author: | gPARRO, J.

text:
    STATE of Louisiana v. Toxie R. ODOM.
    No. 2003 KA 1772.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.

      Walter Reed, District Attorney, Coving-ton, Dorothy A. Pendergast, Special Appeals Counsel, Metairie, for State of Louisiana.
    Martin E. Regan, Jr., Kris A. Moe, Re-gan & Associates, P.L.C., New Orleans, for Defendant-Appellant Toxie R. Odom.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | gPARRO, J.

The defendant, Toxie R. Odom, was charged by bill of information with aggravated battery, in violation of LSA-R.S. 14:34. Defendant pled not guilty. After a jury trial, defendant was found guilty of the responsive offense of second degree battery in violation of LSA-R.S. 14:34.1. He was sentenced to five years of imprisonment at hard labor.

On appeal, defendant relies on six counseled assignments of error and one pro se assignment of error for reversal of his conviction and sentence, as follows:

Counseled Assignments of Error

1. The jury’s responsive verdict of second degree battery was unsupported by constitutionally sufficient evidence, and the evidence did not support the aggravated battery charge.
2. The trial court abused its discretion in denying a request to strike the jury panel or order a mistrial after some jurors indicated that they had seen Odom prior to voir dire, and abused its discretion in denying Odom permission to remove the prison armband.
3. The trial court abused its discretion in allowing Deputy Hickman’s opinion testimony as to the progression of bruising of his own “black eye.”
4. The trial court impermissibly allowed the prosecutor to lead Elena Odom in her description of her injuries.
5. The trial judge abused his discretion in sentencing Odom to the maximum sentence.
6. The commitment erroneously states that Odom was convicted of aggravated battery.

Pro se Assignment of Error

The trial court erred in denying the motion to [qjuash filed by defendant asserting his constitutional right to a speedy trial.

For the following reasons, we affirm defendant’s conviction. However, having identified patent sentencing error, we vacate defendant’s sentence and remand for resentencing.

\oFACTS

On Saturday, June 2, 2001, Elena Odom got up around 8:00 a.m. at her home in Angie, Louisiana, where she lived with her children, her husband, and her husband’s aunt. When Elena’s husband, the defendant, woke up, he began complaining about past grievances. According to Elena, he was on a “rampage,” hitting her and kicking her with his fists and feet. He destroyed many of her personal belongings, pulled drawers out of furniture, broke pictures, and threatened to burn pictures of her deceased parents. In an effort to keep the children from witnessing the violence, defendant’s aunt left the house with the children. The children were crying and wanted Elena to leave with them. Elena was afraid to leave, because defendant was threatening to burn her new car and she was concerned that, if she left, he would destroy the car and/or their trailer. She complied with defendant’s request to take a ride with him. Elena got into defendant’s car and he drove “crazy” toward Varnado, Louisiana, threatening to kill her as they traveled the route. Afterward, they returned home and defendant located a .380 caliber pistol Elena kept for protection at the beauty salon she owned and managed. Defendant, still in a rage, began shooting at the floor and walls, threatening her with the gun. Then he took her for another ride toward Varnado, still armed with her pistol. During the ride home, when Elena would not answer questions about a brief affair she had while defendant was in prison, defendant began hitting her in the head repeatedly with the handle of the pistol.

Back at the house, defendant fired the gun at Elena’s new car. She watched as he got under the hood of the car and she saw the car catch on fire. The fire department was called to put the car fire out. Defendant stayed outside when the firemen arrived and Elena remained inside, trying to put the house back in order. She did not call out to them for help because she was afraid. Elena spoke to her brother on the phone, telling him that she and the defendant were having a confrontation and that her car was on fire, but she did not want him to come to the house while defendant was there. Later defendant took money from her purse and demanded that she write out a check to him. At that point, he left in his truck. Once defendant departed, she |4called her brother to come to her aid.

When Elena’s brother, Kenneth Kelle-han, arrived, he could see gunshot holes in the floor of the home. Elena was upset, crying, and very frightened. He suggested that she gather up clothes for herself and her children and offered to let her stay with him because he was afraid for her safety. Before Kenneth arrived and while he was there, Elena nervously tried to clean up the mess made by defendant’s “rampage.” Kenneth explained that his sister was a “neat freak.” He kept urging her to leave with him. When they finally left the home, they went to the Sheriffs Office in Bogalusa to report the incident.

Close to midnight, Washington Parish Sheriffs Deputy Chris Hickman took Elena’s complaint at the Bogalusa substation. He observed bruises on her arms and legs and a cut on her head. Elena seemed afraid to talk to him, but she did tell him that the weapon used in the battery was a .380 caliber pistol. Afterward, Kenneth went with his sister to get her children and took them all home with him. He testified that he had first aid training and made sure that she stayed up all night in case she had a concussion.

At trial, Elena testified that as a result of the battering, her face was black and blue. She also had bruises on her leg from a picture frame defendant threw at her, and her arms were bruised from his actions in grabbing and hitting her. Elena described the cut on her head caused by defendant hitting her with her gun. She explained that she did not go to a doctor because she was embarrassed. She further described getting into the Jacuzzi tub at her brother’s home the following week and how her whole body hurt for days after the incident. Pictures taken at the police station were introduced into evidence as State Exhibit Nos. 1-4. Other pictures, which reportedly showed the injuries as more severe, were given to her divorce attorney. Elena returned to work the following Tuesday, with her face still showing the bruises caused by the defendant. Tracey Hayden, one of Elena’s employees, confirmed that when Elena returned to work, the area under her eye was black, swollen, and puffy. She also had a gash on her head.

| RThe only witness called by the defense was Rodney Thomas, Jr. Thomas testified about a time when he went to Elena’s shop for a haircut and saw her with discolored eyes and a mark on the bridge of her nose, as though she had been hit. He asked her about her appearance and she told him that her husband had “head butted” her when she told him about an intimate relationship she had with another man while defendant was in prison. According to Thomas, he told her that she was crazy to tell the defendant about the incident. Thomas admitted that he was not sure exactly when this conversation occurred and could not be certain that the injuries he observed were the same injuries sustained in the June 2, 2001 incident at issue. He also claimed that when he advised Elena that he planned to testify about this conversation, she suggested that it would be best if he said that he could not recall anything.

Defense counsel attempted to make it appear that the conversation between Elena and Thomas occurred after the June 2, 2001 incident. Since Elena had denied talking to Thomas after the June 2 incident during her earlier testimony, the testimony of Thomas was offered in an attempt to impeach Elena and cast doubt on her credibility. However, the state called Elena back to the stand in rebuttal. She testified that the incident described by Thomas was a separate incident that had taken place several months before the June 2 altercation. Elena also denied telling Thomas to say he did not remember anything. She testified that she told him to tell the truth.

At the conclusion of trial, the jury unanimously found defendant guilty of the responsive offense of second degree battery.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends the evidence adduced at trial was insufficient to support his conviction of second degree battery. We do not agree.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the state proved the essential elements of the crime | fiand the defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. State v. Wright, 98-0601 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157, and 00-0895 (La.11/17/00), 773 So.2d 732. In this case, defendant was convicted of second degree battery. Louisiana Revised Statute 14:33 defines battery as the intentional use of force or violence upon the person of another. Louisiana Revised Statute 14:34.1 further defines second degree battery as a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury. As specified in LSA-R.S. 14:34.1, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death. In order to prove a second degree battery, the state had to prove that the defendant: (1) committed a battery upon his wife, (2) without her consent, and (3) intentionally inflicted serious bodily injury. State v. Young, 00-1437 (La.11/28/01), 800 So.2d 847, 852.

It is undisputed that defendant intentionally committed a battery. It is also clear that Elena did not consent to the battery. Moreover, there is no evidence to suggest that Elena did anything to physically threaten the defendant that would have justified him in striking her repeatedly with the handle of a pistol and with his fists and feet. Defendant insists, however, that the jury could not reasonably conclude, based on the evidence presented, that the injury to Elena was serious.

The trier of fact is free to accept, in whole or in part, the testimony of any witness. State v. Johnson, 99-0385 (La.App. 1st Cir.11/5/99), 745 So.2d 217, 223, writ denied, 00-0829 (La.11/13/00), 774 So.2d 971. The testimony of a victim may present sufficient evidence to establish that the victim sustained serious bodily injury, without the testimony of any expert. State v. Gunnells, 619 So.2d 192, 201 (La.App. 3rd Cir.), writ denied, 625 So.2d 1061 (La.1993). In this case, the jurors were charged with the law regarding simple battery, which does not require serious bodily injury. LSA-R.S. 14:35. They were advised that they could return that verdict if the evidence |7did not support conviction for a more serious grade of the offense. The jurors declined to find defendant guilty of the lesser offense of simple battery.

The record establishes that defendant purposely hit his wife repeatedly, throughout the day, causing her to have bruises, a black eye, and a gash on her head. He hit her in the head with the butt of a pistol numerous times, causing her brother to be concerned that she might have a concussion. Moreover, Elena testified that her whole body hurt for days after the incident. After a thorough review of the record, we are convinced that a rational trier of fact could conclude that the evidence, viewed in the light most favorable to the state, and with the credibility determinations made by the trier of fact, proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all the elements of the crime of second degree battery and defendant’s identity as the perpetrator of the offense. Specifically, we believe that the evidence was sufficient to enable the jurors to reasonably conclude that defendant intended to seriously injure Elena and that he did so. Compare State v. Helou, 02-2302 (La.10/23/03), 857 So.2d 1024, 1028-1029, and cases cited therein.

Furthermore, defendant was charged in this case with aggravated battery. Absent a contemporaneous objection to the giving of instructions on a responsive verdict, a defendant cannot complain if the jury returns a legislatively approved responsive verdict, even where there is insufficient evidence to support such a verdict, provided that the evidence is sufficient to support the charged offense. State v. Schrader, 518 So.2d 1024, 1034 (La.1988); State ex rel. Elaire v. Blackburn, 424 So.2d 246, 252 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983). In such a case, a jury has the right to “compromise” between the charged offense and a verdict of not guilty. State v. Charles, 00-1611 (La.App. 3rd Cir.5/9/01), 787 So.2d 516, 519, writ denied, 01-1554 (La.4/19/02), 813 So.2d 420. Jurors may return a “compromise” verdict for whatever reason they deem to be fair, so long as the evidence is sufficient to sustain a conviction for the charged offense. Blackburn, 424 So.2d at 251.

In the instant case, the trial court charged the jury regarding second degree ]Rbattery without a timely defense objection. Second degree battery is a legislatively approved responsive verdict to a charge of aggravated battery. LSA-C.Cr.P. art. 814(A)(14). Accordingly, if the evidence was sufficient to support a conviction for the charged offense, defendant has no basis for complaint. Thus, it is appropriate for us to review the sufficiency of the evidence to support a conviction for aggravated battery. Aggravated battery is a battery committed with a dangerous weapon. LSA-E.S. 14:34. A “dangerous weapon” includes any gas, liquid, or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. LSA-R.S. 14:2(3). The dangerousness of an instrumentality because of its use is a factual question for the jury to decide for purposes of a conviction of aggravated battery. State v. Rainey, 98-436 (La.App. 5th Cir.11/25/98), 722 So.2d 1097, 1102, writ denied, 98-3219 (La.5/7/99), 741 So.2d 28. Aggravated battery requires neither the infliction of serious bodily harm nor the intent to inflict serious injury. Instead, the requisite intent element is general criminal intent. State v. Brawn, 00-1951 (La.App. 1st Cir.5/11/01), 808 So.2d 622, 623-624.

In this case, the undisputed testimony was that defendant repeatedly hit Elena in the head with the butt of a pistol, causing a cut on her head and putting her in danger of sustaining a concussion. We are satisfied that the evidence presented, viewed in the light most favorable to the state, proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence, all of the elements of aggravated battery and the defendant’s identity as the perpetrator of that offense. Thus, for the additional reason that there was sufficient evidence to convict defendant of the originally charged offense of aggravated battery, the jury’s verdict of guilty of the responsive offense of second degree battery in this case does not entitle defendant to a reversal of his conviction.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, defendant claims the trial judge erred in not questioning prospective jurors about whether they had seen the defendant in prison | flgarb prior to voir dire, in denying a mistrial, and in not ordering the removal of the defendant’s prison armband.

Prior to the commencement of trial, defendant’s motions for speedy trial and to quash for the state’s alleged failure to prosecute timely came on for hearing. Defense counsel asked that defendant be unshackled and the trial court agreed. Defense counsel then asked that defendant’s armband be removed and the following colloquy ensued:

Mr. Farmer: We need to take this off, too, Judge.
Court: Why?
Mr. Farmer: Well, it’s (sic) got DOC number, Odom. I think it’s obviously would be an indication he’s a prisoner, which is probably going to address shortly.
Court: Well, for right now we don’t need to take that off. I mean, if we get around to it and I think it’s necessary, I’ll deal with it. From here it looks like a hospital band and I don’t think, unless we got some real eagle eye people sitting in the jury box over there, I don’t think they’re going to have any clue as to what that’s all about. So have a seat. Let’s get going.

Defense counsel made no further comment, apparently acquiescing in the approach suggested by the trial judge. While there is nothing in the record to clearly indicate the size of the “armband,” the comments made by the trial judge suggest that it might be more aptly characterized as a “wristband,” similar to those used in a hospital. Defendant has made no showing that the identification device was noticeable or that defendant was prejudiced in any way by the failure of the trial judge to order its removal on the first day of trial. Thus, we have no basis to conclude that the trial judge committed error.

At the conclusion of the hearing on defendant’s motions, counsel made a further motion to strike the jury panel on the ground that defendant was brought to court that morning through the front door of the courthouse, still dressed in prison clothes, and was led through the halls into the restroom area in such a manner that members of the jury panel likely saw him dressed in orange prison garb with his hands and feet shackled. The trial judge indicated that he would allow counsel to voir dire the prospective jurors on whether they recognized the defendant. If any prospective juror |10answered in the affirmative, he would further allow a sequestered voir dire of that prospective juror to determine if he or she recognized the defendant from seeing him in the court that day. Finally the trial judge indicated that if he could not find a set of qualified jurors who had not seen defendant in shackles, he would entertain the defense motion. Defense counsel insisted that he was entitled to have the panel stricken because defendant had asked to be dressed in civilian clothes prior to coming to court.

Voir dire proceeded as outlined above. The trial judge called a panel of twelve. He asked the panel as a whole if anyone knew the defendant. Later the trial judge asked if any of the prospective jurors had seen the defendant that morning in court. Each separate row of jurors was called upon to consider the question. The court reporter recorded the name of each prospective juror as the rows were called upon to say whether they had seen defendant in the courtroom that morning. The transcript reflects the notation, “No response,” indicating that none of the prospective jurors had seen the defendant. Defense counsel followed up with the question:

Mr. Farmer: So the first time that you saw him was when you came in and sat down in these particular places a little while ago; is that correct?
Jury Panel One: (Some jurors respond in the negative. Some jurors have no response.)

No further questioning was conducted on this subject and the following voir dire questions dealt with domestic abuse. Taken in context, we believe the transcript indicates that none of the jurors had seen the defendant that morning. We reach this conclusion because defense counsel did not follow up with any further questions, even though the trial judge had agreed to conduct a sequestered voir dire if necessary. Furthermore, defense counsel did not renew his motion to strike the jury panel or move for a mistrial. A jury was seated without defense counsel exhausting his peremptory challenges. Moreover, after the jurors were selected, the trial judge cautioned his custodians to make sure that defendant was dressed in civilian clothes before he arrived for trial the next day. When the trial judge indicated that they had “dodged the bullet,” defense counsel commented that it was amazing to him that there were eighteen ^people, referring to the potential jurors, and that none of them saw the defendant that morning.

Since there is no showing that any of the prospective jurors saw the defendant in prison garb, we cannot conclude that the trial judge erred in refusing to dismiss the jury panel. There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant contends the trial judge erred in allowing state witness Deputy Chris Hickman to express an opinion concerning the progression of visible evidence of bruising with respect to his own “black eye.” During presentation of the state’s case, the prosecutor asked:

Q. Now, Deputy, have you ever had any experience either with yourself or somebody else about how bruises progress?

At this point defense counsel objected to the testimony on the ground that the witness was not qualified to testify as an expert. The trial judge responded as follows:

Let’s hear what he has to say and then we can determine the extent of any training he may have had and make some type of call on it at that point. Go ahead. You can answer the question.

In keeping with the court’s ruling, Deputy Hickman was asked again if he had ever seen how bruises progress over a few days time. He answered that he had not. The Deputy did not offer any lay or expert opinion testimony concerning the progressive appearance of bruises. Thus, any objection to opinion evidence offered by Deputy Hickman was cured by the answer given by the witness.

The prosecutor next asked if Deputy Hickman had ever had a black eye himself. Defense counsel did not urge an objection to this question. Deputy Hickman responded in the affirmative. When asked what it looked like on the first day, he described it as “black.” Then he added that it turned green and yellow later on. No objections were made during this exchange and the questioning continued without further reference to any expertise of the Deputy. At no point did defense counsel renew his objection, ask that any testimony of the witness be stricken, or request that the jury be admonished relative to the Deputy’s testimony.

Louisiana Code of Criminal Procedure article 841 provides that an irregularity or |12error cannot be availed of after verdict unless it was objected to at the time of occurrence. See also LSA-C.E. art. 103(A)(1). The purpose behind this rule is to make sure that the trial judge is apprised of the claim and given an opportunity to correct the alleged error. State v. Eames, 97-0767 (La.App. 1st Cir.5/15/98), 714 So.2d 210, 216, writ denied, 98-1640 (La.11/6/98), 726 So.2d 922. An error cannot be availed of on appeal if the defendant has not made known to the trial court the action which he wishes the court to take. State v. Williams, 341 So.2d 370, 378 (La.1976). Although defendant now complains on appeal that the testimony was irrelevant, prejudicial, and intended to inflame the jury, defendant did not state such grounds for his objection at trial. A defendant cannot raise on appeal grounds for an objection not made known to the trial judge. See State v. Green, 390 So.2d 1253, 1258 (La.1980). Thus, defendant is precluded from raising this issue on appeal.

This assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant argues that the trial judge erred in allowing the prosecutor to lead the victim during her direct testimony concerning her physical injuries. The prosecutor asked Elena if photographs taken at the police station depicted how she looked the night of the incident. She replied in the affirmative. The prosecutor then asked if her injuries “looked worse in the next few days.” Defense counsel objected that this was a leading question because it suggested an answer. The trial judge disagreed and overruled the objection, indicating his view that the witness could answer the question any way she wanted to answer. Nevertheless, before the witness answered the original question, the prosecutor rephrased the question and asked:

Q. Ms. Odom, what did the injuries look like the next few days after this? The witness then responded, describing the progression of her injuries, without further objection.

Generally, a leading question should not be used in the examination of a witness. LSA-C.E. art. 611(C). A leading question is one that suggests the answer the witness is expected to give. State v. Lynch, 94-0543 (La.App. 1st Cir.5/5/95), 655 So.2d 470, 476, writ denied, 95-1441 (La.11/13/95), 662 So.2d 466. The use of leading questions is largely within the discretion of the trial judge, and only a clear abuse of discretion which prejudices the defendant’s rights will justify reversal of a conviction. Lynch, 655 So.2d at 476. In our view, the trial judge did not abuse his discretion in overruling the objection to the question first posed by the prosecutor. Moreover, any objection to the question posed was cured when the prosecutor rephrased the question.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant complains in this assignment of error that the sentence imposed upon him is unconstitutionally excessive. However, the record reflects that neither an oral nor written motion to reconsider sentence was made by trial counsel. Under LSA-C.Cr.P. arts. 881.1(E) and 881.2(A)(1), the failure to make or file a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. State v. Felder, 00-2887 (La.App. 1st Cir.9/28/01), 809 So.2d 360, 369, writ denied, 01-3027 (La.10/25/02), 827 So.2d 1173; State v. Duncan, 94-1563 (La.App. 1st Cir.12/15/95), 667 So.2d 1141, 1143 (en banc per curiam). Accordingly, defendant is procedurally barred from having this assignment of error reviewed. Moreover, as noted below, we have identified a patent sentencing error that requires us to vacate defendant’s sentence and remand for re-sentencing. Defendant will have an opportunity to challenge the excessiveness of his sentence when he is resentenced, if he deems it appropriate to do so.

ASSIGNMENT OF ERROR NUMBER SIX

Defendant points out that, although the jury found him guilty of second degree battery, his criminal commitment incorrectly reflects that he was found guilty and sentenced for the crime of aggravated battery. We agree that defendant’s criminal commitment is inaccurate. However, for the reasons that follow, we are vacating defendant’s sentence and remanding for resentencing as a consequence of a patent sentencing error discovered on appeal. The trial court should reissue a corrected criminal commitment when defendant is resentenced.

| uPRO SE ASSIGNMENT OF ERROR

In this pro se assignment of error, defendant claims the trial judge erred in denying the motion to quash that he filed, asserting deprivation of his constitutional right to a fair trial. Defendant also filed a motion for speedy trial in June 2001, which was denied by the trial judge at the same time he disposed of the motion to quash. During the hearing on defendant’s motions, the trial judge entertained argument as to defendant’s statutory and constitutional rights to a speedy trial.

Louisiana Code of Criminal Procedure article 701, which provides the statutory right to a speedy trial, merely authorizes pre-trial relief. The remedy for a speedy trial violation under Article 701 is limited to release from incarceration without bail or release of the bail obligation for one not incarcerated. Once a defendant has been tried and convicted, any allegation of a violation is moot. State v. Cowger, 581 So.2d 283, 286 (La.App. 5th Cir.1991). Therefore, the trial court properly denied defendant’s motions insofar as they were based upon a violation of Article 701.

In addition to the limitations provided for by Article 701, LSA-C.Cr.P. art. 578(2) provides for a two-year time limitation within which the trial of a defendant accused of a non-capital felony must be commenced. Defendant was charged on July 17, 2001, with an aggravated battery committed on June 2, 2001. Defendant’s trial was commenced on February 3, 2003, well within the two-year time period allowed. Thus, to the extent that defendant’s motions were based on Article 578(2), they were properly denied by the trial court.

Besides these statutory provisions, a defendant has the right to a speedy trial under the Sixth Amendment to the United States Constitution and LSA-Const. art. I, § 16. State v. Sullivan, 97-1037 (La.App. 4th Cir.2/24/99), 729 So.2d 1101, 1109, unit denied, 99-0797 (La.9/17/99), 747 So.2d 1093. The right to a speedy trial attaches when an individual becomes an accused, whether by formal indictment or bill of information or by arrest and actual restraint. State v. Dewey, 408 So.2d 1255, 1257 (La.1982). In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court set out the following four factors to determine whether a | ^defendant’s right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the defendant. The court held that the length of the delay is the triggering mechanism; and, until the delay is presumptively prejudicial, there is no need to inquire into the other factors. In the instant case, defendant’s trial commenced approximately nineteen months after his arrest. For purposes of considering defendant’s pro se assignment of error, we will assume, without so deciding, that the delay was sufficiently prejudicial to trigger further inquiry.

Retained counsel, Barry Bolton, filed a motion for speedy trial on June 29, 2001. The motion was filed even before defendant was charged and there is no evidence that it was persistently urged. On the same date, defense counsel filed motions for a bill of particulars, for a preliminary examination, and to suppress evidence. On August 20, 2001, another attorney, Marion Farmer, enrolled as counsel of record. This attorney, who served as trial counsel, also filed numerous pre-trial motions. There is no indication in the record that defendant took any action to move these motions toward resolution. The first trial setting, just six months after the charged offense, was continued at the request of defendant on December 4, 2001. Thereafter, the trial judge originally assigned to this matter recused himself on March 19, 2002, on grounds of conflict of interest because he was a complainant in proceedings filed against defense counsel, Barry Bolton. The minutes reflect that a pretrial conference before the new judge assigned to handle the matter was scheduled for May 21, 2002, but the conference and trial were continued at the request of the defendant. Thereafter, on October 21, 2002, defendant’s pre-trial motions were again continued, without notation in the record of the reason for the continuance. The minutes do not reflect that defendant objected to the delay. The defense motions were reset for hearing on |1BOctober 28, 2002. There is no evidence in the record as to what occurred on that date. The minutes for January 17, 2003, indicate that defendant’s pre-trial motions and the scheduled pre-trial conference were deferred until the trial week of February 3, 2003, again without any indication of objection by defendant.

Defendant’s motion to quash based on denial of his right to a speedy trial was filed in open court on the morning of trial, February 3, 2003. At the hearing on defendant’s motions, defense counsel conceded that the first trial setting was continued at his request in December 2001. The state represented that the next trial setting in May 2002, was also continued at the request of defendant, as shown in the minutes. Defense counsel disagreed, advising that he did not recall asking for that or any other continuances. Defendant, however, made no claim at the hearing, and has made no claim on appeal, that the state was guilty of any bad faith or dilatory tactics, nor has defendant demonstrated any prejudice from the complained of delay.

It appears that although defendant remained incarcerated, he was already serving time on other charges. Although defendant may have suffered some anxiety and concern, he does not even mention that factor in his brief on appeal. Moreover, although there were instances where witnesses indicated their lack of recollection of specific details, none of those details were relevant to the essential elements of the offense charged. The victim testified in no uncertain terms that the defendant intentionally beat her with the butt of a pistol and with his fists and feet. We cannot conclude that there was any impairment of defendant’s ability to prepare his defense.

After carefully considering the record in this matter and the balancing test set forth in Barker v. Wingo, together with other relevant circumstances peculiar to this case, we are satisfied that the trial judge did not err in denying defendant’s motions. See State v. Cyrex, 97-2520 (La.App. 1st Cir.9/25/98), 746 So.2d 1, 5-7, writ denied, 98-2692 (La.1/29/99), 736 So.2d 829.

There is no merit to this assignment of error.

PATENT ERROR

In reviewing the record for patent error, we have discovered that the trial court 117did not wait the required twenty-four hours after denial of defendant’s motion in arrest of judgment before imposing sentence, nor did defendant waive the waiting period. LSA-C.Cr.P. art. 873. For that reason, we are required to vacate defendant’s sentence. In State v. Augustine, the Louisiana Supreme Court held that a trial court’s failure to observe the 24-hour delay is not harmless error if the defendant challenges his sentence on appeal, regardless of whether the defendant demonstrates that he was prejudiced by the failure to observe the delay period. State v. Augustine, 555 So.2d 1331, 1333-1334 (La.1990). See also State v. Claxton, 603 So.2d 247, 250 (La.App. 1st Cir.1992). Although we are proeedurally barred from considering defendant’s challenge, he has challenged his sentence on appeal. Thus, according to the Louisiana Supreme Court, the error is not harmless, and we must vacate the sentence.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . The state filed a bill to establish habitual offender status and defendant pled not guilty. The record does not contain evidence of a habitual offender adjudication or sentencing.

      . No objection or request for an admonition was made regarding references to defendant's prior incarceration.

      . Compare State v. Brock, 99-2128 (La.App. 4th Cir.6/14/00), 767 So.2d 130, 131, writ denied, 00-2147 (La.9/28/01), 797 So.2d 684.

      . The motion, filed before defendant was charged, does not contain the required verification that counsel is ready for trial. LSA-C.Cr.P. art. 701(D)(1). Other pre-trial motions filed on the same date undermine any claim that defendant was prepared for trial at that time. Compare State v. Green, 01-3358 (La.2/1/02), 808 So.2d 318, 321-322 (per curiam).


source: Caselaw Access Project

author: I ¡¿DOWNING, J. | PETTIGREW, J.,

license: Public Domain

text:
    Linda FRITH v. RIVERWOOD, INC.
    No. 2003 CA 1340.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Writ Granted July 2, 2004.

      Mark Zimmerman, Lake Charles, Counsel for Appellee Linda Frith.
    Lawrence B. Frieman, Metairie, Counsel for Appellant Riverwood, Inc.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   I ¡¿DOWNING, J.

This appeal arises out of a workers’ compensation suit. The employer presented the following issues for review: (1) whether the workers’ compensation judge (WCJ) erred in finding that the employer was not entitled to a credit against the supplemental earning benefit (SEB) obligation for the total number of weeks it paid temporary total disability (TTD) benefits; (2) whether the WCJ erred in finding it arbitrary and capricious for the employer to terminate benefits after paying in excess of 520 weeks of TTD benefits; (3) whether the WCJ erred in ordering the employer to provide prompt rehabilitation services; and (4) whether fibromyalgia was compensable. The employee answered the appeal assigning error to the WCJ’s holding that she did not prove a permanent and total disability (PTD). The employee also requested additional attorney fees for this appeal. For the following reasons, we reverse in part, affirm in part, and remand.

FACTS

Linda Frith incurred an on-the-job back injury on March 17, 1989, while working for Riverwood, Inc., as a forklift operator. Riverwood began immediately paying her a weeHy benefit. Frith had two back surgeries in 1999, after nearly ten years of treatment. On June 30, 2000, her physician sent a letter to the claims adjuster, stating that Frith had “significant permanent restrictions as far as work activities,” and that “I think she could resume some form of work activity if these restrictions are met.”

After receiving this letter, Riverwood terminated Frith’s $267.00 weekly benefit on July 17, 2000, having paid her for 535 weeks. On August 30, 2000, Frith filed a claim form disputing the termination of benefits. The matter was tried December 16, 2002. On February 25, 2003, the WCJ held that Frith failed to meet her burden of proof for PTD or TTD benefits, but | ¡¡held that she did prove her entitlement to SEB from July 17, 2000 forward in accordance with the law. The WCJ further ruled that Frith had received SEB from April 1998 through May 1999 (52 weeks), and from April 10, 2000 through July 17, 2000 (24 weeks). The WCJ also ruled that Riverwood was not entitled to a credit for any TTD benefit it paid against its SEB obligation. The WCJ found that the medical treatment rendered by Dr. Manuel Calvin was compensable except where it was solely related to inflammatory arthritis, high cholesterol, and colitis. The WCJ ordered Riverwood to provide prompt rehabilitation services and ordered Frith to comply with those services. It also found Riverwood arbitrary and capricious and without probable cause for terminating Frith’s benefits and awarded her $7,500.00 in attorney fees.

DISCUSSION

Credit Entitlement

Riverwood’s first assignment of error alleges that the trial court erred in finding that it was not entitled to a credit for the TTD benefits paid after January 1, 1990, against its SEB obligation.

Louisiana Revised Statute 23:1221(3)(d)(ii) provides:

After receipt of a maximum of five hundred twenty weeks of benefits, provided that for any week during which the employee is paid any compensation under this Paragraph, the employer shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under the Paragraph.

Louisiana Revised Statute 23:1223 provides:

Deduction from benefits
A. Except as provided in R.S. 23:1221(4)(s), when compensation has been paid under R.S. 23:1221(1), (2), or (3), the amount of such payment shall be deducted from any compensation allowed under R.S. 23:1221(4) or Subpart C of this Part.
|4B. Except as provided in R.S. 23:1221(4)(s), when compensation has been paid under R.S. 23:1221(1), (2), or (4), the amount of such payment shall be deducted from any compensation allowed under R.S. 23:1221(3) or Subpart C of this Part.

The Louisiana Supreme Court in Thibodeaux v. Diamond M. Drilling Co., 93-2963 (La.2/25/94), 632 So.2d 736, ruled that retroactive application of La.R.S. 23:1223 is impermissible and that the employer has no right to a reduction of benefits because no such reduction was authorized at the time of plaintiffs injury. Riverwood argues that this holding only addresses the retroactivity of La.R.S. 23:1223 and not whether TTD payments paid after the January 1, 1990 effective date can be credited against the employer’s SEB payments. We agree with Riverwood that Thibodeaux only addressed the retroactivity of La.R.S. 23:1223 and did not address the prospective application of the statute.

It is undisputed that the La.R.S. 23:1223 “credit” would apply had the injury occurred after the effective date of the amendment. Thus, the issue before us is whether the employer is entitled to receive a credit for benefits paid after the 1990 effective date where the employee’s injury occurred before the 1990 effective date. The First Circuit has not addressed this issue, and the decisions rendered in other circuits are split.

Riverwood urges this Court to follow the Fourth Circuit’s decision in Fallen v. New Orleans Police Dept., 97-0022 (La.App. 4 Cir. 7/23/97), 697 So.2d 1077, which followed Cline v. St. Jude Medical Center, Inc., 619 So.2d 712 (La.App. 4 Cir.1993), where a credit was allowed for TTD payments that the employee received after the effective date of the statute. In allowing the credit, the court reasoned that those benefits had not become due until after the amendment became effective. Cline 619 So.2d at 716.

| fiFrith, however, disagrees and asserts that we should follow the Third Circuit’s en banc decision of Burge v. Louisiana Ins. Guar. Assn., 02-33 (La.App. 3 Cir.5/15/02), 819 So.2d 1098, writ denied 02-2209 (La.11/15/02), 829 So.2d 427. Relying on Thibodeaux, the Burge court held that the employer was not entitled to a credit for payments paid after January 1, 1990, because La.R.S. 23:1223(B) was not in effect on the date of the employee’s injury. Burge, 02-33 at p. 4, 819 So.2d at 1100.

In workers’ compensation cases, generally, the law governing an action for benefits is the law in effect at the time of the injury. Bruno v. Harbert Intern. Inc., 593 So.2d 357, 360 (La.1992). Frith’s injury occurred on March 17, 1989, before the 1990 effective date of the amendment.

However, in Resweber v. Haroil Constr. Co., 94-2708, 94-2708 p. 3 (La.9/5/95), 660 So.2d 7, 10, the Supreme Court made it clear that the general rule applies when the court is deciding fundamental matters such as what constitutes an “accident” or what injuries are compensable. Id. In related matters such as this, however, it is the “triggering mechanism,” and not the “date of the accident,” that determines which version of a workers’ compensation statute controls. Id. In Resweber, the Court explained that the general rule is not intended to apply to a statute that is triggered by post-accident acts. In particular, the statute in Resweber called for a forfeiture penalty triggered by post-accident misrepresentations. Similarly, the TTD benefit coming due on a weekly basis is the trigger for the credit. See Cline, 619 So.2d at 716. These benefits come due subsequent to the effective date of the statute and are therefore subject to the credit. We, therefore, agree that the Fourth Circuit’s opinion in Cline is a correct expression of the law. As explained in Cline, because weekly compensation benefits for TTD are dependent on the disability continuing, and benefits technically become due | fionly upon the continued existence of that disability week to week, any amounts the claimant receives for TTD after the effective date of the 1990 amendment should be subject to the credit. Id. at 716. While the Third Circuit relied on the general rule governing an action for benefits, it apparently failed to recognize the full implication of the Supreme Court’s later decision in Resweber.

We note that the Supreme Court has instructed us to conduct a de novo review and enter judgment if the record is complete and if we can determine a proper disposition. Evans v. Lungrin, 97-0541, 97-0577, pp. 6-7 (La.2/6/98), 708 So.2d 731, 735. The record before us however, does not contain the necessary information for calculation of the proper credit. We, therefore, reverse that portion of the judgment disallowing the credit and remand the matter for the WCJ to take evidence and render a judgment regarding the proper amount of credit due to Riverwood.

Vocational Rehabilitation Services

Louisiana Revised Statute 23:1226(A) provides as follows:

When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. (Emphasis added.)

Louisiana Revised Statute 23:1226(B)(3) provides as follows:

(a) The employer shall be responsible for the selection of a vocational counsel- or to evaluate and assist the employee in his job placement or vocational training. Should the employer refuse to provide these services, or a dispute arises concerning the work of the vocational counselor, the employee may file a claim with the office to review the need for such services or the quality of services being provided in the same manner as established for dispute resolution of claims for workers’ compensation benefits.
(c) The expedited procedure shall also be made available to the employer to require the employee’s cooperation in the rehabilitation process and to order the fifty percent reduction in weekly compensation, including supplemental earnings benefits |7for each week of the period of noncooperation as provided in subsection F of this Section.

The judgment before us ordered River-wood to provide prompt rehabilitation services in accordance with the applicable law at the time of the accident. The judgment also ordered Frith to cooperate with the rehabilitation effort. Riverwood asserts that the trial court erred in entering this order when Frith never sought rehabilitative services and when the services will likely place her in a worse financial position.

This argument, however, seems to misstate Frith’s position. Frith’s testimony clearly indicates that she does desire to exercise these services. Therefore, the issue was before the WCJ.

Louisiana Revised Statute 23:1226(A) gives the employee an entitlement to prompt rehabilitation services in appropriate cases, and La.R.S. 23:1226(B)(3)(a) gives the employee the mechanism to enforce this entitlement should the employer fail to provide these services. Conversely La.R.S. 23:1226(B)(3)(c) provides the procedure for the employer to provide for the employee’s cooperation in these rehabilitation services once the employee elects to utilize these services.

Under these facts and applicable law, the WCJ did not err in ordering the rehabilitation services and Frith’s cooperation with these services. Thus, this assignment of error is without merit.

Attorney Fee Award

Riverwood’s second assignment of error alleges that the WCJ erred in assessing $7,500.00 in attorney fees for terminating Frith’s benefits.

Attorney fee awards in workers’ compensation cases are penal in nature and imposed to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271, p. 8 (La.6/29/99), 737 So.2d 41, 46. Although the Workers’ Compensation Act |sis to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Id. 98-2271 at p. 9, 737 So.2d at 46. The crucial inquiry is whether the employer can articulate an objective reason for discontinuing benefits at the time it took that action. Id.

The WCJ stated two reasons for assessing Riverwood with attorney fees. First, it found Riverwood was arbitrary and capricious for terminating benefits before having vocational rehabilitation conduct testing to evaluate Frith’s work capacity.

Vocational rehabilitation is a right of the employee. La.R.S. 23:1226(A). No evidence in the record shows that Frith specifically requested these services, although it is now clear she desires them. River-wood articulated an objective reason for not requesting vocational rehabilitation by acknowledging that its intention was “to protect the claimant’s continued receipt of disability retirement benefits from River-wood.” We agree with Riverwood that the WCJ erred in assessing it with an attorney fee penalty for this reason.

Secondly, the WCJ found River-wood was arbitrary and capricious for terminating Frith’s benefits by relying on unsettled case law regarding the credit issue after paying benefits for over 520 weeks.

Riverwood commenced paying compensation and medical benefits in 1989, at the time Frith made a request for benefits, and continued to pay until July 17, 2000. Riverwood acknowledged that it “made a decision to pay the claimant her full workers’ compensation benefits” before terminating the obligation. As discussed above, we agree with Riverwood regarding the credit. Moreover, on July 17, 2000, the date Riverwood terminated Frith’s benefits, it cannot be said that the case law was unsettled because the Fourth Circuit Court had been allowing the credit since 1993, 19consistent with the 1995 Supreme Court opinion in Resweber, and the Third Circuit Court had not yet rendered its Burge decision. Riverwood articulated that after paying Frith for 535 weeks, it received a letter from Frith’s physician releasing her for light duty employment. Riverwood’s claim agent, Helen Duke, advised them of the credit available pursuant to the statute. The WCJ erred in not finding that this was an objective reason for discontinuing workers’ compensation benefits. Thus, this assignment of error has merit. We reverse the assessment of attorney fees.

Compensability of Fibromyalgia

Riverwood’s fourth assignment of error alleges that the WCJ erred by allowing Frith to include the compensability of fibromyalgia as an issue for trial, when this malady was not specifically pled in the petition or in the pretrial order and when Riverwood had never denied payment for the treatment or disputed compensability.

Petitions in workers’ compensation suits must be liberally construed, and all doubts arising by reason of inadequacy or insufficient details must be resolved in favor of the claimant if the employer has been adequately apprised by petition of a legal claim against him. Bassemier v. W.S. Young Constr. Co., 110 So.2d 766, 768-769 (La.App. 1 Cir.1959).

Dr. Manuel Calvin, a board-certified rheumatologist, has been Frith’s physician since 1993. Dr. Calvin testified in deposition that Frith had fibromyalgia-like symptoms when she began seeing him in 1993. Dr. Calvin testified that fibromyalgia is a controversial disease that is often triggered by a traumatic event. He believed that this was the case of Frith’s symptoms.

Riverwood has had full access to all of Frith’s medical records and has, in fact, authorized her treatment by Dr. Calvin. There was substantial evidence that fibro-myalgia is a common consequence of a traumatic event |inand often associated with arthritic and neurological conditions. Thus, Riverwood was adequately apprised of Frith’s allegations of fibromyalgia. This assignment of error is without merit.

ANSWER TO APPEAL

Frith answered the appeal, alleging that the WCJ erred in failing to find that she is permanently and totally disabled, or in the alternative, that she is temporary total disabled.

Permanent and Total Disability

To be entitled to PTD benefits, the employee/claimant must prove that he is physically unable to engage in any employment, regardless of the nature or character of the employment. La.R.S. 23:1221(2). This must be proven by clear and convincing evidence, unaided by any presumption of disability. La.R.S. 23:1221(2)(c). The WCJ found that Frith failed to meet her burden for PTD or TTD. The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Severio v. J.E. Merit Constructors, Inc., 02-0359, p. 7 (La.App. 1 Cir. 2/14/03), 845 So.2d 465, 469. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Id.

In this ease, Frith’s physician stated that she could return to sedentary employment. Frith produced no medical evidence showing she was unable to work in any capacity, regardless of the nature or character of the work. Neither has she produced a current vocational rehabilitation evaluation.

Frith cited several cases where the employee was found unable to return to their former employment or to be retrained for any other employment. See Comeaux v. City of Crowley, 01-0032 (La.7/3/01), 793 So.2d 1215, and Severio v. J.E. Merit Constructors, Inc., 02-0359 (La.App. 1 Cir. 2/14/03), 845 So.2d 465. These cases are not on point, however. Unlike Frith’s situation, the employees in the cited cases were uneducated manual laborers lacking the intellectual ability to learn new trades or to perform non-physically demanding jobs. Here, Frith is well educated 'and does not show a lack of ability to learn new trades. We conclude that there is no error in the WCJ determination that she was not permanently and totally disabled. This assignment of error is without merit.

Temporary Total Disability

Alternatively, Frith argues that she should be allowed to continue TTD by virtue of the “odd-lot doctrine,” the law in effect at the time of the injury by which courts were permitted to make disability determinations in light of the claimant’s physical condition, mental capacity, education, training, age and other factors. See Coates v. Byrd Constr. Services, Inc., 94-2989, p. 1 (La.2/9/95) 650 So.2d 237. Basically, Frith cites Netherton Co. v. Scott, 34,521, p. 4 (La.App. 2 Cir. 4/6/01), 784 So.2d 772, 775, which held that the employee will be considered TTD when he cannot perform any services other than those that are so limited in quality, dependability, or quantity that a reasonably stable market for those services do not exist.

In this case, Frith is a fifty-year old, college-educated woman who has been released by her doctors to return to some sort of employment. She has presented no evidence showing she has tried to return to the workforce or shown that no employment is available to her. Therefore, she has not proven that she qualifies for the “odd lot doctrine” or her entitlement to continued TTD benefits. This assignment of error is without merit.

Additional Attorney Fees for Appeal

In her answer to appeal, Frith also requested additional attorney fees for defending this appeal. However, River-wood obtained relief on appeal. | ^Thus, Ms. Frith is not entitled to additional attorney fees on appeal. See Insurance Co. of North America v. Labit, 99-2448, 99-2449 p. 7 (La.App. 1 Cir. 11/15/00), 772 So.2d 385, 389.

DECREE

For the above reasons, we reverse the judgment disallowing Riverwood, Inc. a credit for the temporary total disability benefits it paid to Linda Frith after January 1, 1990, and remand the matter for a credit calculation. We also reverse the judgment assessing Riverwood, Inc. with $7,500.00 in attorney fees for the arbitrary and capricious termination of Linda Frith’s workers’ compensation benefits. We affirm the decree ordering Riverwood, Inc. to provide Linda Frith with rehabilitative services. We affirm the judgment allowing Linda Frith to include the compensa-bility of fibromyalgia as an issue for trial. We also affirm the judgment finding that Linda Frith was not permanently and totally disabled or in the alternative, temporarily totally disabled.

Further, we deny Linda Frith’s request for additional attorney fees for work on this appeal.

Costs of this appeal are assessed to Riv-erwood, Inc.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED.

PETTIGREW, J., dissents, and assigns reasons.

| PETTIGREW, J.,

dissenting.

I must respectfully dissent from the majority. I would affirm the trial court judgment. See Thibodeaux v. Diamond M Drilling Co., 93-2963 (La.2/25/94), 632 So.2d 736 and Burge v. Louisiana Ins. Guar. Assn., 2002-33 (La.App. 3 Cir. 5/15/02), 819 So.2d 1098, writ denied, 2002-2209 (La.11/15/02), 829 So.2d 427, holding that the employer was not entitled to a credit for payments paid after January 1, 1990, because La. R.S. 23:1223(B) was not in effect on the day of the employee’s injury.

      . This statute was amended by La. Acts 1999, No. 126 § 1 and the language was changed.

      . Cf. Jades v. Banister Pipelines America, 418 So.2d 524 (La. 1982), and Ambrose v. Fluor Constructors, Inc., 537 So.2d 1176 (La.App. 4 Cir.1988), for historical context regarding this issue.


author: J^MCCLENDON, J.

text:
    The GRAY INSURANCE COMPANY v. OLD TYME BUILDERS, INC. and Zurich Insurance Companies
    No. 2003 CA 1136.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Writ Denied June 18, 2004.

      Robert L. Baudouin, Metairie, Counsel for Plaintiff/Appellant The Gray Insurance Company.
    Andrew A. Braun, Michelle L. Corrigan, New Orleans, Counsel for Defendants/Ap-pellees Old Tyme Builders, Inc.
    Terrence L. Brennan, Keith J. Berger-on, New Orleans, Counsel for Third-Party Defendant/Appellee Morton Verges Architects.
    Temple A. Stephens, Metairie, Counsel for Defendant/Appellee Assurance Company of America.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   J^MCCLENDON, J.

In this construction case, the issue raised on appeal is whether a general contractor’s liability insurer is prohibited from seeking reimbursement from the general contractor’s subcontractor for damages paid due to the subcontractor’s alleged faulty workmanship and/or negligence. The trial court found that the existence of a waiver of subrogation clause in the contract between the general contractor and the building owner acts to preclude recovery and granted summary judgment, dismissing the plaintiffs suit. For the following reasons, we affirm.

On August 31, 1995, Discon Law Firm entered into a written contract with Morton Verges Architects for the construction of a new office building in Mandeville, Louisiana. On February 28, 1996, Discon Law Firm and Grimaldi Construction, Inc. (GCI) entered into a construction contract for the actual construction of the building. Subsequently, GCI entered into a subcontract with Old Tyme Builders, Inc. for the installation of the stucco finish on the building.

GCI issued a certificate of substantial completion on or around June 24, 1996, a few weeks after Discon Law Firm began moving into the building. The building was fully occupied at or immediately after substantial completion. Prior to the issuance of the certificate of completion and throughout the fall of 1996, the building and its contents allegedly sustained water damage during normal rainfalls. During this period, GCI was insured by a liability policy issued by Gray Insurance Company.

Jim Willie, superintendent for Old Tyme Builders admitted to August Grimaldi, president of GCI, that some work performed by Old Tyme Builders on the Dis-con building was defective in that the metal lathe system was improperly installed. This improper installation caused water l.jnfiltration into the interior of the building and damaged various components of the interior, including walls and carpets. Old Tyme Builders replaced the stucco at its expense. GCI initially bore the expense of the consequential damages that resulted from the water leaks, such as carpet cleaning and the replacement of walls. Subsequently, Gray Insurance Company reimbursed GCI for the damages caused by the defective work.

On August 31, 1999, Gray Insurance Company, as subrogee to the rights of its insured, GCI, filed a petition for damages against Old Tyme Builders and its insurer, Assurance Company of America, seeking reimbursement for the payments made to GCI. Old Tyme Builders filed a third party demand against Morton Verges Architects.

Old Tyme Builders and Assurance Company of America also filed motions for summary judgment, contending that a waiver of subrogation clause in the contract between GCI and Discon Law Firm precluded recovery by Gray Insurance Company. Morton Verges Architects also filed a motion for summary judgment. After a hearing on the motions, the trial court rendered summary judgment against Gray Insurance Company, dismissing its lawsuit with prejudice. Gray Insurance Company appeals.

It is well settled that the appellate review of summary judgment is de novo, applying the same standard as the trial court. Guillory v. Interstate Gas Station, 94-1767, p. 5 (La.3/30/95), 653 So.2d 1152, 1155. Furthermore, the rules concerning the interpretation of insurance contracts are set forth by the Louisiana Supreme Court in the case of Crabtree v. State Farm Insurance Co., 93-0509 (La.2/28/94), 632 So.2d 736, 741 (footnotes omitted), as follows:

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of | contracts set forth in the Civil Code. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911 p. 5 (La.1/14/94), 630 So.2d 759, 763; Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993); Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991). If the words of the policy are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent and the agreement must be enforced as written. Smith, 611 So.2d at 1379; Central La. Elec. Co. v. Westinghouse Elec. Corp., 579 So.2d 981, 985 (La.1991); Pareti v. Sentry Indem. Co., 536 So.2d 417, 420 (La.1988); see La.Civ.Code art.2046. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Interstate, 93-0911 p. 5, 630 So.2d at 763; Fertitta v. Palmer, 252 La. 336, 211 So.2d 282, 285 (1968). The policy should be construed as a whole and one portion thereof should not be construed separately at the expense of disregarding another. Westinghouse, 579 So.2d at 985; Pareti, 536 So.2d [at] 420; see La. Civ.Code art.2050. If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of the insured. Interstate, 93-0911 p. 6, 630 So.2d at 764; Smith, 611 So.2d at 1379; Pareti, 536 So.2d at 420; see La.Civ.Code art.2056.

The construction contract entered into between Discon Law Firm and GCI is a standard form contract drafted by the American Institute of Architects. The entire contract is entitled “Standard Form of Agreement Between Owner and Contractor.” The pertinent provisions of the contract entered into between Discon Law Firm and GCI are as follows:

11.3 Property Insurance

11.3.1 Unless otherwise provided, the owner shall purchase and maintain ... property insurance in the amount of the initial Contract Sum ... for the entire Work at the site on a replacement cost basis without voluntary deductibles. Such property insurance shall be maintained ... until final payment has been made as provided in Paragraph 9.10 or until no person or entity other than the Owner has an insurable interest in the property required by this Paragraph 11.3 to be covered, whichever is earlier. This insurance shall include interests of the owner, the Contractor, Subcontractors and Sub-subcontractors ....
11.3.1.1 Property insurance shall be on an all-risk policy form and shall insure against the perils of fire 1 sand extended coverage and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, false work, temporary buildings, and debris removal including demolition occasioned by enforcement of any applicable legal requirements, ....
11.3.7 Waivers of Subrogation. The Owner and Contractor waive all rights against (1) each other and any of their subcontractors, sub-subcontractors, agents and employees, each of the other, and (2) the Architect, Architect’s consultants, separate contractors described in Article 6, if any, and any of their subcontractors, sub-subcontractors, agents and employees, for damages caused by fire or other perils to the extent covered by property insurance obtained pursuant to this Paragraph 11.3 or other property insurance applicable to the Work, except such rights as they have to proceeds of such insurance held by the Owner as fiduciary. The Owner or Contractor, as appropriate, shall require of the Architect, Architect’s consultants, separate contractors described in Article 6, if any, and the subcontractors, sub-subcontractors, agents and employees of any of them, by appropriate agreements, written where legally required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged.

It is undisputed that Gray Insurance Company is subrogated to the rights of GCI, its insured. Louisiana Civil Code article 1825 defines the term “subrogation” as the substitution of one person to the rights of another. A subrogee acquires no greater rights than those possessed by its subrogor and is subject to all limitations applicable to the original claim of the sub-rogor. Travelers Ins. Co. v. Impastato, 607 So.2d 722, 724 (La.App. 4 Cir.1992); State v. U.S. Fidelity & Guar. Co., 577 So.2d 1037, 1039 (La.App. 4 Cir.1991). Therefore, the fate of Gray Insurance Company’s claim is dependent on the interpretation of the subrogation clause quoted above.

IfiOn appeal, Gray Insurance Company asserts that the waiver of subrogation does not apply herein for four reasons: (1) the insurance was provided by the general contractor, not the owner, and the waiver of subrogation does not apply to claims by the general contractor against its own subcontractors; (2) the damages were not caused by a “fire and peril;” (3) the waiver only applies to property insurance, not liability insurance; and (4) Old Tyme Builders waived the waiver of subrogation by voluntarily remedying its work.

Initially, Gray Insurance Company contends that pursuant to paragraph 11.3.7, the general contractor did not waive subrogation against its own subcontractors, only against subcontractors of the owner. Therefore, GCI did not waive sub-rogation against Old Tyme Builders. We disagree.

As discussed above, an insurance policy must be construed as a whole. LSA-C.C. art.2050. It should be interpreted in a reasonable manner without enlarging or restricting its provisions beyond what is reasonably contemplated by its terms. Crabtree, 632 So.2d at 741. Paragraph 11.3.7 provides that the “Owner and Contractor waive all rights against (1) each other and any of their subcontractors, sub-subcontractors/ agents and employees, each of the other .... The Owner or Contractor, as appropriate, shall require of the Architect, ... subcontractors, sub-subcontractors, agents and employees of any of them ... similar waivers each in favor of other parties enumerated herein.” Clearly, paragraph 11.3.7 operates as a waiver of rights of the owner and the contractor against subcontractors and other workers on the project for property damage to the extent that such damages are covered by insurance. By these terms, the waiver of subrogation provisions are reciprocal, with no exception for claims by the owner or contractor against their own subcontractors. .

| ?Gray Insurance Company next asserts that the subrogation clause does not apply as the damages were not caused by a “fire or other peril” as required by paragraph 11.3.7. In support of this argument, it asserts that he term “peril” is an occurrence that is dramatic in nature as opposed to an everyday occurrence such as a rainstorm.

Finding no specific definition for the term “peril” in the insurance contract, we turn to Black’s Law Dictionary 1059 (7th ed.1999), which defines the term “peril” as an “[exposure to the risk of injury, damage, or loss.” Black’s further defines the term “peril,” when used in the context of insurance contracts, as “[t]he cause of a loss to a person or property.” This definition is consistent with the definition of the term applied in some other jurisdictions. See Indep. Sch. Dist. 833 v. Bor-Son Constr., Inc., 631 N.W.2d 437 (Minn.Ct. App.2001); Blue Cross v. McDevitt & Street Co., 234 Va. 191, 360 S.E.2d 825 (Va.1987); Len Immke Buick, Inc. v. Architectural Alliance, 81 Ohio App.3d 459, 611 N.E.2d 399 (1992). Herein, ordinary rainstorms caused the loss suffered. Therefore, applying the above definitions, each rainstorm constituted a peril. Thus, the property damage to the Discon building was caused by a peril within the meaning of paragraph 11.3.7, the waiver of sub-rogation clause.

Additionally, Gray Insurance Company asserts that its policy is not the type of policy described in Paragraph 11.3.1.1 as an “all risk” policy normally in effect during construction work in-progress. Gray Insurance Company contends that its policy is not subject to the waiver of subrogation clause because it is a “liability” policy, rather than a “property” policy.

By its terms, the waiver of subrogation applies to two types of property insurance. The subrogation clause provides that “damages caused by fire or other perils to the extent covered by property insurance obtained | ¡¡pursuant to this Paragraph 11.3 or other property insurance applicable to the Work” are covered. This provision applies to any property damage covered by insurance that was in effect during the time period required by paragraphs 11.3.1 and 11.3.7. See Travelers Ins. Co. v. Impastato, 607 So.2d 722, 724 (La.App. 4 Cir.1992); State v. U.S. Fidelity & Guar. Co., 577 So.2d 1037, 1039 (La.App. 4 Cir. 1991). Gray Insurance Company’s policy covered and paid for the property damage at issue. Clearly, Gray Insurance Company’s policy provided “other property insurance applicable to the work.”

Furthermore, paragraph 11.3.1 requires that property insurance be maintained until at least final payment or until no one other than the owner has an insurable interest in the building. Until final payment, GCI clearly retained an insurable interest despite substantial completion. It is undisputed that this damage occurred before final payment. Therefore, whether the property damage occurred before or after substantial completion is immaterial.

Finally, Gray Insurance Company asserts that Old Tyme Builders voluntarily replaced the defective stucco installation, completely remedying the problem at its own expense, and such action constitutes a waiver of the waiver of subrogation. We reject this assertion. “Waiver occurs when there is an existing right, a knowledge of its existence and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished.” Steptore v. Masco Const. Co., Inc., 93-2064, p. 4 (La.8/18/94), 643 So.2d 1213, 1216. Old Tyme Builder’s voluntary action of undertaking repairs cannot be considered a knowing and intentional relinquishment of a known right, power, or privilege, or as actions so inconsistent with the intent to enforce |9the right as to induce a reasonable belief that it has been relinquished, as required by law to constitute a waiver.

For the foregoing reasons, we affirm the judgment of the trial court. Costs are assessed against the appellant, Gray Insurance Company. .

AFFIRMED.

      . Sometimes referred to herein as Zurich Insurance Company.


text:
    Karen T. LEE v. THE BLOOD CENTER OF SOUTHEAST LOUISIANA, INC. and Louisiana Workers’ Compensation Corporation
    No. 2003 CA 0960.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Brian Blackwood, Daniel J. Dazet, Baton Rouge, Counsel for Plaintiff/Appellee Karen Lee.

      Sammie M. Henry, Baton Rouge, Counsel for Defendant/Appellant The Blood Center of Southeast Louisiana, Inc. and Louisiana Workers’ Compensation Corporation.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   J^MCCLENDON, J.

In this workers’ compensation case, the issue on appeal is whether the employee sustained an accident in the course and scope of her employment. For the following reasons, we affirm the judgment of the Office of Workers’ Compensation awarding benefits to the employee.

FACTS AND PROCEDURAL HISTORY

Karen T. Lee was employed in Baton Rouge by the Blood Center of Southeast Louisiana, Inc. (Blood Center). On October 19, 1999, Ms. Lee participated in a blood drive with four other Blood Center employees at Direct Corporation in Baton Rouge. At the conclusion of the blood drive, Ms. Lee alleged that while loading equipment onto an elevator, the elevator closed on her knee causing injury.

Ms. Lee filed a disputed claim for compensation and, after hearing the matter, the workers’ compensation judge determined that Ms. Lee sustained an injury while in the course and scope of her employment with the Blood Center. Judgment was rendered in Ms. Lee’s favor awarding her workers’ compensation and medical benefits. The Blood Center and Louisiana Workers’ Compensation Corporation appeal, asserting that the workers’ compensation judge erred in finding that Ms. Lee suffered an accident and injury in the course and scope of her employment.

DISCUSSION

In order to recover workers’ compensation benefits, a claimant must establish “personal injury by accident arising out of and in the course of his employment.” LSA-R.S. 23:1031(A). Thus, a claimant must prove, by a preponderance of the evidence, that a work-related accident occurred and that an injury was sustained. A claimant’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no pother evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Thomas v. Wal-Mart, 02-1356, p. 8 (La.App. 1 Cir. 5/9/03), 849 So.2d 592, 598; Jackson v. Savant Ins. Co., 96-1424, p. 3 (La.App. 1 Cir. 5/9/97), 694 So.2d 1178, 1180. See also Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992).

Whether a claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. Williams v. Wal-Mart Stores, Inc., 00-1347, p. 5 (La.App. 1 Cir. 9/28/01), 809 So.2d 294, 298. Factual findings in a workers’ compensation case are subject to the manifest error standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556.

In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Stobart v. State, 617 So.2d 880, 882 (La.1993). If the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Id.

In this matter, defendants argue that the workers’ compensation judge erred in determining that Ms. Lee suffered a work-related accident when there was only her testimony to the occurrence of the accident, her version [4was discredited by the testimony of the other witnesses, and the circumstances following the incident failed to corroborate her version.

Ms. Lee testified that on the day in question, she drove her car to the location of the blood drive because she lived near the site and her supervisor had given her permission to do so. Ms. Lee stated that after the blood drive was over, the equipment was packed up, put in the hallway, and the employees were taking turns bringing it down the elevator to the Blood Center van. Ms. Lee stated that when she was loading the equipment into the elevator, the elevator door suddenly closed jamming her right knee. Ms. Lee testified that she had to pry the door open from the inside, while an unidentified man outside the elevator also helped. Ms. Lee said she then went to the bathroom, which was on the same floor as the blood drive, to check her knee and regain her composure. She stated that when she came out of the bathroom, the equipment and the employees were gone. She asked someone where her supervisor was and was told everyone had left. Ms. Lee stated she then left to return to the Blood Center office. She further testified that she stopped to use a pay phone to call the mobile telephone in the Blood Center van but that there was no answer. Ms. Lee went to the Blood Center office and reported the accident. She saw a doctor the following day. Upon the recommendation of her initial doctor, Ms. Lee followed up with her orthopedist, who recommended surgery on her knee.

Ms. Lee was questioned, on cross-examination, about an incident that happened a few days earlier, on October 13, 1999, that resulted in her being reprimanded for starting an argument. She testified that she did not remember being told that she could be terminated. She further stated that when she returned to the Blood Center after the blood drive on October 19, 1999, she was informed that she had been terminated.

| ¡¿Patricia Martin, Ms. Lee’s Immediate supervisor in October 1999, testified at trial that Ms. Lee did not show up on time at the Blood Center office the morning of the incident, so she and the other two Baton Rouge employees left in the van to go to the blood drive location. While they were en route, Ms. Lee called and was told to meet them at the site.

Ms. Martin testified that to her knowledge, Ms. Lee did not help in packing up after the blood drive. Ms. Martin did state, however, that she was doing paperwork while the equipment was being packed up. Ms. Lee was supposed to tell Ms. Martin when she left. Ms. Martin did not see Ms. Lee leave. She asked one Blood Center employee if she had seen Ms. Lee, and was told no. When Ms. Martin asked James Woods, an employee of the Blood Center, about Ms. Lee’s whereabouts, he told her that when he was moving his vehicle closer to the rear of the building to pack up the blood drive equipment, he saw Ms. Lee leave in her car. Ms. Martin testified that Ms. Lee never reported any injury to her. She also stated that when she went downstairs to look for Ms. Lee, Ms. Lee’s car was not in the parking lot.

Mr. Woods testified that he knew Ms. Lee from prior blood drives and that she did not help with the packing of the equipment to put it in the van or with the loading of the van. He stated that when he was moving his vehicle closer to the building after the drive, he saw Ms. Lee get in her car and leave. As she was getting in her car, Mr. Woods testified, she waved at him and he waved back. She then drove off.

Ramona Marchand, the human resource manager at Direct Corporation and coordinator of the blood drives, testified that when she walked out of her office to say goodbye to the blood drive employees, Ms. Lee was gone. However, Ms. Marchand also stated that when the employees were packing up to bring the equipment downstairs, the employees asked her | fiassistant to tell Ms. Lee that they were downstairs and that Ms. Lee appeared about five minutes later.

In her reasons for judgment, the workers’ compensation judge initially stated that she weighed the employee and employer testimony to be about equal and that she was looking for some independent testimony to tip the scale one way or the other. She also considered the possibility that Ms. Lee may have fabricated her story knowing that she was going to be terminated. The workers’ compensation judge then stated that it was not until she heard the testimony of Ms. Marchand, that Ms. Lee came back not long after the Blood Center employees left, that she found support for Ms. Lee’s version that she was in the bathroom upstairs. The workers’ compensation judge further found that the testimony of Ms. Marchand, an independent witness, corroborated the timing of Ms. Lee’s version of events. She also stated that the only 'other plausible possibility was that Ms. Lee left the premises and returned, but that the evidence did not support this scenario. The workers’ compensation judge further noted Mr. Woods’ testimony that he saw Ms. Lee leave, stating that while he was clear about that, he was unclear about everything else, and may have been mistaken.

Herein, there were two permissible views of the evidence and the workers’ compensation judge made the factual determination that Ms. Lee was in the bathroom when her co-employees left. We cannot say that this determination was not reasonable in light of the entire record. Therefore, the determination of the workers’ compensation judge that Ms. Lee suffered an accident in the elevator in the course and scope of her employment, is not manifestly erroneous.

^CONCLUSION

For the above reasons, the February 6, 2003 judgment of the Office of Workers’ Compensation is affirmed. Costs on appeal are assessed to the Blood Center of Southeast Louisiana, Inc. and Louisiana Workers’ Compensation Corporation.

AFFIRMED.


author: 1 .CARTER, C.J.

text:
    Amy PRICE v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, AVOYELLES CORRECTIONAL CENTER.
    No. 2003 CA 0979.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.

      Mark E. Falcon, Baton Rouge, for Appellant, Amy Price.
    Robert B. Barbor, O.C. Smith, III, Baton Rouge, for Appellee, Department of Public Safety and Corrections, Avoyelles Correctional Center.
    Robert R. Boland, Jr., Baton Rouge, for Allen H. Reynolds, Director, Department of State Civil Service.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   1 .CARTER, C.J.

This appeal challenges a decision of the Civil Service Commission (the Commission) that denied an employee’s requests for expungement of a disciplinary action from her personnel file and for attorney’s fees.

FACTS AND PROCEDURAL HISTORY

Amy Price is a permanent-status civil service employee with the Department of Public Safety and Corrections, who works at Avoyelles Correctional Center (ACC) as a registered nurse. By a letter dated December 16, 1998, Price was charged with verbally abusing an inmate, making false statements, and exercising poor nursing judgment. Price was further informed that her pay would be reduced for a specified period of time and that a copy of the letter would be placed in her personnel file.

Price appealed to the Commission. After a hearing, the Referee granted the appeal, reversed the reduction in pay, and ordered back pay with interest, but denied Price’s request for attorney’s fees. The Referee did not address Price’s request that her personnel file be expunged of all references to the disciplinary action. Price timely filed an application for review with the Commission, alleging the Referee erred in failing to grant expungement and in denying her request for attorney’s fees. Nearly one year later, the Commission summarily denied Price’s application for review. This appeal followed.

^ATTORNEY’S FEES

Civil Service Rule 18.35 grants the Referee and the Commission the discretionary power to award attorney’s fees to an appellant when an appellee’s action is modified or reversed. The appellant must show an abuse of this discretion for this court to grant relief. Johnson v. Southern University, 551 So.2d 1348, 1362 (La.App. 1 Cir.) (on rehearing), writ denied, 553 So.2d 475 (La.1989).

The Referee found that ACC did not produce evidence sufficient to prove the charges against Price by a preponderance of the evidence and reversed ACC’s disciplinary action. However, the Referee denied Price’s request for attorney’s fees, finding that ACC did have evidence to support the charges and did not act unreasonably in disciplining her.

The Referee’s findings of fact are not disputed. The disciplinary action arose from an incident in which Price denied an inmate a wheelchair based on her belief that the inmate’s limited duty status had expired. The Referee found that the doctor who evaluated the inmate prior to the “incident” had apparently forgotten to complete a duty status slip. The Referee rejected ACC’s assertion that Price should have personally reviewed the inmate’s record and doctor’s notes before making a decision regarding the wheelchair. The Referee concluded that Price made the correct decision based on ACC policy, the information she was given, and her personal observations. Thus, she did not exercise poor nursing judgment in denying the inmate the wheelchair.

|4The remaining grounds for discipline expressed by ACC concern Price’s alleged verbal abuse of the same inmate. The Referee outlined the evidence presented by ACC to establish that such abuse occurred, which consisted of statements by the inmate and two other nurses. In her analysis, the Referee found that the inmate’s account “cannot be accurate.” The Referee also rejected both nurses’ statements, noting that the statements of the inmate and the two nurses did not corroborate each other and further that ACC “did not produce a single witness to corroborate either [nurse’s] testimony.” The Referee then concluded that ACC “fell short of proving, by a preponderance of the evidence,” the charge of verbal abuse. The Referee then made a correlative finding that ACC did not prove that Price made a false statement when she denied the incident of verbal abuse.

Based on the Referee’s analysis, the evidence ACC presented in support of the charges included the statement of the inmate, the statement of two nurses, the false statement allegedly made by Price that she was not involved in an incident with the inmate, and evidence regarding the procedure Price followed when she denied the inmate the wheelchair. The Referee, however, discounted the statements of the inmate and nurses and found that Price followed ACC policy in denying the inmate the wheelchair. Considering this analysis and the Referee’s ultimate findings, which are unchallenged, we disagree with the Referee’s conclusion that ACC acted reasonably in taking disciplinary action. Accordingly, the Referee abused her discretion in denying Price’s request for attorney’s fees. For this reason, the Commission’s decision, with regard to attorney’s fees, is reversed.

| ¡¡EXPUNGEMENT

The Referee did not order that references to the disciplinary action be stricken from Price’s personnel file. We find this to be error. Permanent-status civil service employees may only be disciplined for cause expressed in writing. La. Const, art. X, § 8(A). The Referee determined that sufficient cause did not exist for disciplinary action. Allowing documentation concerning the disciplinary action to remain a part of Price’s personnel file effectively subjects her to disciplinary action without the required legal cause. This is particularly true of the December 16, 1998 letter detailing the allegations that the Referee found were not supported by a preponderance of the evidence. Accordingly, we amend the Commission’s decision to order that all documents concerning the disciplinary action at issue be removed from Price’s personnel file.

CONCLUSION

For the foregoing reasons, the decision of the State Civil Service Commission is amended to order the Department of Public Safety and Corrections, Avoyelles Correctional Center, to remove all documents concerning this disciplinary action from Price’s personnel file. The decision is reversed insofar as it denied Price’s request for attorney’s fees. This matter is remanded for a contradictory hearing to determine the amount of attorney’s fees owed to Price. Costs of this appeal in the amount of $117.00 are assessed to the Department of Public Safety and Corrections, Avoyelles Correctional Center.

AMENDED IN PART; REVERSED IN PART AND REMANDED.

GUIDRY, J., concurs in the result.

      . The record also refers to, but does not contain, a revised letter dated December 22, 1998.