author: |,MARION F. EDWARDS, Judge. hDALEY, J.,

text:
    Christopher ALOMBRO v. Darryl ALFORTISH.
    No. 02-CA-1082.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.
    Rehearing Denied June 9, 2003.

      Brenda Braud, John Braud, Independence, LA, and A. Bruce Netterville, Gret-na, LA, for Appellant.
    Daniel A. Ranson, Gretna, LA, for Ap-pellee.

      Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and MARION F. EDWARDS.
   |,MARION F. EDWARDS, Judge.

Plaintiff Christopher Alombro has appealed the denial of his Motion to Recuse Judge Grant and the sanctions imposed as a result of that motion. For the reasons that follow, we affirm.

The defendant, Darryl Alfortish, lived with Alombro’s mother, Sabrina Alombro, for approximately 13 years while Mr. Al-ombro was a minor. Mr. Alombro contends that during this time, funds were donated to him from Mr. Alfortish’s mother and were converted by Mr. Alfortish to his own personal use. Mr. Alombro filed suit against Mr. Alfortish seeking to recover these funds. This suit, number 578-003, was allotted to Judge Jo Ellen Grant. Christopher’s mother, Sabrina Alombro, filed a similar suit on behalf of her daughter born of her relationship with Darryl, Alexandra Alfortish. That suit, number 563-592, was allotted to Judge Cusimano. At the time these two actions on behalf of her children were filed, there were pending proceedings Uin Judge Grant’s division, filed by Ms. Alombro against Mr. Alfortish, for child support and custody. This suit was numbered 549-712.

Mr. Alfortish filed a Motion to Consolidate the two matters regarding donations made to Ms. Alombro’s minor children. As per the Local Rules of Court, the higher numbered suit was to be consolidated with the lower numbered suit, with both actions to be heard by Judge Cusimano. The Motion to Consolidate was set for hearing on April 25, 2002. On April 19, 2002, Mr. Alombro’s counsel, Brenda Braud, filed a Motion to Continue the hearing on the Motion to Consolidate. The “duty judge” signed this motion, allegedly because Judge Grant was not available. On April 23, 2002, Judge Grant rescinded the order granting the continuance. On April 24, 2002, Ms. Braud, filed a Motion to Recuse Judge Grant.

The Motion to Recuse alleged that Darryl Alfortish’s brother, Kenneth Alfortish, had a close personal relationship with Judge Grant’s husband, Jack Grant. The motion further alleged that the Darryl had developed a friendship with Jack Grant and that he had stated that “his family’s friendship with the Grant family will affect the outcome of litigation pending before this court in his favor.” An identical motion was filed in the child support matter. Following arguments on the Motion to Re-cuse, Judge Grant denied the motion. Pursuant to the Code of Civil Procedure, the motion was then reallotted to Judge McCabe. Following a hearing, Judge McCabe also denied the motion and additionally, imposed sanctions. Mr. Alombro has appealed Judge McCabe’s judgment denying the Motion to Recuse and the imposition of sanctions. Ms. Alombro also appealed the denial of the motion in her case. See Alombro v. Alfortish, 02-CA-1082, a companion case to this one.

We have previously summarized the testimony adduced at the hearing. At the conclusion of that hearing, Judge McCabe stated that he found no basis |4for the recusal and that there was no showing that there was any influence with Judge Grant. A judgment was signed denying the Motion to Recuse and allowing Mr. Alfortish to recover all costs and attorney’s fees incurred as a result of the filing of the motion. Counsel for Mr. Alfortish was ordered to present counsel for the Alomb-ros with an affidavit certifying the amount of attorney’s fees and costs incurred.

Another hearing was held to allow the Alombros and their mutual attorney to traverse the affidavit. At the conclusion of this hearing, Judge McCabe awarded attorney’s fees and costs in the amount of $1,940.90. Mr. Alombro has appealed both of these judgments.

On appeal, Mr. Alombro contends that he was denied due process when Judge Jo Ellen Grant failed to conduct a hearing, failed to sign an order voluntarily recusing herself and failed to sign an order directing the Motion to Recuse to be randomly allotted to another division.

A review of the record indicates this Assignment of Error is without merit. At the hearing before Judge Grant on April 25, 2002, the court instructed counsel to “state your names and representations for the record, please.” Ms. Braud, counsel for Mr. Alombro, responded: “Brenda Braud, your honor, in both cases representing both plaintiffs.” Obviously, Mr. Alombro’s counsel was not only aware that the two motions were being heard together, she agreed to it. There is no indication in the record that either Mr. Alombro or his attorney made any objection to having the two recusal motions heard together. When there is no objection in the trial court, the complaining party is deemed to have waived his right to object to the alleged impropriety on appeal. The reason for this rule is that in the absence of an objection, the [fitrial court is not given an opportunity to prevent or correct the alleged error. Thus, it patently clear both that Mr. Alombro’s counsel agreed to the two motions being heard together, and that he has waived his right to object to the two motions being heard together.

Next, Mr. Alombro contends he was denied due process when Judge Patrick McCabe entered judgments against him without first affording him the benefit of a hearing. As we found hereinabove, the record supports the conclusion that Ms. Braud represented both of the Alombros and agreed to the joint hearing of the recusal motions. This assignment of error is without merit.

Mr. Alombro argues that the trial court’s finding that his Motion to Recuse was in violation of C.C.P. art. 863 is manifestly erroneous and clearly wrong.

Article 863 states in pertinent part:

B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.

| (/The litigants and their counsel who sign a pleading have an obligation imposed by article 863 to make an objectively reasonable inquiry into the facts and the law upon which their pleading is based; subjective good faith will not satisfy the duty of reasonable inquiry. A violation of any one of the duties imposed in the article fatally infects the entire certification.

To decide whether sanctions are appropriate, a court must consider these factors in determining whether a litigant and his counsel made the required reasonable factual inquiry:
1. Time available to the signor or investigation;
2. Extent of the attorney’s reliance on the client for factual support for pleadings;
3. Feasibility of prefiling investigation;
4. Whether the signing attorney accepted the case from another attorney;
5. Complexity of factual and legal issues;
6. The extent to which development of factual circumstances underline the claim required discovery.

The determination of whether to impose sanctions will not be reversed on appeal unless it is manifestly erroneous or clearly wrong.

We summarized the testimony at the recusal hearing in the companion case of Alombro v. Alfortish as follows:

At the hearing before Judge McCabe, to whom the recusal matters were re-allotted, Alombro testified that when she informed Alfortish in February that she would seek a change in custody and child support, Alfortish replied that his brother was “good friends” with Mr. Grant, and “it would be taken care of.” Christopher and Alfortish’s secretary, Maria Benoit, told her Alfortish had said the same thing to them. Alombro felt that certain rulings by Judge Grant were unfair, and that Alfortish had several times urged his counsel to mention Kenneth Alfortish. In the past, Alomb-ro had met members of the Grant family in the Alfortish home or in public. Al-ombro claimed there was videotape depicting the Alfortish and Grant families growing up together, but she did not have a copy of this tape. On cross-examination, Alombro | testified that she had no personal information that Alfortish had ever been to Mr. Grant’s home, although she had been in the home of Kenneth Alfortish with Grant family members. She stated that she decided to ask her attorney to recuse Judge Grant a couple of weeks before the support hearing.
Mr. Grant testified that he had never met Darryl Alfortish prior to the date of the hearing. He met Kenneth Alfortish on one occasion since moving to Kenner in 1979. Mr. Grant was not a Mend of Alfortish, and they had never spent time with each other. No one contacted him in connection with the proceedings prior to being called in the recusal matter. Mr. Grant’s son and the son of Kenneth Alfortish had been friends, Mr. Grant’s former wife was a friend of Kenneth’s wife.
Darryl Alfortish testified that he did not tell anyone that his brother had influence with Judge Grant, and that Kenneth did not know Mr. Grant.
Christopher Alombro testified that approximately one year prior to the recu-sal hearing, Alfortish stated that he “had connections with the Grants” and that “everything is going to be taken care of.”
Maria Benoit, formerly a secretary at Alfortish’s Westside Fence Company, testified that Kenneth Alfortish told her he would talk to Mr. Grant about Darryl’s case, “and he’ll have his wife, who is a judge, take care of it.” Darryl told her on numerous occasions that he would get matters “taken care of’, naming Judge Grant in particular. She informed Alombro of this a few months prior to the recusal hearing. Ms. Benoit admitted on cross-examination that she was fired and that criminal charges were pending against her.
Yvonne Benavides, a cousin of Alfortish, testified that she never told Alomb-ro of any statements made by Alfortish relative to Judge Grant, and never heard him make any such remarks. Bena-vides’ daughter, Lisa Ebright, testified that several months before the hearing, Mr. Alfortish told her that Kenneth and Mr. Grant went to a country club together, “and that’s when he told me about Judge Grant, that it was a piece of cake.” At the time of the hearing, Ms. Ebright was in parish prison, and testified that Alombro’s counsel had recently offered her a home when she was released.
A transcript of the recusal motion heard by Judge Grant was admitted into evidence without objection. In that transcript, Judge Grant stated that she did not know Mr. Alfortish, and that she has never spent time with him. The parties also stipulated that if Kenneth Alfortish were to be called, he would testify that he had no conversation with Ms. Benoit about the case.
In evaluating that testimony, we stated:
Applying the appropriate factors to the present matter, and viewing the testimony in its most favorable light, it is clear that Alombro knew for years of the (vague) relationship between the Grant and Alfortish families. The statements attributed to Alfortish had been made to, or revealed to Alombro, weeks, and sometimes months, before she filed her motion on the eve of the support hearing. There was no explanation from either Alombro or her attorney as to the timing of the Motion. Further, the trial judge correctly noted |sthat inquiry could reasonably and easily have been made prior to filing the recusal. Even a superficial investigation would have revealed the dim and distant acquaintanceship between the Judge, her husband, and Alfortish’s brother.
The tenuous and feeble nature of the allegations is difficult to ignore. Beyond the claims of influence, the Motion to Recuse outlined certain actions taken by Alombro’s counsel and by the district court. The fact that Judge Grant rescinded an order for a continuance, which Alombro’s counsel had signed by another division, was within her discretion, inasmuch as opposing counsel had not agreed to any continuance, and there was ample time for Alombro to present the motion to the proper court. Alomb-ro also referred vaguely to certain rulings that prevented her from taking depositions and completing discovery. To the extent that Alombro’s counsel relied on the unsupported statements of her client, such reliance does not relieve her counsel of the duty to make reasonable inquiry into the facts, and do not give rise to a “reasonable belief’ that Judge Grant was unduly influence by a relative of Mr. Alfortish. Finally, we note that Ms. Braud was attorney of record for at least one year prior to filing this motion, ample time in which to acquaint herself with the behavior and relationships of these parties.

These same factors apply equally in the present case. Mr. Alombro himself testified that approximately one year prior to the recusal hearing, Alfortish stated that he “had connections with the Grants” and that “everything is going to be taken care of.” Under the circumstances of this case, we find no error in the imposition of sanctions under C.C.P. art. 863.

For the reasons declared in that companion case, we hold that the facts of the case show that both Mr. Alombro and his attorney had the requisite notice of hearing under C.C.P. 863(E), and that the attorney fees awarded were not unreasonable under the circumstances.

Alfortish has filed an Answer to this appeal, requesting additional attorney fees for a frivolous appeal. Rule 2-19 of the Uniform Rules — Courts of Appeal provides, “The court may award damages for frivolous appeal in civil cases as provided by law.” Damages for a frivolous appeal are awarded pursuant to La.Code Civ.P. art. 2164, which states:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax |athe costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

An appeal is not automatically deemed frivolous simply because it lacks merit. La. C.C.P. art 2164, is penal in nature and must be strictly construed. It provides that an appellate court may award damages for frivolous appeal when there is no serious legal question, when the appeal is taken solely for the purpose of delay, or when it is evident that appellant’s counsel does not seriously believe in the position he advocates.

We do not find that the present matter meets the requirements of a frivolous appeal, and therefore we decline to award additional attorney fees.

For the foregoing reasons, the judgments are affirmed. Mr. Alombro is assessed all costs of appeal.

AFFIRMED.

DALEY, J., dissents with reasons,

hDALEY, J.,

dissenting with reasons.

I respectfully dissent from the trial court’s affirmance of the award of sanctions in this case.

Plaintiff argues that the trial court’s finding that his Motion to Recuse was in violation of C.C.P. art. 863 is manifestly erroneous and clearly wrong.

Article 863 states in pertinent part:

B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

The litigants and their counsel who sign a pleading have an obligation imposed by article 863 to make an objectively reasonable inquiry into the facts and the law upon which their pleading is based. Goldback v. Atchley, 01-616 (La.App. 5th Cir.11/27/01), 801 So.2d 1217.

The majority affirms the award of sanctions and states in pertinent part:

To the extent that Alombro’s counsel relied on the unsupported statement of her client, such reliance does not relieve her counsel the duty to make reasonable inquiry into the facts, and | ado not give rise to a “reasonable belief’ that Judge Grant was unduly influenced by a relative of Mr. Alfortish.

The transcript of the recusal hearing reveals that plaintiffs’ counsel did more than rely on the unsupported statements of her clients.

Plaintiffs attorney was told by her client that Darryl Alfortish stated that he had undue influence with Judge Grant. The record at the recusal hearing in this matter clearly establishes that not only Christopher Alombro, but also his mother, Sabrina Alombro, Maria Benoit, who worked with Darryl Alfortish, and Lisa Ebright, a cousin of Mr. Alfortish, all testified under oath that either the defendant in this matter, Darryl Alfortish, or his brother, Kenneth Alfortish, made public statements that they were able to affect the outcome of this litigation due to a relationship with the trial judge’s family. The trial judge after hearing this testimony did not find that Alfortist did not make assertions of undue influence.

The legal bases for bring a Motion to Recuse are set in Code of Civil Procedure article 151 it provides in pertinent part:

B. A judge of any court, trial or appellate, may be recused when he:
(5) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys to such an extent that he would be unable to conduct fair and impartial proceedings.

The article clearly states that a judge may be recused if the judge is biased towards or against one party.

While I agree with Judge McCabe’s finding that the recusal of Judge Grant was not warranted in this case because there was no proof of actual improper influence, I disagree with the majority’s finding that sanctions are appropriate. The imposition of sanctions in this case when non-parties testify under oath that a party to the proceeding has boasted of inappropriate | ¡¡influence creates a chilling affect on any allegation of impropriety and is unwarranted. The Motion to Recuse was grounded in fact and law. At the hearing evidence was presented that Darryl Alfortish stated that the litigation would be resolved in his favor because of his brother’s relationship with Judge Grant’s husband. This evidence addressed the issue of bias, which is a grounds for recusal.

For these reasons I respectfully dissent and would reverse the award of sanctions in this ease.

      . Bordelon v. Drake, 578 So.2d 1174, (La.App. 5 Cir.1991).

      . Id.

      . Goldback v. Atchley, 01-616 (La.App. 5th Cir. 11/27/01), 801 So.2d 1217.

      . Connelly v. Lee 96-1213 (La.App. 1 Cir. 5/9/97), 699 So.2d 411, writ denied 97-2825 (La.1/30/98) 709 So.2d 710.

      . Goldbach, supra, citing Armond v. Fowler, 96-398 (La.App. 5 Cir. 11/26/96), 694 So.2d 358, 361.

      . Goldbach, supra.

      . LePrettre v. Progressive Land Corp. 2001-1660 (La.App. 3 Cir.6/19/2002), 820 So.2d 1240.

      . Johnson v. Drury 01-833 (La.App. 5 Cir. 12/12/01), 806 So.2d 694


source: Caselaw Access Project

author: I,SOL GOTHARD, Judge.

license: Public Domain

text:
    Anthony SUMTER and Brenda Sumter, on their Own Behalf and on Behalf of their Minor Daughter, Tranae Sumter v. WEST JEFFERSON MEDICAL CENTER.
    No. 02-CA-1103.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Joseph W. Thomas, New Orleans, LA, for Plaintiffs/Appellants.
    Jacqueline G. Griffith, Charles Owen Taylor, Lydia Habliston Toso, Griffith, Battard and Taylor, New Orleans, LA, for Defendant/Appellee, Louisiana Patient’s Compensation Fund.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and MARION F. EDWARDS.
   I,SOL GOTHARD, Judge.

Plaintiffs, Anthony Sumter and Brenda Sumter, individually and on behalf of their deceased minor, Tranae Sumter, appeal from a decision of the trial court in favor of defendant, Louisiana Patient’s Compensation Fund, dismissing their suit for medical malpractice. For the reasons that follow, we affirm the decision of the trial court.

Plaintiffs instituted these proceeding by filing a petition against West Jefferson General Hospital with the Louisiana Patient’s Compensation Fund. A medical review panel was convened, and the review panel found no merit to plaintiffs claims. Thereafter, plaintiffs filed the instant suit. After settlement with West Jefferson General Hospital, plaintiffs proceeded against the Louisiana Patient’s Compensation Fund. By agreement of the parties, the issues of liability and damages were bifurcated for trial. After trial on the issue of liability, the court found for defendants and dismissed plaintiffs’ case. This appeal followed.

Tranae Sumter was born on February 25, 1996, shortly after midnight. Her birth was uneventful. She was healthy, with APGAR scores of 9 immediately after birth and five minutes after birth. She was placed in the healthy newborn nursery, |swhere she received routine care. Pursuant to hospital policy, she was placed on her stomach for sleep. The first 28 hours of life passed uneventfully. At 4:00 a.m. on February 26, 1996, it was noted that the child was sleeping quietly, with a “relaxed and easy” breathing. At 4:40 a.m., the child was found to be dusky and not breathing. She was resuscitated, however; she was left with brain damage and cerebral palsy. This was termed an “Acute Life Threatening Event” (ALTE). The child died on October 31,1997.

There was no identified cause for the ALTE. Both the mother and the infant at birth had a fever, and therefore antibiotics were administered to treat possible infection. Cultures performed on the infant were negative. The autopsy performed on the child did not reveal the cause of the ALTE one year and eight months previous.

In their petition, plaintiffs allege that West Jefferson Hospital’s policy of positioning neonates prone while in the nursery was a violation of the applicable standard of care and the cause of the injuries suffered by the child. After trial, the court found that plaintiffs had failed to prove their ease by a preponderance of the evidence. In his judgment, the trial judge stated that:

Plaintiffs failed to prove that West Jefferson Medical Center’s policy of placing neonates on their stomach in February of 1996 was below the applicable standard of care. Additionally, the evidence adduced at' trial failed to establish that the placing of the baby on her stomach caused the acute life threatening event.

Plaintiffs in a medical malpractice suit against a hospital have the burden of showing that the hospital personnel negligently departed from the recognized standard of care afforded by hospitals in the area for the particular malady involved. Dean v. Ochsner Medical Foundation Hosp. and Clinic, 99-466 (La.App. 5 Cir. 11/10/99), 749 So.2d 36. A plaintiff must show a standard of care, a breach of that standard, an injury and a causal relationship between the injury and the breach of that duty. Boutte v. Jefferson Parish Hosp. Service Dist. No. 1, 01—918 (La.App. 5 Cir. 1/15/02), 807 So.2d 895, writ denied 2002-0498, (La.4/19/02), 813 So.2d 1093.

The appellate court may not set aside the factual findings made by the trier of fact in the absence of manifest error. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216. The manifest error rule applies in appeals of medical malpractice actions. Rebstock v. Hospital Service Dist. No. 1, 01-659 (La.App. 5th Cir.11/27/01), 800 So.2d 435, writ denied 2002-0077 (La.3/15/02), 811 So.2d 914. Causation in medical malpractice cases is subject to the manifest error standard of review. Rebstock, supra.

The testimony at trial established the following. In the late 1980’s, the medical community began to investigate the possibility that there was a link between Sudden Infant Death Syndrome (SIDS) and placing an infant in a prone position for sleeping. In 1991, a task force was empaneled to investigate. In 1992, the American Association of Pediatrics published the results of the task force, which recommended placing the infant in a supine or side position. In 1994, the “Back to Sleep” campaign began. This campaign led to a major decrease in SIDS rate. Although the study focused on the age range of two to six months, which are the “high risk” ages, the campaign recommended that hospitals place the neonates on their stomachs. (A neonate is an infant from birth to thirty days. A newborn is after thirty days.) The purpose of the recommendation was to train the mother and child prior to the two to four month range where SIDS is most prevalent.

The plaintiff asserted that the positioning of the neonate in this case caused her to suffer the ALTE: At trial the plaintiffs presented the testimony of Dr. David Go-zal, an expert in pediatrics and pediatric pulmonology. He opined that the likelihood of the infant suffering this event was increased ten-fold because of her placement in the prone position, and that it was a greater than fifty-percent chance |Rthat the event would have been avoided had she been placed in the supine position. He stated that the standard of care in 1996 was to place neonates on their backs, and that seventy-six percent of the hospitals in the country were placing infants in a supine position. At that time, the American Journal of Pediatrics recommended that an infant be placed in a supine position; however, the Journal does state that it does not set the standard of care.

Dr. Gozal acknowledged that the child at issue suffered an ALTE, and not SIDS. On cross-examination, he admitted that the neonate statistics had not been studied, and that there was no scientific evidence to support his opinion that there was a relationship between positioning a neonate and the rate of SIDS. He further admitted he could not make a scientific statement linking positioning and ALTE.

Defendant presented the testimony of Dr. John Kattwinkel, certified in pediatrics and neonatal and perinatal medicine, and an expert in SIDS. In 1991, he was appointed chairman of the SIDS taskforce. He stated that the taskforce was put together to evaluate claims made by foreign countries concerning sleep positions and SIDS. These studies were conducted on the two to six month age range. In 1992, they recommended that infants be placed in a supine position. At that time, 70-80% were placed being placed on their stomachs. The consensus was that the best way to educate new mothers was on first contact, or in the nursery, and so the child would get used to the position, and therefore, the campaign included hospital nurseries with the hopes that the mother would continue at home. The campaign met with strong opposition, much of which was documented. In 1998, one fifth of all infants were still being placed on their stomachs.

Dr. Kattwinkel stated that he knew of no studies linking ALTE with positioning.

Dr. Kattwinkel testified that, in his opinion, there was no relationship between the life-threatening event and the positioning of the baby. He stated that it |fiwas not a violation of the standard of care for a hospital to place an infant in a prone position in early 1996.

Dr. Judy Riley, pediatrician, was on the medical review panel that considered plaintiffs’ claim. The panel found that the nursing care was appropriate and that there was no uniform standard of care concerning infant positioning in the United States in February of 1996. Thus the panel concluded that the hóspital did not deviate from the standard of care. Dr. Harley Ginsberg, neonatologist, who also was on medical review panel, stated at trial that he was still of the opinion that the hospital did not deviate from the standard of care.

After a review of the record as a whole, we cannot say that the trial court erred in finding that plaintiffs failed to prove that the actions of the hospital caused the infant to suffer the Acute Life Threatening Event, and that the hospital did not deviate from the standard of care in 1996 by placing the newborn in a prone position.

Plaintiffs contend that the doctrine of res ipsa loquitur should be applied to this case. The doctrine of res ipsa loquitur applies when: (1) the accident would not normally occur in the absence of negligence, (2) there is an absence of direct evidence to explain the activities leading to the injury, and (3) the accident or injury was caused by an agency on instrumentality within the actual or constructive control of the defendant. “Res ipsa loqui-tur applies when ‘circumstances suggest the defendant’s negligence as the most plausible explanation for the injury.’ ” Thus, plaintiffs must show that the injury would not normally occur in the absence of negligence. Dean v. Ochsner Medical Foundation Hosp. And Clinic, supra at 39-40.

Here, Dr. Kattwinkel testified that there were many reasons, some still unidentified, which could cause an infant to suffer either a SIDS or an ALTE. Furthermore, Dr. Kattwinkel stated that a possible explanation, in addition to |7others, for the ALTE could be an infection, as both the mother and the neonate had a fever. The doctrine of res ipsa loquitur is inapplicable here.

For the above-discussed reasons, the judgment of the trial court is affirmed. All costs are assessed against appellants.

AFFIRMED.


author: | aMARION F. EDWARDS, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES, Shelly Burkett v. Craig BURKETT.
    No. 02-CA-1128.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Paul D. Connick, Jr. District Attorney, Mark J. Mansfield Assistant District Attorney, Gretna, Louisiana, for Appellee.
    Craig M. Burkett, Metairie, LA, In Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | aMARION F. EDWARDS, Judge.

Appellant/ defendant Craig Burkett appeals a judgment of the juvenile court dated May 6, 2002, increasing the amount of child support to $706.00 per month, plus 5% of court costs for a total of $741.30, effective May 1 2002. In the judgment, the court further determined that Mr. Burkett was not entitled to claim the children as a tax deduction for 2001 because he was in arrears for a period of time during that year. For the following reasons, we affirm in part and reverse in part.

The matter initially arose as part of divorce proceedings between Shelley Burkett and Mr. Burkett in the 24th Judicial District Court. The couple had two minor sons. On May 16, 2001, the district court granted an interim judgment of support, effective July 1, 2001, ordering Mr. Burkett to pay child support in the amount of $561.00, plus alimony of $300.00, for a total of $861.00 per month, plus 5% court costs. An Income Assignment Order was signed by the district court authorizing Mr. Burkett’s employer, the Jefferson Parish Fire Department, to 13withhold support payments due. Because Mrs. Burkett was receiving the assistance of the Department of Social Services, the child support matter was transferred for subsequent modification to the juvenile court in accordance with La. R.S. 46:236.2.

In the juvenile court, the state filed a Motion to Modify Support, alleging that the judgment of support should be increased, and that Mr. Burkett should be required to obtain health insurance on behalf of the children. Subsequently, the state also filed a Rule for Contempt against Mr. Burkett for non-payment of support. On September 19, 2001, the child support obligation was recalculated by the hearing officer, and set at $569.46 per month, plus court costs, effective October 1, 2001, which recommendation was made the judgment of the court. The hearing officer later found Mr. Burkett to be in contempt and in arrearage in the amount of $1122.00. The juvenile court heard the matter, and agreeing that Mr. Burkett was in contempt for that arrearage, sentenced him to 10 days in parish prison and recommended suspension of his driver’s license. The sentence was suspended conditioned on the timely payment of ongoing support, which was determined to be $569.46, plus 5% costs, plus an additional $100.00 as payment for past due amounts. The past due support was made executory, and Mr. Burkett was required to provide 100% of child support since Mrs. Burkett was unemployed. Mr. Burkett was allowed the applicable income tax deduction, and was further ordered to obtain medical insurance.

The state moved for re-hearing on the issue of the tax deduction. In November 2001, another hearing was held on the issues of support, arrearages, and medical insurance. The parties settled the insurance matter, and Mr. Burkett paid the arrearage in full. Mr. Burkett later filed a Rule to Reduce Support, urging that the court included overtime pay in the base support, which he uses to support another family. The hearing officer denied the rule, and subsequently, the state |4moved for an increase, alleging that Mr. Burkett had an increase in income, and that the children were not covered by medical insurance.

A hearing on those issues was set for February 21, 2002. Mr. Burkett did not appear before the hearing officer, and as a result, an attachment issued, which was later recalled as Mr. Burkett had not been properly served with notice of the rule. The hearing officer recommended that the tax deduction be granted to Mrs. Burkett, and the rule to increase was reset. Mr. Burkett filed another rule for a decrease.

In April, the hearing officer computed the support obligation according to the child support guidelines and set the amount at $706.00 per month plus 5% court costs. Mr. Burkett was granted the dependency tax deduction for the year 2001. Both parties disagreed and the juvenile court judge heard the matter. Following a hearing in the juvenile court, the judge affirmed the support order in the amount of $706.00 plus costs. However, the court found that under La.-R.S. 9:315.18C, Mr. Burkett was not entitled to claim the tax deduction for 2001 because he was in arrears for a period of time during that year. It is from this judgment that Mr. Burkett appeals.

Mr. Burkett urges that the trial court erred in finding that he was in arrears at any time during the year 2001; that the trial court erred in computing his income; and that the court erred in granting Mrs. Burkett the tax deduction.

To the extent that Mr. Burkett attempts to appeal the judgments relative to the arrearages, the amount thereof, and contempt of court, these matters were not timely appealed and are not before us. Mr. Burkett further urges that the court erred in hearing the matter of the deductions because he was not properly served, and thus his due process rights were violated. Mr. Burkett appears to argue that because he was not properly served with notice of the February hearing, the matter was not before the juvenile court judge in April. However, in his rule to reduce, Iswhich Mr. Burkett requested be set on the same day as the rule to increase, he himself added into the motion: “... Also to claim children as dependents on 2001 tax returns.” Because Mr. Burkett brought the tax issue before the court, there is no basis for a claim of improper service.

La. R.S. 9:315.18 reads in pertinent part:

A. The amounts set forth in the schedule in > R.S. 9:315.19 presume that the custodial or domiciliary party has the right to claim the federal and state tax dependency deductions and any earned income credit. However, the claiming of dependents for federal and state income tax purposes shall be as provided in Subsection B of this Section.
B. (1) The non-domiciliary party whose child support obligation is equal to or greater than fifty percent and equal to or less than seventy percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions if, after a contradictory motion, the judge finds both of the following:
(a) No arrearages are owed by the obligor.
(b) The right to claim the dependency deductions or, in the case of multiple children, a part thereof, would substantially benefit the non-domiciliary party without significantly harming the domiciliary party.
C. The non-domiciliary party whose child support obligation exceeds seventy percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions every year if no arrearages are owed by the obligor.

At the hearing, the state explained that once it was determined that Mr. Burkett had not been properly served in the February 21st hearing, the hearing officer’s order, granting Mrs. Burkett the tax deduction, was rescinded, but not before Mrs. Burkett had already taken the deduction. Mrs. Burkett testified that she is a full time student at the University of New Orleans, and in order for her to get grants toward her tuition she had to have the tax deductions. Without the deductions, she would not be eligible for the grant to enable her to continue in school.

In its Reasons for Judgment, the trial court found that Mr. Burkett had been in arrears during 2001, although he was no longer delinquent by the end of that 1 ¿year. The court determined that “The wording of the statute indicates that the dependency deduction privilege is one which a non-domiciliary party is entitled to only if he consistently remains current with his support payments. The statute does not specify at what point in a given year arrearag-es are calculated.” Having ascertained that Mr. Burkett had been in arrears, the court found he was not entitled to claim the tax deduction.

As we read the statute, the non-domiciliary parent who pays in excess of 70% of the child support obligation is entitled to the tax benefit if there is no question of arrearage, and such privilege is not discretionary with the trial court. Where there is an issue of arrearage however, that entitlement is called into question. Clearly, if the arrearage exists at the time of any such hearing, the court is empowered to change the party receiving the tax benefit. If, as in the present case, the arrearage does not exist on the date of the hearing, we deem the determination of the right to that tax deduction to be a matter of the trial court’s discretion, based on the facts and circumstances of the case. Here, the record shows that Mr. Burkett was in arrears for several months during 2001, and did not become current until nearly the end of the year, in November 2001. Mrs. Burkett, in apparent good faith, took the deduction after it was erroneously granted by the hearing officer, in order to ensure her education grant. Under these circumstances, we cannot say the trial court abused its discretion in permitting Mrs. Burkett to take the deduction for 2001.

We pretermit the remainder of Mr. Burkett’s arguments upon the following finding. La. R.S. 9:311 states the following:

A. An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.
|7C. For purposes of this Section, in cases where the Department of Social Services is providing support enforcement services:
(1) A material change in circumstance exists when a strict application of the child support guidelines, Part I-A of this Chapter, would result in at least a twenty-five percent change in the existing child support award. A material change in circumstance does not exist under this Paragraph if the amount of the award was the result of the court’s deviating from the guidelines pursuant to R.S. 9:315.1 and there has not been a material change in the circumstances which warranted the deviation.
(2) Upon request of either party or on its own initiative and if the best interest of the child so requires, the department shall provide for judicial review and, if appropriate, the court may adjust the amount of the existing child support award every three years if the existing award differs from the amount which would otherwise be awarded under the application of the child support guidelines. The review provided hereby does not require a showing of a material change in circumstance nor preclude a party from seeking a reduction or increase under the other provisions of this Section.

The previous award in October 2001 was for $569.46, plus court costs, for a total of $597.93 per month. The state’s rule to increase, which resulted in the present judgment on appeal, cited an increase in Mr. Burkett’s income as a result of a decrease in his insurance premiums. As we calculate the figures, in order to constitute a material change in circumstances under R.S. 9:311, the increase would have to be at least $142.36, for a total of $711.82, plus costs. An application of the guidelines, which resulted in an award of $706.00 plus costs, does not meet the statutory requirements of a material change of circumstances.

A party seeking modification of a child support award bears the burden of proving that a change in circumstances has occurred. Once the moving party proves a change in circumstances, a presumption exists that the support obligation must be modified. The burden then shifts to the other party to disprove the change or otherwise overcome the presumption. As clarified by the supreme court in Stogner v. Stogner, 98-3044 (La.7/7/99), 739 So.2d 762, 769-70, the party seeking modification need not prove a substantial change in circumstances, but only a change sufficient to justify an increase or decrease in child support. What constitutes such a change in circumstances is determined on a case-by-case basis and depends on the particular facts adduced. However, when the Department is providing support enforcement services, a change in circumstances exists only when a strict application of the | ¡¡Guidelines would result in at least a twenty-five percent change in the existing child support award. See LSA-R.S. 9:311(C)(1).

The well-settled rule of law is that an appellate court cannot reverse a trial court’s findings of fact in the absence of manifest error or unless they are clearly wrong. On appeal, the appellate court must review the record in its entirety to determine whether the trial court’s findings were clearly wrong or manifestly erroneous and whether the trial court’s conclusions were reasonable.

Utilizing the worksheet in the record, a strict application of the guidelines evidences that Mr. Burkett’s obligation is $706.00, as determined by the hearing officer and affirmed by the trial court. Because this amount is less than a twenty-five percent increase or change from the existing award, the state did not prove the requisite material change of circumstances. As a result the trial court was clearly wrong in granting the increase.

For the foregoing reasons, that portion of the judgment increasing Mr. Burkett’s support obligation to $706.00 per month is reversed. In all other respects, the judgment on appeal is affirmed. Mr. Burkett is assessed one-half of the costs of this appeal.

AFFIRMED IN PART; REVERSED IN PART.

      . See e.g., Satterfield v. Alline 2000-2069 (La.App. 4 Cir. 12/12/01), 805 So.2d 309.

      . State, Dept. of Social Services Support Enforcement Services ex rel. A.M. v. Taylor, 2000-2048 (La.App. 1 Cir. 2/15/02), 807 So.2d 1156, some citations omitted.

      . Nyquist v. Jefferson Parish Sheriff’s Office 01-1378 (La.App. 5 Cir. 5/15/02), 821 So.2d 39, writ not considered 2002-1686 (La.10/4/02) 826 So.2d 1112.


author: I,MARION F. EDWARDS, Judge.

text:
    Dr. Jeffrey LEVINE & Richard and Sandra Carrara v. FIRST NATIONAL BANK OF COMMERCE.
    No. 02-CA-1114.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Perry R. Staub, Jr., James R. Morton, Michael W. Hill, New Orleans, LA, for Appellant, Jeffrey S. Levine, M.D.
    Steve Lemoine, New Orleans, LA, for Appellant, Richard and Sandra Carrara.
    Alan D. Ezkovich, Lisa A. Valley, New Orleans, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD and MARION F. EDWARDS.
   I,MARION F. EDWARDS, Judge.

Appellants Richard and Sandra Carrara appeal a judgment of the district court sustaining their exception of no right of action and dismissing their claims with prejudice. We affirm.

This court in an earlier suit, in which we affirmed the trial court’s grant of the injunction, summarized the underlying facts.

On May 22, 1998, ... Jeffrey S. Levine, M.D. (hereafter Levine), filed a petition for damages and injunctive relief against defendant/appellant, First National Bank of Commerce (hereafter FNBC), in the Twenty-Fourth Judicial District Court for the Parish of Jefferson, State of Louisiana. It was assigned case number 524-707, Division “I.” Approximately one month earlier, FNBC filed a petition for executory process against Levine in the Twenty-Fourth Judicial District Court, which was assigned case number 523-052, Division “L.”
In the earlier suit, FNBC, which holds the mortgage on a home owned by Levine in Jefferson Parish, sought to have the sheriff seize and sell the home, alleging that Levine breached the terms of the mortgage agreement by selling or transferring an interest in the secured property under a “bond for deed” contract. The Levine suit sought to enjoin the sheriffs sale of the home owned by Levine. The two matters were consolidated and proceeded to a hearing on July 13, 1998, regarding FNBC’s 1 ¡¡exception of no cause of action and Levine’s motion for preliminary injunction.
At the July 13, 1998 hearing, counsel for both parties stipulated that no facts were in dispute, and submitted the matter to the court based on the original mortgage between Levine and FNBC, the bond for deed contract between Levine and a third party (Sandra and Richard Carrara), the verified petition, and the arguments of counsel. During the hearing, the trial court orally ruled in favor of Levine. The trial court rendered a written judgment on July 17, 1998, denying FNBC’s exception of no cause of action and ordering that a preliminary injunction issue, enjoining the sheriff from proceeding with the sale of the Levine property. FNBC timely appealed.
The following pertinent facts are gleaned from the documents submitted and the arguments of counsel at the July 13, 1998 hearing, and are not in dispute. Levine purchased the property at 2412 Avenue Mont Martre in Gretna, Louisiana, and executed a mortgage in favor of FNBC on July 31, 1996. Sometime in 1997, Levine decided to move to North Carolina. On August 1, 1997, Levine and the Carraras executed a “bond for deed,” wherein Levine agreed to sell the property at 2412 Avenue Mont Martre to the Carraras “in the future; provided all of the terms, conditions, payments and obligations set forth herein are fully, completely and timely met by purchaser.”
Within the bond for deed contract, an escrow agent was named and an escrow account was thereafter set up. The Carraras began making payments pursuant to the bond for deed contract to the escrow agent, which in turn, paid Levine’s mortgage notes to FNBC’s mortgage servicing company, Colonial Mortgage. Neither Colonial nor FNBC was notified of the bond for deed contract, and after a few months of accepting the escrow agent’s payments on the Levine mortgage, Colonial objected to the bond for deed arrangement and refused to accept the Levine mortgage payments. FNBC thereafter instituted foreclosure proceedings on the property, asserting that the bond for deed contract violated a provision in the mortgage agreement known as the “due on sale clause.”

We held that the bond for deed contract did not violate the provisions of the FNBC mortgage and did not provide a basis for FNBC to institute foreclosure proceedings. This writer dissented.

Subsequently, Bank One became the successor in interest to FNBC. After the above appeal, Dr. Levine and the Carraras filed a Supplemental and Amending Petition for damages. There, the Carraras averred that as a result of the negligent or intentionally tortious conduct of FNBC in initiating foreclosure proceedings, they suffered damages. They were obliged to hire an attorney, and having been told they would need to relocate, expended $1800 in lease fees. They also alleged Ldamages in the form of mental and physical anguish. A second Supplemental and Amending Petition alleged a cause of action under the Louisiana Unfair Trade Practice and Consumer Protection Act.

Bank One filed an Exception of No Cause of Action, and alternatively for summary judgment, to the second amending petition. The exception was overruled and summary judgment was denied. This court denied writs taken by Bank One.

Bank One then filed its Exception of No Right of Action. Following a hearing, the trial court granted the exception and dismissed the Carraras’ cause of action, with prejudice. It is from this judgment that the Carraras appeal.

They argue that the court erred in holding that they could not state a cause of action against FNBC, that such ruling “distorts the logic underlying Article 2315 of the Louisiana Civil Code, ignores the plain and unambiguous language of the Louisiana Unfair Trade Practices Act, and reads a limitation into the wrongful foreclosure statutes ...”

The Exception of No Cause of Action is separate and distinct from the Exception of No Right of Action, and each serves a particular purpose with different procedural rules. In an Exception of No Cause of Action, the legal sufficiency of the petition is tested. In that exception, the question to be answered is whether in the light most favorable to plaintiff, and with every doubt resolved in his behalf, the petition states any valid cause of action for relief. The Exception of No Right of Action questions whether the plaintiff belongs to the particular class to which the law grants a remedy for the particular harm alleged.

The function of an exception of no right of action is to determine whether a plaintiff has a real and actual interest in the action. La. C.C.P. art. 927(A)(5). In considering an exception of no right of action, the court must determine whether the plaintiff belongs to the particular class of persons to whom the law grants a remedy, | snot whether the plaintiff actually will recover. Gustin v. Shows, 377 So.2d 1325 (La.App. 1 Cir.1979).

Relative to the action by the Carraras under the Louisiana Unfair Trade Practices and Consumer Protection Act, La. 51:1401 et seq., the appellants refer us to R.S. 51:1409, which states that any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages. The Carrraras assert that these actions are not limited to business competitors or direct consumers.

In construing the Louisiana Unfair Trade Practices Act, and in particular R.S. 51:1409, this court has previously found that an action therein is a personal right of action applying only to direct consumers or to business competitors. The Carraras exhort us to ignore our earlier opinion on this matter as being without analytical foundation, and we are urged to follow another line of jurisprudence from other jurisdictions. With all due respect to our brothers in the First Circuit, we respectfully disagree that “it is of no moment if a plaintiff is not a consumer or business competitor of defendant.” In agreement is the Fourth Circuit, which has recently reiterated that Louisiana Unfair Trade Practices Act applies to competitors or consumers. The statute is penal in nature and subject to reasonably strict construction. To give the statute the expansive interpretation suggested by the Carraras is a broad, rather than narrow, construction. Under these statutes, Dr. Levine, its direct consumer, may exercise an action against the bank with regard to | ¿transactions between them. The Carraras were neither owners of the property, nor obligors to the bank. We find that the transferees of a bond for deed are not among the protected persons under the circumstances presented here. They thus have no right of action under the Louisiana Unfair Trade Practices Act.

Damages for wrongful seizure are allowed after an illegal seizure. This award can include damages in compensation for embarrassment, humiliation, mental anguish and worry. The duty/risk analysis in Louisiana law requires that the plaintiff further shows that the wrongful seizure was caused by the fault of one who owed a duty to the plaintiff, and that there was a breach of this duty.

There may be circumstances whereby a person is entitled to recovery for economic harm he has suffered as a result of injury to third parties. However, the circumstances of the case must fully comport with the duty-risk analysis. In the instant case, we see no duty owed by the bank to the Carrara’s, with whom it had no legal relationship. Damages for illegal seizure cannot belong to the Carrar-as, who did not own the property seized. As FNBC points out, although they were notified of the impending proceedings, the Carraras were never a party to the foreclosure, did not seek injunctive relief, were never evicted, dislocated, nor dispossessed. Any damages to the Carraras caused by a negligent injury to Dr. Levine is not within the scope of protection intended by the imposition of a duty not to wrongfully seize property.

Under La. C.C.P. art. 2298, the court may award damages to the judgment debt- or or third party claiming ownership of the seized property, if the court finds the seizure to be wrongful. The Carraras are not the judgment debtor nor do they claim ownership in these proceedings. Only the defendant in an executory 17proceeding has the right to injunctive relief, and only the defendant in such proceedings has the right to damages.

In summary, the Carraras have no right of action against FNBC for an illegal seizure. Accordingly, the judgment main-taming the exception is affirmed. Appellants are taxed all costs of appeal.

AFFIRMED.

      . Levine v. First Nat. Bank of Commerce, 98-1069 (La.App. 5 Cir. 6/1/99), 738 So.2d 133, 134.

      . Levine v. First National Bank of Commerce, # 02-C-0312.

      . Pitre v. Dufrene 98-570 (La.App. 5 Cir. 12/29/98), 726 So.2d 81, 83

      . Pitre v. Dufrene, supra.

      . Id.

      . Key West End, Inc. v. Werner 01-861 (La.App. 5 Cir. 12/12/01), 806 So.2d 710, 713.

      . Citing Capitol House Preservation Co. v. Perryman Consultants, Inc., 1998-1514 (La.App. 1 Cir. 12/10/98), 725 So.2d 523

      . National Gypsum Co. v. Ace Wholesale, Inc., 98-1196 (La.App. 5 Cir. 6/1/99), 738 So.2d 128, citing Gil v. Metal Service Corp., 412 So.2d 706 (La.App. 4 Cir.1982), writ denied 414 So.2d 379 (La.1982) and National Oil Service of La. v. Brown, 381 So.2d 1269 (La.App. 4th Cir.1980).

      . Capitol House Preservation Co. v. Perryman Consultants, Inc., 1998-1514 (La.App. 1 Cir. 12/10/98), 725 So.2d 523 and the cases cited therein.

      . Philips v. Berner 2000-0103 La.App. 4 Cir. 5/16/01, 789 So.2d 41, 49, writ denied 2001-1767 (La.9/28/01), 798 So.2d 119.

      . National Gypsum, supra.

      . Dixie Sav. and Loan Ass’n v. Pitre, 99-154 (La.App. 5th Cir.7/27/99), 751 So.2d 911, 921; writ denied, 99-2867 (La. 12/10/99), 751 So.2d 855.

      . Id.

      . Cajun Concrete Services, Inc. v. Lemoine Co., Inc., 2000-0227 La.App. 1 Cir. 2/16/01, 791 So.2d 709, 712.

      . Id.

      . LSA-C.C.P. art. 2751; Zeta-Caiman v. Naik, 566 So.2d 1016, 1019 (La.App. 3 Cir. 1990); Bourn v. Bourn 94-1117 La.App. 4 Cir. 6/14/94, 639 So.2d 311


author: | .MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Joseph JEROME, Jr.
    No. 03-KA-126.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Margaret E. Hay, Terry M. Boudreaux, Nancy A. Miller, Assistant District Attorneys, Gretna, LA, for Appellee.
    Bruce G. Whittaker, New Orleans, LA, for Appellant.
    Panel composed of Judges EDWARD J. DUFRESNE, JR., JAMES L. CANNELLA and MARION F. EDWARDS.
   | .MARION F. EDWARDS, Judge.

Defendant, Joseph Jerome Jr. appeals his conviction and sentence on the habitual offender bill of information.

On April 11, 2001, Jerome was charged with four counts of distribution of cocaine in violation of LSA-R.S. 40’:967(A). He was convicted by a jury on all four counts. Jerome was originally sentenced to thirty years at hard labor on each count, with the sentences to run concurrently with one another. On October 26, 2001, Jerome filed a motion to reconsider sentence, which motion was denied.

Subsequently, the state filed a multiple offender bill of information charging Jerome as a third felony offender. After being advised of his rights, Jerome admitted the allegations of the bill. The trial court vacated his original sentence on Count One and he was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. It is from this conviction and sentence that he appeals.

Because Jerome assigns errors only on his conviction on the multiple bill, we fore-go a narrative of the facts concerning the underlying offense. He argues |3that the trial court erred in failing to properly arraign him on the habitual offender bill of information and additionally erred in failing to properly advise him of his right to remain silent and of the right to have a formal hearing prior to his stipulation to the multiple bill.

On October 19, 2001, Jerome was sentenced on the four counts of distribution of cocaine. After sentencing, the State informed both him and the trial court of its intent to file a habitual offender bill alleging him to be a third felony offender. The trial judge stated, “Consider him arraigned, and then we can go to a hearing on it.” Jerome contends that by this response, the trial court effectively waived his arraignment on the habitual offender bill.

This Court has held that a defendant waives his right to admit or deny the allegations in the multiple bill when he proceeds to the multiple offender hearing without objecting. We note that a plea of “not guilty” was entered into the minutes of the court on October 19. In this case, Jerome proceeded to the multiple offender hearing on November 16, 2001 without lodging an objection; therefore, he waived his right to admit or deny the multiple bill’s allegations at that time.

Jerome further argues that the trial court failed to properly advise him of his rights as set forth in LSA-R.S. 15:529.1(D), prior to his stipulation to the allegations in the multiple bill and prior to his signing the waiver of rights form. LSA-R.S. 15:529.1(D)(l)(a) requires that a defendant be advised of the specific allegation contained in the habitual offender bill and his right to a formal hearing at which the State must prove its case for the habitual offender status. Implicit in this requirement is the additional requirement that defendant be advised of his constitutional right to remain silent. Where the defendant pleads or admits the Lallegations in the habitual offender bill of information, the failure to advise the defendant of his rights is reversible error.

At the multiple offender hearing, Jerome’s counsel informed the trial court that his client wished to stipulate to the allegations contained in the multiple bill. The trial judge then addressed Jerome as follows:

THE COURT:
Before I accept your plea, I’ve make [sic] sure you understand all of your rights with regard to the plea. First of all, by pleading guilty to be [sic] a triple felony offender you’re giving up certain rights. You have a right to plead not guilty and have a trial on the matter. Do you understand that, sir?
DEFENDANT:
Yes, sir.

Afterwards, the trial judge additionally advised Jerome that the district attorney would have to prove (a) that he had a prior felony; (b) the appropriate time period between felonies; and (c) that he was properly advised of his rights at those proceedings. Further, the court advised that if he were to have a trial on the present matter, he would have the right to remain silent, the right to cross-examine all witnesses against him, and the right to call his own witnesses. After hearing the State’s factual basis for Jerome’s plea on the multiple offender bill, the court accepted his plea/admission as having been knowingly and intelligently given. Additionally, the record contains a document entitled ‘WAIVER OF RIGHTS — PLEA OF GUITLY MULTIPLE OFFENDER — LA. R.S. 15:529.1” that was signed by Jerome, the defense attorney, and the trial judge. Jerome initialed each separate paragraph on that form, including those that advised him of his right to remain silent and his right to a hearing.

We conclude that defendant was properly advised of his rights and that he knowingly and intelligently waived his rights, particularly his right to a formal | shearing and his right to remain silent, prior to stipulating to the multiple offender bill of information. This assignment of error is without merit.

Jerome argues that his sentence of life imprisonment imposed by the trial court is excessive. He contends that while he was properly sentenced under the pre-amendment version of LSA-R.S. 15:529.1 to life imprisonment, the trial court should have considered whether the ameliorative changes to the habitual offender statute merit a Dorthey departure from a sentence of life imprisonment. Jerome contends on appeal that the change in the law is a significant factor that should have been considered by the court as a basis for departing from the “brutal mandate of the law.” Jerome did not make any argument or introduce any evidence at the time of his sentencing on the multiple bill regarding a downward departure from the mandatory minimum sentence. On appeal, he argues that he has one prior conviction for a violation of the Uniform Controlled Dangerous Substances Law, and that his other predicate convictions were for simple possession of cocaine. He urges that if the amended statute were applicable, the sentencing range for this ease would be between forty and sixty years.

In the present case, Jerome did not request that the trial court consider the ameliorative changes to the habitual offender statute during sentencing as a third felony offender, nor did he orally object to his sentence. Further, Jerome failed to file a motion to reconsider the multiple offender sentence as required by LSA-C.Cr.P. art. 881. The failure to file a motion to reconsider sentence or to state the specific grounds on which the motion is based, precludes a defendant from raising those grounds on appeal. However, this Court has previously considered the issue IfiOf whether a sentence is constitutionally excessive even where no motion to reconsider sentence had been filed.

The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. When a trial court determines that the minimum sentence mandated by LSA-R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment,” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive. However, it is presumed that the mandatory minimum sentence under the Habitual Offender Law is constitutional.

In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is “exceptional, which ... means that because of unusual circumstances this Defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.” When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. Further, if the trial court finds clear and convincing evidence that justifies reducing the mandatory minimum sentence, the court cannot impose whatever sentence it may feel is appropriate. Rather, the trial court must impose the longest sentence that is not constitutionally excessive with specific reasons to explain why that sentence is the longest sentence that is not constitutionally 17excessive. A downward departure from the minimum sentence mandated by LSA-R.S. 15:529.1 should only occur in “rare situations.”

This court has stated that a trial judge may consider the legislative change in the penalty as evidence of its intent to make a downward departure, and although a life sentence may be mandatory, the trial judge is permitted to deviate from such sentence as imposed by LSA-R.S. 15:529.1 if he finds, and articulates in the record, that the mandated punishment is unconstitutionally excessive. That the trial judge did not do so in the present case does not compel a conclusion that the sentence was excessive.

To the extent that Jerome attempts to argue that his predicate offenses were non-violent, a defendant’s record of nonviolent offenses cannot be the sole reason, or even the major reason, for declaring a mandatory minimum sentence excessive.

[t]his is because the defendant’s history of violent or non-violent offenses has already been taken into account under the Habitual Offender Law for third and fourth offenders, which punishes third and fourth offenders with a history of violent offenses more severely than those with a history of non-violent offenses.

In the instant case, Jerome made no showing of exceptional circumstances to justify a downward departure, and thus failed to carry his burden of proving the sentence imposed was excessive. This assignment of error is without merit.

We have reviewed the record for errors patent, and note the following. The trial court imposed defendant’s sentences on the four counts of distribution of cocaine without specifying that five years of those concurrent sentences were to be served without benefit of parole, probation or suspension of sentence as required by the version LSA-R.S. 40:976(B) which was in effect at the time of the |scommission of defendant’s offenses. However, we need not remand the matter for correction because the “without benefits” provision of a statute is self-activating. Furthermore, as to count one, the matter became moot when defendant’s sentence on that count was vacated and the trial court imposed a sentence of life imprisonment without benefit of parole, probation or suspension of sentence.

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

      . State v. Harris, 01-1380 (La.App. 5 Cir. 4/30/02), 817 So.2d 387, 389; State v. Allen, 93-838 (La.App. 5 Cir. 5/31/94), 638 So.2d 394, 403.

        . State v. Johnson, 432 So.2d 815, 817 (La.1983); State v. Walker, 01-348 (La.App. 5 Cir. 8/28/01), 795 So.2d 459, 463.

      . Id.

      . See e.g. State v. Ursin, 98-435 (La.App. 5 Cir. 10/28/98), 720 So.2d 1248.

      . State v. Dorthey, 623 So.2d 1276 (La.1993).

        . State v. Mims, 619 So.2d 1059, 1060 (La.1993); State v. Holmes, 94-907 (La.App. 5 Cir. 3/15/95), 653 So.2d 642, 646.

      . State v. Williams, 00-1850 (La.App. 5 Cir. 4/11/01), 786 So.2d 785, 794; State v. Stec, 99-633 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 789.

      . State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Cushinello, 01-109 (La.App. 5 Cir. 7/30/01), 792 So.2d 926, 929, writ denied, 01-2505 (La.9/20/02), 825 So.2d 1159.

      . State v. Dorthey, supra.

      . State v. Johnson, 709 So.2d at 676; State v. Harbor, 01-1261 (La.App. 5 Cir. 4/10/02), 817 So.2d 223, 226.

      . State v. Harbor, supra.

      . State v. Johnson, 709 So.2d at 677; State v. Hicks, 01-1064 (La.App. 5 Cir. 4/10/02), 817 So.2d 192, 200-201.

      . State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377.

      . State v. Hicks, supra.

      . Id., quoting State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339, 345.

      . LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

        . State v Williams, 00-1725 (La.11/29/01), 800 So.2d 790, 799.


author: 19JAMES L. CANNELLA, Judge.

text:
    Yolanda BARBARIN v. TLC HOME HEALTH and Louisiana Workers’ Compensation Corporation.
    No. 02-CA-1054.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Sammie M. Henry Johnson, Stiltner & Rahman, Baton Rouge, LA, for Appellant.
    Diane R. Lundeen, New Orleans, LA, for Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   19JAMES L. CANNELLA, Judge.

The Defendants, TLC Home Health, Inc. (TLC) and the Louisiana Workers Compensation Corporation (LWCC), appeal from a judgment in this workers’ compensation case. The Plaintiff, Yolanda Barbarin answered the appeal. We amend in part and affirm as amended.

On May 17, 1994, the Plaintiff was employed by TLC as a home health aide and was assisting a patient who lived with her mentally ill daughter. As the Plaintiff was leaving the house, the patient’s daughter struck the Plaintiff on the head with a lead pipe. The Plaintiff, stunned and cut on the head, was taken to the emergency room, where she received 16 stitches to the cut and was released. Afterwards, she suffered headaches, dizziness and started to have fainting and/or psychogenic seizure episodes. She was treated by a family doctor until he referred her to a neurologist. From that date forward, she saw various neurologists, psychologists and psychiatrists. She was also paid workers’ compensation benefits and medical expenses.

On December 14, 2000, the Plaintiff filed a Disputed Claim for Compensation after the Defendants terminated her indemnity benefits, refused payment of certain medical bills and refused to authorize a change to a physician of her choice following her doctor’s withdrawal from her case. In the claim, the Plaintiff asked for approval to obtain a new treating neurologist of choice, for | ¡¡reinstatement of indemnity benefits, for payment of continued medical care with a cardiologist and a psychiatrist, and for payment of numerous emergency room visits and ambulance transportation bills. On September 6, 2001, LWCC agreed to pay supplemental earnings benefits based on minimum wage and to allow the Plaintiff to be evaluated by Dr. Leon Weisburg, a neurologist, her physician of choice.

The case was heard on April 1, 2002. The workers’ compensation judge found the Plaintiff to be temporarily, totally disabled (TTD) from the accident and, pursuant to Dr. Weisberg’s recommendation, ordered her to be placed in the care of Dr. Jeffrey Nicholl. The workers’ compensation judge also found that the Defendants were arbitrary and capricious in denying the Plaintiff authorization for a new choice of physician and for untimely payment of indemnity benefits. The judge awarded the Plaintiff $2,000 for the Defendant’s failure to approve the doctor, $2,000 for the untimely benefits payments, and attorney’s fees of $15,000. He denied the claim for the numerous emergency and ambulance visits, and a claim for TED hose (specially designed compression stocking, sometimes used after surgery to reduce swelling and prevent blood clots, named after G. Kendall Ted), finding that the Plaintiff failed to prove that they were medically necessary.

DEFENDANTS’ APPEAL

The Defendants assert that the workers’ compensation judge erred in finding the Plaintiff TTD as a result of the accident and in assessing penalties and attorney’s fees.

The appellate court’s review of the workers’ compensation judge’s findings of fact is governed by the manifest error or clearly wrong standard and will not be disturbed absent such a finding. Campbell v. Gootee Const. Co., 99-913, p. 9 (La.App. 5th Cir.1/12/00), 756 So.2d 449, 453; Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 13 (La.3/4/98), 708 So.2d 375, 380. In applying the manifest error-clearly 1¿wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Chaisson, 97-1225 at p. 13, 708 So.2d at 380. Where there are two permissible views of the evidence, a factfinder’s choice of them can never be manifestly erroneous or clearly wrong. Chaisson, at p. 14, 708 So.2d at 381. Thus, if the factfinder’s findings are reasonable in light of the record, the court of appeal may not reverse or modify the judgment. Id.

La.R.S. 23:1221(l)(c) provides:

(c) For purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (l)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by dear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. (Emphasis added.)

Temporary Total Disability

The record reflects that, after the injury, the Plaintiff went to her family doctor, Dr. C.J. Meyers, who diagnosed her with post-traumatic stress syndrome and seizure disorder. From the beginning, according to the Plaintiff, she suffered from headaches, tremors, visual blurring, dizziness, fainting and/or seizures, panic attacks, and behavior changes which cause her to overreact to stressful events. When the symptoms did not stop, Dr. Meyers referred her to a neurologist, Dr. Thor E. Borreson, who was with the Cu-licehia Neurological Clinic at the time. Dr. Borreson started treating her in March of 1994 for post-traumatic headaches and dizziness. While under his care, the Plaintiff was referred to Dr. Robert Detrinis, a psychiatrist, who diagnosed post-traumatic stress disorder, Dr. Frank Parker, a clinical psychologist, who diagnosed her with a psychological disorder, and by Dr. |RSusan Boston and Dr. R. Joseph Tammie, who found that she had a concussion with psychiatric overlay.

In January of 1996, Dr. Walter Truax, who is also with the Culiechia Neurological Clinic, performed an electromyography (EMG) which was negative and Dr. Boston and Dr. Tammie reported that the Plaintiff could return to work. In February and November of 1996, Dr. Detrinis and Dr. Thomas Hannie, a clinical psychologist, indicated that her attitude was interfering with going back to work.

Sometime in 1996, Dr. Borreson left the country. Dr. Meyers referred the Plaintiff to Dr. Steven Atkins, another neurologist, who diagnosed her with post-concussion syndrome as a result of the accident that was causing seizures and panic attacks. He did not release her to return to work. Dr. Atkins prescribed anti-epileptic drugs. Either before or after she began treatment with Dr. Atkins, she also saw Dr. D.C. Mohnot, another neurologist, and Dr. Parker. Dr. Parker concluded at that time that the Plaintiff was disabled based on her symptoms of dizziness, nausea, tremors, and memory and concentration problems.

In August of 2000, Dr. Atkins withdrew from her treatment because the Plaintiff lost confidence in his drug treatment. She believed that the drugs were not helping her condition. The Plaintiff immediately notified the Defendants of Dr. Atkins decision and requested authorization to see a new physician of choice. In particular, the Plaintiff asked to see Dr. Leon Weisberg, a neurologist from Tulane University Medical Center. The LWCC delayed responding to this request, despite several requests from the Plaintiff. They eventually denied the request, apparently because she had already been to many doctors, even though she was legally entitled to a new treating neurologist of her choice.

In December of 2000, a pacemaker was implanted to control the fainting and seizure episodes which were caused by changes in the heart rhythm. While in the hospital, the Plaintiff was treated by Dr. Michael Puente and Dr. Samuel Ferns, a | ^cardiologist. Following this hospitalization, she saw a mental health clinic doctor several times because the doctors indicated that her fainting was psychological. Dr. Susan Boston placed her in group therapy. The Plaintiff stopped after a few sessions because the sessions were not helpful.

During that same time period, although they had denied approval for the Plaintiff to seek a new physician of choice, the LWCC set up an appointment with its choice of neurologists, Dr. Walter Truax. He found no evidence of neurological disease or injury and concluded that the Plaintiff could work without restrictions despite the substantial evidence of her fainting and seizure spells. In November of 2000, because Dr. Truax’s opinion conflicted with Dr. Atkins’ diagnosis, the LWCC requested an independent medical opinion through the Office of Workers’ Compensation. Dr. Donald Gervais, another neurologist, was appointed. After examining the Plaintiff, Dr. Gervais diagnosed the Plaintiff with psychomatic conversion disorder “as opposed to malingering.” However, he found no significant deficit and commented on the possibility of malingering. He recommended that she return to work, but advised her to continue psychiatric therapy. Based on these two reports, the Defendants terminated indemnity benefits on February 22, 2001.

Pursuant to on-going demands by the Plaintiff, in September of 2001, LWCC agreed to authorize the Plaintiff to see Dr. Weisberg. Yet, the LWCC delayed the authorization again and had to be ruled into court to enforce the agreement. The LWCC finally issued the authorization in December of 2001. The Plaintiff saw Dr. Weisberg on December 21, 2001.

According to Dr. Weisburg, the head injury caused Plaintiffs problems and her symptoms are consistent with post-concussion syndrome. He testified that the Plaintiff suffers from neuroeardiogenic syncope, which means fainting episodes and psychogenic (non-neurological) seizures, two separate conditions. His |7conclusion was supported by the medical records. Dr. Weisberg noted that 80% of patients recover from post-concussion syndrome within months of an injury, but the other 20% continue to suffer long past that time. Patients that do not recover within six months are difficult to rehabilitate because of the psychological factors causing the physical symptoms. In addition, Dr. Weisberg stated that the Plaintiffs ability to work is compromised by her sudden fainting/seizure spells because the sudden loss of consciousness creates a safety problem for her and others around her. Thus, he believed that the safety issue precludes the Plaintiff from obtaining or maintaining employment.

According to Dr. Weisberg, both the fainting episodes and psychogenic seizures are triggered by emotional stressors and are real events. Basically, these are conversion reactions in which an emotional stressor causes physical changes in the body. The neuroeardiogenic syncope results from a involuntary change in the portion of the autonomic nervous system which controls emotions. As a result, the patient’s heart rate and blood pressure drop and the patient loses consciousness. The patient also loses consciousness in a psychogenic seizure. The seizure, however, may be accompanied by side to side jerking movements. Dr. Weisberg explained that these are not “true” seizures because there are no concurrent changes in electrical activity in the brain. In addition, a psychogenic seizure differs from the “true” seizure in the movements that accompany the blackouts. The epileptic’s movements are up and down, whereas the movements in a psychogenic seizure are side to side. However, he stated that a lay person would not know the difference. Since the psychogenic seizures are stress related, or emotionally induced, anti-epileptic medications do not work. This explains why Dr. Atkins’ treatment with anti-epileptic drugs was unsuccessful.

Dr. Weisberg testified that sexual abuse, physical abuse, or pending litigation are three known stressors that cause psychogenic seizures. In this case, |Rthe applicable stressor is the pending workers’ compensation litigation. Dr. Weisberg emphasized, however, that although the psychogenic seizures are often referred to as “pseudo” seizures, they are real, physical responses to an emotional factor and are frightening to the patient. Because of her sudden blackouts, he testified that the Plaintiff should not be going out in public alone or driving alone. The doctor stated that the Plaintiff should recover from this condition after this litigation is completed, thus, resolving her medical needs.

Dr. Weisberg testified that post-concussion syndrome can also cause behavior changes, including overreacting (blowing things out of proportion) and panic attacks, which result from the body’s flight or fight mechanism when stressed. The Plaintiff has suffered from both of these behavior changes since the accident. Both changes can be attributed to the Plaintiffs frustration with the Defendants for denying medical treatment and with other medical personnel for not believing that her complaints are real. Dr. Weisberg noted that it is common for those involved in a patient’s care to become suspicious of a patient’s complaints when the condition is difficult to treat. Dr. Weisberg recommended that the Plaintiff continue treatment with Dr. Jeffrey Nicholl, the Director of the Epilepsy Monitoring Unit at Tulane University Medical Center, who is board certified in neurology, psychiatry, clinical neurophysiology, and emergency medicine.

After reviewing the evidence, we conclude that the trial judge did not err in finding the Plaintiff to be TTD. The Plaintiff was seen by various doctors from the date of the accident. Her symptoms consistently included headaches, panic attacks, tremors, and fainting or psychogenic seizures. She was diagnosed by almost every doctor with post-concussion syndrome and/or post traumatic stress syndrome. While some of the medical professionals indicated a possibility that the Plaintiff was malingering, as the tests given to determine the source of the complaints failed to disclose any organic abnormality, no one denied her treatment |9and the doctors continued to try to control the problems. Because she had the sudden fainting events and/or psychogenic seizures, a pacemaker was implanted to control the heart rhythms and loss of consciousness. This was partially successful, but the Plaintiff continues to have episodes of sudden loss of consciousness. This implant procedure would have been unnecessary if the doctors believed that she was not sincere. Given her current condition and the prognosis of possible recovery in the future, we find that the workers’ compensation judge was not manifestly erroneous in finding the Plaintiff TTD.

Penalties and Attorney’s Fees

La. R.S. 23:1201 F provides for the imposition of penalties and attorneys fees when indemnity or medical benefits due to the claimant are not paid timely. However, under R.S. 23:1201 F(2), this does not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control. In order to reasonably controvert a claim, the Defendant must have some valid reason or evidence upon which to base the denial of benefits. Brown v. Texas-La Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890. Thus, the court must determine whether the Defendant engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time which they refused to pay all or part of the benefits allegedly owed. Id. The assessment of penalties and attorney’s fees by the worker’s compensation judge is a factual question, which will not be disturbed on appeal in the absence of manifest error. Campbell, 99-913 at p. 9, 756 So.2d at 453.

The Defendants discontinued the Plaintiffs indemnity benefits prior to allowing her to obtain a new treating physician. Instead, they relied on linreports that contradicted other equally reliable medical evidence and conclusions indicating that the Plaintiff was unable to work due to her frequent fainting/seizure episodes. Notably, Dr. Atkins, her treating physician for several years, did not release her to return to work. Furthermore, the LWCC terminated her benefits before authorizing payment for the Plaintiffs new choice of physician, even though she was entitled to it after Dr. Atkins withdrew from her case. From August of 2000 to December 21, 2001, the Plaintiff did not have a treating physician, yet they refused to approve authorization for the Plaintiff to see Dr. Weisberg timely without any justifiable reason, and forced her to wait over one year before providing the authorization. Notably, they even agreed to pay supplemental earnings benefits after she filed a claim. Furthermore, even Dr. Truax recognized that the Plaintiff was experiencing conversion reactions, a psychological problem, as opposed to malingering. Based on the record, we find that the LWCC did not have sufficient reason to terminate the Plaintiffs benefits before Dr. Weisberg had an opportunity to examine the Plaintiff. For these reasons, we find that the workers’ compensation judge was not clearly wrong in awarding penalties and the amount of the penalties ($4,000).

THE PLAINTIFF’S APPEAL

The Plaintiff answered the appeal, asserting that the workers’ compensation judge erred in denying medical expenses for in-patient stays at West Jefferson Hospital, for treatment with Dr. Friley at Westcare Medical, for past and future emergency room visits, for ambulance bills, and for TED hose. She contends that she is entitled to penalties and attorney’s fees for the Defendants’ refusal to pay for the TED hose and that the workers’ compensation judge should have awarded higher attorney’s fees and penalties. The Plaintiff asks this Court for additional attorney’s fees related to the prosecution and defense of this appeal.

| ^ Psychiatric Hospitalizations

In January of 2000, the Plaintiff was hospitalized at West Jefferson General Hospital for depression and indications that she was a high suicide risk. The source of the depression was her inability to work and the significant life changes from her disability. She was diagnosed with post-concussion syndrome and told to follow up with a neurologist. In December she was again admitted to West Jefferson for the same reasons she expressed in the January admission and added that she was tired of the workers’ compensation carrier denying her request for a new neurologist. She told the doctors that she wanted to get better. The Plaintiff was treated for post-traumatic stress syndrome, depression, anxiety, syncopal episodes and a seizure disorder. She was found to be gravely disabled due to the syncopal episodes. Both of these bills are related to the accident. Thus, the trial judge erred in failing to order the Defendant to pay for these expenses.

Ambulance and Emergency Room Expenses

The Plaintiff produced bills for ambulance and emergency room visits at East Jefferson General Hospital and Tulane Medical Center due to seizure episodes on April 6, 2000, March 23, 2000, a follow up visit with Dr. Michael Friley the next day, July 16, 2000, July 17, 2000 (two episodes), August 10, 2000, August 29, 2000 (two episodes), several episodes in September, and another visit with Dr. Fri-ley related to the episodes in October of 2000. During these blackout episodes, the Plaintiffs condition was observed and noted by the witnesses who described it to the emergency medical services (EMS), or by the EMS personnel. There was doubt by some of the medical personnel that she was experiencing true seizures, but she was nevertheless diagnosed with seizure disorder and syncopal episodes. According to Dr. Weisberg, she did experience loss of consciousness, although she did not have true seizures. At least two emergency room doctors rioted that the | ^ambulance transportation was medically necessary. Every emergency doctor recommended that the Plaintiff follow up with her neurologist.

In regard to the various emergency room visits, Dr. Weisberg stated that after the first several times, her family should have known how to deal with the episodes without going to the emergency room. Dr. Weisberg testified that the Plaintiff should not be going out in public alone or driving alone because she does lose consciousness. However, he noted that if the Plaintiff had been out without a friend or family member when these episodes occurred, it would be expected that strangers would call 911. The Plaintiff would not have any control over those emergency room trips.

There is no evidence in this case that the Plaintiff or her family understood that she did not need to go to an emergency room every time she lost consciousness, unless she was injured in some other way. No one told her or her family not to call an ambulance during these episodes. Further, the sight of a person passing out and having spastic movements would naturally trigger a 911 response. Thus, we find that the bills for the emergency room visits, the ambulances and Dr. Friley are compensa-ble. However, the Plaintiff is now on notice by Dr. Weisberg that, in the future, she should contact her treating doctor if she experiences a loss of consciousness. Therefore, we will order the Defendant to pay for those bills incurred through the date of trial. Any other such bills will be disallowed.

Claim for TED Hose

Dr. Jeffrey Nicholl is one of the Plaintiffs treating physicians and is associated with Dr. Weisberg. He prescribed TED hose for the Plaintiff, asserting that “Ms. Barbarin has severe fainting spells and needs TED support hose to help prevent them and avoid significant injury.” The Defendant failed to comply with |13the request. We find that the claim is com-pensable. Thus, we will order the Defendant to pay for the TED hose.

Additional Penalties

We have reviewed the record and find no basis for additional attorney’s fees. The failure to pay the bills for the Plaintiffs psychiatric hospitalizations, emergency room visits, ambulance transportation and TED hose was not arbitrary and capricious under these facts. We further find the penalties and attorney’s fees awarded by the trial judge not abusively low.

Accordingly, the workers’ compensation judgment is amended to include payment for the two psychiatric hospitalizations, all emergency room visits and their related expenses incurred through date of trial, and the prescription for TED hose. The judgment is hereby affirmed in all other respects, including the finding of temporary, total disability, the medical expenses awarded, and the award for penalties and attorney’s fees. Costs of appeal are to be paid by the Defendants.

AMENDED IN PART AND AFFIRMED AS AMENDED.

      . We note that this does not preclude an emergency room visit for other reasons that are related to her condition.