we do not find clear and convincing evidence that Mr. Daniel was completely disabled as a result of a work related injury.

Nor are we convinced by plaintiffs alternative legal arguments. Plaintiffs contention that NOPSI was conclusively presumed to have accepted the first OWC recommendation regarding the July 30th accident is not persuasive. We agree with NOPSI that the recommendation was defective because of the absence from the record of a formal claim (referencing the July 30th incident) that predated the |14first recommendation. Moreover, NOPSI proved at trial that it did not receive the recommendation and therefore could not have responded to it timely. NOPSI’s version of the facts is further supported by the OWC’s issuance of a second recommendation upon the filing of a formal claim by Mr. Daniel; generally, a second recommendation would be issued only in response to one party’s request for modification.

Additionally, plaintiffs contention that the trial court should have considered the odd lot doctrine has no merit. The legislature expressly abrogated the use of this jurisprudentially created doctrine in the 1983 amendment to the Act, which became effective before Mr. Daniel’s first accident.

Finally, our affirming of the trial court’s finding on the issue of disability moots consideration of the plaintiffs contention that NOPSI should be penalized for arbitrarily and capriciously denying benefits. The record clearly shows that based on the information NOPSI had available to it at the time, there existed a reasonable basis for NOPSI’s rejection of the disability claim.

CONCLUSION

Accordingly, for the reasons stated, the judgment of the trial court is affirmed.

AFFIRMED.

      . This information is taken from the Statement of Uncontested Facts attached to the Motion for Summary Judgment filed by the plaintiff on July 20, 2000. The motion was apparently never pursued.

      . The complaint form, introduced as evidence at trial, does not mention either the May 27th accident or the July 30th accident.

      .Although the formal recommendations recite that the OWC received complaints regarding these accidents at the same time it received the first complaint, no such complaint forms were introduced at trial. Evidence at trial indicated that the OWC learned about the two subsequent accidents through medical reports it received and/or telephone conversations with NOPSI management personnel.

      . Plaintiff's action was dismissed as abandoned in 1992. However, the district court subsequently vacated its dismissal on the ground that Mr. Daniel’s debilitating mental illness had made it impossible for him to act on his own behalf. This court affirmed the reinstatement of the case on March 26, 1993, and the Louisiana Supreme Court denied writs on June 4, 1993.

      . There is no allegation that Mr. Daniel’s death was related to the accidents for which the plaintiff now seeks workers’ compensation.

      . In 1988, the Louisiana Legislature established administrative hearing officer positions under the Director of the OWC and gave the hearing officers original jurisdiction over workers' compensation disputes. See generally 1988 La. Acts No. 938. However, Act 260 of 1989 delayed the implementation dates of the administrative hearing officer provisions and specifically provided that all unresolved claims filed prior to Jan. 1, 1990, were to be resolved by the procedures in effect prior to the 1988/1989 amendments. See 1989 La. Acts No. 260, § 4(c). Accordingly, the instant case was tried by the district court rather than by the workers' compensation court.

      . The record shows that NOPSI paid Mr. Daniel’s medical expenses related to the three accidents through approximately the time of the termination of his employment.

      . This section has been in effect since 1983, when the Act was amended to provide that the burden of proof in permanent total disability cases is by clear and convincing evidence. See 1983 La. Acts (1st Ex.Sess.) No. 1, § 1 (eff. July 1, 1983). A similar amendment of La. R.S. 23:1221(l)(c) in 1989 provided for the same burden of proof in temporary total disability cases. See 1989 La. Acts No. 454, § 6 (eff. Jan. 1, 1990.)

      . This fact was the basis of the OWC's recommendations that no weekly benefits were owed for the January 29th or the May 27th incident.

      . Once in May, 1986, Mr. Daniel was seen by Dr. Paul Naccari, an associate of Dr. Segu-ra, in Dr. Segura’s absence.

      . See La. R.S. 23:1331 (from 1983 La. Acts (1st Ex.Sess.) No. 1), repealed by 1988 La. Acts No. 938 (eff. Jan. 1, 1990).

      . At the relevant time, La. R.S. 23:1310 (from 1983 La. Acts (1st Ex.Sess.) No. 1) required the filing of a claim form setting forth the “time, place, nature, and cause of the injury.”

      . See La.Rev.Stat. Ann. § 23:1221(2)(c) (West 1998), quoted infra; Henton v. Walker & Wells Contractors Inc., 25-821 (La.App. 2 Cir. 5/4/94), 637 So.2d 672.


author: liWOODARD, Judge.

text:
    INSURANCE COMPANY OF the STATE OF PENNSYLVANIA v. Ira J. SCHNEIDER, et al.
    No. CW03-673.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Kirk Lindsay Landry, Aaron James Chaisson, Jr., Keogh, Cox & Wilson, Baton Rouge, LA, for Plaintiff/Applicant: Insurance Company of The State of Pennsylvania.
    William H. Cooper, Jr., Baton Rouge, LA, for Defendants/Respondents: Ira J. Schneider, Bertha Louise Schneider.
    Court composed of BILLIE COLOMBARO WOODARD, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   liWOODARD, Judge.

The Plaintiff, Insurance Company of the State of Pennsylvania (ICSP), requests this court to grant its writ application. It asserts that the trial court should have granted its motion for summary judgment instead of improperly creating a disputed issue of material fact when the Defendants’ admissions prove none exists. We deny Plaintiffs writ.

In December of 1999, Delores Bonton, an employee of Eckerd Corporation, alleges that she fell, while in the course and scope of her employment, injuring herself due to a defective sidewalk on the Place du Marche Shopping Center’s (Shopping Center) premises. The Defendants, Ira J. Schneider and Bertha Louise Schneider, were the owners of the Shopping Center, while Eckerd Corporation (Eckerds), successor to Eckerd Drugs of Louisiana, Inc., merely, leased a portion of it when this alleged incident took place.

Under the lease agreement, the Schneiders agreed to indemnify Eckerds for the amount of any claims against it for personal injuries occurring on the Shopping Center’s premises, except for the portion Eckerds leased. Section 18(F) of the lease provides:

The Landlord agrees to indemnify and save harmless the Tenant from and against any and all claims and demands whether from injury to person or loss of life, or damage to property occurring within the Entire Premises (excluding the leased premises), excepting, however, such claims or demands as may result from any injury or damage caused by acts or omissions of the Tenant.

Mrs. Bonton filed a claim against Eck-erds and its insurer, ICSP, for workers’ compensation benefits. Later, ICSP paid her a total of $27,600.58 in benefits.

On January 2, 2001, ICSP filed a subro-gation claim against the Schneiders to recoup the funds it paid to Mrs. Bonton because it believes her fall occurred on the portion of the Shopping Center’s premises that Eckerds did not lease. Later, ICSP filed a motion for summary judgment. The trial court denied this motion because it could not determine from the lease agreement whether the Schneiders leased the area |2Mrs. Bonton identified as the location of her fall. Specifically, it held that, since ICSP failed to proffer sufficient evidence or testimony, conclusively, proving Mrs. Bonton’s fall occurred on the unleased portion of the Shopping Center’s premises, a material issue of fact remains precluding summary judgment.

On appeal, ICSP asserts that the trial court erred: (1) in creating an issue of material fact where none existed by finding a dispute over the location of Mrs. Bonton’s fall, even though the Schneiders previously admitted that her fall did not take place on the premises Eckerds leased; and (2) in finding the location of Mrs. Bonton’s fall to be a material issue of fact when no party called on the trial court to decide such an issue.

* * *

Standard of Review

Generally, appellate courts review a motion for summary judgment, de novo, under the same criteria that govern a trial court’s consideration of whether summary judgment is appropriate. Therefore, we must conduct a de novo review of the record to determine if the trial court properly denied ICSP’s motion for summary judgment.

Summary Judgment

A summary judgment grant is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Louisiana Code of Civil Procedure Article 966(C) provides:

(1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
13(2) The burden of proof remains with the movant. However, if the mov-ant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

In other words, the burden to show that no genuine issues of material fact exist remains with the movant, but it shifts to the adverse party, only, after the movant has made a prima facie showing that the court should grant its motion. However, when qualifying evidence creates a dispute, concerning an issue of material fact, the court should deny the motion for summary judgment.

The threshold question is whether a genuine issue of material fact remains. After which, we must determine whether reasonable minds could conclude that, based on the facts presented, the movant is entitled to judgment. Simply, in Murphy’s Lease & Welding Service, Inc. v. Bayou Concessions Salvage, Inc., this court explained that a summary judgment is apropos, only, when all the relevant facts are undisputed and the sole remaining issue relates to the legal conclusion drawn from the facts.

Location of the Fall

Essentially, both of ICSP’s assignments of error are based upon its assertion that the trial court improperly denied it summary judgment in light of the Schneiders’ | responses to ICSP’s requests for admission, in which they acknowledge that Mrs. Bonton identified an area of the Shopping Center that Eckerds did not lease as the location of her fall. As such, ICSP contends that the parties admitted this fact and, thus, the trial court could not label it as disputed in order to deny summary judgment.

Specifically, ICSP argues that the Schneiders’ response to its request for admission constitutes their admission to the fact that Mrs. Bonton’s fall took place on the unleased portion of the Shopping Center’s premises. ICSP’s request for admission and the Schneiders’ response follows:

Please admit that the location of where Mrs. Delores Bonton claims to have fallen occurred within the entire premises other than that leased by Eck-erd Corporation as those terms are defined in the lease agreement.
ANSWER:
According to the statement and photographs identified by Mrs. Bonton, the fall that she had took place other than within the boundaries of the property leased by Eckerd[s], however, defendant has no knowledge as to the truth or falsity of her statement as it has not received a statement from Mrs. Bonton nor has it had the opportunity to interview her concerning same nor has any documentation been furnished other than these requests for admissions and photographs which would indicate that such an accident did, in fact, occur.

(Emphasis added.)

This answer was not an admission of fact. It was, only, a qualified response attesting to the fact that they knew of Mrs. Bonton’s contention that her fall occurred on the portion of the property Eck-erds did not lease. Therefore, the Schneiders, by asserting that they had no way of knowing if she told the truth, qualified the remainder of their response.

Louisiana Code of Civil Procedure Article 1467 permits parties to use qualified answers or denials when responding to requests for admission. It provides, in part:

The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as |sa reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny....
... If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served.

(Emphasis added.) Accordingly, the trial court was justified in not placing too much emphasis on the Schneiders’ response when it knew that they had no way of knowing if Mrs. Bonton’s allegation was false. It could have logically presumed that their response was no more than a qualified denial rather than an admission of fact. Thus, we find no merit in ICSP’s assertion that the trial court created a dispute where none existed.

Furthermore, as the movant, ICSP had the burden to prove that no material issues of fact remained in existence. As such, the trial court could have granted its motion for summary judgment, only, after it met this burden.

The trial court pointed out that ICSP was relying on a clause in the lease to prove the location of Mrs. Bonton’s fall. This clause states that the boundaries of the leased premises are outlined in red, yet ICSP failed to provide a copy of the lease containing red markings to the trial court. On this point, the trial court stated:

[W]e need [the parties who signed the lease agreement] to come in and ... show us the old contract with the red outline and tell us what they meant by premises outlined in red.
... [W]e ... have a vague and ambiguous contract and I can’t prejudice those ... [that are] not attorneys and the way I read it, ... I have a question as to [whether] or not Eckerds was actually leasing the portion of [the premises at issue] ... [because] there’s really no portion with the red ink.... I think if I find ambiguities and vagueness in these documents and this contract on which this entire action is based then I must deny your Motion for Summary Judgment.

Apparently, because ICSP did not offer in evidence a copy of the original lease agreement with the relevant portions marked in red, the trial court found that it did not sustain its burden of proving that all genuine issues of material fact were undisputed, precluding summary judgment. We agree.

1 «CONCLUSION

The trial court correctly denied the Plaintiffs motion for summary judgment. Therefore, we decline the writ and assess all costs to the Plaintiff-Applicant.

WRIT DENIED.

      . Potter v. First Fed. Sav. & Loan Ass’n of Scotlandville, 615 So.2d 318 (La.1993).

      . La.Code Civ.P. art. 966(B).

      . Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-281 (La.3/14/97), 690 So.2d 41.

      . Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

      . Murphy's Lease & Welding Serv., Inc. v. Bayou Concessions Salvage, Inc., 00-978, 00-979 (La.App. 3 Cir. 3/8/01), 780 So.2d 1284, writ denied, 01-1005 (La.6/1/01), 793 So.2d 195.

      . Id.

      . Id.