author: JjPICKETT, Judge.

text:
    BODY MASTERS v. Ray C. FONTENOT.
    No. 03-1060.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Keith Joseph Landry, Allen & Gooch, Lafayette, LA, for Plaintiff Appellant, Body Masters.
    Richard E. Smith, The Glenn Armentor Law Corp., Lafayette, LA, for Defendant Appellee, Ray C. Fontenot.

      Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and ARTHUR J. PLANCHARD, Judges.

       Judge Arthur J. Planchará, Retired participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tem-pore.

   JjPICKETT, Judge.

The appellant, Body Masters, appeals the judgment of the WCJ awarding attorney fees.

FACTS

Ray Fontenot injured his back while in the course and scope of his employment with Body Masters, Inc. This fact is undisputed. This appeal arises from a request by Body Masters to have an independent medical examiner appointed to review the necessity of surgery for Fontenot. Dr. Alan Appley, Fontenot’s treating neurosurgeon, recommended surgery, while Dr. Stephen Goldware, a neurosurgeon chosen by Body Masters, recommended against surgery. Acting pursuant to La.R.S. 23:1123, Body Masters requested that the Office of Workers’ Compensation (OWC) appoint a neurosurgeon as an Independent Medical Examiner (IME) to determine if surgery was necessary. That section states:

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

After review, the OWC denied the request. Acting for the director, the assistant secretary for OWC pointed to a previous IME opinion rendered in this case by Dr. Charles Olivier, an orthopedist. Dr. Olivier was appointed when Fontenot’s treating orthopedist and Body Masters’ choice of orthopedist disagreed on a course of action. His opinion was sought to address the nature and extent of Fontenot’s disability, a recommendation for further treatment, and work status. His recommendations in his report stated:

| ¡¡For the patient to get a CAT scan and a myelogram to follow. If this is positive, I would try a course of epidural steroids. If the patient continues to have pain, I would recommend surgical intervention.

Body Masters appealed this decision to the Workers’ Compensation Judge (WCJ), claiming that Dr. Olivier was only appointed to decide whether a CAT scan and myelogram were necessary. Following a one hour hearing on May 1, 2003, the WCJ found that surgery was indeed necessary and declined to appoint an IME. The WCJ did not award penalties, but did award attorney fees in the amount of $3,000.00. On appeal, Body Masters seeks review only of the ruling awarding attorney fees of $3,000.00. Thus, the issue of surgery is not before this court, and neither is the failure of the WCJ to award penalties.

ASSIGNMENTS OF ERROR

In two assignments of error, Body Masters alleges that the WCJ erred in awarding attorney fees, and, alternatively, that the attorney fees awarded are excessive.

DISCUSSION

The award of penalties and attorney fees is a factual determination that will not be disturbed on appeal absent manifest error. Guidry v. Cytec Industries, 00-197 (La.App. 3 Cir. 10/11/00), 772 So.2d 194.

The first issue raised by Body Masters is whether the issue of the surgery was before the WCJ at all. They claim they filed the disputed claim for benefits seeking a declaration that an IME neurosurgeon should be appointed. Fontenot never filed a 1008 claim seeking a determination that the surgery was necessary. Clearly, though, the pretrial memorandum submitted by Fontenot asks for the WCJ to decide that the surgery is necessary, and Body Masters has not appealed that portion of the | judgment declaring that the surgery is necessary. The WCJ had the authority to order the surgery and had the authority to award penalties and attorney fees. Thus, this argument is without merit.

The threshold issue in this case is under which statute attorney fees were awarded. Presumably, the award was made because of Body Masters’ failure to pay for the surgery. “Awards of penalties and attorney’s fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed.” Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46 (citations omitted).

Louisiana Revised Statute 23:1201(F) provides that if benefits are not paid timely, penalties and attorney fees may be awarded, unless the claim is reasonably controverted. Louisiana Revised Statute 23:1201.2 provides for payment of penalties and attorney fees if benefits are discontinued, if such discontinuance is found to be “arbitrary, capricious, or without probable cause.” Since this case does not involve any discontinuance of benefits, but payment for a surgical procedure, we will analyze this case under La.R.S. 23:1201(F). This conclusion is bolstered by the fact that the WCJ concluded in oral reasons for judgment that Body Masters had not been arbitrary and capricious.

Under La.R.S. 23:1201(F)(2), an employer will not be liable for penalties and attorney fees if the claim is reasonably controverted. In this case, the neurosurgeon who examined Fontenot at the request of Body Masters opined that surgery was not warranted. The test to determine if an employer has reasonably controverted a claim |4for workers’ compensation benefits is whether the employer has sufficient factual and medical information to counter the claimant’s factual and medical information. Gibson v. Dynamic Industries, Inc., 96-1605 (La.App. 3 Cir. 4/2/97), 692 So.2d 1320. Dr. Goldware’s opinion is sufficient to reasonably controvert the claim. Therefore, attorney fees are not payable under La.R.S. 23:1201(F).

Accordingly, we reverse the judgment of the trial court awarding attorney fees. All costs of this appeal are assessed to the appellee, Ray Fontenot.

REVERSED AND RENDERED.

WOODARD, J., concurs.


source: Caselaw Access Project

author: h SULLIVAN, Judge.

license: Public Domain

text:
    Fred EDLER, Jr. v. CITY OF NEW IBERIA.
    No. 03-1036.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      William O. Bonin, Iberia, LA, for Plain-tiffiAppellee, Fred Edler, Jr.
    Christopher R. Philipp, Lafayette, LA, for Defendant/Appellant, City of New Iberia.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   h SULLIVAN, Judge.

This is a workers’ compensation case in which the City of New Iberia modified Fred Edler, Jr.’s temporary total disability (TTD) benefits to supplemental earnings benefits (SEB), then terminated those benefits after having paid him benefits for 520 weeks. After a trial, the Workers’ Compensation Judge (WCJ) found Mr. Edler permanently totally disabled from March 7, 1994 and awarded him penalties in the amount of $20,000.00 and attorney fees in the amount of $30,000.00. The WCJ also denied an exception of prescription filed by Defendant. For the following reasons, the WCJ’s judgment is affirmed in part and reversed in part.

Facts

The facts are not in dispute. Fred Edler, Jr. was employed as the assistant fire chief for the City of New Iberia on May 11, 1992, when he injured himself at work. His injury prevented him from continuing his employment; he was fifty-four years old. He retired from the fire department in 1993 when his disability benefits ran out. He has remained under the care of various physicians and has not worked since his injury. He was sixty-five years old at the time of trial.

Mr. Edler completed the tenth grade in high school. Thereafter, he enlisted in the Army, where he served for three years. During his service, he received his high school diploma and was trained as an “independent medic,” which allowed him to work independently of a physician as an emergency medical technician. He received an honorable discharge.

After the Army, Mr. Edler worked as a pipe inspector, a member of a seismograph crew, a “repo” agent for a finance company, and a life insurance salesman. He went to work for Defendant as a fireman on July 4, 1961. As a fireman, Mr. Edler worked as a fireman first class, driver, captain, and assistant fire | ¡.chief. In 1963, he was injured at work and underwent back surgery which was successful. He returned to work and continued working until his May 1992 injury.

While a fireman, Mr. Edler attended a number of different courses for further training and career development. He was certified as an instructor for cardiopulmonary resuscitation and first aid. He also completed an introduction course to radiation monitoring, attended fire training courses at Louisiana State University, and attended training courses with the Louisiana State Police for bombs and explosives. In 1991, he received an award for distinction and outstanding service from the American Heart Association for training courses he taught to other firemen.

Risk Management, Inc. (RM) managed Mr. Edler’s compensation claim for Defendant. It paid him TTD benefits at the maximum rate of $295.00 per week from the time of his injury until April 7, 1994, when it modified the TTD benefits to SEB. Mr. Edler was notified of the modification; he did not object to it. The effect of the modification was not explained to him; it did not affect the amount of benefits he received. SEB were paid until June 2, 2002, when they were discontinued.

Mr. Edler’s treatment for his injury has been extensive and ongoing. On May 20, 1992, Dr. Ricardo Leoni, a Lafayette neurosurgeon, performed extensive surgery on Mr. Edler’s back. He removed a herniated disc at L4-5 and performed bilateral spinal stenosis surgery at L2-3. As a result, Mr. Edler has a neurological deficit, back pain, pain in his left leg, and chronic weakness and numbness in Ms left leg. In June 1994, Dr. Leoni had Mr. Edler undergo a functional capacity examination (FCE). Mr. Edler was unable to complete the examination, and the examiner opined that he could not perform even sedentary work. Mr. Edler remained |sunder Dr. Leoni’s care until February 13, 1997. Throughout his care of Mr. Edler, Dr. Leoni was of the opinion that he could not be gainfully employed.

In February 1997, Mr. Edler was examined by Dr. William L. Fisher, Jr., a neurosurgeon in Baton Rouge, at RM’s request. Dr. Fisher agreed with Dr. Leoni that Mr. Edler could not work.

Thereafter, Mr. Edler was treated by Dr. Robert LaHasky in New Iberia until he retired from his medical practice. In March 2000, Mr. Edler sought treatment from Dr. Therese Ritter, another New Iberia physician. Dr. Ritter had him undergo two FCEs. The restrictions established by Dr. Ritter following these FCEs are discussed below.

In December 2002, Dr. Ritter referred Mr. Edler back to Dr. Leoni due to complaints of severe pain on his right side. Dr. Leoni ordered an MRI which revealed stenosis at L2-3, L3-4, and L4-5. He testified that the stenosis at L3-4 and L4-5 was “fairly severe” and that Mr. Edler’s status was about the same as it was in February 1997. Dr. Leoni noted Mr. Edler has weakness in his left leg and foot and numbness in his left foot. In his opinion, Mr. Edler’s disability status had not changed, and he remained totally disabled. Dr. Leoni further testified that the changes in Mr. Edler’s back may require surgery, a decompression with a fusion, but he advised Mr. Edler that he should tough it out for as long as possible.

Mr. Edler has never been released from the care of his physicians, and his physical status has worsened. He has never been released to work with restrictions which would allow him to find employment in a competitive market. All of the restrictions established by his treating physicians limit any attempt at work to a stair-step approach, i.e., four hours per day per week, increased to six hours per day per Rweek, increased to eight hours per day per week. Additional restrictions regarding sitting, standing, walking, crawling, carrying, and lifting further limit his ability to work.

.RM hired Thomas Bott, a vocational rehabilitation expert, to work with Mr. Edler to return him to work. During the course of this matter, Mr. Bott expended 1200 hours trying to find a position for Mr. Edler that fell within his physical and educational limitations and the restrictions imposed by his physicians. He opened and closed Mr. Edler’s file a number of times throughout the course of this matter. He was unsuccessful in finding employment for Mr. Edler and reported on more than one occasion to RM that, in his opinion, Mr. Edler cannot work and is totally disabled.

Even though Mr. Edler was never released from his physicians’ care and its own expert was of the opinion that he was totally disabled, RM modified his TTD benefits to SEB on March 7, 1994, then terminated his SEB on June 2, 2002.

On June 13, 2002, Mr. Edler filed this disputed claim for compensation, seeking a reinstatement of benefits. He alleged he was permanently totally disabled (PTD) or TTD and entitled to penalties and attorney fees for the discontinuance of his benefits. Defendant countered that it had paid Mr. Edler more than 520 weeks of TTD and SEB and that he is not TTD or PTD. The matter was tried before the WCJ on February 7, 2003. The WCJ ruled in favor of Mr. Edler as set forth above.

Defendant assigns as error the WCJ’s awards of PTD benefits, penalties and attorney fees, and the denial of its exception of prescription.

\ Standard of Review

We review factual conclusions of the WCJ, including those relating to the sufficiency of the evidence, for manifest error. Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216; Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706. However, when determining whether a WCJ committed an error of law, we review to determine whether the ruling was legally correct. Belaire v. Don Shetler Olds Buick Chevrolet, 02-1152 (La.App. 3 Cir. 6/4/03), 847 So.2d 723.

Discussion

Permanent Total Disability

Defendant asserts that Mr. Edler did not prove by “clear and convincing evidence” that he is not capable of performing sedentary to light employment within the restrictions imposed by Dr. Rit-ter. Louisiana Revised Statutes 23:1221(2)(c) provides the burden of proof that a workers’ compensation claimant, seeking an award of permanent total disability benefits, must satisfy:

[ Wjhenever the employee is not engaged in any employment or self-employment ..., compensation for permanent total disability shall be awarded only if the employee proves by clear 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.

Mr. Bott testified that he opened his file on Mr. Edler in May 1994. He found Mr. Edler to be pleasant, cooperative, and credible. He closed the file shortly thereafter because the results of the June 1994 FCE revealed that Mr. Edler could not perform even sedentary work. In 1996, he was instructed to reopen Mr. Edler’s file. | He testified that he worked to develop a job with Defendant pursuant to restrictions established by Dr. Leoni. Mr. Edler attempted but could not perform the job.

Mr. Bott testified that he again tried to find employment for Mr. Edler after he underwent the two FCEs ordered by Dr. Ritter. As a result of those FCEs, Mr. Bott testified that Dr. Ritter limited Mr. Edler to trying sedentary to light duty in a warm environment for four hours per day but not all at one time. Mr. Edler had to be able to change positions as needed and could not lift/carry anything greater than ten pounds and could not do any significant walking, bending, or crawling. Any work attempt was further limited as follows: no floor to waist lifts; no crouching; no squatting; no balancing activities; lifting limited to thirty pounds for horizontal lift and left, right, or front carrying; and lifting limited to twenty pounds from twenty-six inches off of the floor to his waist. Due to the numbness and weakness in his left leg, Mr. Edler would also have to use a brace on his left foot, and he would have to wear a lumbar corset for his back. Further, he was to start with four hours per day per week for four weeks. If he tolerated this, he could increase to six hours per day for four weeks, then to eight hours per day up to a maximum of forty hours per work week thereafter.

Mr. Bott and Della Hildebrand, RM’s representative who handled Mr. Edler’s claim, both agreed that no employer, other than an original employer, would allow an employee to work in the stair-step manner outlined by Dr. Leoni and Dr. Ritter. Mr. Bott attempted to do this on two occasions, requesting that the City find a position suitable for Mr. Edler;, the attempts were unsuccessful.

When deposed on December 5, 2003, Mr. Bott testified that he had attempted without success to find work for Mr. Edler that fell within the restrictions established |7by Dr. Leoni and Dr. Ritter. He admitted that, after working with Mr. Edler for some 1200 hours, he determined that there was no employment, including self-employment, available to him. Yet, at trial, he testified regarding two jobs that he thought Mr. Edler could “possibly” perform. The first was woodcarving instructor at University of Louisiana at Lafayette in its leisure learning classes. However, he explained no such position currently exists and that Mr. Edler would have to approach ULL to create the position and hire him for the position. He had no insight as to the likelihood of the creation of or viability of such a position and described it as “very theoretical.”

The second job was a part-time 911 operator for the City of New Iberia or the Iberia Parish Sheriffs Office. Mr. Bott admitted that he had previously considered a full-time 911 position for Mr. Edler but ruled it out due to the fact that it required a civil service examination, explaining that he believed the length of time Mr. Edler had been out of school was an impediment to his ability to pass the examination. However, he testified at trial that the part-time position did not require a civil service examination; therefore, he changed his mind about it being a viable position for Mr. Edler. Mr. Bott never informed Mr. Edler of this position, even though he testified that he felt he was working for Mr. Edler’s interest, not Defendant’s.

Mr. Bott’s testimony regarding the part-time 911 position did not consider that Mr. Edler’s physical condition has worsened, such that he now has “fairly severe” steno-sis in his lower back. Dr. Leoni testified that the stenosis prevents Mr. Edler from walking, standing, or sitting for long periods of time and will require that he lie down frequently because it is the most comfortable position for him. He remains of the opinion that Mr. Edler cannot work. In light of Mr. Edler’s worsened medical | scondition, we place no weight on Mr. Bott’s testimony regarding the part-time 911 position.

Defendant argues the WCJ erred because the focus in this matter should be on Mr. Edler’s physical ability to do some work and not on the unsuccessful rehabilitation efforts. This argument fails in light of the supreme court’s decision in Comeaux v. City of Crowley, 01-32, pp. 12-13 (La.7/3/01), 793 So.2d 1215, 1222, where the supreme court explained:

This case requires that we construe La.Rev.Stat. 23:1226, mandating an attempt at rehabilitation before a finding of permanent total disability is made, in pari materia with La.Rev.Stat. 23:1221(2), defining permanently, totally disabled. Under the scenario presented in this case, involving an employee who has unsuccessfully attempted rehabilitation, it would defy logic and render La. Rev.Stat. 23:1226 meaningless to exclude from consideration the employee’s inability to be educated or retrained in determining if such an employee is permanently, totally disabled....
Obviously, the Legislature intended, by imposing in La.Rev.Stat. 23:1226 a mandate that the prospects of rehabilitation be explored before an employee is classified as permanently, totally disabled, that the results — negative as well as positive — of such attempted rehabilitation be considered in ultimately determining disability status. As plaintiff aptly points out, a contrary conclusion would result in only paraplegics falling within the permanently, totally disabled status. That the Legislature could not have so intended such a result is evidenced by the separate statutory presumption set forth in La.Rev.Stat. 23:1221(4)(j), which provides a presumption of permanently, totally disabled for an employee that is paraplegic.
Accordingly, when, as in this case, such attempt at rehabilitation fails, the employee’s lack of ability to be educated or retrained cannot be ignored.

We find no error with the WCJ’s determination that Mr. Edler proved by clear and convincing evidence that he is PTD.

| prescription

Defendant modified Mr. Edler’s benefits from TTD benefits to SEB on April 7, 1994. It filed an exception of prescription, urging that Mr. Edler’s failure to complain of the modification for eight years was too long.

La.R.S. 23:1209 (emphasis added) provides in pertinent part:

A. In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).

Defendant modified Mr. Edler’s TTD benefits to SEB on April 7, 1994, then on June 2, 2002, it terminated his SEB. On June 13, 2002, Mr. Edler filed a claim, seeking TTD benefits or PTD benefits. He amended his claim on January 13, 2003, asserting the modification of his benefits was improper and that he is entitled to penalties and attorney fees because Defendant’s actions were arbitrary and capricious.

Under the clear wording of Section 1209, Mr. Edler’s claim is not prescribed, as less than one month elapsed between the termination of his benefits and the filing of his claim and only seven months elapsed between the termination of benefits and the amendment of his claim. Defendant’s argument, which is based on the first sentence of Section 1209(A), ignores the second sentence which provides that when payments have been made the time limitation is calculated from the last payment. In this case, that is June 2, 2002.

ImDefendant asserts Mr. Edler agreed to the modification from TTD benefits to SEB; therefore, it “should not be construed as interrupting prescription as to Mr. Edler’s claim for modification.” We reject this contention. Mr. Edler was informed of the modification of his TTD benefits to SEB; however, he testified that he was not informed of what the modification actually meant to him, i.e., his TTD benefits could be terminated after 104 weeks because he had retired and his SEB could be terminated after ten years. Furthermore, the amount of his SEB was the same as his TTD benefits, an indication that the modification was not against his interest. Without knowledge of the effect of the modification, we find Mr. Edler did not agree to the modification.

Defendant also argues it would be an injustice to allow Mr. Edler to proceed with his claim for penalties and attorney fees eight years after the modification was made. Initially, we note that Defendant’s unilateral modification of Mr. Edler’s benefits is not provided for by law. Furthermore, the only evidence regarding Mr. Edler’s medical condition at the time of the modification was that he could not work. This court sees Defendant’s modification of Mr. Edler’s benefits as an attempt to take advantage of an unsuspecting, unrepresented claimant. Defendant modified Mr. Edler’s benefits at its own peril, and we will not consider its complaints based in equity now that it has been caught in its own trap.

We find no error in the WCJ’s denial of Defendant’s exception of prescription.

Attorney Fees and Penalties

Defendant asserts the WCJ erred in awarding penalties and attorney fees to Mr. Edler. Alternatively, it argues that, if the award of attorney fees is correct, the award is too high.

InDefendant first argues that the modification of TTD benefits to SEB benefits was not a termination of benefits and that pursuant to La.R.S. 23:1201.2 penalties are not available to Mr. Edler. We agree. See Brister v. Sears Authorized Retail Dealer, 99-945 (La.App. 3 Cir. 12/8/99), 753 So.2d 871, writ denied, 00-77 (La.2/25/00), 755 So.2d 887, where this court held that a modification of TTD benefits to SEB was a discontinuance of benefits under La.R.S. 23:1201.2. Louisiana Revised Statute 23:1201.2 provides for the payment of “all reasonable attorney fees” by the employer or insurer who arbitrarily, capriciously, or with probable cause discontinues benefits. Relying on Williams v. Rush Masonry, 98-2271 (La.6/29/99), 737 So.2d 41, Brister, 753 So.2d 871, determined that penalties are not available for the discontinuance of benefits. Accordingly, the WCJ’s award of penalties in this matter was error.

With regard to attorney fees, Defendant argues Mr. Edler failed to prove that its modification of his benefits was arbitrary and capricious. On this issue, it first urges that Mr. Edler’s failure to complain of the modification earlier puts it at a disadvantage because the RM representative who made the modification is no longer employed by RM. Defendant unilaterally modified Mr. Edler’s benefits at its own peril; the impropriety of the modification is well documented by the record. This complaint is without merit.

Noting that eleven months had elapsed between the April 1993 visit and the March 1994 visit, Defendant urges that Mr. Edler was no longer receiving “continued, regular treatment” and the modification was justified by La.R.S. 23:1221(l)(d), which, at the time of Mr. Edler’s injury, provided:

An award of benefits based on temporary-total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made, and the employee’s physical | ^condition has improved to the point that continued, regular treatment by a physician is not required, or six months after the injury, whichever first occurs. If the claimant contends that his disability is of a temporary nature, but extends beyond this six-month period, he must submit a claim for extension of the period of temporary-total disability under La.Rev. Stat. Ann. § 23:1310.3.

When Defendant modified Mr. Edler’s benefits, the only medical opinion it had regarding his ability to work was that of Dr. Leoni. In March 1994, Dr. Leoni was of the opinion that Mr. Edler’s medical condition was “static” and that there was not “much he can do at this time.” At the time of Mr. Edler’s prior visit in April 1993, Dr. Leoni found him to have attained maximum medical improvement. However, noting severe weakness in Mr. Edler’s left leg and his trouble with walking, Dr. Leoni stated, “I don’t think he could do any type of work” and “I think he will remain disabled.” Accordingly, Defendant knew Mr. Edler could not work and that its modification to SEB was improper.

Even when one considers the eleven month interval in Mr. Edler’s visits to Dr. Leoni between April 1993 and March 1994, Defendant’s argument is untenable. In May 1994, two months after the modification, Mr. Edler returned to Dr. Leoni. After that visit, Dr. Leoni reported again to RM, “There’s no way he can do any type of work at this time.” Then, less than one month later, Mr. Edler attempted an FCE which he could not complete. Dr. Leoni reported to RM on June 14, 1994:

I think from my standpoint we have tried now for nearly 2 years to get Fred back to work with therapy, etc. It hasn’t worked. From my standpoint he’s got enough neurological deficit and pain that he should be made totally disabled. I plan to see Fred back but again, I don’t think he can do any type of work.

Even if Defendant’s modification was proper in April 1994, this report proved otherwise, and Defendant should have reinstated Mr. Edler’s TTD benefits. See Brister, 753 So.2d 871 and Joiner v. Newberg Venture, 94-1533 (La.App. 3 Cir. 5/3/95), 657 So.2d 206.

Defendant next argues that its voluntary payment of TTD benefits to Mr. Edler should be viewed as an award of benefits, and, pursuant La.R.S. 23:1221(l)(d), the burden was on Mr. Edler to seek an extension of benefits beyond the initial six months of benefits. RM did not modify Mr. Edler’s benefits until April 7, 1994, almost two years after his injury. We find this continuous payment of benefits “tantamount to an implied stipulation to a longer period of disability,” so that Mr. Edler did not have to seek an extension of benefits. See Flintroy v. Scott Cummins Salvage, 36,857 (La.App. 2 Cir. 3/10/03), 839 So.2d 1231, writ denied, 03-1068 (La.6/6/03), 845 So.2d 1093.

For these reasons, we find no error with the WCJ’s determination that Defendant’s modification of Mr. Edler’s benefits from TTD to SEB was arbitrary and capricious.

Defendant acknowledges the only restriction on an award of attorney fees is that it must be reasonable. See La.R.S. 23:1201.2. Counsel stipulated at trial that Mr. Edler’s attorney spent more than 195 hours in this matter. In light of his experience of more than fifty years as a litigator, the work expended, and the result achieved, we find $30,000.00 to be a reasonable fee.

The judgment of the workers’ compensation judge of benefits and attorney fees in favor of Mr. Edler is affirmed. The award of penalties is reversed. All costs of this appeal are assessed to the City of New Iberia.

AFFIRMED IN PART AND REVERSED IN PART.

AMY, J., concurs.


author: | WOODARD, Judge.

text:
    Dorothy MATHEWS, et al. v. HIXSON BROTHERS, INC., et al.
    No. 03-1065.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Linda Suzanna Harang, Law Offices of Linda S. Harang, Jefferson, LA, Stephen Barnett Murray, Robert John Diliberto, Murray Law Firm, New Orleans, LA, for Plaintiffs/Appellants, Dorothy L. Mathews, Susan Robbins.

      Russell L. Potter, Andrew P. Texada, Stafford, Stewart, & Potter, Alexandria, LA, for Defendants/Appellees, Hixson Brothers, Inc., Hixson Brothers Funeral Home.
    Susie Morgan, Mark L. Hornsby, M. Allyn Stroud, Wiener, Weiss, & Madison, Shreveport, LA, for Defendant/Appellee, Kilpatrick Life Ins. Co.
    Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and ARTHUR J. PLANCHARD, Judges.

       Judge Arthur J. Planchará, Jr., Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tem-pore.

   | WOODARD, Judge.

The Plaintiffs appeal the trial court’s ruling to decertify the class in this action. We reverse the trial court’s judgment and remand for further proceedings.

* * *

This dispute concerns whether a class action is the proper procedural method for adjudicating the Plaintiffs’ claims. The underlying claims involve burial insurance policies that Central State Life Insurance Company (Central State) issued which designated a Hixson Brothers Funeral Home as the provider of funeral benefits. These policies provide that Hixson Brothers Funeral Home will furnish certain funeral benefits, including a casket, when the policyholder dies. Plaintiff, Ms. Dorothy L. Mathews, alleges that Hixson refused to furnish these benefits when her husband, Mr. Joe Mathews, a holder of one of the described policies, died.

When her husband passed away, Ms. Mathews and her son, Joe, Jr., presented Hixson with the policy. When Hixson showed her the press board box that it provided under the policy, she found it to be completely unacceptable. When she refused to accept the particular casket, Hixson informed her that she had to accept it in order to receive the other benefits listed in the policy, such as embalming, a funeral coach, use of the funeral home, and necessary cemetery equipment. Hix-son would not allow her to purchase another casket at retail price without forfeiting all of the benefits in the policy. Rather than allowing her to buy another casket and substitute it under the policy, Hixson required her to pay for the casket as well as current retail costs for the additional services which were supposed to have been provided under the policy. They simply gave her a credit of $1,000.00, the face value of the policy, against the total amount of the funeral bill. Accordingly, Ms. Mathews spent $6,299.00 on burial products and services and received a $1,000.00 credit against this amount with Hixson.

Consequently, she instituted an action for breach of contract against Hixson Brothers Funeral Home, Hixson Brothers, Inc. (collectively Hixson) and the insurance company that has assumed Central State’s burial policies, Kilpatrick Life Insurance Company (Kilpatrick). She, also, sought to certify a class of similarly situated Plaintiffs; namely, other beneficiaries or heirs who purchased a Central State (now | gKilpatrick) or Hixson policy and made funeral arrangements under that policy at any of Hixson’s funeral homes.

Subsequently, Ms. Susan Robbins joined as a Plaintiff in the action because when Ms. Robbins made her grandmother’s funeral arrangements at Hixson, she, too, found the casket that Hixson provided under her grandmother’s policy unacceptable. Ms. Robbins offered to accept the particular casket and donate it or dispose of it in order to receive the other benefits of the policy and to purchase another casket in which to bury her grandmother. However, Hixson informed her she must, either, bury her grandmother in the proffered casket or accept a credit for the face value of the policy and apply it against her outright purchase of another casket and those services which, otherwise, would have been provided under the policy.

Thus, Ms. Mathews sought to certify a class of persons like herself and Ms. Robbins who had made funeral arrangements for a loved one at a Hixson Funeral Home under a Kilpatrick or Hixson policy. Recognizing that contract claims prescribe after ten years, she limited the class to those who made funeral arrangements from May 26, 1989, ten years before the date that Ms. Mathews filed her action, until the date of class certification.

The policies involved are not exactly the same; however, they all include a casket as part of the funeral benefits. Hixson admits that only one casket was offered on those policies which had a face value of $1,500.00 or less, and for policies with a greater face value amount, they offered a different casket. Specifically, Plaintiffs allege that “in servicing these burial policies, Hixson unilaterally decided that two types of press board caskets (i.e. particle board) were the only caskets that would be provided under the terms of the policies in question.” They are identified as Models 200 and 250. “The Model 200 is a cloth-covered particle board, i.e. press board box. It is furnished to policyholders with a policy having a face value of less than $1500. The Model 250 is also a cloth-covered particle board, i.e. press board box, with a slightly different contour. It is furnished to those whose policies have a face value of more than $1500.” “They were not kept on display in the casket showroom” but, instead, one of them was “rolled out of a utility (broom) closet into the showroom.”

The maker of the policies did not specify the type of casket the funeral benefit included to put potential purchasers on notice that it was, in fact, a pressboard casket. Certain policies provided for a “casket — (selected by family).” In these instances, |3Hixson gave the family a choice between these same two caskets, neither of which they displayed in then-showroom or offered for sale to the general public. Furthermore, Hixson admits that its regular practice was to prohibit any casket substitutions under these policies and to give, only, a credit in the amount of the policy towards the purchase of any other casket and the purchase of the other goods and services which, otherwise, would have been provided under the policy at no cost.

Because some of these policies contained a term limiting the right to sue on the policy to two years after the insured’s death, the Defendants asserted that many of the class members had lost their rights to bring an action. Consequently, they argued that the class was not so numerous that it required class action treatment. The trial court responded with a finding that any policy term, limiting the time period for bringing an action, was null and void. Furthermore, it found that the action met all of the prerequisites for class certification. Consequently, the Defendants appealed that ruling.

A panel of this court reversed the trial court’s ruling that the burial policies’ time limit provisions were null and void but found that this reversal did not automatically make certification inappropriate. Rather, this court acknowledged that under La.Civ.Code art. 592(A)(3)(c), the trial court would have the power to enlarge or restrict the class, amend or reverse certification at any time.

Subsequently, the Defendants urged the trial court to decertify the class, asserting that this court’s ruling on the time limit provisions effected such a dramatic decrease in class members that the Plaintiffs no longer met the numerosity prerequisite. They, also, argued that the class definition was overly broad because it included members who were not necessarily aggrieved or harmed by the Defendants’ conduct; under an appropriately revised definition, the Plaintiffs did not meet their burden to prove the numerosity prerequisite; and no additional claimants coming forward since the certification hearing indicated that it is unlikely that a sufficient number of Plaintiffs will file suit to make joinder impracticable; thus, a class action was no longer a superior method of adjudication.

|/The trial court agreed with the Defendants and granted their motion to recall class certification. The Plaintiffs have appealed. Therefore, we must review the trial court’s decision to decertify. .

* * *

Standard of Review

Certification determination requires an analysis of the particular facts and circumstances of each case and the trial court has broad discretion in deciding whether to certify a class. Moreover, it has discretion to amend or reverse its decision at any time. We may not disturb its decision unless it is manifestly erroneous. Notwithstanding, we must recognize that “[t]he recent jurisprudential trend is to require the trial court to grant certification when the elements have been satisfied.” This trend is consistent with our supreme court’s statement in McCastle v. Rollins Environmental Services of Louisiana, Inc.: “if there is to be an error made, it should be in favor and not against the maintenance of the class action.”

Class Action Prerequisites

One or more persons can sue and represent a class of other similarly situated persons, only, if prerequisites are met under La.Code Civ.P. art. 591(A). First, the class must be so numerous that joinder of all members as individual named parties is “impracticable” (numerosity). This prerequisite requires an examination of the | .¡specific facts of each case and imposes no absolute limitations. The Plaintiffs must, also, show that there are questions of law or fact common to the class (commonality). The third factor, typicality, requires the representatives’ claims or defenses to be typical of those of the class as a whole such that, in representing their own interest, they represent the interest of the class members (typicality). Another factor, adequacy of representation, ensures that the named representative(s) will fairly and adequately represent the class. Interpreting the federal class action rule, upon which La.Code Civ.P. art. 591 is based, the U.S. Supreme court has found that both commonality and typicality “merge [and] serve as guideposts for determining whether, under the particular circumstances, maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately represented in their absence.” Finally, there must be an objectively definable class.

In addition to these prerequisites under La.Code Civ.P. art. 591(A), the action must fit into at least one of the categories listed in La.Code Civ.P. art. 591(B). The relevant category in the instant action is section (B)(3), requiring that common questions of law or fact predominate over questions that would be specific to each individual and that a class action is a superi- or adjudicatory method.

The trial court recalled certification in the instant case based on its finding that numerosity was no longer met and that a class action was no longer a superior method of adjudicating the Plaintiffs’ claims. We examine its decision in light of these particular factors.

| Numerosity

The Plaintiffs presented evidence that between May 1989 and January 2000, Kilpatrick made 2,464 payments to Hixson for Central State Policies and it made 2,142 other payments to Hixson but was unable to cross-reference them to specific policies. The trial court found that even a small percentage of this total — 4,606— “foreshadow[s] the probability that numerous individual suits would or may be filed if the class certification were denied.” However, this court’s ruling that the two-year prescriptive terms of some of the policies is permissible decreases the number of potential claimants. For example, a large percentage of the sample policies in the record are subject to a two-year prescriptive period and, therefore, have prescribed.

Nonetheless, Mr. Bruce Robinson, vice president and general manager of Hixson Brothers, estimated that in 1999, Hixson provided 200 funerals under Kilpatrick policies. Furthermore, the record indicates that from May 1997 to January 2000, there were 889 instances in which Kilpatrick made payments to Hixson under a Central State policy, corroborating Mr. Robinson’s estimation. None of these instances would be affected by the restrictive prescriptive terms. Accordingly, this court affirmed certification in its prior decision on this case despite its ruling concerning the prescriptive terms, finding that “a significant number of policyholders would still be affected by this suit.” Thus, the decision that the prescriptive periods may be enforced, alone, does not justify decertification.

Notwithstanding, the trial court also reconsidered its class definition in its previous certification judgment. It had defined the class as follows:

Every private or juridical person (including, but not limited to natural persons, corporations, partnerships, trusts, limited liability corporations, joint ventures, estates, guardians, tutors, etc.):
1) Who is a beneficiary and/or heir of all known insured persons who purchased burial insurance policies that were issued by Central State Life Insurance Company or Hixson Life Insurance Company; and
2) Who, upon the death of the insured, made arrangements for the burial of the named insured at a funeral home located in the State of |7Louisiana and owned by Hixson Brothers, Inc., between May 26, 1989 through September 26, 2001.

However, in reconsidering this definition, the trial court agreed with the Defendants that “those who were not dissatisfied with the proffered casket or did not request a substitution are not aggrieved and should not be considered as part of the class.” It stated further:

Plaintiffs have not offered evidence of whether such a definable group of aggrieved persons exist. The fact that approximately 200 policies were issued each year for the 2-year period at issue does not establish that there is a definable group of aggrieved persons whose joinder is impracticable.

We cannot agree with the trial court’s reasoning here. First, the period at issue is a four-year period. Even under policies containing a two-year prescriptive period, the class would extend to those persons who buried their loved ones from May 26, 1997 to September 26, 2001. Furthermore, the record indicates that there were 889 instances in which Central State made payments to Hixson from May 1997 to January 2000. Additionally, the class would still include some members who buried their loved ones as long ago as 1989 because some of the policies, albeit a small percentage, do not contain the two-year prescriptive period.

Moreover, while the trial court’s recognition that its class definition may have been overly broad may justify an amendment to the definition, we do not find that it justifies a measure as drastic as decerti-fication. Specifically, Mr. Robinson, vice president and general manager of Hixson Brothers, stated that a very small amount of those who presented Hixson with one of the described policies actually used the casket that Hixson offered. This indicates that most were not satisfied with the casket. Thus, we find that the Plaintiffs have, in fact, offered sufficient proof that a definable group of aggrieved persons exists. Further, even a conservative approximation of the number of persons in this group sufficiently satisfies the numerosity requirement. Accordingly, we find no justification for class decertification on this basis.

1 ^PREDOMINANCE AND SUPERIORITY

The trial court gave two additional reasons for decertifying the class, both of which involve La.Code Civ.P. art. 591(B)(3)’s requirement that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” The Article lists six factors to guide in this determination:

(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation.

First, the trial court considered that no additional claimants had come forward since the certification hearing. It recognized that “judicial efficiency means consideration of the existence of, or likelihood or improbability of future similar suits,” and found that “the Court does not anticipate the filing of numerous suits in the case sub judice.” However, as it previously recognized in its certification judgment, “It is probable, if not a certainty, that numerous members of the proposed class are unaware of their rights and, therefore, unlikely to file suit to vindicate said rights.”

We see no evidence in the record that discounts the trial court’s earlier finding in any way. In fact, no new discovery or evidence was offered between the certification and the hearing to decertify. Thus, the only new consideration before the Ifltrial court was this court’s opinion, which reinforced the trial court’s conclusions concerning La. Code Civ.P. art. 591(B)(3). This court agreed that three factors under section (B)(3) supported certification. Specifically, we said, “Nothing in the record suggests that this litigation will be unmanageable. Contrary to Defendants’ arguments, the individual claims appear relatively small, and it seems unlikely that the class members will prosecute individual actions, either from their lack of knowledge or of their rights or from the type of insurance involved.” Accordingly, the fact that no additional claimants have come forward actually supports, rather than undermines, certification of a class in this action, particularly under sections (e) and (f). Moreover, judicial efficiency is but one of the factors to consider in determining whether a class action is a superior method of adjudication.

Lastly, the trial court found that procedural superiority of a class action may be further undermined if parol evidence becomes necessary to determine individual intent. However, again, in its certification judgment, it adequately addressed this concern, stating:

[ T]he Defendants have not suggested that they have ever issued a burial insurance policy that permits one to select an alternate casket without negating the insurance policy. In the absence of any demonstration that the Defendants have issued an insurance policy that does permit an alternative casket selection, it follows an “individual-by-individual, contract-by-contract” determination will not be a dispositive factor in this case.

Again, this court affirmed the trial court’s reasoning, stating:

Defendants have not disputed that all Central State policyholders were treated in the same manner in that they were not given the full benefits of the policy if they chose to purchase a casket that was not offered to them. Defendants apparently treated all Central State customers in this manner, regardless of the specific provisions in the policy presented to them. Thus, the differences in the individual policies are not as significant as Defendants suggest, given this uniform course of conduct.

|inAs the parties offered no new evidence and conducted no new discovery after the trial court and this court made the above statements, we find no reasonable basis for it to have reached an opposite conclusion at this juncture.

Accordingly, after reviewing the reasons for its decision, we believe that decertification was premature.

CONCLUSION

The Plaintiffs appeal the trial court’s decision to recall its prior class certification. We find that the trial court erred in decertifying the class and, therefore, reverse its judgment and remand for further proceedings. We assign the costs of this appeal to Defendants/Appellees.

REVERSED AND REMANDED.

      . Mathews v. Hixson Bros., Inc., 02-124 (La.App. 3 Cir. 7/31/02), 831 So.2d 995, writs denied, 02-2286, 02-2305 (La.12/13/02), 831 So.2d 984.

      . Id.

      . Martello v. City of Ferriday, 01-1240 (La.App. 3 Cir. 3/6/02), 813 So.2d 467, writs denied, 02-1002, 02-990, 02-1514 (La.6/7/02), 818 So.2d 769, 770, 771.

      . La.Code Civ.P. art. 592(A)(3)(c).

      . Martello, 813 So.2d 467.

      . Boudreaux v. State, DOTD, 96-137, p. 14 (La.App. 1 Cir. 2/14/97), 690 So.2d 114, 124 (citing Dumas v. Angus Chem. Co., 25,632 (La.App. 2 Cir. 3/30/94), 635 So.2d 446.)

      . 456 So.2d 612, 620 (La.1984).

      . La.Code Civ.P. art. 591.

      . La.Code Civ.P. art. 591(A)(1).

      . La.Code Civ.P. art. 591(A)(2).

      . La.Code Civ.P. art. 591(A)(3).

      . La.Code Civ.P. art. 591(A)(4).

      . Clark v. Trus Joist MacMillian, 02-676 (La.App. 3 Cir. 12/27/02), 836 So.2d 454, writ denied, 03-275 (La.4/21/03), 841 So.2d 793.

      . General Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 157 n. 13, 102 S.Ct. 2364, 2370, 72 L.Ed.2d 740 (1982).

      . La.Code Civ.P. art. 591(A)(5).

      . Mathews, 831 So.2d at 1001.

      . Id. at 1005.

      . Id. at 1005.


text:
    STATE of Louisiana v. J.T.S.
    No. 03-1059.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Robert R. Bryant, Jr., District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Plaintiff, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, J.T.S.
    J.T.S., Lake Charles, LA, pro se.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   h SULLIVAN, Judge.

J.T.S. was charged by bill of information with one count of aggravated oral sexual battery, a violation of La.R.S. 14:43.4, one count of aggravated incest, a violation of La.R.S. 14:78.1, and one count of molestation of a juvenile, a violation of La.R.S. 14:81.2. A jury convicted him of attempted oral sexual battery and aggravated incest and acquitted him on the molestation of a juvenile charge. The trial court sentenced Defendant to five years at hard labor without the benefit of parole, probation, or suspension of sentence on the conviction for attempted oral sexual battery, to twelve years at hard labor, six years suspended, on the conviction for aggravated incest, and to five years active probation following his release from incarceration. The trial court ordered that the sentences be served concurrently and fined Defendant one thousand dollars, plus court costs.

On May 9, 2003, Defendant filed a motion to reconsider his sentences, which was denied. Defendant appeals his convictions. In brief prepared by defense counsel, Defendant argues the evidence was insufficient to convict him. Defendant also filed a pro se brief in which he assigns as error the sufficiency of the evidence, the refusal of the trial court to grant a continuance of the trial, and the terms of his sentences.

Facts

The charges against Defendant arise from reports by his daughter, K.S., that he sexually abused her from April 1990 until February 1998. At the time of trial, K.S. was seventeen years old. She testified that her father began molesting her when she was five years old and stopped when she was twelve years old when she was taken out of the family home by the authorities. She testified that, when she was five, her father began to fondle her breasts and genitalia and to digitally penetrate her. She testified that he did this often but there was no pattern to the occurrences. She also |2testified that the level of abuse intensified as she grew older: he began forcing her to perform oral sex acts on him; he performed oral sex acts on her; and he also attempted to engage in intercourse with her.

K.S. testified that she told her mother that her father was touching her when she was five years old, but her mother did nothing. Her mother admitted this. K.S. also told her maternal aunt and maternal grandmother about the sexual abuse when she was approximately nine years old. Both women corroborated this testimony and testified that they threatened to report Defendant if he did not stop abusing K.S.

Shortly before the authorities were notified of this abuse, an incident occurred which triggered the report of abuse to the authorities. K.S. testified that while she and her older brother were watching television, her father lay down next to her on the sofa, covered them with a blanket, and, unbeknownst to her brother, molested her in his presence. After this incident, K.S. reported the abuse again to her grandmother. Again, her grandmother did nothing, so she reported it to her school friend who went with her to the school counselor. In turn, the school counselor reported the abuse to the proper authorities. Investigation of KS.’s claims resulted in this prosecution.

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Our review of the record revealed two errors patent with Defendant’s sentence for aggravated incest.

At the request of the State, the trial court ordered Defendant to pay restitution for the cost of transferring witnesses. The trial court did not state its authority for imposing restitution or set the amount of restitution. Unable to find specific statutory or jurisprudential authority for this condition of probation, we first consider whether | sit was authorized. To begin, we are mindful of the well-established tenet of statutory construction that criminal statutes are subject to strict construction under the rule of lenity. State v. Carr, 99-2209 (La.5/26/00), 761 So.2d 1271.

Louisiana Code of Criminal Procedure article 895 provides for the imposition of restitution as a condition of probation. Under this article, restitution is discretionary with the trial court. Louisiana Code of Criminal Procedure article 895(A)(7) provides that restitution is to be paid to the “aggrieved party for damage or loss caused by [the defendant’s] offense.” Louisiana Code of Criminal Procedure article 895.1 also provides for restitution. Restitution is mandatory under this provision “where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense.” La. Code Crim.P. art. 895.1. The payment of money to various state agencies and programs as a condition of probation is also specifically provided for in Article 895.1; however, the State is not one of the programs specifically identified in subpart B of the provision.

Louisiana Revised Statutes 46:1844(M) also authorizes the imposition of restitution on a defendant on probation. While it provides for the imposition of restitution as a condition of probation or parole, nothing in the statute, which is entitled “Rights of Crime Victims and Witnesses,” indicates that the State is a proper party for restitution. Subpart M of this provision is entitled “Victims’ Rights” and refers to the “appropriate party;” however, a reading of the entire provision gives no indication that the State is an “appropriate party” thereunder.

We have not found any case on point, but State v. Sanderson, 97-1281 (La.App. 3 Cir. 5/13/98), 715 So.2d 483, is similar. In Sanderson, the trial court | ¿awarded restitution to the State for the foster care of a child born as a result of the defendant’s criminal offense of carnal knowledge of a juvenile. Articles 895 and 895.1 were discussed, and this court found that the defendant could not be ordered to make restitution to the State, specifically noting that the State is not listed in Article 895.1. We find implicit in this holding the conclusion that the State was not an “aggrieved party” under La.Code Crim.P. art. 895(A)(7) and restitution was not appropriate under that provision either.

We find that the restitution awarded in the present case is not authorized by La. Code Crim.P. art. 895, La.Code Crim.P. art. 895.1 or La.R.S. 46:1844(M) and vacate that portion of Defendant’s sentence.

The trial court also ordered Defendant to pay a $1,000.00 fine plus court costs as a condition of probation “according to a schedule to be worked out by the Office of Probation and Parole.” It was error for the trial court not to establish a payment plan for the fine and costs Defendant was ordered to pay. See State v. Fontenot, 01-540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255 and State v. Reynolds, 99-1847 (La.App. 3 Cir. 6/7/00), 772 So.2d 128. Accordingly, this matter is remanded to the trial court for resentencing, and the trial court is instructed to establish a payment plan for the fine and costs Defendant was ordered to pay as a condition of his probation.

Sufficiency of the Evidence

Defendant alleges that the State failed to prove beyond a reasonable doubt all the elements of attempted aggravated oral battery and aggravated incest. His arguments are premised on inconsistent statements K.S. made prior to and during the trial and discrepancies between witnesses’ testimonies and KS.’s testimony. He asserts that these inconsistencies and discrepancies rendered KS.’s testimony not ^credible; therefore, he argues that the State failed to prove beyond a reasonable doubt all the elements of the crimes. He also argues that, because there was no physical evidence to corroborate K.S.’s accusations of sexual abuse, the evidence was insufficient.

Defendant’s primary argument regarding sufficiency of the evidence is that K.S. is not to be believed. He does not contend that her testimony does not establish all of the essential elements of attempted aggravated oral battery and aggravated incest as defined by La.R.S. 14:43.4, La.R.S. 14:27, and La.R.S. 14:78.1, respectively. Therefore, our only question on appeal is “whether the jury acted rationally in finding [KS.’s] testimony credible.” State v. Davis, 02-1043, p. 2 (La.6/27/03), 848 So.2d 557, 558.

In this assignment, Defendant points to KS.’s account of the incident referenced above where she testified that he molested her in the presence of her brother. According to K.S., Defendant entered the room and laid down with her on the sofa while J.S. was sitting near by in a recliner. She further testified that he covered them with a blanket, fondled her genital area, and digitally penetrated her several times and that this activity lasted for twenty or thirty minutes.

Defendant next points to the testimony of KS.’s older brother, J.S., who was fifteen at the time of the incident. J.S. testified that he did not notice any unusual activity between his father and K.S. under the blanket and that he never saw anything to indicate that Defendant was sexually abusing K.S.

Defendant also points out that K.S. told a different story to Erica Garrett of the Office of Community Services. At trial, K.S. admitted that she told Ms. Garrett that, during the episode on the couch Defendant also performed oral sex acts on her, forced Rher to do the same to him, and attempted to engage in intercourse with her. When K.S. was cross-examined regarding these inconsistencies and the other differences in her story, she explained: “There were — there were thousands of times, there were lots of times. I don’t know the details, you know, but I know what happened.”

In addition to this inconsistency, Defendant points out that K.S. testified that she had seen him ejaculate semen, yet Dr. Scott Bergstedt, the doctor who examined her and questioned her regarding the abuse on behalf of the State, testified that she told him she did not know if she ever saw “fluid” come out of Defendant’s penis. Additionally, at various times throughout her testimony, KS. contradicted herself when she described the sexual acts as occurring several times a week to just a few times a month.

Defendant also cites the lack of physical evidence as support for his claim that the State failed to present sufficient evidence to convict him of aggravated incest and attempted aggravated oral battery. However, Dr. Bergstedt testified that the type of abuse alleged in this case, fondling and digital penetration, would not necessarily result in physical signs of abuse. His testimony was not contradicted.

Defendant contends that K.S. made the accusations of sexual abuse because she was mad at him for making her wear glasses and that, a month before the incident on the couch, he found a letter by K.S. addressed to a boy and when he confronted the boy’s parents, “KS. was hurt.” He made similar excuses to Mr. Mire and Dr. Menou, who found them unbelievable.

Defendant’s arguments ignore the fact that KS. did not make just one complaint of abuse prior to him being prosecuted. Instead, over the course of the seven years of her abuse, she made at least four reports — the earliest to her mother 17when she was approximately five years old. Her mother, grandmother, and aunt admitted that she had reported the abuse to them and that they did not report Defendant to the authorities. We further note that KS.’s female cousin B.R. also testified that Defendant had abused her a number of years before while she was visiting their home. Her description of Defendant’s actions were very similar to those described by K.S.

The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Rowan, 97-21 (La.App. 5th Cir.4/29/97), 694 So.2d 1052, 1056. Where there is conflicting testimony about factual matters, the resolution of which depends on a determination of credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. State v. White, 472 So.2d 130, 132 (La.App. 5th Cir.1985).

State v. Hotoph, 99-243, p. 12 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, writs denied, 99-3477 (La.6/30/00), 765 So.2d 1062; 00-150 (La.6/30/00), 765 So.2d 1066. In State v. Dunn, 30,346, pp. 6-7 (La.App. 2 Cir. 2/25/98), 708 So.2d 512, 517, where the second circuit discussed the impact of impeachment on a witness’s credibility:

When a witness is impeached, this simply means the jury, as the trier of fact, is presented with evidence which it could consider and weigh in determining the credibility, or believability, of a witness. Simply because the witness may have been impeached by prior inconsistent statements does not mean that the jury is prohibited from believing anything said by the witness. The inconsistencies in the witness’s statement are one of any number of factors the jury weighs in determining whether or not to believe a witness’s trial testimony. State v. Bender, 598 So.2d 629 (La.App. 3d Cir.1992), writ denied, 605 So.2d 1125 (La.1992).

A reviewing court can only impinge upon the fact finder’s discretion to the extent necessary to guarantee the fundamental protection of due process of law. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Therefore, this court cannot | ssecond-guess the credibility determinations of the jury beyond the Jackson sufficiency evaluation. State v. Richardson, 425 So.2d 1228 (La.1983); State v. Viree, 95-176 (La.App. 3 Cir. 3/6/96), 670 So.2d 733, writ denied, 96-885 (La.9/20/96), 679 So.2d 431.

This assignment is without merit.

Denial of Continuance

In a pro-se assignment of error, Defendant asserts that the trial court erred when it denied his motion for continuance of the trial, arguing that the continuance should have been granted because defense counsel was not adequately prepared for trial. Defense counsel was appointed to represent Defendant March 1, 2000. Trial of this matter was continued at Defendant’s request on two occasions prior to this scheduled trial.

A trial court’s decision to deny or grant a continuance is within its broad discretion and will not be disturbed absent a clear showing of abuse of that discretion. State v. Bourque, 622 So.2d 198 (La.1993). Generally speaking, a trial court’s refusal to grant a continuance will not be reversed unless the defendant can show prejudice. Id.

Defense counsel made an oral motion for a continuance the afternoon before the trial was scheduled to commence, arguing he was not prepared to proceed to trial. Counsel stated he had been unable to prepare for this trial because he had been preparing for a murder trial which had been scheduled to start two weeks prior to this trial. He also urged that count three of the bill of information should be severed from counts one and two or continued. After the parties began arguing the merits of the motion, the trial court ordered that the contradictory hearing be continued until the | (following morning, allowing defense counsel additional time to prepare his arguments.

During the hearing, the trial court questioned defense counsel’s failure to file a written motion, his knowledge that this case became his number one case after the murder trial was stayed twenty days earlier, and his knowledge that witnesses were being transported from Tennessee for the trial. Counsel explained that he had contemplated filing the motion ten days before, but did not because he thought it might have been premature at that time. He also acknowledged that he knew twenty days before this trial was scheduled to begin that the murder trial was stayed and that this trial was going to proceed.

Louisiana Code of Criminal Procedure article 707 requires that a motion for continuance be in writing and filed seven days prior to trial. Failure of a motion to satisfy these requirements has been held insufficient grounds to deny a continuance when the basis of the motion arose unexpectedly. See State v. Parsley, 369 So.2d 1292 (La.1979) and State v. Commodore, 00-76 (La.App. 4 Cir. 11/21/00), 774 So.2d 318, writ denied, 00-3485 (La.11/21/01), 800 So.2d 869. There was no unexpected occurrence which justifies defense counsel’s failure to file a timely motion for continuance, especially since he admitted that he had contemplated filing the motion.

With regard to the motion to eon-tinue/sever count three of the bill of information, an alleged sexual molestation of a victim other than K.S., Defendant urged that his failure to receive the victim’s statement until five days before this trial was to begin was the reason he was unprepared. In response, the State argued that it had responded to Defendant’s discovery requests on November 7, 2001, and included a copy of the bill of information filed February 14, 2000, which included count three. |in Additionally, the State pointed out that a victim’s statement is not discoverable, unless it contains exculpatory information and that, even though that was not the ease here, it had given Defendant a copy of the statement five days prior to trial.

Offenses may be joined in the same bill of information in separate counts for each offense under La.Code Crim.P. art. 493, which provides:

[ I]f the offenses charged ... are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

Discussing the grounds for severance, the supreme court has stated:

The motion to sever is addressed to the sound discretion of the trial court and the court’s ruling should not be disturbed on appeal absent -a showing of an abuse of discretion. State v. Williams, 418 So.2d 562, 564 (La.1982). In ruling on such a- motion, the trial court must weigh the possibility of prejudice to the defendant against the important considerations of economical and expedient use of judicial resources. In determining whether joinder will be prejudicial, the court should consider the following:
whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant would be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile.

State v. Washington, 386 So.2d 1368, 1371 (La.1980) (citations omitted). State v. Brooks, 541 So.2d 801, 804 (La.1989).

The trial court interpreted Defendant’s written motion for continuance on count three as a motion to sever and addressed the issue accordingly. The trial court believed the jury would be able to segregate count three from counts one and two without becoming confused and without Defendant being prejudiced, observing ^Defendant's denial of committing the crimes was consistent and that the evidence on all three counts would likely be consistent. Additionally, the court judge stated it would reconsider the motion, if the jury indicated during voir dire that they could not separate the acts.

The supreme court has held that joining different charges involving sexual offenses against children may arouse hostility. State v. Washington, 386 So.2d 1368. Accordingly, we will consider whether the inclusion of count three may have aroused the hostility of the jury toward Defendant. In Washington, 386 So.2d 1368, the supreme court found that the trial court erred when it denied the defendant’s motion for severance. The defendant was charged with four counts of aggravated rape of four, five-year-old girls. The supreme court held:

In Louisiana, “Evidence of crimes other than the one for which the defendant is on trial is admissible as ‘other crimes’ evidence when the two incidents exhibit such peculiar modes of operation to distinguish them as the work of one person” and when they are relevant to a material issue in the case. La.R.S. 15:446; State v. Carter, [352 So.2d 607 (La.1977)]; State v. Prieur, 277 So.2d 126 (La.1973).
The four crimes tried together here, although similar, are not so unique as to qualify as “signature crimes”. Although all four involved sexual assault on small girls, the method of assault varied with each. The perpetrators’ mode of transportation differed in one instance. The methods of enticement varied and finally, the four attacks occurred in four different places at four different times. Thus, these crimes were not admissible under the Prieur rationale.
We further note that although the evidence for each crime was simple and distinct, the trial court’s instruction of-' fered little guidance to the jury in order to prevent their cumulating the evidence. Finally, we note that the crimes herein charged, involving sexual molestation of young children, are the type of crimes which arouse a hostility in any jury which would be compounded by each additional charge. Our review can only lead to the conclusion that the defendant herein suffered substantial prejudice in trying these counts together.

Id. at 1372-73 (footnote omitted).

1-ipThe offenses at issue here were very similar: they were committed on young girls in Defendant’s home and the descriptions of Defendant’s actions by the victims were very similar. The facts were not complex. Furthermore, the jury’s failure to convict Defendant on count three and their conviction of him of a lesser charge on count one indicate that the jury did not allow the similarity of the crimes to prejudice their consideration of the facts in light of the applicable law. Accordingly, the trial court did not err when it denied Defendant’s motion for continuance and motion to sever. This assignment lacks merit.

Excessive Sentence

In his final assignment of error, Defendant alleges his sentence is excessive, and that the trial court placed too much weight on an evaluation by Troy Mire, a licensed clinical social worker, which was attached to the pre-sentence investigation report ordered by the trial court.

On his conviction of attempted aggravated oral sexual battery, Defendant was sentenced to five years, which is one-half of the maximum term permitted by law. La. R.S. 14:43.4; La.R.S. 14:27. He was sentenced to twelve years at hard labor with six of the twelve years suspended. Aggravated incest is punishable by a range of imprisonment, “with or without hard labor, for a term not less than five years nor more than twenty years.” La.R.S. 14:47:81. His sentences were ordered to be served concurrently.

As stated by the supreme court in State v. Cook, 95-2784, p. 3 (La.5/31/96); 674 So.2d 957, 959, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996), “The only relevant question on review ... [is] ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more | ^appropriate.’ State v. Humphrey, 445 So.2d 1155, 1165 (La.1984) (citing State v. Williams, 412 So.2d 1327 (La.1982)).”

We have reviewed cases in which the defendants, first time offenders, were convicted of aggravated oral sexual battery or aggravated incest to assist in our determination of whether Defendant’s sentences were excessive. See State v. Smith, 02-719 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061. Our review leads us to the conclusion that the sentences imposed on Defendant are not excessive. See State v. Jones, 34,863 (La.App. 2 Cir. 8/22/01), 794 So.2d 107, writ denied, 01-2648 (La.8/30/02), 823 So.2d 938, a first time felony offender convicted of one count of aggravated oral sexual battery sentence of fifteen years at hard labor was not found to be excessive; State v. Wall, 33,385 (La.App. 2 Cir. 6/21/00), 764 So.2d 1191, sentence of twenty years at hard labor where a first time offender convicted of aggravated incest was not excessive; State v. Anderson, 95-1688 (La.App. 3 Cir. 5/8/96), 677 So.2d 480, first- time offender’s sentences of fifteen years each on two convictions for aggravated incest committed against his fifteen-year-old stepdaughter were found not be excessive. See also State v. Foshee, 99-1423 (La.App. 3 Cir. 4/5/00), 756 So.2d 693 and State v. Ray, 96-1297 (La.App. 3 Cir. 4/2/97), 692 So.2d 1292, writ denied, 97-1279 (La.1/9/98), 705 So.2d 1090.

Finally, Defendant questions why “Judge Michael Canaday gave special weight to Troy Mire’s pre-sentencing report on my case, and denied the motion based on information received in the pre-sentence report.” The trial judge articulated the conditions and aggravating and mitigating factors he considered when particularizing Defendant’s sentences as required by La.Code Crim.P. art. 894.1, sentencing guidelines. Regarding condition 894.1(A)(1), whether there is a risk of reoc-currence |uof the crimes, the trial court referred to Mr. Mire’s report because he reported that he felt Defendant was susceptible to re-offend unless he had proper counseling or treatment. The trial court also referred to Mr. Mire’s report when he considered aggravating factors presented by Defendant’s behavior, finding his denial of abusing K.S. and refusing to accept treatment to be aggravating circumstances. Mr. Mire is a licensed clinical social worker and a registered clinical sexual offender treatment provider who had interviewed K.S. and Defendant. We find no error in the trial court’s reliance on Mr. Mire’s expertise when sentencing Defendant.

The trial court’s imposition of the sentences was based on consideration of many of the factors outlined in the guidelines. Defendant’s sentences are not so disproportionate to the crimes committed by him as compared to similarly situated defendants that they shock this court’s sense of justice, particularly when viewed in light of the harm done to K.S. and society in this case. The trial court did not err when it denied Defendant’s motion for reconsideration of the sentences. This assignment is therefore without merit.

Disposition

Defendant’s convictions are affirmed. The sentence imposed for attempted aggravated oral sexual battery is affirmed. The sentence imposed for aggravated incest is vacated, and the case is remanded for re-sentencing at which time the trial court is instructed to establish a payment plan for the fine and costs ordered as a condition of probation.

CONVICTIONS AFFIRMED; SENTENCE FOR ATTEMPTED AGGRAVATED ORAL SEXUAL BATTERY AFFIRMED; SENTENCE FOR AGGRAVATED INCEST VACATED; REMANDED FOR RE SENTENCING.