author: DREW, J.

text:
    Sylvia BLACK, Administratrix of Succession of Cody Cortez Black, for Plaintiff-Appellant, v. LOFLAND COMPANY, Fireman’s Fund Insurance Company, and H & S Services, Inc., for Defendants-Appellees.
    No. 37,862-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2004.

      Hersy Jones, Jr., Shreveport, for Appellant.
    Rountree, Cox, Guin & Achee by Billy J. Guin, Jr., for Appellees, LIGA and H & S Services, Inc.
    Gold, Weems, Bruser, Sues & Rundell by Peggy Dean St. John, Alexandria, for Appellees Lofland Company and Connecticut Indemnity Company.
    Before BROWN, PEATROSS and DREW, JJ.
   DREW, J.

Cody Black was employed as a general laborer by H & S Services, Inc. d/b/a Snelling Temporaries Services, which assigned him to work at Lofland Company. On November 17, 1999, after having worked at Lofland for approximately one week, Black injured his hands while pushing rods measuring approximately 15 feet in length into a rebar machine. As Black used his left hand to guide a rod, his left hand was pulled into the rebar machine, and three of his fingers (index, middle, and small) on that hand were severed. Black was unable to recall what happened next, but he alleged in his claim that when he attempted to use his right hand to pull his left hand from the rebar machine, his right hand was crushed.

Revascularization and nerve repairs were performed on Black’s left ring finger by Dr. Forrest Wall. K-wires were placed in the right fingers, and the soft tissue was repaired on these fingers. The next month a skin graft was done on the left hand. Dr. Wall subsequently amputated Black’s right small finger at the distal interphalangeal joint.

Dr. Philip Osborne evaluated Black in June of 2000 and assigned the following impairment ratings for Black’s fingers and hands:

[¡According to Dr. Osborne, total impairment of Black’s left hand was 59%, which converts to 53% impairment of the left upper extremity, which further converts to 32% whole person impairment. Total impairment of Black’s right hand was 44%, which converts to 40% impairment of the right upper extremity, which further converts to 24% whole person impairment. Dr. Osborne concluded that overall Black had 48% whole person impairment. In his report to Dr. Wall, Dr. Osborne wrote that Black could easily do sedentary and light work, with restrictions against repetitive gripping or grasping, climbing ladders, or working at unprotected heights.

Black, who was left-hand dominant prior to the accident, was deposed on June 18, 2001. Regarding his left hand, Black testified that he was unable to put his palm face down on a table because the left ring finger, which he was unable to straighten, was bent in toward the palm. His left thumb was unaffected by the accident which severed the index, middle, and small fingers on his left hand.

Black testified that he was able to place his right palm face down on a table and flatten his hand, except for his ring finger, which was bent upwards at the knuckle. The ring finger remained permanently in that position. Black was unable to make a fist with his right hand, but he was able to meet his right index finger and right thumb at the ends. He was unable to otherwise bend the fingers on his right hand, but he could move them down to a 90-degree angle from the palm without bending them. The tip of his right small finger was removed by Dr. Wall during surgery.

| ¡¡Black lived with his parents from the time of the accident until February of 2001. Black testified that he could:

• Write, although sometimes his handwriting was not legible;
• “Hunt and peck” on a computer keyboard;
• Shave several times a week with an electric shaver;
• Fix his own sandwiches;
• Drive a car, even though he could not grip the steering wheel, as he used his palm and sometimes the area between his thumb and fingers to steer;
• Sweep and mop his apartment;
• Wash and iron his clothes;
• Use his right thumb to operate a TV remote control;
• Operate a touch-tone phone with his thumb;
• Turn on lights;
• Strip and make a bed in 10-15 minutes;
• Wipe a commode, shower, tub, and sink; and
• Operate a vacuum cleaner for a short period of time until the handle irritated his right hand, although he was only able to clean the area immediately around him because he could not stretch.

On August 27, 2001, Black was tragically murdered. His mother, Sylvia Black, was substituted as party plaintiff. Trial was held in this matter on October 8, 2002, and the WCJ rendered judgment on December 4, 2002. Black was awarded 70 weeks of permanent partial disability (“PPD”) benefits: 20 weeks for the loss of the left small finger, 20 weeks for the loss of the left middle finger, and 30 weeks for the loss of the left index finger. 1¿These payments were subject to a credit for the 97 weeks of indemnity payments already received by Black. The WCJ denied Black’s demands for:

• a lump sum award of $30,000 under La. R.S. 23:1221(4)(s);
• penalties and attorney fees relating to vocational rehabilitation services because the WCJ concluded that the defendants provided adequate vocational rehabilitation services; and
• penalties and attorney fees because the WCJ concluded that the defendants were not arbitrary and capricious in not paying PPD benefits.

The WCJ also granted defendants’ motion for involuntary dismissal in part.

Mrs. Black appealed the judgment. Defendants answered the appeal seeking attorney fees and costs for what they assert is a frivolous appeal.

Permanent Partial Disability Payments

Mrs. Black first argues on appeal that the WCJ erred in not awarding PPD benefits for the damage to her son’s left ring finger and right fingers. The WCJ awarded PPD benefits only for the loss of the three fingers on Black’s left hand.

La. R.S. 23:1221(4) sets forth the compensation for the anatomical loss of use or amputation of fingers:

4) Permanent partial disability. In the following cases, compensation shall be solely for anatomical loss of use or amputation and shall be as follows:
(a) For the loss of a thumb, sixty-six and two-thirds percent of wages during fifty weeks.
(b) For the loss of a first finger, commonly called the index finger, sixty-six and two-thirds percent of wages during thirty weeks.
(c) For the loss of any other finger, or a big toe, sixty-six and two-thirds percent of wages during twenty weeks.

|RThe parties dispute whether Dr. Osborne’s disability ratings comply with La. R.S. 23:1221(4)(q), which provides:

No benefits shall be awarded or payable in this Paragraph unless the percentage of the anatomical loss of use or amputation, as provided in Subparagraphs (a) through (o) of this Paragraph or the percentage of the loss of physical function as provided in Subparagraph (p) or (s) of this Paragraph is as established in the most recent edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment.”

However, it is unnecessary for this court to determine whether Dr. Osborne’s ratings comply with the above requirement. Even assuming that the evidence established that Black had been entitled to additional PPD benefits beyond those awarded by the WCJ, such benefits would have ended on the date of his death.

An employee’s right to workers’ compensation benefits terminates upon his death. Ryder v. Industrial Const. Co., 616 So.2d 857 (La.App. 3rd Cir.1993), unit denied, 619 So.2d 1068 (La.1993). Even though the statutory scheme allows for a specific number of weeks of benefits depending on the part of the body that it lost, the result is still the same when the claimant dies while receiving benefits. This issue has been addressed by the Third Circuit:

The right of an employee to enforce the obligation of an employer to pay disability benefits is a heritable property right which is transmitted to his heirs upon his death. This rule, however, is limited to the benefits which had accrued to the employee prior to his death. Weekly benefits which would have been paid, but for the death of the employee, are not considered accrued benefits. Guillot v. Weaver Brothers & Thompson Lumber Company, 31 So.2d 278 (La.App. 2d Cir.1947); Turner v. Southern Wheel and Rim Service, Inc., 332 So.2d 770 (La.1976).
|fiThe plaintiff contends that a different rule should apply in the case of a scheduled loss. She argues that on the date of the. amputation her son had a vested right in 150 weeks of benefits under LSA-R.S.- 23:1221(4)(e), and that upon his death, she inherited his right to those benefits. We disagree.
The general purpose of the disability section of the worker’s compensation statute is to compensate an employee during the “period of such disability.” LSA-R.S. 23:1221, paragraphs 1, 2 and 3. That is why an employer can have no obligation to pay benefits other than on a weekly basis. Once an employee dies, the disability terminates and along with it goes the employer’s obligation to pay. This is the basic rationale behind the Guillot decision and its progeny.
The scheduled benefits portion of the statute is in the same section as the one dealing with general disability benefits and is intended as a parallel remedy. Jacks v. Banister Pipelines America, 418 So.2d 524 (La.1982). Both provide for benefits only on a weekly basis. LSA-R.S. 23:1221. Had the legislature felt a different rule was needed for scheduled benefits, it would have provided for a lump sum award instead of payments on a weekly basis.

Chapman v. Home Indem. Co., 442 So.2d 1388, 1389 (La.App. 3d Cir.1983), writ denied, 445 So.2d 437 (La.1984).

Appellant also maintains that in addition to the indemnity benefits Black received, he should have also received the additional PPD checks before he died, and the defendants were arbitrary and capricious in failing to pay the additional benefits. Mrs. Black avers that Black should have begun receiving PPD benefits for each injured finger within 30 days after defendants received Dr. Osborne’s disability rating. Accordingly, she submits that for the injuries to Black’s fingers on his left hand, her son should have received four checks for 20 weeks, then one check for 10 |7weeks. For the fingers on the right hand, it is insisted that he should have received three checks for 20 weeks, and then one check for 10 weeks.

In essence, Mrs. Black is arguing that the checks should have been distributed by defendants on a concurrent schedule. However, the schedule of payments sought by appellant is not permitted. Subject to limitations set forth in La. R.S. 23:1221(4)(Z), in a situation where multiple specific injuries are suffered, the compen-sable periods for the individual losses are cumulative. Hutchinson v. Livingston Wood Products, 562 So.2d 883 (La.1990). Although cumulative, the compensable periods are consecutive and not concurrent. See, Davis v. Hawthorne, 16 La.App. 172, 133 So. 532 (La.App. 2d Cir.1931).

Allowing Black to collect benefits for the loss of his fingers through concurrent payments would lead to absurd results. For instance, it would place Black in a superior position to that of a claimant who loses a hand and is entitled to “sixty-six and two-thirds percent of wages” during 150 weeks pursuant to La. R.S. 23:1221(4)(e), but who dies before the period of 150 weeks ends. In such circumstances, the claimant who lost a hand would not have collected all the benefits that were potentially available, while Black would have been able to receive all his benefits in a span of 30 weeks.

It is clear that Black had received all benefits to which he was entitled when he died. La. R.S. 23:1223 provides in part that when a claimant has received temporary total disability benefits, permanent total disability benefits, or supplemental earnings benefits, the number of weeks of compensation already paid is to be deducted from the number of weeks of |SPPD benefits. Black was entitled to PPD benefits of $102 per week. He died approximately 92 weeks after he was injured. He received 97 weeks of benefits at $102 per week, for a total of $9,894, during his period of injury. Therefore, he actually received more than that to which he was entitled. Plaintiffs arguments on the issue of PPD benefits are without merit. There was no error in the WCJ’s denial of Black’s claim for additional PPD benefits, or in the WCJ’s denial of Black’s claim that defendants were arbitrary and capricious in withholding PPD benefits.

Lump Sum Payment

Mrs. Black next contends that the WCJ erred in not awarding the lump sum benefit of $30,000 for the “loss” of her son’s hands. La. R.S. 23:1221(4)(s) provides, in part:

(i) In addition to any other benefits to which an injured employee may be entitled under this Chapter, any employee suffering an injury as a result of an accident arising out of and in the course and scope of his employment shall be entitled to a sum of thirty thousand dollars, payable within one year after the date of the injury....
(iii) Only the following injuries shall be considered injuries for which benefits pursuant to this Subparagraph may be claimed:
(aa) Paraplegia or quadriplegia or the total anatomical loss of both hands, or both arms, or both feet, or both legs, or both eyes, or one hand and one foot, or any of two thereof; however, functional loss or loss of use shall not constitute anatomical loss.

Such an award is exempt from the provisions of La. R.S. 23:1223.

| flAppellant contends that La. R.S. 23:1221(4)(s) does not define the phrase “total anatomical loss.” She asserts that it is open to interpretation, and for support, she points to Subparagraph (4)(n), which provides that a “permanent total anatomical loss of the use of a member is equivalent to the amputation of the member.” Appellant maintains, therefore, that the damage to Black’s fingers was the functional equivalent of an anatomical loss or amputation of his hands.

This argument ignores the clear language of subparagraph (4)(s)(iii)(aa), which states, “functional loss or loss of use shall not constitute anatomical loss.” What Black suffered was a functional loss of use of his hands to some degree, but it was not an anatomical loss of his hands as contemplated by the statute. Moreover, Black did not even suffer total loss of the use of his hands. Dr. Osborne concluded that total impairment of Black’s left hand was 59%, and total impairment of the right hand was 44%. Accordingly, Black was not eligible to receive the lump sum payment under La. R.S. 23:1221(4)(s), and the WCJ properly rejected appellant’s claim,

Vocational Rehabilitation Services

It is further contended by appellant that the WCJ erred in denying her claim for attorney fees and penalties due to the defendants’ alleged failure to provide adequate vocational rehabilitation services.

The provisions governing the rehabilitation of an injured employee are set forth in La. R.S. 23:1226, which states, in part:

A. When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages |inequal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services.
B. (1) The goal of rehabilitation services is to return a disabled worker to work, with a minimum of retraining, as soon as possible after an injury occurs. The first appropriate option among the following must be chosen for the worker:
(a) Return to the same position.
(b) Return to a modified position.
(c) Return to a related occupation suited to the claimant’s education and marketable skills.
(d) On-the-job training.
(e) Short-term retraining program (less than twenty-six weeks).
(f) Long-term retraining program (more than twenty-six weeks but not more than one year).
(g) Self-employment.

Prior to the 1989 amendment to La. R.S. 23:1226, the objective of rehabilitation was to educate and increase the job marketability of employees who could not return to their former positions. The amended statute no longer extensively relies on vocational education and instead seeks a minimum of retraining. Wilson v. Grosjean Contractors, Inc., 28,831 (La.App.2d Cir.10/30/96), 682 So.2d 1264, unit denied, 97-0012 (La.2/7/97), 688 So.2d 510.

The sanctions of a penalty and attorney fees sought by Black are not provided in La. R.S. 23:1226. Vocational rehabilitation has been declared to be a “claim due” under La. R.S. 23:1201.2. Haynes v. Williams Fence and Aluminum, 02-0442 (La.4/21/03), 851 So.2d 917. La. R.S. 23:1201.2 provided for an assessment of attorney fees, but not a penalty, when an |n employer or insurer discontinued payment of claims due and the discontinuance was arbitrary, capricious, or without probable cause. Conduct that is arbitrary or capricious is conduct consisting of:

... willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. Stated another way, such behavior arises from unrestrained exercise of the will or personal preference or lacks a predictable pattern.

Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 890. Citations omitted.

La. R.S. 23:1201.2 was repealed by Act 1204 of 2003. Its provisions were reproduced in a subsection (I) that was added to La. R.S. 23:1201 by Act 1204. The new subsection provides for the assessment of a penalty along with attorney fees.

The supreme court in Haynes observed in a footnote that it was only concerned with the discontinuation of rehabilitation services; it was not presented with a failure to commence vocational rehabilitation and whether penalties would be appropriate in that instance. Whether a penalty could be assessed for the failure to comply with La. R.S. 23:1226 was answered by the supreme court later that year in Chelette v. Riverwood International USA, Inc., 03-1483 (La.10/17/03), 858 So.2d 412. The Chelette court reiterated the differences between La. R.S. 23:1201 [failure to commence payment of benefits], as it appeared prior to its amendment by Act 1204 of 2003, and La. R.S. 23:1201.2 [discontinuation of benefits]. The Chelette court stated that the sanctions of penalties and attorney fees imposed by La. R.S. 23:1201 were not directed at the vocational rehabilitation obligation of La. R.S. 23:1226. Accordingly, the only sanction available in this matter to Black is attorney fees under La. R.S. 23:1201.2.

Shellie McBride is a branch manager for Crawford & Company Health Care Management, and among her duties is to provide vocational rehabilitation services. She has her Master’s Degree in rehabilitation counseling and is a Social Security vocational expert and a licensed and certified rehabilitation counselor. McBride described how she generally attempts to first place a claimant in the same job with the same employer, then in a different job with the same employer, then in the same job with a different employer, then in a different job with a different employer, and finally she examines self-employment or retraining.

McBride took over Black’s file in December of 2000, after the case was referred to her department in November of that year. She first met with Black on December 19, 2000, to have him answer questions on a vocational evaluation worksheet used by McBride to learn more about her clients. Black’s attorney, Hersy Jones, stopped this interview because McBride was not writing down Black’s answers verbatim. McBride recalled that Jones preferred having a court reporter present or the evaluation taped. She would have permitted Jones to record the meeting, but he told her that he could not do so without her attorney present.

McBride never met with Black again after the initial meeting. McBride sent Jones a letter dated December 27 requesting a second | ^interview. She explained that due to the early termination of the interview, she did not obtain information regarding Black’s interests, prior work history, and independent job searches. A second interview would allow her to obtain the necessary information. McBride also stated that her attorney told her that his presence at the interview was not necessary. Jones inexplicably failed to respond to this letter. McBride estimated that Black returned the completed worksheet to her on January 3, 2001.

On January 8, 2001, McBride completed a vocational evaluation report based upon the information she had received from Black. On that same date, Dr. Wall noted in response to a letter dated January 5 from McBride that he agreed with Dr. Osborne’s suggested work restrictions.

On January 15, 2001, McBride wrote to Jones that she had received the vocational evaluation worksheet and would like to meet with Black to discuss his interests in returning to work and his responses to questions on the worksheet. Again, Jones did not respond to this letter.

On January 29, 2001, McBride wrote to Jones about a janitor position that was available at Goodwill. Although Dr. Wall had not approved the job description at that time, McBride thought this position would be an excellent opportunity because Goodwill worked with disabled individuals. McBride offered Black her assistance in applying for the job and in interviewing. Goodwill told her that Black would have to apply in person. Black and his mother claimed that he applied for the position and was not hired.

| uMcBride gathered job descriptions from the Dictionary of Occupational Titles, and then forwarded the descriptions to Dr. Wall for his approval. McBride agreed that Dr. Wall would approve a job description and not the actual duties at a specific job, but she explained that she would try to find an employer who matched the job description approved by Dr. Wall.

On April 17, 2001, Dr. Wall approved a job description for the position of customer service representative/counter sales person at a dry cleaner. The job duties for that position included receiving and examining articles to be cleaned, quoting prices and preparing work tickets, collecting amounts due, and returning finished articles to customers.

Dr. Wall also approved the job description for the position of housekeeper/cleaner at a hotel, with modifications for minimal handling, spraying and fingering. Dr. Wall noted that because Black had poor finger dexterity, the job would need to be adjusted for duties requiring fine dexterity; otherwise, the job was appropriate. Dr. Wall did not approve job descriptions for fast-food worker and convenience store cashier-checker. McBride never asked Dr. Wall why he did not approve these.

On April 30, 2001, McBride wrote to Jones that Dr. Wall had approved the customer service representative/counter sales person and housekeeper/cleaner job descriptions. She requested that Black apply for jobs meeting the job descriptions as she identified them. Black thought he could perform the jobs unless they required “serious” gripping or grasping, |1Band he thought he could function as a housekeeper or cleaner' if it did not require long periods of spraying.

McBride sent a letter dated May 15 to Jones stating that she had found counter-helper/cashier positions at $1.50 Cleaners and at Imperial Dry Cleaners. McBride also offered to work with Black on his résumé preparation and interviewing skills. Black did not apply for the positions after receiving this letter, despite the job description having been approved by Dr. Wall, because he thought he would be unable to pick up change over a long period of time.

On June 21, 2001, McBride wrote to Jones about transportation driver and valet runner positions at a local casino. The letter stated that the driver position required that Black be able to drive vehicles with automatic or standard transmissions. McBride testified that she thought this was an appropriate position based upon Black’s ability to drive.

On June 28, 2001, Dr. Wall rejected the job description for valet runner at a casino because it required operating a vehicle with a standard transmission. The next month, Dr. Wall rejected the job description for a transportation driver position with a casino for the same reason. McBride wrote to Dr. Wall on August 28, 2001, that the transportation driver position did not require operation of a vehicle with a standard transmission. She was awaiting Dr. Wall’s response when she learned that Black had been killed.

On August 28, 2001, McBride wrote to Jones about a dry cleaner/customer service representative position available at Azalea Cleaners. She again offered vocational assistance such as résumé ^preparation or interviewing skills. Black had been murdered the previous day.

Black stated that on his own he applied for a job at á Lucent Technologies job fair. He took a test there but did not pass. He said he also applied for a light-duty job at Goodwill, but he never heard anything from them. His mother also testified that he applied for the Goodwill position. Of the job vacancies which McBride had made him aware, this was the only job for which he actually applied.

Job alternatives for Black were obviously limited by the nature of the injuries to his fingers, by his work experience, and by his lack of education. Black had graduated from high school and had one year of college. He did not know how to use a computer, although he felt he could learn how to operate one. He also thought he could work as a driver delivering light packages if it did not involve driving for a long period of time. When asked what type of job he would like to do, Black remarked that he would like to be a host, greeter, or receptionist, anything that did not require a great deal of using the hands.

Black had worked nights for Red River Sanitors for' several months prior to the accident, but he had not tried to return to work there. He thought he could return to Red River Sanitors if the position involved light-duty tasks such as cleaning mirrors for short periods of time. Black believed that he could clean a hotel room, which would include making beds, turning off televisions, dusting, sweeping, mopping, and vacuuming for short periods of time. He would sweep by placing his left hand at the 117bottom and right hand at the top of the broom, and closing the thumb and index finger together on the right hand to hold the broom.

McBride was not aware if Black was offered a customer service representative position at H & S or Lofland. She never met with anyone from H & S or Lofland, and she never did an analysis of H & S to see if jobs were available for Black there. She was not aware of any light-duty work available at H & S for Black. It was her understanding when she received the file that working a light-duty job at H & S was not an option.

McBride never offered retraining services or additional education to Black. She did not conduct vocational testing for Black, and she did not explore self-employment. The only vocational rehabilitation plan she was proceeding with at the time was to find available jobs in his area.

McBride explained that retraining is generally not offered until there are no viable jobs in the community. She felt her obligation to offer retraining was never triggered. If she had been unable to offer Black a viable position, and she thought he would have been a good candidate for retraining, then she would have considered it in the future, but she felt she needed to learn more about his interests. McBride admitted that Black was questioned about his interests at the initial interview, and that Black possibly told her that he was interested in learning computer skills.

Defendants attempt to portray Black as uncooperative based upon what occurred at the interview. However, it is not clear what information McBride felt she was lacking due to early termination of the interview. Jones told McBride to leave the worksheet in order for it to be completed, |1sand then the worksheet was returned to her in early January, a few weeks after the initial interview. McBride explained that she uses the responses on the vocational evaluation worksheet to ask additional questions. Thus, although the sheet was returned to her completed, she argued that she did not have all the followup information that she wanted.

McBride wrote down additional questions at the time she received the worksheet. She wanted to know if Black could write with his left hand, and who would write for him if he could not write. However, these questions were not mentioned in her January 15 letter to Jones.

On February 14, 2001, McBride wrote a letter to defendants’ attorney requesting that he ask Black several questions during an upcoming deposition. These suggested questions included:

• What household chores Black performed;
• What Black did during a regular day;
• Whether Black had looked for any employment since being released to return to work in June of 2000; and
• Whether Black had any specific vocational goals that he wanted to accomplish.

McBride thought of some of these questions after receiving the worksheet. She felt there might even be future questions based upon the deposition responses to those questions. However, McBride never reviewed the deposition to determine if her questions had been answered, and she never used the deposition for any purpose.

We also note that over the span of approximately eight months, McBride notified Black of only three positions under job descriptions |1flapproved by Dr. Wall. Black stated that he had applied for one of these positions and was not hired. The remaining two available positions, both at dry cleaners, were jobs that involved some cashier work. Perhaps Black’s lack of motivation to pursue these jobs was somewhat explained by his awareness that finding employment would possibly end the Social Security disability benefits that he was receiving. Nevertheless, Black would have had some difficulty performing the tasks required of a counter-helper/cashier at the dry cleaners. McBride found these positions despite her own admission that it would be difficult for Black to pick up change. Clearly, she should have found positions better suited to Black’s needs and qualifications. In other words, the small number of approved positions discovered by McBride is strong evidence that retraining or education should have been explored in this instance as a way to expand Black’s job prospects.

A WCJ has great discretion in awarding or denying penalties and attorney fees. Nowlin v. Breck Const. Co., 30,622 (La.App.2d Cir.6/24/98), 715 So.2d 112. Under the circumstances of this record, we conclude that the WCJ abused its discretion and was clearly wrong in finding that defendants provided adequate vocational rehabilitation services. We remand this matter for a determination of appropriate attorney fees.

12 ffjQñand as Part of Judgment

Finally, Mrs. Black argues that the WCJ erred in determining that Lof-land was Black’s employer. The record does not support Mrs. Black’s position. Black listed H & S and Lofland as employers in his claim for compensation. We note that in its original answer, Lofland denied that Black was its employee at the time he was injured. However, Lofland filed an amended answer in which it admitted that Black was employed by H & S and by Lofland at the time he was injured. Appellant’s argument is without merit.

Answer

Defendants answer the appeal seeking attorney fees and costs for what they allege is a frivolous appeal. An appellate court may award damages for a frivolous appeal. La. C.C.P. art. 2164. An appeal is deemed frivolous only if it does not present a substantial legal question, or if it is obvious either that the sole purpose is delay or that appealing counsel does not seriously believe the view he has advocated. Hays v. Volentine, 29,555 (La.App.2d Cir.5/7/97), 694 So.2d 633.

This is not a frivolous appeal. We deny defendants’ demand for attorney fees and costs.

CONCLUSION

We reverse the judgment insofar as it denied Black’s claim for attorney fees regarding the obligation to provide vocational rehabilitation. We remand to the WCJ for a determination of attorney fees. In all other respects, the judgment is affirmed.

| ^DECREE

With each party to bear their own costs, the judgment is AFFIRMED IN PART and REVERSED IN PART, and REMANDED to the court below for a determination of attorney fees.

      . La. R.S. 23:1201(D) states that PPD installment benefits shall become due on the thirtieth day after the employer or insurer receives a medical report giving notice of the permanent partial disability, and that all such compensation then due shall be paid.

      . La. R.S. 23:1226 was amended by Act 980, § 1 of 2003 to add subparagraph (B)(3)(b), which provides that an employee has no right of action against a vocational counselor for tort damages related to the performance of vocational services until administrative remedies are exhausted.

      . It is not clear, in light of Haynes, whether or not La. R.S. 23:1201(1) would apply to the vocational rehabilitation obligation in future cases, as Chelette discussed the version of La. R.S. 23:1201 prior to its amendment by Act 1204 of 2003.

      . The job description was submitted to Dr. Wall on January 31, 2001.

      . This is assuming that Dr. Wall approved the Goodwill janitor job description, which was not even submitted to Dr. Wall until after McBride gave Jones and Black notice of the position. McBride's case file does not show whether the description was rejected or approved.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Nathaniel MITCHELL, Appellant.
    No. 37,916-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      Louisiana Appellate Project by Margaret S. Sollars, for Appellant.

      John Schuyler Marvin, District Attorney, John Michael Lawrence, C. Sher-burne Sentell III, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS and DREW, JJ.
   DREW, J.

Nathaniel Mitchell was tried by a jury and convicted of possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and two counts of conspiracy to commit the aforementioned crimes.

The defendant now appeals. We affirm the two convictions for possession of cocaine and marijuana with intent to distribute, reverse the two criminal conspiracy convictions, and remand for resentencing.

FACTS

On June 26, 2000, around 9:00 p.m., the defendant was driving east on Interstate 20 in Webster Parish, in his red and black customized 1993 GMC van with Arizona license plates. The defendant was heading to Georgia to attend his brother’s funeral, accompanied by three passengers: Adrienne Peevy, a friend; Louella Mitchell, the defendant’s daughter; and the defendant’s two-year-old grandchild.

The witnesses gave conflicting testimony. The defendant testified that:

• While driving, he passed (on the side of the road) four police units, apparently engaged in a traffic stop.
• He was traveling approximately 70 miles per hour when he attempted to pass a truck located in the right lane.
• He began to move into the left lane, but the truck driver suddenly moved into the left lane as well, causing Mitchell to run off the shoulder of the road.
• After the truck passed, he again drove back onto the roadway.
• A Webster Parish deputy got behind him and subsequently pulled him over.

[¡Webster Parish Deputy John Morton testified that:

• He was driving in the inside lane, en ■route to assist another deputy at another traffic stop when he saw the defendant’s vehicle quickly pull in front of him.
• The defendant then changed lanes back-into his original lane of travel.
• No turn signal was given at either lane change.
• He concluded that the defendant had committed the traffic violation of improper lane usage, and suspected he might be impaired.
• He then radioed the officer he was en route to assist that he had encountered a possibly intoxicated subject whom he was going to check out.
• He followed the defendant for another two to three hundred yards before activating his lights to stop the vehicle.

The defendant further testified that:

• After he got out of his van, Deputy Morton informed him that he illegally changed lanes.
• He (the defendant) had his right signal on before changing lanes.
• Another officer pulled over to assist Deputy Morton.
• Deputy Morton told the defendant, ‘We need to look inside your van.”
• He (the defendant) told Deputy Morton that both Ms. Peevy and Miss Mitchell were partially unclothed because of the heat in the van.
• He further advised Deputy Morton that if he would allow him to tell the women to get dressed, he would allow Deputy Morton to look in the van.
• Deputy Morton refused to allow the defendant to go back to the van.
• When asked if weapons were in the van, the defendant replied, “Yes,” advising Deputy Morton of a pistol along the driver’s seat and another gun in the back.
• About this time, another police unit pulled up, carrying two more officers, making a total of four officers at the traffic stop location.
|P« During the traffic stop, Deputy Morton told him that they needed to search his van and stated, “Now we can do it the easy way or we can do it the hard way.”
• Deputy Morton walked off to speak to the other officers and came back with a clipboard in his hand- and handed it to one of the other officers and told him to “get him to sign it.”
• When Deputy Morton went to retrieve the passengers from the van, there was audible “fussing” between Deputy Morton and Ms. Peevy.
• Deputy Morton called Peevy a “little n ... r bitch,” and he was pushing her from the right side of the van toward the back.
• He (the defendant) felt intimidated and threatened, so he signed the consent form to allow the officers to search his van.
• Had it not been for the number of officers on the scene and Deputy Morton’s name-calling and pushing of Ms. Peevy, he would not have signed the consent form.

Deputy Morton’s testimony differs greatly from the defendant’s:

• He pulled the defendant over for improper lane usage and issued a citation for this violation.
• He never saw the defendant’s van get run off the road by an 18-wheeler.
• The defendant initially appeared very nervous and then, as their conversation continued, the defendant began sweating excessively from his brow.
• The defendant stuttered at times and repeatedly kept looking back over his shoulder at his van.
• The defendant never mentioned anything to him about the women in the van being partially undressed or the air conditioner in his van not working properly.
• After he ran the defendant’s license and criminal history, he learned of several weapons charges against the defendant. At the motion to suppress hearing, it was determined that these charges actually belonged to a different Nathaniel Mitchell.
• He read the defendant his rights prior to him signing the consent to search form.
1He went over the form with the defendant prior to the defendant signing the form, and that he did not coerce the defendant in any way to sign the consent form.
• He never used a racial slur against Ms. Peevy.
• The defendant asked what would happen if he didn’t sign, and he (Deputy Morton) informed the defendant that if he didn’t want to sign the form, then a K-9 officer would be called to walk around the defendant’s vehicle.
• At that point, the defendant decided that he would sign the consent form.

A police search of the van recovered:

• One fanny pack;
• Thirty-six bags of suspected crack cocaine (three more bags were subsequently found in the van during a later search);
• Six Baggies of suspected marijuana;
• Six suspected marijuana blunts in a Royal Blunt package;
• One Thousand One Hundred Thirty-Five and No/100 Dollars ($1,135.00) in currency;
• One Intretec 9-millimeter Luger;
• One full clip containing 31 rounds of 9-millimeter ammunition;
• One .40 caliber Ruger;
• Two clips containing 20 rounds of .40 caliber ammunition; and
• Three bags of coffee beans.

The defendant was arrested and charged with possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and two counts of conspiracy to commit the aforementioned crimes. After a trial by jury, the defendant was found guilty as charged on all four counts. The trial court sentenced him to serve 15 years at hard labor for the I sPossession of cocaine with intent, with the first two years to be served without the benefit of parole, probation, or suspension of sentence; and five years for conspiracy to commit possession of cocaine with intent, to run concurrently with each other. The court further sentenced the defendant to serve ten years at hard labor for his conviction of possession of marijuana with intent, and five years for conspiracy to commit possession of marijuana with intent. These latter two sentences were also ordered to be served concurrently with each other but consecutive to the two previously-imposed sentences, making a total of a 25-year hard labor sentence. The defendant appeals his conviction and sentence.

DISCUSSION

I. Validity of Stop, Search, and Seizure

The defendant argues that:

• The stop was based on a mere hunch, which is never enough for an officer to make a stop of a motorist.
• The stop was pretextual.
• The search was based solely on the nervous appearance of the defendant, and mere nervousness alone is not enough reason to allow an officer to search.
• The trial court erred in finding that no coercion was utilized to gain his consent to search.

The defendant relies heavily upon the testimony of Ms. Peevy, who stated that Deputy Morton called her a racial slur and snatched her out of the van, and the alleged fact that his right signal light was in proper working order and was still blinking at the time of the traffic stop. The defendant asserts that:

L* Nothing occurred to legally justify extending his detainment past the issuance of the citation.
• No legal justification existed for searching the van.
• No other crime was witnessed other than the minor traffic matter.
• A generalized hunch or mere suspicion that a person is involved in criminal activity is not sufficient to detain an individual and pursue an investigation.

The state argues that:

• The stop of an automobile is reasonable when the police have probable cause to believe a traffic violation has occurred.
• Both the traffic stop and subsequent seizure of evidence from defendant’s van are legally justified.
• A search conducted with a subject’s consent is a specifically established exception to both the warrant and probable cause requirements.
• The defendant’s consent was voluntarily and freely given.

To assess the constitutionality of allegedly pretextual searches, the United States Fifth Circuit adopted an objective test in U.S. v. Causey, 834 F.2d 1179, 1184 (5th Cir.1987): “[S]o long as police do no more than they are objectively authorized and legally permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry.” See, also, Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), and State v. McVan, 32,434 (La.App.2d Cir.3/11/99) 744 So.2d 641.

Since 1968, the requirement for making a stop on less than probable cause has been that the officer must be able to articulate factors leading to a favorable conclusion as to the existence of reasonable suspicion of criminal activity. See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Several recent cases speak of traffic stops requiring probable cause. |7See, for example, Whren, supra. At the time of this stop, this alert officer possessed both reasonable suspicion of the crime of DWI, because of the erratic driving, as well as probable cause that a traffic infraction had occurred, specifically because of the improper lane usage. Vehicular stops have been approved after minimal violations. See, State v. Waters, 00-0356 (La.3/12/01), 780 So.2d 1053.

It is well settled that a warrant-less search conducted pursuant to a valid consent is permitted by the Louisiana and United States constitutions. State v. Bostic, 26,000 (La.App.2d Cir.5/4/94), 637 So.2d 591, unit denied, 94-1476 (La.10/14/94), 643 So.2d 159, citing, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Consent is valid when it is freely and voluntarily given by a person with common authority or other sufficient relationship to the premises or effects sought to be inspected. State v. Bodley, 394 So.2d 584 (La.1981); State v. Owens, 480 So.2d 826 (La.App. 2d Cir.1985), writ denied, 486 So.2d 748 (La.1986), cert. denied, 479 U.S. 840, 107 S.Ct. 145, 93 L.Ed.2d 87 (1986). While a valid consent search is a recognized exception to the warrant requirement, the burden is on the state to prove the consent was freely and voluntarily given. Voluntariness is a question for the trier of fact to be determined by the totality of the circumstances. State v. Edwards, 434 So.2d 395 (La.1983); State v. Brown, 478 So.2d 600 (La.App. 2d Cir. 1985).

The issue of consent turns on the credibility of the witnesses giving contradictory testimony as well as the circumstances surrounding the consent. State v. Yarbrough, 418 So.2d 503 (La.1982). The state presented the testimony of Officer Baker, Deputy Jackson, and Louella Mitchell, who stated they did not hear or observe any threats made to the defendant or any racial name-calling by Deputy Morton. Although Adrienne Peevy testified that Deputy Morton called her a “black bitch” or a “n ... r bitch,” she also testified that she did not observe any threats by police officers against the defendant.

In this instance, the trial court at the motion to suppress hearing obviously chose to believe the testimony of the state witnesses in concluding that the defendant’s consent to search his vehicle was voluntary and freely given. A finding by the trier of fact on the question of volun-tariness is to be given great weight upon appellate review. State v. Bostic, supra. We will not disturb this finding here.

Furthermore, the record illustrates that Deputy Morton closely observed the defendant’s behavior and reaction to the traffic stop. As a result of his observations and the surrounding circumstances, he requested to search the defendant’s vehicle. He diligently pursued a means of investigation likely to quickly confirm or dispel his particular suspicion about the contents in the defendant’s vehicle, in accordance with U.S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). We find the consent and subsequent search to be voluntary, and thus legal, and the evidence obtained therefrom to be admissible.

|;ill. Sufficiency of the Evidence

The defendant argues the evidence did not establish any agreement to commit a crime on the part of the charged conspirators. He further argues that the state failed to present evidence showing an overt act by any of the alleged conspirators in furtherance of a plot, thus failing to prove that two or more of them had specific intent to distribute the cocaine and marijuana.

The state counters that it presented sufficient evidence that a conspiracy existed between the defendant and his two passengers to transport illegal narcotics through Webster Parish and to resell the drugs for profit. The state also argues that the evidence was sufficient to support the conviction for possession of marijuana with intent to distribute, particularly emphasizing the testimony of Sgt. Evans, along with the absence of smoking paraphernalia, which arguably proved that the defendant possessed the marijuana with intent to distribute.

Although the record does not reflect that defendant filed a motion for post-verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

Possession with Intent to Distribute

Our law on questions of sufficiency of the evidence is well settled. See, generally, State v. Cooks, 36,613 (La. App.2d Cir.12/4/02), 833 So.2d 1034. To prove the crime of possession with intent to distribute, the state must prove beyond a reasonable doubt (1) the defendant knowingly or intentionally (2) unlawfully possessed a controlled substance (3) with intent |into distribute. See, State v. Coleman, 552 So.2d 513 (La.App. 2d Cir.1989). Mere possession of marijuana is not evidence of intent to distribute unless the quantity is so large that no other inference is reasonable. State v. Coleman, supra, citing, State v. Greenway, 422 So.2d 1146 (La.1982).

The defendant here possessed a large amount of cocaine and a much lesser amount of marijuana. The jury convicted him for possession with intent to distribute both drugs. The marijuana case is a much closer question.

Testimony of street value and dosage of the drug is relevant to the issue of intent. State v. Tomabene, 337 So.2d 214 (La.1976); State v. Gladney, 29,791 (La.App.2d Cir.9/24/97), 700 So.2d 575.

Factors useful in determining whether circumstantial evidence is sufficient to prove an intent to distribute a controlled dangerous substance include:

• Whether the defendant ever distributed or attempted to distribute any marijuana.
• Whether there was marijuana in a form usually associated with marijuana possessed for distribution to others.
• Whether the amount was such as to create a presumption of an intent to distribute.
• Expert or other testimony that such an amount as found in the defendant’s possession is inconsistent with personal use only.
• Evidence of any paraphernalia, such as Baggies or scales, evidencing an intent to distribute.

State v. Coleman, supra, citing, State v. House, 325 So.2d 222 (La.1975); State v. Green, 524 So.2d 927 (La.App. 2d Cir.1988); State v. Green, 508 So.2d 602 (La.App. 2d Cir.1987).

InAs to the defendant’s conviction for possession of marijuana with intent to distribute, four of the five factors to be considered in evaluating the existence of intent to distribute are present in this case.

The marijuana found in the defendant’s fanny pack was packaged in seven individual Baggies, which, according to the expert testimony of Sgt. Evans, is consistent with intent to resell or distribute, not for personal use. This packaging, coupled with the fact that there was no smoking paraphernalia found in the vehicle while there were extra Baggies in the fanny pack that were usable for the packaging of more drugs, supports the conclusion that the defendant intended to distribute the marijuana. Admittedly, the defendant does not have any prior convictions for drug distribution.

Sgt. Evans further testified that:

• The bag in which the drugs were contained was easy to conceal and to distance oneself from, should the need arise.
• There was a relatively large amount of money in small denominations, a sign of the sale of illegal narcotics.
• The business cards with Casper and the pager or phone number on them were a good way for a drug dealer to be reached without identifying himself.

Considering the evidence under the Jackson standard, a rational trier of fact could have found that the state proved the elements of possession of marijuana with intent to distribute beyond a reasonable doubt. The conviction of possession of cocaine with the intent to distribute is not challenged on appeal.

112Criminal Conspiracy

La. R.S. 14:26 states in pertinent part:

Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.

In a conspiracy, it is the combination of at least two minds for an unlawful purpose which is the foundation of the offense. A criminal conspiracy presupposes a corrupt agreement between not less than two people with guilty knowledge on the part of each. The clear purpose of La. R.S. 14:26 is to criminalize the conduct of two or more persons who intend a criminal act, and as a result of that intention— manifested as an agreement or combination — one of these does something in furtherance of the intended criminal act. State v. Joles, 485 So.2d 212 (La.App. 2d Cir.1986).

The elements of conspiracy may be proven by direct or circumstantial evidence. State v. Perez, 569 So.2d 609 (La.App. 2d Cir.1990), writ denied, 575 So.2d 365 (La.1991). It is essential to a conspiracy that there be a joining of the minds to accomplish a concerted action which has an unlawful purpose. State v. D’Ingianni, 217 La. 945, 47 So.2d 731 (1950). Criminal intent to commit a conspiracy must exist in at least two minds. State v. Joles, supra.

The record fails to prove any such conspiracy. Not until closing argument did the prosecutor seek to “tie in” the conspiracy element. The state looks to the fact that “someone” packaged the drugs in the individual l13Baggies for resale and that the defendant and “someone else” would distribute the drugs. The state then made the leap that the amount of drugs found in the defendant’s vehicle showed a conspiracy to distribute later.

During trial, the state never questioned Peevy or Louella Mitchell about their knowledge of the crack cocaine and/or marijuana and what the defendant planned to do with the drugs. The state did establish that the black fanny pack containing drugs was tossed from the defendant to the back of the vehicle, where Louella Mitchell was sitting, with no instructions given to her other than to hold the bag. The evidence did not reflect that either of the two passengers hid the bag.

In this instance, the evidence was insufficient to support the jury’s conclusion that a conspiracy existed. There was no evidence offered of specific acts with the cocaine and marijuana as part of a joint venture or enterprise between the defendant and his two passengers. Therefore, the evidence, even when viewed in a light most favorable to the prosecution, is insufficient to prove beyond a reasonable doubt that the defendant was engaged in a conspiracy to distribute any of these drugs.

III. Ineffective Assistance of Counsel

The defendant argues he was denied his Sixth Amendment right of effective assistance of counsel when trial counsel failed to object to Sgt. Evans’ qualification as an expert in narcotics investigations, as the sergeant lacked scientific credentials justifying his alleged expertise. The defendant complains that the prejudicial effect of this testimony influenced the jury to give more weight to the state’s case than was justified. Furthermore, the | udefendant claims ineffective assistance of counsel for trial counsel’s failure to object to or file any post-trial motions challenging the imposition of consecutive sentences. He states that the record does not support consecutive sentences, and the imposition of them violates the Eighth Amendment’s prohibition against excessive punishment.

The state counters that trial counsel made a strategic decision not to object to Sgt. Evans as an expert witness in narcotics investigation because of his extensive schooling and training. Evans’ testimony was helpful to a clear understanding of whether the illegal narcotics were consistent or inconsistent with personal use. He gave no opinion as to the ultimate issue of guilt. The state contends that the ineffective assistance of counsel claim fails to meet the requirements set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Lastly, the state claims that the consecutive sentences were justified under the facts of this case.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentia-ry hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App.2d Cir.6/21/00), 764 So.2d 1164. A motion for new trial is also an accepted vehicle to raise such a claim. Id.

However, when the record is sufficient, we may resolve this issue on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673; State v. Smith, 25,841 (La.App.2d Cir.2/23/94), 632 So.2d 887.

A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, supra.

To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra; State v. Roland, 36,786 (La.App.2d Cir.6/5/03), 850 So.2d 738; State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991). The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Roland, supra; State v. Moore, supra.

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice |-^before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that, but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Roland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9.

A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 02-1570 (La.5/30/03), 845 So.2d 1067.

Sergeant Evans’ Acceptance as an Expert

The test of the competency of an expert is his knowledge of the subject upon which he is called to express an opinion. State v. Sherer, 411 So.2d 1050 (La.1982); State v. Honeyman, 565 So.2d 961 (La.App. 2d Cir.1990). A combination of specialized training, work experience, and practical application of the expert’s knowledge can combine to demonstrate that a person is an expert. See, State v. Smith, 448 So.2d 778 (La.App. 2d Cir. 1984), and State v. Breckenridge, 506 So.2d 799 (La.App. 1st Cir.1987). A person may qualify as an expert based on experience alone. State v. Smith, supra. Extensive training, years of experience, and the taking of specialized courses can qualify a police officer as an expert. State v. Daniels, 614 So.2d 97 (La.App. 2d Cir.1993).

117La. C.E. art. 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The record shows that Sgt. Evans completed an eight-week course of basic academy training for law enforcement, the Drug Narcotics Interdiction and Investigation for Patrol Officers Course, and the Raid Planning and High Risk Warrants Preparation Course. He obtained annual training with the Louisiana Narcotics Officers Association and the Louisiana Sheriffs’ Association for Narcotics Investigation Techniques. Sgt. Evans also attended forfeiture schools, a DEA clandestine methamphetamine lab certification school, and the Interview and Interrogation school. At the time of trial, Evans also possessed over six years of law enforcement experience, with three years in the narcotics division for Webster Parish. He had investigated several hundred narcotics cases, issued hundreds of reports, and testified in 40-50 court cases.

In the instant case, counsel recognized the credentials presented through the testimony of Sgt. Evans and made a professional judgment not to object to Sgt. Evans testifying as an expert. This court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Roland, supra; State v. Moore, supra.

The defendant argues that his trial counsel’s failure to object to Evans’ testimony as an expert, as well as his trial counsel’s statement that |isan “objection would not make any difference because he had the schooling,” prevented the trial court from determining whether there was any scientific basis for Sgt. Evans’ proposed testimony. This argument is misplaced. The record supports a finding that trial counsel’s acquiescence in Sgt. Evans’ expertise fails to approach the ineffective assistance standard enunciated in Strickland v. Washington, supra.

Objection to Consecutive Sentencing

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Robinson, 33,921 (La.App.2d Cir.11/1/00), 770 So.2d 868.

Concurrent sentences arising out of a single course of conduct are not mandatory, State v. Pickett, 628 So.2d 1333 (La.App. 2d Cir.1993), writ denied, 94-0348 (La.5/20/94), 637 So.2d 476; State v. Nelson, 467 So.2d 1159 (La.App. 2d Cir. 1985), and consecutive sentences under those circumstances are not necessarily excessive. State v. Williams, 445 So.2d 1171 (La.1984); State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Mills, 505 So.2d 933 (La.App. 2d Cir.1987), writ denied, 508 So.2d 65 (La.1987).

When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Green, 614 So.2d 758 (La.App. 2d Cir.1993). A judgment directing that | ^sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence of record. State v. Strother, 606 So.2d 891 (La.App. 2d Cir.1992).

The sentencing transcript is woefully thin in this regard. However, as we are remanding anyway, perhaps the trial court will at this resentencing better explain its decision on whether to run the remaining two sentences consecutively or concurrently-

Trial counsel’s decision not to object to the imposition of the consecutive sentences, even if error, was not so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Moreover, the defendant has also not shown that if trial counsel had objected to the imposition of consecutive sentences, there is a reasonable probability the outcome of the sentencing would have been different.

IV. Pro Se Argument Further Alleging Ineffective Assistance of Counsel

The defendant further proposes that trial counsel was ineffective because he: (1) failed to move for a continuance during sentencing, (2) failed to present a meaningful argument attacking the stop, (3) tried the case without viewing the evidence, (4) failed to investigate, (5) failed to assist the defendant through professional advice, (6) failed to prevent the state from eliciting testimony from various witnesses, (7) failed to advise defendant of important decisions, (8) failed to keep defendant aware of court proceedings, and (9) failed to make statements on behalf of the defendant during sentencing proceedings.

The defendant’s pro se arguments are no more than generalized statements and eonclusory charges, which do not remotely approach the Strickland burden. The defendant has failed to show that counsel’s many alleged errors so prejudiced him so as to brand trial counsel’s conduct as falling below the standards of reasonableness and competency required by prevailing professional standards demanded of attorneys in criminal cases. He has not demonstrated that, but for trial counsel’s errors, his trial outcome would have been different. Strickland, supra.

V. Pro Se Argument of Speedg Trial Violation

The Louisiana Supreme Court discussed the constitutional right to a speedy trial in State v. Harris, 297 So.2d 431 (La.1974). The court stated:

The speedy trial guarantee of the Sixth Amendment to the United States Constitution applies to prosecutions in state courts. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In determining whether this constitutional right has been offended, the fixed-time period provided by statute or court rule is not determinative. 92 S.Ct. [at] 2188-2191. Rather, the issue is determined by “a balancing test, in which the conduct of both the prosecution and the defendant are weighed.” [At] 2191-2192. Four of the factors to be assessed by the courts in determining, in each instance, whether a defendant has been denied a speedy trial are: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 92 S.Ct. [at] 2192.

Id., 297 So.2d at 432.

In the instant case, the defendant’s claim under La. C. Cr. P. art. 701 D(l) is moot. The remedy under the Louisiana statute is release from custody without bail or release from a bail obligation if the defendant is not in custody. Mitchell has already been convicted, so the remedy under this article would be futile.

|21A chronology of events sheds light on defendant’s oral speedy trial motion:

• The original oral motion was made on January 29, 2001.
• No affidavit (certificate of preparation for trial within 120 days) of counsel was ever filed, in violation of C. Cr. P. art. 701.
• No contradictory hearing was ever held, much less within 30 days.
• The defense either filed for continuances or otherwise acquiesced to numerous time delays.
• On March 11, 2002, the defendant’s motion for speedy trial was denied, and his motion to quash on grounds for lack of speedy trial was denied.
• On September 30, 2002, defendant’s trial began.

As the defendant has been convicted, there is no relief that this court could give the defendant. The record does not indicate that any delays or continuances were granted without just cause. Some of the reasons for time delays were pretrial motions filed on behalf of the defendant, appointment of a new defense attorney, and the illness of the defense attorney. Actions of both prosecution and the defense in this case were exemplary. The defendant has failed to show how the delay in bringing his case to trial has prejudiced him in any way.

CONCLUSION

The defendant’s conviction for possession of cocaine with intent to distribute and his conviction for possession of marijuana with intent to distribute are affirmed. The two criminal conspiracy convictions are | ^reversed. Accordingly, we vacate the two five-year sentences for these conspiracy convictions.

We also vacate the sentences for possession of cocaine with intent to distribute and for possession of marijuana with intent to distribute, and remand these two remaining charges to the trial court for re-sentencing, noting:

• A conviction of possession of cocaine with intent to distribute requires that the defendant serve the first five years without benefits rather than the first two. La. C. Cr. P. arts. 920(2) and 882 (even though recent jurisprudence holds the mandatory terms as being self-correcting by the Department of Public Safety and Corrections).
• There is a mandatory fine of “not more than $50,000.00” for the conviction of possession of marijuana with intent to distribute, as per La. R.S. 40:966 B(2).
• The trial court may want to reconsider the length and consecutive nature of the sentences, and better explain its decision on these issues, since there are only two remaining convictions, instead of the original four.

DECREE

Both conspiracy convictions are REVERSED, and the sentences for each offense are VACATED.

The convictions for possession of cocaine with intent to distribute and possession of marijuana with intent to distribute are AFFIRMED.

Both sentences for these two remaining convictions are VACATED, and the matters are REMANDED to the trial court for resentencing.


author: BLANCHARD, Judge.

text:
    Vera R. PAINE v. AVOYELLES COUNCIL ON AGING, the Avoyelles Parish Police Jury, Katherine Desselle and Wausau General Insurance Company.
    No. 03-1204.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.
    Rehearing Denied April 21, 2004.

      James A. Bolen Jr., Alexandria, LA, for Defendants-Appellants, Katherine Des-selle, Avoyelles Council on Aging and Wausau General Ins. Co.
    Michael Wayne Adley, Lafayette, LA, for DefendanL-Appellee, Assisted Living Concepts, Inc.
    John Taylor Bennett, Marksville, LA, for Plaintiff-Appellee, Vera R. Paine.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, Judge and ARTHUR J. PLANCHARD , Judges.

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

   BLANCHARD, Judge.

The Defendants, the Avoyelles Council on Aging (ACOA), Katherine Desselle and Wausau General Insurance Company (Wausau), appeal both the original judgment and the judgment rendered pursuant to a new trial.

The Plaintiff, Vera Paine, then 87 years old, was living at Bailey House in Bunkie, Louisiana. On September 7, 2001, Ms. Paine was being transported to a doctor’s appointment in a van driven by Katherine Desselle, an employee of the Avoyelles Council on Aging, and owned by the Avo-yelles Parish Police Jury (Police Jury). The van was involved in an accident with a motor vehicle driven by Audrey Richard. Ms. Paine was injured.

She brought this suit against Desselle, ACOA, the Police Jury and its insurer, Wausau. After a bench trial, the trial court rendered judgment in favor of Paine and against the Defendants, in solido, and awarded general damages of $260,000.00 and special damages of $33,368.38. Judgment was rendered December 30, 2002. At some point after the rendition of judgment, the original trial judge was replaced by another judge. Ms. Paine moved for a new trial on January 2, 2003, asserting that the general damage award was “grossly insufficient” and that there was no award for future medical expenses including the cost of assisted living care and nursing home care which, she alleges, is inevitable based on the injuries sustained in the accident. The Defendants moved to dismiss or strike the Plaintiffs motion. Ms. Paine, on January 15, 2003, amended her motion for new trial, asking that the record be transcribed “together with all medical records and medical depositions and records from Bailey House.” About a month later, on February 27, 2003, the Plaintiff filed 19,another amended motion for new trial stating that she believed that the trial court had failed to consider certain records from Bailey House, attaching copies of the records and asking that the copies of the records be filed as well. After a hearing on March 3, 2003, the court rendered a judgment on the motions:

(1) denying defendant’s Motion to Continue the March 3, 2003 hearing on all pending motions;
(2) denying defendants’ Motion to Dismiss/Strike the plaintiffs original Motion for New Trial;
(3) denying defendants’ Motion to Dismiss/Strike the plaintiffs Amended Motion for New Trial, allowing it to be heard on March 3, 2003;
(4) granting plaintiffs request to allow evidence at the March 3, 2003 hearing;
(5) granting defendants’ Motion to Strike the attachments to plaintiffs Amended Motion for Trial; and
(6) granting plaintiffs Motion for New Trial to grant re-argument only, as plaintiff was denied access post-trial to the Bailey House records identified at trial as “P-10” and all other records, the re-argument is set for March 17, 2003 at 9:00 a.m.

The Defendants filed an application for writs to this court, which was denied. After the hearing on the new trial for re-argument only, the trial court rendered judgment in favor of the Plaintiff and against the Defendants, awarding the Plaintiff the additional amount of $181,400.00 for future medical expenses and an additional $35.000.00 in general damages. The Defendants appeal.

THIRD PARTY FAULT

The Defendants assert that the trial court erred in failing to assign fault to Audrey Richard for failing to stop in time and to Bailey House for its failure to assure that Ms. Paine was securely belted into her wheelchair.

Causation and apportionment of fault are questions of fact, and the fact finder’s determinations should not be overturned absent a showing of manifest error. Williams v. Allstate, 599 So.2d 478 (La.App. 3 Cir.1992). We are further mandated to view the evidence in the light most favorably supporting the trial court judgment. Rosell v. ESCO, 549 So.2d 840 (La.1989). If the trial court’s determination is reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Conrad v. City of New Iberia, 03-121, pp. 3-4 (La.App. 3 Cir. 6/13/03), 847 So.2d 784, 787.

Accordingly, we will examine the record to determine whether the trial court was reasonable in finding that the Council on Aging was 100% at fault for the accident.

Gene Moody, a consulting engineer, was qualified by the court to testify as an expert in the field of accident reconstruction. He testified that both Desselle and Richard had 299 feet of vision, Desselle from the stop sign at Cricket and Monroe Streets and Richard from her position on Monroe Street. He acknowledged that Richard had the right of way. However, he felt that Richard could have avoided the accident had she been alert. The driver of the van, Council on Aging employee Katherine Desselle, testified that on her return trip to Bailey House, she stopped at the stop sign at the corner of Cricket and Monroe Streets and proceeded into the intersection, where the collision occurred. She admitted that she did not see Richard’s vehicle. Richard testified that the van pulled out in front of her as she approached the intersection and that she was unable to stop in time to avoid the accident.

14Given these facts, we find that the trial court was reasonable in determining that Richard’s conduct did not contribute to the occurrence of the accident. Therefore, we find no error in the trial court’s refusal to assign fault to Richard.

The Defendants further assert that the trial court erred in failing to assign fault to Bailey House for its failure to belt Ms. Paine into her wheelchair. Our re-, search convinces us, however, that for Bailey House to be assessed with fault in this matter its negligence must have been a cause in fact of the accident. Hammer v. City of Lafayette, 502 So.2d 301 (La.App. 3 Cir.1987) concerned an accident involving a driver who had her five year old son as a passenger and a city policeman who ran a stop sign. The plaintiffs settled with the defendants, and with the City reserving its rights in a third party demand against the mother/driver for her negligence in failing to restrain her child in a seat belt or child restraint system. This court explained that:

In order for the City to recover from third party defendants, any negligence on the part of Mary Hammer in failing to restrain her five year old child must have been a cause in fact of the accident. If the accident would have occurred irrespective of a claimant’s negligence, then it was not a cause in fact of the injury.

Id. at 303 (citations omitted).

The court further found that “[ajlthough Mary Hammer might have been negligent per se in not restraining the minor child, her negligence did not cause or contribute to the emergency situation.” Id.

Here, as in Hammer, while the employees of Bailey House may have been negligent in failing to restrain Ms. Paine, their negligence did not cause the accident. Therefore, the trial court correctly refused to assess them with fault.

Jjj_NEW TRIAL

The Defendants also argue that the trial court erred in granting a new trial for argument only.

La.Code Civ.P. art. 1971 provides that:

A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.

La.Code Civ.P. art. 1973 provides the discretionary grounds for granting a motion for new trial: “A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” As noted by the Defendants, La. Code Civ.P. art. 1975 provides that a motion for new trial must set out the grounds on which it is based. The Defendants argue that the trial court should have denied Plaintiffs motion because it fails to adequately set forth the grounds on which it is based.

This issue has already been addressed by this court in a writ application from the grant of the motion for new trial. This court at that time found no abuse of discretion in the grant of the motion. The Defendants are essentially reasserting many of the arguments made on their writ application.

The trial judge granted the motion for new trial for re-argument because of Plaintiffs counsel, while preparing his post-trial brief, was unable to obtain access to the records of Bailey House which were introduced at trial and which, it was alleged, were locked up and inaccessible thereafter.

The Defendants assert the record clearly supports the trial court’s failure to award the expenses evidenced by the Bailey House records because the Plaintiff was | (¡already living in an assisted living facility at the time of the accident. The Defendants again on appeal cite portions of the record which allegedly support their contention that Plaintiffs health was deteriorating prior to the accident at issue, therefore, she would have been confined to an assisted living care facility regardless of this accident. However, the Plaintiff asserts that she was only supposed to stay at the Bailey House for a short period of time because of dehydration, and that she was in good health for an 87 year old prior to this accident. Therefore, at the time the motion for new trial was granted, there was an issue as to whether the Plaintiffs confinement at the Bailey House would have continued except for this accident. We find no error in this court’s finding on the writ application that the trial court did not abuse its discretion in granting the motion for new trial for re-argument because of the lack of access to the evidence introduced at trial.

ADDITIONAL DAMAGES ON NEW TRIAL

Finally, we address the Defendants’ argument that the trial court erred in giving additional damages on new trial.

The trial judge, who was not the judge who originally tried the case, found that:

In his memorandum in support for additional damages, [counsel] for Vera Paine argues that the trial judge was unable to and did not consider the Bailey House records when rendering his decision. This court agrees. After reviewing the parties arguments at the hearing regarding the loss of Exhibit P-10, it is obvious that the trial judge was unable to consider the evidence, unable to render a proper ruling with that evidence, and that evidence should properly be admitted and considered and reviewed now at this time.

Our review of the applicable law convinces up that it is unimportant, for purposes of review, whether the trial court considered these records in rendering the original judgment. La.Code Civ.P. art. 1978 states, in pertinent part, that:

|7It shall not be necessary in a non-jury trial to resummon the witnesses or to hear them anew at a new trial if their testimony has once been reduced to writing, but all such testimony and evidence received on the former trial shall be considered as already in evidence. ... When a new trial is granted for reargument only, no evidence shall be adduced.

After a new trial is granted, this court need only consider the judgment on the new trial. See Wilson v. Compass Dockside, Inc., 93-1860 (La.App. 4 Cir. 3/15/94), 635 So.2d 1171, writ denied, 94-1527 (La.9/23/94), 642 So.2d 1299.

The trial court gave his summary of the expenses shown by the Bailey House records, as follows:

The plaintiff has properly estimated the expenses of care as shown in pages 2-8 of Exhibit P-10, at approximately $2,400.00 per month. This court is of the opinion that an award of $2,400.00 a month for four years would be appropriate for a total increase in the award representing future medical care at $115,200.00. Additionally, past medical expenses are awarded in the amount of $31,200.00, representing 13+months care at Bailey House from September 2002 to the NOVEMBER, 2003 trial date, as this care, more probably than not, was a result of the September 2002 accident at issue.

The Defendants in this case do not dispute the amount which has been and may in the future be paid for care at Bailey House. Rather they dispute the causal connection between the accident and the need for care. Defendants argue that given her age and health, Ms. Paine would have needed similar care even had the accident not occurred. The trial judge’s factual finding was that the deterioration in Ms. Paine’s condition and her need for continued assisted living or nursing home care was caused by the accident.

In a trial where causation and credibility are major issues, a jury’s findings of fact are entitled to great deference. Ambrose v. New Orleans Police Ambulance Service, 93-3099, 93-3110, 93-3112 (La.7/5/94); 639 So.2d 216; reh’g denied, 9/15/94. Those findings may not be overturned unless they are manifestly erroneous. Stobart v. State, 92-1328 (La.4/12/93); 617 So.2d 880. Moreover, when more than one competing view is permissible, as in this case, a fact finder’s choice cannot be manifestly erroneous or clearly wrong. Rosell v. Esco, 549 So.2d 840 (La.1989), writ denied, 561 So.2d 105 (La.1990).

Guillory v. Ins. Co. of North America, 96-1084, p. 5 (La.4/8/97), 692 So.2d 1029, 1032. Finding no manifest error, we will not overturn the trial court in this regard.

The Defendants further dispute whether the Bailey House expenses should be included in an award of medical expenses. La.Civ.Code art. 1995 states that “Damages are measured by the loss sustained by the obligee and the profit of which he has been deprived.” Regardless of whether the cost of care at Bailey House can be considered a “medical” expense, the record supports the conclusion that Ms. Paine would not have needed the services of an assisted living facility or a nursing home but for the accident. Accordingly, we find no error in the inclusion of these expenses in the award of damages.

QUANTUM OF DAMAGES

The Louisiana Supreme Court has set out the rules for review of general damage awards as follows:
The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and through Reck [v. Stevens, 373 So.2d 498 (La.1979)] to the present case is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.
Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993); cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, we are called upon to decide if the award in this case “is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of th[is] particular injury to th[is] particular plaintiff under the[se] particular circumstances.” Id.

McPherson v. Lake Area Med. Ctr., 99-1876 (La.App. 3 Cir. 5/24/00), 767 So.2d 102, 109, unit denied, 00-1928 (La.9/29/00), 770 So.2d 353 (alteration in original).

The Defendants argue that the award of damages was excessive. In its written reasons for judgment, the trial court detailed its reasons for the award of damages in the original reasons for judgment, which were incorporated by reference into the reasons for judgment on the new trial:

The testimony of Melvie MeCullen reflects that prior to the accident Paine was in relatively good health for an 87-year-old woman. She was able to walk with the help of a walker. According to Dr. Gamburg’s evaluation of Dr. Taylor’s records on Ms. Paine, in August, 2001, she was able to ambulate 250 feet with “stand-by assistance” and required assistance with upper extremity dressing, while requiring minimal assistance for lower extremity dressing. In August of 2001, Paine experienced some medical problems that required her to be hospitalized. After returning from the hospital it was decided that it would be best for Paine to spend some time in Bailey House to assist in her recovery.
Ms. Woodall, an employee of Bailey House, testified that prior to the accident Paine was fairly functional. Paine was able to speak coherently and she could get around with the help of her walker. However, Woodall stated that since the accident Paine has sharply deteriorated both mentally and physically. Paine is no longer able to get around unless she is transported by a wheel chair and she can no longer maintain a rational conversation due to the onset of dementia.
Dr. Michael Menache is an internist who treated Paine both before and after the accident. Prior to trial, a motion in limine was filed seeking to exclude the testimony of Dr. Menache, regarding the mental capacity of Vera Paine. However, Dr. Menache’s testimony concerning Paine’s mental state was based upon his personal observations of Paine both before and after her accident. Further, Dr. Menache testified that he had prescribed Paxil for depression for Paine. Obviously, Menache was providing medical treatment to Paine for her mental condition. On page 54, line 19-20 he stated that he believed that there was a change in Paine |inboth mentally as well as physically after the accident. Certainly, his opinion concerning his observations and treatments provided to Paine are admissible. His testimony in this regard is clearly probative....
Further, as stated above, Dr. Me-nache’s deposition testimony reflects on pages 38-39 that Paine has deteriorated both mentally and physically since the accident. When asked if he believed that the accident accelerated the decline of her mental faculties, Menache answered “yes”. Concerning Paine’s physical decline, Menache testified that before the accident that Paine could walk with the assistance of a walker. Now, she is wheelchair-bound. Menache testified that Paine had pre-existing medical problems that could have caused her current mental and physical decline. However, Menache stated that the trauma of the accident is the most plausible reason for her sharp deterioration both mentally and physically.
At page 42 of his deposition, defense counsel asked Dr. Menache if there is anything that he can directly point to that would suggest that the car accident caused Paine’s decline rather than preexisting medical problems. Dr. Me-nache stated that prior to the accident Paine could manage her checkbook and now she is unable to do any calculations. When defense counsel asked if the preexisting conditions could have caused these failures, Dr. Menache responded that it could, but not as quickly as has occurred in this case. This response indicates to the court that the trauma of the accident is the primary cause for the decline in plaintiffs condition. On page 43 of Dr. Menache’s deposition, Dr. Me-nache conceded that there was no medical or scientific test to determine if the deterioration was due to the car accident or the pre-existing medical conditions. However, Dr. Menache stated that in his personal' experience, the trauma of the accident caused the sharp deterioration.
Addressing the same issue is the report of Dr. Gamburg, who performed an independent medical evaluation of Paine for the defendant stated,
“Based on the history that I obtained and my examination of the patient and her x-rays, it is my opinion that the accident in which she incurred a fracture of her right hip along with right rib fractures and a probable fracture of the left acetabulum did accelerate her decline over and above what would be expected with the normal aging process. She has not been able to return to her pre-injury status, and it is my opinion that she is unlikely to do so. It is my belief that she has reached maximum medical recovery.”
In Dr. Gamburg also testified that after reviewing the medical records of Dr. Drury and Dr. Menache, he was of the opinion that based on her history, the hip fractures and rib fractures resulted from the accident.
After the accident Paine had surgery on her right hip. Dr. Drury removed the ball and the top portion of the femur bone. A ball and metal rod were used to replace the removed ball and portion of the femur bone and had to be cemented to the remaining portion of the femur bone. After completing this surgery Paine experienced discomfort with the left hip as well. An x-ray taken revealed that her left hip, her ribs, her left shoulder, her clavicle, her left pubic bone, her sacrum, and her SI joint were all fractured. Dr. Drury testified in his deposition beginning on page 27. that considering Paine’s current age of 88 and taking into consideration the fact of her hip replacement surgery, she would have a significant decline in her overall function as compared to her pre-operation status. Dr. Drury further stated that most people in Paine’s age group would never return to their original status after hip replacement.
Defense counsel has suggested that the injuries to Paine’s right hip and her ribs were not caused by the accident. However, Louisiana law dictates that if before September 7, 2001, Vera Paine was in good physical condition and good mental health, but shortly after the accident a disabling condition manifested itself, then, there is a legal presumption that the medical condition'producing the disability resulted from the accident. The burden of proof therefore shifts to the defendant who contests the cause-in-fact relationship to show some other particular incident could have caused the injury in question. Heath v. Northgate Mall, Inc., 398 So.2d 132 (La.App. 3rd Cir.1981). Therefore, the burden has shifted to the defendant to prove by a preponderance of the evidence that the injuries to Paine were caused by events other than the accident on September 7, 2001. The defendant has offered evidence of previous occasions where Paine has fallen while at Bailey House. However, Dr. Gamburg testified on this issue and stated that there was no conclusive manner in which to determine if the injuries were caused by the car accident or the falls. Moreover, Dr. Drury testified on page 18 of his deposition that Paine’s left hip problems appeared for the first time immediately after surgery on her right hip. Therefore, the court is of the opinion that the defendant has failed in its burden to rebut the cause-in-fact relationship between the car accident and plaintiffs injuries.
In the pending case Paine was 87 years old at the time of the accident. She will never completely recover from her injuries. She is now over fifteen months post-accident. Her injuries are considered by the trial court to be permanent in nature.

hgOn new trial, the court added an additional $35,000.00 to the original general damage award, stating that given the reasons cited by the trial judge, “coupled with this judge’s opinion that an award for future medicals is appropriate, and after a review of the jurisprudence submitted by all parties, the court believes that an increase of general damages in the amount of $35,000.00 is appropriate.”

After reviewing the record, we find that the trial court’s reasons accurately reflect the evidence adduced at trial. We find no error in the trial court’s findings. In light of the record, and of the trial court’s written reasons, we cannot say that the court abused its discretion in its award of general damages.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed in all respects. Costs of this appeal are to be paid by the Defendants.

AFFIRMED.

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