author: LGAIDRY, J.

text:
    In re WB & CB Applying for the Adoption of AKA
    No. 2003 CJ 0717.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2003.
    Michael E. Theriot, Baton Rouge, for Appellants, WB & CB.
    E. Buddy Thompson, Baton Rouge, for AA.
    Stephen Dixon, Baton Rouge, for the minor, AKA.

      KO, Gonzales, In proper person.
    Before: WHIPPLE, KUHN and GAIDRY, JJ.
   LGAIDRY, J.

WB and CB sought to adopt AKA, a male child born in November 2000 to AA. AA executed an act of surrender, but the child’s alleged biological father, KO, opposed the adoption. After a hearing, the trial court maintained KO’s opposition and dissolved AA’s surrender. WB and CB (appellants) appeal.

At the beginning of the hearing, counsel for appellants orally requested that the court order blood tests to prove KO’s paternity of AKA. KO did not formally acknowledge AKA, his name does not appear on the birth certificate, and he did not register with the Putative Father Registry. AKA’s attorney did not object to the blood tests. But when the trial court questioned KO about the blood tests, he replied, “I don’t need one.... I know he’s mine. I took care of him.” The trial court denied the request, stating that KO’s appearance to contest the adoption was a tacit acknowledgment and that paternity was “not an issue.”

Appellants’ first assignment of error on this appeal is that the trial court erred in denying their request for blood tests. After reviewing the applicable jurisprudence, we agree. In In the Interest of E.C.B., 29,725 (La.App. 2 Cir. 1/29/97), 691 So.2d 687, the alleged father formally acknowledged the child, registered with the Putative Father Registry, and opposed the adoption. The court of appeal found there was no need to obtain a judgment of paternity because no one actually disputed the alleged father’s paternity. The court dissolved the surrender and awarded custody to the alleged father. The Louisiana Supreme Court, however, upon application for writs, remanded the case to the district court Lfor blood/DNA testing. In the Interest of E.C.B., 97-0513 (La.3/7/97), 691 So.2d 663.

This error by the trial court compels us to vacate the judgment of the Juvenile Court and remand this case to the court below. The Juvenile Court shall order DNA/blood testing of KO and AKA and hold a new hearing to receive those results into evidence within 20 days of the date of this order. The Juvenile Court shall then enter a new judgment, which can then be appealed to this court in an expedited manner pursuant to Louisiana Children’s Code article 1143 if any party so desires. Until the Juvenile Court renders a new judgment, we hereby order that custody of AKA be maintained with KO. Costs of this appeal are to be divided equally between appellants, WB and CB, and appellee, KO.

JUDGMENT VACATED; REMANDED WITH INSTRUCTIONS.

      . We note that the Juvenile Court's order of August 2, 2002, which approved AA’s surrender, also terminated her parental rights. The judgment appealed from herein does not mention the termination. We further note that in both written reasons and oral reasons the trial court stated AKA was to be placed in his father's custody within ten days of the date of the judgment. The judgment, however, does not mention custody.

      . While there is no formal judgment awarding custody of AKA to KO, we presume KO presently has de facto custody in light of the trial court's oral and written reasons.


source: Caselaw Access Project

author:
J^McCLENDON, J.
      I,KLINE, J. Pro Tem.,

license: Public Domain

text:
    In re: MEDICAL REVIEW PANEL OF Raymond PIERSON.
    No. 2002 CA 1598.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.
    Steven M. Koenig, New Orleans, Counsel for Plaintiff/Appellee Gilda Coffee.
    David Woolridge, Jr., Baton Rouge, Counsel for Defendant/Appellant The Louisiana Patient’s Compensation Fund Oversight Board.
    Before: FOIL, McCLENDON and KLINE, JJ.

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

   J^McCLENDON, J.

By this appeal, the Patient’s Compensation Fund Oversight Board (PCF) contests a writ of mandamus issued by the trial court ordering it to file with its office a petition that is identical to one previously dismissed by the PCF for failure to comply with LSA-R.S. 40:1299.47 A(2)(c). For the following reasons, we affirm the judgment of the trial court.

On November 3, 1999, Gilda Coffee filed a petition with the PCF, seeking damages for medical malpractice that allegedly occurred on or about November 30, 1998. Therein, she named as defendants Tenet Louisiana Health System d/b/a St. Charles General Hospital and NME Hospital, Dr. Ira Markowitz and American Continental Insurance Company, Dr. Markowitz’s insurer.

The PCF notified all parties of the complaint and urged the parties to select an attorney chairman for the medical review panel as required by LSA-R.S. 40:1299.47 A(2)(c). By letter dated February 11, 2002, the PCF notified counsel for the claimant that it had dismissed the complaint due to the failure to appoint an attorney chairman within the allotted time.

On February 19, 2002, counsel for the plaintiff attempted to re-file the complaint with the PCF. The PCF refused the second complaint, noting that the initial complaint had been dismissed pursuant to LSA-R.S. 40:1299.47 A(2)(c).

On May 14, 2002, the plaintiff filed a petition for writ of mandamus in the Nineteenth Judicial District Court. After hearing the matter, the trial Lcourt rendered judgment in favor of the plaintiff, ordering the PCF to file the second complaint. The PCF appeals.

The Medical Malpractice Act, LSA-R.S. 40:1299.41 et seq., governs private health care providers. It constitutes a special legislative provision in derogation of the general rights available to tort victims and, therefore, must be strictly construed. Galloway v. Baton Rouge General Hosp., 602 So.2d 1003, 1005 (La.1992).

The language of LSA-R.S. 40:1299.47 A(2)(c) is clear. It provides solely for dismissal of a claim when no action has been taken to secure the appointment of an attorney chairman within the time frames set forth in that statute. It does not prohibit the re-filing of a claim previously dismissed for failure to secure an attorney chairman in a timely fashion or authorize the PCF to dismiss the claim with prejudice. In fact, a careful reading of the Medical Malpractice Act reveals no statutory authority for the refusal to accept for filing a second, identical claim. Strictly construing the Medical Malpractice Act, we are bound to conclude that it was' error for the PCF to refuse to perform this ministerial function. Therefore, the trial court did not err in ordering the PCF to file a second, identical malpractice complaint.

For the foregoing reasons, we affirm the judgment of the trial court. Costs, in the sum of $566.13, are assessed against the Patient’s Compensation Fund Oversight Board.

AFFIRMED.

KLINE, J. Pro Tem., concurs with reasons.

FOIL, J., dissents.

I,KLINE, J. Pro Tem.,

Concurs.

I will respectfully concur with the result, stating the following: I can agree to affirm the trial court under the particular time frames of this case.

      . LSA-R.S. 40:1299.47 A(2)(c) provides:
      The board shall dismiss a claim ninety days after giving notice by certified mail to the claimant or the claimant's attorney if no action has been taken by the claimant or the claimant’s attorney to secure the appointment of an attorney chairman for the medical review panel within two years from the date the request for review of the claim was filed.

      . The PCF argues that its dismissal of a complaint pursuant LSA-R.S. 40:1299.47 A(2)(c) "results in the parties waiving their right to have a claim reviewed by a medical review panel.” It contends that this waiver precludes the re-filing of a claim. However, the clear language of this statute does not provide for the dismissal of the claim with prejudice. Dismissal with prejudice cannot be presumed and has been held to be inappropriate in similar statutory schemes. Cf. Morgan v. Hopkins, 36,506 (La.App. 2 Cir. 10/23/02), 830 So.2d 459, writ denied, 2002-2866 (La.1/31/03), 836 So.2d 71.


author: | .ELIZABETH A. PICKETT, Judge.

text:
    Sharon WONG v. CONAGRA POULTRY COMPANY.
    No. 02-1376.
    Court of Appeal of Louisiana, Third Circuit.
    May 14, 2003.
    George A. Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Plain-tifi/Appellant, Sharon Wong.
    John Saye, Hayes, Harkey, Smith & Cascio, Monroe, LA, for Defendant/Appel-lee, ConAgra Poultry Company.
    Court composed of JIMMIE C. PETERS, MARC T. AMY and ELIZABETH A. PICKETT, Judges.
   | .ELIZABETH A. PICKETT, Judge.

FACTS

Sharon Wong alleges she was injured on February 14, 2001, while in the course and scope of her employment with ConAgra Poultry Co. Ms. Wong alleges that as she was standing at her work station, cutting wings, she felt a sudden pain in her back that radiated down to her legs. She reported the pain to the night nurse, who gave her ibuprofen. At the time this occurred, she had a scheduled appointment with her family physician, Dr. John Harris. When she saw Dr. Harris on March 14, 2001, he determined she should not be working and referred her to an orthopedist.

ConAgra began paying workers’ compensation benefits and referred Ms. Wong to a second orthopedist, Dr. Karl Bilder-back. Dr. Bilderback restricted her work activity. ConAgra placed Ms. Wong in a light-duty position. Dr. Bilderback’s report did note that Ms. Wong denied any incident at work which caused the back pain. Upon receipt of Dr. Bilderback’s report, ConAgra’s claims administrator terminated benefits and Ms. Wong was laid off.

Ms. Wong filed a 1008 claiming an injury on March 14, 2001, while in the course and scope of her employment. ConAgra denied that Ms. Wong’s injury was work related.

A trial was held on April 17, 2002. The workers’ compensation judge denied Ms. Wong benefits and dismissed the claim. This appeal followed.

ASSIGNMENT OF ERROR

The appellant asserts one assignment of error:

In this unwitnessed accident workers’ compensation case, did defendant employer present sufficient evidence to cast serious doubt on the reliability of plaintiffs testimony.

| ?,DISCUSSION

In the instant case, the only evidence that Ms. Wong’s injury is work related is her own testimony. The supreme court discussed the issue of a worker’s testimony alone establishing an injury in Bruno v. Harbert International Inc., 593 So.2d 357, 360-61 (La.1992):

Louisiana courts consistently have interpreted the work-related accident requirement liberally. Williams v. Regional Transit Authority, 546 So.2d 150, 156 (La.1989).... Moreover, Louisiana courts view the question of whether there was an accident from the worker’s perspective. Williams, supra.
Despite the liberal construction of the statute afforded the worker in a compensation action, the worker’s burden of proof is not relaxed. Prim v. City of Shreveport, 297 So.2d 421 (La.1974). Rather, as in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Id.; Nelson[ v. Roadway Express, Inc.], supra[, 588 So.2d 350 (La.(1991))]. A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony, is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson, supra. Corroboration may also be provided by medical evidence. West, supra.

“In evaluating the evidence, the trier of fact should accept as true the uncon-tradicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147.

The workers’ compensation judge found that Ms. Wong did not meet her burden of proving by a preponderance of the evidence that there was a work-related accident. He based this finding on his determination that her testimony lacked credibility because of internal inconsistencies, her demeanor while testifying, and her [3execution of a union form wherein she stated the accident was not work related.

We note we find no inconsistencies in the substance of her testimony. The claimant did, however, execute a document stating the accident which caused her injury was not work related. A review of the record in its entirety further supports the ultimate finding of the workers’ compensation judge and we cannot find that he was clearly wrong or manifestly erroneous. Findings of fact by a workers’ compensation judge should not be set aside absent a finding of manifest error. Bruno, 593 So.2d 357; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Because the evidence supports the workers’ compensation judge’s ultimate finding, we affirm the judgment. Costs of the appeal are assessed to the appellant.

AFFIRMED.

AMY, J., concurs in the result.


author: _[iDENNIS R. BAGNERIS, SR., Judge.

text:
    Robert BODENHEIMER v. NEW ORLEANS PUBLIC BELT and CSX Transportation. Robert Bodenheimer v. New Orleans Public Belt and CSX Transportation, Inc.
    Nos. 2002-CA-0441, 2002-CA-1283.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 14, 2003.
    Rehearing Denied June 3, 2003.

      Art Sadin, Provost Umphrey/Youngdahl Sadin, PC, Friendswood, TX, and Bruce C. Dean, James R. Dugan II, Gauthier, Downing, LaBarre, Dean & Sulzer, Me-tairie, LA, for Plaintiff/Appellee.
    Brent A. Talbot, Douglas L. Grundmeyer, Douglas R. Holmes, Chaffe, McCall, Phillips, Toler & Sarpy, L.L.P., New Orleans, LA, for Defendant/Appellee.
    Lawrence J. Ernst, Gregory S. LaCour, Christovieh & Kearney, L.L.P., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., and Judge EDWIN A. LOMBARD).
   _[iDENNIS R. BAGNERIS, SR., Judge.

Defendant/appellant, New Orleans Public Belt Railroad Commission (“NOPB”), appeals a trial court judgment in favor of Robert Bodenheimer (“Bodenheimer”), a railroad employee injured as a result of his work activities. This suit was brought under the Federal Employers Liability Act (TELA”). For the reasons below, we affirm.

Bodenheimer answered the appeal, seeking an increase in general damages. Further, Bodenheimer contends the trial court erred when it awarded legal interest from the date of judicial demand.

FACTS

On January 5, 1996, Bodenheimer was employed as a switchman with NOPB. Bo-denheimer was pulling a switch with both of his hands when he sustained injury to his right shoulder and neck. Bodenheimer had been employed with NOPB for thirty-seven years as a switchman.

On December 23, 1996, Bodenheimer filed a lawsuit against the City of New Orleans by and through the Public Belt Railroad Commission of the City of | ¡>New Orleans and CSX Transportation, Inc. (“CSX”) Bodenheimer claim against NOPB was based upon the FELA Act and his claim against CSX was based upon Louisiana’s negligence laws.

DISCUSSION

FELA represents a response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and who are helpless to provide for their own safety. FELA was designed to provide a federal statutory negligence action and is a railroad employee’s exclusive remedy for workplace injuries. Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958); Janelle v. Seaboard Coast Line Railroad Co., 524 F.2d 1259 (5th Cir.1975). Determining FELA liability is a distinctly federal question. Sinkler, supra. Although state courts have concurrent jurisdiction, pursuant to 45 U.S.C. § 56, federal law, and not state law, must be applied. Monessen Southwestern Railway Co. v. Morgan, 486 U.S. 330, 108 S.Ct. 1837, 100 L.Ed.2d 349 (1988); Dufour v. Union Pacific Railroad Co.-Missouri Pacific Railroad Co., 610 So.2d 843 (La.App. 1st Cir.1992), affirmed, 614 So.2d 1263 (La.1993), Broussard v. Union Pacific R. Co., 29,769 (La.App. 2 Cir. 8/28/97), 700 So.2d 542.

The proper measure of damages under the FELA is inseparably connected with the right of action. Accordingly, it is an issue of substance that must be settled according to the general principles of law as applied by the federal courts. Monessen Southwestern Ry. v. Morgan, 486 U.S. 330, 335, 108 S.Ct. 1837, 100 L.Ed.2d 349 (1988). Chesapeake & Ohio Ry. Co. v. Kelly L.R.A., 241 U.S. 485, 491, 36 S.Ct. 630, 632, 60 L.Ed. 1117 (1916). Shaw v. Texas and Pacific Ry. Co., 170 So.2d 874, 879 (La.App. 4 Cir.1965). If the railroad’s negligence played any part, no matter how small, in causing an employee’s injury then the railroad is hable for the resulting damages. Rogers, 352 U.S. at 508, 77 S.Ct. 443, E’Teif v. National R.R. Passenger Carp., 1998-2503 (La.App. 4 Cir. 4/22/99), 733 So.2d 155.

In order for a plaintiff to recover under FELA, he must establish that (1) he was injured within the scope of his employment; (2) the employment was in furtherance of the railroad’s commerce in interstate transportation; (3) his employer was negligent; and (4) this negligence played a part in causing his injury. Williams v. Southern Pacific Transp. Co., 813 F.Supp. 1227 (S.D.Miss.1992). Negligence is a federal question, which is not substantially different than what state and local laws define as being negligent. Alabama Great Southern R. Co. v. Jackson, 587 So.2d 959 (Ala.1991), cert. dismissed, 502 U.S. 1083, 112 S.Ct. 994, 117 L.Ed.2d 155 (1992).

A trial court’s finding of fault and causation are essentially factual, subject to the manifest error standard of review. Gaines v. Daiichi Chuo Shipping (American), Inc., 95-1597 (La.App. 4 Cir. 4/24/96), 673 So.2d 1192. The trial court’s determination of whether comparative fault applies is also a factual determination, which is susceptible to the manifest-error standard of review. Warner v. City of New Orleans, 96-1296 (La.App. 4 Cir. 5/30/97), 694 So.2d 1231 writ denied, 97-2037 (La.11/14/97), 703 So.2d 626; Swan v. New Orleans Terminal Co., 1998-2694 (La.App. 4 Cir. 5/21/99), 745 So.2d 52.

NEGLIGENCE

NOPB contends the trial court erred in finding them negligent and liable for injuries sustained by Bodenheimer. NOPB argues that it provided a | ¿reasonably safe place for Bodenheimer to work as a railroad employee. NOPB argues that the switch no. 11 was properly maintained and safe.

NOPB contends that under FELA law, it did not have to provide an absolutely safe place to work, but rather only had a duty to exercise reasonable and ordinary care to provide a reasonably safe place for Bodenheimer to perform his work as a switchman. NOPB cites Brady v. Southern R.Y., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239 (1943) in support of their contentions.

Unlike Louisiana workers’ compensation law, which grants an employer tort immunity in exchange for fixed statutory benefits payable regardless of fault, FELA allows recovery only if the worker can prove that his employer was negligent. FELA retains the tort characteristics of fault-based liability and recovery of actual damages suffered rather than a fixed or arbitrary scale of benefits. 45 U.S.C. § 51. Comparative fault is applicable except that no employee shall be found contributory negligent in cases where the employer was guilty of negligence per se in violating a federal safety statute or regulation. 45 U.S.C. § 53; Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958).

A railroad has a duty to provide a safe workplace. Following the passage of FELA, the emergence and wide acceptance of workers’ compensation statutes raised questions that FELA imposed an unfair burden upon the railroad workers by predicating recovery on the employer’s negligence; however, in practice, liberal construction has diminished the impact of the negligence requirement. Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994); Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Gallick v. Baltimore & O.R. Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963).

lain a series of decisions, the U.S. Supreme Court broadened and liberalized the definition of fault and causation under FELA. Most recently in Consolidated Rail Corp., supra, Justice Thomas wrote for the court:

We have liberally construed FELA to further Congress’ remedial goal. For example, we held in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), that a relaxed standard of causation applies under FELA. We stated that “[u]nder this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Id., at 506, 77 S.Ct., at 448. In Kernan, supra, we extended the reach of the principle of negligence per se to cover injuries suffered by employees as a result of their employers’ statutory violations, even if the injuries sustained were not of a type that the relevant statute sought to prevent. See 355 U.S., at 432-436, 78 S.Ct. at 398-400. And in Urie, supra, we held that occupational diseases such a silicosis constitute compensable physical injuries under FELA, thereby rejecting the argument that the statute covered only injuries and deaths caused by accidents. See 337 U.S. at 181, 69 S.Ct. at 1030.
That FELA is to be liberally construed, however, does not mean that it is a workers’ compensation statute. We have insisted that FELA “does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur.” Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 600, 91 L.Ed. 572 (1947). Accord, Inman v. Baltimore & Ohio R. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 243-244, 4 L.Ed.2d 198 (1959); Wilkerson[ v. McCarthy,] supra, 336 U.S. [53] at 61, 69 S.Ct. [413] at 417[, 93 L.Ed. 497 (1949)].

What constitutes negligence is a federal question not varying in aceor-dance with state or local concepts. What is negligence is a fact-bound, case-by-case analysis, keeping in mind Congress’ remedial and humanitarian purpose and the established course of liberal construction followed by the U.S. Supreme Court. Uñe, supra; Gottshall, supra. Further, negligence within the meaning of FELA attaches if the common carrier knew, or by the exercise of due care should have Ifiknown, that prevalent standards of conduct were inadequate to protect petitioners and similarly situated employees. Urie, supra; Jackson v. Kansas City Southern Railway, 619 So.2d 851 (La.App. 3d Cir.1993), writ denied, 626 So.2d 1187 (La.1993).

An appellate court may not reverse findings of fact in a FELA case unless there is a complete absence of any probative facts to support the fact finder’s conclusions. Dennis v. Denver & Rio Grande Western Railroad Co., 375 U.S. 208, 84 S.Ct. 291, 11 L.Ed.2d 256 (1963); Polotzola v. Missouri Pacific Railroad Co., 610 So.2d 903 (La.App. 1st Cir.1992).

In the instant case, the trial court considered all the testimony and the evidence presented. The trial court in its reasons for judgment found that Boden-heimer was a credible witness despite NOPB’s contention that he was not credible. Further, the trial court found that NOPB failed to provide Bodenheimer with a reasonably safe place to work, failed to use reasonable care to inspect, maintain and repair switch no. 11, and failed to establish and enforce proper procedures for switches that had been reported as difficult to throw. Accordingly, we cannot find the trial court’s conclusion to be unsupported and erroneous. Therefore, NOPB’s contention is without merit.

CAUSATION

Causation is an issue whenever there is evidence that an employer’s negligence caused the harm, or, more precisely, enough to justify a determination that employer negligence had played any role in producing the harm. Gallick, supra; Rogers, supra; Armstrong v. Kansas City Southern Railway Co., 752 F.2d 1110 (5th Cir.1985); Broussard v. Union Pacific R. Co., supra,

|7NOPB argues that Bodenheimer failed to prove that an improperly maintained switch caused his injuries. NOPB argues that Bodenheimer failed to call any expert witness to testify to any defects or to any alleged maintenance issues with switch no. 11. NOPB contends that it offered the only testimony as to the operation, maintenance and safety of switch no. 11.

As noted, appellate review standards in FELA cases are strict. Dennis, supra. After careful review of the record in its entirety in this fact specific case, the trial court’s factual holdings were supported with evidence. Thus, we find no error concerning causation.

CONTRIBUTORY NEGLIGENCE/COMPARATIVE FAULT

The trial court erred in not finding Bo-denheimer contributory negligent and not assigning a percentage of comparative fault to Bodenheimer. NOPB argues that the trial court should have apportioned fifty to seventy-five percent or greater because he had thrown switch no. 11 on numerous prior occasions without difficulty-

NOPB contends that Bodenheimer violated its safety rules on the day of the accident in which he was injured. NOPB contends that these violations contributed in whole or in part to the accident. Further, that if Bodenheimer’s violations were the sole cause of the accident then it cannot be held liable for the injuries he sustained.

Contributory Negligence is not a bar to recovery; damages are reduced by the percentage of the injured worker’s negligence. However, an employee cannot be faulted, nor have his damages reduced, merely because he worked at an unsafe | ¿job when the defendant railroad itself created the risk of injury. Birchem v. Burlington Northern R.R. Co., 812 F.2d 1047, 1049 (8th Cir.1987).

The trial court in its reasons for judgment stated the NOPB failed to provide sufficient evidence to support its claim of comparative/contributory negligence. Further, the trial court found that Boden-heimer could not be held contributory negligent for following his superior’s instructions.

In the instant case, Bodenheimer was instructed to throw the switch by a supervisor. Bodenheimer testified that he was informed that he would be charged with insubordination if he refused to throw the switch. Further, Bodenheimer testified that he threw the switch in the same manner previous times before the accident. He stated that he threw the switch the same way the foreman threw it. The trial court found that NOPB was negligent and did not assign any contributory negligence to the Bodenheimer. We find no error in the trial court’s findings. Accordingly, we must affirm trial court’s finding. NOPB’s contention is without merit.

DAMAGES

NOPB contends that the trial court’s award of both general and special damages was grossly excessive and therefore manifestly erroneous. However, Bodenheimer in his answer to this appeal contends that the general damage was inadequate and should be increased to a minimum of $300,000.

The proper measure of damages under the FELA is inseparably connected with the right of action. Accordingly, it is an issue of substance that must be settled according to the general principles of law as applied by the federal courts. Monessen Southwestern Ry. v. Morgan, 486 U.S. 330, 335, 108 S.Ct. 1837, 100 L.Ed.2d 349 (1988). Chesapeake & Ohio Ry. Co. v. Kelly L.R.A., 241 U.S. 485, 491, 36 S.Ct. 630, 632, 60 L.Ed. 1117 (1916). Shaw v. Texas and Pacific Ry. Co., 170 So.2d 874, 879 (La.App. 4 Cir.1965). If the railroad’s negligence played any part, no matter how small, in causing an employee’s injury then the railroad is liable for the resulting damages. Rogers, 352 U.S. at 508, 77 S.Ct. 443.

The correct standard to be applied in FELA cases to determine whether the evidence supports a general damage award is the same as that applied in other Louisiana cases. See Lilley v. Board of Supervisors of Louisiana State University, 98-1277 (La.App. 3 Cir. 3/24/99), 735 So.2d 696, which quoted the following standard from Louisiana Supreme Court’s decision in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993):

The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point, which is reasonably within that discretion. Coco v. Winston Industries, Inc., 841 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974).

Despite the two-step query established by the Youn case, NOPB contends that it is routine for courts determining the validity of FELA awards to compare the award in question with other awards to determine whether they are excessive. NOPB cites Chevalier v. Reliance Insurance Co., 953 F.2d 877 (5th Cir.1992), in support of its contention the general damage award is excessive. The court in Chevalier awarded the plaintiff $10,000.00 Dollars for past pain and suffering for |inthe injury he sustained to his rotator cuff, which he had to have surgery for a rotator cuff revision.

Following our review of the record evidence in this case, we find that the trial court’s $150,000.00 dollars in general damage award is not an abuse of the “much discretion” of the trier of fact because it is not excessive “for the particular injuries and their effects under the particular circumstances on the particular injured.” Youn, 623 So.2d at 1260. In Youn, the Supreme Court acknowledged that in reviewing a damage award, the appellate court should consider more than just the injuries sustained.

In the instant case, Bodenheimer, suffered severe pain, mental and physical agony. “When these and other factors are properly considered under the standards discussed above, we cannot say that the trial judge abused his discretion in fixing the generous awards of general damages.” Youn v. Maritime Overseas Corp., 623 So.2d at 1261. “The awards are not obviously the result of passion or prejudice, and they bear a reasonable relationship to the elements of the proved damages.” Id. Further, we find no merit to Bodenheimer’s contention that the general damages are inadequate and that it should be increased to $300,000.00. Accordingly, the trial court’s general damage award is affirmed.

LOSS OF EARNING CAPACITY/PAST AND FUTURE LOST WAGES

NOPB contends that the trial court erred in awarding Bodenheimer past and future lost wages and lost earning capacity because the record did not support the awards.

The proper measure of damages under the FELA is inseparably connected with the right of action. Accordingly, it is an issue of substance that must be settled according to the general principles of law as applied by the federal courts. Monessen Southwestern Ry. v. Morgan, 486 U.S. 330, 335, 108 S.Ct. 1837, 100 L.Ed.2d 349 (1988); Chesapeake & Ohio Ry. Co. v. Kelly L.R.A., 241 U.S. 485, 491, 36 S.Ct. 630, 632, 60 L.Ed. 1117 (1916); Shaw v. Texas and Pacific Ry. Co., 170 So.2d 874, 879 (La.App. 4 Cir.1965).

If the railroad’s negligence played any part, no matter how small, in causing an employee’s injury then the railroad is liable for the resulting damages. Rogers v. Missouri Pacific R.R.Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957)

In the case sub judice, Bodenheimer’s injuries were caused by the negligence of his supervisor ordering him to throw the switch. NOPB failed to provide proper training and instruction for the usage of the switch. As a result of the accident, Bodenheimer had to undergo surgery and the injury to his shoulder aggravated his neck condition and a latent degenerative condition.

At the time of the accident was physically able to do his entire work related task. However since the accident Bodenheimer has been unable to perform his former work related duties and is now a 65 year man with an eighth grade education. His employment history has been entirely with the railroad industry as a laborer. Boden-heimer was awarded $272,308.15 for special damages which includes $14,094.15 for medical expenses, $7,500.00 for future medical expenses, $211,755.00 for past loss wages and $88,959.00 for future earning capacity.

In a FELA case, a fact finder can award any amount for loss of future earning capacity so long as probative facts support their finding. Dufour, 610 So.2d at 846.

In the instant case, both Boden-heimer and expert witnesses testified concerning Bodenheimer’s injuries and loss of future earning capacity. These I ^probative facts were sufficient to support the award for loss of earning capacity. Further, the record contains evidence to support the conclusions reached by the trial court regarding Bodenheimer’s lost wage. Accordingly, we must affirm.

ADMISSION OF EVIDENCE

NOPB contends that the trial court erred by allowing into evidence the admission of the entire transcript of Bodenheimer’s disciplinary hearing that was held on March 25, 1996. NOPB contends that Bo-denheimer failed to prove that anyone who gave statements at the disciplinary hearing had anything to do with disciplining fellow NOPB employees. NOPB contends that the trial court erred in admitting the hearsay testimony over their objection because Bodenheimer failed to introduce any evidence to substantiate that the statements were made by a railroad employee or that the statements were within the scope of their employment or agency.

La.C.E. art. 801 D(3)(a) provides that “a statement by an agent or employee of the party against whom it is offered concerning a matter within the scope of his agency or employment” is not hearsay. This article goes beyond the traditional “speaking agent” rationale and permits the introduction of such a statement whenever it concerns a matter within the scope of the speaker’s agency or employment. A statement is not hearsay if it meets two criteria: (1) it was made by an agent or employee of the party against whom it is offered and (2) it concerns a matter within the scope of his agency or employment, made during the existence of the relationship. Before a statement offered under that provision may be admitted, the party offering the statement must present evidence sufficient to establish that both criteria are met.

113In the instant case, there is un-rebutted evidence in the record to establish employment and scope of employment outside of the statement itself. Thus, the statements were not hearsay and the trial court was not manifestly erroneous in allowing the transcript from Bodenheimer’s disciplinary hearing.

ATTORNEY’S FEES

NOPB contends that the trial court erred in awarding attorney’s fees to CSX. NOPB argues that as a general rule attorney’s fees are not allowed except where authorize by statute or contract citing, Nassif v. Sunrise Homes, Inc., 98-3193 (La.6/29/99), 739 So.2d 183 in support of its contention. Further, that indemnification agreement should be strictly construed by the court and absent an unequivocal express agreement on the issue; attorney’s fees are not recoverable, citing, Perkins v. Rubicon, Inc., 563 So.2d 258, 259 (La.1990); Soloco, Inc. v. Dupree, 99-1476 (La.App. 3 Cir.2/9/00), 758 So.2d 851, 852.

NOPB contends further that CSX failed to identify any specific provision in either the 1994 Trackage Rights Agreement or the 1993 Interlocking Agreement, which authorizes CSX to recover attorney’s fees.

The trier of fact is afforded great discretion in determining what amount constitutes reasonable attorney’s fees. Thus, we hold that the trial court did not abuse its discretion in awarding $81,153.18 to CSX for attorney’s fees.

For the foregoing reasons, the trial court’s judgment appealed from is hereby affirmed.

PRE-JUDGMENT INTEREST

NOPB contends the trial court erred in awarding pre-judgment interest to Boden-heimer. NOPB contends that state courts may not award pre-judgment | uinterest to plaintiffs in FELA actions, because Congress has not provided pre-judgment interest as a remedy.

In Louisiana, interest on an award of court costs begins to run on the date of the judgment fixing the costs. Cajun Elec. Power Co-Op v. Owens-Corning Fiberglass Corp., 616 So.2d 645, 647 (La.1993). Thus, we amend the judgment to award interest on court costs only from the date of the judgment fixing those costs.

INDEMNIFICATION

NOPB contends that the trial court erred in awarding $50,000.00 to CSX for indemnification.

Under equitable principles of indemnity, in order for a settling indemnitee to support his indemnity claim he must prove actual liability to the original plaintiff and that the amount paid in settlement was reasonable. To avoid having to prove actual liability, the indemnitee should offer the indemnitor before any settlement is concluded the choice of (1) approving the settlement or (2) taking over the indemni-tee’s defense. If the indemnitor refuses to take either course, then the indemnitee will only be required to show potential liability to the original plaintiff to- support his claim for indemnity. Parfait v. Jahncke Service, Inc., 484 F.2d 296 (5th Cir.1973). There is no rigid requirement that the indemnitee offer the above precise choice to the indemnitor.

The primary concern is fairness to the indemnitor. If it can be shown that the indemnitor was afforded substantially the same protection that the above choice affords, then the indemnitee will have to show only potential liability. Burke v. Ripp, 619 F.2d 354 (5th Cir.1980). A formal tender of defense is not required, rather only an opportunity .to defend is necessary. Burke v. Ripp, supra.

|1sIn .the instant case, the trial court gave the following reasons for its judgment:

Excerpts from the trial transcript of March 21, 2001 show, however, that NOPB attempted to shift liability to CSX by showing that CSX owned the switch subject of plaintiffs claim of injury and damages. Thus, given the adversarial position of the parties, NOPB’s claim that they are not obligated to indemnify CSX because they did not concur in the settlement confected between CSX and the plaintiff is without merit.
Any contractual requirement that CSX obtain approval from NOPB of its settlement with plaintiff before they were entitled to indemnification was impossible to fulfill under the circumstance of this case. “A condition is regarded as fulfilled when it is not because of the fault of a party with an interest contrary to the fulfillment: La.C.C. art. 1772.
The record supports a finding that CSX established potential liability by filing of plaintiffs petition and its original and amended cross claim. Further, NOPB admitted that CSX was exposed to potential liability in its responsive pleadings. Based on the numerous cases cited by counsel for CSX, where a claim is based on a written contract of indemnification, upon showing of potential liability, CSX is entitled to indemnification for the $50,000.00 settlement with plaintiff although plaintiffs claim against CSX were ultimately denied after trial on the merits.

Accordingly, we find no error in the trial court’s findings and judgment. NOPB’s contention is without merit.

Further, this Court pretermits discussion of the remaining issues raised on appeal by NOPB.

AMENDED IN PART AND AFFIRMED AS AMENDED.


author:
I t THIBODEAUX, Judge.
      COOKS, J.,

text:
    STATE of Louisiana v. William TAVES.
    No. 02-709.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 15, 2003.
    Writ Granted June 6, 2003.

      Lawrence C. Billeaud, Guilbeau & Bil-leaud, Lafayette, LA, for Defendant/Appellant, William Taves.
    Calvin E. Woodruff, Jr., Assistant District Attorney, Abbeville, LA, for Plain-tiffiAppellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS and JIMMIE C. PETERS, Judges.
   I t THIBODEAUX, Judge.

A jury convicted the defendant, William Taves, of second degree kidnapping and false imprisonment. The trial court imposed concurrent sentences of ten years at hard labor on the false imprisonment conviction and twenty-five years at hard labor on the second degree kidnapping charge, with the first two years to be served without the benefit of probation, parole, or suspension of sentence. The defendant appeals both his convictions and sentences.

For the following reasons, we affirm his convictions, but vacate his excessive sentences and remand for resentencing.

ISSUES

We shall consider whether:

(1) the evidence was sufficient to sustain the convictions for false imprisonment and second degree kidnapping;
(2) the trial court committed manifest error in refusing to grant the defendant’s motion for a new trial;
(3) trial counsel was ineffective for failing to discover and call several witnesses on behalf of the defendant; and,
(4) whether the sentences are excessive.

SUFFICIENCY OF THE EVIDENCE

The defendant contends the State presented insufficient evidence to support the convictions of false imprisonment and second degree kidnapping.

In State v. Lambert, 97-64, pp. 4-5 (La. App. 3 Cir. 9/30/98); 720 So.2d 724, 726-727, this court explained:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most | ¡favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

La.R.S. 15:438 provides:

The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

Incorporating this rule under the Jackson standard, an appellate court must determine that viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact would have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded. State v. Honeycutt, 438 So.2d 1303 (La. App. 3 Cir.), writ denied, 443 So.2d 585 (La.1983). This does not mean, however, that every possibility of innocence must be excluded. See generally, State v. Maxie, 93-2158 (La.4/10/95); 653 So.2d 526.

In State v. Johnson, 2001-1084, p. 3 (La.App. 3 Cir. 2/6/02); 817 So.2d 120, 122, the court explained:

... [i]n the absence of internal contradictions or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the factfinder, is sufficient to support a conviction. See State v. Johnson, 00-1552 (La.App. 5 Cir. 3/28/01); 783 So.2d 520.

At trial, Farrah Daigle, the victim, testified she had been with the defendant since 1998 and they had a child together in October 1999. In December 1999, the child died. In January 2000, Ms. Daigle and the defendant rented a home in Abbe-ville. She described it as a “secluded place by the river.” A shooting incident 1 ¡¡occurred around February 5 or 6 involving her mother’s home which was located in Lafayette. Ms. Daigle testified the defendant warned her if she told anyone about the incident he would kill her and he pulled out his .357 Magnum. Ms. Daigle stated when she attempted to phone her mother about the incident the defendant pulled the phone and broke it. According to Ms. Daigle, later that same day she attempted to leave and the defendant pulled a gun on her. Ms. Daigle explained:

A. Well, we got in an argument and I wanted to leave the house; I wanted to leave him. And I wanted everything over and he pulled out the gun on me. And I walked all the way back to the wall as far as I could because I thought he was going to shoot me. And he shot the gun towards my ear, right side of my left ear going towards the wall. It just missed me. And so after that, I knew that he was very capable of killing me.

The State introduced a photograph depicting a bullet exit hole on the exterior of the home into evidence without objection. Ms. Daigle explained when the defendant fired the shot past her ear she was in the living room and the shot was fired face level at her ear.

Ms. Daigle testified that after the shooting incident, the defendant told her she could not leave and he always kept a gun on her. She explained that during February 2000, the defendant carried a .357 Magnum with him at all times, even while he was sleeping. Ms. Daigle stated she told the defendant she wanted to end the relationship. She testified the defendant responded “I was never going to leave him. He was going to kill me before I left him.” Ms. Daigle denied having access to a vehicle or a telephone. She explained:

A. The phone would be plugged in, but I had no way of using it. He would always follow me around or if I did use it, he’d monitor my calls. He’d use Star 69 to find out who I called. So I had no privacy if I needed to call anyone important.

|4Ms. Daigle testified the defendant never left the house during this time except for once around February 21 or 25, when he went to work for training. She stated the defendant took the phone and vehicle with him and was gone only an hour.

Ms. Daigle testified that around February 14, she and the defendant met her friend, Shannon Willis, at a restaurant in Lafayette. When asked why she did not feel she could just walk out of the restaurant, Ms. Daigle responded, “Because he’d kill me. He doesn’t care who he’s around or who sees him.”

Ms. Daigle further testified that around the third week in February she again told the defendant she wanted to end their relationship. He then drove her to a desolate field near the river where he pulled a gun on her. She testified as follows:

So after that, he pulled out the gun and he asked me again if I wanted him to go back to Chicago, and I told him yes, I didn’t want to be with him anymore. And so he said okay. He said, “I want you to close your eyes. This is going to go real fast. You can go be with Taylor now.” And he wanted to give me a hug and I pushed away. And that’s whenever I just got on the ground and started begging him for my life.
Q. What did you do then?
A. He just stood there with the gun pointed at my head while I was begging, telling him anything he wanted" to hear. I’d marry him, have more kids, you know, meet his every need to stay alive. And so this went on — it seemed like for a good hour of just begging and pleading for my life.
And then he finally told me to stand up. And I really did my best of convincing him that I wasn’t going to say anything about what had gone on with my mom’s house, that everything was going to be okay, we were going to fix it. And so he told me if I turned around and walked back to the car without turning around and looking at him, then that would mean that he could trust me and. that I trusted him.

Ms. Daigle testified as she walked back to the vehicle, the defendant “shot bullets all around” her. Then, the couple returned home.

IsAround February 21 or 22, about a week and a half after meeting Ms. Willis at the restaurant, Ms. Daigle called Ms. Willis and invited her to stay with her and the defendant. Ms. Willis stayed for four or five days. She left but returned a few days later at Ms. Daigle’s request. Ms. Daigle testified while Ms. Willis was at thé house the defendant pulled a gun and threatened to kill them. She explained they were in the yard and he was swinging the gun everywhere and shooting it.

Ms. Daigle testified that around February 28 or 29, the defendant allowed her and Ms. Willis to leave the home to go to the store. Ms. Daigle went to her aunt’s office, called the police, and never returned to the rental home. She went to a woman’s battered shelter in Lafayette.

Ms. Daigle admitted that a neighbor, Shawn LeJeune, lived about one-hundred feet away from the rental home. She acknowledged Mr. LeJeune came over to their home near the end of February. On cross-examination, when asked why she never went over to the neighbor’s home during this time, Ms. Daigle responded:

A. Well, because I wanted to do this the right way. I wanted to have all the proof. I wanted a witness, somebody that could stand by me and it not just be my word against his because too many people get away with this. So I wanted to make sure that I did everything right.

Ms. Willis testified Ms. Daigle told her she was afraid of the defendant, they had many arguments and she wanted to get away from him. When asked why she and Ms. Daigle did not leave sooner, the following pertinent exchange occurred:

Q. During that time, why didn’t you and Farrah leave?
A. When?
Q. During the day. Particularly, if Bill was at work and you were there with Farrah, you all didn’t leave?
A. No.
Q. But you had a car?
| «A. We didn’t know what to do. I mean, I was just finding out more and more what was going on, just a little bit more and more each and every day. And she was scared to leave. She was scared. That’s why she didn’t want to leave at first because she thought something was going to happen to her.
Q. But there were times, though, when you and Farrah were at home and Bill was not at home, correct?
A. Uh-huh (affirmative response).
Q. And y’all- didn’t leave. Did you ever ask her to leave?
A. It was just once — no, I didn’t know to leave. I mean, it was like once — he went to work one time during the day for a while. And the second time he went to work, he just went for a little while. And that was it. All the other times, we were all together.

Ms. Willis denied that the defendant ever forced her to stay at the rental home. She stated “[n]o, he never held me at gunpoint or anything like that. He didn’t say, “You can’t leave.’ ” Ms. Willis testified the defendant did not want Ms. Daigle to leave, but admitted he left Ms. Daigle alone at times and with her at times. Additionally, Ms. Willis recalled Mr. LeJeune came over to the rental home four times while she was there.

Ms. Willis testified the couple had a white phone they had borrowed from the neighbors because the defendant had broken their phone. She recalled the defendant taking the phone with him one time. Ms. Willis testified that sometime after she had left the first time, Ms. Daigle called her from the rental home and the defendant was not there. According to Ms. Willis, when she arrived at the rental home a half hour later, Ms. Daigle was crying and talking to her grandmother on the phone. The Defendant had not returned; Ms. Willis said she believed he had gone to the store or “something like that.”

IvJames Mitchell, Chief Financial Officer for Trussco, a company located in Abbe-ville, Louisiana, testified a safety class for new employees was held on February 21, 22, and 28, 2000. He stated new employees signed in when they arrived at the training. Several documents from this class were introduced into evidence without objection. The first document, a “PEC Class Transmittal Sheet” indicated a class date of February 21 to 23, 2000. The defendant’s signature and social security number were listed on this sheet. A second document entitled “Medic First Aid Family of Programs” class roster dated February 22, 2000, reflected the defendant’s signature. Mr. Mitchell testified this class lasted an eight-hour day. A Certificate of Recognition to Mr. Taves for attending this course was introduced into evidence. Additionally, the defendant introduced a third document entitled “Core Compliance Test Answer Sheet.” Mr. Mitchell testified a core compliance testing answer sheet must be completed by all attendees at the end of the session to ensure the attendees learned everything. Mr. Mitchell explained this test sheet was taken from Mr. Taves’ file. Additionally, the defendant received a “Certificate of Completion” certifying he had completed Trussco’s “Hazwoper 40-hr Initial Course of Instruction.” An equipment receipt dated February 22, 2000, indicating the defendant was issued certain equipment for his employment, was also introduced into evidence. Additionally, a document signed by the defendant dated February 22, 2000, indicated he had read the “New-park Environmental Management, LLC Safety Rules Booklet.” Also, labor tickets dated February 21, 22, and 23, 2000, were introduced into evidence. These tickets indicated the defendant completed eight hours in training class on both February 21 and 22, 2000, and five hours in training class on February 23, 2000. Further, a completion of training card was issued to the defendant. Mr. Mitchell testified an employee would not receive this card if he stayed in training for | «only an hour. On cross-examination, Mr. Mitchell admitted he did not know personally whether or not the defendant attended the classes.

Kenneth Taves, the defendant’s father, testified that between February 7 and February 28, he spoke with the defendant and Ms. Daigle numerous times; specifically, two times on February 12, three times on February 20 and two times on February 28. However, Ms. Daigle testified she spoke with Mr. Taves only once during this time. Additionally, Mr. Taves testified he received a gift basket from Ms. Daigle during this time and on February 21, 2000, he wired $125.00 via Western Union to Ms. Daigle. Mr. Taves testified his son had a .82 pistol and Ms. Daigle owned a .357 Magnum.

FALSE IMPRISONMENT

In order to prove false imprisonment while armed with a dangerous weapon the State had to prove the defendant unlawfully and intentionally confined or detained the victim while armed with a dangerous weapon. La.R.S. 14:46.1.

In State v. Guillory, 461 So.2d 492 (La. App. 3 Cir.1984), the defendant appealed challenging the sufficiency of the evidence on his convictions of theft and false imprisonment while armed with a dangerous weapon. Deputy John Patrick Arceneaux, an undercover narcotics agent for the Cal-casieu Parish Sheriffs Office, arrived at the defendant’s home to attempt to purchase drugs. The defendant and Gerald Comeaux accused the deputy of being an undercover narcotics agent which the deputy denied. When the defendant left the room briefly, the deputy ran out of the house and Mr. Comeaux tackled the deputy in the front yard. The defendant came out of the house, removed the deputy’s gun and all three men entered the house. The deputy testified the defendant forced him inside at gunpoint. Shortly thereafter, | flothers arrived at the defendant’s home and began to beat him. The defendant stopped the beating and allowed the deputy to leave, but kept the gun. This court found:

Accepting the facts in the light most favorable to the prosecution, the jury would find this defendant guilty of theft and false imprisonment, offender armed with a dangerous weapon, beyond a reasonable doubt. The conviction is based on the direct testimony of Deputy Ar-ceneaux, and other evidence. Other witnesses contradicted Arceneaux. However, when there is conflicting testimony as to a factual matter such as this, the question of the credibility of the witnesses is within the sound discretion of the trier of fact. His factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence. State v. Klar, 400 So.2d 610 (La.1981). The jury’s decision to believe Deputy Arceneaux was not clearly contrary to the evidence.

In the present case, the State asserted the false imprisonment occurred between February 7 and February 28. Ms. Daigle testified the day the defendant informed her of the incident at her mother’s home (which, according to the State, was February 7, 2000), he pulled a gun on her, threatened to kill her, denied her access to a phone and refused to allow her to leave. Although Ms. Daigle’s testimony regarding other occurrences during February 2000 were contradicted and/or inconsistent at times with that of other witnesses, Ms. Daigle’s testimony regarding the February 7 incident was neither disputed nor contradicted. Viewing the evidence in the light most favorable to the prosecution, we conclude the State presented sufficient evidence to convict the defendant of false imprisonment while armed with a dangerous weapon.

SECOND DEGREE KIDNAPPING

The elements of second degree kidnapping, provided for in La.R.S. 14:44.1, state in pertinent part:

|inA. .Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(1) Used as a shield or hostage;
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
(3) Physically injured or sexually abused;
(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

In State v. Steward, 95-1693, p. 10 (La. App. 1 Cir. 9/27/96); 681 So.2d 1007, 1013, the court explained:

The provisions of this statute apply when any one occurrence mentioned in Subsection (B) combines with any one occurrence enumerated in Subsection (A). The statute does not require that the distance traveled during the forcible seizure be any particular length. State v. Arbuthnot, 625 So.2d 1377, 1383-1384 (La.App. 1st Cir.1993).

The testimony of Ms. Daigle indicated that around the third week of February she informed the defendant again she wanted to end their relationship. The defendant, while armed with a gun, forced her to get in a vehicle because he wanted to go and talk by the river.

11 t The defendant contends the victim did not testify that he made her get in the car against her will or with a threat of violence. However, Ms. Daigle testified she did not want to go but she went because she believed the defendant was going to kill her and she indicated the defendant was armed with a gun at that time.

After Ms. Daigle entered the car, the defendant drove to a field by the river, parked the vehicle and told her to get out. After walking about twenty feet past the car, the victim testified she stopped and she told the defendant she was not going any further. The defendant pulled out a gun and threatened to kill her. Ms. Daigle begged for her life. Following, the defendant told Ms. Daigle to return to the vehicle. As she turned to return to the vehicle, the defendant shot the gun several times. Following, he returned Ms. Daigle to the rental home.

Although Ms. Daigle’s testimony regarding other occurrences during February 2000 were contradicted and/or inconsistent at times with other witnesses, Ms. Daigle’s testimony regarding the incident by the river was neither disputed nor contradicted. Again, viewing the evidence in the light most favorable to the prosecution, we conclude the State presented sufficient evidence to convict the defendant of second degree kidnapping.

DENIAL OF MOTION FOR A NEW TRIAL

The defendant contends he is entitled to a new trial based upon the newly discovered evidence of Lofton Staffing employment records and the testimony of Joyce Le-Jeune, Tiffany LeJeune and Shawn Le-Jeune. The trial court denied the motion. It found the defendant failed to prove these witnesses could not have been discovered by “reasonable diligence.”

La.Code Crim.P. art. 851 provides:

|12The motion for a new trial is based on the supposition that injustice has been done to the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.

The court, on motion of the defendant, shall grant a new trial whenever:

(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

In State v. Laird, 2001-0478, p. 8 (La.App. 3 Cir. 11/21/01); 800 So.2d 427, 433, this court explained:

The standard of review applicable to a motion for new trial based on newly discovered evidence has been set forth as follows:
A defendant seeking a new trial based on newly discovered evidence must establish four elements: (1) that the new evidence was discovered after trial; (2) that failure to discover the evidence before trial was not attributable to his lack of diligence; (3) that the evidence is material to the issues at the trial; and (4) that the evidence is of such a nature that it would probably produce a different verdict in the event of retrial. State v. Hammons, 597 So.2d 990, 994 (La.1992); State v. Knapper, 555 So.2d 1335, 1339 (La.1990); State v. Prudholm, 446 So.2d 729, 735 (La.1984). In ruling on the motion, “[t]he trial judge’s duty is not to weigh the evidence as though he were a jury determining guilt or innocence, rather his duty is the narrow one of ascertaining whether there is new material fit for a new jury’s judgment.” Prudholm, 446 So.2d at 736.
State v. Cavalier, 96-3052, 97-0103, p. 3 (La.10/31/97), 701 So.2d 949, 951.

In State v. Guidry, 94-678, p. 9 (La.App. 3 Cir. 12/7/94); 647 So.2d 502, 508, this court stated: “[t]he trial court’s application of these precepts to newly discovered evidence is entitled to great weight, and its denial of a new trial will not be disturbed on appeal absent a clear abuse of that discretion. State v. Clayton, 427 So.2d 827 (La.1982).”

The defendant was aware that he had worked for Loftin Staffing prior to trial; thus, these records are not newly discovered evidence. Additionally, the defendant failed to show that the exercise of reasonable diligence by him or his attorney would not have uncovered the witnesses, Joyce LeJeune and Tiffany LeJeune, before or during trial. At trial, the defense attorney brought out how neighbors lived one-hundred feet away from the rental home. The defense attorney asked Ms. Daigle who lived in the home. Ms. Daigle responded “I know one of the persons’ name. I don’t know the whole family’s name.” Ms. Willis testified Mr. LeJeune, his sisters and his mom were neighbors of the defendant and Ms. Daigle.

Consequently, the defendant failed to prove the Lofton Staffing records, and the testimony of Joyce and Tiffany LeJeune were newly discovered evidence warranting a new trial.

u Shawn LeJeune stated in an affidavit that he was a neighbor of the defendant and Ms. Daigle during the month of February 2000 and did not observe the defendant threaten Ms. Daigle or inhibit her actions. Based upon Mr. LeJeune’s affidavit, the defendant has failed to show Mr. LeJeune’s testimony was material. The evidence introduced at trial covered a three-week period. The evidence presented by the State to support a conviction of false imprisonment indicated the incident occurred on February 7. Additionally, the evidence presented by the State to support a conviction of second degree kidnapping indicated the incident occurred one day, during the third week of February, when the defendant forced the victim to go to the river. There is nothing in the affidavit to indicate Mr. LeJeune had personal knowledge or was present during these two incidents.

Consequently, the trial court did not abuse its discretion in denying the defendant’s motion for new trial on this basis.

INEFFECTIVE ASSISTANCE OF COUNSEL

The defendant asserts his trial counsel was ineffective for failing to discover, interview and call for trial Joyce LeJeune, Tiffany LeJeune and Shawn LeJeune.

This court in State v. Holley, 2001-0254, p. 13 (La.App. 3 Cir. 10/3/01); 799 So.2d 578, 587, quoting State v. Bright, 98-0398, pp. 40-41 (La.4/11/00); 776 So.2d 1134, 1157, explained:

A claim of ineffectiveness is generally relegated to post-conviction, unless the record permits definitive resolution on appeal. E.g., State v. Prudholm, 446 So.2d 729 (La.1984). However, when the record is sufficient for review, this Court will reach the merits of complaints about counsel’s performance and grant relief when appropriate. E.g., State v. Hamilton, 92-2639 (La.7/1/97), 699 So.2d 29, 32-35.

1F¡ In this case, the defendant’s claim regarding the ineffectiveness of his trial counsel involves the defense counsel’s trial strategy and the record does not permit a definite resolution of this issue. Consequently, this court could find this claim is more appropriate for post-conviction relief.

EXCESSIVENESS OF SENTENCE

The defendant contends his sentences are constitutionally excessive.

In State v. Phillips, 2001-0253, pp. 3-4 (La.App. 3 Cir. 1/16/02); 809 So.2d 467, 469-470, this court explained:

The Louisiana Constitution, Article 1, Section 20 prohibits “cruel, excessive, or unusual punishment.” To find that this sentence is excessive, we must conclude that the penalty imposed is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals; therefore, it is nothing more than a needless imposition of pain and suffering. State v. Schmidt, 99-1412 (La.App. 3 Cir. 7/26/00); 771 So.2d 131, 157. Further, the trial court is given wide discretion in imposing a sentence, and a sentence that is imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. Id.
We have previously held that factors such as the particular circumstances surrounding the commission of the crime, the offender’s personal history, prior criminal record, and the likelihood of recidivism or rehabilitation should be considered. After reviewing such illustrative factors, the court may conclude that the sentence imposed constitutes a clear abuse of the sentencing judge’s discretion. State v. Young, 532 So.2d 301 (La.App. 3 Cir.1988).

At the sentencing proceeding, the defendant’s father, Mr. Taves, acknowledged that if the defendant was released to a home incarceration program or some other release program, he would help the defendant financially. Additionally, Mr. Taves testified that upon release, the defendant would live with the defendant’s new girlfriend. The thirty-one-year-old defendant testified that if he were released |1f;he had employment with Lagneaux’s Seafood Restaurant. Additionally, the defendant declared he was innocent of the crimes.

FALSE IMPRISONMENT

Defendant was sentenced to ten years at hard labor, the maximum sentence, with this sentence to run concurrently to the sentence imposed on the second degree kidnapping charge. See La.R.S. 14:46.1.

In State v. Jones, 99-1074, p. 3 (La.App. 3 Cir. 3/8/00); 758 So.2d 905, 907, writ denied, 2000-1843 (La.8/31/01); 795 So.2d 1202, this court held that “... maximum sentences are reserved for the most egregious offenders.” (Citation omitted).

Although the actions of the defendant were unjustified, applying the facts of this case and considering the material contained in the pre-sentence investigation report, we find the ten-year sentence on the charge of false imprisonment makes no measurable contribution to the acceptable penal goals and is grossly disproportionate to the severity of the crime as to shock one’s sense of justice. Therefore, we set aside this sentence and remand for resen-tencing.

SECOND DEGREE KIDNAPPING

La.R.S. 14:44.1 provides a term of imprisonment between five and forty years and the defendant was sentenced to twenty-five years, a midrange sentence.

|17In State v. Reese, 34,275 (La.App. 2 Cir. 12/20/00); 774 So.2d 1164, the defendant was convicted of second degree kidnapping and sentenced to ten years at hard labor. The defendant arrived at his ex-wife’s home, with his 15-month-old baby, and entered uninvited. The ex-wife’s boyfriend hit the defendant from behind on the shoulder with a three-foot hammer handle. Seeing the baby in the defendant’s arms, the boyfriend retreated. However, the defendant became angry, placed the baby on the floor, grabbed his ex-wife behind the neck and forced her into the bathroom at gunpoint. The defendant told the boyfriend to leave, threatening to kill his ex-wife if he did not comply. During this time, the defendant’s twin daughters came running out of their bedroom and the defendant captured one of them by her hair dragging her into the bathroom. She eventually escaped. The defendant threatened to kill himself. The police SWAT team was called, and after a standoff, the defendant surrendered. No one sustained injuries.

Again, although the actions of the defendant were unjustified, applying the facts of this case and considering the material contained in the pre-sentence investigation report, we find the twenty-five-year sentence on the charge of second degree kidnapping makes no measurable contribution to the acceptable penal goals and is grossly disproportionate to the severity of the crime as to shock one’s sense of justice. Therefore, we set aside this sentence and remand for resentencing.

ERRORS PATENT

We recognize one error patent.

The defendant was sentenced immediately after the trial court’s denial of his motion for a new trial. La.Code Crim.P. art. 873 mandates a twenty-four-hour delay between the denial of such motions and the imposition of sentence. The first issue to be resolved is whether counsel’s actions at the hearing acted as a waiver of |isthe delay set by Article 873. At the beginning of the hearing on the motion for new trial, defense counsel informed the court, “I believe we have Mr. Taves’ motion for new trial, Your Honor, and a sentencing scheduled at the same time.” Thus, defense counsel was aware at the beginning of the hearing that the sentencing was scheduled to take place the same day the motion for new trial would be heard and he failed to voice an objection. After the trial court denied the motion for new trial and told the defendant to come up for sentencing, defense counsel stated, ‘Your Honor, we have evidence for the sentencing. I’d like to put Mr. Taves’ father on and William Taves, if possible, for a brief statement.” After the defendant’s father testified and the defendant was allowed to give a statement to the court, defense counsel argued for the trial court to impose a suspended sentence upon the defendant. Defense counsel indicated that he had reviewed the Pre-sen-tence Investigation Report and discussed it with the defendant. The defendant did not object to the trial court proceeding to sentencing immediately after the denial of the motion for new trial. Defense counsel does not assign the trial court’s failure to delay sentencing as error nor does he allege prejudice. Appellate counsel simply states that the trial court sentenced the defendant without a determination as to whether the defendant wished to waive his delays for sentencing.

Based on the above, we conclude the defense waived the delay period and has not shown he was prejudiced. State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02); 815 So.2d 908.

^CONCLUSION

Based on the foregoing, the defendant’s convictions are affirmed. However, the defendant’s sentences are constitutionally excessive. Therefore, the defendant’s sentences are vacated and this case is remanded for resentencing.

CONVICTIONS AFFIRMED. SENTENCES VACATED AND CASE REMANDED FOR RESENTENCING.

COOKS, J., Dissents in Part and Assigns Written Reasons.

COOKS, J.,

dissents in part.

I would affirm defendant’s convictions and sentences. Neither the constitution of this state nor the United States requires that we allow a defendant to comparison shop or seek- competitive bids during the sentencing phase of a criminal proceeding. The sentences imposed in this case for the conduct of this defendant are not so egregious as to shock my sense of justice. Equity and justice are not synonymous.

      . The pre-sentence investigation report indicated that in 1995 the defendant was convicted of three misdemeanors. While serving time, he escaped and entered a plea of no contest to the charge of escape after an unlawful misdemeanor. In March of 2000, the defendant was convicted of aggravated criminal damage to property. The report classified the defendant as a first offender. The report listed numerous charges which did not contain a disposition or stated the charge had been dismissed. Additionally, the report indicated the defendant admitted use of marijuana and alcohol off and on since age fifteen. The defendant dropped out of high school in the 11th grade. He worked for his father as a computer programmer from 1993 to 1995 and between 1999 to 2000, he worked as a welder. The defendant had been married and had two children by the marriage. Additionally, in the pre-sentence investigation report, the victim stated that as a result of the offenses, she had to undergo mental health treatment, she broke her foot and she suffered a hearing loss.

      . The defendant claimed he had not seen the P.S.I., but defense counsel stated that although he did not let the defendant read it in detail, he had discussed it with him.


author: UGAIDRY, J. DOWNING, J.,

text:
    Arthur Douglas BOX v. CITY OF BATON ROUGE, Parish of East Baton Rouge Risk Management.
    No. 2002 CA 0198.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 15, 2003.
    Phil E. Miley, Baton Rouge, Counsel for Plaintiff/Appellee Arthur Douglas Box.
    Eugene Booth, Baton Rouge, Counsel for Defendant/Appellant City of Baton Rouge, Parish of East Baton Rouge Risk Management.

      Before: KUHN, DOWNING and GAIDRY, JJ.
   UGAIDRY, J.

In this workers’ compensation action, the defendant, the City of Baton Rouge, appeals the order of the Office of Workers’ Compensation denying defendant’s exception of prescription. For the following reasons, we vacate the portion of the judgment denying the defendant’s exception of prescription, as well as the portion of the judgment denying plaintiff disability benefits.

FACTS AND PROCEDURAL HISTORY The plaintiff, Arthur Douglas Box, served as a fireman for the Baton Rouge Fire Department from 1961 until his retirement in 1987. He has not worked since his retirement from the fire department. In 1989, two years after his retirement, Mr. Box was referred to a cardiologist after his regular physician detected an irregularity during a treadmill examination at his annual checkup. The cardiologist, Dr. Carl Luikart, presumed coronary artery disease, but was unable to definitively diagnose coronary artery disease until he performed a catheterization in 1992. In November 1992, Mr. Box underwent bypass surgery, and since then has remained under the care of Dr. Luikart. On October 28, 1997, Mr. Box filed a claim for worker’s compensation medical benefits with the City, which was denied. On December 5, 2000, he filed a formal disputed claim for medical benefits with the Office of Workers’ Compensation (OWC).

At the trial of this matter before the OWC on July 19, 2001, the City asserted that the plaintiffs claim was prescribed under La. R.S. 28:1301.1 and La. R.S. 23:1209. The workers’ compensation judge (WCJ) rendered judgment finding that plaintiffs claim was not prescribed and ordering the City to pay Mr. Box’s medical expenses related to his heart condition. The defendant filed a suspensive appeal, asserting that the WCJ erred in denying pits exception of prescription. The plaintiff answered the appeal and asserted that the WCJ erred in failing to award penalties and attorney’s fees under La. R.S. 23:1201.

DISCUSSION

The defendant never filed an exception of prescription in this case; it simply argued at trial that the plaintiff was not entitled to the relief requested because his claim for medical benefits had prescribed. An exception of prescription presented only in argument either orally or in writing by way of memorandum or brief is not contemplated by the Code of Civil Procedure. LaBove v. Resource Transp. Co., 625 So.2d 583, 587 (La.App. 3 Cir. 1993); Hyde v. Hibernia Nat. Bank in Jefferson Parish, 584 So.2d 1181, 1184 (La. App. 5 Cir.1991). La. C.C.P. art. 924 provides that “all exceptions shall comply with Articles 853, 854, and 863, and whenever applicable, with Articles 855 through 861.” A reading of Articles 853, 854, and 863 indicates that a written exception is required. Rapp v. City of New Orleans, 95-1638, p. 51 (La.App. 4 Cir. 9/18/96), 681 So.2d 433, 458, writ denied, 96-2925 (La.1/24/97), 686 So.2d 868. Regardless, the trial court considered defendant’s “exception of prescription” and found that the plaintiffs claim for benefits had not prescribed under La. R.S. 23.T301.1. Although the |4WCJ purported to rule on defendants’ exception of prescription, an exception was not properly before the OWC. Therefore, that portion of the OWC judgment dealing with prescription is vacated.

The OWC judgment expressly denied plaintiff recovery for disability benefits. However, the record shows that plaintiff neither pleaded nor requested an award of disability benefits. Since not procedurally raised by the parties, the issue of plaintiffs entitlement to disability benefits was not before the OWC. Thus, the express denial of disability benefits was error. Accordingly, that portion of the OWC judgment denying disability benefits is vacated.

ATTORNEY’S FEES AND PENALTIES

The plaintiff asserts for the first time on appeal that he is entitled to penalties and attorney fees under La. R.S. 23:1201 for the defendant’s failure to pay his medical benefits timely. La. R.S. 23:1201 provides, in pertinent part:

E. Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.
F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or | ¿fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner:
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

When items of special damage are claimed, a litigant must specifically allege the claim in his petition. La. C.C.P. art. 861. Attorney fees are items of special damage and thus must be specifically alleged. Mix v. Mougeot, 446 So.2d 1362, 1356 (La.App. 1 Cir.1984). Mr. Box did not allege in his petition that his claim for medical benefits was not paid within sixty days after receipt of notice or that such action by the City was arbitrary, capricious, or without probable cause, nor did he pray for statutory penalties of twelve percent of the total amount of the claim and reasonable attorney fees. The failure of a plaintiff to make these necessary allegations denies the defendant a reasonable opportunity to assert affirmative defenses, present evidence, or be notified that the claim for attorney fees and penalties was at issue. Mix, 446 So.2d at 1356. As such, we not consider these claims.

Mr. Box cites Haynes v. Lee White Wrecker Service, 612 So.2d 944 (La.App. 4th Cir.1993), in support of his position that attorney fees and penalties need not be specially pleaded. In Haynes, the 4th Circuit held that a worker was entitled to attorney fees and penalties for his employer’s arbitrary and capricious actions, even though he did not claim attorney fees and penalties in his petition because the state-drafted form petition, which |fithe worker filled out himself, did not provide the opportunity to request attorney fees or penalties and the worker stated, in a handwritten attachment to the petition, facts which supported the award. Id. at 947-48. The instant case is distinguishable in that Mr. Box was represented by an attorney at all times, but nevertheless failed to allege facts which would put the defendant on notice that he was requesting an award of penalties and attorney fees. Furthermore, his attorney could have amended his petition with leave of court or written permission of the adverse party to ask for attorney fees and penalties. See Coscino v. Louisiana State Boxing and Wrestling Commission, 97-2733, p. 6 (La.App. 4th Cir.9/9/98), 718 So.2d 1016, 1020. Having failed to properly plead the issue, claimant’s entitlement to penalties and attorney fees, not properly before the OWC, will not be considered for the first time on appeal.

CONCLUSION

For the above and foregoing reasons, we vacate that portion of the OWC judgment concerning prescription, as well as the portion denying disability benefits. Costs of this appeal are to be shared equally by the parties.

VACATED IN PART AND AFFIRMED IN PART.

DOWNING, J., concurs and assigns reasons.

| ^OWNING, J., concurs and assigns reasons.

DOWNING, J.,

concurring.

The result' here is correct. The trial court correctly ruled that Mr. Box’s claim for medical benefits had not prescribed. The majority, however, errs in concluding that we cannot consider the City/Parish’s exception of prescription in this workers’ compensation case when the exception was not filed in writing.

First, no party objected to the fact that the exception of prescription was raised orally. And no party currently alleges any prejudice arising from a failure to file a written exception. The record reveals that the matter of prescription was fully developed and litigated within the workers’ compensation hearing.

Second, La. R.S. 23:1317A provides in pertinent part:

The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided .... The workers’ compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be. (Emphasis supplied.)

The statute says technical rules of procedure shall not apply other than as provided. I can find nothing in the record or in the laws of Louisiana requiring technical rules for making exceptions in workers’ compensation cases. And imposing a formal jurisprudential rule for exceptions seems inconsistent with summary and simple decisions.

LFurther, La. R.S. 23:1310.1C gives the director of the Office of Workers’ Compensation “authority to adopt reasonable rules and regulations, including the rules of procedure before the workers’ compensation judges, according to the procedures established by the Administrative Procedure Act.” The section continues: “All rules and regulations, properly approved and promulgated under the Administrative Procedure Act, shall be consistent with the Workers’ Compensation Law and shall be binding in the administration of that law.” (Emphasis added.)

Accordingly, Office of Workers’ Compensation rules and regulations bind and control the procedures to be followed in Workers’ Compensation hearings, not the Code of Civil Procedure. And nothing in the record before us indicates that the director of the Office of Workers’ Compensation has passed a rule requiring exceptions of prescription, or any type of exception, be in writing.

The law does not contemplate burdening workers’ compensation cases with formality so long as substantive justice is done. I believe the Fourth Circuit case relied on by the majority, Rapp v. City of New Orleans, 95-1638 (La.App. 4 Cir. 9/18/96), 681 So.2d 433, was wrongly decided when it declared that the Louisiana Code of Civil Procedure controlled workers’ compensation proceedings, therefore requiring that exceptions of prescription must be filed in writing. I distinguish Rapp in that it did not consider the provisions of La. R.S. 23:1317A or of La. R.S. 23-.1310.1C.

Under these statutes, it is clear that properly promulgated Office of Workers’ Compensation rules and regulations, and not the Louisiana Code of Civil Procedure, bind and control procedures in workers’ compensation proceedings. There is no evidence in the record before us that any Office of Workers’ Compensation rule or regulation was violated when the Office of | ¡Workers’ Compensation judge denied the City/Parish’s exception of prescription.

Here, the majority decides an issue not raised on appeal and unduly complicates and burdens a workers’ compensation system intended to be equitable, summary and simple. Accordingly, while I agree with the result in that Mr. Box’s benefits are maintained, I disagree with the majority’s rationale in getting there.

      . The trial court erred in applying La. R.S. 23:1301.1 to Mr. Box’s claim for medical benefits. La. R.S. 23:1301.1 provides the prescriptive period for "all claims for disability arising from an occupational disease.” (Emphasis added). Therefore, the prescriptive period set forth in 23:1301.1 applies only to claims for disablement; an employee who is not disabled, although he knows he has contracted an occupational disease, is not required under a proper interpretation of La. R.S. 23:1301.1 to file his claim within the period set forth therein because, unless he is disabled, he has no cause of action for recovery under that statute. LaCoste v. J. Ray McDermott & Co., 250 La. 43, 193 So.2d 779, 782-83 (1967). An award of medical benefits under La. R.S. 23:1203 is separate and distinct from an award of disability benefits and does not require proof of disability. An injured employee's entitlement to benefits for medical expenses exists even if he returns to work, provided he requires medical treatment for the work-related injury; however, an injured employee’s entitlement to disability benefits is triggered only upon a showing of disability. Jacquet v. Southern Structures, Inc., 97-1696, p. 8 (La.App. 3 Cir. 5/20/98), 713 So.2d 723, 728. Since Mr. Box filed only a claim for medical benefits and not for disability benefits, the prescriptive period applied by the court, La. R.S. 23:1301.1, is not applicable to his claim.
      The appropriate prescriptive period to apply to Mr. Box's claim for medical benefits is contained in La. R.S. 23:1209(C):
      C. All claims for medical benefits payable pursuant to R.S. 23:1203 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 with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.
      Under this statute, a longer prescriptive period applies when medical benefits have already been paid for the injury or occupational disease at issue. Whether or not such medical payments were made in this case was disputed at trial, but the WCJ did not address this issue in his judgment.