author: 11 JOHN D. SAUNDERS, Judge.

text:
    Gwendolyn CHELETTE v. RIVERWOOD INTERNATIONAL USA, INC.
    No. 02-1347.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.

      Larry B. Minton, Attorney at Law, Alexandria, LA, for Gwendolyn Chelette.
    Lawrence Bernard Frieman, Juge, Na-politano, Leyva, Metairie, LA, for River-wood International USA, Inc.
    Court composed of Chief Judge NED E. DOUCET JR., SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   11 JOHN D. SAUNDERS, Judge.

Claimant was injured while in the course and scope of her duties with employer, Riverwood International USA, Inc. Following her injury, she was treated, released to sedentary work, and subsequently began collecting supplemental earnings benefits. Defendant, Riverwood, terminated those benefits. Claimant subsequently filed a disputed claim for compensation form with the Office of Workers’ Compensation Administration, alleging wrongful termination of benefits. The hearing officer ordered that claimant’s benefits be reinstated and, additionally, ordered Defendant to pay penalties and attorney’s fees. Defendant now appeals that judgment.

FACT AND PROCEDURAL HISTORY

Claimant, Gwendolyn Chelette, was employed as a machine operator with Defendant, Riverwood International USA, Inc. (Riverwood). Her employment with Riv-erwood began in 1983. On February 6, 1995, Ms. Chelette injured her right shoulder while in the course and scope of her employment. At that time, her average weekly wage was $367.00. As a result of the injury, Ms. Chelette underwent two surgeries to her right shoulder.

On May 22, 1996 and May 24, 1996, Ms. Chelette underwent a Functional Capacity Evaluation (FCE) at Louisiana Physical Therapy Center. The results showed that Ms. Chelette was functioning at a sedentary to light level with restrictions on overhead activities and repeated reaching. Based on the results of the FCE, Dr. Lee Leonard, Riverwood’s choice orthopaedic surgeon, stated that claimant had reached maximum medical improvement (MMI) and that she could lift ten to twenty pounds frequently, and twenty five to fifty pounds occasionally. Dr. Chris Rich, Ms. Chelette’s orthopaedic surgeon, also placed claimant at MMI, with physical 12restrictions in accordance with the FCE evaluation.

Ms. Chelette began collecting supplemental earnings benefits (SEB). Having been released to return to work, vocational rehabilitation efforts were undertaken to identify suitable employment within Ms. Chelette’s physical restrictions.

On October 28, 1996, Kenneth Brister performed an initial vocational evaluation of Ms. Chelette on behalf of Riverwood. Mr. Brister provided vocational rehabilitation consultation on behalf of Riverwood until March 24, 1999. He identified approximately nineteen jobs that he believed were suitable for Ms. Chelette. Sixteen of the nineteen jobs were ultimately approved by Dr. Rich. As Mr. Brister located jobs, he notified Mr. Hennigan, Ms. Che-lette’s then counsel of record, of their availability. Mr. Brister also transmitted a letter to Dr. Rich, Ms. Chelette’s primary treating physician, to notify him of job availabilities because it was required that Dr. Rich approve the jobs before Ms. Chelette could perform any of them. Dr. Rich routinely approved the jobs identified. Mr. Brister testified that all of the positions were open at the time he notified the parties of the job availabilities, prior to Dr. Rich’s approval of the jobs. However, Mr. Brister could not show that the jobs remained available after Dr. Rich approved them.

Because Ms. Chelette failed to obtain a position, despite the availability, River-wood reduced claimant’s benefits on February 25, 2000, taking a minimum wage offset of forty hours per week. Her weekly workers’ compensation benefits were reduced from $367.00 per week to $107.33 per week. Ms. Chelette filed a Disputed Claim for Compensation on April 28, 2000, claiming wrongful termination of benefits.

A hearing was held on May 7, 2002. Judgment was rendered in favor of Ms. laChelette on June 27, 2002. In written Reasons for Judgment, the Workers’ Compensation Judge (WCJ) analyzed the facts of the case in accordance with prevailing jurisprudence, and found that Riverwood failed to establish that, at the time of reduction of the benefits, any of the jobs set forth were available to the claimant. Particularly, Riverwood failed to set forth that the jobs were available at the time they were approved by Dr. Rich, claimant’s physician.

The WCJ found that Riverwood failed to establish job availability, thus, it unreasonably reduced Ms. Chelette’s benefits. Because the reduction of Ms. Chelette’s benefits was unreasonable, the WCJ imposed a $2,000.00 penalty on Riverwood and ordered that it pay attorney fees in the amount of $4,500.00. Riverwood now appeals the trial court’s ruling, specifically its interpretation of the jurisprudence applied to this case, its decision to impose a $2,000.00 penalty, and a its failure to address a credit issue.

ISSUES PRESENTED FOR REVIEW

On appeal, the Defendant, Riverwood, presents the following issues for review:

(A) Does the prevailing jurisprudence of Banks v. Industrial Roofing & Sheet Metal Works, Inc., and East-Garrett v. Greyhound Bus Lines conflict, making East-Garrett inapplicable to the criteria established in Banks?
(B) Has Riverwood fulfilled each Banks requirement?
(C) Did the trial court err in assessing Riverwood with a $2,000.00 penalty?
(D) Did the trial court err in failing to assess a credit to Riverwood based on the claimant’s receipt of a tort settlement?

LAW AND ANALYSIS

A. Does the prevailing jurisprudence of Banks v. Industrial Roofing & Sheet Metal Works, Inc., and East-Garrett v. Greyhound Bus Lines conflict, making East-Garrett inapplicable to the criteria established |4in Banks?

Supplemental earnings benefits are awarded when a work-related injury prevents the claimant from earning ninety percent of his pre-injury wages. La.R.S. 23:1221(3). The amount of SEB is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97); 696 So.2d 551; La.R.S. 23:1221(3)(a).

Once the claimant has met this initial burden of proving entitlement to SEB, the burden of proof shifts to the employer if it wishes to prove the employee is earning less than he or she is able to earn. The employer bears the burden of proving that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in the employee’s or the employer’s community or reasonable geographic region. Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989).

In Banks, 696 So.2d at 557, the Louisiana Supreme Court concluded that “an employer may discharge its burden of proving job availability by establishing, at a minimum, [three criteria] by competent evidence.” The employer must show:

(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 be expected 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.

Id.

Later, in 1999, this court decided East-Garrett v. Greyhound Bus Lines, 99-421 (La.App. 3 Cir. 11/3/99); 746 So.2d 715, which co-exists with Banks and clarifies the Banks criteria. In East-Garrett, we stated:

We find that it is implicit in the holding of Banks that the employer must establish that the jobs are still in existence when it is determined that they are within the employee’s capabilities. Otherwise, the employee may be put in a position of having to apply for jobs that she might not be capable of performing, essentially a vain and useless act.

Id. at 721.

In the present case, the claimant was collecting SEB when her benefits were reduced by Riverwood. Therefore, claimant’s entitlement to SEB is not at issue and the burden shifts to Riverwood to show that reduction of benefits was warranted. The WCJ analyzed the facts of the case in accordance with Banks and East-Garrett, and found that Riverwood improperly discontinued claimant’s benefits because they failed to establish that, at the time of the reduction of benefits, any of the jobs set forth at trial were available to the claimant. Particularly, they did not establish the availability of the jobs after claimant’s treating physician, Dr. Rich, had approved them.

On appeal, Riverwood asserts that the trial court erred in applying East-Garrett to the criteria of Banks. Riverwood argues that Banks and East Garrett cannot co-exist because applying East-Garrett to Banks creates tension between the first and third Banks requirement. Because this is a question of the application of legal principles, the standard of review of this court on this issue will be de novo. McAllister v. Coats, 96-1069 (La.App. 1 Cir. 3/27/97); 691 So.2d 305, writ denied, 97-1356 (La.9/5/97); 700 So.2d 513.

Riverwood argues that East-Garrett should not co-exist with Banks because East-Garrett implies that Banks requires subsequent physician approval to define the | (¡contours of an injured worker’s “physical capabilities” as opposed to the physical limitations imposed by the physician on the injured worker when discharged or declared to be at MMI. River-wood asserts that to require physician approval of the job analysis before a job can be considered “available” and within the employee’s “physical capabilities” re-suits in tension between the first and third Banks requirement. Specifically, East-Garrett suggests that “physical capabilities” are not established when assigned, but rather when the physician has reviewed and approved the job analysis. However, according to Riverwood, in the time it takes for the physician to approve the job, the jobs may become “unavailable” to the claimant. Thus, conditioning availability on the physician’s approval makes compliance with the first and third Banks requirement very difficult.

We disagree with Riverwood’s assertion. We find no tension between Banks and East-Garrett. Further, we find that fulfilling both criteria one and three of Banks is not “very difficult”, and does not place an undue burden on the employer. In order to fulfill all three criteria of Banks while adhering to East-Garrett, a vocational rehabilitation expert is simply required to make an appointment with the treating physician for the purpose of having the jobs he has identified either approved or disapproved. At that point, the vocational rehabilitation expert should contact the employer prior to or on the day of his meeting with the physician. If he does these things, the information of job availability will not be stale, and the employee will not be sent to interview for jobs beyond his or her physical capabilities. Performing these 17tasks makes fulfilling both criteria one and three of Banks quite simple.

Both cases work together to protect both the employer and the claimant during the vocational rehabilitation process. Physician approval of a position pri- or to the employee attending an interview is a necessity. If the employee is sent on a job interview for a position not within his or her physical restrictions, the employee may ultimately be subjected to an unfit work environment. An unfit work environment may aggravate the employee’s condition and subject him to further injury, possibly rendering he or she incapable of any type of work. In this instance, the employer will ultimately be liable to claimant for further benefits because, although the employee was originally capable of working in a specific environment, he or she was put into an environment that was unfit which aggravated the claimant’s condition. Clearly, prior physician approval acts as a safeguard to protect both the employer and the employee in the vocational rehabilitation process. Rehabilitation is an important part of the workers’ compensation law and physician oversight is an important part of the claimant’s rehabilitation. The vocational rehabilitation specialist has a duty to perform the necessary steps to ascertain the needed information from the physician within a reasonable time.

Accordingly, for the reasons above, we find that Riverwood’s argument that Banks and Eas1>-Garrett cannot co-exist is without merit. We hold that the principles of both Banks and Easb-Garrett are a necessary safeguard and are applicable to the case sub judice.

B. Has Riverwood fulfilled each Banks requirement?

On appeal, Riverwood asserts that it fulfilled each Banks requirement. Therefore, reduction of claimant’s benefits was justified. The trial court held that the [sBanks criteria were not established by Riverwood, therefore, reduction of claimant’s SEBs was unreasonable. Because this issue addresses factual findings of the trial court, we will use the “manifest error” standard of review. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In the case sub judice, it is undisputed that Kenneth Brister, the vocational rehabilitation expert, identified numerous jobs within Ms. Chelette’s physical capabilities and geographic region. Then, he notified Mr. Hennigan, claimant’s counsel of record. Mr. Brister also immediately transmitted letters to Dr. Rich, claimant’s physician, for his review. Riverwood claims that at the time Mr. Brister notified Dr. Rich of the jobs, they were available, satisfying Banks.

As stated above, in accordance with East-Garrett, implicit in the “availability” requirement of Banks is physician approval. Therefore, the WCJ found that efforts to obtain the required physician approval were not made in this instance. The WCJ held that without physician approval, the jobs sought out by Mr. Brister could not be deemed “available” to the claimant. For the that reason, Riverwood failed to fulfill the third Banks criteria.

We agree with the trial court and hold that because the jobs identified were not approved by Dr. Rich, they were not deemed “available” under the Banks criteria. Accordingly, Riverwood failed to establish the three criteria of Banks needed in order to show that reducing claimant’s SEB was warranted.

C. Did the trial court err in assessing Riverwood with a $2,000.00 penalty?

Within the WCJ’s reasons for judgment, he found that the reduction of claimant’s SEBs by Riverwood was unreasonable and assessed a $2,000.00 penalty against it.

|c|On appeal, Riverwood argues that there is no statutory provision authorizing the assessment of penalties against an employer in the instant case. Riverwood asserts that this court should adhere to La. R.S. 23:1201.2 which states:

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

Riverwood argues that this provision only provides for an award of attorney’s fees and does not authorize the imposition of penalties. Riverwood cites the jurisprudence of both East-Garrett, 99-421, 746 So.2d 715 and Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, as evidence that La.R.S. 23:1201.2 should be applied in this case. Specifically, River-wood points to the language of Williams, 737 So.2d at 45, wherein the supreme court stated:

In the present case, the self-insured employer commenced paying compensation and medical benefits, apparently in good faith, soon after plaintiff notified the employer he had injured his back on the job. Thus benefits were commenced timely as required by La.R.S. 23:1201(B), and the only statute at issue in this case is La.R.S. 23:1201.2.

(Emphasis added by Riverwood).

In reviewing the award for statutory penalties, we recognize that a WCJ is given great discretion in determining that penalties are due. Miller v. Byles Welding & Tractor Co., 96-164 (La.App. 3 Cir. 6/5/96); 676 So.2d 665. After review of the penalties assessed by the trial court, we affirm. We disagree with Riverwood’s argument that penalties are inappropriate in the instant case. This case involves reduction of benefits as a result of improper vocational rehabilitation services. We have held in the past that when the employer’s vocational rehabilitation is improper, and as a result, the employer terminates or reduces benefits, the employer may be | inassessed penalties under La.R.S. 23:1201(F). Leger v. Young Broadcasting, Inc., 98-572 (La.App. 3 Cir. 10/28/98); 720 So.2d 817, writ denied, 98-2953 (La.2/5/99); 738 So.2d 1.

In Leger, the defendant placed the claimant on SEB, and then began vocational rehabilitation services. The employer subsequently terminated the claimant’s benefits on the basis on three labor market surveys that identified several jobs that allegedly paid in excess of 90% of Mr. Leger’s pre-injury average weekly wage. We found that the surveys prepared by the vocational rehabilitation specialist were unreliable and did not adequately show that any jobs existed that paid in excess of 90% of Mr. Leger’s pre injury wage. Accordingly, we found that the employer’s vocational rehabilitation amounted to no more than “sham rehabilitation.” This occurs when the employer creates the practice of using vocational rehabilitation consultants to provide “sham rehabilitation” while simultaneously using the rehabilitation specialist to defeat the injured party’s claim.

Likewise, we find that “sham rehabilitation” occurred in the instant case. After Ms. Chelette was injured during the course and scope of her employment, it was Riverwood’s responsibility to provide her with adequate vocational rehabilitation. Riverwood failed to do so. Riverwood initially provided Ms. Chelette with benefits that she depended on, then significantly reduced her benefits, claiming the availability of a job she could perform, a job that Riverwood did not show was actually available to her.

Mr. Brister, the vocational rehabilitation specialist employed on behalf of River-wood, knew that Ms. Chelette’s physician Dr. Rich needed to approve a job before Ms. Chelette could perform it. Knowing that, Mr. Brister chose only to send a letter of correspondence to Dr. Rich identifying positions allegedly “available” to Ms. Chelette. He did not personally contact Dr. Rich nor display any sense of urgency in obtaining Dr. Rich’s approval. Instead, he let the information pertaining to the jobs he had identified become stale. This conveniently allowed Riverwood a basis to simultaneously defeat Ms. Chelette’s claim for SEB by alleging that the rehabilitation specialist had identified numerous positions available to her.

Ms. Chelette had absolutely no control over the time frame that jobs were approved by Dr. Rich, however, we find that Riverwood’s vocational rehabilitation specialist did, and he chose not to personally contact Dr. Rich at any time. Mr. Brister could not even be bothered to place a simple telephone call to Dr. Rich. Yet, Ms. Chelette was punished by Riverwood for Mr. Brister’s inadequacies in performing vocational rehabilitation. For these reasons, we find Riverwood was arbitrary and capricious in reducing Ms. Chelette’s benefits, and hold that penalties are warranted. Therefore, we affirm the judgment of the trial court assessing $2,000.00 in penalties to Riverwood.

D. Did the trial court err in failing to assess a credit to Riverwood based on the claimant’s receipt of a tort settlement?

Finally, Riverwood argues that the trial court erred in failing to hold that it is entitled to a credit based on Chelette’s receipt of settlement fund stemming from a subsequent motor vehicle accident that aggravated her work related injury. Nearly 11Pjtwo years after Ms. Chelette’s on the job injury, she was involved in a motor vehicle accident. At trial, Riverwood asserted that, because Mr. Chelette’s condition was aggravated by the automobile accident, it is due an offset of the funds she received in the settlement of the claim. In its argument, Riverwood refers to La.R.S. 23:1101(0 and 1102. These statutes provide that if an employee compromises a claim with a third person for injury which is compensable under Louisiana Workers’ Compensation Act, the employer will only be liable for compensation in excess of the amount recovered against that third person if written approval of the compromises is obtained from the employer at the time of or prior to the compromise. See La. R.S. 23:1101(0 and 1102.

At trial Riverwood presented a letter written by Mr. Hennigan, Ms. Chelette’s attorney for her automobile accident, to Dr. Ratnam Nagalla on November 16, 1998. This letter stated that, prior to the automobile accident, Ms. Chelette had limited use of her right arm, but the accident had caused pain in the top of her shoulder and in the joint. According to Riverwood, this letter serves as evidence that Ms. Chelette’s condition was aggravated by the accident, and that they are due an offset.

We disagree with Riverwood. We have dealt with this issue before in a case factually similar to the one at issue. In Townsend v. Pittsburgh Plate Glass Industries, Inc., 535 So.2d 407 (La.App. 3 Cir.), writ denied, 536 So.2d 1200 (La.1988), the claimant injured his back in the course and scope of his employment in September 1982. Later, in December 1982, claimant was injured in a automobile accident that aggravated his preexisting condition, but did not dramatically change his physical condition. The employer asserted that it was due an offset in the amount of $12,000.00 for settlement funds collected pursuant to the automobile accident. In 113that case, we noted:

[La.R.S. 23:1101 and 1102] contemplate the situation where a third person causes injury and such injury is compen-sable under the Louisiana Worker’s Compensation Act. Such is not the case here. In the instant situation, plaintiff was injured in a work related accident and began receiving worker’s compensation benefits. Plaintiff was subsequently involved in an automobile accident which was not job related. The work related accident, not the automobile accident, was the cause of plaintiffs disabling injury. Thus, the aforecited statutes are inapplicable since any injuries that plaintiff may have received in the automobile accident are not compensa-ble under the Louisiana Worker’s Compensation Act as required by the above statutes.

Id. at 412

Likewise, in the instant case, Ms. Chelette’s injury was the result of work a related accident. Although a subsequent automobile accident may have aggravated Ms. Chelette’s pain, there has been no evidence to suggest that it limited her ability to return to work. As in Townsend, the work-related injury, not the automobile accident, caused the claimant to suffer a disabling injury. Further, as in Townsend, La. R.S. 23:1101 and 1102 are inapplicable to the case sub judice because the injuries Ms. Chelette received in the automobile accident are not compensable injuries under the Louisiana Workers’ Compensation Act.

Although Riverwood cites jurisprudence suggesting that it is due an offset, we find that because the facts of Townsend are more factually similar to the case sub judi-ce than any jurisprudence cited by River-wood in its appeal brief, Townsend!s holding should be applied. For these reasons, we find that the trial court did not err when it failed to grant Riverwood an offset against benefits paid in the amount of Ms. Chelette’s tort claim settlement.

DECREE

For the reasons stated herein, we affirm the judgment of the trial court holding | uthat claimant is entitled to supplemental earnings benefits at zero wage earning capacity from February 25, 2000, through this date and forward, with legal interest on back due benefits. We also affirm the judgment of the trial court assessing penalties in the amount of $2,000.00 and attorney’s fees in the amount of $4,500.00 to claimant as a result of Riverwood’s unreasonable reduction in claimant’s workers’ compensation benefits. Accordingly, costs of this appeal are assessed to Defendant, Riverwood.

AFFIRMED.

      . The first criteria of Banks requires that employer show, “the existence of a suitable job within claimant's physical capabilities and within claimant's or the employer’s community or reasonable geographic region.” Banks, 96-2840 p. 10; 696 So.2d at 557

      . The third criteria of Banlcs requires that the employer show, “an actual position available for that particular job at the time that the claimant received notification of the job’s existence.” Id.

      . La.R.S. 23:1201(F) states in pertinent part: Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim.


source: Caselaw Access Project

author: I .PETERS, J.

license: Public Domain

text:
    Easter A. BRADLEY v. ConAGRA POULTRY COMPANY.
    No. 03-0023.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.

      George A. Flournoy, Flournoy & Dog-gett, Alexandria, LA, for Plaintiff/Appel-lee, Easter A. Bradley.
    John B. Saye Hayes, Harkey, Smith & Cascio, L.L.P., Monroe, LA, for Defendant/Appellant, ConAgra Poultry Company.
    Court composed of Chief Judge NED E. DOUCET, JR., JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   I .PETERS, J.

In this workers’ compensation case, ConAgra Poultry Company appeals a judgment in favor of its former employee, Easter Bradley. For the following reasons, we affirm the judgment of the workers’ compensation judge (WCJ) in all respects.

DISCUSSION OF THE RECORD

Easter Bradley began employment with ConAgra Poultry Company (ConAgra) in October of 1997. While employed with ConAgra, Ms. Bradley’s job duties included cutting and bagging poultry. Ms. Bradley testified that she began noticing problems with her hands over a year after she began employment and that she notified the ConAgra nurse, in accordance with company policy. According to Ms. Bradley, while using scissors in “breast deboning,” her left hand “got stuck” and went numb. She continued to have problems with her left hand, and ultimately her right hand as well, and continued to bring the matter to the attention of the company nurse. The nursing treatment consisted of the administration of hot pads and ibuprofen as well as the temporary transfer of Ms. Bradley to light duty.

Finally, on December 11, 2000, ConAgra filed an injury report. Additionally, ConA-gra sent Ms. Bradley to Dr. James D. Knecht, apparently a Natchitoches, Louisiana physician, who initially examined Ms. Bradley on December 14, 2000. Dr. Knecht diagnosed her as having bilateral shoulder rotator cuff tendinitis, elbow epi-condybtis, and bilateral wrist tendinitis. He prescribed medication and splints and restricted Ms. Bradley’s work activities. Thereafter, Dr. Knecht referred Ms. Bradley for an orthopedic evaluation.

On January 9, 2001, Ms. Bradley saw Dr. Geoffrey James Collins, a Natchitoch-es, Louisiana orthopedist. An EMG nerve conduction study performed at the request of Dr. Collins indicated that Ms. Bradley had severe bilateral carpal |2tunnel syndrome, worse on the left than the right, Dr. Collins recommended carpal tunnel release surgery, but only on Ms. Bradley’s left side.

In the meantime, Ms. Bradley returned to work with ConAgra, performing light-duty scanning. On February 5, 2001, Con-Agra laid Ms. Bradley off of her job, telling her that “they didn’t need [her] anymore.”

On March 14, 2001, Dr. Collins performed left side carpal tunnel release surgery on Ms. Bradley. A week later, Con-Agra instituted weekly indemnity benefits. On April 6, 2001, Dr. Collins released Ms. Bradley to work duties that did not involve the use of the left arm, and on April 27, 2001, he cleared her for light-duty work.

Ms. Bradley continued seeing Dr. Collins, who questioned whether she was “responding appropriately” because “she seemed to be progressing very slowly with complaints of continued pain and numbness that were over and above what we normally expect from this surgery.” Because of these continuing complaints, Dr. Collins recommended Ms. Bradley undergo a second EMG nerve conduction study. This test indicated that Ms. Bradley had bilateral median nerve neuropathies at the wrists, with the left wrist being considered moderate with focal demyelination and minimal axonal involvement and the right wrist being considered very mild with no evidence of axonal involvement. Although the EMG results were somewhat abnormal, Dr. Collins was of the opinion that the results were normal following a carpal tunnel release. As of July 17, 2001, he released her to return to work with no restrictions. In doing so, he expressed his concern that Ms. Bradley’s continued complaints could be connected with secondary gain. After Dr. Collins responded to an August 9, 2001 inquiry from ConAgra that Ms. Bradley had reached maximum ^medical improvement and that she did not have any permanent impairment as a result of her injury, ConAgra terminated Ms. Bradley’s indemnity benefits effective August 13, 2001.

Subsequently, Ms. Bradley’s attorney referred her to Dr. Baer I. Rambach, a Shreveport, Louisiana orthopedist, who first saw her on September 13, 2001. Dr. Rambach reported that his examination revealed localized tenderness and diminished sensation in the left hand as well as diminished sensation in the right hand.

Dr. Rambach next saw Ms. Bradley on December 3, 2001, at which time he reported a positive Phalen test and percussion test on the left hand. Based on his findings, Dr. Rambach restricted Ms. Bradley from work activities and referred her to Dr. Sigurd C. Sandzen, Jr., a Shreveport, Louisiana orthopedic surgeon who specializes in hand surgery.

Dr. Sandzen saw Ms. Bradley on December 12, 2001. He also reported positive findings on examination, and he requested an additional EMG nerve conduction study. ConAgra did not authorize this testing, nor did it pay for treatment by Dr. Rambach or Dr. Sandzen. Notwithstanding ConAgra’s refusal to pay for the medical test, on August 8, 2002, on referral from Dr. Sandzen, Ms. Bradley underwent the EMG nerve conduction study. This study revealed moderate residual left median neuropathy at the carpal tunnel and mñd carpal tunnel syndrome on the right.

Ms. Bradley filed the instant claim for indemnity and medical benefits, mileage reimbursement, penalties and attorney fees. At the August 30, 2002 trial, Ms. Bradley testified that she was still experiencing pain in her left hand, wrist, and forearm and that the fingers on her right hand hurt and her hand was numb. She also testified that|4she was attending vocational technical. school, for which she received $20.00 as a nontaxable stipend to offset the cost of transportation and supplies. Additionally, she testified that she received income for babysitting in July and August of 2002.

Upon the completion of evidence, the WCJ rendered judgment in favor of Ms. Bradley, awarding, in part, the following: (1) supplemental earnings benefits beginning August 14, 2001, (2) attorney fees in the amount of $7,000.00 for the discontinuance of indemnity benefits, (3) penalties of $250.00 and attorney fees of $750.00 for failure to provide a medical report, (4) penalties of $2,000.00 each for the failure to authorize treatment with Dr. Rambach and Dr. Sandzen and the failure to authorize the EMG nerve conduction study requested by Dr. Sandzen, and (5) attorney fees of $10,000.00 for the failure to authorize the treatment and testing. ConAgra timely perfected this appeal.

OPINION

On appeal, ConAgra contends that the WCJ erred in determining that Ms. Bradley proved she suffered an occupational disease. Further, ConAgra contends that, in any event, the WCJ erred in finding that Ms. Bradley proved that she is disabled as a result of any such disease.

Louisiana Revised Statute 23:1031.1 provides in part:

A. Every employee who is disabled because of the contraction of an occupational disease as herein defined ... shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome.

Ms. Bradley’s employment with ConAgra required repetitive activity to | ¡¡perform her assigned tasks. Over three years after she began employment with ConAgra, she was diagnosed as having bilateral carpal tunnel syndrome. Regarding causation, Dr. Collins testified that “if she was in a repetitive activity job or fine motor task with her hands over a long period of time, that is the normal expected etiology of carpal tunnel syndrome.” He explained: “Carpal tunnel syndrome, by the literature, is attributed [sic] to by continued repetitive motions or use, vibration, positions of work, and a number of other things.” Ms. Bradley testified that her job duties at ConAgra included deboning poultry with scissors, which activity she was performing when she first began experiencing problems with her hands over a year after she began employment with ConAgra. ConAgra has produced no contradictory evidence. Accordingly, we do not find manifest error in the WCJ’s determination that Ms. Bradley contracted carpal tunnel syndrome as a result of her employment with ConAgra.

In any event, ConAgra also contends that the WCJ erred in determining that Ms. Bradley proved she is disabled as a result of her carpal tunnel syndrome. It points to the fact that, on July 17, 2001, Dr. Collins released Ms. Bradley to return to work with no restrictions and that Dr. Collins indicated that Ms. Bradley had reached maximum medical improvement and did not have any permanent impairment as a result of her injury. Further, ConAgra points out that Ms. Bradley was capable of performing the light-duty scanning job at its facility because she did so until ConAgra laid her off on February 5, 2001, and was employed as of the time of trial.

In awarding supplemental earnings benefits beginning August 14, 2001, the WCJ relied on the medical opinions of Dr. Ram-bach and Dr. Sandzen, Ms. Bradley’s testimony, and the EMG studies. Specifically, Dr. Rambach was of the | fiopinion that Ms. Bradley could not do repetitive-type work for ConAgra, and Dr. Sandzen testified that Ms. Bradley “should avoid any activity which requires excessive repetitive upper extremity use of the wrist or the hands, and avoid any heavy lifting, pushing and such.” It was his professional opinion that patients recovering from carpal tunnel syndrome should be prevented from excessive repetitive and heavy use of the hand “or they will get a repeat problem, which is even worse than the primary problem.” Ms. Bradley testified that, at the time of trial, she was still experiencing pain in her left hand, wrist, and forearm and that the fingers on her right hand hurt and her hand was numb. Moreover, Ms. Bradley’s latest EMG results indicated moderate residual left median neuropathy at the carpal tunnel and mild right carpal tunnel syndrome. Thus, a reasonable factual basis exists to support the WCJ’s finding that Ms. Bradley cannot perform her pre-injury job and that she proved she is unable to earn at least ninety percent of her pre-injury wages.

Moreover, reviewing the record in its entirety, we find that the WCJ’s finding in that regard is not clearly wrong. Specifically, “[t]he rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound.” Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990). The WCJ was presented with conflicting medical opinions on the issue of Ms. Bradley’s ability to work and chose to credit the opinions of Dr. Rambach and Dr. Sandzen, whose most recent examinations produced positive findings. Additionally, while Dr. Collins released Ms. Bradley to return to work with no restrictions, his testimony appears somewhat equivocal in that he did indicate in a vocational rehabilitation meeting that Ms. Bradley should probably not direct, herself into something that would be high risk activity for carpal tunnel |7syndrome. Further, “[disability can be proven by medical and lay testimony” and the WCJ “must weigh all the evidence, medical and lay, in order to determine if the claimant has met his burden of proof.” Bolton v. Grant Parish Sch. Bd., 98-1430, p. 4 (La.3/2/99), 730 So.2d 882, 885. Ms. Bradley’s testimony and the EMG corroborate that she continues to have problems.

We also reject ConAgra’s argument that Ms. Bradley is not disabled because she was able to perform the scanning job. As we appreciate ConAgra’s position, because Ms. Bradley no longer has the scanning job due to the lay off rather than due to her inability to perform that job, she is not entitled to supplemental earnings benefits. However, “[i]t is irrelevant whether plaintiff is physically able to perform his former sedentary job that is no longer available.” Allen v. City of Shreveport, 618 So.2d 386, 388 (La.1993). Rather, “[t]he relevant question is whether plaintiff is partially disabled and whether he is unable to earn ninety percent of the wages he was earning prior to the injury.” Id. at 388-89. As set forth above, we find no manifest error in the WCJ’s finding that Ms. Bradley has a disability and is unable to earn ninety percent of her pre-injury wages. Further, the fact that Ms. Bradley earned money babysitting in the months of July and August of 2002 does not automatically disqualify her from receiving supplemental earnings benefits because the income she earned is not equal to ninety percent or more of her pre-injury wages. ConAgra’s remedy in that regard consists in recalculation of the amount of supplemental earnings benefits owed, not in the termination of benefits. Thus, we affirm the WCJ’s award of supplemental earnings benefits.

Finally, ConAgra contests the award of penalties and attorney fees. Pursuant to La.R.S. 23:1201.2, the WCJ awarded attorney fees of $7,000.00 for ConAgra’s | ^discontinuance of indemnity benefits. Additionally, pursuant to La.R.S. 23:1201(F), the WCJ awarded penalties of $6,000.00 and attorney fees of $10,000.00 for ConAgra’s refusal to authorize medical treatment with Dr. Rambach and Dr. Sandzen and its failure to authorize an EMG nerve conduction study requested by Dr. Sandzen. Also, pursuant to La.R.S. 23:1125, the WCJ awarded attorney fees of $750.00 for ConAgra’s failure to furnish a medical report.

Louisiana Revised Statute 23:1201.2 provides for the payment of reasonable attorney fees for the discontinuation of the payment of indemnity benefits “when such discontinuance is found to be arbitrary, capricious, or without probable cause.” Louisiana Revised Statute 23:1201(F)(2) provides for the payment of penalties and reasonable attorney fees for nonpayment of benefits unless “the claim is reasonably controverted or ... such nonpayment results from conditions over which the employer or insurer had no control.” For purposes of La.R.S. 23:1201.2, “[arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation.” Brown v. Texas-LA Cartage, Inc., 98-1063, pp. 8-9 (La.12/1/98), 721 So.2d 885, 890. “[T]o determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Id.

ConAgra asserts that it reasonably relied on Dr. Collins’ medical reports in 19discontinuing payment of indemnity benefits and in refusing to authorize further medical treatment and diagnostic testing. The WCJ disagreed. In its oral reasons for judgment, the WCJ noted that, in releasing Ms. Bradley, Dr. Collins failed to address the effects of Ms. Bradley’s right hand disability, despite his own findings in that regard. Additionally, the WCJ noted that when Dr. Collins conferred with the vocational rehabilitation specialist, he explained that Ms. Bradley should not do work of a repetitive nature. Despite this obvious contradiction, ConAgra blindly relied on Dr. Collins’ response to the August 9, 2001 inquiry. The WCJ observed that “[tjhere was no further investigation done by ConAgra as to why he made a full discharge to regular duty when he had been limiting her activities with carpal tunnel syndrome to no repetitive activities.” The WCJ determined that, given the contradictory opinions received from Dr. Collins, ConAgra had a continuing duty to investigate when it received the subsequent medical information and was not entitled to “blindly rely on the previous reports.” The WCJ found that “[ConA-gra] must conduct further investigation. ConAgra didn’t do any of those things. They were done with the lady. They didn’t authorize any other testing, any other doctors, pay any more benefits, provide any further vocational rehabilitation.” Thus, the WCJ concluded that “the termination of benefits, indemnity, and medical and vocational rehabilitation was arbitrary and capricious.” We find no manifest error in this factual finding.

Further, we reject ConAgra’s contention that the amount of the attorney fee awards is excessive. We find no abuse of discretion in the WCJ’s awards of attorney fees.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the WCJ in all respects. |inWe assess all costs of this appeal to ConAgra Poultry Company.

AFFIRMED.


author: LAMY, Judge.

text:
    Jerry FLACK and Becky Flack v. Tammy DICKSON.
    No. 03-5.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.
    William Preston Crews, Jr., Watson, Murchison, Etc., Natchitoches, LA, for Plaintiffs/Appellees, Jerry Flack, Becky Flack.
    Nathaniel Williams, Williams Family Law Firm, Natchitoches, LA, for Defendant/Appellant, Tammy Dickson.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   LAMY, Judge.

In this child visitation matter, the mother appeals an award of visitation privileges to the paternal grandparents. For the following reasons, we reverse the judgment of the trial court and render judgment dismissing the demands of the paternal grandparents.

Factual and Procedural Background

Tammy Dickson was married to' Jerry Flack, Jr. on March 17, 1989. One child was born of this marriage. On December 6, 1991, Mrs. Dickson obtained a judgment of divorce and was granted sole custody of the minor child, subject to reasonable and supervised visitation privileges of the child’s father. Approximately a year later, Mrs. Dickson married her current husband, Jimmy Dickson.

Approximately ten years later, the paternal grandparents of the minor child, Jerry Flack, Sr. and Becky Flack, sought to increase their visitation. However, Mrs. Dickson denied the increase because she believed that it was not in her daughter’s best interest. Consequently, the Flacks filed a petition seeking an award of increased visitation privileges on January 8, 2002. Notably, this petition does not allege that extraordinary circumstances exist. Rather, the petition simply states “that Jerry Flack is in ill health and wishes to spend some time with his grand-baby, as does the grandmother.” On January 31, 2002, the trial court held a contradictory hearing on the paternal grandparents’ petition. At this hearing, Mrs. Flack testified that she and her husband would like to have their grandchild once a month for an overnight visit. Mrs. Flack stated that she and her husband have only been allowed to visit their grandchild once or twice a year at the Dickson residence since the 1991 divorce. In addition, she stated that Mrs. Dickson should not worry about the child’s father seeing the child without supervision because he no longer lives at the Flacks’ home. | ¡Also, Mrs. Flack testified that she believed that Mrs. Dickson is a fit parent and is raising the child in a stable environment.

Mrs. Dickson testified that she divorced Jerry Flack, Jr. because he physically abused their daughter. Further, as a result of this abuse, she stated that she was awarded sole custody of her child. Mrs. Dickson additionally stated that she objected to the paternal grandparents taking her daughter for overnight visits because she feared that the child’s father would see her child without supervision. Moreover, she stated that, due to an impeded mental development, her daughter does not understand that the Flacks are her paternal grandparents. As a result, Mrs. Dickson stated that she believed it would be best to only allow the Flacks to visit the child at the Dickson residence under her supervision.

The trial court awarded Mr. and Mrs. Flack an increase in visitation privileges and gave, in part, the following oral reasons for ruling:

THE COURT: Counsel, these are one of these [sic] difficult cases that I have to handle sometimes and I never like to point a finger at any family member. Uh, Ms. Dickson was married to Jerry Flack, Jr. Uh, [a child] was born in September of 1990. They divorced within a year thereafter and married Mr. Dickson, who’s a fíne man, who works out here at Williamette and has provided and they’ve been married about ten years. I’ve known Mr. and Mrs. Flack, the grandparents of [the child], uh, for 20 or 25 years and they’re also fine people. And I don’t know and we didn’t get into airing a bunch of dirty laundry about what the breakdown in this ... this family cohesion could have been or should have been or whatever. Simply put is that uh, as a matter of fact Mr. and Mrs. Flack, Jerry Flack, Sr. and Mrs. Becky Flack had not much visitation with their granddaughter ... who is now 11. Uh, she has some special ed needs; maybe a mental or emotional um, age of about 8. Uh, |sapparently the natural father Jerry Flack, Jr. has had very little to do and has not been involved in his daughter’s life for a number of years. Uh, we don’t need to get into the talking about whether or not he’s paying child support. In fact is he paying child support, Mrs. Dickson?
MRS. DICKSON: No sir.
THE COURT: Okay. Uh, the law provides especially when a parent at least in Louisiana you have a natural parent that is not providing any ... any support, any contact of that type of thing that doesn’t mean that the grandparents, the natural grandparents don’t have a right to see that child and for whatever reason that has not occurred. And I understand fully both sides here and I haven’t seen y’all really point fingers at each other. It just hasn’t occurred. .And I understand, Mrs. Dickson, your concerned about the fact that your 11 year old daughter doesn’t know uh Mr. Jerry and Mrs. Becky Flack. You don’t just dive into this type of situation but I also believe with all my heart that even if it was their fault that they haven’t attempted or pursued or vigorously pursued contact with their granddaughter up to this point, that things cannot change along those avenues. And here we are in court today. You know, I’m gonna order some visitation. Uh, it may not be exactly what y’all want but this is what I’m gonna do.

On August 28, 2002, the trial court signed a judgment ordering the visitation.

Mrs. Dickson appealed, alleging the following assignments of error:

1. THE DISTRICT COURT ERRED IN NOT MAKING A FINDING AS TO THE FITNESS OF TAMMY DICKSON AS A CUSTODIAL PARENT[;]
2. THE DISTRICT COURT ERRED IN NOT FINDING EXTRAORDINARY CIRCUMSTANCES AND IN NOT CONSIDERING THE FACTORS FOUND IN ARTICLE 136 OF THE LOUISIANA CIVIL CODE TO DETERMINE IF NON-PARENTAL VISITATION WAS IN [THE CHILD’S] BEST INTEREST[; and,]
3. IN THE ALTERNATIVE, THE DISTRICT COULD NOT HAVE FOUND THAT IT WAS IN THE BEST INTEREST OF REBECCA TO HAVE VISITATION WITH HER BIOLOGICAL GRANDPARENTS UNDER LA R.S. 9:344[.]

14Discussion

In her brief, Mrs. Dickson argues that the visitation privileges awarded to the paternal grandparents are not in the minor child’s best interest. She also argues that her decision regarding her daughter should be presumed to be in her child’s best interest. As such, Mrs. Dickson asserts that, without a finding of unfitness, the court cannot interfere in her decision regarding non-parental visitation.

The rights of non-parents to seek visitation with children of divorced parents are governed, in part, by La.Civ.Code art. 136. Lingo v. Kelsay, 94-1038 (La.App. 3 Cir. 3/1/95), 651 So.2d 499; see also La.R.S. 9:344. La.Civ.Code art. 136 provides, in pertinent part:

B. Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or stepgrandpar-ent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. In determining the best interest of the child, the court shall consider:
(1) The length and quality of the prior relationship between the child and the relative.
(2) Whether the child is in need of guidance, enlightenment, or tutelage which can be best provided by the relative.
(3) The preference of the child if he is determined to be of sufficient maturity to express a preference.
(4) The willingness of the relative to encourage a close relationship between the child and his parent or parents.
(5) The mental and physical health of the child and the relative.
C. In the event of a conflict between this Article and R.S. 9:344 or 345, the provisions of the statute shall supersede those of this Article.

(Emphasis added.)

We also note that “[a]ll issues concerning non-parental visitation requests must now be considered in light of the United States Supreme Court decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).” State ex rel. Satchfield v. Guillot, 02-0150, p. 9 (La.App. 3 Cir. 6/26/02), 820 So.2d 1255, 1262. In Troxel, the United States Supreme Court held that the application of a Washington statute, which allowed any person to petition for visitation rights, awarding grandparents visitation rights violated a mother’s due process right to make decisions concerning the care, custody, and control of her children. Troxel, 530 U.S. 57, 120 S.Ct. 2054.

In Satchfield, a panel of this court considered a case where grandparents were granted visitation rights against the parents’ wishes and held that extraordinary circumstances did not exist to support granting non-parent visitation. State ex rel. Satchfield, 02-0150, 820 So.2d 1255. In considering the issues before it, the panel commented on the impact of Troxel by stating:

[W]e recognize that the United States Supreme Court’s decision in Troxel, 530 U.S. 57, 120 S.Ct. 2054, has rendered prior jurisprudence in this area of little assistance. The Supreme Court stopped short of declaring that all non-parent statutes violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution. However, it found that the Washington statute was “breathtakingly broad,” gave no weight to the parent’s decision, and placed “the best-interest determination solely in the hands of the judge.” Id. at 67, 120 S.Ct. at 2061. It further noted that there was no allegation that the mother was an unfit parent and that “there is a presumption that fit parents act in the best interests of their children.” Id. at 68, 120 S.Ct. at 2061. Given that fact, the Supreme Court stated that, “so long as a parent adequately cares for his or her children (ie., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Id. at 68-69, 120 S.Ct. at 2061.

| fid, at p. 13, 1264 (emphasis added). Thereafter, the court found that there was no allegation that either parent was unfit or did not adequately provide for the child. Id. Hence, the court of appeal concluded that the trial court substituted its judgment for the judgment of the child’s parents “without a showing that the parents’ decision is detrimental to the child.” Id. at p. 14, 1265. Since such a judgment was specifically rejected in Troxel, the court reversed the award of visitation rights to the grandparents.

Similarly, the record before us does not contain any allegation or evidence to support a finding that the child’s mother was unfit or did not adequately provide for the child; nor was there any showing that Mrs. Dickson’s decision regarding the paternal grandparents’ visitation was detrimental to the child. On the contrary, Mrs. Flack testified that she believed that Mrs. Dickson was a fit parent, and the trial court’s oral reasons for ruling reveal that it did not make such a consideration. Accordingly, in light of the fundamental rights addressed in Troxel, we conclude that the record before us does not present extraordinary circumstances to justify the grant of non-parent visitation against the wishes of the mother. Furthermore, even if we assumed that extraordinary circumstances did exist and applied the factors provided by La.Civ.Code art. 136, the record before us does not indicate that such visitation would serve the child’s best interest, a finding required by the Article.

DECREE

For the foregoing reasons, we reverse the judgment of the trial court. All costs of this proceeding are assigned to the ap-pellees, Jerry Flack, Sr. and Becky Flack.

REVERSED; DISMISSED.

      . The parties stipulated that, if Jerry Flack, Sr. was called to the stand to testify, his testimony would be the same as that given by Mrs. Flack.

      . Mrs. Dickson explained that, although her daughter is eleven-years-old, she has the mental capacity of an eight-year-old.

      . Jimmy Dickson also testified; the substance of his testimony was essentially the same as Mrs. Dickson’s.

      . We are mindful that the Flacks’ attorney has sent several letters to the Clerk of Court of the Third Circuit Court of Appeal which claim that all issues regarding this matter are now moot as the Flacks have discontinued all efforts to obtain and maintain grandparent visitation rights. However, we do not consider these letters as part of the record before us on appeal. See Guidry v. Lafayette Bldg. Ass’n, 93-1302 (La.App. 3 Cir. 5/4/94), 640 So.2d 436. Furthermore, there is no indication that the appellant has sought dismissal of the action.


author: I,WOODARD, Judge.

text:
    Edmond Bruce PETTIBONE v. Bill BELT, Sheriff, Parish of Avoyelles.
    No. 02-1316.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.
    Rehearing Denied June 4, 2003.

      Edmond Bruce Pettibone, Angola, LA, Pro Se, Plaintiff/Appellant.
    Jerold Edward Knoll, District Attorney, Michael F. Kelly, Assistant District Attorney, Marksville, LA, for Defendant/Appel-lee, Bill Belt, Sheriff, Parish of Avoyelles.
    Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   I,WOODARD, Judge.

Mr. Edmond Bruce Pettibone appeals the trial court’s refusal to allow him access to the grand jury proceedings pertinent to Pettibone v. Belt. We affirm.

* * * * *

On August 7, 1992, the State arrested Mr. Pettibone for simple sexual assault and indecent exposure with a minor. Several days later, while in the Sheriff Department’s custody, he was arrested for aggravated rape. On November 21, 1995, under the Louisiana Public Records Act of Title 44 he moved, pro se, to view, copy, or mechanically reproduce any and all authentic documents pertinent to the investigation leading to his subsequent arrest. More specifically, he sought the release of grand jury proceedings and production of an arrest warrant, arising out of his conviction for aggravated rape, docket number 72,518B, on December 10, 1993 in the Twelfth Judicial District Court. Subsequently, on May 28, 2002, he filed an application for a writ of mandamus and a petition for habeas corpus ad testifican-dum, seeking the above documents, as well as damages. On July 10, 2002, the trial court heard the matter and found that Mr. Pettibone was entitled to the transcript of any court proceedings conducted in his case on August 18, 1992 and the transcript of any proceedings conducted in his case for a pre-trial hearing on November 23, 1992. However, it denied his request for the transcript of grand jury proceedings. Mr. Pettibone appeals.

*****

Grand Jury Prooeedings

Under the Louisiana Constitution Article V, Section 34, the secrecy of grand jury “proceedings including the identity of witnesses, shall be provided by law.” La. Code Crim.P. art. 434 codifies this law, thus requiring that members of the grand jury, others present at grand jury meetings, and those having confidential access to grand jury information keep secret witnesses’ testimonies, as well as all other matters occurring during the grand jury meetings. It permits four exclusions to the general secrecy provisions:

| ¡.A. Members of the grand jury, all other persons present at a grand jury meeting, and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of witnesses and all other matters occurring at, or directly connected with, a meeting of the grand jury. However, after the indictment, such persons may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney, or the court, and may testify concerning them. Such persons may disclose testimony given before the grand jury, at any time when permitted by the court, to show that a witness committed perjury in his testimony before the grand jury. A witness may discuss his testimony given before the grand jury with counsel for a person under investigation or indicted, with the attorney general or the district attorney, or with the court.
B. Whenever a grand jury of one parish discovers that a crime may have been committed in another parish of the state, the foreman of that grand jury, after notifying his district attorney, shall make that discovery known to the attorney general. The district attorney or the attorney general may direct to the district attorney of another parish any and all evidence, testimony, and transcripts thereof, received or prepared by the grand jury of the former parish, concerning any offense that may have been committed in the latter parish, for use in such latter parish.
C. Any person who violates the provisions of this article shall be in constructive contempt of court.[]

In State v. Trosclair, the Louisiana Supreme Court recognized the importance of grand jury secrecy. Since then, the court has consistently held:

Secrecy helps to prevent the escape of prospective indictees by providing no forewarning to them of the investigation in progress; it insures that the grand jury investigation can proceed freely by protecting the grand jurors from outside influences and threats of reprisal; it serves to prevent the subornation of perjury and tampering of witnesses by targets of the investigation; it promotes free and open disclosure of information by witnesses without fear of retaliation; and finally, it acts as a shield by protecting innocent people under investigation from the injury to their reputations that could be caused by the disclosure of baseless accusations. However, the secrecy of grand jury proceedings is not absolute. The [U.S.] Supreme Court has stated that “in some situations, justice may demand that discrete portions of transcripts be made available for use in subsequent proceedings.”

|s(Citations omitted.)

Because judicial policy promotes openness in civil and criminal cases, we are careful to weigh and balance policy considerations against statutes. Grand jury secrecy laws allow for the disclosure of state grand jury materials in the situations for which La.Code Crim.P. art. 434 provides. Aside from the express exceptions, a party seeking disclosure of state grand jury materials must show a compelling necessity for the materials at a contradictory hearing. The trial court found that Mr. Pettibone failed to meet his burden or to demonstrate a compelling necessity for disclosure of the grand jury proceedings because he failed to submit any documentation and/or evidence to support his allegation that the district attorney conspired to convene an illegal grand jury. We agree.

Finding no error, we affirm the trial court’s ruling.

CONCLUSION

Mr. Pettibone appealed the trial court’s refusal to grant him access to grand jury proceedings relevant to his case. Finding no error, we affirm the trial court’s ruling.

AFFIRMED.

      . La.Code Crim.P. art. 434.

      . 443 So.2d 1098, 1102 (La.1983).

        . In Re: Grand Jury, 98-2277 (La.4/13/99), 737 So.2d 1.


author: I NED E. DOUCET JR., Chief Judge.

text:
    STATE of Louisiana v. Carl Bowman McLEOD.
    No. 03-50.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.

      J. Phillip Haney, District Attorney, New Iberia, LA, and Thomas C. Senette, Assistant District Attorney, Franklin, LA, for Appellee, State of Louisiana.
    G. Paul Marx, Attorney at Law, Lafayette, LA, for Defendant-Appellant, Carl Bowman McLeod.
    Court composed of NED E. DOUCET JR., Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   I NED E. DOUCET JR., Chief Judge.

Defendant, Carl Bowman, was charged with possession of cocaine, a violation of La.R.S. 40:967. At a hearing held on November 29, 1999, the trial court denied Defendant’s motion to suppress. On December 6, 1999, jury selection began; the next day the trial jury found Defendant guilty as charged. Subsequently, on December 14, 1999, the court sentenced Defendant to five years at hard labor.

Subsequently, an appeal was granted, but, was never lodged. On November 8, 2001, in an unpublished writ bearing docket number 01-703, this court granted Defendant’s writ in part and remanded the ease for determination of the appeal’s status. On September 11, 2002, the trial court issued an order clarifying Defendant’s appellate rights.

Defendant originally appealed to this court, asserting three assignments of error through counsel. Subsequently, Defendant filed a pro se brief asserting seven additional assignments of error. To avoid confusion, we have broken this opinion into two sections: (1) Initial Assignments (those assigned by counsel) and (2) Pro Se Assignments. We have addressed the respective assignments under the applicable section.

FACTS:

In Jeanerette, Louisiana, acting in conjunction with police, informant Ulysses “Teddy” Spencer, arranged to “rent” Defendant’s vehicle in exchange for crack cocaine. On July 24, 1998, police outfitted Spencer with a concealed audio transmitter and supplied him with a “twenty,” i.e., approximately twenty dollars worth of crack cocaine to make the transaction. Spencer then entered Defendant’s residence with the crack cocaine. The officers’ reception of Spencer’s audio [^transmission was poor, but, within a few minutes of Spencer’s entry, upon hearing references to “twenty,” they elected to enter Defendant’s residence.

Upon entry, the officers observed the informant sitting on a sofa in the living room. Defendant was in the kitchen, with a piece of crack in one hand and a crack pipe in the other.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

SECTION 1: INITIAL ASSIGNMENTS

ASSIGNMENT OF ERROR NO. 2:

Defendant’s second error assigned shall be addressed first, as Defendant attacks the sufficiency of the evidence adduced against him at trial. As recognized in State v. Hearold, 603 So.2d 731 (La.1992), a finding that the evidence was insufficient would require an acquittal; therefore, sufficiency claims should be addressed at the outset.

This court has previously explained the analysis for sufficiency claims:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this |3Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

As noted earlier, the State charged Defendant with possession of cocaine, a violation of La.R.S. 40:967. That statute states, in pertinent part:

C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in R.S. 40:978 while acting in the course of his professional practice, or except as otherwise authorized by this Part.
Schedule II lists cocaine as a controlled dangerous substance. La.R.S. 40:964.

The basis of Defendant’s appellate argument is somewhat unclear. He argues:

That there was crack in the house is beyond dispute, but of course it was put there by Jeanerette police. There is no evidence of any other crack, only that delivered by the police.
* * *
In this case the police rushed in at such a frantic and dramatic pace that McLeod may have simply been startled into picking up cocaine and paraphernalia that the confidential informant had simply thrown on the kitchen counter. There was no evidence in this case to suggest that McLeod had control or possession of the stuff until that instant.

Thus, he does not dispute being in actual, physical possession of the crack when police entered the residence. He does not appear to suggest that he came into possession through any sort of mistake of fact. At best, his present argument seems to suggest entrapment issues, possibly lack of intent. The State’s brief includes a discussion of entrapment. However, Defendant specifically eschewed an entrapment defense before trial. At the close of trial, Defendant’s trial counsel argued credibility and chain of custody issues, not mistake of fact or intent. Thus, the issue of possible | ¿entrapment is not properly before this court.

Regarding intent, Defendant’s language suggests the police informant could have thrown the cocaine and pipe onto the kitchen counter, and that, Defendant merely picked them up in surprise. However, the testimony of Officer Jeff Matthews established that Defendant was ten to fifteen feet away from the informant. Defendant was in the kitchen area, while the informant sat on a sofa in the front room. Apparently, both men were visible to Matthews when he made entry into the residence. The testimony of the other two arresting officers, Murray Sheppard and Chief Mannie Mendoza, generally corroborated Matthews’s recollection of the scene.

Thus, there is no question, Defendant physically possessed the cocaine. Defendant contests the intent element with his argument that he merely picked up the rock of crack and the crack-pipe, because he was startled by the officers’ entry. We find that, considering the factual scenario of the case, this is not a plausible explanation of his possession and we conclude the jury was reasonable in rejecting such a theory.

Further, the scene recounted by Matthews, indicated Defendant possessed the cocaine intentionally. He was at the kitchen counter with crack in one hand and a crack-pipe in the other, with a knife (we note the knife did not test positive for cocaine) and “crumbs” of cocaine on the counter.

Thus, pursuant to Jackson and its progeny, we are unable to say the jury erred in finding him guilty.

We will now proceed to the remaining assignments filed by counsel.

ASSIGNMENT OF ERROR NO. 1:

In his first error assigned, Defendant argues the lower court erred by refusing |Rto suppress the physical evidence in this case. Defendant argues the evidence was seized pursuant to a defective warrant.

According to Defendant, the police allegations in support of the warrant were overly vague, stating only that “contraband” and “paraphernalia” would be found at Defendant’s residence. Defendant implies that the police should have specified the types of contraband and paraphernalia they expected to find. Also, he complains the first page of the warrant named a different residence, of a person other than Defendant, to be searched.

Defendant argues a proper review should be based upon a “totality of the circumstances” approach. This is correct, as the supreme court has explained:

An issuing magistrate must make a practical, common sense decision whether, given all of the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place. State v. Byrd, 568 So.2d 554, 559 (La.1990). This affidavit must contain, within its four corners, the facts establishing the existence of probable cause for the warrant. State v. Duncan, 420 So.2d 1105 (La.1982); State v. Wells, 253 La. 925, 221 So.2d 50 (1969). In Wells, the source of the “four corners” doctrine” [sic] in this state, this Court noted that Article 162 required that the facts establishing probable cause be recited in the affidavit because the judge, not the affi-ant, is the one who must be satisfied as to the existence of probable cause. LA. CODE EVID. ANN. art. 703(D) states that when evidence is seized pursuant to a search warrant, the defendant bears the burden of proof at a trial on his motion to suppress that evidence. The task of a reviewing court is simply to insure that under the totality of the circumstances the issuing magistrate had a “substantial basis” for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Accordingly, in [State v.] Rodrigue, [437 So.2d 830 (La.1983)], we stated, “The magistrate’s determination of probable cause, prior to issuance of a search warrant, is entitled to significant deference by the reviewing court and marginal cases should be resolved in favor of finding the magistrate’s assessment to be reasonable.” Rodrigue, 437 So.2d at 833. Moreover, if the magistrate finds the affidavit sufficiently detailed and reliable to show probable cause, reviewing courts should interpret the affidavit in a realistic and common sense fashion, aware that it is normally prepared by non-lawyer police officers in the midst and haste of a criminal investigation. Within these guidelines, courts should strive to uphold IftWarrants to encourage their use by police officers. State v. Jenkins, 2001-0023 (La.6/22/01), 790 So.2d 626 (citing United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)); State v. Loera, 530 So.2d 1271, 1278 (La.App. 2 Cir.1988), writ denied, 536 So.2d 1252 (La.1989).

State v. Green, 02-1022, pp. 7-8 (La.12/4/02), 831 So.2d 962, 969.

In the present case, the supporting affidavit stated the following information:

ON JULY 22, 1998, I, (AFFIANT) DETECTIVE MURRAY SHEPPARD OF THE JEANERETTE CITY POLICE DEPARTMENT CONDUCTED A NARCOTICS INVESTIGATION AT THE RESIDENCE OF CARL B. MCLEOD III WHO RESIDES AT 600 FRANK STREET. AFFIANT ALONG WITH OTHER MEMBER OF THE JEANERETTE CITY POLICE DEPARTMENT HAS BEEN RECEIVING INFORMATION THAT MCLEOD HAVE (SIC) BEEN HAVING HEAVY TRAFFIC AT HIS RESIDENCE IN (SIC) WHICH IS CONSISTENT WITH DRUG TRAFFIC. AFFIANT RECEIVED INFORMATION THAT MCLEOD HAS BEEN RENT [SIC] HIS VEHICLE OUT FOR NARCOTICS AND THIS INFORMATION WAS COLLABORATING. [SIC] ON THIS SAME DATE APPROXIMATELY 0115 HRS. AFFI-ANT ALONG WITH COOPERATING SOURCE MADE CONTACT WITH THE RESIDENCE OF CARL B. MCLEOD III IN WHICH A MALE SUBJECT ANSWER [SIC] THE TELEPHONE WHO ADVISED U.S. THAT MCLEOD WAS AT THE RESIDENCE, BUT THE JEEP WAS ALREADY RENTED OUT FOR COCAINE. AFFIANT AND SOURCE CONTACTED MCLEOD HOUSE AT 1835 HRS. IN WHICH HE (MCLEOD) ANSWER THE TELEPHONE. A CONVERSATION WAS ENSUED [SIC] BY SOURCE AND MCLEOD IN REFERENCE TO THE VEHICLE AND GIVING HIM COCAINE FOR THE RENTAL OF VEHICLE. THIS SOURCE HAS BEEN PROVEN RELIABLE IN THE PAST AND HAVE HELP [SIC] AFFIANT MAKE SEVERAL NARCOTICS ARREST AND SEIZURES. I, (AFFIANT) DETECTIVE MURRAY SHEPPARD OF THE JEANERETTE CITY POLICE DEPARTMENT ASKS [SIC] THAT THIS SEARCH WARRANT BE SIGNED FOR THE RESIDENCE OF 600 FRANK STREET.

At the close of the suppression hearing, the trial court made the following comments in reaching its decision:

BY THE COURT:
To what Mr. Duhe just said, I would add that the primary purpose of the search warrant is a requirement for a review by a magistrate |7before anyone goes into a home. We had a review by a magistrate here. The information was presented to Judge Wattigny. He did not catch an inconsistency in the paperwork, but that was reviewed again prior to the search warrant being issued. By phone the correct information was supplied to him and he approved it. So we truly, in essence, had the magistrate review. If there is an objection to some of the language used, it would only be effective if the language didn’t convey the basic information and, to my knowledge, it does convey the basic information.
Exigent circumstances, as Mr. Duhe has pointed out, is not relevant to this search warrant situation. The exigent circumstance, that turn, [sic] comes into effect in other circumstances.
Entrapment is for the trial. A lot of your argument is for the trial. Somebody might think — you know, the jury could well think that there are other problems here, but the problems that are pertinent for this motion today are the validity of the signature, and we’ve had Judge Wattigny identify his signature. He has identified his initials, has described when he put them on, and has described the fact that he did give an oral, by telephone, approval of the change right after he heard about it and it was apparently prior to the execution of the warrant.
So I would say that the basic principles of a search warrant, that is, a magistrate review prior to search, have complied with and that there is no cause to suppress the fruits of that warrant. There may be other problems for another day. That’s not before us. I will deny the motion to suppress fruits of that warrant.

In regard to Defendant’s vagueness argument, the Fourth Circuit, when confronted with a similar situation, observed the following:

In the present case the tipster gave specifics about the drug activity. The caller provided a specific address and apartment number. The caller had seen a lot of activity both at day and night. The tipster described the person involved in drug activity as a black male, being the age of about fifty, who was known as “Plat.” Officer Lainez’s observations corroborated the caller’s allegations. The person answering the door fit the description of a black male who was about the age of fifty. The officer saw several people entering and leaving the apartment in a suspicious manner after brief stays. He saw a female reaching for money. The officer stated that the subjects did not appear to be social visitors or “to be in an official capacity such as LP & L or a service person or something who had an official reason to be there.” The officer testified that he previously had investigated over 200 drug transactions. From his past experience the officer believed the defendant was engaging in narcotic transactions. The officer’s inferences from the facts at hand were reasonable. Reviewing the \ ¿totality of the circumstances, the issuing magistrate had a substantial basis for finding probable cause to issue a warrant to search Martin’s residence. The trial court properly denied Martin’s motion to suppress evidence and motion for new trial....

State v. Martin, 97-2904, pp. 8-9 (La.App. 4 Cir. 2/24/99), 730 So.2d 1029, 1033, writ denied, 99-874 (La.10/1/99), 747 So.2d 1136 (Emphasis ours).

We find the information police supplied to the issuing judge in this case was at least as detailed as that in Martin, if not more so. As the State points out, the supporting affidavit clearly refers to cocaine. Thus, in light of Green and Martin, we find Defendant’s allegations of vagueness lack merit.

Regarding his argument that the incorrect address on the warrant should invalidate the instrument, we observe that an incorrect address is not fatal to a search warrant. As another court has explained:

A search warrant must particularly describe the place to be searched. U.S. Constitution, Amendment IV; Louisiana Constitution of 1974, Article I § 5; La. C.Cr.P. Article 162. The description in a search warrant application is sufficient if the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable certainty and with the reasonable probability that the police will not search the wrong premises. State v. Korman, 379 So.2d 1061 (La.1980); State v. Petta, 354 So.2d 563 (La.1978); State v. Cobbs, 350 So.2d 168 (La.1977). A discrepancy between the location described in the warrant and the location searched will generally not invalidate the search warrant. State v. Korman, supra. However, if police officers knowingly search entirely different premises than that described in the warrant, the evidence seized will be suppressed because the warrant did not particularly describe the place to be searched. State v. Manzella, 392 So.2d 403 (La.1980).
In State v. Johnson, 534 So.2d 1322 (La.App. 4 Cir.1988), a search warrant authorized the search of 70001 Bundy Road, Apartment E-15. The location actually searched was 7001 Bundy Road, Apartment E-15. We upheld the search, finding “there was very little, if any, possibility that the wrong premises would be searched. The typographical error of an additional ‘0’ in the address did not invalidate the warrant.” Johnson, at 1326. The police officer in Johnson obtained and executed the warrant after personally observing the premises, setting up surveillance, and verifying that the defendant resided there.

State v. Diggs, 98-964, pp. 3-4 (La.App. 4 Cir. 6/24/98), 715 So.2d 692, 694, writ denied, 98-2647 (La.12/11/98); 730 So.2d 462.

The State cites a supreme court case:

As a general rule, mistakes in the use of municipal numbers do not invalidate a search warrant which otherwise describes the premises with sufficient particularity such that the officer with the warrant “can with reasonable effort ascertain and identify the place intended.” Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925); Garrison, 480 U.S. at 88-89, 107 S.Ct. at 1019 (citing Steele); State v. Scramuzza, 408 So.2d 1316, 1317-18 (La.1982); State v. Korman, 379 So.2d 1061, 1063 (La.1980); see also 2 Wayne R. LaFave, Search and Seizure, § 4.5(a) at 522 (3d ed. 1996) (“[T]he cases reflect an understanding of the fact that errors can easily occur in the use of numbers, such as an apartment or house number, and that it should be presumed that such an error did occur when other descriptive facts fit a different location.”)

State v. Alonzo, 95-2483, pp. 2-3 (La.5/31/96), 675 So.2d 266, 267.

As Defendant observes, an incorrect name and address appear on the lower portion of the first page of the warrant. However, the Defendant’s name and correct address appear on the upper half of the same page. Also, the Defendant’s name and correct address appear on both pages of the affidavit. Thus, we find that nothing more than a mere typographical error occurred.

Further, the incorrect address was corrected. At the hearing on the motion to suppress, Judge Gerard Wattigny was called as a witness. He explained the correction of the address in the following colloquy:

Q. Your Honor, can you explain to the court what order of events led to the editing of the order portion of the warrant and the initialing?
A. Officer Sheppard came to my residence at night with the affidavit and the search warrant and executed the affidavit, and then I signed the search warrant. Subsequently, after he left he called and indicated to me that the information and address on the front of the search warrant was incorrect and that it was not consistent with what was in the affidavit in that we had missed that at the time that we signed it. I understood at the Imtime that he was in route to Mr. McLeod’s residence so I authorized him to scratch out the erroneous portion, which would be Jonathan Hopes, Sr., Mary Alice Hopes and a 2106 Times Street, and to replace them with Carl B. McLeod at 600 Frank Street. I told him to scratch that and add what I’d indicated about Carl McLeod, to initial it, and then to return it to me as soon as he could so that I .could initial the change.

Thus, the error was noticed and corrected before the warrant was executed, obviating any probability that the police would search the wrong residence. Considering this fact and the cited jurisprudence, we find this portion of his assignment of .error lacks merit.

For the reasons discussed, this entire assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3:

In his third assignment, Defendant argues the trial court erred by granting a challenge for cause on a juror who stated the severity of the penalty would make it difficult for him to serve as a juror. However, in brief, Defendant acknowledges the trial court’s ruling is entitled to deference, and, is reviewed under an abuse of discretion standard.

The supreme court has explained:

[A] challenge for cause should nevertheless be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied.

State v. Carmouche, 01-405, p. 5 (La.5/14/02); — So.2d -, 2002 WL 984306. Additionally, the following is well settled: “A trial court is vested with broad discretion in ruling on challenges for cause and these rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion.” State v. Williams, 01-1650, p. 10 (La.11/1/02); 831 So.2d 835, 845, citing, State v. Cross, 93-1189 (La.6/30/95), 658 So.2d 683.

n We note the following colloquy between the court and venireman Louvi-ere, the potential juror at issue:

Q. You think you could decide the case based on the facts and the law as given to you by the Court without regard to what penalty might be imposed?
A. Yes, I can do it. I think I can do it.
Q. I hate to pressure you even more. Because you’re the only one who knows, do you know you can do it? If you feel you couldn’t please just be honest if you feel it would affect your guilt or innocence position knowing the penalty was out of your hands? It might be more severe than you’d want. If that would affect your ability to decide the case based on the law and the evidence, I just need to know.
A. It would be hard.
Q. You think it would affect you? Do you feel you could not do this job impartially and would be affected by the possible penalties?
A. Yes.
(Selection at bench continues)
BY THE COURT:
Excused for cause....

Louviere’s responses convince us that the trial court did not abuse its discretion in releasing him for cause.

Therefore, the assignment lacks merit.

SECTION 2: PRO SE ASSIGNMENTS

PRO SE ASSIGNMENTS OF ERROR NOS. 1, 2, & 3:

In his first assignment of error, Defendant argues the State knowingly presented perjured testimony at trial, from Detective Murray Sheppard. Defendant asserts the State used leading questions to elicit false information from Sheppard. In | response to State’s questions, Sheppard asserted that the search warrant he had obtained prior to the undercover operation against Defendant was a “presumptive search warrant” or “anticipated warrant.” Defendant’s second assignment of error is related to the first, as it also attacks the classification of the warrant. In other words, Defendant alleges it was presented to Judge Wattigny as a regular search warrant, not a “presumptive” or “anticipated” warrant, and thus was invalid under the circumstances of the case. The third assignment is also related, as Defendant argues the warrant did not meet the technical requirements for a presumptive warrant.

Defendant asserts the State’s alleged use of leading questions reveal an intent on its part to misuse the information at issue. His claim that information was false is based upon testimony from the suppression hearing, held on November 29, 1999. At that hearing, Judge Gerard Wattigny, the judge who signed the warrant, testified. Defendant points to excerpts from Judge Wattigny’s testimony that suggest he did not realize the warrant was meant to be anticipatory in nature.

Defendant’s argument in his second assignment of error states that the issue of whether a search warrant is a presumptive/anticipated warrant is essentially a legal question. If that argument is correct, the issue should have been raised in his Motion to Suppress, or at least brought up during the November 29, 1999 hearing. See La.Code Crim.P. art. 703(F).

Further, we note that even though counsel’s appellate brief claimed that “anticipatory” warrants do not exist, he appeared to subsume this statement into his argument for a “totality of circumstances” review of the warrant. Additionally, this specific claim does not appear to have been made at the suppression hearing. Thus, we did not separately address the issue of whether anticipatory/presumptive warrants ] 13exist, or how the search warrant in this case should have been classified.

On the other hand, Defendant’s third pro se assignment acknowledges the existence of anticipatory warrants under federal law and jurisprudence, despite a dearth of Louisiana jurisprudence on the subject.

The present arguments notwithstanding, our review of the transcript reveals that the issue was not raised at the hearing below. Rather, Defendant contested the authenticity of Judge Wattig-n^s signature and initials on the warrant, the related issue of the amendment of the warrant, and, the alleged “overbreadth” of the term “contraband.” Also, the trial colloquy cited by Defendant does not indicate Defendant raised the classification issue at that time, either. We observes that these issues were raised again in counsel’s appellate brief, and thus, those issues were discussed in Section One of this opinion.

Since the issue of the classification of the warrant was not raised at the suppression hearing, the lower court did not have an opportunity to analyze the issue now raised by Defendant, and the State did not have an opportunity to respond. Accordingly, this issue cannot be addressed for the first time on appeal. State v. Moody, 00-0886 (La.App. 1 Cir. 12/22/00), 779 So.2d 4, writ denied, 01-213 (La.12/7/01), 803 So.2d 40; State v. Reese, 34,275 (La.App. 2 Cir. 12/20/00), 774 So.2d 1164. Defendant still has an avenue of relief available in the post-conviction process, where any related or underlying facts may be developed more fully, and the State will have an opportunity to make a full response, if necessary.

We note that Defendant’s third pro se assignment also alleges the search warrant lacked underlying facts to support probable cause for a presumptive search warrant. Again, this is an issue that was not raised below; therefore, it will not be 114addressed for the first time on appeal.

Even though these assignments are not presented in the trial and thus, are not properly before this court, we feel obliged to make the following observation.

La.Code Crim.P. art. 163 provides in pertinent part the following: “A search warrant cannot be lawfully executed after the expiration of the tenth day after its issuance.” Thus, Louisiana law provides for an anticipatory search warrant, even if it does not specifically name it such. In this case, the evidence establishes that the warrant was issued on July 22, 1995 and executed July 24, 1995, well within the ten day limit. In State v. Ginorio, 619 So.2d 790, 793 (La.App. 4 Cir.), writ denied, 625 So.2d 1039 (La.1993), our brethren of the Fourth Circuit observed:

The passage of time may adversely affect the validity of a search warrant. Thus, included in the general concept of probable cause, is the necessary element of a reasonable belief that the contraband or evidence will not have been disposed of but will remain at the place to be searched at the time of the proposed search. State v. Lewis, 385 So.2d 226, 229 (La.1980); State v. Durand, 461 So.2d 1090 (La.App. 4th Cir.1984). However, the passage of a few days between observation of probable criminal activity and the execution of a search warrant will not necessarily invalidate the warrant. Staleness is not an issue unless time passage makes it doubtful that the object sought in the warrant will still be in a place where it was observed. State v. Tate, 407 So.2d 1133 (La.1981); State v. Roebuck, 530 So.2d 1242 (La.App. 4th Cir.1988).

In the case sub judiee, the affidavit in support of the search warrant related that a continuing police investigation established on-going illegal drug activity at Defendant’s residence. As in Ginorio, there was “a reasonable belief that the contraband or evidence w[ould] not have been disposed of but w[ould have] remain[ed] at the place to be searched at the time of the proposed search.”

PRO SE ASSIGNMENT OF ERROR NO. 4:

In his fourth assignment, Defendant argues Detective Murray Sheppard used a generic search warrant that he has used in other cases. Again, Defendant attempts 11Rto raise an issue before this court that was not raised below. Further, the argument clearly implicates evidentia-ry matters that were not developed before the lower court. Thus, this assignment should not now be addressed. Again, Defendant may be able to develop his argument by way of post-conviction relief.

PRO SE ASSIGNMENTS OF ERROR NOS. 5 & 6:

In his fifth assignment, Defendant raises a number of issues. First, he repeats his complaint regarding whether the search warrant was an “anticipatory” warrant, and that it was fraudulently obtained. For the reasons already discussed, this part of the assignment should not be considered.

Next, he argues the warrant’s use of such terms as “any and all moneys,” “contraband,” and “paraphernalia” was over-broad. Defendant raised this issue in regard to the term “contraband” in the court below, and again in counsel’s brief on appeal. As discussed in the first section of this opinion, the argument regarding the term “contraband” as being overbroad lacks merit.

Defendant’s arguments regarding the terms “moneys” and “paraphernalia” were not raised below, and thus were not addressed below. Thus, they are not properly before this court at this time

Likewise, Defendant’s sixth assignment, which alleges the search warrant was executed without the accompanying affidavit, and repeats the claim the affidavit lacked sufficient indicia of probable cause, presents additional issues that were not raised at the suppression hearing.

Thus, for the reasons discussed in section one of this opinion, Defendant’s argument regarding the vagueness or over-breadth of the term “contraband” lacks merit. The remainder of his arguments under these assignments were not raised hfibelow; therefore, they are not properly before this court at this time.

PRO SE ASSIGNMENT OF ERROR NO. 7:

In his final pro se claim, Defendant argues his right to a speedy appeal has been violated. As discussed in the procedural history, Defendant was convicted in December of 1999. For reasons that are not entirely clear, his appeal was not granted until September of 2002.

Neither Louisiana law nor jurisprudence provides for a right to a speedy appeal. Perhaps for this reason, Defendant relies upon various federal appellate decisions on this subject. However, Louisiana courts are not bound by such federal decisions. See State v. Penns, 99-2916 (La.12/20/99), 758 So.2d 776, cert. denied, 529 U.S. 1134, 120 S.Ct. 2014, 146 L.Ed.2d 963 (2000). The “right to a speedy appeal” simply does not exist in Louisiana. Therefore, this assignment lacks merit.

CONCLUSION

In sum, Defendant’s claim alleging the vagueness or overbreadth of the term “contraband” in the search warrant lacks merit, as discussed in the original Assignment of Error No. 1 argued by counsel.

Also, a “right to speedy appeal” does not exist in Louisiana jurisprudence; therefore, Defendant’s claim of such a right lacks merit.

As the remainder of Defendant’s claims were not raised at the suppression hearing they will not be considered for the first time on appeal. Defendant may choose to pursue these claims in the post-conviction process.

DISPOSITION:

Accordingly, for the reasons stated above, Defendant’s conviction and sentence are affirmed.

AFFIRMED.