author: 1THIBODEAUX, Judge. LEZELL, J.,

text:
    STATE of Louisiana v. Felton Cofield BEY.
    No. 03-277.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 15, 2003.

      Robert Richard Bryant Jr., District Attorney, Carla Sue Sigler Esq., Assistant District Attorney, Lake Charles, LA, for Plaintiff/Appellee-State of Louisiana.
    Kenota Pulliam Johnson, La. Appellate Project, Shreveport, LA, for Defendant/Appellant-Felton Cofield Bey.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   1THIBODEAUX, Judge.

The Defendant, Felton Cofield Bey, appeals his conviction by a jury of molestation of a juvenile, a violation of La.R.S. 14:81.2, on the basis of insufficiency of the evidence and his sentence of eight years at hard labor, with four years suspended, on the basis of excessiveness.

We reject both contentions and affirm his conviction and sentence.

FACTS

The Defendant was dating V.M., the mother of the victim. He visited her residence while V.M. was at work and enticed J.M. into her mother’s bedroom. Once inside the room, the Defendant began “tongue kissing” J.M. and rubbing her breast and vaginal areas. J.M. testified that he implored her to avoid writing about his actions in her diary as this would implicate him. Part of the incident was witnessed by L.M., J.M.’s sister. J.M. also told her what had happened. L.M. promptly telephoned their mother.

The Defendant denied touching J.M. in any manner.

SUFFICIENCY OF THE EVIDENCE

The Defendant contends the evidence presented at trial was insufficient to support the conviction of molestation of a juvenile. The Defendant specifically contends that he did not molest the victim and the testimony at trial was hearsay and inconsistent.

In reviewing sufficiency claims, this court has made the following observations:

| ¡When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino [v. King], 436 So.2d 559 [La.1983], (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

State v. Paddio, 2002-722, p. 2 (La.App. 3 Cir. 12/11/02); 832 So.2d 1120, 1123.

When circumstantial evidence is used to prove the commission of the offense, La.R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a purely separate test from the Jackson sufficiency standard to be applied instead of a sufficiency of the evidence test whenever circumstantial evidence forms the basis of the conviction. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt.
State v. Rosiere, 488 So.2d 965, 968 (La.1986).

State v. Oxley, 00-1523, p. 2 (La.App. 3 Cir. 5/16/01); 802 So.2d 35, 37.

The Defendant was convicted of molestation of a juvenile, a violation of La.R.S. 14:81.2.

To convict a defendant of molestation of a juvenile, the state must prove: (1) the defendant is a person over the age of 17; (2) the victim is a person under the Page of 17; (3) there is an age difference of at least two years between the persons; (4) the defendant committed a lewd or lascivious act upon the person or in the presence of the victim; (5) the defendant committed such act with the intention of arousing or gratifying the sexual desires of either the defendant or the victim; and (6) the defendant committed the act either by the use of (a) force, violence, duress, menace, psychological intimidation, or threat of great bodily harm, or (b) influence by virtue of a position of control or supervision over the victim. (Citations omitted).

State v. Mickens, 31,737, p. 3 (La.App. 2 Cir. 3/31/99); 731 So.2d 463, 466.

Age

J.M. testified that she was twelve years old on November 15, 1998. The Defendant testified that his oldest child was thirty-five. Obviously, the Defendant exceeds the age of seventeen. Thus, there is an age difference of at least two years between the Defendant and J.M.

Lewd or Lascivious Act

The trial court chose to believe the testimony of J.M. regarding the specific acts of the Defendant. He denied those acts. The trier of fact made a credibility determination which we shall not disturb.

Intention of Arousing or Gratifying Sexual Desires

Quite simply, the acts of intrusion under the shirt and bra and touching of the breasts and vaginal area were sufficient to prove the essential element of specific intent to arouse or gratify sexual desire.

Supervision

The record is replete with evidence supporting the acts of Defendant in babysitting the minor children of V.M., assigning chores to them, and disciplining them. L.M. described Defendant as “pretty much of a father figure.” Indeed, the LDefendant specifically testified he was in control of everyone in the victim’s house on November 15, 1998 and the minors were under his supervision.

The Defendant forcefully contends that the inconsistent testimonies of J.M. and L.M. bolsters his position that the evidence is too insufficient to warrant a conviction. We disagree. Only one of the alleged inconsistencies deals with the actions of the Defendant in molesting J.M. That inconsistency is the difference in the testimony of J.M. and L.M. regarding the actions of the Defendant. However, J.M.’s testimony concerning the Defendant’s actions was corroborated by the testimony of V.M., her mother. All other inconsistencies do not affect the conclusion that the Defendant molested J.M.

The Defendant further attempts to discredit J.M. and L.M. by asserting that they concocted the molestation charge to remove him from their lives. Moreover, L.M.’s and J.M.’s accusations were vindictive because he, the Defendant, had punished J.M. for stealing candy on November 13, 1998. Again, the trier of fact made credibility determinations. We shall not disturb such determinations.

EXCESSIVE SENTENCE

In his second assignment of error, the Defendant contends the trial court imposed an excessive and unconstitutional sentence in light of the lack of specific facts and in the circumstances of this case. In his third assignment of error, the Defendant contends the sentencing judge erred in failing to satisfactorily comply with the requirements of Article 894.1 of the Louisiana Code of Criminal Procedure in sentencing the appellant. In his fourth assignment of error, the Defendant contends the trial court erred in denying his Motion to Reconsider Sentence. Inasmuch as these three assignments of error concern the Defendant’s sentence, they will be addressed together.

In State v. Walker, 96-112 (La.App. 3 Cir. 6/5/96); 677 So.2d 532, writ denied, 96-1767 (La.12/06/96); 684 So.2d 924, this court held:

Article 1, § 20 of the Louisiana Constitution of 1974, prohibits “cruel, excessive, or unusual punishment.” A sentence which falls within the statutory limits may nevertheless be excessive under the circumstances. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Naquin, 527 So.2d 601 (La.App. 3 Cir.1988). To constitute an excessive sentence this court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981); State v. Everett, 530 So.2d 615 (La.App. 3 Cir.1988), writ denied, 536 So.2d 1233 (La.1989). The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Howard, 414 So.2d 1210, 1217 (La.1982).

Id. at pp. 3-4, 534-35.

With respect to the issue of compliance with La.Code Crim.P. art. 894.1, this court stated in State v. Anderson, 95-1688, p. 4 (La.App. 3 Cir. 5/8/96); 677 So.2d 480, 483:
The Legislature has provided criteria to aid a sentencing court in determining whether a sentence of imprisonment should be imposed and whether suspension of a sentence or probation is warranted. La.Code Crim.P. art. 894.1; State v. Klause, 525 So.2d 1076 (La.App. 3 Cir.1988). Paragraph C of Article 894.1 requires the court to state for the record the considerations taken into account and the factual basis used when imposing a sentence. The sentencing court need not articulate every circumstance or read through a checklist of items to comply with the requirements of La.Code Crim.P. art. 894.1. State v. Pontiff, 604 So.2d 71 (La.App. 3 Cir.1992). However, the record must affirmatively reflect that adequate consideration was given to the codal guidelines in particularizing the defendant’s | fisentence. State v. Smith, 433 So.2d 688 (La.1983).
If there is an adequate factual basis for the sentence contained in the record, the trial court’s failure to articulate every circumstance listed in Article 894.1 will not necessitate a remand for resentencing. State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir.1985), appeal after remand, 496 So.2d 1379 (La.App. 3 Cir.1986); State v. Morgan, 428 So.2d 1215 (La.App. 3 Cir.1983), writ denied, 433 So.2d 166 (La.1983); See also, Smith, 433 So.2d 688 and State v. Stein, 611 So.2d 800 (La.App. 3 Cir.1992). Even though art. 894.1 has undergone several major revisions, the reasoning used in these cases is still applicable.
State v. Iron, 2000-1238, p. 10 (La.App. 3 Cir. 2/15/01); 780 So.2d 1123, 1128, writ denied 2001-1232 (La.3/15/02); 811 So.2d 898, reconsideration denied 2001-1232 (La.6/7/02); 817 So.2d 1142.

As stated in State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir.1985), appeal after remand, 496 So.2d 1379 (La.App. 3 Cir.1986):

There are two underlying purposes of the codal requirement that the sentencing court articulate the specific reasons based on particular facts and considerations for imposing a sentence. First, it ensures that the sentence is particularized to the defendant. State v. Murdock, 416 So.2d 103 (La.1982). In addition, it aids the reviewing court in the determination of whether the sentence imposed is excessive by providing an actual indication of whether the sentencing court adequately considered the statutory guidelines. State v. Murdock, supra; State v. Forshee, 395 So.2d 742 (La.1981); State v. Perry, [470 So.2d 426 (La.App. 3rd Cir. 1985)] supra.

Id at 1186.

The Defendant contends the court failed to give adequate consideration to the mitigating factors in this case including the fact that the Defendant is a husband, his wife was pregnant, he was a church goer, and an active and positive influence in the community. The Defendant also contends that the sentence imposed pin this case was not justified and not tailored to this Defendant for this particular crime.

The Defendant was sentenced to eight years in the custody of the Louisiana Department of Corrections; however, four years of the sentence was suspended and, upon the Defendant’s release from incarceration, he was ordered placed on supervised probation for a period of five years.

The Defendant spoke at sentencing asserting he did nothing wrong and did not touch any of V.M.’s children “in any immoral fashion at all.”

The judge made the following comments at sentencing:

And I think [the jury] judged your credibility to be someone that they could not believe,—
—based on several of the things that happened during the course of that trial.
You still to this day deny that you had any involvement at all and you did anything wrong, and that was the position you took during the course of your trial. And the jury, you know, just basically threw that away. They didn’t think that you were telling the truth. They didn’t believe anything that you said because of several conflicting things and other people coming to court who they believed contrary to what you said. Okay.
And then I get the pre-sentence report and it shows that when — I don’t know, in the '70s or something like that, you impregnated your 12-year old stepdaughter. This child was about the same age as this child, okay. You got a heck of a break out of that deal, you served some time on probation, and then you had it wiped off your record, but you hid that from us, you didn’t talk about that at all during the course of your trial....

The Defendant responded as follows:

|RThrough that time period, I was a practicing alcoholic, so I did a lot of blackouts. I had no knowledge of anything that I had done improper.
After about a year or so one of the young men in the community came to me and said to me, do you know that that child is not yours? I took that information to the probation department, to my probation officer.
[H]e said the best thing to do is leave it alone. So I went through that, served that probation. In 1989 that then young woman and her sister came to my house and she ... told me that she was wrong for accusing me of something that I didn’t do....

When questioned regarding whether or not he had sexual intercourse with his stepdaughter, the Defendant denied the allegations.

The judge then made the following comments:

In explaining this, the offender says that he — that had sex with his 12-year old stepdaughter and was convicted. Now, it seems to me that if you had an explanation like you have given this court an explanation, you would have told your probation officer at that time that that’s what had happened. It seems to me that when you were asked questions similar to this question during the course of the trial, you would have made an effort to try to explain that.
The Court has reviewed the pre-sen-tence report, heard statements of the victims’ (sic) mother, looked at the supplement to the pre-sentence report, listened to the explanation of the defendant. I’m satisfied that during — there’s an undue risk that during any period of a suspended sentence the defendant will commit another crime and he’s in need of correctional treatment or custodial environment that can be provided most effectively by commitment to an institution, and a lesser sentence would depreciate the seriousness of your crime.
| alt’s also clear to me that you knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to her youth, and by your own admission at trial, you used your position and status to facilitate the commission of the offense. I do not find hardly anything mitigating.

The judge then sentenced the Defendant.

After the judge sentenced the Defendant, the Defendant informed the court that his wife was pregnant, his mother was having strokes regularly and he was her caretaker, he was about to lose his house, he was chairman of the district Alcoholics Anonymous, and had recently started a Cocaine Anonymous in the area.

The judge responded to the Defendant’s comments as follows:

The Legislature saw fit to say that you could get up to — not less than one year nor more than 10 years. I didn’t give you the maximum time. I didn’t give you the minimum time, either, because I feel like that this is a situation that you knew, you had gotten yourself into before.
I’m sorry that it creates a hardship for you, it creates a hardship for your family, but I didn’t bring that hardship on your family; you brought that hardship on your family.

After these statements, the State informed the judge that the maximum sentence applicable in this case was fifteen years. The judge then stated that he did not think the Defendant had been “specifically charged with something like that.” The State contended the Defendant was charged under the supervision provision of La.R.S. 14:81.2 because the bill had been amended. The judge then made the following comments:

There was testimony to that effect, but I’m not treating it in that fashion. Potentially you could have been subjected to 15 years. I’m treating it as if your maximum would be 10 years. Mr. Kim-ball thinks I ought to treat it the other way, but I’m giving you the benefit of the doubt.

| inThe Defendant then informed the judge that he had to have surgery on his back due to spinal compression.

The Defendant filed a Motion to Reconsider Sentence on May 12, 2002, asserting the following: “Defendant submits that the sentence imposed is unduly harsh and places a severe burden on himself and his family. Furthermore, the sentence imposed in this matter creates an emotional and financial hardship upon Mr. Cofield-Bey’s wife.” The motion was denied.

An Amended Motion to Reconsider Sentence was filed on May 12, 2002. The motion alleged that prior to sentencing, the Defendant was evaluated by Dr. Aretta Rathmal and he intended to submit her findings at sentencing. However, Dr. Rathmal could not locate the Defendant’s file until after sentencing. The Defendant contended the evaluation would serve as a mitigating factor at sentencing.

A hearing was held on Defendant’s Amended Motion to Reconsider Sentence on May 31, 2002. The judge considered Dr. Rathmal’s report stating the Defendant was basically normal and had no problems that would require the Court to treat him differently. The judge then stated that if he had had the report on April 19, 2002, the date of sentencing, it would not have made any difference in the sentence imposed. The judge then noted that the fact that the Defendant’s wife was pregnant did not change anything. The judge denied the motion.

At sentencing, the judge noted he considered the pre-sentence investigation report (PSI), the supplement to the PSI, the testimony of the victim’s mother, and the Defendant’s statements. The judge also considered several factors set forth in La. Code Crim.P. art. 894.1 before sentencing the Defendant. Although the trial court did not articulate every factor set forth in Article 894.1, the record clearly reflects the judge adequately considered those factors. Aso, there is no Inrequirement that specific mitigating factors be given any particular weight by the sentencing court. State v. Dunn, 30-767, p. 2 (La.App. 2 Cir. 6/24/98); 715 So.2d 641, 643.

The bill of indictment was amended to reflect “or by use of influence by virtue of a position of control or supervision over the juvenile” on June 25, 2001. The trial court sentenced the Defendant based on a maximum penalty of ten years. Inasmuch as the bill of indictment was amended to add the portion of La.R.S. 14:81.2 pertaining to supervision over the juvenile, we will review the Defendant’s sentence under La. R.S. 14:81.2(C).

Louisiana Revised Statutes 14:81.2 provides, in pertinent part:

C. Whoever commits the crime of molestation of a juvenile when the offender has control or supervision over the juvenile shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than one nor more than fifteen years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with Code of Criminal Procedure Article 893.

For this conviction of molestation of a juvenile over whom he had control or supervision, the Defendant was exposed to a maximum sentence of fifteen years at hard labor and a maximum fíne of ten thousand dollars. The Defendant received a sentence of eight years at hard labor, with four years suspended, and upon release will be placed on supervised probation for five years. However, no fine was imposed. The PSI indicates the Defendant is a first felony offender. However, in California in 1976, the Defendant plead guilty to a misdemeanor wherein it was alleged that he had sexual intercourse with and impregnated his twelve-year old stepdaughter. Considering the circumstances of this offense and the reasons for | ^sentencing given by the trial court, we find no abuse of discretion in the sentence imposed.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find three errors patent.

The first error concerns a condition of probation not imposed upon the Defendant. Louisiana Code of Criminal Procedure Article 895 requires the court, when placing a defendant on probation, to pay a supervision fee. When remanding a case for imposition of a supervision fee as a condition of probation, this court has stated:

The defendant’s sentence does not necessarily have to be vacated if the trial court decides to set the minimum monthly supervision fee. See State v. Harris, 93-1098 (La.1/5/96); 665 So.2d 1164. In Harris, the Louisiana Supreme Court remanded the case and gave the trial court the option of amending the court minutes to reflect the change in sentence without bringing the inmate to court. The court stated that the district judge retains the discretion to vacate the sentence originally imposed and to resentence the inmate in open court. Harris allowed ministerial corrections of the record in instances where the trial court failed to impose special restrictions required by law. However, the trial court has some discretion in setting the probation supervision fee, as it can impose a fee between twenty and one hundred dollars per month. Therefore, if the trial court opts to assess the minimum fee required by law, it can correct the sentence in accordance with the procedures set forth in Harás. However, if the trial court wishes to set a higher fee, the trial court should vacate defendant’s sentence and resentence him in open court. Therefore, although we affirm the defendant’s conviction, we must remand the case to the trial court with instructions to set a monthly probation supervision fee to be paid in accordance with article 895.1(C).

State v. Iles, 96-256 (La.App. 3 Cir. 11/6/96); 684 So.2d 38 at 40-41.

Likewise, we remand for the trial court to impose and set the amount of a supervision fee. If the trial court sets the amount at the minimum fee, the trial court | iscan correct the sentence by following the procedures set forth in Harris. If, however, the trial court wishes to set a higher fee, the sentence must be vacated and the Defendant resentenced in open court.

The second error patent also concerns the sentence imposed upon the Defendant. In imposing sentence, the judge stated:

THE COURT:
... I’m going to sentence you to serve a term of eight years with the Department of Corrections, and I’m going to suspend four years; put you on supervised probation upon your release from jail, for a period of five years. The defendant is not eligible to have the conviction set aside or the prosecution dismissed in accordance with provisions of Code of Criminal Procedure Article 898, and suggest that the condition of parole shall include treatment in a qualified sex offender program for a minimum of five years, or until expiration of the sentence, whichever comes first, in accordance with Louisiana Revised Statutes Section 14:81.2(d)(2)....
* * *
... There’s other conditions of parole as well that include that you not be in the presence of any child without another responsible adult around.

It appears the first condition of parole was suggested, not actually imposed. The second condition, however, appears to have been imposed as a condition of parole. Even though this condition of parole is applicable in some situations, the sentencing judge in this case had no authority to impose it. “Even if physically released on parole, the individual remains in the legal custody of the state until release from parole. The trial court has no authority with regard to this phase of the sentence and can impose no condition on the parole responsibilities of the parolee. [Citation omitted].” State v. Bradley, 1999-364, p. 6 (La.App. 3 Cir. 11/3/99); 746 So.2d 263, 267. Thus, we vacate the trial court’s order imposing the condition of parole concerning the Defendant’s contact with children.

Finally, the Defendant was not informed of the prescriptive period for filing post-conviction relief as is required by La. Code Crim.P. art. 930.8. Thus, the district court is directed to inform the Defendant of the provisions of Article 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof that the Defendant received the notice in the record of the proceedings. See State v. Fontenot, 616 So.2d 1353, 1359 (La.App. 3 Cir.), writ denied, 623 So.2d 1334 (La.1993).

CONCLUSION

The Defendant’s conviction and sentence are affirmed. However, we vacate the trial court’s order imposing the condition of parole concerning the Defendant’s contact with children. Additionally, the case is remanded for the trial court to impose and set the amount of a probation supervision fee. If the trial court sets the amount at the minimum fee, the trial court can correct the sentence by following the procedures set forth in Hams. If, however, the trial court wishes to set a higher fee, the sentence must be vacated and the Defendant resentenced in open court. Finally, the district court is directed to inform the Defendant of the provisions of Article 930.8 by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof that the Defendant received the notice in the record of the proceedings.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

EZELL, J., CONCURS AND ASSIGNS WRITTEN REASONS.

LEZELL, J.,

concurring.

It appears to me that the legislature has again failed to protect the public from those that would molest children. La.R.S. 14:81.2 D(l) addresses only those crimes that recur during a period of more than one year. This does not help those children that may be the victim of someone who is not brought to the attention of the authorities until after a year of a repeat or second molestation has occurred.

I agree with the trial judges attempt to protect the public by ordering a convicted molester, if placed on parole not to be allowed to be alone with a child without the supervision of another adult. One molested child is one to many. I concur only because the law is as the legislature drafts it, not as I would prefer it be drafted.

      . The victim, J.M., is a minor. Accordingly, her initials and those of her family members will be used in accordance with La.R.S. 46:1844(W).

      . The PSI indicates the original charge was reduced to a misdemeanor and after sixty months on probation, the conviction was set aside and dismissed.

      . The conditions of parole listed in La.R.S. 14:81.2(D)(2) are applicable in situations where the molestation has recurred during a period of more than one year. This case involved only one incident of molestation.


source: Caselaw Access Project

author: 1SULLIVAN, Judge. 1AMY, J.,

license: Public Domain

text:
    Vila HARRIS v. CHRISTUS ST. PATRICK HOSPITAL.
    No. 02-1502.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 22, 2003.

      Kevin L. Camel, Cox, Cox, Filo, & Camel, Lake Charles, LA, for Plaintiff/Appel-lee, Vila Harris.

      David L. Morgan, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, LA, for Defendant/Appellant, Christus St. Patrick Hospital.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   1SULLIVAN, Judge.

Christus St. Patrick Hospital (St.Pat-riek) appeals a judgment awarding Vila Harris, a former nursing assistant, temporary total disability benefits, anti-depression medication prescribed by a pain management specialist, penalties and attorney fees. For the following reasons, we affirm in part, reverse in part, and amend.

Discussion of the Record

Ms. Harris was injured on April 5, 2000, when an obese patient rolled over her dominant right hand, pushing it back so that her knuckles touched her forearm. She continued to work at light duty until June of 2000, when her employer began paying her temporary total disability benefits. After undergoing multiple surgical procedures by Dr. Lynn Foret, an orthopedic surgeon, she was referred to Dr. Kevin Gorin for pain management.

Dr. Gorin first saw Ms. Harris on August 7, 2001, when he diagnosed her with complex regional pain syndrome (formerly called reflex sympathetic dystrophy), Type II, as evidenced by median and ulnar neu-ropathies, and compensatory cervical and shoulder myofascial pain syndrome secondary to impaired mechanics. He also believed that she suffered from an adjustment disorder with major depression. Upon examination, he noted that she was guarding her right upper extremity, with the right thumb extremely contracted, and that all digits on her right hand were swollen, discolored, and cool to touch. He also noted decreased sensation near the right thumb tendons. Dr. Gorin considered her temporarily totally disabled, although he was not optimistic that she would ever regain productive use of her right upper extremity. He prescribed Neurontin, Zanaflex, and Hydrocodone for pain with the expectation of beginning anti-depressant therapy once those medications reached therapeutic levels.

li>Dr. Gorin reported the same examination and diagnoses at her next visit, on September 20, 2001, noting that she was doing reasonably well with her medications. He expected that Ms. Harris would reach maximum medical improvement in approximately forty-five days, at which time he believed she would be employable at light duty, but without the use of her right hand. On November 10, 2001, Dr. Gorin released Ms. Harris to light duty employment, with upper extremity restrictions, and recommended vocational rehabilitation. On January 25, 2002, Dr. Gorin added Celexa to her medications for depression. He still considered her employable at light duty, with restrictions on upper extremity pulling, pushing, lifting, and carrying.

Based upon these reports, St. Patrick hired Scott Smith to perform vocational rehabilitation services for Ms. Harris. Mr. Smith initially submitted two jobs for Dr. Gorin’s approval: a patient advocate position at Lake Charles Medical Clinic (the Clinic) and a job dispensing eye-wear prescriptions at a vision center. Upon Dr. Gorin’s approval of the patient advocate position on January 28, 2002, St. Patrick terminated Ms. Harris’ benefits as of February 12, 2002, as Mr. Smith reported that the job paid more than ninety percent of Ms. Harris’ pre-injury wages.

When Ms. Harris returned to Dr. Gorin on April 11, 2002, he noted that her right arm was quite swollen and extremely cool to touch, differing about 2.5 degrees centigrade from the left hand. Although Ms. Harris wore an orthotic device for positioning, Dr. Gorin believed the right upper extremity was functionally useless. He still considered her capable of light duty, but he did not believe that she could perform any positions that had been offered to date, as they required some use of the right upper extremity. On April 17, 2002, he issued a disability slip stating that she was not released to her old job or to work in any occupation. At the- next office visit |3of June 28, 2002, Dr. Gorin noted that the right swelling and dystrophic changes recorded at the previous visit were unchanged, if not worse. He also found severe trigger points in the right cervical and upper trapezius regions, which he directly related to guarding of the right arm and overuse of proximal region musculature. He again stated that she was not fit for duty at any job that he had been asked to review. He also noted that her depression, which he related to job injury, had improved from use of the Celexa, but that the workers’ compensation carrier had not approved the medication.

Mr. Smith testified at trial that he located the patient advocate position through an advertisement in the newspaper. He stated that he did not obtain the specific restrictions of the job or its rate of pay from the Clinic, but that he consulted the “Dictionary of Occupational Titles” and the “Louisiana Occupational Wage Survey Report” for the information that he included in his job description. He further testified that he did not know if the job required the use of the hand to take notes, and he acknowledged that, despite the information in the survey report, the job could have paid only minimum wage. Dr. Gorin testified in his deposition that he approved the job based upon a conversation with Mr. Smith from which he understood that the position would require the jotting of brief messages as opposed to more detailed documentation.

Julie Dell, the human resources director from the Clinic, testified that the patient advocate position was one that the Clinic only considered filling. She explained that, although she accepted applications for the job, it was never actually created. According to Ms. Dell, the position would have required the ability to fill out forms and to use a computer. She doubted that an applicant who lost the use of | ¿her dominant hand could fulfill the job’s requirements. She also testified that, because the job never existed, she did not set a wage rate for it.

Because Mr. Smith was unaware that Ms. Harris’ benefits were terminated, he identified six additional positions for her, four of which Dr. Gorin approved in August of 2002. Some of those jobs, however, were part-time, paid only minimum wage, or had special requirements, such as the applicant being the parent of an emotionally disturbed child. Mr. Smith testified that he offered a full range of vocational services to Ms. Harris, but that he did not receive the level of participation from her that he desired.

Maxine Guillory, St. Patrick’s workers’ compensation representative, testified that the decision to terminate Ms. Harris’ benefits was based upon the location of the patient advocate position and upon information from ah anonymous telephone call about Ms. Harris. According to Ms. Guil-lory, someone called the hospital’s risk management department, stating that Ms. Harris was caring for her ill mother in a Houston hospital and that she had previously injured her right hand in an automobile accident in Texas.

Ms. Harris, fifty-five years old at the time of trial, testified that she worked as a nursing assistant for thirty years. She stated that she now has constant swelling and pain in her right arm, which must be kept in a brace to prevent her hand from curling. She said that she was in an automobile accident in 1983 in which she injured her right foot. Although her right hand was not injured from the impact of the accident, some glass apparently became imbedded in her palm as she was helped out of the vehicle. She explained that she developed an infection two years later when she tried to remove the glass herself and that she had to be hospitalized for surgical removal of |Kthe glass, drainage, and infection control. Four months after the infection was cleared, she returned to work as a nursing assistant with no problems.

At trial, she admitted that she discussed only the foot injury when questioned about that accident in her deposition, but explained that she thought she caused the infection two years later by trying to get the glass out herself and that she considered it a “minor thing” that happened “long, long ago.” Hospital records indicated that she was hospitalized nine days for treatment of an abscess in her right hand in 1985. She also stated in her deposition that she was “certain” she had not injured her right hand or arm before.

At the close of the evidence, the workers’ compensation judge (WCJ) ruled in Ms. Harris’ favor, ordering the reinstatement of temporary total disability benefits and awarding $5,000 in attorney fees for the arbitrary and capricious termination of benefits; ordering the payment of the anti-depression medication prescribed by Dr. Gorin and awarding $2,000 in penalties and $3,000 in attorney fees for the failure to reasonably controvert entitlement to this treatment; and rejecting St. Patrick’s claims for reduction of benefits based upon refusal to accept vocational rehabilitation and for forfeiture of benefits based upon false statements made in connection with a pending claim.

Forfeiture of Benefits

St. Patrick argues that the WCJ erred not ordering the forfeiture of Ms. Harris’ benefits under La.R.S. 23:1208. We will consider this issue first because its resolution could render the remaining assignments of error moot.

Louisiana Revised Statutes 23:1208 provides in part:

A. It shall- be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of |6this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

In KLLM, Inc. v. Reed, 00-295, p. 6 (La.App. 3 Cir. 10/11/00), 771 So.2d 728, 731 (citations omitted), we offered the following analysis in applying Section 1208:

The only requirements for forfeiture of benefits under Section 1208 are (1) a false statement or representation (2) that is willfully made (3) for the purpose of obtaining or defeating any benefit or payment under the workers’ compensation law. Section 1208 is a broadly worded statute that applies to any false statements or representations, including those concerning prior injuries, and the employer need not show that it has been prejudiced as a condition of forfeiture.
Nonetheless, statutory forfeiture is a harsh remedy and, therefore, must be strictly construed. False statements that are inadvertent or inconsequential will not result in forfeiture. Whether an employee has forfeited his right to workers’ compensation benefits is a question of fact that will not be disturbed on appeal absent manifest error.

“After establishing that a claimant has made a false statement or misrepresentation which could result in forfeiture of benefits, the [WCJ] must make a factual determination as to whether, based on the record, the statement was willfully made specifically to obtain benefits, and thus defraud the workers’ compensation system.” Marler v. New Orleans Area Council, Boy Scouts of Am., 01-1167, pp. 7-8 (La.App. 5 Cir. 3/13/02), 815 So.2d 131, 135.

In deciding that Ms. Harris had not violated Section 1208, the WCJ found her responses were reasonable, considering that the problem with her hand did not develop until two years after an automobile accident that, in turn, occurred almost twenty years before the statements in her deposition. Although the employer need not show prejudice as a condition under forfeiture under Section 1208, “[t]he relationship 17between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits.” Marler, 815 So.2d at 135. When we consider Dr. Gorin’s testimony that such an incident would only be significant if it continuously caused problems before the present accident and Ms. Harris’ testimony that she resumed working as a nursing assistant with no problems with her hand or thumb, we cannot find error in the WCJ’s ruling.

St. Patrick also argues that the WCJ was prejudiced in deciding this issue because she had just received our decision of Lanthier v. Family Dollar Store, 02-429 (La.App. 3 Cir. 10/02/02), 827 So.2d 547, holding that the Office of Workers’ Compensation (OWC) did not have subject matter jurisdiction to hear Section 1208 claims. (On remand from the supreme court, this court, sitting en banc, repudiated that position in Lanthier v. Family Dollar Store, 02-429 (La.App. 3 Cir. 1/8/03), 848 So.2d 605.) Although the WCJ first stated that the OWC did not have jurisdiction to hear the claim based on Lanthier, 827 So.2d 547, she clearly indicated that she was proceeding to the merits of the Section 1208 defense in the alternative, in the event the OWC did have jurisdiction. We find no evidence that the WCJ was prejudiced by the original Lanthier opinion, which did not address the merits of a Section 1208 claim.

Anti-Depression Medication

In this assignment of error, St. Patrick argues that the WCJ erred in ordering it to provide the anti-depression drug Celexa that was prescribed by Dr. Gorin, a pain management specialist, when La.R.S. 23:1021(7)(d) requires that a com-pensable |smental injury or illness be diagnosed by a licensed psychiatrist or psychologist. St. Patrick also contends that the WCJ erred in penalizing it for relying on this statute.

Louisiana Revised Statutes 23:1021(7)(b) and (c) require that “[m]ental injury caused by mental stress” and “[mjental injury caused by physical injury” be “demonstrated by clear and convincing evidence” to be compensable. Section 1021 (7)(d) provides:

No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.

In awarding benefits and penalizing St. Patrick for the failure to approve the anti-depression medication, the WCJ found that St. Patrick’s interpretation of Section 1021(7)(d) in this case was unreasonable and not within the intent of the statute. For the following reasons, we agree with the WCJ that Ms. Harris was entitled to the prescribed medication, but we disagree that St. Patrick should have been penalized for relying upon the above statutory provisions.

In Armentor v. Arrow Pest Control, 02-533 (La.App. 3 Cir. 10/30/02), 832 So.2d 378, writ denied, 03-139 (La.3/21/03), 840 So.2d 536, we held that La.R.S. 23:1021(7)(c) and (d) provided reasonable grounds for controverting the diagnosis and treatment of depression by an orthopedic surgeon; hence, we found that the WCJ erred in penalizing the employer for relying on those statutory provisions. However, we specifically did not reach the issue of whether depression related to chronic pain was a “[m]ental injury caused by physical injury” under Section 1021(7)(e) that must be diagnosed by a mental professional under Section 1021(7)(d). In Johnson v. St. Patrick Hospital, 02-828 (La.App. 3 Cir. 12/11/02), 832 So.2d 1162, we construed 19those statutory provisions in the context of anti-depression medication prescribed by a pain management specialist. In that case, we found no error in the WCJ’s conclusion that the claimant did not prove his need for anti-depression medication was work-related, given evidence of his “long-standing psychiatric and psychological problems that requirefd] treatment but [were] unrelated to his employment injury.” Id. at 1164. We then cited, in dicta, as an additional basis for our decision, Section 1021(7)(d)’s requirement that the diagnosis of a mental injury or illness be made by a mental health professional.

In the present case, Ms. Harris was referred to Dr. Gorin for pain management after she had undergone multiple surgical procedures for a hyperextension injury of the right wrist. Dr. Gorin, who was not optimistic that Ms. Harris would ever regain productive use of her dominant right hand, also prescribed Celexa for an adjustment disorder with major depression. Unlike Johnson, 832 So.2d 1162, there is no evidence in the present case that Ms. Harris had psychological problems unrelated to her employment injury. Given that Dr. Gorin considered Ms. Harris’ dominant right hand to be “functionally useless,” it seems clear that her claim for indemnity benefits and medical expenses is based upon this physical disability rather than the depression she suffered as a byproduct of her physical injury. Under these circumstances, we find that Ms. Harris’ request for depression medication is not governed by the heightened burden of proof and diagnostic requirements of La.R.S. 23:1021(7)(c) and (d). We simply cannot conclude that the legislature intended to increase the cost and to extend the recovery time of each physical injury claim by requiring a psychiatric or psychological consultation whenever a physician in another specialty prescribes anti-depression medication in the course of treating that physical injury. Accordingly, Imwe hold that La.R.S. 23:1021(7)(c) and (d) apply only when the claimant alleges to be disabled as the result of a mental injury or illness. We find it was error to penalize the employer in the present case, however, given the status of the jurisprudence at the time of its decision to deny the claim.

Reduction in Benefits

St. Patrick next argues that the WCJ erred in failing to award a fifty percent reduction in benefits under La.R.S. 23:1226(E) for Ms. Harris’ refusal to accept rehabilitation services because she failed to apply for certain positions, did not obtain a driver’s license as recommended by Mr. Smith, and failed to perform an independent job search.

Louisiana Revised Statutes 23:1226(E) (emphasis added) provides in part: “Refusal to accept rehabilitation as deemed necessary by the workers’ compensation judge shall result in a fifty percent reduction in weekly compensation, including supplemental earnings benefits pursuant to R.S. 23:1221(8), for each week of the period of refusal.” In Cajun Forge Co., Inc. v. Spell, 98-1883, p. 2 (La.App. 3 Cir. 5/19/99), 734 So.2d 1283, 1284, we stated: “This section mandates a fifty percent reduction of workers’ compensation benefits only after a claimant refuses to attend court ordered vocational rehabilitation.” Because the rehabilitation program in that case had not yet been ordered by the WCJ, we found no error in the refusal to impose this penalty, although we recognized that the employer could reurge its motion for a reduction if the claimant failed to comply after the WCJ ordered such a program. In Louisiana Pacific Corp. v. Allbritton, 00-366 (La.App. 3 Cir. 10/11/00), 773 So.2d 170, we held that the employer was entitled to the fifty percent reduction only from the date of the order compelling the employee to submit to vocational rehabilitation. | n However, in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, the supreme court, without discussing the exact language of Section 1226(E), permitted a fifty percent reduction in benefits retroactively from the date the employee refused to cooperate with all rehabilitation. See also City of Jennings v. Clay, 98-225 (La.App. 3 Cir. 10/4/98), 719 So.2d 1164; Romero v. Grey Wolf Drilling Co., 594 So.2d 1008 (La.App. 3 Cir.1992).

In the present case, there is no prior order of rehabilitation services. Even if we found such an order to be unnecessary, however, we do not find that there has been a “complete refusal” to accept rehabilitation services, as was the case in City of Jennings, 719 So.2d 1164, and Romero, 594 So.2d 1008. See Theriot v. Church Point Wholesale Beverage Co., Inc., 00-1003, p. 8 (La.App. 3 Cir. 2/14/01), 780 So.2d 556, 561. Mr. Smith testified that Ms. Harris met with him on two occasions. Ms. Harris testified that she applied for the patient advocate position, but the person who took her application questioned whether she would be able to perform the job because of the brace on her arm. Ultimately, that position never materialized, but as envisioned it would not have been within her medical restrictions. In April of 2002, Mr. Smith wrote to Ms. Harris’ attorney, providing a list of six jobs; however, those positions were not reviewed by Dr. Gorin until August of 2002, at which time he determined that two were beyond her capabilities. It was not known whether the remaining positions were still available at the time Dr. Gorin approved them. Under these circumstances, we do not find that Ms. Harris was unreasonable in failing to apply for jobs that her physician did not approve, when the first position referred to her was so clearly unsuitable. We find no error the WCJ’s refusal to order a reduction in benefits.

| ^Attorney Fees

Although not contesting the reinstatement of benefits, St. Patrick argues that the WCJ erred in imposing attorney fees for the termination of benefits, when its action was based upon Mr. Smith’s location of the patient advocate position and upon its discovery of prior injuries that Ms. Harris failed to disclose.

Under La.R.S. 23:1201.2, reasonable attorney fees may be awarded for the discontinuation of benefits “when such discontinuance is found to be arbitrary, capricious, or without probable cause.” In Brown v. Texas-LA Cartage, Inc., 98-1068, pp. 8-9 (La.12/1/98), 721 So.2d 885, 890, the supreme court defined arbitrary and capricious behavior as “willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation.” The decision to award penalties and attorney fees is a factual determination that will not be reversed on appeal absent a finding of manifest error. Colonial Nursing Home v. Bradford, 02-588 (La.App. 3 Cir. 12/30/02), 834 So.2d 1262, writ denied, 03-364 (La.4/21/03), 841 So.2d 802.

The WCJ ordered reinstatement of benefits after concluding that the patient advocate position failed all three criteria in Banks, 696 So.2d at 557: it was not within Ms. Harris’ “physical capabilities”; its wages could not be determined, as they had never been set; and it was not “an actual position,” as it never was created. In addition to these initial deficiencies, the record contains several reasons why the employer’s continued rebanee on that job as a defense to paying any indemnity benefits was unjustified.

On April 11, 2002, Ms. Harris returned to Dr. Gorin with worsening symptoms, leading him to rescind his approval of the patient advocate position. On April 17, 1132002, Dr. Gorin issued a handwritten disability statement that Ms. Harris was not released to work in any occupation. Clint Dobson, the adjuster for St. Patrick, testified that he telephoned Dr. Gorin after he became confused about the disabibty slip and that Dr. Gorin indicated Ms. Harris could, in fact, perform the patient advocate job. Mr. Dobson then wrote to Dr. Gorin in May of 2002, instructing him to contact Mr. Dobson if this was not his understanding of that conversation. In his deposition, Dr. Gorin stated that Mr. Dob-son must have misunderstood him about the job, that he did not recall reading the letter before the deposition, and that there was no indication that he had ever received it. Even if Mr. Dobson were confused in May of 2002, Dr. Gorin sent a report in June stating again that Ms. Harris could not perform any job that had been reviewed to date. Although St. Patrick suggests that Dr. Gorin “waffled” on disability because Ms. Harris contacted his office requesting a statement that she was disabled, the medical records show that Dr. Gorin recanted his approval of the job only after Ms. Harris’ symptoms worsened. Dr. Gorin did approve four positions in August of 2002, but some of these jobs were low-paying or part-time, indicating that Ms. Harris was unable to earn ninety percent of her pre-accident wages. On this record, we are unable to conclude that the WCJ erred in awarding attorney fees. See Bradley v. ConAgra Poultry Co., 03-23 (La.App. 3 Cir. 4/30/03), 843 So.2d 1255.

Ms. Harris has answered the appeal seeking an increase in attorney fees for work performed on appeal. Although we reversed a portion of the judgment in her favor, we may still award additional attorney fees for appellate work. See Colonial Nursing Home, 834 So.2d 1262; Frank v. Kent Guidry Farms, 01-727 (La.App. 3 Cir. 5/8/02), 816 So.2d 969; and Salard v. Diamond M Tile & Marble, Inc., 01-373 (La.App. 3 Cir. 12/12/01), 801 So.2d 1230, writ denied, 02-450 (La.4/19/02), 813 So.2d 1091. Accordingly, Ms. Harris is awarded $2,000 in additional attorney fees for work performed on this appeal.

Decree

For the above reasons, the judgment of Office of Workers’ Compensation is reversed insofar as it awards penalties of $2,000 and attorney fees of $3,000 regarding anti-depression medication. The judgment is amended to award additional attorney fees of $2,000 on appeal. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to Christus St. Patrick Hospital.

AFFIRMED IN PART; REVERSED IN PART; AND AMENDED.

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

DECUIR, J., concurs in part and dissents in part for the reasons assigned by Judge AMY.

1AMY, J.,

concurring in part, dissenting in part.

I respectfully dissent from that portion of the majority opinion addressing the employer’s obligation to provide the anti-depression medication prescribed by the claimant’s pain management specialist. In my opinion, the wording of La.R.S. 23:1021(7)(b), (c) and (d) clearly requires that the employer’s obligation to provide this type of medication arises only after a diagnosis of mental injury or illness by a licensed psychiatrist or psychologist. As there was no such diagnosis in this case, I conclude that the workers’ compensation judge erred in ordering the employer to provide the anti-depression medication. Accordingly, I dissent from the majority’s affirmation of that ruling. In all other aspects of the opinion, however, I concur.


author: 1WOODARD, Judge.

text:
    Cynthia M. SMITH v. M. RANDALL COMEAUX, D.D.S., et al.
    No. WCA03-250.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 22, 2003.

      Paul D. Gibson, James Edward Diaz, Jr., Gibson-Gruenert, L.L.P., Lafayette, LA, for Plaintiff/Appellee, Cynthia M. Smith.
    Sammie M. Henry, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendants/Appellants, M. Randall Comeaux, D.D.S. and Louisiana Workers’ Compensation Corporation.
    Court composed of NED E. DOUCET, Jr., Chief Judge, BILLIE COLOMBARO WOODARD, and JIMMIE C. PETERS, Judges.
   1WOODARD, Judge.

M. Randall Comeaux, D.D.S. (Comeaux) and Louisiana Workers’ Compensation Corporation appeal a summary judgment, awarding Ms. Cynthia Smith supplemental earnings benefits, as well as reasonable and necessary medical expenses associated with her work-related carpal tunnel syndrome. We affirm.

* * * * *

Ms. Smith sought disability benefits, claiming that she could no longer perform her duties as a dental hygienist because she suffered from work-related carpal tunnel syndrome (CTS), an occupational disease. On April 5, 2002, she filed a disputed claim for compensation seeking disability benefits. Specifically, she stated, “The stress of fine manipulation of instruments in my work led to the condition of carpal tunnel syndrome.”

There is no dispute that she is disabled. However, Comeaux contends that her disability is not because of an occupational disease. Specifically, it asserts that her disability is due to rheumatoid arthritis, rather than CTS. This determination is critical to Ms. Smith’s claim because work-related CTS is expressly included in the definition of “occupational disease,” while any type of arthritis is expressly excluded from the definition. Furthermore, Co-meaux contends that the CTS resulted from Ms. Smith’s rheumatoid arthritis and is not related to her work.

The WCJ found that “the evidence persuasively establishes that Ms. Smith is disabled from working as a dental hygienist as a result of carpal tunnel syndrome caused by her work.” Accordingly, the WCJ granted summary judgment in her favor. Thus, we must determine whether any genuine issues of material fact remain to be decided, regarding the causal connection between Ms. Smith’s CTS and her disability or the causal connection between the CTS and her work.

* * * * *

Standard of Review for Summary Judgment

We review summary judgments, de novo, under the same criteria which govern the trial court’s consideration of whether summary judgment is appropriate. Louisiana courts favor the summary judgment procedure which is designed to secure the just, speedy, as inexpensive determination of actions. Therefore, we shall render summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue regarding a material fact and that the mover is entitled to judgment as a matter of law.”

Burden of Production in Summary Judgment Proceeding

Louisiana Code of Civil Procedure Article 966(C)(2) describes the applicable burden of production in a summary judgment proceeding:

[I]f 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.

(Emphasis added.) Thus, we proceed with an analysis of the evidence in the instant case under this burden-shifting framework.

^Entitlement to Disability Benefits

In determining the employee’s entitlement to disability benefits, the Louisiana Workers’ Compensation Act does not distinguish an employee who contracts a disabling occupational disease from an employee whose injury results from an accident that arose out of and in the course of her employment. The definition of “occupational disease” includes “work-related carpal tunnel syndrome.” Thus, in order to receive benefits, Ms. Smith must prove, by a preponderance of the evidence, that her carpal tunnel syndrome was contracted during the course of her prior twelve months’ employment and that it was causally connected to her disability.

Cause of Disability

The record reflects that Ms. Smith suffers from three different conditions— degenerative disc disease, CTS in her right hand, and arthritis in both hands. She avers that she can distinguish between the hand-related conditions because the arthritis affects both of her arms, whereas the CTS affects only the right arm. Accordingly, she says that she could have continued working notwithstanding the arthritis and disc degeneration; therefore, it is the CTS that led to her disability.

Dr. James M. Lipstate, a rheumatologist, was her primary treating physician. He referred her to, both, Dr. James N. Domingue and Dr. Thomas V. Bertuccini, neurologists. Reports and/or depositions of all three doctors are in evidence.

A review of Dr. Lipstate’s reports, from October 25, 1999 through the time of trial, reveals that his initial suspicions that she suffered from CTS arose from her complaints of tingling and numbness in her right hand. Responding to these particular complaints, he recommended electro-physiological testing, which confirmed his suspicions of CTS. Dr. Domingue’s report further supports that the CTS is what caused these particular symptoms. It states, “She [Ms. Smith] tells me that the final straw in her quitting work was because she could not feel the instruments any longer j4with her right hand. I think, therefore, that it was the carpal tunnel syndrome that led to her loss of employa-bility.”

Further, Dr. Bertuccini’s report states, “She [Ms. Smith] is concerned that her grip strength on the right may be less than normal as she has had difficulty controlling dental instruments. She has a history of numbness involving the right hand occurring intermittently over the past 18 to 24 months.... EMG and nerve conduction studies of the right arm and neck and nerve conduction studies of the left arm done May 22, 2001 by Dr. Jim Domingue showed an abnormality that implied evidence of a lesion involving the right median nerve at the wrists. An EMG of Oct. 26, 1999, done by Dr. Anse-man also showed evidence consistent with right carpal tunnel syndrome.”

Further, in a letter to Ms. Smith, Dr. Lipstate stated, “I agree that the carpal tunnel syndrome was the defining factor in your decision to go on disability, but certainly the arthritis and neck symptoms were also contributing factors in that regard.” (Emphasis added.)

Accordingly, we find that Ms. Smith’s disability was causally connected to the CTS.

Cause of Carpal Tunnel Syndrome

Drs. Lipstate and Domingue pointed out that Ms. Smith’s rheumatoid arthritis gives her a predisposition to develop CTS. However, the reports of all three doctors prove, by a preponderance of the evidence, that her CTS was work-related. In a letter to her, Dr. Lipstate wrote, “When you have rheumatoid arthritis it can be a predisposing factor to carpal tunnel syndrome, as can hand intensive occupations such as working as a dental hygienist. I cannot with any degree of medical certainty tell you what percentage of your carpal tunnel syndrome could be attributable to these conditions.” And Dr. Domingue reported, “Further, I think, despite the fact that she has rheumatoid arthritis which gives her a predisposition to develop carpal tunnel syndrome, it was dearly the occupation that worsened it and made it symptomatic enough to cause her to lose her ability to work. This is evidenced by the fact that she has improved now that she is not working.... It would be my opinion, therefore, that her occupation as a dental hygienist led her to develop carpal tunnel syndrome adequate to lead to her loss of employability.” (Emphasis added.)

IrComeaux’s Defense

Comeaux’s defense consisted of two allegations: 1) Ms. Smith’s disability resulted from the rheumatoid arthritis, rather than the CTS; and 2) Ms. Smith’s CTS was not work related. Thus, Ms. Smith had the burden of showing an absence of factual support for these allegations.

We find that she did so. All the physicians believed the CTS was a cause of her disability and that her work, at least, aggravated the CTS. Further, they noted that the CTS improved upon her leaving the job, which indicated to them a work-related, causal connection. All of this evidence is sufficient to satisfy her burden of proof. Thus, the burden shifted to Co-meaux to provide factual support for its defense.

Comeaux’s Factual Support

Comeaux contends that Dr. Lipstate’s deposition offered factual support for its contentions. Namely, Dr. Lipstate declined to attribute Ms. Smith’s disability, solely, to one of the three medical conditions because he found them to be interrelated. Since she suffers from all three medical problems, Dr. Lipstate could not conclusively state that the CTS, alone, was the primary cause of her disability. By the same token, however, he could not conclusively state that the arthritis was the primary cause. Comeaux points out the following testimony for support:

Q. Okay. Now in reference to her seeking a disability status, you said you were supportive of this decision. Could you in any way put a percentage on which one of these things were more of a disabling factor to her than another?
A. No, and there’s a subsequent letter to that effect in my chart. I don’t know how one can ... here she has three different medical problems. She has known degenerative disc disease in her neck, she has carpal tunnel syndrome in her right hand, and she has rheumatoid arthritis. I guess really four. She also has degenerative arthritis in her hands. I think any of those things alone in certain circumstances could be disabling, especially in a hand intensive occupation. Taking in all things together, I think it would be ... make it very difficult for her to continue in her work as a dental hygienist....
IsQ. You can’t say it’s the carpal tunnel syndrome that prevents her from working as a dental hygienist?
A. I don’t think I can say with any degree of medical certainty which of those four conditions played the greatest role. I think I have to look at the patient in toto.

Nevertheless, Comeaux cannot simply attempt to discount the physicians’ testimonies “because of their tendency to refrain from unqualified statements or opinions on such matters of causation.” “[I]t is not necessary for the experts to determine the exact cause of the disability in order for the employee to recover.” “Furthermore, medical testimony must be weighed in light of other credible evidence of a nonmedical character, such as a sequence of symptoms or events in order to judicially determine probability.” Comeaux faded to present any factual support that there was a separate and intervening cause. This failure creates a material issue of fact concerning whether the CTS played a role in Ms. Smith’s disability.

Furthermore, while Dr. Bertuccini’s report corroborates Dr. Lipstate’s findings of three separate medical conditions, as well as his recommendation to stop working, Dr. Bertuccini’s report, likewise, does not indicate which of the three conditions prevents her from returning to work. However, this inconclusive testimony does not factually support Comeaux’s contentions and satisfy burden of proof.

Even though Dr. Lipstate’s and Dr. Ber-tuceini’s inconclusive reports offered support that the arthritis may have been a cause of her disability, this fact, even if proved at trial, would not defeat Ms. Smith’s recovery. She need only prove that the CTS, also, was causally connected to her disability. To be a material issue, Comeaux would have to offer factual support indicating that the arthritis was a cause of her disability and that the CTS was not causally related to the disability. Contrarily, it offered no evidence of any physician that supported the contention that Ms. Smith’s disability resulted, solely, from her rheumatoid arthritis, and it failed to |7provide any factual support indicating that the CTS was not causally related to her disability. Therefore, there is no material issue of fact left to be decided regarding the cause of Ms. Smith’s disability.

Secondly, Comeaux contends that Ms. Smith’s CTS is not “work-related.” As factual support, it offers Dr. Lipstate’s testimony:

Q. Would you consider that carpal tunnel syndrome that she experienced and those symptoms would have been caused by her work as a dental hygienist?
A. Well, again, we can see carpal tunnel syndrome as an overuse syndrome in some hand intensive occupations. Whether that is the sole likely cause, I’m not certain in this particular case. She did not relate to me in any of our visits any other activities — that may have aggravated it. But, again, you know, I mean, exercise, other — You know, activities at home may — you know, I could see as playing a role. She — the symptoms seemed to pre-date the onset of the rheumatoid arthritis. I had mentioned earlier, sometimes rheumatoid arthritis, especially if there’s a lot of swelling in the wrists, can aggravate carpal tunnel symptoms. She did in some — I think in one of the latter visits demonstrate some swelling in the wrists, and so that can aggravate the carpal tunnel. But I don’t think that that was necessarily playing a role early on in her early visits. At least that I could determine.

(Emphasis added.)

Again, this inconclusive testimony does not offer adequate factual support that Ms. Smith’s CTS is not related to her work. Comeaux offered no factual evidence that some other activity may have caused the CTS. Moreover, it is irrelevant that additional causes may have contributed to the disability, as long as on-the-job trauma is, in fact, a disabling factor. Her burden consists of showing, only, that the CTS “contributed to the disability, however slight; and, as a consequence, [she] is no longer able to perform work activities associated with the pre-[CTS] job.” (Emphasis added.) Dr. Domingue found that it was Ms. Smith’s occupation that, at least, aggravated the CTS and made it symptomatic enough to lead to her unem-ployability. Both, Dr. Lipstate and Dr. Domingue found that her CTS symptoms had greatly ^improved once she stopped working, supporting their conclusion of a necessary causal connection.

Further, although the testimony and physicians’ records, as a whole, are ambiguous regarding which condition preceded the other, Dr. Lipstate’s testimony does not support Comeaux’s contention that CTS resulted from the arthritis because Dr. Lipstate noted that the symptoms of CTS “seemed to predate the onset of rheumatoid arthritis.” Nonetheless, even if Ms. Smith were predisposed to CTS because of the arthritis, this would not defeat her recovery of benefits. “Preexisting disease or infirmity of the employee does not disqualify a claim if the work-injury aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed.” Thus, even if proved, this fact is not material in determining her entitlement to benefits.

We find that Ms. Smith met her initial burden to establish that she was disabled due to work-related CTS and of pointing out an absence of factual support for Co-meaux’s defense. Contrarily, when the burden shifted basically, Comeaux only offered that the arthritis contributed to Ms. Smith’s disability. However, this would not defeat her recovery even if proved and, therefore, is not a material issue of fact. Accordingly, Ms. Smith was entitled to summary judgment, which we affirm.

Frivolous Appeal

Ms. Smith answered Dr. Co-meaux’s appeal, contending that his appeal could not have been made in good faith because the evidence is clear and undisputed. However, “[d]amages for frivolous appeal are only allowed when it is obvious that the appeal was taken solely for delay or that counsel is not sincere in the view of the law he advocates even though the court is of the opinion that such view is not meritorious.” We cannot say that the instant appeal rises to such a level. Therefore, we deny Ms. Smith’s request for damages for this allegedly frivolous appeal.

^CONCLUSION

We affirm the WCJ’s grant of summary judgment in Ms. Smith’s favor, awarding her supplemental earnings benefits and medical expenses associated with her work-related CTS. However, we decline to award her damages for frivolous appeal. We cast the costs of this appeal, equally, on the Appellants, Comeaux and LWCC.

AFFIRMED.

      . La.R.S. 23:1031.1(B).

      . Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783.

      . Id.; La.Code Civ.P. art. 966(A)(2).

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

      . La.R.S. 23:1031.1(A).

      . La.R.S. 23:1031.1(B).

      .La.R.S. 23:1031.1(D).

      . See Hebert v. Lake Charles Am. Press, 427 So.2d 916 (La.App. 3 Cir.1983).

      . Id.

      . Id. at 920.

      . Id. (citing Hammond v. Fid. & Cas. Co. of NY, 419 So.2d 829 (La.1982)).

        . Id. (citing Schouest v. J. Ray McDermott & Co., 411 So.2d 1042 (La.1982)).

      . Id.

      . See Id.

      . Lavergne v. Lake Charles Mem’l Hosp., 625 So.2d 1098, 1102-03 (La.App. 3 Cir.1993), writ denied, 93-2756 (La.1/7/94), 631 So.2d 451 (citing Malone & Johnson, 13 Louisiana Civil Law Treatise, Worker’s Compensation (2d ed.) § 256).

      . Walton v. Normandy Vill. Homes Ass'n, Inc., 475 So.2d 320, 324 (La.1985) (citing Lucas v. Ins. Co. of N.A., 342 So.2d 591 (La.1977); Johnson v. Travelers Ins. Co., 284 So.2d 888 (La.1973); Larson, Workmen’s Compensation Law, § 12.21).

      . Hampton v. Greenfield, 618 So.2d 859, 862 (La.1993) (quoting Parker v. Interstate Life & Acc. Ins. Co., 248 La. 449, 179 So.2d 634 (1965)).


author: | .WALTER J. ROTHSCHILD, Judge

text:
    CARQUEST OF KENNER v. Christine CARROLL.
    No. 03-CA-330.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 16, 2003.
    Writ Denied Dec. 19, 2003.
    Joseph J. Schilleci, Joseph B. Guilbeau, Juge, Napolitano, Guilbeau, Ruli & Frie-man, Metairie, LA, for Carquest Of Ken-ner, Plaintiff/Appellant.
    Leonard J. Cline, Metairie, LA, for Christine Carroll, DefendantyAppellee.
    Panel composed of Judges JAMES L. CANNELLA, WALTER J. ROTHSCHILD and EMILE R. ST. PIERRE, Pro Tempore.
   | .WALTER J. ROTHSCHILD, Judge

The defendant, Christine Carroll, alleges that she sustained injuries, primarily to her neck and back, in an automobile accident on October 19, 2000, while in the course and scope of her employment as a delivery driver for Carquest of Kenner. Ms. Carroll has received worker’s compensation benefits since the date of the accident.

Following the accident, Ms. Carroll saw Dr. John Watermeier, an orthopedist who had previously treated her, and his records indicate that she continued to treat with him until at least July 3, 2002 . She was also examined by Dr. J. Monroe Laborde on August 7, 2001, at the request of her employer, Carquest. Dr. Watermeier’s medical reports indicate that he believes that Ms. Carroll is temporarily totally disabled and cannot return to work. However, Dr. Laborde’s reports indicate that he did not find any objective evidence of injury and that he believes she can return to work.

Carquest requested that the Director of the Louisiana Department of Labor appoint an Independent Medical Examiner, pursuant to LSA-R.S. 23:1123, to examine Ms. Carroll. The Director appointed Dr. Claude Williams, and an appointment for the examination was set for July 17, 2002. The Louisiana ^Department of Labor sent a letter to Ms. Carroll notifying her of the date of the appointment, but Ms. Carroll did not appear for the examination.

On December 13, 2002, Carquest filed a disputed claim and a Motion to Compel Medical Examination, seeking an order compelling Ms. Carroll to attend the Independent Medical Examination (IME) and requesting a suspension of her worker’s compensation benefits from the date she initially failed to appear for the appointment with Dr. Williams. A hearing was held on January 8, 2003, and the court took the matter under advisement. On January 15, 2003, the worker’s compensation judge rendered a judgment denying Carquest’s Motion to Compel Medical Examination and dismissing Carquest’s worker’s compensation claim with prejudice. It is from this judgment that the plaintiff, Carquest, appeals.

DISCUSSION

On appeal, Carquest argues that the worker’s compensation judge “committed legal error in finding that plaintiff/employer is not entitled to compel a Louisiana Department of Labor Independent Medical Examination when there was a dispute between employee’s treating orthopedist and a second medical opinion doctor regarding employee’s return to work status.” Ms. Carroll, on the other hand, asserts that an IME is not authorized because “[t]here is no dispute about Ms. Carroll’s physical condition — an objective fact — only about her fitness to return to work — a matter of characterization of the data.”

LSA-R.S. 23:1123 provides:

If any dispute arises as to the condition of the employee, the director, upon application of any party, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director. The medical examiner shall report his conclusions from the examination to the director and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.

|4The worker’s compensation judge issued written reasons for judgment in which he stated that the jurisprudence interpreting LSA-R.S. 23:1123 supports his finding that Ms. Carroll was not required to submit to an IME. The worker’s compensation judge cited Bob’s Plumbing and Heating, Inc. v. Reynolds, 98-325 (La.App. 5 Cir. 10/14/98), 719 So.2d 1169, writ denied, 98-2978 (La.1/29/99), 736 So.2d 836, and McCrary v. New Orleans Health Corp., 01-1632 (La.App. 4 Cir. 9/26/01), 798 So.2d 1085. The defendant, Ms. Carroll, relies on these cases as well and asserts that they are on point with the facts of the present case. However, we find that the facts of those cases are distinguishable from the instant case.

In Bob’s Plumbing and Heating, Inc. v. Reynolds, supra, this Court affirmed the denial of the defendant’s Motion to Suspend Benefits for Failure to Submit to Medical Evaluation. This Court agreed with the finding of the worker’s compensation judge that’the plaintiff was not required to submit to an IME because “the difference of opinion between the doctors was not a dispute as to the condition of plaintiff because they agree that plaintiff suffered the ankle injury and that plaintiff has reached maximum medical improvement,” and the disagreement was subjective in nature regarding whether or not the plaintiff could return to his prior employment or other employment. (Emphasis added).

In the present case, the doctors do not agree about the defendant’s condition or medical status. Dr. Watermeier believes that Ms. Carroll is temporarily totally disabled and that there is objective evidence of her injuries. Dr. Laborde opined that Ms. Carroll is at maximum medical improvement and that there are no objective signs of injury.

The case of McCrary v. New Orleans Health Corp., supra, is also distinguishable, because the employer sought an IME in order to resolve a conflict over whether additional testing should be performed. The employer did not |Rsuggest that a dispute between the doctors existed as to the condition of the employee. The Fourth Circuit affirmed the denial of the employer’s application for an IME stating, “[b]e-cause relator does not suggest that a dispute exists as to the medical condition of the employee, the judge was correct in denying the motion to appoint an independent medical examiner.” McCrary, supra at 1089.

In the present case, unlike McCrary, Carquest does contend that there is a dispute between the doctors as to the medical condition of Ms. Carroll, and the medical reports support this contention. Therefore, we find that the Court’s ruling in McCrary is inapplicable to this case.

The medical reports from Dr. Watermeier indicate that he has observed objective signs of injury. Furthermore, in each report from the date of the accident through the last report admitted into evidence, Dr. Watermeier declared Ms. Carroll’s disability status to be “Total Temporary.” These reports and Dr. Laborde’s records clearly indicate that the two doctors did not agree on the medical condition of Ms. Carroll. In a letter/report dated August 13, 2001, Dr. Laborde indicated that he did not see any objective evidence of injury from the October of 2000 automobile accident. In a letter dated October 10, 2001, Dr. Laborde stated that he reviewed an MRI of Ms. Carroll’s lumbar spine, and “[tjhere is no objective evidence of injury, no neural compression and no indication for surgery.” In Dr. Laborde’s letter dated May 22, 2002, he wrote that, “the patient has reached maximum medical improvement and is physically capable of returning to work as a delivery driver.” This is clearly a situation where there is a dispute between doctors as to the medical condition of the employee, to which LSA-R.S. 23:1123 applies.

We further note that Section 2715(C) of the Worker’s Compensation Administration’s Utilization Review Procedures states in part:

In the event that there are opposing medical opinions 1 (¡regarding claimant’s condition or capacity to work, the Office of Workers’ Compensation Administration will appoint an independent medical examiner of the appropriate li-censure class to examine the claimant, or review the medical records at issue in accordance to LA R.S. 23:1123. (Emphasis added.)

Not only is there an issue as to Ms. Carroll’s condition in this case, but there is also dispute between the doctors as to her capacity to work. Dr. Laborde believes she is capable of returning to work as a delivery driver, whereas Dr. Watermeier believes that she is still temporarily totally disabled.

Considering the caselaw, the applicable statutes, and the evidence in this matter, we find that the there is indeed a dispute over the medical condition of Ms. Carroll which requires her to submit to an IME, pursuant to LSA-R.S. 23:1123. Accordingly, we find that the worker’s compensation judge erred when he denied the plaintiffs Motion to Compel Independent Medical Examination and dismissed the plaintiffs worker’s compensation claim.

DECREE

Considering the foregoing, we reverse the judgment of the worker’s compensation judge and order the defendant to submit to an IME. We remand the matter for farther proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The last medical report from Dr. Watermeier that was admitted into evidence is dated July 3, 2002.


author: [JAMES L. CANNELLA, Judge.

text:
    DONNAUD’S INC., Donald J. Donnaud, and Marian T. Donnaud v. GULF COAST BANK AND TRUST COMPANY.
    No. 03-CA-427.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 16, 2003.

      Wayne M. Babovich, Bradley J. Chau-vin, Christopher J. Couch, Metairie, LA, for Appellants.
    Robert A. Mathis, Newman, Mathis, Brady, Wakefield & Spedale, APLC, Me-tairie, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, WALTER J. ROTHSCHILD and EMILE ST. PIERRE, Pro Tempore.
   [JAMES L. CANNELLA, Judge.

Plaintiffs, Donnaud’s Inc., Donald J. and Marian T. Donnaud, individually (the Don-nauds), appeal from the trial court judgment granting the exception of no cause of action filed by Defendant, Gulf Coast Bank and Trust Company (Gulf Coast). For the reasons which follow, we affirm.

In an earlier proceeding, Gulf Coast filed suit against the Donnauds on three promissory notes which were secured by a collateral mortgage. Summary judgment was granted in favor of Gulf Coast, finding that the outstanding principle due on the three notes was $472,455.33. The judgment also awarded interest due and attorney fees. The Donnauds took a devolutive appeal from that judgment. During the pendency of the devolutive appeal, Gulf Coast seized and sold for $190,000 the Donnauds’ property which secured the indebtedness. Thereafter, this Court rendered a decision on the appeal. Gulf Coast v. Donnaud, Inc., 99-1228 (La.App. 5th Cir.4/25/00), 759 So.2d 268. In this Court’s decision, the summary judgment was affirmed in part and reversed in part, and the case was remanded for a hearing on interest, attorney fees and a factual conflict concerning a small part of the principal ($18,718.63). The summary judgment was affirmed insofar as it | ¡¡found the remainder of the principle, ($452,836.70) due, and that “plaintiff has the right to collect on the notes.” The Donnauds request for a rehearing was denied. The Donnauds did not apply for writs to the Louisiana Supreme Court and the opinion by this Court became final.

On March 7, 2001, the Donnauds filed suit to recover the $190,000 received as a result of the seizure and sale of their property. In the petition they contend that the property was wrongfully seized because the seizure was based on a judgment that was not final. The Donnauds’ contend that, because the case was remanded for a hearing on interest, attorney fees and part of the principal, the remainder of the judgment was not final and thus could not form the legal basis for the seizure and sale of their property. The Donnauds attached this Court’s opinion to their petition as an exhibit.

In response, Gulf Coast filed an Exception of No Cause of Action and, Alternatively, Motion for Summary Judgment. They contend that the Court of Appeal judgment was final as to $452,836.70. Therefore, the sale price of $190,000, recovered from the seizure and sale of the Donnauds’ property, rightfully belongs to Gulf Coast.

Following a hearing, the trial court ruled in favor of Gulf Coast granting the exception of no cause of action and finding that the Donnaud’s motion for summary judgment was moot. In reasons for judgment the trial court stated that it “granted the exception because the Fifth Circuit decision affirmed that the principal balance of $453,786.00 is due and secured by the mortgage. The Donnaud’s failed to appeal this decision to the Supreme Court and thus it is a final judgment.” It is from this ruling that the Donnauds now appeal.

|4On appeal, in three assigned errors, the Donnauds’ contend that the judgment was not final and, therefore, execution of the judgment was improper. More particularly, they argue that the judgment was not final because the trial court retained jurisdiction over further proceedings for which discovery was ongoing. They also argue that the judgment was not final because the total amount due had not yet been determined. Absent a final judgment upon which to base the seizure and sale of their property, they argue that the seizure and sale were improper and that the proceeds recovered therefrom should be returned to them.

Gulf Coast argues, to the contrary, that the execution on the judgment and seizure and sale of the property pursuant thereto were proper. First, the trial court judgment rendered in their favor was final and the Donnauds did not take a suspensive appeal. Therefore, Gulf Coast had every right to execute on the judgment. Moreover, on appeal, this Court affirmed the judgment as to $452,836.70, and expressly affirmed Gulf Coast’s right to collect on the notes. That ruling is final. The property only sold for $190,000, over $250,000 short of what was due. Therefore, the Donnauds action for return of the sale proceeds based on wrongful seizure states no cause of action.

Upon review of the record, we agree with the arguments presented by Gulf Coast and find no merit in the Donnauds’ arguments. The fallacy in the Donnauds’ argument lies in the fact that the Court of Appeal judgment was indeed final as to $452,836.70, which was ruled collectable.

The peremptory exception of no cause of action tests the legal sufficiency of the plaintiffs petition by determining whether the law affords a remedy on the facts alleged in the petition. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). No evidence may be introduced by either party to support or to controvert the objection of no cause of action. Id. The exception is triable solely on the face of the petition. However, it is well settled that any |Rannexed documents or exhibits are considered part of the petition, with all well-pled allegations of fact accepted as true. Roy O. Martin Lumber Co. v. Saint Denis Securities Co., Inc., 225 La. 51, 72 So.2d 257, 258-59 (La.1954); Atchley v. Atchley, 97-474 (La.App. 5th Cir.1/14/98), 707 So.2d 458.

The burden of demonstrating that no cause of action has been stated is upon the mover or exceptor. In deciding the exception of no cause of action, the court must presume all factual allegations of the petition to be true and all reasonable inferences are made in favor of the non-moving party. In reviewing a trial court’s granting an exception of no cause of action, the appellate court should subject the case to de novo review because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition. City of New Orleans v. Board of Commissioners, 93-0690, p. 2 (La.7/5/94), 640 So.2d 237, 241.

In this case, the Donnauds attached to their petition as Exhibit E the earlier Court of Appeal opinion rendered by this Court. In that opinion, this court affirmed the trial court judgment in part, finding that summary judgment was properly granted as to $452,836.70 as the amount of principal the Donnauds owed Gulf Coast on the notes. This Court also affirmed the trial court finding that the indebtedness was secured by a collateral mortgage on the property that was seized and sold. And, perhaps most importantly, this Court held that “[t]he trial court’s finding that the plaintiff [Gulf Coast] has the right to collect on the notes is also affirmed.” Rehearing was denied and the Donnauds did not apply to the Louisiana Supreme Court for writs. This decision became final.

The Court of Appeal decision was attached to the Donnauds’ petition as an exhibit and, therefore, may be considered in deciding an exception of no cause of action. The Donnauds’ petition seeks return of the $190,000 received from the seizure and sale of their property. They can only succeed by showing that the | (¡property was wrongfully seized and sold. However, the petition and exhibits attached thereto negate such a showing. To the contrary, they show that a final judicial decision held that $452,836.70 in principal is due on the Donnauds notes in favor of Gulf States, that the indebtedness is secured by a collateral mortgage, and that Gulf States has the right to collect on the notes. Clearly, the petition and the attached exhibits do not state a cause of action for payment by Gulf Coast to the Donnauds of the $190,000 which they received from the seizure and sale of the security.

The Donnauds insist that the seizure and sale were improper because the entire matter is not final, with interest and attorney fees still to be determined as well as a question as to approximately $18,000 of additional principal. However, what the Donnauds overlook in making this argument is that the judgment of their indebtedness in the amount of $452,836.70 was final, as well as the determination that Gulf Coast had the right to collect on that amount.

Accordingly, for the reasons stated above, we find that the Donnauds’ petition and exhibits attached thereto fail to state a cause of action against Gulf Coast and the judgment of the trial court granting the exception of no cause of action filed by Gulf Coast in response to the Donnauds’ petition is affirmed. Costs of appeal are to be paid by the Donnauds.

AFFIRMED.

      . Suit was actually filed by the Federal Deposit Insurance Corporation (FDIC) and, following the assignment of the notes, Gulf Coast was substituted as Plaintiff.

      . The total figure in our opinion is $900 less than the amount awarded by the trial court due to a typographical error omitting $900 on the amount due on note two. However, Gulf Coast did not seek correction of the award and the total in our opinion is the amount which is now represented in the final judgment.

      . Gulf Coast listed the amount in its exception as $453,736.00, but see footnote 2.