text:
    Francis Jenkins SULLIVAN, Plaintiff-Appellee, v. Harold MURPHY, et al., Defendants-Appellants. Rachel Medlin, Plaintiff-Appellee, v. Harold Murphy, et al., Defendants-Appellants.
    Nos. 37,473-CA, 37,474-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 2003.

      La. Dept, of Justice, Litigation Division by James E. Calhoun, Anselm N. Nwoko-rie, Natchitoches, The Boles Law Firm by Michael L. Dubos, P. Scott Wolleson, for Defendants-Appellants, State of La., DPSC and Trooper G.J. Pleasant.
    Leroy Smith, Jr., Tallulah, for Plaintiffs-Appellees, Francis J. Sullivan and David O. Sullivan.
    Tracy L. Oakley, Ruston, for Defendant-Appellee, Illinois National Ins. Co.
    James E. Paxton, Tallulah, for Plaintiff-Appellee, Rachel F. Medlin.
    Before STEWART, CARAWAY and DREW, JJ.
   h STEWART, J.

Rachel Medlin (“Medlin”) and Francis Sullivan (“Sullivan”) brought suit against the State of Louisiana through the Department of Public Safety and Corrections (“State”), as employer of State Trooper G.J. Pleasant (“Trooper Pleasant”), and Harold Murphy (“Murphy”) and his employer, Richmond Automotive, for injuries arising out of an automobile accident. Murphy and Richmond settled with the plaintiffs before trial. After a trial on the merits, the jury rendered a verdict in favor of the plaintiffs. The jury allocated fault 80% to Medlin, 15% to Trooper Pleasant, and 5% to Murphy. Francis Sullivan was also assessed with 50% fault for riding with an intoxicated driver. No general damages were awarded by the jury, but it did award special damages. The plaintiffs asked for a JNOV which was granted by the trial court awarding general and special damages, subject to a reduction for comparative fault as assessed by the jury. Each party appeals the judgment of the trial court allocating fault between them and the award of damages. For the reasons that follow, reverse and render.

FACTS

In the early morning hours of December 17, 1998, the Madison Parish Sheriffs office was advised that a car had been abandoned in a ditch on Highway 80 east of Tallulah. Trooper Pleasant was dispatched to the scene, where he was joined by Madison Parish Deputy, Quentin Purvis (“Deputy Purvis”). Trooper Pleasant searched the vehicle and the immediate vicinity to determine whether the vehicle was occupied, but he found no occupant. Trooper Pleasant radioed Troop F Headquarters to request a tow truck be dispatched to the scene to recover the abandoned vehicle. Richmond | ^automotive was sent to the scene to recover the vehicle. Murphy was the tow truck operator for Richmond Automotive. When Murphy arrived at the scene Trooper Pleasant was the only officer there because Deputy Pur-vis had left to continue patrolling on Highway 80.

Murphy’s tow truck had orange overhead four-way lights and beacons, headlights, emergency/hazard flashers, and orange cargo lights all activated. According to Murphy, every light on the tow truck was operating and “flashing like a Christmas tree.” To pull the vehicle out of the ditch, Murphy was required to position the tow truck at a forty-five degree angle in the westbound lane. The front passenger side tire of the tow truck was near the center line of the two lane, undivided highway. Orange cones were also placed on the highway around the tow truck and near the scene.

While Murphy was hooking up the vehicle, Trooper Pleasant had his patrol car positioned on the highway with its emergency lights activated. Once Murphy pulled the vehicle out of the ditch and onto the highway, Trooper Pleasant left the scene to search down Highway 80 for the possible driver of the abandoned vehicle.

After Trooper Pleasant left the scene, he received a radio call from Deputy Purvis advising him that he was in pursuit of a suspected drunk driver going westbound on Highway 80 swerving from ditch to ditch. Deputy Purvis had been in pursuit of the vehicle, sometimes traveling as much as 100 miles per hour, and he requested that Trooper Pleasant stop and wait on Highway 80 to intercept the vehicle. As Deputy Purvis pursued the vehicle, it collided with Murphy’s tow truck which was still ^positioned on the highway with all of its lights flashing. Deputy Pur-vis testified that he saw no brake lights activated on the vehicle before it collided with the tow truck. He also said that no skid marks were left, and that the suspect vehicle never left its lane of travel before impact.

Rachel Medlin, the driver of the suspect vehicle, had a blood alcohol of .216, more than twice the legal limit. Medlin was later charged with DWI, and pled guilty. The passenger in the vehicle, Francis Sullivan, had a blood alcohol content of .210. Both women had been to a Christmas party in Vicksburg hosted by their employer, Isle of Capri Casino, where they worked as cocktail waitresses. According to Med-lin, she never saw the tow truck. Deputy Purvis and Trooper Pleasant determined that Medlin and Sullivan were intoxicated because of the stench of alcohol in their vehicle and on their breath, and their slurred speech. Medlin failed the horizontal gaze nystagmus test administered by Trooper Pleasant.

Sullivan and Medlin filed suit against Murphy Richmond Automotive, Trooper Pleasant, and the State, as employer of Trooper Pleasant. Initially, Sullivan also filed suit against Medlin, but the lawsuit was dismissed prior to trial. The remaining lawsuits were consolidated for trial. Before trial, Murphy and Richmond Automotive were released as a result of the settlement with both plaintiffs. After a trial on the merits, the jury rendered a verdict in favor of the plaintiffs. The jury allocated fault 80% to Medlin, 15% to Trooper Pleasant, and 5% to Murphy. The jury also found Francis Sullivan negligent for riding with an intoxicated driver and assessed her negligence at 50% under La. C.C. art. 2323. No general Rdamages were awarded by the jury, but it did award special damages. The plaintiffs asked for a JNOV which was granted by the trial court awarding general and special damages, subject to a reduction for comparative fault as assessed by the jury.

Medlin was awarded $50,000.00 for general damages, $6,856.44 for past medical expenses, $55,000.00 for future medical expenses, and $7,530.00 for lost wages, for a total award of $119,386.44. The judgment reduced the award against the State and Trooper Pleasant to reflect the jury’s assessment of 15% fault against Trooper Pleasant, for a total award against the State in the amount of $17,907.97.

Sullivan was awarded $100,000.00 for general damages, $49,450.65 for past medical expenses, and $5,140.00 for lost wages, for a total award of $154,590.65. The court then reduced the award by 50% to $77,295.33 to reflect the its assessment of 50% fault to Sullivan. This appeal ensued.

DISCUSSION

Standard of Review

A court of appeal may not set aside a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Thus, to reverse a trial court, the appellate court must find that a reasonable factual basis does not exist for the finding, and further, that the finding is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The State argues that the jury erred in its finding that Trooper Pleasant was 15% at fault for the accident at issue. The State further argues that the intoxication of Sullivan and Medlin was the sole cause of the | saccident at issue, and that Trooper Pleasant was not negligent in his actions at the scene.

Negligence is determined in Louisiana under the duty-risk analysis. The determination of liability in a negligence case usually requires proof of five different elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to a specific standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). Boykin v. La. Transit Co., Inc., 96-1932 (La.3/4/98), 707 So.2d 1225, reh’g denied, (4/24/98); Toston v. Pardon, 36,880 (La.App.2d Cir.5/14/03), 847 So.2d 119.

In deciding this case through the application of the duty-risk analysis, we first examine the issue of the duty of Trooper Pleasant owed by Medlin and Sullivan. The supreme court noted in Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, that the legislature has given law enforcement officers the exclusive power to regulate traffic. The public has a corresponding obligation to follow traffic regulations. Law enforcement officers are duty bound to exercise this power reasonably to protect life and limb and to refrain from causing injury and harm. Syrie, supra. When a law enforcement officer becomes aware of a dangerous traffic situation, he has an affirmative duty to see that motorists are not subjected to unreasonable | ¿risks of harm. Syrie, supra, citing Monceaux v. Jennings Rice Drier, Inc., 590 So.2d 672, 675 (La.App. 3d Cir.1991). The Syrie court also noted that the scope of an officer’s duty to act reasonably under the circumstances does not extend so far as to require that the officer always does the “best” or even a “better” method of approach.

Next, we must determine whether Trooper Pleasant breached this duty. The record shows that while the abandoned vehicle was being pulled from the ditch by Murphy, Trooper Pleasant had his vehicle positioned on the highway with his lights flashing to warn oncoming traffic. After Murphy pulled the vehicle safely onto the highway, Trooper Pleasant left the scene to look for the driver of the abandoned vehicle. At this time, the emergency lights on the tow truck were flashing.

Law enforcement officers are required to take reasonable measures, not the “best” measures, to secure an accident scene. The duty owed by Trooper Pleasant in connection with the recovery operation at issue in the instant case was initially set forth by the Louisiana Supreme Court in Blair v. Tynes, 621 So.2d 591 (La.1993) and Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173 as follows:

... the legislature has given law enforcement officers the exclusive power to regulate traffic and the public has a corresponding obligation to follow traffic regulations. Law enforcement officers are duty bound to exercise this power reasonably to protect life and limb and to refrain from causing injury or harm. When a law enforcement officer becomes aware of a dangerous traffic situation, he has the affirmative duty to see that motorists are not subjected to unreasonable risks of harm ... the scope of an officer’s duty is to choose a course of action which is reasonable under the circumstances. In other words, the scope of an officer’s duty to act reasonably under the circumstances does not extend so far as to require |7that the officer always choose the “best” or even a “better” method of approach.

The State contends, and we agree, that Trooper Pleasant acted within the scope of his duty and engaged in a course of action that was reasonable under the circumstances, because the recovery scene did not present an unreasonable risk of harm to a motorist exercising ordinary care. We find that the recovery scene did not present a risk of harm such that Trooper Pleasant would have a responsibility to remain at the recovery scene and position his car east of the recovery scene and the curve because the accident scene was not at a dangerous location. There was only a slight curve east of the scene. In fact, another vehicle passed by the scene prior to the accident without incident. Moreover, the tow truck had all of its emergency flashers operating at all times. With the benefit of hindsight, plaintiffs’ argue that many other things could have been done, but it is clear that none of them would have averted the accident because the plaintiffs were too intoxicated to observe the scene. The crux of this issue is not whether or not Trooper Pleasant could have done something different, but whether his conduct was unreasonable under the circumstances of this case. We find that his actions were at the scene were not unreasonable or a breach of his duties to motorists.

According to the testimony of accident reconstruction expert, Raymond Bur-kart, an eastbound motorist had an unobstructed view of the recovery scene and the emergency lights for at least 669 feet. Despite the testimony of the plaintiffs’ expert that a driver could not determine that a truck was in the oncoming lane until 250 feet, the evidence shows that 18MedIin never attempted to stop. The plaintiffs’ defense is predicated on the idea that Medlin did not have enough time to attempt to stop, but the fact that she never attempted to stop destroys that theory. A motorist has a duty to exercise reasonable care in the operation of the vehicle, which includes the duty to keep his vehicle under control and to maintain a proper lookout at all times. Williams v. City of Monroe, 27,065 (La.App.2d Cir.7/3/95), 658 So.2d 820.

We find that Medlin’s severe intoxication was the sole cause of the accident. Nothing in the record, other than her intoxication can explain why she never saw the flashing lights on the tow truck. Site obstruction was ruled out as a potential explanation because Deputy Purvis saw the emergency lights as he followed along behind Medlin.

According to the uncontradicted testimony of a toxicologist presented by the state, the level of intoxication of the plaintiffs was “very, very, high” and would severely alter visual acuity. To a driver with .216 blood alcohol content, flashing lights may not look like they are flashing. Some people cannot walk and their speech is slurred. Worse still, they are unable to adequately judge distances.

Lastly, the scope of protection afforded by the duty of Trooper Pleasant did not include the risk that a severely intoxicated motorist would not see the emergency lights of the tow truck. The risk that a severely intoxicated driver would fail to observe the flashing lights on the tow truck while being pursued as a drunk driver at speeds over 100 miles per hour is not a risk that is within the scope of reasonable care owed by Trooper | ¡¡Pleasant. La. R.S. 14:98 makes it a criminal offense to drive while intoxicated. Our law seeks to deter such conduct, not to protect those who engage in it. To allow Medlin to recover in light of her wanton and reckless conduct is contrary to the law and a violation of public policy. As a result, we reverse the jury’s allocation of fault of 15% to Trooper Pleasant and 5% to Harold Murphy and reduce the defendant’s fault to 0%. We increase Rachel Medlin’s liability for her negligence from 80% to 100%.

JNOV

We now turn to the trial court’s grant of Sullivan’s motion for JNOV following the jury’s verdict. A JNOV is a procedural device authorized by La. C.C.P. art. 1811 whereby the trial court may correct a legally erroneous verdict by modifying fault or damages, or both, that the jury may have assessed. Matthews v. Arkla Lubricants, Inc., 32,121 (La.App.2d Cir.8/18/99), 740 So.2d 787; Greene v. Fox Crossing, Inc., 32,774 (La.App.2d Cir.3/1/00), 754 So.2d 339, writ denied, 2000-0944 (La.5/26/00), 762 So.2d 1108. The motion should be granted only when the evidence points so strongly in favor of the party seeking the JNOV that reasonable men could not reach different conclusions. Greene v. Fox Crossing, Inc., supra. We find that court erred as a matter of law when it granted Francis Sullivan’s motion for JNOV and reduced the jury’s assignment of liability to Sullivan from 100% to 50%. Although Sullivan was a passenger in a vehicle being driven by an intoxicated driver, she is completely responsible for any injuries she suffered.

ImUnder La. C.C. art. 2323, “if a person suffers injury, death, or loss as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.” Because we find that the State is 0% responsible for the accident, we also conclude that the State is 0% responsible for Sullivan’s injuries and that the jury did not err by assessing Sullivan 100% fault for riding with an intoxicated driver.

CONCLUSION

We find that the intoxication of the plaintiffs, Rachel Medlin and Francis Sullivan, was the sole cause of the accident at issue and the resulting injuries. The record is clear that regardless of whether it would have been the blue and red flashing lights of the police car or the yellow warning fights of a tow truck, the plaintiffs were simply too inebriated to appreciate the location of either, as evidenced by their failure to take any evasive action before colliding with the wrecker. Consequently, we reverse the trial court’s finding of fault of 15% as to Trooper Pleasant and 5% as to Harold Murphy and reduce them to 0%, thereby reversing any award of damages to the plaintiffs. We also reverse the jury’s finding of 80% fault to Rachel Med-lin and increase it to 100%. Finally, we reverse the trial court’s grant of Sullivan’s motion for JNOV and increase her fault for her injuries from 50% to 100%. Costs to be shared equally among the parties.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: JjDREW, J. 11 CARAWAY, J.,

license: Public Domain

text:
    Larry THOMASON, Plaintiff-Appellee, v. WAL-MART STORES, INC., Defendant-Appellant.
    No. 37,520-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 4, 2003.

      Allen & Gooch, by Charles Martin Kreamer, Sr., Lafayette, for Appellant.
    Langston Law Firm, L.L.C., by Carlton Lashayne Parhms, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   JjDREW, J.

Wal-Mart appeals a judgment awarding workers’ compensation benefits, penalties, and attorney fees to Larry Thomason. We amend the judgment to increase the award of attorney fees, and as amended, the judgment is affirmed.

FACTS

Thomason was employed as an unloader at a West Monroe Wal-Mart. Thomason’s job required him to lift food items and-drinks from a conveyor belt coming out of a truck and place the items on a pallet. He would then pull the loaded pallets to the store floor so the store’s night crew could stock the items. His normal shift was from 3:00 p.m. to midnight.

Thomason contends that he injured himself at work on Tuesday, November 20, 2001. Thomason, who was 54 years old at the time he was injured, was scheduled to be off work on Wednesday and Thursday, which was Thanksgiving Day. Thomason recalled working a “little” harder than normal that Tuesday due to more trucks delivering merchandise in anticipation of the holiday. He noticed a “little” pain after getting off work on Tuesday, but dismissed it as normal pain. Thomason had testified in his deposition that the pain he felt was in his stomach. Thomason believed that he worked his usual shift that Tuesday, but was unsure if he worked overtime.

Thomason spent Wednesday resting at home. He described feeling a “little” pain, but he did not think anything was seriously wrong. He also noticed that he was urinating more frequently. The pain increased on Thursday as he spent the day at home lying down. By Thursday evening, he | ^believed that something was wrong because his pain was now severe and his left testicle was beginning to swell. Thomason returned to work as scheduled on Friday despite barely being able to walk because he did not want his supervisors to think he was missing work for a frivolous reason. Thomason also wanted his supervisors to see his condition.

Shortly after arriving at work on Friday, Thomason met with Terri McClinton, who worked as Event Coordinator and Risk Control Team Leader for Wal-Mart. Ms. McClinton took Thomason to the emergency room at Glenwood Regional Medical Center, where he was examined by two doctors. The first doctor told him that his testicle problem was related to a birth defect. Ms. McClinton left the hospital soon thereafter without seeing the second doctor because the first doctor told her that she could leave. A testicular ultrasound “suggested” a partial incomplete torsion of the left testicle.

The second doctor to examine Thomason at Glenwood was urologist Dr. Arthur Liles. Thomason reported low abdominal pain lateralizing to his left testicle. Tho-mason recalled Dr. Liles saying that the swelling could have been caused by strenuous work. Dr. Liles’ report from the emergency room examination noted that the ultrasound suggested a possible torsion; however, the report also stated that the “possibility of delayed torsion [was] entertained but considered very unlikely.” Dr. Liles’ diagnosis was “[l]eft epididymi-dis probably secondary to heavy lifting and straining from a prostatitis.” Thomason was initially treated with medications, but his condition was not cured. His left testi-de was surgically removed on | ¡¡January 22, 2002, due to a left scrotal abscess secondary to epididymitis. Dr. Liles’ report from that date states that Thomason presented “to the emergency room over the holidays with a left epididymitis, documented Escherichia coli urinary tract infection with onset of pain acutely while heavy lifting.”

Following a hearing on the merits, the WCJ rendered judgment ordering Wal-Mart to pay Temporary Total Disability benefits for 18 weeks, benefits for 82 weeks due to scarring and disfigurement, penalties of $4,000 for its refusal to authorize medical and compensation benefits, and attorney fees of $7,500.

Wal-Mart’s motion for new trial was denied. Wal-Mart appealed the judgment. Thomason answered the appeal seeking an increase in the award of attorney fees.

DISCUSSION

Denial of Benefits

An employee is entitled to receive workers’ compensation benefits for personal injuries from an accident arising out of and in the course of his employment. La. R.S. 23:1031(A). In a worker’s compensation action, the plaintiff must establish the occurrence of a work-related accident by a preponderance of the evidence. While the worker’s testimony alone may be sufficient to discharge his burden of proving a work-related accident, it will be inadequate where (1) other evidence discredits or casts serious doubt upon the worker’s version of the incident; or (2) the worker’s testimony is not corroborated by the circumstances following the alleged incident. Such | ¿corroboration may include medical evidence and the testimony of a spouse, fellow workers, or friends. Qualls v. Stone Container Corp., 29,794 (La.App.2d Cir.9/24/97), 699 So.2d 1137, writ denied, 97-2929 (La.2/6/98), 709 So.2d 736.

Wal-Mart first contends that the WCJ erred in finding that Thomason carried his burden of proving that he sustained his injury in an accident at work. An accident within the context of workers’ compensation is defined as an “... actual, identifiable, precipitous event happening suddenly or violently ... and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1).

Wal-Mart urges that Thomason was unable to point to a specific moment at work on Tuesday when he sustained his injury. Ms. McClinton recalled that Thomason was not sure of the date and time of his injury, and he did not know how he had been injured. She also recalled that Tho-mason did not mention anything specific happening during the last days he worked prior to his injury. She testified that when she asked him why he thought his injury was related to his job at Wal-Mart, he replied that he had been at home and doing nothing during his days off. Thoma-son testified that he did not have an accident at Wal-Mart on Tuesday, and he could not recall anything happening that Tuesday that caused him pain.

In her oral reasons for judgment, the WCJ noted that an “identifiable” and “precipitous” event occurred on Tuesday, namely, the unloading and pulling of heavier-than-normal pallets. The WCJ stated that she believed [ ¡¡Thomason was the type of individual who would attempt to bear pain without complaint until the point it became unbearable, and she found Thoma-son to be a very credible witness.

Factual findings in workers’ compensation cases are subject to the manifest error/clearly wrong standard of review. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 680 So.2d 706; Corley v. Wal-Mart Stores, Inc., 31,917 (La.App.2d Cir.5/7/99), 737 So.2d 204, writ denied, 99-2002 (La.10/15/99), 748 So.2d 1151.

This court has considered the meaning of “accident” in workers’ compensation cases:

The “actual, identifiable, precipitous event” under the present law may include a routine movement or task that the claimant regularly performs, if the claimant is able to identify with some particularity as to time, place and manner, the objective manifestation of the accidental injury.

McConnell v. City of Ruston, 27,154 (La.App.2d Cir.8/23/95), 660 So.2d 100, 102, writ denied, 95-2348 (La.12/15/95), 664 So.2d 453. Regarding the definition of “accident”, the Third Circuit has stated:

Although the definition of accident was amended to emphasize that the identifiable, precipitous event must be more than a gradual deterioration or progressive degeneration, jurisprudence holds that these terms do not exclude those instances where a worker can establish a work-related event, which may seem to be a customary or routine work activity, which results in an injury to the employee. Bryan v. Allstate Timber Co., 98-840 (La.App. 3d Cir.12/16/98), 724 So.2d 853; Robin v. Schwegmann Giant Supermarkets Inc., 93-2310 (La.App. 1st Cir.11/10/94), 646 So.2d 1030, writ denied, 95-202 (La.3/17/95), 651 So.2d 259; Guilbeaux v. Martin Mills, Inc., 93-1359 (La.App. 3d Cir.5/4/94), 640 So.2d 472, writ denied, 94-1444 (La.9/23/94), 642 So.2d 1291; Dyson v. State Employees Group Benefits Program, 610 So.2d 953 (La.App. 1st Cir.1992).

Richard v. Workover & Completion, 00-794 (La.App. 3d Cir.12/6/00), 774 So.2d 361, 364.

Although Thomason was unable to pinpoint the precise moment of injury, this does not disqualify him from receiving benefits. The evidence established that Thomason’s job required him to perform physical labor, and there was more work than on a typical day for him to do that Tuesday because of the approaching holiday. Thomason noticed pain after getting home from work, and this pain increased over the next two days. Thomason should also not be penalized because he described his pain as minor before Thursday night. Individuals have different tolerances of pain, and Thomason was accustomed to feeling pain. We also note that Thomason could not recall ever previously experiencing health problems related to his groin area.

Thomason’s belief that his injury was related to work is also supported by Dr. Liles’ emergency room diagnosis of “[l]eft epididymidis probably secondary to heavy lifting and straining from a prostatitis.” (Our emphasis.) The doctor who initially examined Thomason and told him that he had a birth defect in his testicle was not called to testify by Wal-Mart. This physician is apparently identified as Dr. Vernon Cantwell in Note Number 11 of Defendant’s Exhibit 3.

Wal-Mart places great emphasis on the case of Sanders v. Grace Nursing Home, 98-1344 (La.9/24/99), 754 So.2d 1024, writ denied, 99-3090 (La.1/7/00), 752 So.2d 868. However, that case can be readily distinguished. Sanders was a nurse’s aide helper who claimed she injured |7her back while changing a mattress on a Friday. Sanders did not experience any pain until Sunday night. In contrast, Thomason noticed pain on Tuesday after getting off work, and this pain remained with him until he returned to work on Friday.

Wal-Mart also urges that it was not the only source of heavy physical activity for Thomason, who admitted that he had other sources of income in addition to his job at Wal-Mart. Thomason would occasionally mow lawns on his days off, although he did not do this on a regular basis. He even mowed Ms. McClinton’s lawn on one occasion. Thomason would also sometimes load his truck and go to flea markets. Thomason denied that any of his odd jobs involved heavy lifting or straining. More importantly, he was not doing any of this work or other non-employment-related strenuous work around the date he was injured.

After thoroughly reviewing the evidence in this record, we cannot conclude that the WCJ was manifestly erroneous in awarding workers’ compensation benefits to Tho-mason.

Penalties

Wal-Mart next contends that its denial of benefits to Thomason was not arbitrary and capricious, and therefore, the WCJ’s finding to the contrary was manifestly erroneous.

La. R.S. 23:1201(F) provides for the assessment of a penalty and reasonable attorney fees against the employer or insurer for the failure to timely commence or timely continue paying benefits unless the claim is reasonably controverted or if the nonpayment results from conditions over ] «which the employer or insurer had no control. La. R.S. 28:1201.2 provides for an assessment of attorney fees when an employer or insurer discontinues payments and the discontinuance was arbitrary, capricious, or without probable cause. See, generally, Williams v. Rush Masonry, 98-2271 (La.6/29/99), 737 So.2d 41. La. R.S. 23:1201(F) was amended, and La. R.S. 23:1201.2 was repealed, by Act 1204 of 2003.

In its oral reasons for judgment, the WCJ stated that initially Wal-Mart had a basis to deny the claim based on the birth defect comment from the first emergency room doctor; however, this changed when Dr. Liles stated that the testicle problem was probably due to lifting at work. The WCJ added that the failure to pay or further investigate after receiving Dr. Liles’ report was arbitrary and capricious.

Wal-Mart apparently never paid any benefits to Thomason. Thus, the WCJ used an incorrect standard when evaluating Wal Mart’s conduct. The discontinuance of benefits standard (arbitrary and capricious) was used instead of the failure to pay benefits standard (reasonably controverted). We also note that penalties were available for the failure to pay benefits, but were not available when benefits were discontinued. A claim is reasonably controverted when the employer produces factual or medical information of such a nature that it reasonably counters the claimant’s evidence. Balsamo v. Jones, 28,885 (La.App.2d Cir.12/11/96), 685 So.2d 1140.

The difference between the La. R.S. 23:1201 and La. R.S. 23:1201.2 standards was addressed in Brown v. Texas-LA Cartage Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 890:

|flThe unambiguous language of La. R.S. 23:1201 clearly establishes 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. Unreasonably controverting a claim, which is the exception at issue in this case, requires action of a less egregious nature than that required for arbitrary and capricious behavior. Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. Stated another way, such behavior arises from unrestrained exercise of the will or personal preference or lacks a predictable pattern.
The phrase “reasonably controverted,” on the other hand, mandates a different standard. In general, one can surmise from the plain meaning of the words making up the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, 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.

Citations and footnote omitted. Emphasis added.

Penalties are stricti juris and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay. Lee v. Schumpert, 36,733 (La.App.2d Cir.1/29/03), 836 So.2d 1214. Nevertheless, a WCJ has great discretion in awarding or denying penalties and attorney fees. Nowlin v. Breck Const. Co., 30,622 (La.App.2d Cir.6/24/98), 715 So.2d 112.

As noted above, the WCJ used the wrong standard when she stated in her oral reasons for judgment that Wal-Mart had acted arbitrarily and capriciously. However, that does not affect our analysis as the WCJ |inactually used a standard more forgiving to Wal-Mart. “Unreasonably controverting a claim ... requires action of a less egregious nature than that required for arbitrary and capricious behavior.” Brown v. Texas-LA Cartage Inc., 721 So.2d at 890. In addition, an appeal lies from the judgment itself, not the reasons for judgment. Louisiana Workers’ Compensation Corp. v. Gray, 34,731 (La.App.2d Cir.5/9/01), 786 So.2d 310.

In her capacity as Risk Control Team Leader, Ms. McClinton handled accident reports and store safety. If an accident involved an employee, she investigated it. Ms. McClinton testified that she was unsure about the merits of Thomason’s claim before the first doctor spoke to him, but once that doctor mentioned the birth defect, she felt that Thomason’s injury was not job-related. Ms. McClinton never spoke with Dr. Liles in the course of her investigation. Her investigation ended when she sent the information she had gathered to Claims Management, Inc., which administered workers’ compensation claims for Wal-Mart. Ms. McClinton acknowledged that she usually conducts a more extensive investigation, but there was not much more she could so because Thomason was unable to pinpoint the time or place of his injury.

At some point Claims Management received a statement from Ms. McClinton concerning what the first doctor had said about the birth defect. Claims Management sent Thomason a letter dated December 19, 2001, informing him that his claim was being denied. Dr. Liles’ diagnosis is on a form entitled ‘Worker’s Compensation Request for Medical Care.” The section of the form containing the diagnosis is dated December 20, 2001. In Filed into evidence as Defense Exhibit-3 is a notepad history showing that according to note number 19, as of February 27, 2002, Claims Management had received the Glenwood medical records showing the diagnosis of left epididymitis probably secondary to heavy lifting and straining from a prostatitis. Ms. McClinton stated that she did not know if Claims Management did any independent investigating of Tho-mason’s claim.

Upon learning of Dr. Liles’ diagnosis, Wal-Mart should have further investigated Thomason’s claim instead of relying on the other doctor’s statement about a birth defect. There is no indication in this record that Wal-Mart sought an examination of Thomason in order to confirm or rebut Dr. Liles’ diagnosis. Wal-Mart did not possess factual or medical information sufficient to reasonably counter the evidence presented by Thomason. Accordingly, Wal-Mart did not reasonably controvert Thomason’s claim, and we cannot conclude that the WCJ erred in awarding penalties and attorney fees.

Thomason has answered the appeal seeking an increase in the award of attorney fees for the additional expenses incurred in this appeal. We conclude that Thomason is entitled to a $500 increase in attorney fees attributable to the employer’s appeal.

CONCLUSION

For the foregoing reasons, we amend the judgment to award an additional $500 in attorney fees for the appeal. In all other respects, the judgment is AFFIRMED. Costs of this appeal are assessed to Wal-Mart.

| ^DECREE

At appellant’s costs, the judgment is AMENDED, and as amended, is AFFIRMED.

CARAWAY, J., concurs in part and dissents in part with written reasons.

11 CARAWAY, J.,

concurring in part and dissenting in part.

Plaintiff admittedly could not point to an “identifiable, precipitous event” for the establishment of an accident in this case. Causation therefore has always been the critical issue surrounding plaintiffs claim. At trial, plaintiff presented no medical testimony from a doctor who might have better explained that the plaintiffs condition had to have occurred from a single event and was not the product of a degenerative process or the phantom birth defect reported on the report of one doctor.

If the evidence leaves the probabilities evenly balanced, or if it shows only a possibility of a work-related event or leaves it to speculation or conjecture, then the plaintiff fails to carry his burden. Qualls v. Stone Container Corp., 29,794 (La.App.2d Cir.9/24/97), 699 So.2d 1137. This case is very close. Nevertheless, under the manifest error standard, I do not vote to reverse the WCJ’s acceptance of plaintiffs circumstantial case. I do believe that, in the absence of proof of a much stronger case of causation based upon medical testimony, the plaintiff did not prove that the defendant’s contesting of the occurrence of an accident was unreasonable. I therefore respectfully dissent to the award of penalties and attorney’s fees.


author: JjPER CURIAM. b BYRNES, C.J.,

text:
    Edward Lewis BECKER v. Lynn B. DEAN, Individually and in his Capacity as Candidate for the Office of Councilman-at-Large (East), St. Bernard Parish, and Lena R. Torres, In Her Official Capacity as Clerk of Court, Etc.
    No. 2003-CA-1561.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 5, 2003.
    Writ Granted Sept. 12, 2003.

      Frank D. Ippolito, Law Offices of Frank D. Ippolito, Chalmette, LA, for Plaintiff/Appellee.
    Sharon.M. Williams, Chalmette, LA, for DefendanVAppellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   JjPER CURIAM.

Defendant, Lynn B. Dean (hereinafter known as “Dean”), appeals the district court’s judgment disqualifying him as a candidate for the office of Councilman-at-Large (EAST) for the Parish of St. Bernard. We affirm.

FACTS AND PROCEDURAL HISTORY

On August 21, 2003, Mr. Dean filed a Notice of Candidacy for the office of Coun-eilman-aWLarge (EAST) for St. Bernard Parish, State of Louisiana. On August 27, 2003, plaintiff Edward Lewis Becker (“Becker”), who also qualified for the same office as Mr. Dean, filed this suit pursuant to La. R.S. 18:1401, which allows a qualified voter in any district to bring an action objecting to the candidacy of a person who has qualified to run for an office in that district. Plaintiff alleges that Mr. Dean does not meet the qualifications for the office he seeks because he resides in Plaquemines Parish, not within the St. Bernard Parish, nor has he resided within the eastern half of the St. Bernard Parish for at least two years immediately preceding the time established by law for qualifying for the said office, as required | ?for candidates to the said office by the St. Bernard Parish Home Rule Charter, Article II, § 2-01, Paragraphs C and E, and La. R.S. 18:451.

The case was tried in the district court on August 29, 2003. On August 30, 2003, the district court rendered judgment against Mr. Dean, disqualifying him as a candidate for Councilman-at-Large (EAST). The trial judge concluded that because Mr. Dean was not legally domiciled and did not actually reside in St. Bernard Parish when he qualified for the office of Councilman-at-Large (EAST), he must be disqualified as a candidate for said office and his name removed from the ballot.

APPLICABLE LAW

In an election contest, the person objecting to the candidacy bears the burden of proving the candidate is disqualified. La. R.S. 18:492; Messer v. London, 438 So.2d 546 (La.1983). The laws governing the conduct of elections must be liberally interpreted so as to promote rather than defeat candidacy. Any doubt as to the qualifications of a candidate should be resolved in favor of permitting the candidate to run for public office. Dixon v. Hughes, 587 So.2d 679 (La.1991).

The St. Bernard Home Rule Charter requires that council members be elected by a parish-wide vote. Charter, Art. II, § 2.01(a). The Charter requires that the council member for the eastern part of the parish reside in the eastern half of the parish. Id. § 2.01(c). It also requires that the members be qualified electors of the parish and of the district or parish division from which elected at the time of qualification. Id., § 2.01(d). Lastly, the Charter requires that all council members [3be legally domiciled and have actually resided in St. Bernard Parish for at least two immediately preceding the time established by law for qualifying for office. Id., § 2.01(e).

ESTABLISHMENT OF DOMICILE

It is well settled that residence and domicile are not synonymous, and a person can have several residences, but only one domicile. La. Civ.Code art. 38; Messer v. London, 438 So.2d 546, 547 (La.1983). A person’s domicile is his principal establishment wherein he makes his habitual residence and essentially consists of two elements, namely residence and intent to remain. The question of domicile is one of intention as well as fact, and where it appears domicile has been acquired in another place, the party seeking to show it has been changed must overcome the legal presumption that it has not been changed by positive and satisfactory proof of establishment of a domicile as a matter of fact with the intention of remaining in the new place and of abandoning the former domicile. Russell v. Goldsby, 2000-2595 (La.9/22/00), 780 So.2d 1048. Absent declaration to change domicile, proof of this intention depends upon circumstances; there is a presumption against change of domicile. Messer, 438 So.2d at 547; Herpin v. Boudreaux, 98-306 (La.App. 3 Cir.3/5/98), 709 So.2d 269.

In the instant case, the Notice of Candidacy form lists Dean’s domicile as 101 Dean Drive in Braithwaite, Louisiana. Dean failed to list a mailing address on the form. A review of the record reveals that in 1997 Dean was granted a homestead exemption for the property located at 101 Dean Drive. The assessment roll states that the house located at 101 Dean Drive is situated in Plaquemines Parish. Furthermore, the plaintiff introduced testimony at trial regarding a | ¿previously litigated tax issue in which Dean definitively stated that the property in question was located in Plaquemines Parish. Dean testified, in pertinent part:

Q. Which home did you talk about in St. Bernard? On Licciardi?
A. Well, I had a home on Licciardi Lane. I forgot that. And I had a home on the neutral strip in St. Bernard. The new home I built here, and one about a half mile down the road in Braithwaite Park. I owned that one. And I have another home up in St. Bernard. I think we mentioned that once. I know I mentioned the one in Houma. I said I was there about from '85 to 90-something. So you have to identify which one you are talking about if you want me to make a clear answer.
Q. Let’s call it home “E” that you identified in the picture.
Q. Okay, home “E” in the picture. What parish is it in?
A. Plaquemines Parish.
Q. Did you take a homestead exemption on home “E” in Plaquemines Parish?
A. Not certain years I did not. I think I did a year ago. I do not have one now.
Q. A year ago you did but you didn’t before?
A. One time or another, depending on the law, I did or did not. The records speak for themselves.

Clearly, Dean’s judicial confession squarely contradicts his contention that the property located at 101 Dean Drive is located in St. Bernard Parish for the purpose of qualifying for the upcoming councilman election. Thus, the Notice of Candidacy Qualifying form, on its face, in conjunction with Dean’s judicial confession and the assessment roll for Plaquemines Parish all show that the property located at 101 Dean Drive in Braithwaite, Louisiana is situated in Plaquemines Parish, not St. Bernard Parish.

For the reasons assigned, we find that the trial court did not err in disqualifying Dean from the elections of St. Bernard Parish Councilman at large, Eastern district. Based on our finding that Dean failed to meet the qualifications for the office of Councilman-at-large (East) in accordance with the St. Bernard Home |sRule Charter, Section 2-01 and La.R.S. 18:1401, we feel it is not necessary to address the issue of whether Dean maintained an “actual residence” in St. Bernard Parish.

ATTORNEY’S FEES

The plaintiff asks this Court to award attorney’s fees and the cost of a transcript of the proceedings in the trial court together with any other costs to be assessed by the Clerk of this court or the Court below, if any. This claim is hereby denied.

AFFIRMED.

BYRNES, C.J., dissents with reasons.

b BYRNES, C.J.,

dissenting with reasons.

I respectfully dissent based on my conclusion that that the trial court clearly erred in finding that Lynn B. Dean is ineligible as a candidate because he does not have his domicile in St. Bernard Parish.

Dean contends that the mailing post office address was changed to Dean Drive by the Post Office for its convenience and the convenience of the fire department when the post office box numbers in the area were changed to street addresses.

The apartment is located on the same property as Elevating Boats, Inc. (“EBI”), which is clearly located in Saint Bernard Parish, and EBI pays taxes there. Mr. Dean is registered to vote in St. Bernard Parish as shown on his voter registration application dated January 1, 1996. The address, 101 Dean Drive, is listed as his residence in St. Bernard Parish. Dean remains registered to vote in St. Bernard Parish from that address.

The burden of proof is on the plaintiff, challenging the candidate’s eligibility. Messer v. London, 438 So.2d 546 (La.1983). As noted by the trial court, the laws governing the conduct of elections must be liberally interpreted to | ¡¡.promote rather than defeat candidacy. Dixon v. Hughes, 587 So.2d 679 (La.1991). Any doubt as to the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office.

The voters of St. Bernard Parish are entitled to decide what individual they want to elect. The trial court was clearly erroneous in ruling against Lynn Dean’s candidacy eligibility.

Accordingly, I would reverse the ruling of the trial court.


author: 2McCLENDON, J.

text:
    Raymond G. FLICK v. FISCHER ENVIRONMENTAL SERVICES, INC.
    No. 2002 CA 0410.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Joseph G. Albe, Metairie, Counsel for Appellant Raymond G. Flick.
    Robert D. Hoover, Matthew W. Tierney, Baton Rouge, Counsel for Appellee Fischer Environmental Services, Inc.
    Before: FOIL, McCLENDON, and KLINE, JJ.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   2McCLENDON, J.

This appeal arises from an action for workers’ compensation that was denied. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In July of 1999, Raymond G. Flick, a pest control technician, was working in the course and scope of his employment with Fischer Environmental Services, Inc. (hereinafter “Fischer”), spraying a house with pesticides when he was “doused” with the pesticides. Mr. Flick was not wearing any protective clothing or gear at the time of the incident. Mr. Flick claimed that as a result of this exposure, he began to experience headaches, stomach problems, dizziness, shortness of breath, insomnia, anxiety, and memory loss.

Although Mr. Flick was not paid workers’ compensation indemnity benefits by his employer, medical treatment was provided until May 2001, at which time all benefits were terminated.

On March 30, 2000, plaintiff filed a claim for workers’ compensation with the Office of Workers’ Compensation Administration (hereinafter “OWC”). A hearing was held before an OWC judge on December 10, 2001, and the matter was taken under advisement. Judgment was signed on January 9, 2002 by the OWC judge, denying plaintiffs claims. Plaintiff then appealed this judgment and on appeal asserts the following assignments of error:

(1) The [OWC] committed reversible error in its failure to consider the presumption that Appellant’s symptoms which manifested themselves immediately following the accident were presumed to be caused by the work accident.
(2) The [OWC] committed reversible error in its failure to find that the Appellant’s injuries were caused by the work accident and that as a result of those injuries that he was unable to 1 ¡¡perform the duties of his employment and entitled to payment for continuing treatment.

DISCUSSION AND ANALYSIS

Entitlement to Workers’ Compensation

An employee who receives personal injury by accident arising out of and in the course of his employment shall be paid compensation, if not otherwise eliminated from by the workers’ compensation provisions, by his employer in the amounts, on the conditions, and as designated by La. R.S. 28:1021 et seq. See La. R.S. 23:1031. “Accident” means “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1).

The employee who claims a right to collect workers’ compensation benefits has the burden of proving a work-related accident by a preponderance of the evidence. Bolton v. B E & K Construction, 2001-0486, p. 8 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35; Catchot v. RAMCO Construction, 2000-1922, pp. 2-3 (La.App. 1 Cir. 11/14/01), 818 So.2d 105, 107, citing Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992). Additionally, the employee bears the burden of establishing the casual connection between the disability and the employment accident by a reasonable preponderance of the evidence. Quinones v. United States Fidelity and Guaranty Company, 93-1648, p. 6 (La.1/14/94), 630 So.2d 1303, 1306-7.

In the instant case, the OWC judge found that Mr. Flick had sustained a work-related accident on July 22, 1999, but that he was not entitled to |4workers’ compensation benefits as a result. The written reasons of the OWC judge for this ruling were as follows:

Raymond Flick was allegedly injured on July 22, 1999. Mr. Flick was spraying a pesticide called Cyren when the hose on the sprayer came loose and he was sprayed in the neck and chest area. [Fischer] paid all related medical expenses until May 2001. Fischer did not pay any indemnity benefits to Mr. Flick.
Findings of Fact
Trial testimony and evidence introduced at trial corroborate the fact that Mr. Flick sustained an injury on July 22, 1999 when he was sprayed with a pesticide called Cyren. Records from Oehs-ner Clinic confirm he was seen on July 23, 1[999] by Dr. Guilbault and that he gave a history of being exposed to the pesticide the day before.
The question of whether Mr. Flick is now or has ever been disabled from working as a result of his exposure is more difficult to answer.
Mr. Flick bears the burden of proving that any disability he suffers from was caused by his accident. In the [instant] case, the court finds that the weight of the medical evidence indicated Mr. Flick was not disabled [from] working as a result of this accident.
Mr. Flick was referred to Dr. Joseph Tamimie shortly after the accident. Dr. Tamimie is the medical director of the occupational medical clinic at East Jefferson General Hospital. Dr. Tamimie testified in his deposition that he performed a battery of tests on Mr. Flick, all of which were normal. He further testified that in his opinion, Mr. Flick could return to work in pest control as long as he took appropriate precautions and used adequate respiratory and skin protection. This was in November of 1999. Additionally, in a January 11, 2000 report from Dr. Gerald Keller at Ochsner, Dr. Keller agreed that Mr. Flick could return to work, and reported that Mr. Flick himself felt he was ready to go back to work.
Mr. Flick began treating with Dr. Jeanette Lopez, his choice of neurologist, in December 2000. Mr. Flick treated with Dr. Lopez through May 2001. In her deposition testimony, Dr. Lopez stated that during the course of Mr. Flick’s treatment, she had never seen his prior medical records, nor had she been provided with any information on the chemicals to which Mr. Flick was allegedly exposed, Cyren and Dursban. Finally, Dr. Lopez testified that she could not “close the gap” between Mr. Flick’s symptoms and whether they were related to a toxic exposure. Since she had not seen a copy of Mr. Flick’s job description, she also could not comment on his ability to return to work except to the extent that he probably should not drive a commercial vehicle.
Conclusions of Law
Looking at the evidence as a whole, the court finds that Mr. Flick has failed to establish a causal connection between a Istoxic exposure on July 22, 1999 and his current symptoms. As such, Fischer’s termination of medical benefits in May 2001 was not improper. Further, Mr. Flick has failed to prove he is disabled from working, and as such he is not entitled to indemnity benefits.

On appeal, the factual findings of an OWC judge are subject to the same standard of review as in other cases; i.e., a trial court’s finding of fact may not be set aside on appeal unless there is no reasonable factual basis for the finding and the finding is clearly wrong (manifestly erroneous). See Bolton v. B E & K Construction, 2001-0486 at p. 7, 822 So.2d at 35; McCray v. Delta Industries, Inc., 2000-1694, p. 4 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 269. See also Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse. Consequently, when there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Bolton v. B E & K Construction, 2001-0486 at p. 7, 822 So.2d at 35, citing Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106, 1112 (La.1990).

At the trial of this matter, the plaintiff, Raymond Flick, testified that on the date in question, July 22, 1999, he was spraying wasp nests on the eaves of a house when the hose separated from its fittings, spraying the chemical into his face and neck area. He immediately shut off the flow of chemicals from the truck, then used the home’s garden hose to rinse the chemicals from his person as best he could. Mr. Flick testified that the chemical he was using was “Sirin,” which he identified as being the same chemical as “dursaban.” Mr. Flick stated that he had five or six feet left to | ^finish on the job, so he “went ahead and finished the job off.” After-wards, Mr. Flick testified that he went to the office and reported the incident and asked to go home and take a bath. On the way home, Mr. Flick related that he began to feel as if he were coming down with the flu. After arriving home, he took a bath, ate his dinner, and went to bed. Mr. Flick testified that in the middle of the night, he awakened from a nightmare, feeling as if he had to throw up. Upon getting out of bed, he fell onto the floor and then had to hold onto the walls to get to the bathroom. Mr. Flick related that he threw up numerous times during that night. The next day, Mr. Flick went to his primary care physician at Ochsner, who he stated was either Dr. Keller or Dr. Gil-beaux (sic), where he was prescribed medications.

Although Mr. Flick testified that he attempted to go back to work for about a month, he claims he was given old equipment to use and he was “every day getting dursaban (sic) down my hand, down my arm, trying to avoid it with gloves, trying to have my equipment fix[ed]” and that when he became ill again, his doctor told him not to go back to work.

After treating with his primary care physician for some time, Mr. Flick was referred to Dr. Tamimie, an occupational medicine specialist, and thereafter treated with various other physicians. At the time of trial, Mr. Flick testified that he was still under the care of Dr. Lopez, a neurologist.

Mr. Flick described his symptoms to the court as consisting of pain in his head, forgetfulness, difficulty communicating, tenseness of his body, extreme nervousness, difficulty sleeping, and a tendency to veer to the right |7when walking or driving. Mr. Flick denied having any difficulty working or having any of the symptoms that he complained of prior to the incident in question. Mr. Flick testified he wanted to work but that since his accident he tried to work at his wife’s place of work, distributing medicine to the elderly, and was unable to do so. Mr. Flick stated that he also tried working for the government as a census taker but was unable to keep up with the other workers. He further testified that he has difficulty doing housework at home as he either forgets what he is doing or becomes physically exhausted after a short while. Although Mr. Flick was unable to point to any document stating he was unable to work, Mr. Flick maintained that his treating physicians told him he was unable to work initially.

Cheryl Flick, plaintiffs wife of over twenty years, testified that prior to the accident, Mr. Flick had never had a history of headaches, migraines, or dizziness. Mrs. Flick testified that before the accident her husband was vibrant and energetic and that since the accident he suffers from constant headaches, nervousness, and lack of energy; she stated that his “thought patterns are not the same.”

Gary Williams, a workers’ compensation adjuster for Risk Management Services (hereinafter “RMS”) testified at trial that he had handled Mr. Flick’s claim since it was first filed in October of 1999. Mr. Williams testified that Mr. Flick’s medical bills continued to be paid, even though initial tests came back within normal limits, because of the complicated nature of the claim of chemical exposure and his intent to “exhaust all avenues before making [a] determination.” Payment of medical | ¡^benefits was terminated after the adjuster received a medical report indicating the plaintiffs symptoms were not related to the accident. No vocational rehabilitation was ever done on plaintiff, as apparently none was ever requested by plaintiff. Both Gary Williams and Mary Bart testified that Mr. Flick did not request vocational rehabilitation.

Mr. Flick’s treating neurologist at the time of the trial of this matter was Dr. Jeanette Lopez, whose deposition was submitted into evidence. In her deposition, taken June 5, 2001, Dr. Lopez related that she began her treatment of Mr. Flick in December of 2000 and last saw him on May 31, 2001, for a total of five or six visits. Although Dr. Lopez recounted the many symptoms complained of by plaintiff to her and her attempts to treat these symptoms with various medications, she was unable to say the symptoms were caused by toxic chemical exposure. Dr. Lopez admitted that she had knowledge of the exposure only through the history as related to her by plaintiff. Objective physical testing performed by Dr. Lopez did indicate some abnormal results, which Dr. Lopez stated were evidence of some vestibular dysfunction. However, Dr. Lopez admitted, when asked about whether plaintiffs symptoms were caused by toxic exposure, that she could not “close the gap.”

Dr. Susan R. Andrews, a neuropsychologist, performed a neuropsychological evaluation of Mr. Flick in April of 2001. Dr. Andrews found discrepancies in Mr. Flick’s intelligence test scores, which she opined were not likely to have existed pri- or to Mr. Flick’s chemical exposure. Dr. Andrews measured impairment of Mr. Flick’s: attention and concentration; speech sounds perception; smell perception; motor speed of dominant hand; |9 memory; and problem-solving ability. Dr. Andrews correlated these deficits with Mr. Flick’s reports of a significant exposure to an organophosphate pesticide.

Plaintiff was further evaluated by Dr. Srinivas S. Ganji, a neurologist. Dr. Ganji found no abnormalities in his neurological examination of plaintiff and attributed his symptoms to vascular headaches.

In June of 2001, plaintiff was evaluated by another neurologist, Dr. Mark A. Fer-rante. Dr. Ferrante found plaintiffs neurological examination virtually normal and also attributed plaintiffs symptoms to his headaches and/or anxiety.

Plaintiff was also evaluated by clinical psychologist, Thomas J. Hannie, Jr. Dr. Hannie related that his testing of plaintiff revealed: a dysfunctional pain profile (below average pain profile with significant interference with life and affective distress); a great deal of exaggeration on the Minnesota Multiphasic Personality Inventory (noting extreme elevations on several scales that are suggestive of exaggeration or malingering of physical, cognitive, or psychological symptoms); more than two standard deviations above “any clinical honest patient” on the “Structure Interview of Reported Symptoms” (findings were slightly above average for malingerers |inand fell within one response of meeting the cut off for feigning); and plaintiffs scores on the “Test of Memory Malingering” were far below expected even if he were experiencing cognitive impairment or traumatic brain injury and were well into the feigning range. In his conclusion, Dr. Hannie stated the following:

Mr. Flick was able to present a large number of symptoms that were consistent with poisoning by the chemical to which he was exposed. It should be noted, however, that he had read quite a bit about what is to be expected from such an occurrence, thus the similarity of his claimed symptoms to the results of the chemical should not be seen as evidence that he is in fact responding to that chemical. The significant difference, of course, is the fact that the clinical course has not been followed; he has continued to experience problems over a long period of time.

Dr. Hannie noted that plaintiff took literature about the chemical(s) in question with him on at least one doctor’s visit. Dr. Hannie concluded that based on his test results, “the symptoms Mr. Flick is claiming cannot be believed; he is simply claiming more symptoms and feigning more disability than exits.” Dr. Hannie further concluded, “It is my opinion that Mr. Flick is intentionally producing false or grossly exaggerated symptoms. The appropriate diagnosis is Malingering.”

After a thorough review of the evidence presented to the OWC, we find that there were two permissible views of the evidence; i.e., either plaintiff suffered extensive and long-term effects as a result of his July 1999 chemical exposure, which were disabling, or the results were limited and of such short duration as not to have been disabling. The OWC found the latter. Given the conflicting medical testimony and evidence, there was a reasonable factual basis in the record upon which the trier of fact could have In found that plaintiff was either exaggerating the extent of his symptoms and/or that those symptoms were caused by factors unrelated to the accident. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, we are unable to say the finder of fact was manifestly erroneous in its decision to deny plaintiff further workers’ compensation benefits.

We find unpersuasive plaintiffs argument that the jurisprudential presumption enunciated in Quinones v. United States Fidelity and Guaranty Company should be applied to his case; i.e., since plaintiff was in good health prior to the accident and experienced symptoms following the accident, a reasonable possibility of causal connection between his disability and the accident is presumed. We note that said presumption of a causal relationship between the accident and an employee’s disability only applies where symptoms of a disabling condition appear after the accident and continuously manifest themselves afterward, providing there is sufficient medical evidence to show a reasonable possibility of a causal connection between the accident and a disabling condition. Quinones v. United States Fidelity and Guaranty Company, 93-1648, p. 7, 630 So.2d at 1307. In the instant case, the trier of fact rejected plaintiffs evidence that he continuously suffered from a disabling condition after the accident. Finding no manifest error in the factual determination, we consider Quinones v. United States Fidelity and Guaranty Company inapplicable to this case.

| ^CONCLUSION

For the reasons assigned herein, the judgment of the Office of Workers’ Compensation is affirmed. All costs of this appeal are to be borne by plaintiff/appellant herein, Raymond G. Flick.

AFFIRMED.

      . It is interesting to note that although plaintiff reported at trial that the pesticide exposure was to his face and neck, the Ochsner Clinic records from his visit there on the day following the exposure reflect that plaintiff reported that the pesticide "spilled ... on his left arm and chest.” No mention therein was made of exposure to plaintiff's neck or face.

      . On cross-examination, Mr. Flick admitted that when he first arrived home from work on the day of the accident, he walked his dogs and took a dive into the river running behind his property before taking a shower in the house.

      . Dr. Tamimie was, at the time of trial, Medical Director of the East Jefferson General Hospital Occupational Medicine Clinic, and was offered as an expert in the fields of occupational medicine and toxicology.

      . Dr. Lopez was offered as an expert in the field of neurology.

      . On cross-examination, Mr. Flick re-affirmed his prior answers to defense interrogatories that he also continues to suffer migraines, depression, muscle weakness, reduction in sex drive, inability to learn new tasks, difficulty making decisions, fatigue, confusion, shortness of breath, vision problems, joint and muscle pain, frustration, and tingling in his hands, feet, and head. Mr. Flick responded to defense questioning that all of his symptoms appeared in the first week after his accident, when he was unable to leave his bed because of nausea and vomiting.

      .Mary Bart was the medical case manager for Magnolia Medical Management, engaged by RMS to assist in gathering medical information.

      . Some neurological findings were made that were noted to be unrelated to plaintiff's current complaints; i.e., carpel tunnel syndrome, a right C6-C7 nerve root lesion, and an eight-millimeter, right-frontal, subcutaneous nodule.

      . Dr. Hannie related the following additional details regarding this test:
      Some distinctive problems are evident in his MMPI-2 profile. His profile pattern indicates an interest in portraying himself as being physically disabled. He reported extensive vague physical problems that are unlikely to be the result of a specific physical disorder. This is most likely the result of a long-term chronic pattern of somatization that stems from basic ingrained personality problems. He reports being unable to function effectively because of his physical symptoms, which appear to intensify when he faces life conflicts. Individuals with this clinical pattern tend to be uninsightful when it comes to understanding the causes of their symptoms, in part because they prefer to rely on medical explanations for their symptoms. Individuals with this pattern often obtain substantial secondary gain from their symptoms.

      .Although Dr. Hannie stated that the results did not allow a clear call of feigning on the basis of this test alone, he opined the likelihood of feigning was above eighty percent, noting that only four of the eight test scales were in the honest range.


author: h EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Quincy BROWN.
    No. 2002-KA-1217.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 2003.
    Rehearing Denied Sept. 9, 2003.
    Harry F. Connick, District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Clive Stafford Smith, Stephen I. Singer, Louisiana Crisis Assistance Center, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   h EDWIN A. LOMBARD, Judge.

STATEMENT OF CASE

On May 10, 1999, Quincy Brown was charged by bill of information with a violation of La. R.S. 14:27(30), relative to the attempted first degree murder of Alvin Harris on March 17, 1999 (Count One); a violation of La. R.S. 14:64, relative to the March 11, 1999 armed robbery of Wayne Matthews (Count Two); a second violation of La. R.S. 14:27(30), relative to the February 7, 1999 attempted first degree murder of Leonard Jordan (Count Three); and a violation of La. R.S. 14:65, relative to the March 15, 1999 simple robbery of Yul Knighten (Count Four). Mr. Brown’s case was received in Section “F” and transferred to Section “H” on May 14, 1999 to follow Case No. 406-784 in which he was charged with first degree murder.

Mr. Brown pled not guilty at the arraignment on May 27, 1999. On August 6, 1999, the trial court heard testimony on defendant’s motion to suppress the identification in Counts Two and Four (the armed robbery and simple robbery charges). The court denied the motion on count two and left the matter open as to Count Four. On August 18, 1999, defendant filed a motion to quash the | ^indictment or, alternatively, to sever the counts in the indictment. The court heard testimony on defendant’s motion to suppress the identification on the remaining counts and continued the matter. On October 15, 1999, the court resumed the suppression hearing on the motions to suppress identification. The trial court denied the motion to suppress as to Count Three, and the court denied the motion as to Count One and Four as moot. The court also denied the motion to quash or to sever the counts. The writ was denied by this court and similarly denied by the Louisiana Supreme Court.

On October 15, 1999, the trial court, after hearing, denied Mr. Brown’s Motion to Suppress the Identification with respect to Count Three, and denied in part the Motion to Suppress the Identification with respect to Count Four.

On July 28, 1999, the trial court granted defendant’s ex parte Motion for Appointment of Second Counsel naming Harold Ducloux as second counsel, who represented Mr. Brown on July 28, 1999 and through sentencing. Mr. Brown was also represented by Dwight Doskey of the Orleans Indigent Defender Program.

On November 9, 1999, defense counsel Marie Scavetta filed a motion to compel disclosure. On December 14, 1999 the court heard testimony on discovery matters and defendant reurged the motion for severance. On January 13, 2000, the trial court granted attorney Marie Scavetta a motion to withdraw as counsel and granted attorney Stephen Singer’s motion to appear pro hac vice in the matter. On February 8, 2000, defendant filed a second motion to quash the indictment or, in the alternative, for severance. On March 1, 2000, the court heard argument, and the trial court denied the motion. Defendant filed a notice of intent to seek writs and to stay the proceedings. The trial court denied the motion for stay. On May 3, 2000, this court denied defendant’s writ application on the showing made. State v. Brown, 2000-0560, unpub. (La.App. 4 Cir. 5/3/00), stay denied, 2000-1249 (La.5/3/00), 760 So.2d 1184, writ denied, 2000-1584 (La.6/30/00), 767 So.2d 42.

On January 26, 2001, the trial court granted the State’s motion to remove Mr. "Singer from representation in the first degree murder case and appointed Clive Stafford Smith, also of the Louisiana Crisis Assistance Center, to represent Mr. Brown. Apparently, there was some confusion over whether Mr. Singer had been removed from this ease. A hearing on the issue was conducted May 4, 2001 after which Mr. Smith enrolled as counsel. Defendant sought review in this court regarding the removal of Stephen Singer as co-counsel and this court found that while there was nothing to indicate that Mr. Singer had been removed from the instant case in January, this court found on the basis of its previous ruling in an unrelated writ, State v. Landry, 2000-2414, unpub. (La.App. 4 Cir. 1/9/01), that he should be removed because his presence in Louisiana courts practicing as an out-of-state attorney had been ongoing for so long that he was no longer qualified to appear pro hac vice. State v. Brown, 2001-0875, unpubl. (La.App. 4 Cir. 6/01/01). Defendant sought review in the Louisiana Supreme Court, and the court remanded the case to allow Mr. Singer to demonstrate that he was “temporarily present in this state” and whether he possessed the professional competence and ethical responsibility of an attorney admitted to practice in Louisiana. State v. Landry, 2001-1641, 2001-0875 (La.6/29/01), 791 So.2d 630. Thereafter, defendant filed a motion to recuse Judge Buras. The motion was denied on July 13, 2001. This court denied defendant’s writ. State v. Brown, 2001-1418, unpub. (La.App. 4 Cir. 8/15/01). On August 9, 2001, defendant filed a motion to stay the hearing on Mr. Singer pending the outcome of the bar examination.

| ¿On May 4, 2001, the trial court granted the State’s motion to remove Mr. Singer as counsel of record. On May 4, 2001, Clive Stafford Smith enrolled as Mr. Brown’s counsel, replacing Mr. Singer as co-counsel.

On September 28, 2001, defendant filed a motion to preclude exclusion of jurors. Prior to trial, Leonard Jordan was held on a material witness bond. On October 2, 2001, Mr. Brown withdrew all former pleas regarding Count Four and entered a plea of “guilty as charged” of the simple robbery of Yul Knighten. The case then proceeded to trial, and the jury, on October 3, 2001, found the defendant guilty as charged of the armed robbery of Wayne Matthews (Count Two) and not guilty of the attempted murder of Leonard Jordan (Count Three). The State entered a nolle prosequi with regard to Count One, the attempted first degree murder of Alvin Harris.

On January 18, 2002, the trial court sentenced the defendant to serve 99 years at hard labor without benefit of parole. The defendant objected to the sentence as excessive. On June 21, 2002, the court found the defendant to be a second felony offender and sentenced him to 198 years at hard labor without benefit of parole. The defendant objected to the sentence as excessive. The court granted his motion for appeal.

STATEMENT OF FACT

Wayne Matthews testified that on March 11, 1999, he was the victim of an armed robbery. Mr. Matthews was in his car when the defendant entered. Initially, he believed that the defendant was joking. He tried talking to the defendant for some ten minutes as he slowly drove his car. Mr. Matthews related that he knew Mr. Brown, as he had previously been introduced to him and that Mr. Brown was frequently at the house of a female friend of his. Mr. Matthews did not see the | ¡¡gun until the defendant was about to exit the car. After Mr. Matthews saw the gun, Mr. Brown asked him for his wallet. Mr. Matthews gave him the wallet and then ran. As he ran he heard a shot and then heard his car being driven off.

Mr. Matthews returned home and called the police. Sometime later, after the police had failed to arrive, Mr. Matthews called again. The two 911 tapes were played for the jury. In the second tape, Mr. Matthews identified his assailant as “Quincy.” Mr. Matthews positively identified the defendant in court as the man who had robbed him.

Officer Henry Hollins arrived at the victim’s house that night to take a report. Officer Hollins stated that Mr. Matthews identified the perpetrator as someone known to him by the name of Quincy. The officer and Mr. Matthews proceeded to the location of the robbery. Officer Hollins attempted to locate a shell casing but was unsuccessful. While the two were in the area, Mr. Matthews observed his car drive by with two subjects in it. Officer Hollins and Mr. Matthews pursued the vehicle and the two subjects were apprehended. Mr. Matthews stated that neither subject was the perpetrator of the armed robbery.

The day after the robbery, a friend of Mr. Matthews discovered a crack pipe underneath the seat of his car. Mr. Matthews telephoned the police to inform them of his discovery. He related that he was told to throw the pipe away, which he did.

Detective John Duzac testified that he was assigned to conduct the follow up investigation of Mr. Matthews’ robbery. He compiled a photographic lineup and presented the photos to Mr. Matthews for identification. Mr. Matthews identified the defendant and signed and dated the back of the photograph.

Sergeant Gus Bethea testified that on February 7,1999 he assisted in the investigation of a shooting in the Fischer Housing Project. Sergeant Bethea related I fithat three males had been shot and that one had suffered a serious gunshot wound to the throat. Sergeant Bethea related that the other two victims were uncooperative.

Leonard Jordan testified that he was the victim of the shooting which occurred on February 7, 1999. He stated that he had been shot in the jugular and that he had sustained paralysis in the left hand. Mr. Jordan had been at a club that night and had gotten a ride with several people in a van. He recalled getting out of the car in the Fischer Housing Project, but he stated that he could not recall what happened afterwards. Mr. Jordan testified that he had no knowledge of who had shot him that night. He stated that he had blanked out any memory of the shooting from his mind. Mr. Jordan examined a photographic lineup bearing his purported signature on the back of a photograph of the defendant and stated that he was not sure whether that was his signature, although he acknowledged it was similar. He stated that he could not remember whom he had identified. Mr. Jordan acknowledged that he and the defendant were acquaintances.

ERRORS PATENT

A review of the record for errors patent reveals none.

ANALYSIS

Excessive Sentence

Defendant challenges the constitutionality of his multiple offender adjudication and asserts that his sentence is excessive. Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and United States v. Tighe, 266 F.3d 1187 (9th Cir.2001), defendant contends that the federal jurisprudence supports the conclusion that a juvenile conviction in which the defendant has not been afforded the right to a trial by jury cannot be used to enhance a defendant’s sentence.

[7The Supreme Court in Apprendi stated that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. The Court in Apprendi elaborated on the importance of procedural protections being inherent in prior convictions used as sentencing factors to increase statutory penalties:

There is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing a judge to find the required fact under a lesser standard of proof.

Apprendi 530 U.S. at 496, 120 S.Ct. 2348.

Apprendi was convicted pursuant to a guilty plea of two counts of second-degree possession of a firearm for an unlawful purpose and one count of third-degree unlawful possession of an antipersonnel bomb. The two offenses carried a penalty range of between three to ten years. Additionally, however, the State reserved the right to enhance the sentence under the hate crime statute on the ground that the shooting was committed with a biased purpose. The hate crime statute authorized an extended term of between 10 and 20 years. The issue before the Supreme Court was whether the Due Process Clause of the Fourteenth Amendment required that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt. The Court reversed the New Jersey Supreme Court’s judgment, which had affirmed the enhancement of the prison sentence within the extended range. The United States Supreme Court held that because Appren-di did not receive a jury trial under the prescribed standard of | «proof, his sentence violated his constitutional due process rights. In Apprendi, however, the Court did not address the issue of prior juvenile adjudications.

As background, Congress has characterized juvenile adjudications as “prior convictions” under the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e)(2)(B), (e)(2)(C). But, whether juvenile convictions can be characterized as “prior convictions” under a due process review as mandated by Apprendi is a constitutional question; i.e., the defendant’s right not ■ to be deprived of his liberty without due process of law.

In Tighe, supra, the U.S. Ninth Circuit Court of Appeals applied Apprendi’s holding to prior juvenile convictions. The Court in Apprendi had concluded that the “ ‘prior conviction’ exception is limited to prior convictions resulting from proceedings that afforded the procedural necessities of a jury trial and proof beyond a reasonable doubt” and the Ninth Circuit concluded, as a result, that the “prior conviction” exception does not include nonju-ry, juvenile adjudications. 266 F.3d at 1194.

In arriving at its conclusion, the Ninth Circuit in Tighe reviewed additional United States Supreme Court jurisprudence noting that neither Apprendi nor Almen-darez-Torres, infra specifically addressed the unique issues distinguishing juvenile convictions from adult convictions. Specifically, in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court held that the fact of the prior conviction was a sentencing factor, and not a separate element of the crime to be charged in the indictment. Id. at 243, 118 S.Ct. 1219. Subsequently, during the next term, the Court in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), considered its holding in Almenda-rez-Torres regarding the use of prior convictions in the context of emerging concern regarding the use of certain facts to increase the defendant’s |3exposure to a statutory penalty not charged in the indictment nor proved beyond a reasonable doubt before a jury. The Court explained the distinction between prior convictions as opposed to other sentencing-enhancing facts as follows:

One basis for that constitutional distinctiveness [of prior convictions] is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense ... a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt and jury trial guarantees.

Jones, 526 U.S. at 249, 119 S.Ct. 1215 (emphasis added).

The Ninth Circuit in Tighe focused on the Supreme Court’s emphasis in Appren-di (quoted above from Apprendi, 530 U.S. at 496, 120 S.Ct. 2348), which followed Jones in the 2000 term, stressing the necessity for the procedural mechanisms of a jury trial and the standard of beyond a reasonable doubt when increasing the statutory maximum of a sentence. The appellate court concluded:

Thus, as we read Jones and Apprendi, the “prior conviction” exception to Ap-prendi’s general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial and a beyond-a-reasonable-doubt burden of proof, therefore, do not fall within Apprendi’s “prior conviction” exception.
In sum, we conclude Apprendi’s narrow “prior conviction” exception is limited to prior convictions resulting from proceedings that afforded the procedural necessities of a jury trial and proof beyond a reasonable doubt.

Tighe, 266 F.3d at 1194.

Not all federal appellate courts have concluded similarly, however. In United States v. Smalley, 294 F.3d 1030 (8th Cir.2002) the identical issue was raised, and the court declined to follow Tighe, writing:

We respectfully disagree with the Tighe court’s conclusion. The Supreme Court stated in Apprendi that prior convictions are excluded from the general rule because of the “certainty that procedural safeguards,” such as trial by jury and proof beyond a reasonable hndoubt, undergird them. Apprendi, 530 U.S. at 488, 120 S.Ct. 2348. The Court went on to state that “there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt,” on the one hand, and accepting the validity of findings of facts by judges that are subject to a lesser standard of proof, on the other. Id. at 496, 120 S.Ct. 2348. We think that while the Court established what constitutes sufficient procedural safeguards (a right to jury trial and proof beyond a reasonable doubt), and what does not (judge-made findings under a lesser standard of proof), the Court did not take a position on possibilities that lie in between these two poles. In other words, we think that it is incorrect to assume that it is not only sufficient but necessary that the “fundamental triumvirate of procedural protections,” as the Ninth Circuit put it, underly an adjudication before it can qualify for the Apprendi exemption.
We do not think, moreover, that Jones meant to define the term “prior conviction” for constitutional purposes as a conviction “that has been established through procedures satisfying fair notice, reasonable doubt and jury trial guarantees.” 526 U.S. at 249, 119 S.Ct. 1215. We read Jones instead to mean that if prior convictions result from proceedings outfitted with these safeguards, then they can constitutionally be used to increase the penalty for a crime without those convictions being submitted and proved to a jury. Our confidence in this reading is bolstered by the fact that in explaining the exception for prior convictions, the Apprendi court itself talks about only the right to a jury trial and proof beyond a reasonable doubt. We think it notable, moreover, that Appren-di does not even refer to the language in Jones, quoted above, upon which the Tighe court based its conclusion.
In any case, we conclude that the question of whether juvenile adjudications should be exempt from Apprendi’s general rule should not turn on the narrow parsing of words, but on an examination of whether juvenile adjudications, like adult convictions, are so reliable that due process of law is not offended by such an exemption. We believe that they are.
For starters, juvenile defendants have the right to notice, the right to counsel, the right to confront and cross-examine witnesses, and the privilege against self-incrimination. See In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). A judge in a juvenile proceeding, moreover, must find guilt beyond a reasonable doubt before he or she can convict. See id. We think that these safeguards are more than sufficient to ensure the reliability that Ap-prendi requires. This conclusion finds at least some support in those cases, in both our circuit and the Ninth Circuit, that hold that juvenile sentences may be used to enhance a defendant’s sentence |nwithin a prescribed statutory range. See United States v. Early, 77 F.3d 242, 244-45 (8th Cir.1996) (per curiam); United States v. Williams, 891 F.2d 212, 214-15 (9th Cir.1989), cert. denied, 494 U.S. 1037, 110 S.Ct. 1496, 108 L.Ed.2d 631 (1990). Finally, while we recognize that a jury does not have a role in trials for juvenile offenses, we do not think that this fact undermines the reliability of such adjudications in any significant way because we think that the use of a jury in the juvenile context would “not strengthen greatly, if at all, the fact-finding function” and is not constitutionally required. See McKeiver v. Pennsylvania, 403 U.S. 528, 547, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) (plurality opinion).
We therefore conclude that juvenile adjudications can rightly be characterized as “prior convictions” for Apprendi purposes, and that the district court did not err in increasing Mr. Smalley’s sentence based on his prior juvenile adjudications.

Smalley, 294 F.3d at 1030-32.

Although federal jurisprudence is merely persuasive, the underlying rationale is instructive. The Louisiana Supreme Court has yet to deal squarely with the issue of whether the use of juvenile adjudications to enhance a statutory penalty is constitutionally permissible. Recently, however, the Louisiana Supreme Court addressed the question of whether the juvenile should be allowed a trial by jury and other similar rights. See State in the Interest of D.J., 01-KA-2149 (La.5/14/02), 817 So.2d 26. Our supreme court concluded that such rights need not be permitted in juvenile proceedings, but strongly hinted that this difference in adjudication procedures might require the exclusion of such adjudications from later enhancement proceedings:

In United States v. Tucker, 404 U.S. 448, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), the Supreme Court prohibited the use of prior convictions that were entered without the advice of counsel to enhance later sentences. In a related vein, some commentators suggest that the practice of using juvenile convictions obtained without the option to be tried by a jury to enhance adult sentences | ^renders the juvenile system unconstitutional. See e.g., Sara E. Kropf, Note, Overturning McKeiver v. Pennsylvania: The Unconstitutionality of Using Prior Convictions to Enhance Adult Sentences Under the Sentencing Guidelines, 87 Geo. L.J. 2149 (1999); David Dormont, Note, For the Good of the Adult: An Examination of the Constitutionality of Using Prior Juvenile Adjudications to Enhance Adult Sentences, 75 Minn. L.Rev. 1769, 1793-94 (1991).

Id. at p. 4, n. 6; 817 So.2d at 37, n. 6.

We conclude that the rationale articulated by the Ninth Circuit in Tighe, as opposed to the Eighth Circuit’s converse reasoning in Smalley, is more in line with the minimal guidance provided thus far by our highest court in State in the Interest of D.J., supra. Therefore, we hold that prior juvenile adjudications that resulted absent a jury trial are constitutionally inadequate under the Apprendi exception for purposes of subsequent sentence enhancement.

In the instant case, the juvenile matter was heard by a judge, not a jury. The juvenile court, however, did employ the requisite beyond-a-reasonable-doubt standard. The defense asserts that the circumstances of that conviction (for attempted second degree murder) demonstrate the problem with considering a juvenile conviction as an Apprendi exception. Following is Quincy Brown’s statement when he was adjudicated at the age of fourteen:

I was at Diana and Verret St. across from the church when Lowdown [Ron Brown] walked up. He was talking to [a] boy named Leroy in a car and he had seen [me] and he asked if I had seen Syble. I told him that the last time I had seen her was around the corner. He said come on and let’s go walk around there, I have to ask her something. He said for me to go on around the corner and tell her to meet him at the corner. I went around by Belleville St. and found her and told Jher that Lowdown wanted to tell her something. She ask me where he was at and I told her that he was around the corner. She said where at and I told her that he was at the side street by Socrates |isand Belleville St. She told me to walk her to the corner so I walked to the corner and then I went back to where I was. I heard shooting from Belleville and Socrates St. I ran back around the re and asked Johnny and Bebe what happened. They didn’t know so I went to the corner where everybody was standing. I saw Syble stumbling around and I asked her what had happened. She told me to leave her alone. And she was falling and I picked her [up] and her face was bloody. She told me [“] Lowdown shot me.” I walked her to her sister in law house. The man there wouldn’t call an ambulance. I walked her back to Diana and Vallette St. and I told Damien to go call an ambulance and I went to wash the blood off my hand.

Defense argues, correctly, that the above statement from the defendant at the age of 14 indicates that there was no evidence that Quincy Brown participated in the crime resulting in the girl’s death. In fact, the statement indicates instead that Quincy Brown tried to help the victim. Yet, Quincy Brown was adjudicated guilty of attempted second degree murder.

Paradoxically, Lowdown Brown (no relation to Quincy Brown) was tried before a jury because he was an adult at the time of the crime and the jury acquitted Lowdown. Yet Quincy Brown, with no evidence of being an accessory to anyone, was adjudicated as guilty by a judge and sent to juvenile prison. To use such a defective juvenile adjudication to constitute a “prior conviction” for purposes of the Apprendi exception, and allow such prior conviction to be used to enhance the statutory penalty for Quincy Brown’s instant offense is constitutionally improper.

We conclude on this issue of excessive sentence that the trial court erred in enhancing the sentence of the defendant on the basis of the prior juvenile conviction. Accordingly, we reverse and remand for re-sentencing consistent with this opinion.

| uValidity of the Conviction

Defense counsel asserted numerous non-constitutional assignments of error, which challenge the validity of the conviction and summarizes in brief that even if none of the assignments constitute sufficient grounds for reversal, taken together the various alleged errors would serve to be a cumulative error warranting reversal. We disagree. Reviewing the various alleged trial court errors, we find the only allegations with merit to be the following, and the two improper admissions constituted harmless error because the evidence was sufficient to convict the defendant irrespective of these two.

The trial court erred in admitting the 911 tape and arrest warrant, both of which were used for the truth of the matter asserted and thereby constituted hearsay. This evidentiary error, however, was harmless error because there existed sufficient additional evidence that Quincy Brown committed the crime for which he was charged. If hearsay testimony is improperly admitted into evidence, it may be considered harmless error if the reviewing court determines that it did not contribute to the verdict. State v. Hearold, 603 So.2d 731, 739 (La.1992). All the information included on the search warrant was received by the court through competent evidence. Thus, the arrest warrant, if indeed it constituted hearsay, was merely cumulative and non-prejudicial.

Similarly, the recording of the 911 emergency calls were also cumulative. Mr. Matthews, the victim, and Officer Hollins both testified as to the contents of the tape recording. Also, there was full opportunity for cross-examination. Therefore, the admission of the tapes was harmless error,

hsCONCLUSION

For the foregoing reasons, we affirm the convictions, but reverse the sentence as constitutionally excessive. We remand the matter to the trial court for re-sentencing consistent with this opinion.

CONVICTION AFFIRMED; SENTENCE REVERSED; REMANDED.

      . The defendant ultimately pled guilty to the reduced charge of manslaughter on January 28, 2002. See State v. Brown, 2001-2463 (La.4/12/02), — So.2d -, 2002 WL 576176.