author: LMARION F. EDWARDS, Judge. hCANNELLA, J.,

text:
    Robert E. REHM v. Katherine B. MORGAN and Nationwide General Insurance Company.
    No. 04-CA-344.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.
    Rehearing Denied Nov. 18, 2004.

      Jack E. Chappuis, Metairie, LA, for Defendant/Appellant.
    George B. Recile, Metairie, LA, for PlaintiffAppellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and MARION F. EDWARDS.
   LMARION F. EDWARDS, Judge.

Defendant/Appellant appeals the action of the trial court in granting the plaintiffs judgment notwithstanding the verdict in this automobile accident case. For the following reasons, we amend the trial court’s judgment and affirm as amended.

FACTS AND PROCEDURAL HISTORY

On August 23, 2002, plaintiff, Robert Rehm (“Rehm”), and defendant, Katherine Morgan (“Morgan”) were involved in an automobile collision in the vicinity of the Esplanade Mall in Jefferson Parish. At the time of the accident, Morgan was insured by Nationwide General Insurance Company. On October 15, 2002, Rehm filed suit against Morgan and Nationwide General Insurance Company (hereinafter collectively referred to as “defendants”,) alleging injury to his back, legs, and other parts of his body. A jury trial of the matter was held from |sOctober 1 though October 8, 2003, after which the jury found Morgan 100 percent at fault for the accident, and made the following damage awards to Rehm:

Past and future physical pain
And suffering $5,000.00
Past and future mental pain And suffering $ 0
Past medical expenses $ 6450.17
Future medical expenses $ 1500.00
Physical disability $ 0
Loss of enjoyment of life $ 0

Rehm thereafter filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for new trial, both of which were heard on November 19, 2003. The trial court thereafter granted Rehm’s motion for JNOV, raising the jury’s general damages award to $150,000.00.

Defendants timely filed the present appeal.

LAW AND ARGUMENT

Defendants raise two assignments of appeal: 1) The trial court erred in granting plaintiffs Motion for a Judgment Notwithstanding the Verdict, and; 2) The trial court erred in “conditionally granting” plaintiffs alternative motion for a new trial.

La.Code of Civil Procedure art. 1811(F) is the authority for a JNOV. This article provides that a motion for judgment notwithstanding the verdict may be granted on the issue of liability or on the issue of damages or on both. In Smith v. Lee, this court noted:

A judgment notwithstanding the verdict is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive [4at a contrary verdict. The motion should be granted when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences of factual questions should be resolved in favor of the non-moving party. See Anderson v. New Orleans Public Services, Inc., 583 So.2d 829 (La.1991), LSA-C.C.P. art. 1811 and Davis v. Wal-Mart Stores, Inc., 00-445 774 So.2d 84 (La.11/28/00).

In both the Anderson and Davis cases quoted supra, the Louisiana Supreme Court stated:

The standard of review for a JNOV on appeal is a two part inquiry. In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether or not to grant the motion. After determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review.

Accordingly, we will first determine whether the trial court erred in granting Rehm’s JNOV.

At trial, the jury was presented with the following evidence and testimony regarding the injuries that Rehm sustained as a result of the accident.

First, Robert Rehm himself testified. Rehm stated that he hit Morgan’s vehicle after she ran a stop sign. Soon after the impact, an ambulance arrived on the scene, but he refused medical treatment at that time although he claims that he had a piercing pain at the bottom right of his ribcage, and a tightness toward his back. Thirty to forty-five minutes after arriving home, however, Rehm went to the emergency room at East Jefferson Hospital, where he was x-rayed and released that same night. Rehm said that he had never had a back injury prior to this accident.

| sRehm was referred by his attorney to Dr. Charles Murphy for treatment. Rhem said he had continued to sustain lower back pain that extended into his entire waistline. Over the course of three or four months he underwent a physical therapy regimen, and claimed that it brought him limited relief. At trial, Rehm stated that he still performed certain exercises and stretches to relieve lower back pain. Rehm also described a persistent pain in the middle of his back as well.

Rehm described how the injury has affected his daily routines. He said that he can no longer participate in sports to the extent that he used to because of the persistent pain. He also said that the pain distracts him in school settings, where he is required to sit in a desk for up to forty-five minutes at a time. Rehm testified that as a result of the accident, he missed one day of work and one hour of school.

Dr. George Murphy, Rehm’s treating physician, also recounted Rehm’s history of treatment. Dr. Murphy said that he first saw Rehm in October of 2002 and, after an examination, ordered an MRI of Rehm’s lower back and neck. Dr. Murphy said that Rehm’s cervical MRI was not abnormal, but that the lumbar MRI showed changes at the last two discs in the back. Dr. Murphy attributed the changes in Rehm’s back to the accident, and further opined that the pain in Rehm’s back emanates from an abnormal disc.

Dr. Murphy referred Rehm to a physical therapist, but after Rehm failed to respond satisfactorily after six weeks, Murphy ordered a MRI of Rehm’s thoracic spine. Dr. Murphy agreed with the reviewing radiologist, Dr. Armington, that the disc on the film appeared to be abnormal. Dr. Murphy stated that he felt Rehm’s pain was consistent with a disc problem as well. Dr. Murphy concluded that Rehm would likely face the problem of pain in his mid and lower back for the rest of his life, but that Rehm was not a likely candidate for surgery as a result.

Dr. William Armington, a diagnostic radiologist, testified on Rehm’s behalf. Dr. Armington was the primary reader of Rehm’s thoracic spine MRI films upon | ^referral by Dr. Murphy. Dr. Armington testified that upon reviewing the film, it was evident to him that there was a herniated nucleus propulsus, or herniated disc, between the fifth and sixth thoracic vertebra. Dr. Armington said that it would have been highly unlikely that a man of Rehm’s age would present with a bulging disc as a result of the aging process, and that the, bulge was likely the result of trauma.

Dr. Edward Brown, an expert in radiology and diagnostic radiology tendered by the defendants, read and interpreted both the cervical and lumbar MRI’s performed on Rehm. While Dr. Brown found Rehm’s cervical MRI to be completely normal, he did find “Minimal central protrusion of disc material” in Rehm’s lumbar MRI. Dr. Brown also indicated at trial that bone spurs or annulus fibrosis could be alternate diagnoses drawn from Rehm’s thoracic MRI.

Finally, the jury was presented with the testimony of defense expert Dr. Henry Eiserloh, an orthopedic spine surgeon, who performed an independent medical examination of Rehm. Dr. Eiserloh described for the jury what he termed to be a number of “nonorganic” findings in regard to Rehm’s complaints of pain, which Dr. Eiserloh accounted for by either malingering or psychogenic pain. Eiserloh stated that, in his opinion, Rehm’s cervical MRI was a normal study. He did not recall seeing any lumbar bulging in Rehm’s MRI. In regard to Rehm’s thoracic MRI, Dr. Eiserloh opined that he did not agree with Dr. Armington’s assessment that a herniation or a disc abnormality existed.

On cross examination, however, it was shown that Dr. Eiserloh had written in a report to defense counsel that Rehm’s thoracic MRI revealed a questionable T5-6 disc injury, and that there was “an apparent area of posterior abnormality” at the level of T-6. Further, although Dr. Eiser-loh questioned Dr. Armington’s skill at reading MRI’s, on cross examination Dr. Eiserloh admitted that he occasionally consults Dr. Armington for MRI readings for his own patients.

|7In its reasons for judgment for granting Rehm’s JNOV, the trial court, after summarizing the trial testimony, stated:

This accident occurred on August 23, 2002. Robert Rehm has been treated since the date of the accident; continues to be treated; and still suffers from a herniated disc in his thoracic spine and a bulging disc in his lumbar spine, daily. This affects his ability to lead and live the normal life he was living just prior to the accident. The testimony adduced at trial from Robert Rehm’s treating physician, Dr. George Murphy, established that Robert will more likely than not suffer with these symptoms for the remainder of his life. The life expectancy tables reflect this to be a period in excess of 60 years as reflected in the instructions to the jury ...
They [the jury] obviously believed the testimony of Dr. Murphy and Dr. Arm-ington concerning his [Rehm’s] injuries and condition and that his injuries were caused by the accident. Had they believed Dr. Eiserloh, who testified that there was no basis for his complaints, which testimony the Court found to be incredible, they would not have found it necessary to award past medical expenses and future medical expenses. What the jury did, however, was to render a woefully inadequate award for the pain and suffering testified to by Robert and substantiated by Dr. Murphy who testified on his behalf.
This court is of the opinion that a bulging disc in the lumbar area of the spine, as suffered by the plaintiff in this case, is worth an award of $50,000.00 in general damages, and that the minimum amount that that should be awarded for a herniated disc, regardless of the area of the spine, is worth a minimum of $100,000.00.
Based on the foregoing, it is clear that the jury exceeded their discretion and that their award for general damages is inconsistent with the evidence and their award for future medical expenses. For these reasons, the award should be modified to $150,000.00.

It appears, then that the trial court’s primary reason for granting the JNOV was for what it perceived to be internal incon-sistence in the jury’s award.

The issue of inconsistent damage awards was recently addressed by the Louisiana Supreme Court. The import of the supreme court’s findings was summarized by the First Circuit in the case of Sallinger v. Robichaux.

In Wainwright, the Louisiana Supreme Court underscored that a reviewing court’s consideration of special damages, in the absence of general damages, should ascertain whether the jury’s failure to concomitantly award general damages “is so inconsistent as to constitute an abuse of discretion.” Although the high court noted that, as a general proposition, a jury verdict awarding specific but not general damages tends to be illogical or inconsistent under the abuse of discretion standard, the particular facts of each case are | Rdeterminative. Wainwright, 774 So.2d at 76. Circumstances exist in which a jury can reasonably conclude that a plaintiff has proven entitlement to recovery of certain special damages, yet failed to prove the existence of general damages, such as pain and suffering. Id.

In the present case, however, as the trial court points out, the jury did apparently conclude that Rehm was sufficiently injured to warrant an award of past and future medical expenses. In light of that finding, we find no error in the trial court’s conclusion that the jury exceeded their discretion in their award for general damages. Finding that the trial court was not in error in granting Rehm’s JNOV, we next review the trial court’s award of general damages.

The standard for appellate review of general damage awards is whether the trial court abused its great discretion in fixing the award. In Youn v. Maritime Overseas Corp., the Supreme Court upheld the longstanding rule that an appellate court is not to decide what it considers an appropriate award, but rather to review the exercise of discretion by the trier of fact, considering the particular injuries and their effects on the particular circumstances of the particular plaintiff. Only when the appellate court determines that the trier of fact abused its much discretion, may the award be set aside as either too high or too low.

In it reasons for judgment, the trial court stated:

This court is of the opinion that a bulging disc in the lumbar area of the spine, as suffered by the plaintiff in this case, is worth an award of $50,000.00 in general damages, and that the minimum amount that should be awarded for a herniated disc, regardless of the area of the spine, is worth a minimum of $100,000.00.

In the case of Webb v. Horton, referred to by the trial court in its reasons for judgment, this court held that an award of $50,000.00 was the lowest general damage award within the jury’s discretion for a non-surgieal herniated disc. After a review of the record in this case and upon finding that the trial court abused it’s | fldiscretion, we accordingly reduce the trial court’s award of general damages for this injury from $150,000.00 to $50,000.00, an amount we deem appropriate under the facts of this case.

In light of our previous finding that the trial court properly granted the plaintiffs JNOV, we will pretermit discussion on defendants’ remaining assignment of error.

For the foregoing reasons, the judgment of the trial court is amended, and affirmed as amended.

AMENDED; AFFIRMED AS AMENDED

CANNELLA, J., concurs with reasons.

hCANNELLA, J.,

concurring with reasons.

I agree with the majority that the JNOV should be affirmed, but that the award of general damages should be reduced. However, I would reduce the damages to $75,000.

      . In regard to Rehm's motion for a new trial, the court noted in its reasons for judgment, "The Court is of the opinion that had it not granted a JNOV in this matter, for the reasons, herein expressed it would grant the plaintiff a new trial.”

      . 00-1079 (La.App. 5 Cir. 4/11/01), 783 So.2d 642.

      . Davis, supra, at 89; Anderson, supra at 832.

      . 1998-2160 (La.App. 1 Cir. 6/22/01), 797 So.2d 724.

      . 2000-0492 (La. 10/17/2000), 774 So.2d 70.

      . 623 So.2d 1257 (La. 1993).

      . Id.

      . Id.

      . 01-978 (La.App. 5 Cir. 2/13/02), 812 So.2d 91.


source: Caselaw Access Project

author: | .GOTHARD, Judge.

license: Public Domain

text:
    Brian Corey ALLEN v. SCHNEIDER NATIONAL BULK CARRIERS.
    No. 04-CA-299.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.
    Rehearing Denied Nov. 18, 2004.

      Richard M. Millet, Laplace, Louisiana, for Plaintiff/Appellee.
    C. David Vasser, Jr., Metairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD and THOMAS F. DALEY.
   | .GOTHARD, Judge.

In this workers’ compensation matter, defendant Schneider National Bulk Carriers, Inc. (Schneider), appeals an adverse judgment that awarded benefits to claimant and cast Schneider in judgment for penalties and attorney fees. Claimant, Brian Allen, filed an answer to the appeal seeking an increase in the amount of penalties and attorney fees awarded.

The record shows that Brian Corey Allen filed a disputed claim for workers’ compensation on August 22, 2002 in which he alleged he was injured in the course and scope of his employment with Schneider in October of 2001. Schneider filed an answer to the claim in which it denied that claimant had a work related injury for which compensation was due.

At the trial on the merits the parties stipulated that at the time of the alleged accident, Mr. Allen was a full time employee of Schneider earning $9.00 per hour, for a weekly average of $360.00. The parties also agreed to request that the record remain open for the future deposition of Drs. Charles Murphy and William Timothy. The request was granted by the court.

| ¡¡Claimant testified that, at the time of the accident he was employed by Schneider as a tank washer at the Reserve Louisiana terminal, having been recently promoted from a prep man. He testified that on the day of the accident, he was washing out a truck that had an excessive amount of “heel” on it. Mr. Allen explained that “heel” refers to the amount of residual chemical remaining in a truck after its use. He was instructed to run a hose from the truck to a roll-off bin, which Mr. Allen described as' a big dumpster for safely discarding chemicals. In order to accomplish this, Mr. Allen was required to stand on top of a cutting table used for repairing hoses. After he secured the hose inside of the roll-off bin, and was getting down from the table, he slipped on a hose that was on the ground and fell onto his back.

Mr. Allen stated that two other workers, Jeff Diamond, the tank wash supervisor, and Ronnie Dennis, the shift supervisor, were in the vicinity when he fell. Mr. Allen was able to get up and did not seek medical attention at that time. He stopped working to change his clothes, but did not fill out an incident report at that time. Mr. Allen explained that he could not recall the exact date of the accident because he did not make a report. The following two days Mr. Allen went to work as usual, but noticed that he was experiencing pain in his lower back that got progressively worse. On the third day the pain was so severe that Mr. Allen was unable to go to work. He called his supervisor, Mr. Diamond, and told him of the problem, then sought treatment at the Kenner Regional Medical Center Emergency Room, where he was given medication and told to follow up with his regular physician. Two days later Mr. Allen went to Dr. Charles Murphy for a followup. Dr. Murphy continued Mr. Allen’s medication and recommended a few days bed rest. Mr. Allen took the advice and remained home for a few days, and then returned to work.

|4On February 27, 2002, Mr. Allen again suffered severe back pain and went to Doctors Hospital for emergency treatment. He was told he should not go back to work for a few days. Mr. Allen returned to Dr. Murphy, who treated him conservatively with medication and physical therapy. In October of 2002, Mr: Allen’s medical insurance benefits ran out, and he was unable to continue his medical treatments. Because Mr. Allen was unable to work or pay his medical bills, he called his supervisor, Jeff Diamond, to seek advice.

As a result of his consultation with Mr. Diamond, Mr. Allen completed an application for short term disability in which he indicated the disability was not work related. However, about one month later, Mr. Allen decided against seeking disability and he requested the application process be stopped. He explained that he realized after submission of ,the application for short term disability, he really needed long term disability for a work related accident.

Mr. Allen stated that, since about February 25, 2002, he has been unable to do his usual and customary work, and he needs additional medical care which he cannot afford.

On cross-examination, Mr. Allen was questioned about the emergency room report from Kenner Regional Medical Center dated November 26, 2001. The report indicates that he presented with back pain, but denied injury. Mr. Allen testified that he told emergency room doctors he fell a few days earlier, although at trial he could not remember the exact dates of the fall or the hospital visit. Mr. Allen also stated that he first reported the injury to Jeff Diamond by telephone shortly after the fall when he was unable to work; however, he did not complete any paperwork until April of 2002. Mr. Allen further admitted that he may be confused regarding the length of time between the accident and the onset of the back pain. He stated the pain actually began in his foot and leg and then radiated into his back.

IfiMr. Allen testified that he did indicate the medical disability was not caused by a work related injury in the first application for disability because he sought to get medical coverage under his general health insurance. However, he did stop that application and submitted a request for workers’ compensation shortly afterward. He further testified that he left the date of injury blank, because he could not recall it. He again stated that both Jeff Diamond- and Ronnie Dennis witnessed the fall.

The court also heard testimony from Sarina Waters-Alien, Mr. Allen’s wife. She testified that her husband came home from work on the day of the fall and told her about it. She also testified that he told her he almost fell on Jeff Diamond. Although his back was bothering him a bit, he did not seem to be in great pain. He took some Advil and went to work the next day. However, he was having severe back pain on November 26, 2001, a few days after the fall. He could not sit up or walk down the-stairs. She stated she had to flatten the seat down in the car to get him to the emergency room of Kenner Regional Medical Center. At the hospital she told medical personnel that her husband had fallen at work a few days earlier.

The record also contains the deposition of Dr. Charles Murphy, Mr. Allen’s treating physician. Dr. Murphy is a board certified orthopedic surgeon who testified that he first saw Mr. Allen on May 24, 2002. However, Mr. Allen had been treated by another physician in Dr. Murphy’s office since November 28, 2001. Dr. Murphy explained that he had all of Mr. Allen’s records starting from the November 28th visit when he saw Dr. William Timothy. At that time, Mr. Allen completed a form in which he related a history of back pain, shooting down the leg and shocking pains in the right foot. He reported the pain was present for about five days. He also reported a fall about one month earlier. Mr. Allen also indicated that he went to the Kenner Regional Medical Center two days earlier, and although he felt better with bed rest, the problem was getting worse. At that time | fihe had several diagnostic tests including x-rays of the pelvis, the right ankle and right foot. Dr. Timothy also reviewed x-rays of the lumbar spine taken at Kenner Regional Medical Center. Mr. Allen’s medical record shows that on that first visit, Dr. Timothy assessed the condition as a lumbar strain with lower extremity radiculitis, and right foot pain over the fifth metatarsal area, and recommended the avoidance of any back stress. Although it was also recommended that Mr. Allen return in two weeks for a follow-up visit, he did not return until May 24, 2002. On that date, Dr. Murphy saw Mr. Allen, who complained of continued right leg pain. Mr. Allen told Dr. Murphy that the pain was off and on since the last visit but got worse in February of 2002. Mr. Allen reported that all of the problems appeared to have started in October of 2001, when he fell from a three foot high table. At that time, Dr. Murphy conducted a physical examination that showed the patient to be alert, oriented, cooperative and overweight. His gait pattern demonstrated guarding, secondary to spine pain. Dr. Murphy testified his impression was that Mr. Allen had low back pain, right sciatica with right SI radiculopathy, and a probable herniated disc. His condition was worsened by obesity. After the examination, Dr. Murphy recommended activity modifications to avoid all stress to the back, and rest to reduce pain. The doctor opined that Mr. Allen was not capable of working in his usual and customary job. Dr. Murphy recommended an MRI scan of the lumber spine and an EMG nerve conduction study of the right leg. The MRI taken on May 31, 2002 demonstrated a large right-sided posterior lateral disc herniation at L5-S1. The EMG conduction study performed on June 6, 2002 was consistent with mild to moderate subacute right SI radiculopathy. The ensuing diagnosis was a large right-sided posterior lateral disc herniation at L5-S1 with SI radiculopathy. Dr. Murphy stated emphatically that Mr. Allen was disabled from manual labor, including the tank washing he was doing before.

17I)r. Murphy testified that Mr. Allen’s obesity made him susceptible to back injury, but in his opinion it is “more probable than not” that the fall contributed to the condition. More specifically, Dr. Murphy testified that the fall caused the actual herniation, or at the least, the onset of symptoms.

At a consultation with Mr. Allen on June 11, 2002, Dr. Murphy explained the condition and treatment options. Mr. Allen began physical therapy and was somewhat improved by July 29, 2002. He was now willing to proceed with a trial of an epidural steroid injection and was referred to Dr. Amy Phalen. It is not clear from Dr. Murphy’s records whether the injections were performed. On January 9, 2003, Mr. Allen was still having low back pain, but now it had shifted more to the left side. He reported his leg pain was much improved, but there was still some numbness in the toes. Dr. Murphy again recommended injections of anti-inflammatory medication and an evaluation by Dr. Phalen. However, Mr. Allen did not return and Dr. Murphy did not know if those recommendations were followed. Dr. Murphy confirmed that Mr. Allen was still unable to perform manual labor. However, he did state that it would be possible for Mr. Allen to return to work provided some modifications could be made.

Also introduced into evidence are the depositions of Jeff Diamond and Ronnie Dennis. In his deposition, Mr. Diamond testified that he was the manager of the tank cleaning division at the Schneider facility in Reserve from September of 2000 through July of 2002. In that capacity he hired and supervised Mr. Allen as part of the cleaning crew. Mr. Diamond recalled that Mr. Allen reported a fall from a table in which he was injured. Mr. Diamond stated that he did not witness the incident, and found it odd that he was listed as a witness. Mr. Diamond testified that Mr. Allen called to say that he would not be in one day because he had fallen off of a table used for hose cleaning the previous day and injured his back. Mr. Diamond considered that conversation to be a report by Mr. Allen of a |Rwork related injury and forwarded the information to one of his supervisors, although he could not recall if it was Mark Peters or Doug Dickinson. Mr. Diamond also stated that he conducted interviews with Mr. Allen and Ronnie Dennis while investigating the incident, but could not remember specifically what information was gleaned, or the ultimate results of the investigation.

Mr. Diamond did recall that Mr. Allen reported the accident several days after the fall, on a Monday, and informed Mr. Diamond that it was necessary to seek medical attention at an emergency room on Sunday. Mr. Diamond acknowledged that Mr. Allen subsequently discussed the possibility of filing a claim for short term disability with him. Mr. Diamond stated he went through the employee handbook with Mr. Allen and put him in contact with the “right people” to handle the claim, but Mr. Diamond did not do any of the actual paperwork personally. Mr. Diamond recalled that in his conversations with Mr. Allen regarding the short term disability claim, Mr. Allen’s concern was the company may deny the accident happened at work and leave him without compensation. Therefore, he wanted to try to get short term disability under his medical insurance. Mr. Diamond did not recall Mr. Allen requesting the claim be withdrawn.

Ronnie Dennis testified he worked with Mr. Allen and was a witness to his fall. He also stated that Jeff Diamond was present when the incident occurred. Mr. Dennis testified that he and Mr. Diamond were discussing work to be done when Mr. Allen slipped on a hose and fell flat on his back. Both he and Mr. Diamond asked if Mr. Allen was injured. When Mr. Allen got up and said he was alright, the three men went back to work. Mr. Dennis did not know if any report of the accident was made, and he denied ever discussing the incident with anyone at work including Mr. Diamond. He did recall that in subsequent days, Mr. Allen complained of back pain.

IflThe record also contains documentary evidence including medical reports, bills and legal fees. After considering the evidence, the trial court rendered judgment finding that Mr. Allen did have a work-related accident, and was entitled to temporary total disability (TTD) benefits from February 28, 2002 through May 28, 2002, and supplemental earnings benefits (SEB) from May 24, 2002. Further, the judgment held that claimant was entitled to payment of all medical expenses arising from the injuries sustained. The judgment found defendants were “arbitrary and capricious” in their refusal to pay workers’ compensation and assessed a penalty in the amount of $2,000.00 and attorney fees in the amount of $5,000.00.

In brief to this court, defendant assigns three errors. In the first two he argues that the trial court erred in finding that claimant was injured in a work-related accident and was entitled to compensation. The arguments on both of these assignments regard the finding of facts made by the trial court.

To be entitled to workers’ compensation benefits, a claimant must show that there was a work-related accident which caused a compensable injury. Wiley v. Dijon Services, Inc., 02-242 (La.App. 5 Cir. 10/16/02), 831 So.2d 317; writ den., 02-2612 (La.12/13/02), 831 So.2d 990. The claimant bears the burden of proving a causal connection to a work related accident by a preponderance of the evidence. Id. Our standard of review regarding factual determinations in workers’ compensation matters is governed by the manifest error standard. Wise v. H.B. Zachary Co., 00-3 (La.App. 5 Cir. 4/25/00), 760 So.2d 500.

The thrust of defendants’ argument is the uncertainty of the date on which the alleged fall occurred and the failure to file an injury report. Defendant also argues the fact that claimant filed a claim for disability under his medical insurance in which he stated this was not a work-related injury is determinative. We do not find these arguments persuasive. It is clear from the evidence that Mr. Allen fell [ inon his back at work in November of 2001. Both Mr. Allen and Mr. Dennis testified to the fall. Mr. Diamond, although denying he witnessed the fall, admitted that claimant called a few days later to report the incident and the injury. Further, Mr. Diamond acknowledged that he considered that to be an accident report and passed the information on to appropriated parties in defendants’ employ. Moreover, Mr. Diamond also acknowledged that he discussed with Mr. Allen the possibility of applying for disability benefits under the medical coverage. We can understand how a worker, who had exhausted his medical insurance and is denied workers’ compensation by his employer, would consider this as an option. Further, defendant has not successfully disputed the assertion that the claim was withdrawn shortly thereafter.

We find sufficient evidence to support the factual finding that claimant suffered an on the job injury. Our position is not without precedent. Recently, in Hughes v. Wal-Mart Stores, Inc., 03-943 (La.App. 5 Cir. 12/30/03), 864 So.2d 718 at 721, this court stated:

.it has been held that an employee that finishes the work day without reporting an accident which occurred during that day is not barred from receiving workers’ compensation since the full consequences of the disabling accident are not always apparent when the injury occurs. A workers’ compensation claimant is not barred from recovery because he or she did not immediately realize the full extent of his or her work-related injury when it happened. (internal citations omitted)

As part of the argument, defendant also states the claimant did not meet his burden of proof that he was due TTD benefits. To be entitled to TTD benefits, a claimant must prove by clear and convincing evidence that he is unable to engage in any employment. La. R.S. 23:1221(1)(c). Sarrio v. Stalling Construction Company, 04-34 (La.App. 5 Cir. 5/26/04), 876 So.2d 157. “Clear and convincing” in the workers’ compensation context is “an ‘intermediate’ standard falling somewhere between the ordinary preponderance of the evidence Incivil standard and the beyond a reasonable doubt criminal. standard.” Hatcherson v. Diebold, Inc., 00-3263 (La.5/15/01), 784 So.2d 1284, 1288 (citing Black’s Law Dictionary 227 (5th ed.1979)).

Here, the claimant has shown an accident, and his testimony and that of his treating physician are sufficient to establish an injury resulting from that accident. Further, Dr. Murphy stated emphatically that Mr. Allen cannot return to manual labor and specifically cannot continue the work of cleaning tanks. Therefore, we find the claimant has met his burden of proof that he is entitled to TTD for the period awarded. Because his treating physician opined that Mr. Allen could now do light work with restrictions, we find the court was correct in awarding SEB. See; Sarrio v. Stalling Construction Company, supra.

In the final assignment of error, defendant argues the trial court erred in its finding of arbitrary and capricious failure to pay workers’ compensation benefits, and in awarding penalties and attorney fees.

La. R.S. 28:1201 F provides for the assessment of penalties and fees when medical benefits are not paid timely pursuant to the workers’ compensation statute. The award of penalties for failure to pay workers’ compensation benefits is penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382. Penal provisions, including those in the workers’ compensation statutes must be strictly construed. Hughes v. Wal-Mart Stores, Inc., supra. If the claim may be reasonably controverted, or nonpayment results from conditions over which the employer had no control, penalties will not apply. La. R.S. 23:1201 F(2).

Initially we observe that the arbitrary and capricious standard no longer applies in this context. In Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, the Supreme Court fully discussed this issue. In Brown, 721 So.2d at 889, the court concluded that a lesser standard is appropriate when assessing penalties and attorney fees in cases where the employer has failed to timely pay benefits, concluding that La. R.S. 23:1201 unambiguously states that “penalties and attorney fees for failure to timely pay benefits shall be assessed unless the claim is reasonably controverted or such nonpayment results from conditions over which the employer or insurer had no control.” Id., 721 So.2d at 890.

To reasonably controvert a claim, an employer must have some valid reason or evidence upon which to base the denial of benefits. As explained further in Brown, supra, 721 So.2d at 890:

.to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a 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. This definition is in accord with that presently used by the lower courts to determine whether penalties and attorney fees are owed.

Awards of penalties are based on factual findings made by the workers’ compensation judge, and may not be overturned by this court absent a finding of manifest error. Barbarin v. TLC Home Health, 02-1054 (La.App. 5 Cir.4/29/03), 845 So.2d 1199.

Applying the above cited principals of law, we find no error in the award of penalties and attorney fees. In its argument on this issue, defendant herein has offered no reason for its failure to timely pay benefits. It merely repeats its arguments on the prior two assignments of error. There is no showing that defendant had any factual or medical information to reasonably counter the factual and medical information presented by the claimant. On the contrary, defendant’s employees testified about the accident and the report made by claimant to his supervisor. It was also clear from defendant’s witnesses that this information was | ispassed on to appropriate parties and was investigated. Nothing in the testimony of Jeff Diamond or Ronnie Dennis suggests otherwise. See, Sarrio v. Stalling Construction Co., supra.

As previously mentioned, the claimant has filed an answer to defendant’s appeal requesting this court to award additional penalties and attorney fees. We find no merit in this argument, such awards are punitive and cannot be justified without a substantial reason. The judgment of the trial court awards $2,000.00 in penalties for failure to timely pay workers’ compensation benefits, and $5,000.00 in attorney fees. We find this to be adequate.

For the above reasons we affirm the judgment of the trial court. Costs of this appeal are assessed to defendant.

AFFIRMED.

      . The accident date was later corrected to November 21, 2001.


author: |, SAUNDERS, J.

text:
    Don LEGER, et al. v. John Haas WEINSTEIN, et al.
    Nos. CW 03-1497, CW 03-1498, CW 03-1616.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 27, 2004.

      Marc W. Judice, Michael Wayne Adley, Judice and Adley, Lafayette, LA, for Defendant/Applicant, John Haas Weinstein.
    Mark L. Ross, Attorney at Law, Lafayette, LA, for PlaintifRRespondent, Noelle Leger, Sarah Leger, Lon M. Baronne, Lon M. Baronne, Jr, Benjamin Baronne, Jeanette Leger, Karen Baronne, Don Leger.

      Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   |, SAUNDERS, J.

The issue upon which Defendants have sought supervisory writs arises from the allegedly negligent representation of Plaintiffs. Don Leger, individually and on behalf of his minor children, retained the services of John Haas Weinstein, APLC and John Haas Weinstein, Esq. (hereinafter collectively referred to as “Weinstein”) to bring a malpractice action against Fred Bailey and Fred Bailey, APLC (hereinafter collectively referred to as “Bailey”). Plaintiffs alleged that Bailey was negligent in handling matters related to their grandfather’s estate. Weinstein failed to take any steps in the prosecution of the action against Bailey for three years and the case was dismissed. Plaintiffs filed a second malpractice action against Weinstein for allowing the first malpractice action against Bailey to be abandoned.

FACTS AND PROCEDURAL HISTORY

On behalf of Plaintiffs, Weinstein filed a Petition for Damages for legal malpractice against Bailey on October 16, 1996. Plaintiffs became dissatisfied with Weinstein’s representation so they retained their current counsel of record, Mark Ross, to handle the suit against Bailey. A joint Motion to Substitute counsel was signed on March 12, 2002 and Mr. Ross commenced his representation of Plaintiffs. Shortly thereafter, on May 2, 2002, Bailey filed an ex parte Motion to Dismiss the suit alleging that it had been abandoned. Bailey’s motion was granted and the case was dismissed on May 10, 2002. Without the consent of his former clients, Weinstein moved to set aside the dismissal of the case against Bailey. Weinstein’s motion to set aside the dismissal was originally scheduled for hearing on August 5, 2002; however, it was continued without date.

On September 20, 2002, approximately four months after the dismissal was 12granted and before the hearing on Wein-stein’s motion to set aside the dismissal, Plaintiffs brought a malpractice action against Weinstein on the grounds that he allowed the case against Bailey to be abandoned and dismissed. Subsequently, on November 21, 2002, prior to the hearing on Weinstein’s motion to set aside the dismissal, Weinstein filed an Exception of Prematurity. Weinstein claimed that any malpractice action was premature until the court ruled on his motion to set aside the dismissal because, if the dismissal was set aside, there would be no grounds for malpractice. The exception was granted on December 24, 2002; however, the trial judge refused to dismiss the case at that time. Weinstein then sought a supervisory writ from this court arguing that the case against him had to be dismissed because the Exception of Prematurity was granted. We held that, after the exception was granted, the trial court had no authority to act further in the case. The trial court dismissed the action against Wein-stein without prejudice on June 2, 2003. Plaintiffs re-filed the current action on June 19, 2003.

Weinstein’s motion to set aside the dismissal was heard on January 15, 2003. At that hearing, the trial court concluded that Weinstein lacked standing to challenge the dismissal of the suit against Bailey. This court affirmed that ruling on August 13, 2003, after the first malpractice action against Weinstein was dismissed as premature. Thereafter, Defendants filed an Exceptions of Prematurity, Res Judicata, and Peremption alleging that the subsequent suit against Weinstein should be dismissed and Plaintiffs filed an Exception of Res Judicata on the issue of liability for the abandonment of the Bailey matter. These exceptions were argued on November 3, 2003 and judgment was rendered in favor of Plaintiffs on all issues.

|,oASSIGNMENTS OF ERROR

1) The trial court erred when it denied the Exception of Prematurity.

2) The trial court erred when it denied the Exception of Res Judicata. ■

3) The trial court erred when it denied the Exception of Peremption.

4) The trial court erred when it granted Plaintiffs’ Exception of Res Judicata.

STANDARD OF REVIEW

When reviewing questions of law, appellate courts are to determine if the trial court’s ruling was legally correct or not. Cleland v. City of Lake Charles, 02-0805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writ denied, 03-1380 (La.9/19/03), 853 So.2d 644.

ASSIGNMENT OF ERROR NUMBER ONE

Defendants argue that the most recent malpractice action is premature because the malpractice action against Bailey is still going through the appellate process. Until that process is exhausted, Weinstein argues, there is no final judgment of dismissal in the Bailey matter and any suit against Defendant based upon that dismissal is premature.

This assignment lacks merit for two reasons. First, there is now a binding final judgment of dismissal in the Bailey matter. The only issue remaining was whether Weinstein had standing to challenge the order of dismissal in that case. This court, agreeing with the trial court, dismissed Weinstein’s appeal of the trial court’s ruling that he lacked standing to challenge the dismissal. Leger v. Bailey, 03-0806, 03-0820 (La.App. 3 Cir. 8/13/03), 852 So.2d 3. We took the same action on rehearing. Leger v. Bailey, 03-0806, 03-0820 (La.App. 3 Cir. 1/28/04), 864 So.2d 909. Finally, the supreme court denied certiorari. Leger v. Bailey, 04-0513 (La.4/8/04), 870 So.2d 276. Accordingly, the Bailey matter has concluded and the judgment of dismissal is now final.

Second, in Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291 the supreme court overruled prior jurisprudence dealing with the prematurity of legal malpractice actions. The supreme court held that a client does not have to wait until a matter that was negligently handled by his attorney has been through the complete appellate process before a malpractice action may be brought. Accordingly, we find that Defendants’ argument that the case was premature because the appellate process, which is now complete, was still ongoing is without merit. The trial judge’s ruling in this regard is affirmed.

ASSIGNMENT OF ERROR NUMBER TWO

Defendants argue that the prematurity issue is res judicata. The basis of this argument is that the previous suit brought against Weinstein was dismissed as premature. The fundamental difference between that action and the case at bar is that the first case was deemed premature because the judge presiding over the Leger v. Bailey matter had not yet decided whether Weinstein had standing to challenge the order of dismissal in that case. Accordingly, the trial judge in the prior Weinstein case determined that the case was premature until there was a judgment in the Bailey matter bearing upon Weinstein’s standing. By the time the present action was filed, the judge in the Bailey matter ruled that Weinstein lacked standing to challenge the dismissal of that action. These standing issues, therefore, are not present in this [^matter. This assignment lacks merit and the ruling of the trial court is affirmed.

ASSIGNMENT OF ERROR NUMBER THREE

By assigning the trial court’s failure to sustain the Exceptions of Prematurity and Peremption as error, Defendants are essentially claiming that Plaintiffs’ malpractice claim expired before it came into existence. Defendants cite Reeder, 701 So.2d 1291, in support of this argument. In Reeder, defendant attorney represented a client in an action against the alleged perpetrators of a Ponzi scheme. Id. Suit was originally brought in the Eastern District of Louisiana for violations of various federal and state securities laws; however, it was summarily dismissed with prejudice. Id. Defendant then filed a second suit, this time in state court, that was based upon the same course of conduct as the federal suit. Id. The state court suit was ultimately dismissed when our supreme court ruled that plaintiff was precluded from asserting the state law claims because they were not alleged in the federal suit filed on July 10, 1989. Id. Plaintiff then filed a malpractice action, on September 15, 1994, against defendant for negligently failing to bring all claims in the first action. Id. That suit was subsequently dismissed by the trial court because of peremption. Id.

Plaintiff appealed and the dismissal was reversed. Id. The appellate court held that peremption does not begin to run until the facts have “ripened into a viable cause of action sufficient to support a lawsuit.” Id. at 1295. Based upon this reasoning, that court held that the cause of action arose on February 28, 1994 when the Supreme Court of the United States denied certiorari; therefore, the suit was not perempted because it was filed within one year of that date. Our supreme court disagreed with the appellate court. Id. Despite recognizing that a claim for malpractice may very |fiwell be extinguished before it accrues, the court held that the peremptive period begins to run on the date of the alleged malpractice or the date on which the client discovers or should have discovered the malpractice. Id.

Defendants’ reliance on Reeder is misplaced. In that case, plaintiff only argued that, had he filed suit for malpractice before the supreme court ruled on the underlying case, it may have been dismissed as premature. Plaintiffs argument was based on speculation regarding acts that a court may take in the future. Reed-er is distinguishable from the case at bar because, in that case, there was no judicial determination that plaintiff did not have a cause of action. Here, Plaintiffs’ prior suit against Weinstein was dismissed because there was no ruling on Weinstein’s standing in the Bailey matter. That judgment is the law of this case. The law of the case doctrine essentially provides that final judgments rendered during the course of litigation become the law of the parties to that litigation. Barnett v. Jabusch, 94-819 (La.App. 3 Cir. 2/1/95), 649 So.2d 1158. Utilization of this doctrine is discretionary; however, its application is called for when it is necessary to produce consistent results in the same litigation. Id.

There will be no consistency of result if the doctrine is not applied to the instant matter. We have already determined that Plaintiffs’ claim had to be dismissed when the trial judge ruled that it was premature until the issue of Weinstein’s standing was resolved. See Brand v. New England Ins. Co., 576 So.2d 466 (La.1991). We cannot think of a more inconsistent result than now holding that the same claim is per-empted. To do so would be to hold that the claim is premature and perempted at the same time. This inconsistency was recognized by the trial judge at the hearing on ^Defendants’ last Exception of Prematurity, wherein the following dialogue took place:

THE COURT: So this is a case that is perpetually premature until it is prescribed?
MS. REGAN: Or until there was a final finding by the Third Circuit or as to the underlying claim.
THE COURT: So this is a claim that cannot be adjudicated, it is either premature, or it has prescribed, but it cannot be heard?
MS. REGAN: At this time.

Holding that the claim was premature until it is perempted results in the patently inconsistent results the law of the case doctrine is intended to avoid.

Obtaining consistent results, however, is not sufficient to justify application of the doctrine. Its use should be declined if “it will ‘accomplish an obvious injustice or where the former appellate decision was manifestly erroneous.’ ” Thomas v. Browning-Ferris, Inc., 03-1518, p. 3 (La.App. 3 Cir. 3/31/04), 871 So.2d 1161, 1164 (quoting Dodson v. Cmty. Blood Ctr. of La., Inc., 633 So.2d 252, 255 (La.App. 1 Cir.1993), units denied, 93-3158 (La.3/18/94), 634 So.2d 850, and 93-3174 (La.3/18/94), 634 So.2d 851). We see no possible way that injustice could result from application of the law of the case doctrine here. In fact, we believe serious injustice will occur if the doctrine is not applied. Failing to adhere to the law of this case would result in Plaintiffs having a viable claim for malpractice that courts are not allowed to hear. The trial judge expressed this same concern at the hearing on Defendants’ Exception of Peremption in stating:

THE COURT: I cannot think — well, I cannot — I believe, in any ease in which the defendants assert that the case is |Rpremature and can’t be litigated until such time passes until it — the claim is— has passed the peremptive period, that has got to be an absurd result.
That result is the situation of a case that can never be tried. I cannot imagine under any circumstances that would be justice; that would be the law of Louisiana. It cannot be. [emphasis added]

We agree and, therefore, find no injustice in application of the law of the case doctrine.

Furthermore, we do not believe that our prior decision regarding prematurity and accrual of the claim was manifestly erroneous. Plaintiffs’ first action against Wein-stein was brought before a judgment regarding Weinstein’s standing in the Bailey matter was rendered. The supreme court has held that a malpractice suit may be brought against an attorney whenever “appreciable and actual harm” is suffered. Braud, 576 So.2d at 468. The court, however, also concluded that “speculative harm, or the threat of future harm” is not sufficient to create a cause of action. Id. Until Weinstein’s standing was determined, Plaintiffs suffered no appreciable and actual harm because Weinstein conceivably could have had the dismissal set aside. Any injury was purely speculative; therefore, no cause of action for malpractice had arisen. We believe our prior decision regarding the necessity of dismissing a case that was deemed premature was proper.

Moreover, the three elements of an action for legal malpractice are: the existence of an attorney-client relationship, negligent representation by the attorney, and loss to the client caused by that negligence. Prestage v. Clark, 97-0524 (La.App. 1 Cir. 12/28/98), 723 So.2d 1086, writ denied, 99-0234 (La.3/26/99), 739 So.2d 800. In the case of a malpractice action based on abandonment, the client suffers no injury launtil a final judgment of dismissal is entered. Louisiana Revised Statutes 9:5605, however, states that the per-emptive period begins to run on the date of the alleged malpractice or the date on which the client discovers or should have discovered the malpractice. Thus, a literal reading of the statute reveals that the elements of a malpractice action are at odds with the limitations on that action. Instead of maintaining consistency in the law, the element requiring actual harm and the statute of limitation are in open and direct conflict. To hold that the per-emptive period for a legal malpractice claim begins to run before the client suffers harm is to hold that the legislature intended to change the substantive elements of a legal malpractice action. There are several instances in which this change would render it impossible for someone to timely bring an action for legal malpractice. We see no evidence that this is what the legislature intended.

We agree with the trial judge that it is impossible to “imagine under any circumstances that would be justice; that would be the law of Louisiana. It cannot be.”

ASSIGNMENT OF ERROR NUMBER FOUR

Defendants argue that the trial judge erred in granting Plaintiffs’ Exception of Res Judicata. Weinstein argues that exceptions are procedural devices available only to defendants and that Plaintiffs’ motions should properly have been styled as a Motion for Summary Judgment. Furthermore, Weinstein argues, a Motion for Summary Judgment would have been untimely when the pleading was filed because it was filed by Plaintiffs before Defendants answered the Petition. We agree.

Article 921 of the Louisiana Code of Civil Procedure states that “[a]n exception's a means of defense ... used by a defendant.” Furthermore, La.Code Civ.P. art. 928 provides that a peremptory exception is a device for dismissing a plaintiff’s action. Accordingly, we agree that a Motion for Summary Judgment was the proper procedural device for accomplishing Plaintiffs’ goals. We also agree that, had Plaintiffs styled the pleading as a Motion for Summary Judgment, it would have been untimely. A plaintiff may not file a Motion for Summary Judgment until after the defendant has answered the Petition. La.Code Civ.P. art. 966. Defendants had not yet answered the Petition; therefore, the motion would have been untimely. The trial court’s judgment in this regard is reversed and the matter is remanded for proceedings in accordance with this opinion.

CONCLUSION

We affirm the ruling of the trial court in denying Defendants’ Exceptions of Prematurity, Res Judicata, and Peremption. We reverse the trial court’s granting of Plaintiffs’ Exception of Res Judicata and remand the matter for further proceedings in accordance herewith. All costs are assessed against defendant.

WRITS DENIED IN PART, GRANTED IN PART, REMANDED.


author: |1AMY, Judge. It COOKS, J.,

text:
    Ricky GIBSON v. SHAW GLOBAL ENERGY SERVICES.
    No. 04-547.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 27, 2004.

      Janice B. Unland, Rabalais, Unland & Lorio, Covington, LA, for Defendant/Ap-pellee: Shaw Global Energy Services.
    Thomas M. Daigle, Lafayette, LA, for Plaintiff/Appellant: Ricky Gibson.

      Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN B. SCOFIELD , Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore

   |1AMY, Judge.

In this workers’ compensation matter, the employee-claimant allegedly injured his back while trying to lift a valve that had trapped a co-worker’s hand and was diagnosed with a lumbar strain by his employer’s choice of physician and by a physician of his own choosing. He subsequently filed the instant disputed claim, contending that the employer had not paid wage benefits and had not authorized an MRI recommended by his choice of physician. The employer moved for summary judgment, asserting that the claimant could not prove disability. After a hearing on the motion, the workers’ compensation judge found no evidence of injury and granted summary judgment, dismissing the cause of action with prejudice. The claimant appeals. For the following reasons, we affirm in part, reverse in part, and remand.

Factual and Procedural Background

According to the record, during the early morning hours of July 13, 2002, Mr. Ricky Gibson, the claimant herein, was working as a laborer for Shaw Global Energy Services in its Delcambre, Louisiana yard when a co-worker’s hand was trapped between two valves. The record further indicates that Mr. Gibson tried to help by lifting one of the valves off of the man’s hand. In his disputed claim, filed September 30, 2002, Mr. Gibson asserted that in lifting the valve, he injured his back, and he further alleged that Shaw had neither paid wage benefits nor authorized an MRI recommended by his choice of physician.

Shaw filed a motion for summary judgment on October 30, 2003, in which it argued that the various physicians who evaluated Mr. Gibson, including those physicians of his own choice, had not determined that he suffered any disability and did not reach the conclusion that he was unable to work at full capacity at his previous position. Shaw conceded that Mr. Gibson’s treating physician had 1 ¡¿instructed him not to go to work for a two-week period pending diagnostic imaging results; however, it noted, when the results of those tests showed no abnormalities, his physician released him to work. In addition, Shaw pointed out that Mr. Gibson’s consultations with other health care providers yielded no evidence of disability or need for further medical treatment. Shaw emphasized that although Mr. Gibson was diagnosed with a lumbar strain, each of the diagnostic tests that were performed after his accident have shown no abnormalities. Accordingly, Shaw concluded, because Mr. Gibson cannot meet the burden of proving disability, he is unable to demonstrate his entitlement to workers’ compensation benefits.

In opposition to Shaw’s motion for summary judgment, Mr. Gibson argued that when he initially sought treatment for his injury at Abbeville General Hospital, Shaw denied treatment and instructed him to consult its choice of physician at the Occupational Medicine Clinic in New Iberia. Mr. Gibson indicated that he complied with Shaw’s instructions but returned to Abbe-ville General later in the week of his accident and throughout the following month due to unresolved pain. He pointed out that his treating physician, Dr. Kate Lee, had placed him on no-work status and had prescribed various medications. In defense of his claim, Mr. Gibson asserted that it was “undisputed” that he had sustained an injury in the course and scope of his employment and “undisputed” that he was initially denied treatment at Abbeville General Hospital. He further argued that Shaw had arbitrarily refused to pay for any additional medical treatment and that it refused to pay weekly benefits following his injury. Mr. Gibson contended that there were, indeed, material facts in dispute regarding his entitlement to indemnity and medical benefits, asserting that the reports of each of the treating physicians involved indicated that he had sustained a lumbar | ¡¡muscle spasm, reflecting objective findings of injury, and that these physicians had assigned him to light-duty status, thereby indicating disability.

After a hearing on the motion for summary judgment on January 6, 2004, the workers’ compensation judge granted Shaw’s motion, dismissing Mr. Gibson’s claims with prejudice. In his oral reasons for ruling, the workers’ compensation judge indicated that the medical records were devoid of anything that would prove or even suggest that Mr. Gibson had sustained an injury.

Mr. Gibson appeals the workers’ compensation judge’s ruling, asserting the following assignments of error:

1. The workers’ compensation judge erred in granting Shaw’s motion for summary judgment.
2. The workers’ compensation judge erred in determining that Mr. Gibson did not sustain compensable injuries as a result of his work-related accident.
3. The workers’ compensation judge erred in determining that Mr. Gibson was not entitled to weekly indemnity benefits and medical bills stemming from his work-related accident.

Discussion

Motion for Summary Judgment

In his brief on appeal, Mr. Gibson notes that Shaw never disputed that a work-related accident occurred; instead, he points out, Shaw’s chief argument was that he was not entitled to indemnity and medical benefits because he was not injured. Mr. Gibson contends that in granting Shaw’s motion for summary judgment, the workers’ compensation judge ignored the medical evidence attached to the motion in opposition. Mr. Gibson argues that the workers’ compensation incorrectly granted summary judgment because this medical evidence gave rise to a material issue of fact concerning his injuries. He notes that the medical records show that he sustained a severe lumbar sprain and likewise contain Dr. Lee’s instructions taking-him off work Upending diagnostic testing. (He concedes that he was eventually cleared to return to work with light-duty restrictions.) Mr. Gibson points out that Dr. Lee recommended further treatment. In fact, he notes, each of the physicians whom he consulted placed him on light-duty restrictions. Nevertheless, he argues, in spite of these restrictions, Shaw did not offer him any light-duty work or rehabilitation services.

Incidental to Mr. Gibson’s argument concerning summary judgment is his contention that Shaw failed to pay medical expenses. On appeal, Mr. Gibson alleges that Shaw denied his requests for medical treatment and, with the exception of two visits to its physician of choice, failed to pay for any of his treatment, specifically, his visits to Dr. Lee, MRI’s and x-rays, prescription drugs from an Abbeville pharmacy, and an MRI performed at Virginia Commonwealth University.

In the instant matter on appeal, Shaw, the party who moved for summary judgment, did not have the burden of proof at trial. Accordingly, the success or failure of Shaw’s motion is properly determined by reference to the following provisions of La.Code Civ.P. art. 966:

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

We review de novo the ruling of the workers’ compensation judge granting Shaw’s motion for summary judgment. Louisiana Swabbing Serv., Inc. v. Enterprise Products Co., 00-1161 (La.App. 3 Cir. 5/2/01), 784 So.2d 862, writ denied, 01-1594 (La.9/14/01), 796 So.2d 684.

In the present case, Mr. Gibson claims entitlement to medical and indemnity benefits. Louisiana Revised Statutes 23:1031(A) provides, in this respect, that “[i]f an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.” In Sterling v. Asplundh Tree Expert Co., 03-266 (La.App. 3 Cir. 10/1/03), 856 So.2d 125, unit denied, 03-3017 (La.1/30/04), 865 So.2d 79, a panel of this court noted that in order to succeed in a claim for workers’ compensation benefits,

a claimant must establish by a preponderance of the evidence that an accident occurred on-the job site and-that an injury was Sustained. Garner v. Sheats & Frazier, 95-39 (La.App. 3 Cir. 7/5/95); 663 So.2d 57., A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Id. at 60. The evidence is viewed in a light most favorable to the claimant.

Id. at 127 (quoting Bryan v. Allstate Timber Co., 98-840, pp. 3-4 (La.App. 3 Cir. 12/16/98), 724 So.2d 853, 855).

Louisiana Revised Statutes 23:1221 establishes different types of disabilities for which wage benefits may be awarded, inter alia, temporary total disability, permanent total disability, and supplemental earnings benefits. See La.R.S. 23:1221(1), (2), and (3), respectively. Louisiana Revised Statutes 23:1221(1) and (2) define temporary total disability and permanent total disability as a claimant’s inability to engage in any employment, whether temporarily or permanently, as the case may be. With respect to temporary total disability benefits, La.R.S. 23:1221(l)(d) provides for the termination of such an award

| fiwhen the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.

In order to prove entitlement to temporary total disability benefits or to permanent total disability benefits, a claimant must demonstrate by clear and convincing evidence that he is physically unable to engage in any employment, including working while in any pain. La.R.S. 23:1221(l)(c) and (2)(c). Disability is a question of fact. Jones v. Universal Fabricators, 99-1370 (La.App. 3 Cir. 2/9/00), 758 So.2d 856, writ denied, 00-742 (La.5/12/00), 762 So.2d 13. Moreover, in order to prove entitlement to supplemental earnings benefits, a claimant must show by a preponderance of the evidence that his work-related injury resulted in an inability to earn wages equal to at least ninety percent of pre-disability wages. La.R.S. 23:1221(3) (c) (i).

In the case sub judice, Mr. Gibson contends that Shaw did not pay him wage benefits, but he does not specify to which type he is entitled. Reviewing the record de novo, we conclude that because Mr. Gibson has not asserted any inability to work, and because the evidence does not support such a determination, Mr. Gibson is not entitled to temporary total disability benefits or permanent total disability benefits. The medical records introduced below indicate that Mr. Gibson was released to work with only light-duty restrictions. Mr. Gibson has not demonstrated -that he is unable to earn at least ninety percent of his pre-injury wages; accordingly, he is not entitled 17to any workers’ compensation indemnity benefits as provided in La.R.S. 23:1221.

The transcript of the hearing contains a reference by counsel for Mr. Gibson to the substance of La.R.S. 23:1224 in support of his client’s claim for benefits — viz., that Mr. Gibson is entitled to wage benefits because he was held out of work for more than a week due to Dr. Lee’s instructions that he refrain from work pending processing of diagnostic reports. Louisiana Revised Statutes 23:1224 provides that “[n]o compensation shall be paid for the first week after the injury is received; provided, that in cases where disability from injury continues for six weeks or longer after date of the accident, compensation for the first week shall be paid after the first six weeks have elapsed.” (Emphasis added.) We find this provision inapplicable to the present appeal. Louisiana Revised Statutes 23:1224 implies that benefits are not to be paid for conditions lasting less than one week; however, it also presumes that the injury being compensated is a disabling injury. As stated above, Mr. Gibson has not produced evidence that establishes that he is disabled. Accordingly, we find that Mr. Gibson has not proven entitlement to wage benefits.

The second aspect of Mr. Gibson’s argument concerns Shaw’s failure to provide medical benefits. Mr. Gibson acknowledges that he was treated by Shaw’s choice of physicians, as per its instructions. However, he also received treatment from Dr. Carlos Cruz, an emergency-room physician at Abbeville General Hospital, and Dr. Kate Lee, his family physician. The record indicates that each of Mr. Gibson’s treating physicians diagnosed him with a lumbar strain/sprain. Mr. Gibson argues on appeal that summary judgment was inappropriate in this case because Shaw did not pay for his treatment with Dr. Lee, including MRI’s and x-rays, and did not pay for his prescription medications and for an MRI performed at Virginia Commonwealth University.

| ^Louisiana Revised Statutes 23:1121 provides that an injured employee may select his choice of physician as follows:

B. (1) The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S. 23:1124(B), when denied his right to an initial physician of choice. After his initial choice the employee shall obtain pri- or consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.
(2)(a) If the employee is treated by any physician to whom he is not specifically directed by the employer or insurer, that physician shall be regarded as his choice of treating physician.

Moreover, in Smith v. Southern Holding, Inc., 02-1071 (La.1/28/03), 839 So.2d 5, the Louisiana Supreme Court held that La. R.S. 23:1121 affords an injured worker the right to examination by a physician of his own choosing, even if he has already submitted to treatment by a physician chosen by the employer.

With respect to an employer’s responsibility for payment of medical expenses, La.R.S. 23:1203(A) requires an employer to provide all necessary medical treatment stemming from an employee’s work-related injury. See Schindler v. Orleans Reg’l Sec., 03-522 (La.App. 4 Cir. 12/3/03), 862 So.2d 1032. To recover medical expenses under La. R.S. 23:1203, the claimant must prove by a preponderance of the evidence that the expenses are reasonably necessary for treatment of a medical condition caused by the work injury. Id. In addition, an injured employee may recover expenses for medically necessary diagnostic tests recommended by his treating physician when needed to ascertain the appropriate course of treatment. McCrary v. New Orleans Health Corp., 01-1632 (La.App. 4 Cir. 9/26/01), 798 So.2d 1085.

Based upon our de novo examination of the record, we find that the workers’ compensation judge erred in granting summary judgment in Shaw’s favor as to Mr. Gibson’s claim for medical expenses. Shaw did not demonstrate that it had been | ¡¡relieved of its obligation to provide medical benefits as required by La.R.S. 23:1203(A). Accordingly, we remand for the taking of evidence as to the cost of treatment, diagnostic tests, and associated medication.

However, we find that Mr. Gibson is not entitled to reimbursement for the MRI conducted at Virginia Commonwealth University in August 2003, more than one year after the accident at issue and nearly a year after MRI’s ordered by Dr. Lee indicated no abnormalities. In addition, at Shaw’s request, Mr. Gibson saw Dr. J. Frazer Gaar, an orthopedist, for an evaluation on July 30, 2003; Dr. Gaar noted that x-rays taken of Mr. Gibson’s spine were normal and opined that Mr. Gibson had reached maximum medical improvement. In order to recover for the expense of the MRI performed at Virginia Commonwealth, Mr. Gibson is required to prove its medical necessity. See La.R.S. 23:1203(A). We find no evidence in the record that would support the medical necessity of this MRI, after three physicians had diagnosed Mr. Gibson with a lumbar strain/sprain and no other MRI’s had indicated any abnormalities.

DECREE

For the foregoing reasons, the ruling of the workers’ compensation judge is affirmed as to that portion of the judgment dismissing Mr. Gibson’s claims for indemnity benefits and reversed in part with respect to that portion of the judgment dismissing Mr. Gibson’s claims for Dr. Lee’s medical expenses and prescription drugs and remanded for the taking of further evidence as to cost. Costs of this proceeding are to be divided between the claimant, Mr. Ricky Gibson, and the employer, Shaw Global Energy Services.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

COOKS, J., concurs in part and dissents in part and assigns written reasons.

It COOKS, J.,

concurring in part and dissenting in part.

After being instructed not to return to work for two weeks, Mr. Gibson’s treating physician eventually released him to return to work with “light duty” restrictions. There is nothing in the record to indicate Mr. Gibson was released from her care or had reached maximum medical improvement. A “lumbar strain/sprain” can be a disabling condition; it obviously was in the case of Mr. Gibson because he was only released to perform light duty work. This was not a trial. Mr. Gibson’s burden on a motion for summary judgment on the issue of disability only requires him to present prima facie evidence that: (1) He sustained a work-related injury; (2) The injury prevents him from performing his prior work duties. The record contains enough evidence to show that Mr. Gibson was injured on the job — a fact that is not disputed; and he sustained a disabling injury- — he could not work for two weeks as instructed by his physician and thereafter could perform only “light duty” work. The employer does not argue that Mr. Gibson’s prior job duties met the restrictions imposed on him by his treating physician. The record is devoid of any evidence suggesting that such light duty work was available in the open market which Mr. Gibson could perform and he did not seek such employment or the employer was willing to accommodate Mr. Gibson’s medical limitations resulting from his diagnosed condition, i.e., lumbar strain/sprain. Again, I emphasize this was a summary judgment motion; not trial on the merits.

12There is a serious dispute relating to the “extent” of Mr. Gibson’s disability. There is sufficient, prima facie evidence to show he sustained an injury that had disabling consequences because he was released to perform only “light duty” work. I respectfully dissent from the majority opinion on this point. In all other respects, I concur with the majority opinion.

      . Although Mr. Gibson produced an affidavit below that indicated that Shaw never offered him light-duty work, and although he has made this contention on appeal, there is no other evidence to indicate that this is so. Counsel for Mr. Gibson contended at the motion hearing that in order to defeat this aspect of his claim, Shaw would have to produce a counter-affidavit indicating that it did, in fact, offer Mr. Gibson light-duty work. It is unclear from the record what duties Mr. Gibson performed at work after his accident,' and it is likewise unclear how long Mr. Gibson worked for Shaw following .his injury. Our review of the record reveals no evidence that Mr. Gibson attempted to go back to work following his injury, even after he had been released on light-duty status.


author: J^CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Laquinn INGRAM.
    No. 03-KA-1246.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2004.
    Rehearing Denied Nov. 18, 2004.

      Harry J. Morel, Jr., District Attorney, Twenty-Ninth Judicial District, Parish of St. Charles, Kim K. McElwee, Assistant District Attorney, Hahnville, LA, for Plaintiff/Appellant.
    Maria M. Chaisson, Chaisson & Chais-son, Destrehan, LA, for Defendani/Appel-lee.

      Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   J^CLARENCE E. McMANUS, Judge.

This is an appeal by the state from the trial court’s ruling granting defendant’s motion to quash the indictment. For reasons that follow, we reverse the ruling of the trial court and remand this matter for further proceedings.

On June 15, 2000, the St. Charles Parish Grand Jury issued a bill of indictment charging defendant, Laquinn Ingram, with attempted second degree murder of Brett Altazan. La. R.S. 14:27, 14:30.1. On June 21, 2000, defendant was arraigned, and pled not guilty.

On January 29, 2002, under a separate case number, the St. Charles Parish District Attorney’s Office filed a bill of information charging defendant with armed robbery of Brett Altazan. The armed robbery charge arose out of the same operative facts as the attempted murder. Defendant was tried and acquitted on the armed robbery charge.

| ,qOn June 10, 2002, defendant filed a motion to quash the murder indictment, claiming that the state was collaterally es-topped under the Fifth Amendment’s Double Jeopardy Clause from trying him for second degree murder. The trial court granted defendant’s motion, and the state filed for writ of review. This Court ordered that the state’s application for supervisory review would be considered as an appeal.

In its sole allegation of error, the state contends that the trial court erred in granting defendant’s motion to quash the indictment for attempted second degree murder following defendant’s acquittal on the related armed robbery charge. Defendant responds that the trial court’s ruling was sound, in that the state is barred from trying him for attempted second degree murder under the doctrine of collateral estoppel. He argues that an ultimate issue of fact, the identity of the perpetrator, has been resolved by his acquittal on the armed robbery charge.

The Fifth Amendment’s Double Jeopardy Clause protects against successive prosecutions following acquittal or conviction, as well as multiple punishments for the same offense. See also, LSA-Const. art. I, § 15; La.C.Cr.P. art. 591 et seq. The collateral estoppel component of the Double Jeopardy Clause prohibits the state from relitigating an issue of ultimate fact that has been determined by a valid and final judgment. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970); State v. Cotton, 00-0850, pp. 5-6 (La.1/29/01), 778 So.2d 569, 574, reh’g granted in part, on other grounds, 00-0850 (La.4/20/01), 787 So.2d 278. A fact is considered “ultimate” if it is necessary to a determination of the defendant’s criminal liability. State v. Miller, 571 So.2d 603, 607 (La.1990).

Collateral estoppel bars relitigation of only those facts necessarily determined in the first trial. United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir. 1997), cert. denied, 522 U.S. 934, 118 S.Ct. 341, 139 L.Ed.2d 265 (1997). Where a fact is not necessarily determined in a previous trial, the state is not barred Rfrom reexamining the issue. Id. Accordingly, the first step in resolving a collateral estoppel claim is to discern which facts were “necessarily determined” in the first trial. Id.

The courts have placed the burden “on the defendant to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” Dowling v. United States, 493 U.S. 342, 350, 110 S.Ct. 668, 673, 107 L.Ed.2d 708 (1990). The application of this test to criminal cases is complicated by the fact that an acquittal by general verdict does not specify the facts “necessarily decided” by the jury. Therefore, to determine which facts were “necessarily decided” by the general acquittal in the first trial, it is necessary to examine the record of the prior proceeding in order to determine “ ‘whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ ” Ashe v. Swenson, 397 U.S. at 444, 90 S.Ct. at 1194 (citations omitted).

In addition to the statutory elements of the charged offense, the state is required to prove the identity of the perpetrator. State v. Bradley, 03-384, p. 6 (La.App. 5 Cir. 9/16/03), 858 So.2d 80, 85, writ denied, 03-2745 (La.2/13/04), 867 So.2d 688. Identity is, therefore, an “ultimate fact.” Defendant argues that, because his armed robbery and attempted murder charges arose out of the same series of events, the armed robbery jury “necessarily decided” the issue of identity.

In ruling on defendant’s motion to quash, the trial judge considered defendant’s earlier jury acquittal on an armed robbery charge that was factually related to the attempted murder charge. The trial judge stated that he based his decision granting the motion to quash on his belief that the jury found that defendant was not present at the beating of the victim.

In this appeal, the state argues the trial court erred in finding that the armed robbery jury determined he was not present at the crime scene. The state submits | Bthat the jury’s unanimous verdict of not guilty was likely based on grounds other than identity, and that the jury did not determine an ultimate issue of fact. Defendant counters that the jury’s verdict was based on identity, an ultimate issue of fact. He argues that the state is, therefore, barred from pursuing the attempted murder charge by the principals of collateral estoppel.

At the armed robbery trial, Charles Bri-za testified that he and the victim, Brett Altazan, were employed by a Baton Rouge towing company on one of its tugboats. They worked on the Mississippi River. On the evening of February 12, 2000, Briza and Altazan got off the boat at Hahnville so Briza could cash a cheek. Briza testified that Altazan asked him for money, and that he gave Altazan between $40 and $60. After Briza gave him the money, Altazan went off alone for twenty to thirty minutes.

That evening the two men went twice to a convenience store attached to a Shell filling station on River Road. Briza testified that he saw about twelve young men in the Shell parking lot. One of them was holding a baseball bat. When Briza went into the store the first time, Altazan stayed outside. As the two men were leaving the filling station, four or five of the young men in the parking lot attempted to talk to Altazan.

Briza and Altazan returned to the Shell station some time later. While Briza was inside buying beer, he saw some of the young men approach Altazan outside the store. Briza exited the store and gave Altazan a beer. Briza testified that two black men in a car circled them in the parking lot. One of the men told Altazan something like, “ T already told you one time.’ ”

Briza and Altazan became concerned for their safety, and they tried to find a ride back to their boat. When their attempts were unsuccessful, they began walking. The young men loitering outside the store followed them. Some of them cornered Altazan in back of a nearby house. Briza lost sight of his friend. He | Rfrantically knocked on the door of the residence in an effort to summon help. The man inside the house would not open the door. Briza searched for Altazan, and found him, unmoving, on the ground. Altazan’s head had been badly beaten, and he was making gurgling sounds. Briza went to the door of the house again and asked the resident to call police. The man complied.

Police reported to the scene, and Alta-zan was airlifted to West Jefferson Medical Center in Marrero. Dr. John Steck, a neurosurgeon at West Jefferson, testified that he treated Altazan’s head injuries. He stated that the victim’s skull was fractured in several places, and that a large portion of his skull had separated from the surrounding bone. The doctor further testified that the injuries were consistent with several blows from a baseball bat. Lizette Hebert, Altazan’s sister, testified that the victim was forty-two years old, and was confined to a wheelchair due to the head injuries he sustained in the attack. Alta-zan must live at a nursing facility, where he receives full-time care. Briza testified that he did not see who attacked Altazan. Two days after the incident, he returned to the Shell station and saw Ralph Dee, whom he recognized as one of the young men in the parking lot before the attack. Briza reported the sighting to police. Dee testified at trial that police went to his house and questioned him. Detective Renee Kinler of the St. Charles Parish Sheriffs Office testified that, based on Dee’s statement, she obtained a warrant for the arrest of defendant, Laquinn Ingram.

Dee testified that he and his friend were talking in the Shell parking lot when Briza and Altazan appeared. When they saw the two men had money, they discussed taking it and using it to get into a party later that night. Defendant followed Briza and Altazan, carrying a bat that Dee had brought to the parking lot. Dee caught up with defendant, and saw him hitting the victim with the bat. Dee testified that defendant was holding the bat with both hands and swinging it as if he were playing baseball. Dee said it looked to him as if defendant went through |7Altazan’s pockets. Although he assumed defendant took something from the victim, Dee conceded that he was not certain of that. Dee grabbed defendant and told him they had to leave.

Gabriel Bennett, age fifteen at the time of the incident, testified that was among the group of young men in the Shell parking lot. He and defendant were discussing a party they planned to attend that night. Bennett saw Briza and Altazan leaving the parking lot. He testified that he saw Ralph Dee with a wooden baseball bat.

Bennett testified that, as Briza and Alta-zan left the parking lot, defendant said he was going to rob them. Defendant took off after the two men. Bennett followed defendant across River Road. Bennett testified he saw the victim lying on the ground, and defendant was beating him with a bat. Defendant hit the victim about eight times. While defendant was beating Altazan, Bennett searched the victim’s jacket for money. He did not find any. Bennett saw defendant checking around the victim’s ankles for money, but he did not see defendant take anything at that point. Defendant later showed Bennett about $40 in cash, and told him he had taken the money from the victim.

Bennett testified that neither he nor Ralph Dee hit the victim. Eventually Dee took the bat from defendant and ran away with it.

Graille Howard testified that she went to the convenience store at the Shell station at about 9:15 on the night of February 12, 2000. She saw a lot of people in the parking lot, which was not unusual. Alta-zan and Briza asked her for a ride, and she refused them. Howard said she saw defendant leaving the parking lot when she arrived at the filling station, but she did not see him when she left a short time later.

Nathaniel Evans testified that he picked up defendant from his home in Hahnville between 10:00 and 10:30 on the night of February 12, 2000. They went | sto a party in Laplace. Evans testified that he did not see defendant with any money that night. On the contrary, defendant borrowed money from others to pay the party’s $10 cover charge.

On cross-examination, Dee testified that he repeatedly lied to police during their investigation in order to protect himself and Bennett. Dee said he did not cooperate with the prosecution until after Bennett was convicted of armed robbery. He then agreed to testify for the state in exchange for a suspended sentence. Bennett stated he was testifying for the state in exchange for the prosecutor’s recommendation that he be sentenced to ten years on his armed robbery conviction.

In Ashe, 397 U.S. at 445, 90 S.Ct. at 1195, the Supreme Court concluded that the jury’s general verdict of acquittal “necessarily decided” the question of identity in the defendant’s armed robbery prosecution, as identity was the “single rationally conceivable issue in dispute before the jury.” The Ashe court found that “the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that Knight had not been a victim of that robbery.” Id. The instant case is factually distinguishable from Ashe, in that defendant’s jury might just as likely have based its verdict on the state’s failure to prove there was a taking. The only evidence at trial to support a finding that defendant took something of value from Altazan (a required element under LSA-R.S. 14:64) was Bennett’s testimony that defendant later showed him some money and claimed he took it from the victim. Gabriel Bennett and Ralph Dee were both witnesses to the attack, and neither could say he saw defendant take something from Altazan.

“When a 'fact is not necessarily determined in a former trial, the possibility that it may have been does not prevent re-examination of that issue.’ ” United States v. Brackett, 113 F.3d at 1398 (quoting United States v. Lee, 622 F.2d 787, 790 (5th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981)). While it is possible that the armed robbery jury based its verdict on the identity issue, it is equally possible that it did not. The state is not, therefore, precluded by collateral estoppel from trying defendant on the attempted murder charge. The state may not try defendant under the felony murder section of La. R.S. 14:30.1, using armed robbery as the supporting felony, as that would constitute double jeopardy. Rather, it must try defendant under the specific intent provisions of the statute.

Accordingly, we find that the trial court erred in granting defendant’s motion to quash the indictment. We therefore reverse the trial court’s ruling, reinstate the indictment, and remand the case for further proceedings.

JUDGMENT GRANTING MOTION TO QUASH REVERSED, INDICTMENT REINSTATED, CASE REMANDED.


author: THOMAS, J.,

text:
    Ronnie G. OSWALT, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01696-COA.
    Court of Appeals of Mississippi.
    March 16, 2004.
    Rehearing Denied July 27, 2004.
    Certiorari Denied Nov. 4, 2004.
    Steven E. Farese, David Lee Robinson, Ashland, attorneys for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J., THOMAS and MYERS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Ronnie Oswalt appeals his conviction by a Chickasaw County jury of two counts of arson. He assigns two errors for appellate review:

I. THE TRIAL COURT ERRED BY NOT GRANTING RONNIE OS-WALT’S MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF THE STATE’S CASE-IN-CHIEF, THE TRIAL COURT ERRED BY NOT GRANTING A DIRECTED VERDICT AT THE CLOSE OF ALL THE TESTIMONY, AND THE TRIAL COURT ERRED BY NOT GRANTING RONNIE OSWALT’S MOTION FOR JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT.

II. THE TRIAL COURT ERRED BY ALLOWING EVIDENCE OF OTHER PRIOR CRIMES, WRONGS OR BAD ACTS ALLEGEDLY COMMITTED BY RONNIE OSWALT.

¶ 2. We find that Oswalt was entitled to a directed verdict and therefore reverse and render judgment in favor of the appellant.

■ FACTS

¶ 3. Ronnie and Sherry Oswalt had been married approximately ten years when Sherry decided to end the marriage in September 2001. Sherry and her child moved in with her mother, Rebecca Scott. Over the next several months, Oswalt made several attempts to contact and reconcile with Sherry. ■ These were unsuccessful and usually ended with angry shouting by Oswalt. Unpleasant calls were also made to the homes of Sherry’s two brothers and their respective wives, threatening to get even with them for what Oswalt perceived was their interference in his marriage.

¶4. On the morning of December 22, 2001, Oswalt went to the home of Rebecca Scott and attempted to speak with Sherry, who had been about to leave the home to go shopping. The encounter was characterized by screaming and nonspecific threats by Oswalt. Sherry locked herself in her truck in the driveway of the home. Scott heard the noise and looked out the window of the house. Scott later said that Oswalt came close to the window and told her, through the window, that he intended to burn the homes of Sherry’s1 two brothers and Scott’s home. Scott was uncertain of the exact time this statement was said to have been made but she supposed it occurred around 9:30 a.m. or soon after. No one else.heard the threat. Shortly thereafter, Oswalt left the home.

¶ 5. While Oswalt was outside, Scott called her daughter-in-law, Marianne Crawford, and asked that Marianne call the police due to her concern over Oswalt’s behavior. Police arrive after Oswalt had retreated. Scott did not speak to the responding officer nor did she tell anyone of the threats Oswalt had made to burn her home and those of her sons.

¶ 6. At 10:50 a.m., emergency services was notified of a house fire at the residence of Darrell Crawford. The fire was determined to have originatéd on the couch in the den of the house. Darrell Crawford was home' sleeping at the time the fire was discovered. There were no signs of forced entry into the home. No evidence of an accelerant, such as gasoline, was found. The fire investigator concluded the fire had been started using an open flame, such as a lighter or match.

¶ 7. One hour later, officials were called to a fire at the home of Sherry’s other brother, Randy Crawford. The house was unoccupied by the' family at the time. Clothing near the washer and dryer had caught fire. Again, investigators found no evidence of an accelerant. Both fires were deemed suspicious. At some point, family members alerted police to their suspicion the fires had been started by Oswalt based upon his prior behavior towards them. A police officer was dispatched to Oswalt’s home, apparently for the sole purpose of determining his location and watching him. Oswalt was found at home when authorities arrived.

¶ 8. Later that day, Oswalt was arrested. He was indicted for two counts of arson. Five months later, on the eve of a bail hearing, Scott for the first time reported the threat Oswalt had made to her on the morning of the fires. Trial on the charges was had on September 20, 2002. The jury found Oswalt guilty on both charges the following day.

ANALYSIS

Sufficiency of the evidence

¶ 9. In his first assignment of error, Oswalt contests the denial of his motions for a directed verdict and for a judgment of acquittal notwithstanding the verdict. Both of these challenge the legal sufficiency of the evidence presented against a defendant. Higgins v. State, 725 So.2d 220, 224 (¶ 20) (Miss.1998).

¶ 10. When reviewing a claim of insufficient evidence on appeal, we look to the evidence most supportive of the State’s case. Harrell v. State, 583 So.2d 963, 964 (Miss.1991). “All evidence supporting, or tending to support the verdict, as well as all reasonable inferences that may be drawn from the evidence, must be accepted as true.” Id. Where there is competent evidence to sustain a verdict, it will not be disturbed on appeal. Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979).

¶ 11. It was the fire investigator’s considered opinion the fires had been deliberately set. This does not connect Oswalt with the fires in any fashion. There is no physical evidence tying him to the crimes and no witnesses who saw him in the vicinity of either premises around the time the fires were ignited. Although there was evidence of forced entry into the home of Randy Crawford, there was none at the home of Darrell Crawford. Darrell Crawford was home at the time the fire started but there is no evidence that he noticed anything untoward occurring in the house, nor any evidence that Oswalt had a key or other access into the home. The only apparent evidence tending to link Oswalt with the fires is the statement he may have made to his mother-in-law on the morning of the blazes.

¶ 12. For well over a century, the law of this State has been that a threat alone is insufficient to support a conviction of arson. Luker v. State, 14 So. 259 (Miss.1894) (see also Strong v. State, 23 So. 392 (Miss.1898); Holloman v. State, 151 Miss. 202, 117 So. 532 (1928); Rutledge v. State, 171 Miss. 311, 157 So. 907 (1934); Gatlin v. State, 754 So.2d 1157 (Miss.1999)). All of these cases deal with situations similar to our own in that animosity existed between the defendant and the owner of the burned property, and the defendant was known to have made threats against the property owner, either specifically to bum property or general threats of retribution. It has been uniformly held that threats alone create no more than a suspicion of guilt and not proof of guilt beyond a reasonable doubt. Luker, 14 So. at 259.

¶ 13. This law is so well entrenched that the supreme court has taken the extraordinary step in the recent past of reversing a conviction for insufficient evidence even though such was not assigned as error by the appellant. White v. State, 441 So.2d 1380, 1381 (Miss.1983). That court has also reversed decisions of this Court affirming a conviction in situations with arguably more evidence than was presented against Oswalt. Gatlin, 754 So.2d at 1159(¶ 9).

¶ 14. These precedents make clear that something more than a threat must link a defendant with the setting of a fire. It need not be direct evidence. Circumstantial evidence may be sufficient to properly convict one of arson. Miller v. State, 856 So.2d 420, 423 (¶ 18) (Miss.Ct. App.2003). Circumstantial evidence of means, motive and opportunity would likely suffice but not circumstantial evidence of motive alone. Mere suspicion, no matter how well grounded, is an insufficient basis upon which to base a criminal conviction.

¶ 15. Because we reverse and render judgment based upon the sufficiency of the evidence, the question of improper admission of prior bad acts is moot.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF CHICKASAW COUNTY IS REVERSED AND RENDERED. COSTS OF THIS APPEAL ARE ASSESSED TO CHICKASAW COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.