author:
1JOHNSON, Justice.
      1WEIMER, J.,

text:
    STATE of Louisiana v. Jason HELOU.
    No. 2002-K-2302.
    Supreme Court of Louisiana.
    Oct. 23, 2003.

      William R. Campbell, Jr., Kenota P. Johnson, for Applicant.
    Richard P. Ieyoub, Attorney General, Michael Harson, District Attorney, James N. Prather, Jr., New Orleans, for Respondent.
   1JOHNSON, Justice.

The defendant was charged by bill of information with the offense of second degree battery. After trial, a unanimous six person jury found the defendant guilty as charged, and he was sentenced to serve three years at hard labor with one year suspended. The defendant appealed his conviction and sentence. The Third Circuit Court of Appeal affirmed his conviction but vacated his sentence and remanded the case for resentencing. Upon the defendant’s application, we granted certio-rari to consider the correctness of that decision, being particularly interested in the sufficiency of evidence issue.

FACTS AND PROCEDURAL HISTORY

On September 12, 1997, Mr. and Mrs. Floyd Richard were in the parking lot of the Academy Sporting Goods store in Lafayette, Louisiana, when a young man, Jeremy Jones (“Jones”) ran past them and yelled, “Help me, Mister. There’s some people who want to hurt me.” Shortly thereafter, the defendant, Jason Helou, and two other men followed behind Jones while screaming expletives. Offended by the profanity, Mr. Richard (“the victim”) asked the three men to watch their language. The | ^.defendant then moved closer to the victim and asked him if he wanted to “make something of it” and spat at him and his wife. In response, the victim swung at the defendant. The defendant then struck the victim’s nose with his fist. His friends jumped on the victim and beat him until a bystander yelled that the police were on the way. After the defendant and the other two men fled the scene, an ambulance arrived and transported Mr. Richard to a hospital for medical treatment of his bloody nose.

The State subsequently charged the defendant with second degree battery. A jury found him guilty as charged. On appeal, the Third Circuit affirmed the conviction with one judge dissenting. In deciding the issue of sufficiency of the evidence, an appellate court, when considering the evidence in a light most favorable to the prosecution, must determine whether the trier of fact could have found proof beyond a reasonable doubt as to each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The court of appeal upheld the defendant’s conviction based on the “disfigurement” and “impairment of a mental faculty,” a pair of components of LSA-R.S. 14:34.1, infra. The court of appeal held that the defendant possessed specific intent to inflict serious bodily injury on the victim. The court of appeal concluded that the State introduced sufficient evidence to prove that Mr. Richard went to the hospital and received some type of treatment, thus, proving serious bodily injury. The court of appeal further held that, as the aggressor, the defendant could not claim self-defense.

In a dissent, Judge Thibodeaux found that the defendant’s conduct justified a conviction of simple battery but not second degree battery. Judge Thibodeaux noted that after a careful review of the record, there was no evidence to establish that the victim suffered a “serious body injury,” instead he suffered only a bloody nose. He pointed out that although the victim may have been confused when he testified that his Iswife was with him in the ambulance on the trip to the hospital, as the State conceded, there was no evidence of unconsciousness. He also pointed out that there was no evidence to support a “serious bodily injury,” i.e., no extreme physical pain; no protracted and obvious disfigurement; no protracted loss or impairment of the function of a bodily member; no impairment of mental faculty; and no substantial risk of death.

Judge Thibodeaux distinguished State v. Hernandez, 96-115 (La.App. 4 Cir. 12/18/96), 686 So.2d 92, where the defendant struck his wife and two daughters repeatedly with an electrical cord. The defendant was convicted on two counts of simple battery and one count of second-degree battery. The court of appeal affirmed the convictions, holding that the evidence showed that the defendant intentionally inflicted serious bodily injury on one of his daughters. The defendant struck her on the back and in the face with the electrical cord, resulting in an elongated laceration on her shoulder, cuts to her face, and a cut to her finger as she used her hand to shield her face. Judge Thibo-deaux pointed out that in Hernandez, the victim’s injuries were obvious, while in this case, the facts do not support a finding of “disfigurement.”

The dissenter also opined that State v. Stowe, 93-2020 (La.4/11/94), 635 So.2d 168 is distinguishable from the instant case. In that case, the defendant hit a police officer in the head knocking him into a ditch, causing the officer to suffer a contusion and edema to his eye, with the eye swollen nearly completely shut; bruises and contusions all over his face; and abrasions on his head and chin. In Stowe, there was evidence of a severe injury to the eye, as well as cuts and bruises. The victim suffered severe headaches on a daily basis for two weeks following the incident. This Court found that the testimony of the eyewitnesses; the Chief of Police, who transported the victim to the hospital; photographs of the injuries; medical records; and the doctor’s Rreport were sufficient evidence to justify the defendant’s conviction of second degree battery.

He further determined that State v. Galloway, 551 So.2d 701 (La.App. 1 Cir.1989), where the defendant struck an elderly victim, who suffered with diabetes and had recently undergone open heart surgery, was not analogous to the case at bar. In Galloway, the State provided evidence to show that following the attack where the victim was struck in the mouth, and stomped on his chest and groin, that the victim’s vision was limited because his eyes were cloudy with blood; that the victim occasionally lost consciousness; and that he suffered a large hematoma on his scalp and lacerations which required several stitches to close. Also, in Galloway, there was testimony from a physician that the victim’s injuries would have caused him extreme pain.

Judge Thibodeaux reasoned that in the case sub judice, Lori Miller, a former army medic and an eyewitness to the incident, testified that the only visible sign of an injury was profuse bleeding from the nose and “small minor scrapes on his body.” He noted that the injuries were so minor that the victim did not wish to call an ambulance. Judge Thibodeaux concluded that the State failed to present evidence necessary to support the element of “serious bodily injury” as required by LSA-R.S. 14:34.1.

DISCUSSION

The sole issue before this Court is whether the evidence presented to the jury was sufficient to justify a conviction for second degree battery. Stated differently, we must determine whether the State proved beyond a reasonable doubt that the defendant inflicted “serious bodily injury” as defined in LSA-R.S. 14:34.1.

LSA-R.S. 14:34.1 provides that:

| ^Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.

(Emphasis added)

This Court has held that the phrase “extreme physical pain” as used in the statute is not unconstitutionally vague, since it “describes a condition which most people of common intelligence can understand.” State v. Thompson, 399 So.2d 1161, 1168 (La.1981).

When considering a claim of insufficient evidence, a reviewing court must determine 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Smith, 600 So.2d 1319 (La.1992). It is not the function of an appellate court to assess credibility or re-weigh the evidence. State v. Rosiere, 488 So.2d 965 (La.1986).

According to Jackson v. Virginia, supra, the State has the burden of proving each element of the crime beyond a reasonable doubt. As stated above, the State must prove that: 1) the defendant committed a battery; 2) without the victim’s consent; and 3) the victim suffered serious bodily injury.

IflThe defendant contends that the State failed to prove he committed second degree battery. Specifically, he argues that the State failed to prove that the victim suffered “serious bodily injury.”

In its case in chief, the State relied on the testimony of Lori Miller, the former army medic; Mrs. Caroline Richard, the wife of the victim; and Mr. Floyd Richard, the victim. At trial, Lori Miller testified that she was waiting in the car for her husband when she witnessed three men, one of whom was shouting profanities, chasing another man, later determined to be Jeremy Jones. The Richards were leaving the store, and they simply told the defendant to “watch his language.” The defendant then directed his profanity toward Mr. Richard while moving towards him and ultimately blocking Mr. Richard’s path to his vehicle. The defendant “insisted” on starting a fight. The defendant struck Mr. Richard in the face and the other two men joined in the fight. According to Miller, as a result of the fight, there were large puddles of blood on the ground, so much so that it was hard to tell exactly from where the blood was coming.

Mr. Floyd and Mrs. Caroline Richard testified to the same facts as Miller, but they testified, in addition, that when Mr. Richard told the defendant about the profanity, he came toward them and spat in their direction. Then, in an effort to defend himself, Mr. Richard hit the defendant with the bag which was in his hand. At that time, the other two men surrounded Mr. Richard and began beating him. Mrs. Richard testified that her husband’s nose was bleeding profusely. Mr. Richard testified that he had never seen so much blood in his life. He also testified that his shoes, the front of his jeans, and his shirt were all saturated with blood.

The State submits that we must infer from the amount of bleeding that the victim suffered a “severe bodily injury.” This Court finds that the presence of blood alone does not satisfy the “serious bodily injury” element of second degree battery. Our | ^jurisprudence demonstrates many cases where the State proved the “serious bodily injury” element of second degree battery. Some examples are: 1) State v. Abercrumbia, 412 So.2d 1027 (La.1982), where the defendant hit the victim with boards across his head, neck, and arm, causing a “deep cut over his right eye;” 2) State v. Robertson, 98-0883 (La.App. 3d Cir.12/9/98), 723 So.2d 500, writ denied, 99-0658 (La.6/25/99), 745 So.2d 1187, where the defendant knocked the victim to the ground and repeatedly kicked and hit her until she “kind of lost her senses for a minute;” the victim had bruises and contusions over the entire extent of her body, which left significant scars and lacerations on her nose; and 3) State v. Robinson, 549 So.2d 1282, 1285 (La.App. 3d Cir.1989), where the defendant stabbed the victim twice with a large, folding knife.

There are other cases which indicate that less substantial injuries may also constitute “serious bodily injury.” See State v. Young, 00-1437, pp. 9-10 (La.11/28/01), 800 So.2d 847, 852-853, where the victim suffered a bloody nose, tenderness in hyoid area below the larynx, and complained of pain at incision in his lower abdominal area. The physician testified that the defendant’s act of choking the victim could have resulted in substantial risk of death, and three months after the attack, the victim continued to have throat problems; State v. Diaz, 612 So.2d 1019, 1022-1023 (La.App. 2d Cir.1993), where the defendant broke the victim’s jaw during a group fight; State v. Mullins, 537 So.2d 386, 391 (La.App. 4th Cir.1988), where a 6 foot tall defendant punched a 5'5" girlfriend, breaking her nose; State v. Legendre, 522 So.2d 1249, 1251 (La.App. 4th Cir.1988), writ denied, 523 So.2d 1321 (La.1988), where the defendant raised the victim over his head and smashed her to the floor, rendering her momentarily immobile and requiring a brief hospitalization followed by outpatient treatment leading to a loss of employment for several weeks; State v. Accardo, 466 So.2d 549, 552 (La.App. 5th Cir.1985), writ denied, 468 So.2d 1204 (La.1985), where a 17-year-old female victim was struck on the head by the defendant with either his fist or a blackjack, causing the side of her face to swell.

After a careful review of LSA-R.S. 14:34.1 and the related jurisprudence, we find that in the case sub judice, the State failed to offer any evidence of “extreme physical pain” by way of testimony from the fact witnesses. Nor do we have testimony from medical witnesses or medical records, which would prove this factor. Rather, the evidence presented, dealt solely with the amount of blood the victim lost. The record demonstrates that at trial the State’s direct examination of its witnesses completely avoided the subject of pain. We cannot infer that the loss of blood is tantamount to “extreme physical pain.” We also cannot infer that a punch in the nose, without more evidence, is sufficient to support a conviction of second degree battery.

In summary, there is no testimony that the victim lost consciousness at any time despite the victim’s “confusion” as to whether his wife rode with him in the ambulance to the hospital.. There is no evidence of severe injury. In fact, the victim initially declined medical help; he required only a brief visit to the emergency room; thereafter, he sought no further medical attention, and there is no evidence of disfigurement or permanent disability. No medical personnel appeared at trial to provide jurors with a diagnosis or a summary of the victim’s treatment. The only evidence in the record is the medical bill for $983.90. There was no explanation of what medical services were provided to the victim. Because the State failed in its burden of proof, any conclusion by the jury as to pain suffered by the victim was simply a guess on the jury’s part, since the State failed to offer any evidence on the issue. Simply put, because the jury had to infer the victim’s pain, the State failed to prove beyond a reasonable doubt that the victim, in fact, suffered “extreme physical pain” as required by the statute. | ^Accordingly, we conclude that the evidence is insufficient to sustain the defendant’s conviction for second degree battery.

Nevertheless, we find that the evidence is sufficient to support a conviction for simple battery. Simple battery is an authorized responsive verdict to a charge of second degree battery. LSA-C.Cr.P. art. 814 A(15). A battery is defined as “the intentional use of force or violence upon the person of another.” LSA-R.S. 14:33. Pursuant to LSA-R.S. 14:35, a simple battery is a battery committed without the consent of the victim.

In this case, it is undisputed that the defendant struck Mr. Richard in the nose with his fist, which constitutes a “force of violence” upon Mr. Richard. It is also clear that Mr. Richard did not consent to being struck. Accordingly, we vacate the defendant’s conviction for second degree battery and enter a conviction for simple battery, a statutory responsive verdict pursuant to LSA-C.Cr.P. art. 814 A(15). We remand this matter to the trial court for resentencing for simple battery.

WEIMER, J., dissents and assigns reasons.

KNOLL and TRAYLOR, JJ., dissent for the reasons assigned by WEIMER, J.

1WEIMER, J.,

dissenting.

I respectfully dissent for the following reasons.

During 1978, the legislature amended and reenacted Subpart B of Part II Offenses Against the Person of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950. Act No. 394 of 1978 amended and reenacted LSA-R.S. 14:34.1 to provide as follows:

• Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.

li>With the amendment and reenactment of the statute, the legislature created a new category of battery which requires proof of the extent of injuries sustained by the victim. By definition, “serious bodily injury” would require that the victim suffer an injury which is more severe than mere “bodily injury.” Second degree battery should obviously be contrasted with simple battery from the standpoint of proof of injury. Simple battery does not require proof of any injury. Prior to the adoption of second degree battery, one who battered another faced the same sentence regardless of the injury inflicted. Formerly, persons who committed a battery without a dangerous weapon could only be prosecuted for simple battery even if crippling injuries were inflicted upon the victim. In that instance, the legislature evidently determined the penalty was disproportionate in relation to the harm suffered by the victim. Following the amendment, a person convicted of second degree battery is subject to a more severe penalty. The offense of second degree battery is a felony. Legislative Symposium, Criminal Law, 39 La.L.Rev. 227, 229-230 (1978).

A conviction for second degree battery requires proof beyond a reasonable doubt that the defendant committed a battery upon another, without the victim’s consent, and intentionally inflicted “serious bodily injury” as that phrase is defined in the statute quoted above. There is no dispute that the defendant inflicted a battery on the victim. The only issue is whether the defendant intentionally inflicted serious bodily injury. Thus, the facts must be analyzed to determine whether the State proved beyond a reasonable doubt serious bodily injury was intentionally inflicted.

Initially, the definition of “serious bodily injury” as set forth in the statute must be evaluated. To establish “serious bodily injury,” the State must prove any one of the injuries or conditions listed in the statute. The first condition listed is ^‘unconsciousness.” Review of the record reveals that Mr. Richard’s injuries did not include unconsciousness, although the record indicates some confusion on his part in that he believed, until the day of the trial, that his wife had accompanied him to the hospital in the ambulance. However, such evidence is not sufficient to establish unconsciousness; rather, such evidence is as likely to indicate a faulty memory. The second condition included in the definition of serious bodily injury is “extreme physical pain,” a condition addressed infra. The next condition constituting serious bodily injury is “protracted and obvious disfigurement.” Disfigurement under this example must be both obvious and protracted. Thus, there must be proof of an obvious disfigurement lasting for a protracted period of time. While bloodshed could be considered as obvious, the record does not support a finding that it was protracted.

The next condition listed in defining serious bodily injury is “protracted loss or impairment of the function of a bodily member, organ, or mental faculty.” The word “protracted” modifies both “loss” and “impairment,” again suggesting a temporal element. There was no evidence to establish a loss or impairment over an extended period of time to support a finding of the injury being protracted.

The last condition listed in the statute is “a substantial risk of death.” The record contains no evidence remotely suggesting that the victim’s injuries posed a substantial risk of death.

The remaining, and only applicable, condition included in the statutory definition of serious bodily injury is “extreme physical pain.” According to the statute, the physical pain must be extreme; however, there is no temporal element required. The |4word “protracted,” which appears in other portions of the definition, does not modify “extreme physical pain.” There is thus no requirement that the pain last a specific length of time, only that the pain be extreme.

This court has previously considered the phrase “extreme physical pain” referenced in this statute. In that instance, the defendant argued the statute was unconstitutional because it allowed the victim’s subjective perception to be determinative of the crime. Further, the defendant argued that the failure to define the phrase improperly vested the jury with a legislative function. In State v. Thompson, 399 So.2d 1161, 1168 (La.1981), this court stated:

The phrase “extreme physical pain” describes a condition which most people of common intelligence can understand. The fact that the term is subjective in nature and susceptible to interpretation does not mean that it is violative of due process or will not necessarily be applied constitutionally. This phrase gives adequate warning of the conduct proscribed and provides a workable standard for judges and juries to fairly administer the law.

The record reflects Mr. Richard suffered a blow to the nose resulting in substantial blood loss. He testified that he had never bled so much in his life. His deck shoes were covered in blood, substantial blood was on the iront of his jeans and his shirt was saturated with his blood. He was aware that there was blood on the ground, but could not testify as to the quantity because everyone was trying to get him to hold his head back in an attempt to stop the bleeding. Because of the quantity of blood on his clothes, Mr. Richard stated he hoped someone would provide a ride to the hospital in the rear of a pickup truck, otherwise he would ruin his vehicle. Fortunately, someone on the scene called for an ambulance and Mr. Richard was transported to the hospital by ambulance for treatment.

Mrs. Richard also testified at the trial. Her testimony corroborated her husband’s version of the events leading up to the fight. During her testimony, she acknowledged that it was her husband who was injured in this matter. Mrs. Richard |salso testified as to the quantity of blood that was lost. She testified that he “was bleeding profusely. I mean, it was just pouring out.... [H]e’s got high blood pressure, and I was really worried.” A truck driver whom Mrs. Richard believed to have some EMT training suggested an ambulance be summoned because Mr. Richard was “bleeding way too much.” She also testified to the pools of blood on the ground, and the blood on Mr. Richard’s shirt. Mrs. Richard also testified they had received bills from the ambulance, the hospital, and the doctor totaling $988.90.

Lori Miller, a college student and former army medic, was also called as a witness for the prosecution. She was seated in her vehicle in the parking lot with the windows rolled down when the incident began and heard the defendant and his two companions yelling foul language while chasing another person. She heard the Richards ask the trio to watch their language. Mrs. Miller testified that she witnessed the fight from her vehicle which was about 20 to 25 feet away. She testified that Mr. Richard sustained some very serious blows to his face resulting in tremendous amounts of blood on his face. It was difficult to tell whether the blood was coming from his nose or mouth, but she testified “a lot of blood was protruding [sic] from his nose.” She testified there was a large puddle of blood on the ground and drips across the parking lot. Mrs. Miller also testified that Mr. Richard’s shirt was covered with blood. Additionally, she testified that during the fight, Mrs. Richard frantically yelled, “someone call the police, call an ambulance, my husband’s hurt.”

“In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a ^reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984). Defendant argues that the record does not contain sufficient evidence to support a conviction in light of the Jackson standard. He asserts, and correctly so, that the record contains no testimony from the victim that he suffered “extreme physical pain” as a result of the beating. However, it is not necessary that the victim recite these exact words to establish this element of the offense.

It is within the ordinary experience of a rational jury to evaluate the circumstantial evidence surrounding this incident and make a determination that Mr. Richard suffered extreme physical pain considering the testimony presented regarding the particulars of the fight and the testimony regarding the amount of blood loss. A rational jury could well conclude that a violent blow to the nose, inflicted with such force as to produce bleeding as described by the victim and witnesses, was sufficient to result in extreme physical pain as contemplated by the statute. See State v. Stowe, 93-2020 (La.4/11/94), 635 So.2d 168.

While the record does not indicate the respective ages of the defendant and the victim, nor a comparison of their size and body type, the jury was able to view firsthand such characteristics, as well as the demeanor of the witnesses. From these factors, the jury was entitled to draw on life experiences. It is the province of the jury to evaluate the evidence presented and arrive at a determination. That is what the jury did, and its verdict should not be set aside.

Jurors are chosen from different walks of life for the purpose of bringing to their deliberations a variety of different life experiences. Jurors represent the community in the criminal justice system. Although obligated to follow the law, jurors can draw on their common life experiences and apply their collective common sense.

During deliberations, the jury requested the definition of simple battery. The trial judge acknowledged the definition was in his charge and that he was simply going to

Cread the charge to them. Following the reading of the definition" the jury wanted to know the penalty for simple battery. The trial judge, realizing the penalty for simple battery had not been included in the charge, and after consulting with the prosecution and defense counsel and obtaining their consent, read the second part of the statute which provides the penalty for simple battery. This inquiry by the jury indicates that this particular jury was clearly focused on and cognizant of the difference between simple battery and second degree battery and the significance of that distinction.

From the evidence presented, a rational jury could conclude that the first blow struck by the defendant was delivered with such force that the victim shed a substantial amount of blood, and that this blow, causing profuse bloodshed, inflicted extreme physical pain upon the victim. Further, after the first blow was struck, the defendant continued to rain blows on the victim with the assistance of his confederates. The victim’s wife cried out her husband was hurt, a bystander called for an ambulance, and the victim was taken to the hospital for treatment. To determine from an appellate record that the jury erred in determining from these facts that there was proof beyond a reasonable doubt the defendant intentionally inflicted serious bodily injury would be an affront to the jury’s collective wisdom and common sense.

Thus, I would affirm defendant’s conviction and remand to the trial court for resentencing.

      . State v. Helou, 02-0077 (La.App. 3d Cir.6/5/02), 822 So.2d 647.

      . State v. Helou, 02-2302 (La.3/28/03), 840 So.2d 554.

      . LSA-R.S. 14:33 provides that a battery is the intentional use of force of violence upon the person of another.

      . Prior to the 1978 amendment and reenactment, LSA-R.S. 14:34.1 was titled "Aggravated battery resulting from a misdemeanor.” The statute provided in part:
      A. Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby:

      (2) insults or makes rude or obscene remarks or gestures, or uses profane language, or physical acts, or indecent proposals to or toward another or others, or disturbs or obstructs or interferes with another or others, or

      B. Whoever commits an aggravated battery as defined herein shall be imprisoned for not more than ten years.
      Following the 1978 amendment and reenactment, LSA-R.S. 14:34.1 is now titled "Second degree battery.”

      . LSA-R.S. 14:35 defines simple battery as a battery committed without the consent of the victim. Battery is defined in LSA-R.S. 14:33 as the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.

      . The term "protracted” is not listed in Black’s Law Dictionary (7th ed.1999), but is defined by The New Oxford American Dictionary 1371 (2001) as: "lasting for a long time or longer than expected or usual.”

      . At oral argument the State contended that “protracted” only modified "loss” and not "impairment” of the function of a bodily member, organ, or mental faculty. That argument would lead to an illogical result-the loss would have to be protracted, but impairment would have to last only momentarily.

      . The trial transcript reflects the following:
      (The Judge reads to the jury the definition of simple battery in the jury deliberation room during which time court personnel, Mr. Prather [Assistant District Attorney], Mr. Willard [defense counsel], and the defendant, Jason Helou, are in the courtroom listening.)


source: Caselaw Access Project

author: 1PER CURIAM.

license: Public Domain

text:
    In re Michael L. BERNOUDY, Jr.
    No. 2002-OB-2470.
    Supreme Court of Louisiana.
    Oct. 31, 2003.
    Rehearing Denied Dec. 12, 2003.
    Michael L. Bernoudy, Jr., for applicant.
    Harry J. Philips, Jr., Baton Rouge, Daniel A. Webb, New Orleans, Charles. B. Plattsmier, Chief Disciplinary Counsel, for respondent.
   ON APPLICATION FOR ADMISSION TO THE BAR

1PER CURIAM.

The Committee on Bar Admissions (“Committee”) opposed the application of petitioner, Michael L. Bernoudy, Jr., to sit for the Louisiana Bar Examination based on character and fitness concerns. We subsequently granted petitioner permission to sit for the bar, with the condition that upon his successful completion of the exam, he apply to the court for the appointment of a commissioner to take character and fitness evidence. In re: Bernoudy, 02-1777 (La.7/2/02), 819 So.2d 1026. Petitioner thereafter successfully passed the essay portion of the bar exam, and upon his application, this court appointed a commissioner to take evidence and report to this court whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana. We also authorized the Office of Disciplinary Counsel to conduct an investigation into petitioner’s qualifications to be admitted to the bar. After hearing evidence in the case, the commissioner filed his report with this court, recommending petitioner be denied admission to the practice of law. Petitioner objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(B)(3).

After hearing oral argument, reviewing the evidence, and considering the law, we conclude petitioner has failed to meet his burden of proving that he has “good moral | ¡¡character” to be admitted to the Louisiana State Bar Association. See Supreme Court Rule XVII, § 5(E).

Accordingly, it is ordered that the application for admission is denied.


author: 2JAMES L. CANNELLA, Judge.

text:
    Wayne AGUILLARD, et al., v. Charles W. MEINERS, et al.
    Nos. 03-CA-311, 03-CA-312.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 16, 2003.

      Michael W. Robinson, Pucheu, Pucheu & Robinson, L.L.P., Eunice, LA, for Appellant.
    Lawrence G. Pugh, III, Shannon C. Ruddy, Montgomery, Barnett, Brown, Read, Hammond & Mintz, LLP, New Orleans, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, WALTER J. ROTHSCHILD and EMILE ST. PIERRE, Pro Tempore.
   2JAMES L. CANNELLA, Judge.

Plaintiff, Wayne Aguillard, appeals from a damage award in an automobile accident case filed against Defendants, Charles Meiners (Meiners), Commercial Tire & Retreading, Inc. (Commercial), and its insurer, Universal Underwriters Insurance Company. We amend in part and affirm as amended.

In June of 2000, Plaintiff was involved in an automobile accident caused by Meiners, who, in the course and scope of his employment with Commercial, was hauling a load of tires. He struck Plaintiffs pickup truck several times, breaking the seat latch, causing the seat to flip back against the back of the cab and Plaintiffs head to strike the rear glass. Plaintiffs minor son was in the pickup truck at the time and sustained minor injuries. Plaintiff sustained a concussion and cervical and lumbar back injuries. The pickup truck was declared a total loss.

On June 14, 2001, Plaintiff and his wife, Angela Aguillard, filed suit against Defendants for Plaintiffs injuries, Mrs. Aguil-lard’s loss of consortium and their son’s injuries. The child’s case was settled prior to the trial, which was held on July 23, 2002. The liability of Meiners was stipulated. After taking the Lease under advisement, the trial judge awarded the Plaintiff $125,000 for general damages, $18,435 for past medical expenses, $3,813.33 for past lost wages and $2,500 for future medical expenses. He dismissed the loss of consortium claim.

On appeal, Plaintiff asserts that the award for future medicals is inadequate and that the trial judge erred in failing to award an amount for lost earning capacity.

FUTURE MEDICAL EXPENSES

A defendant in a personal injury case takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Gunn v. Robertson, 01-347, p. 10 (La.App. 5th Cir. 11/14/01), 801 So.2d 555, 563, writs denied 02-0170, 02-0176 (La.3/22/02), 811 So.2d 942. When the tortfeasor’s conduct aggravates a pre-existing condition, the tortfeasor must compensate the victim for the full extent of the aggravation. Id. at p. 11, 801 So.2d at 563.

In order to recover future medical benefits, Plaintiff must prove that these expenses will be necessary and inevitable. Gunn, 01-347 at p. 13, 801 So.2d at 564. Future medical expenses must be established with some degree of certainty and generally must be supported with medical testimony and estimation of probable costs. Hopstetter v. Nichols, 98-185, p. 9 (La.App. 5th Cir.7/28/98), 716 So.2d 458, 462, writ denied, 98-2288 (La.11/13/98) 731 So.2d 263. However, when the need for future medical care has been demonstrated, but the cost is not susceptible of determination, the court may make a reasonable award. Hopstetter, 98-185, p. 9, 716 So.2d at 462; Bly v. Prudential Property and Cas. Ins. Co., 589 So.2d 495, 497 (La.App. 5th Cir.1991). In addition, the award can be made despite the fact that no dollar estimate was made by experts at trial. See: Guillory v. Avondale Shipyards, Inc., 448 So.2d 1281, 1287 (La.1984); Bly, 589 So.2d at 497.

LPlaintiff, 41 years old at the time of the accident, was very active and in excellent physical condition. His lifestyle included hunting, fishing, bicycling, rollerblading, basketball and weightlifting. He played football with his nine year old son and rollerbladed with his wife and son. He worked as a pipeline, right-of-way, maintenance supervisor directing a two-three man crew along a 250 mile pipeline owned by an oil company. The job requires driving 100 miles each day, probing for the pipeline when necessary, fixing and painting fences, driving pipeline markers into the ground, cutting grass with a tractor, using a weedeater and digging pole holes.

After the accident, Plaintiffs main complaints were post-concussion syndrome of headaches, dizziness, wooziness, imbalance and temporary memory loss. He also suffered a cervical and upper back sprain. On June 26, 2000, he attempted to return to work, but was unable to perform his duties. He was later diagnosed with two herniated discs, at L4-L5 and L5-S1 levels, that were either caused or aggravated by the accident.

Plaintiff returned to work in August of 2000 and is continuing to maintain his job. However, he suffers intermittent back pain with radiating pain into his legs. Since his return to work, Plaintiff must leave work early at times because of the pain, and he misses occasional days, which is unusual for Plaintiff, who is greatly valued by his employer. Plaintiff testified that the first seven months were “just survival” for him. Approximately two months after the accident, he tried to resume his recreational activities. However, he has neither the strength or motion ability that he had prior to the accident. He has tried, with his pain limitations, to continue his same lifestyle and work activities. However, driving and sitting for long periods is painful, although he can operate a special tractor to cut grass. He also has a helper that can usually help him drive. At this time, 1 ¡¡Plaintiffs physicians have not recommended surgery and the Plaintiff wants to avoid it. Because of the pain, he was unable to do physical therapy for his back.

The medical evidence was by depositions. Plaintiff has been treated at various times by Dr. Reginald Segar, his family physician, Dr. Paul Ware, a neurologist, and Dr. Elemer Raffai, an orthopedist. In June of 2001, he was referred to his current treating physician, Dr. Paul Mayes, a physical medicine and rehabilitation doctor specializing in musculoskeletal injuries. Dr. Mayes has been seeing Plaintiff every other month, treating him conservatively with pain and anti-inflammatory medications, and occasionally with oral steroids for severe flare-ups. On bad days, Plaintiff takes two to three Lortab pills. Both the doctor and Plaintiff testified that his pain waxes and wanes. Dr. Mayes stated that the pain is chronic. He expects Plaintiff to require continuing treatment and hopes that he will not need surgery in the future. Dr. Mayes stated that Plaintiffs long term prognosis is pretty good, if the Plaintiff does not aggravate his condition with constant strain. He stated that the strain can be caused by riding in the truck which is not good for the low back, prolonged lifting or standing, or repetitive flexing at the waist. In the future, he testified that Plaintiff will need periodic medications for pain, periodic time off from his job, and continue seeing a doctor.

The trial judge found that Plaintiff continues to suffer symptoms from the “two previously asymptomatic herniated discs” that were made symptomatic by the accident. However, he also found that no evidence was presented of an estimate of the cost of future medical treatment. Thus, he awarded a minimum of $2,500 for future medicals. Plaintiff argues that this was error because the medical bills were introduced into evidence and are subject to calculation. Plaintiff points out that just considering the prescription costs for Lor-tab and no | fiother medications, the annual cost is $1,100 per year. Plaintiff asserts that Dr. Mayes’ fee is $80 per visit. Based on Plaintiffs history with Dr. Mayes of visits every other month, the annual future cost for Dr. Mayes’ fee would be $750. He does not include any other medications or potential medical treatment in his request for reimbursement.

After reviewing the medical records and considering Plaintiffs excellent health and physical condition prior to the accident, and that Plaintiff is attempting to continue his job despite the pain, which means that he will need the medications, we find that the trial judge abused his discretion in the award for future medical expenses. We find that the lowest reasonable award for his future medical expenses is $20,000. Thus, we will increase the award to that amount.

LOSS OF EARNING CAPACITY

Plaintiff asserts that the trial judge erred in failing to award damages for loss of earning capacity. He contends that his ability to keep his job has been contingent on the good will of his employer because his condition interferes with his ability to do the job as he did before the accident. He periodically leaves early, or is absent because of the flare-up of pain. Plaintiff points out that his employer’s pipeline contract with the oil company was based on Plaintiffs employment. In addition, Stephen Fontenot (Fontenot), his employer, testified that he would not hire someone with Plaintiffs back condition.

In Folse v. Fakouri, 871 So.2d 1120, 1124 (La.1979), the Court stated:

Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.

In Branan v. Allstate Insurance Co., 99-1209, p. 9 (La.App. 5th Cir.4/25/00), 761 So.2d 612, 616, we stated:

To support a claim for loss of earning capacity, a plaintiff need not show a loss of income as compared to his pre-acci-dent income. However, he must show, by a preponderance of the evidence, that his ability to earn a living is impaired. We recognize that loss of earning capacity may be awarded to a plaintiff if the injury has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily ...
Before a plaintiff can recover for loss of future earning capacity, he must prove the loss, not with mathematical certainty, but with reasonable certainty. Future loss of earnings is inherently speculative, and must be proved with a reasonable degree of certainty; purely conjectural or uncertain future loss earnings will not be allowed. [Citations omitted]

Plaintiff and Fontenot testified that the injury affects Plaintiffs job performance and impairs his ability to perform his job, although Fontenot’s tolerance has allowed Plaintiff to accommodate his work with his episodes of pain. Further, Dr. Mayes testified that Plaintiff should avoid straining his back by long drives, standing and flexing from the waist, all of which are required by the job. Thus, Plaintiff proved that the injury has adversely impacted his ability to perform his current job. However, no evidence was produced which shows that Plaintiff could not find some other type of work at the same wage in the event that he loses his job due to the residual effect of the injury or due to a change in management that may not tolerate his work absences caused by his condition. Without that evidence, Plaintiff has not met his burden of proof for this item of damages. Consequently, we find that the trial judge did not err in failing to award damages for loss of earning capacity.

Accordingly, the judgment of the trial court is hereby amended to increase the damages for future medicals to $20,000. The judgment is affirmed in all other respects. Costs of appeal are assessed against Defendants.

AMENDED AND AFFIRMED AS AMENDED.


author: 1DAVID S. GORBATY, Judge. I, McKAY, J„

text:
    TRAVELERS INSURANCE COMPANY v. RELIABLE HOME HEALTH CARE, INC.
    No. 2002-CA-1762.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.

      Christopher M. Landry, Blue Williams, L.L.P., Metairie, LA, for Plaintiff/Appel-lee.
    Catherine J. Smith, New Orleans, LA, and Ronald L. Wilson, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge DAVID S. GORBATY).
   1DAVID S. GORBATY, Judge.

In this appeal, Reliable Home Health Care, Inc. (“Rehable”) appeals the judgment of the workers’ compensation court finding that it overbilled Travelers Insurance Company (“Travelers”) for nursing care provided to Theresa Robinson. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

This lawsuit arises out of a billing dispute between Travelers and Rehable, who provided in-home nursing care to injured worker Theresa Robinson. Ms. Robinson’s claim was settled and is not at issue here.

Reliable provided skilled nursing care on an hourly basis from 1996 through 1998 for the home health care of Theresa Robinson. Dr. Warren Gottsegen ordered “skilled nursing” care first for eight hours per day. This amount was later increased to sixteen hours per day.

The trial court found that no convincing evidence was presented that Ms. Robinson required only a Registered Nurse for her skilled nursing care. The trial | ..court further ruled that both Registered Nurse services and Licensed Practical Nurse services were appropriate skilled nursing care for Ms. Robinson, depending on the duties being performed each day. The trial court additionally held that the hourly amounts charged by Reliable were too high, and that the amounts due must be recalculated at a lower hourly rate. Finally, the trial court ruled that Travelers must be reimbursed, or given a credit for, $625,821.13, the amount Travelers had overpaid. Reliable subsequently filed this appeal.

DISCUSSION

Reliable asserts the following assignments of error:

1. The trial court erred in not awarding judgment in favor of Reliable for the “skilled nursing care” it provided to claimant, Theresa Robinson. Further, the trial court erred in ruling that no convincing evidence was presented showing an oral contract existed between Travelers and Reliable for hourly skilled nursing care at $100.00 per hour. Additionally, the trial court erred in not awarding Reliable $100.00 per hour for past skilled nursing care provided to Theresa Robinson pursuant to its agreement with appellee, Travelers.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of review. Smith v. Louisiana Dept. of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132. In applying the manifest error-elearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s | ^conclusion was a reasonable one. Stobart v. State, 617 So.2d 880, 882 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882.

Reliable claimed to have a verbal contract with Travelers. The burden of proof in an action for breach of contract is on the party claiming rights under the contract. Vignette Publications, Inc. v. Harborview Enterprises, Inc., 2000-1711 (La.App. 4 Cir. 9/12/01), 799 So.2d 531. The existence of the contract and its terms must be proved by a preponderance of the evidence. Bond v. Allemand, 632 So.2d 326 (La.App. 1 Cir.1993).

Mr. David Butler, a supervisor at Travelers, testified that there was no contract or agreement between Travelers and Reliable. He stated that the only employees who had authority to enter into contracts with healthcare providers are Regional Managed Care Representatives. Mr. Butler had never spoken with Mr. Louis Age, the administrator for appellant, about his charges for services before they agreed to employ Reliable as Ms. Robinson’s healthcare provider. The adjuster handling the case did not enter into a contract with Rehable to pay a certain amount for the services being provided. Further, he testified that there is no instance of Travelers agreeing to pay more than what the fee schedule provides.

Ms. Suzanne Klein, a Travelers employee who handled Ms. Robinson’s file, corroborated Mr. Butler’s testimony that adjusters do not have the authority to 1¿enter into contracts. Ms. Klein stated that there was no indication anywhere in the file that Travelers had agreed to pay a certain amount to Reliable for their services.

Ms. Alberta Frishon Gardner, who was the first adjuster to deal with Reliable, did not have any conversation with anyone at Reliable regarding the charges that would be made by Reliable. She never agreed verbally, or in writing to pay $100 per hour for the services being rendered to Ms. Robinson.

At trial, Mr. Louis Age testified that Reliable was obligated to charge Travelers the same amount that Reliable charged Medicare for skilled nursing care. At his deposition, he indicated that the decision to charge Travelers $100 per hour was “not a decision that necessarily involved anybody.” Mr. Age stated that he contacted Travelers to verify coverage. When Ms. Gardner returned Mr. Age’s call, seeking to “verify rates,” he claims that he advised her that Reliable charged $110 per hour, and that Ms. Gardner countered, seeking $100 per hour for their services. It is this conversation that Mr. Age contends formed the basis of the verbal contract between Travelers and Reliable.

On cross-examination, Mr. Age modified his story somewhat. He speculated that Ms. Robinson might have been the first person to call and seek Reliable’s services, as opposed to her doctor calling to refer Ms. Robinson to them. He also stated that Ms. Gardner’s first contact with Reliable might not have been a conversation with him regarding their rates, but that she might have actually entered into the alleged agreement after speaking with Mr. Age’s daughter, Iyanna. He was also not entirely sure whether he actually had the alleged conversation | Kregarding rates with Ms. Gardner before Reliable began rendering treatment, or after Reliable received Travelers’ first payment. Upon reflection, he stated that he did speak with Ms. Gardner prior to Reliable rendering any treatment, but that it was an extremely short conversation.

In the case at bar, other than the testimony of Mr. Age, which he subsequently corrected, there is no evidence to support Reliable’s contention that Travelers agreed to pay $100 per hour. Further, Travelers did not tacitly agree to pay $100 per hour. A party must have full and actual knowledge of the obligation before it can agree to it. Everett v. Foxwood Properties, 584 So.2d 1233 (La.App. 2 Cir.1991). In this matter, Travelers was unaware of the billing error until Marianna Hixon pointed it out to them. Once Travelers was aware, it immediately took corrective action. As such, we find that there was sufficient evidence to support the ruling of the trial court. This assignment of error is without merit.

2. The trial court erred in ruling that in 1990, the reasonable and customary charge for a Licensed Practical Nurse (“LPN”) was $30.00 per hour and $40.00 for a Registered Nurse (“RN”), and that amount is what should have been billed and received by Reliable for the skilled nursing care provided to claimant.

On the second day of trial, Mr. Butler detailed the process of submitting and releasing bills for payment in Travelers’ office. He explained that had the proper code been submitted when Reliable sought payment for Ms. Robinson’s treatment, the computer would have priced the bill at $44/hour. However, because the code submitted by Reliable matched with the charge for those services, the computer did |finot catch the error. It was not until Marianna Hixon, who was hired by Travelers to review Ms. Robinson’s case, became involved that Travelers realized that Reliable had been submitting the wrong code for the services provided to Ms. Robinson. Travelers immediately contacted Rehable, and ultimately stopped paying the bills submitted by Reliable, taking the position that they were entitled to a credit based on the overpayment.

In Adler v. Hospital Service Ass’n, 278 So.2d 177 (La.App. 4 Cir.1973), the court stated, “[t]he reasonableness of a particular medical fee depends on what is customary in a community for similar [services and procedures].” Testimony elicited from Ms. Hixon at trial established that the reasonable and customary rate for R.N. hourly care is $40-45 per hour, and the reasonable and customary rate for L.P.N. hourly care is $30-35 per hour.

Ms. Hixon also discussed the difference between skilled nursing visit care, skilled nursing hourly care, and L.P.N. private care, along with the corresponding customary rates for each. Skilled nursing visit care is a visit by an R.N., who comes to the home to provide one service, or skill, and then leaves. The usual and customary charge for R.N. visit care is $100 per hour. Ms. Hixon noted that hourly care is completely different from visit care. Unlike visit care, where the care is task-oriented and lasts a short period of time, hourly care is ongoing and is performed in shifts.

Ms. Hixon discovered that Reliable was billing $110 per hour using the W-0050 code, which is for nursing visits. Travelers’ system would reorganize the |7code and reprice the bill at $100 per hour, the appropriate fee for W-0050 in the fee schedule. Ms. Hixon stated that Ms. Robinson was receiving sixteen hours per day of hourly care, not visit care. She further opined that Ms. Robinson did not need an R.N. to perform the services, and that attendant care would have been more appropriate.

We conclude that Reliable was mistakenly charging the rate customarily used for nursing visit care, $100 per hour. The rate for hourly nursing care is substantially less than the rate for visit care, as established by Ms. Hixon’s testimony. As such, we find no error in this ruling of the trial court. This assignment of error lacks merit.

3. The trial court erred in ruling that sixteen hours of R.N. care was unreasonable and unnecessary.

The trial court’s determinations with regard to the credibility of witnesses and the discharge of the claimant’s burden of proof are factual issues and should not be disturbed on appeal in the absence of manifest error. Bruno v. Harbert Int’l, Inc., 598 So.2d 357 (La.1992). The workers’ compensation judge’s assessments of the weight of the medical evidence are not to be disturbed unless clearly wrong. Chambers v. Louisiana Pacific Mfg., Inc., 97-1188 (La.App. 3 Cir. 4/22/98), 712 So.2d 608.

Dr. Warren Gottsegen, claimant’s treating physician, ordered skilled nursing care for Ms. Robinson. He testified that he believed that Ms. Robinson needed only attendant care for many of her needs, and R.N. care for things such as 18administering medications and drugs. He specifically stated that she did not need full-time R.N. care.

Ms. Wilhemina Fulgenzi was accepted at trial as an expert in nursing and utlilization review. Travelers hired Ms. Fulgenzi to review the nursing notes and give an opinion as to whether the services provided by Reliable were nursing visits or hourly services. After reviewing all of the nursing notes and looked at the doctor’s plan of treatment, Ms. Fulgenzi concluded that Dr. Gottsegen ordered skilled nursing care, and that Ms. Robinson did not always need an R.N. for the level of care that she was receiving. She noted that most of the services provided were not even “skilled,” but were mostly maintenance-related. She concluded that although Ms. Robinson occasionally required R.N. care, she did not need sixteen hours of continuous R.N. care.

Reliable’s interpretation of the nursing care ordered by Dr. Gottsegen was unreasonable and unnecessary. There was no evidence presented that supported the need for continuous R.N. care as claimant received. Reliable rendered continuous hourly care to Ms. Robinson, not continuous visit care. This assignment of error lacks merit.

4. The trial court erred in ruling that Travelers had overpaid Reliable by $625,821.13, and that Travelers is entitled to a credit of that amount for any charges rendered by Reliable after the last payment date by Travelers. The trial court also erred in ruling that all services rendered after Travelers stopped paying Reliable must be re-calculated at the rate of $30.00 per hour for all tasks that could 19have been done by an LPN, and $40.00 per hour for all tasks that could be done by an RN, and that Reliable owes Travelers $625,821.13 less the amount to be calculated above.

As discussed above, we find that Reliable provided hourly care to Ms. Robinson and billed Travelers at the rate for visit care. The evidence also showed that R.N. care was not necessary for all of the services provided. Travelers paid Reliable for services that were not rendered. As such, Travelers is entitled to a credit for the amount it overpaid. This assignment of error lacks merit.

5. The trial court erred in not finding Travelers to be arbitrary and capricious in failing to pay Reliable for the care provided to Theresa Robinson, and is thus liable for statutory penalties, costs, and attorneys’ fees.

La. R.S. 23:1201 provides for penalties and attorney fees for the failure to timely pay or authorize claims. It also provides that “[t]his Subsection shall not apply if the claim is reasonably controverted ...”

The burden of proving entitlement to a penalty is on claimant. Washington v. Lyon’s Specialty Co., 96-0263, p. 13 (La.App. 1 Cir. 11/8/96), 683 So.2d 367, 376. Because La. R.S. 23:1201 is penal in nature, a strict and narrow construction is necessary in determining whether an award of a penalty is appropriate. Id.

We find that this claim was reasonably controverted. We also note that plaintiffs provided no testimony or evidence of arbitrary or capricious behavior on the part of defendant. As such, attorneys’ fees and penalties were properly not awarded.

I ^CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

McKAY, J„ DISSENTS WITH REASONS.

I, McKAY, J„

DISSENTS WITH REASONS.

I respectfully dissent from the majority’s decision to affirm the judgment of the workers compensation judge. I would reverse that judgment in so far as it finds that Travelers must be reimbursed or given a credit for $625,821.13.

Theresa Robinson was provided skilled nursing care by Reliable from 1996 through January 8,1998 for a work related injury she suffered on November 11, 1990. Rehable was paid $100.00 per hour for skilled nursing from the inception of its care of Ms. Robinson until Travelers ceased all payments on July 20, 1997. During this period, Travelers paid Reliable $841,000.00. Travelers never questioned the $100.00 per hour rate until after it hired a manager consultant to review the bills and evaluate the level of service that Ms. Robinson was receiving and determine whether that service was reasonable and necessary.

In Manuel v. River Parish Disposal, Inc., 96-302, 96-303 (La.App. 5 Cir. 10/1/96), 683 So.2d 791, the Fifth Circuit held that a hearing officer was required to use a hospital’s actual charges, rather than a reimbursement schedule, as a starting point for a medical expenses award when no reimbursement schedule was in place at the time medical services were rendered. In the instant case, there was no reimbursement schedule in place at the time Travelers paid Rehable its $100.00 ^hourly rate. Accordingly, Rehable should be es-topped from claiming a reimbursement of $625,821.13.


author: 1EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Cleveland TUMBLIN.
    No. 2002-KA-1643.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.

      Harry F. Connick, District Attorney, Juliet Clark, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD).
   1EDWIN A. LOMBARD, Judge.

STATEMENT OF CASE

On July 17, 2001, the State charged Cleveland Tumblin with attempted second-degree murder, a violation of La. R.S. 14:(27)30.1. At his arraignment on July 19, 2001, the defendant pled not guilty. On September 12, 2001, the trial court denied the defendant’s motions to suppress the evidence and statement. Following a lunacy hearing on September 25, 2001, the defendant was found competent to proceed and assist counsel. On November 8, 2001, the jury convicted the defendant of aggravated battery. On December 17, 2001, the trial court denied the defendant’s motion for new trial. That same day, after the defendant waived all delays, the trial court sentenced him to ten years at hard labor. On April 12, 2002, the defendant was granted an out of time appeal. On July 12, 2002, the trial court denied the defendant’s motion to quash the multiple bill. On August 2, 2002, the motion to quash was argued and denied a second time. Also at that time, the defendant tendered a plea of guilty as charged to the multiple bill, and was ad judged a second offender. After the defendant waived all delays, the trial court vacated his original sentence and re-sentenced him to ten years at hard labor.

|,STATEMENT OF FACT

Officer Errol Allen testified that on May 16, 2001, at approximately 3:00 p.m. while on patrol on Martin Luther King Avenue near the B.W. Cooper Housing Development, a group of people fleeing a Safeway store parking lot flagged him down, pointing and telling him that someone was shooting in the parking lot. Officer Allen turned his car around and drove into the store parking lot, where he observed people ducking behind vehicles and pointing to the defendant walking away. Witnesses told the officer that the defendant had just shot someone. Officer Allen noticed that the defendant was carrying something in his hand, which he put behind a large oak tree. The defendant attempted to leave the scene on a bicycle, but the bicycle was chained to a railing. Allen drew his weapon as he ordered the defendant to lie down. When the defendant complied, Allen handcuffed him. As he was handcuffed, the defendant told Allen, “He took my money.” Allen then retrieved the object he saw the defendant place behind the tree. The object was a sawed-off shotgun. Officer Allen confiscated one spent twelve-gauge casing from the barrel of the shotgun, as well as one live shotgun round, two thirty-eight caliber rounds and one three fifty-seven Magnum round from the defendant’s clothing. After Allen secured the shotgun and placed the defendant in the police car, he called for medical aid for the victim, who was lying face down on the ground, with a wound to his right mid-back area.

Officer Meredith Acosta, an NOPD crime lab technician, testified that fingerprint testing on the shotgun proved negative for identifiable prints.

Mr. Albert Alfred testified that shortly before the shooting, he purchased a drink at the Safeway store. As he exited the store and walked through the parking lot, he saw the assailant point a shotgun at the victim. When Mr. Alfred yelled at |3the assailant, the assailant pointed the gun at him. Mr. Alfred ran and hid behind a van in the parking lot. Mr. Alfred peeked out from behind the van just as the assailant turned the shotgun on the victim again. The victim turned and began walking away from the assailant, when the assailant shot him. Mr. Albert yelled at the assailant again, and again the assailant pointed the gun at him. As Mr. Albert ran, he encountered Officer Allen and told him the assailant was armed and had just shot the victim. Mr. Albert identified the shotgun in court as the weapon the assailant used to shoot the victim. The police spoke to Mr. Albert on the scene, and he pointed out the defendant as the shooter. Mr. Albert also identified the defendant from a picture, and testified at trial that the police arrested the correct man.

The victim, Benoit Watson, testified that he has known the defendant for over ten years. At approximately 2:00 p.m. on the day he was shot, the victim spoke with the defendant at a friend’s house. At that time the defendant showed the victim a sawed-off shotgun and a three fifty-seven magnum. The defendant told the victim he wanted to pawn the pistol and asked if the victim had any money. The victim said he was not interested but that he would help the defendant find someone to whom he could pawn the gun. The defendant found a purchaser for the gun. The victim and defendant walked to the defendant’s sister’s house across the street from the convenience store, and the defendant placed the guns in the house. The victim sat and drank wine with the defendant while they waited for the purchaser to return with the money. When the defendant retrieved the guns from the house and began to brandish them, the victim left and walked across the street to the convenience store parking lot. As the victim talked to a friend, the defendant approached him and placed the gun against his head, demanding to 14know where his gun was. The victim brushed the defendant away and told him that the gun was where the defendant left it, on the porch across the street. The victim turned and walked away. He did not see the person who fired the shot but the next thing he knew people were telling him he had been shot. When the police arrived, the victim identified the defendant as the man who held the gun to his head. The victim stated that he and the defendant had never had any disagreements.

The State recalled Officer Errol Allen who reiterated that he detained and arrested the defendant based upon Albert Alfred’s identification of the defendant as the shooter. Officer Allen identified the defendant as the person Mr. Alfred said shot the victim.

ERRORS PATENT

A review for errors patent on the face of the record reveals none.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant argues that the evidence is insufficient to support his conviction for aggravated battery. Specifically, the defendant maintains the State faded to negate the possibility of misidentification of the defendant as the perpetrator because witness Albert Alfred testified at trial that the defendant was not the shooter.

In reviewing the sufficiency of the evidence to support a conviction, the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard “preserves the role of the jury as the factfinder in the case but it |fidoes not allow jurors ‘to speculate if the evidence is such that reasonable jurors must have a reasonable doubt.’ ” State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427, 429. Nonetheless, credibility calls are within the fact-finder’s discretion and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984).

Under the Jackson standard, all evidence, both direct and circumstantial, must be sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. State v. Jacobs, 504 So.2d 817, 820 (La.1987). When circumstantial evidence forms the basis for the conviction, the totality of such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. However, the circumstantial evidence rule is not a separate test from the Jackson standard; La. R.S. 15:438 is simply “an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found defendant guilty beyond a reasonable doubt.” State v. Wright, 445 So.2d 1198, 1201 (La.1984). Ultimately, the totality of the evidence must be sufficient to satisfy a rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Sutton, 436 So.2d 471 (La.1983). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Furgerson, 34,344 (La.App. 2 Cir. 3/2/01), 781 So.2d 1268, writ den. 2001-1102 (La.3/22/02), 811 So.2d 921. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. Id.

When a defendant disputes identity, the State must negate any reasonable probability of misidentification. State v. Smith, 430 So.2d 31, 45 (La.1983).

| (;In this ease, Officer Allen testified that he interviewed Albert Alfred immediately after the shooting and that Alfred pointed out the defendant and told the officer that he [the defendant] “shot the man for nothing.” Based upon Alfred’s on the scene identification, Officer Allen apprehended the defendant.

Although Alfred denied at trial that the defendant was the shooter, he admitted that he saw the police arrest the shooter, and that the person the police arrested was the same person who did the shooting.

A prior statement by a witness which is “[o]ne of identification of a person made after perceiving the person,” is non-hearsay when the witness appears and is cross-examined on the statement. La. C.E. art. 801(D)(1)(c). Such a statement may be used assertively, as substantive evidence of guilt, and may be established through the testimony of one to whom the statement was made. This is so even if the witness denies making an identification or fails or is unable to make an in-court identification. State v. Johnson, 99-3462 (La.11/3/00), 774 So.2d 79, 80-81.

When Officer Allen first observed the defendant, he was carrying an object which Allen could not initially identify, but which he discovered to be a sawed-off shotgun when he recovered it from the area where the defendant placed it. The shotgun contained one spent twelve-gauge casing. When Officer Allen arrested the defendant, he told Allen, “He took my money.” The defendant had one five shotgun round in his pocket, two thirty-eight caliber rounds, and one 357 Magnum round. Witness Albert Alfred identified the shotgun seized by police as the weapon he observed the perpetrator use to shoot the victim.

The victim, Benoit Watson, testified that earlier on the day of the shooting, the defendant called him into the alley, and asked him whether he had any money. The defendant showed him a sawed-off shotgun and a 357 Magnum and told him 17that he was interested in pawning the pistol. Later, the victim was sitting with the defendant drinking wine, while the defendant waited for someone to whom he was going to pawn the pistol returned with money. The victim got worried when the defendant took the guns out again when a policeman was passing, so he walked down the street to the Safeway. The victim stated that the defendant confronted him at the Safeway, held the shotgun to his head, and asked him, “Man, you know, the guy that got my gun?” The victim told him, “Man, your gun was left over there with you.” The victim pushed the gun back and said, “Go ahead on.” The victim turned away, and the defendant turned away, and then everyone began to tell the victim he had been shot.

In this case, the defendant confronted the victim with a shotgun immediately before the victim was shot. An officer observed the defendant putting down an object, which was later determined to be a shotgun. Witness Albert Alfred pointed out the defendant to the officers as the shooter, and testified in court that the police arrested the shooter on the scene. The evidence is clearly sufficient to establish the defendant’s identity as the shooter. This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 2

In a second assignment, the defendant argues the trial court erred in denying his motion to quash the multiple offender bill of information. The defendant maintains that the State failed to produce any evidence concerning the “cleansing period” between his prior offense and this present conviction. Moreover, he contends his motion to quash should have been granted because the trial court erred in stating that it would be bound by the decision of the Louisiana Supreme Court in State v. Everett, 00-2998 (La.5/14/02), 816 So.2d 1272.

laThe determination of whether a defendant’s last previous discharge date is within the appropriate number of years of the commission of his instant offense is a question of fact to be resolved during a hearing on the habitual offender bill of information, at which evidence is presented on the issue. In this case, no hearing was held; hence, no evidence was presented. The defendant admitted the allegations in the habitual offender bill of information, and waived a hearing on the same.

On August 2, 2000, the date of the defendant’s habitual offender adjudication and sentence, the defendant did not argue that the discharge date on his armed robbery conviction was not within ten years of the commission of the instant offense. The only argument that the defendant made, or preserved, was the allegation that the relevant “cleansing period” was five years, not ten years. The trial court correctly stated that it was bound by State v. Everett, 00-2998 (La.5/14/02), 816 So.2d 1272. This assignment of error, which was not preserved for appellate review, is without merit.

ASSIGNMENT OF ERROR NUMBER 3

In a final assignment, the defendant contends the trial court erred in adjudging him a second felony offender because the State presented no evidence to prove that he was discharged from custody for a 1980 conviction for armed robbery less than ten years prior to his arrest for his present conviction.

Although the record in this case does not contain a plea form to the habitual offender bill of information, the transcript of August 2, 2002, indicates that the defendant entered a plea of guilty to the habitual offender bill of information, apparently reserving his right to challenge the trial court’s determination that it would be bound by State v. Everett, 00-2998 (La.5/14/02), 816 So.2d 1272.

IsAs noted previously herein, no hearing was held on the multiple bill. Having waived his right to a hearing, the defendant cannot challenge on appeal the sufficiency of the evidence which the State would have presented if there had been a hearing, but did not present because there was no hearing.

CONCLUSION

Accordingly, for the foregoing reasons, we affirm the conviction and sentence.

AFFIRMED.