author: LPARRO, J.

text:
    STATE of Louisiana v. James L. ECHEVERRIA.
    No. 2002 KA 2592.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.

      Walter P. Reed, District Attorney, Cov-ington, Dorothy A. Pendergast, Special Appeals Counsel, Metairie, for Appellee State of Louisiana.
    Frank Sloan, Louisiana Appellate Project, Mandeville, for Defendant-Appellant James L. Echeverría.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   LPARRO, J.

The defendant, James L. Echeverría, was charged by amended bill of information with one count of cruelty to the in-firmed, a violation of LSA-R.S. 14:93.3, and pled not guilty. His jury trial resulted in a mistrial. Thereafter, he waived his right to a jury trial and, following a bench trial, was found guilty as charged. Subsequently, the state filed a habitual offender bill of information against the defendant, alleging he was a fourth felony habitual offender. The defendant moved for a new trial, but. the motion was denied. He was sentenced to five years of imprisonment at hard labor. In connection with the habitual offender allegation, the defendant stipulated to his status as a third felony habitual offender, and the court sentenced him to seven years of imprisonment at hard labor. Thereafter, the court vacated the previously imposed sentence of five years of imprisonment at hard labor. He again moved for a new trial, and the motion was again denied. He moved for reconsideration of the sentence, but this motion was also denied. He now appeals, designating two assignments of error. We affirm the conviction, the habitual offender adjudication, and the sentence.

FACTUAL BACKGROUND

The victim, Ester Lee Jenkins, testified at trial. She was eighty-five years old at the time of trial and the defendant’s grandmother. In reference to the incident at issue, Ms. Jenkins claimed the defendant had given her “a little shove, but it was not intentionally.” She indicated, however, the defendant had shoved her using both hands. Ms. Jenkins also claimed the defendant had not called her any “names” on the morning of the incident. She claimed she went to the Justice of the Peace to report the incident because she was aggravated. She conceded, however, she was aggravated because the defendant had shoved her and she had fallen. She claimed, after she fell, the defendant apologized to her and picked her up. She had a “staggering” problem, and the defendant was aware of the problem. She also claimed she bruised very easily. She conceded she did not want the defendant prosecuted. When asked if the fact that the defendant might go away for a long time had influenced her testimony in court, the victim replied, “Yeah. Because I don’t (sic) him too.”

laThe state introduced the victim’s June 25, 2001 affidavit, executed before St. Tammany Parish Fifth Ward Justice of the Peace James Kahl, into evidence at trial. The affidavit set forth the following.

On June 22, 2001, at 12:40 a.m., the defendant came to Ms. Jenkins’s home drunk and “later came back still drunk and raising sand.” He called Ms. Jenkins “all sorts of names” and “got in [Ms. Jenkins’s] face” and pushed her down. The defendant told Ms. Jenkins, “next time [Ms. Jenkins] would learn to keep [her] mouth shut.” Ms. Jenkins suffered soreness and bruises from the incident. When Ms. Jenkins told the defendant she would call the police, he stated, “[y]ou can’t prove anything.” Ms. Jenkins was eighty-four and one-half years old and was afraid of “Len-nie,” the defendant.

In connection with the affidavit, the state also introduced into evidence photographs of the victim showing large bruises on the right side of her back and on her right hip. When asked about her affidavit at trial, the victim indicated it was a truthful statement.

Mr. Kahl also testified at trial. He identified the defendant in court as someone he knew as “Lenny.” The victim had come to Mr. Kahl on June 25, 2001, stating “Lenny” had “shoved her down against the chairs and all.” The victim was “all bruised up” and showed Mr. Kahl her bruises. The victim stated she had “been hurting ever since it happened.” Mr. Kahl indicated the photographs of the victim’s injuries were taken in his office on the day the victim reported the offense to him. At no time while she was in Mr. Kahl’s office did the victim indicate she had been injured accidentally by the defendant or she had fallen down because the defendant “brushed” past her. In fact, the victim indicated the defendant cursed her, told her to get out of his way, and shoved her against a dinette table or chair with both of his hands after she asked him something and he “got mad with her.” After being shoved down, the victim told the defendant she was hurt, and asked for help, but the defendant refused to help her.

14SUFFICIENCY OF THE EVIDENCE

In assignment of error number one, the defendant contends the evidence was insufficient to support the conviction. He argues the pain he inflicted upon the victim was insufficient to support his conviction of the offense.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the state proved the essential elements of the crime and the defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. State v. Wright, 98-0601 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157, and State ex rel. Wright v. State, 00-0895 (La.11/17/00), 773 So.2d 732. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove, in order to convict,” every reasonable hypothesis of innocence must be excluded. LSA-R.S. 15:438. When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 730 So.2d at 487.

Louisiana Revised Statute 14:93.3, in pertinent part, provides:

A. Cruelty to the inflrmed is the intentional or criminally negligent mistreatment ... by any person ... whereby unjustifiable pain ... is caused to ... an aged person....
C. For the purposes of this Section, an aged person is any individual sixty years of age or older.

The term “intentional” as used in LSA-R.S. 14:93.3 refers to a general criminal intent to mistreat or neglect and does not require an intent to cause unjustifiable pain and suffering. See LSA-R.S. 14:11; State v. Scott, 582 So.2d 864, 867 (La.App. 5th Cir.), writ denied, 584 So.2d 1171 (La.1991). General criminal intent is present | ¡^whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. LSA-R.S. 14:10(2).

“Unjustifiable,” within the meaning of LSA-R.S. 14:93.3, is a term of limitation intended to distinguish that pain and suffering which is an inevitable consequence of care and treatment from that which is not justified by medical needs. State v. Brenner, 486 So.2d 101, 104 (La.1986).

A thorough review of the record convinces us the evidence presented in this case, viewed in the light most favorable to the state, proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence, the defendant’s violation of LSA-R.S. 14:93.3(A). The evidence viewed under the aforementioned standard of review sufficiently proved the defendant intentionally mistreated the victim, an aged person, by shoving her, thereby causing unjustifiable pain to the victim. The defendant’s shoving of the victim with both hands sufficiently established his general criminal intent to mistreat the victim, and the pain caused to the victim was not an inevitable consequence of care and treatment, and thus, was unjustifiable.

This assignment of error is without merit.

CONSTITUTIONALLY EXCESSIVE SENTENCE

In assignment of error number two, the defendant contends the sentence imposed was excessive. He argues the sentence imposed was constitutionally excessive.

Article I, Section 20, of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one’s sense of justice. A trial judge is | «given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Hurst, 99-2868 (La.App. 1st Cir.10/3/00), 797 So.2d 75, 83, writ denied, 00-3053 (La.10/5/01), 798 So.2d 962.

Whoever commits the crime of cruelty to aged persons shall be fined not more than ten thousand dollars or imprisoned with or without hard labor for not more than ten years, or both. LSA-R.S. 14:93.3(E). Any person who, after having been convicted within this state of a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows. If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then: the person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction. LSA-R.S. 15:529.1(A)(l)(b)(i). The defendant was sentenced to seven years of imprisonment at hard labor.

The sentence imposed was not unconstitutionally excessive. The sentence was not grossly disproportionate to the severity of the offense. The defendant, a third felony habitual offender, shoved his eighty-four- and-one-half-year-old grandmother into kitchen furniture with both hands, thereby causing her unjustifiable pain and bruises.

This assignment of error is without merit.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.


source: Caselaw Access Project

author: | .CARTER, C.J.

license: Public Domain

text:
    Edward CONERLY v. STATE of Louisiana Through the LOUISIANA STATE PENITENTIARY AND THE DEPARTMENT OF CORRECTIONS.
    No. 2002 CA 1852.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Writ Denied Nov. 14, 2003.

      John P. Calmes, Jr., Baton Rouge, for Plaintiff/Appellee, Edward Conerly.
    David G. Sanders, Baton Rouge, for Defendant/Appellant, State of Louisiana through the Department of Public Safety and Corrections.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

      . Hon. Philip Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | .CARTER, C.J.

The State of Louisiana, through the Department of Public Safety and Corrections (the State), appeals a trial court judgment overruling its peremptory exception raising the objection of no cause of action and awarding damages for injuries sustained when an inmate slipped and fell on the premises of the Louisiana State Penitentiary at Angola, Louisiana (Angola).

FACTS

Edward Conerly was an inmate at Angola from February of 1982 until 1991. In September of 1982, Conerly underwent reconstructive surgery to his left knee. On December 7, 1982, Conerly allegedly re-injured his left knee when he slipped and fell in Kool-Aid as he was being ushered out of the Camp D kitchen.

Conerly timely filed the instant suit for damages against the State on December 7, 1983. Trial in this matter was held May 17, 2002. Prior to trial, the State filed a peremptory exception raising the objection of no cause of action, contending that Con-erly’s claim was perempted. The trial court overruled the exception and rendered judgment awarding Conerly damages in the amount of $15,000 together with legal interest from date of judicial demand. The State now appeals.

PEREMPTORY EXCEPTION RAISING THE OBJECTION OF NO CAUSE OF ACTION

The objection of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. The purpose of an exception raising the objection of no cause of action is to determine the sufficiency in law of the petition. In reviewing a trial court’s ruling sustaining an exception raising the objection of no cause of action, the appellate court should conduct a de novo review. Stroscher v. Stroscher, 2001-2769, p. 3 (La.App. 1st Cir.2/14/03), 845 So.2d 518, 523.

Generally, no evidence may be introduced to support or controvert the exception. However, a jurisprudentially recognized exception to this rule allows the court to consider evidence that is admitted without objection to enlarge the 1 apleadings. For purposes of determining the issues raised by the exception, the well pleaded facts in the petition must be accepted as true. The court must determine if the law affords plaintiff a remedy under those facts. Any doubts are resolved in favor of the sufficiency of the petition. The question, therefore, is whether, in the light most favorable to the plaintiff, and with every doubt resolved in his behalf, the petition states any valid cause of action for relief. Stroscher, 845 So.2d at 522.

The State’s argument on the exception is not that Conerly’s petition is deficient, but rather that at the time of trial, Conerly’s claim was extinguished by per-emption. However, a peremptory exception raising the objection of no cause of action requires the court to direct its focus at whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Perez v. Trahant, 2000-2372, p. 5 (La.App. 1st Cir.12/28/01), 806 So.2d 110, 115, writs denied, 2002-0847 and 2002-0901 (La.8/30/02), 823 So.2d 953. Under these guidelines, we have reviewed Conerly’s petition and find that he pleaded facts sufficient to establish a cause of action against the State for negligence. Moreover, Conerly’s claim was not perempted at the time the petition was filed. Thus, we find no error in the trial court’s judgment denying the peremptory exception raising the objection of no cause of action.

APPLICATION OF LSA-R.S. 49:112

The peremptory exception raising the objection of no cause of action is generally the correct procedural device for raising the issue of preemption; however, in this case the State’s arguments exceed the limitations of that procedural device. See Coffey v. Block, 99-1221 p. 8 (La.App. 1st Cir.6/23/00), 762 So.2d 1181, 1186, writ denied, 2000-2226 (La.10/27/00), 772 So.2d 651. The State contends Conerly’s claim is perempted, based on application of LSA-R.S. 49:112, which provides:

No claim or debt against the state shall be allowed by the state auditor or paid by the state treasurer after the lapse of ten years from the happening of the event or of the facts upon which any suit is founded or judgment rendered or of the execution of the contract under which the claim is made. No interruption or suspension whatsoever of this prescription shall be allowed. The provisions of 14this Section shall not apply to the claims, or the judgment rendered thereon, listed in Section 2 of Act No. 110 of 1946. (Footnote added.)

The State argues that although the statute uses the term “prescription,” the statute’s provisions are clearly peremptive. If the statute is peremptive, as the State argues, then this court can raise the issue of per-emption on its own motion. LSA-C.C. art. 3460. However, if the statute is prescriptive, since the issue of prescription has not been specially pleaded, then it is not properly before the court and cannot be raised on the court’s own motion. LSA-C.C.P. art. 927 B. Thus, we must first determine whether LSA-R.S. 49:112 is peremptive or prescriptive in nature.

Whether the statutory time period is one of peremption or prescription is a question of statutory interpretation. The function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of government. Rougeau v. Hyundai Motor America, 2001-1182, p. 5 (La.1/15/02), 805 So.2d 147, 151. The starting point in the interpretation of any statute is the language of the statute itself. A.K. Durnin Chrysler-Plymouth, Inc. v. Jones, 2001-0810, p. 4 (La.App. 1st Cir.5/10/02), 818 So.2d 867, 870. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and its letter shall not be disregarded in search of the intent of the legislature or under the pretext of pursuing its spirit. A statute shall be construed to give meaning to the plain language of the statute, and courts may not extend statutes to situations that the legislature never intended to be covered. Id.

The Louisiana Supreme Court has set forth the difference between peremption and prescription as follows:

Peremption differs from prescription in several respects. Although prescription prevents the enforcement of a right by legal action, it does not terminate the natural obligation (La. Civ.Code art. 1762(1)); peremption, however, extinguishes or destroys the right 5(La. Civ. Code Art. 3458). Public policy requires that rights to which peremptive periods attach are to be extinguished after passage of a specified period. Accordingly, nothing may interfere with the running of a peremptive period. It may not be interrupted or suspended; nor is there provision for its renunciation. And exceptions such as contra non valentem are not applicable. As an inchoate right, prescription, on the other hand may be renounced, interrupted, or suspended; and contra non valentem applies an exception to the statutory prescription period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues.

State Bd. of Ethics v. Ourso, 2002-1978, p. 4 (La.4/9/03), 842 So.2d 346, 349, quoting Reeder v. North, 97-0239, pp. 12-13 (La.10/21/97), 701 So.2d 1291, 1298.

In distinguishing statutory limitation periods as peremptive or prescriptive, each statutory time period must be considered separately on its merits. Pounds v. Schori, 377 So.2d 1195, 1199 (La.1979). The primary consideration is the intent of the legislature. Thus, in making such a distinction, courts look to the language of the statute, the purpose behind the statute, and the public policy mitigating for or against suspension, interruption or renunciation of the time period. State Bd. of Ethics, 842 So.2d at 349.

In 1948, the Legislature passed 1948 La. Acts No. 60, § 1. The Act was entitled:

AN ACT
To provide that no claim or debt against the State of Louisiana shall be allowed by the Auditor or paid by the Treasurer after the lapse of ten years from the happening of the event or of the facts upon which any suit is founded or judgment rendered or of the execution of the contract under which the claim is made, and that no interruption or suspension whatsoever of this prescription shall be allowed, and pro-Tiding exceptions hereto. (Emphasis added.)

The Act provides:

Section 1. Be it enacted by the Legislature of Louisiana, That no claim or debt against the State of Louisiana shall be allowed by the Auditor or paid by the Treasurer after the lapse of ten years from the happening of the event or of the facts upon which any suit is founded or judgment rendered or of the execution of the contract under which the claim is made. No interruption or suspension whatsoever of this 'prescription shall be allowed. The provisions of this act shall not apply to the claims, or the judgment rendered thereon, listed in Section 2 of Act No. 110 of 1946. (Emphasis added.)
| (¡Section 2. All laws or parts of laws in conflict herewith are hereby repealed.

Article 3, section 16 of the Louisiana Constitution of 1921, in effect at the time the Act was proposed, required that each bill introduced before the Legislature have a title indicative of its object. The title to 1948 La. Acts No. 60, § 1, which enacted LSA-R.S. 49:112 and states the Act’s purpose, refers to the time period it creates as one of prescription. Although not yet codified at the time, the doctrine of peremption was firmly established in Louisiana jurisprudence and was even referred to in LSA-Const. art. 3, § 35 (1921). Hebert v. Doctors Memorial Hospital, 486 So.2d 717, 722 (La.1986); see also Guillory v. Avo-yelles Railway Co., 104 La. 11, 28 So. 899, 901 (1900). Weight must be given to the indication of the Act’s object, contained in its title, in determining the Legislature’s intent in passing LSA-R.S. 49:112. Hebert, 486 So.2d at 724.

We also find it significant that the limitation period of LSA-R.S. 49:112 applies only to claims or debts against the State. In general, a money judgment prescribes ten years from the date it is signed or, if an appeal is taken, ten years from the date the judgment becomes final. LSA-C.C. art. 3501. However, a money judgment may be revived at any time before it prescribes by an interested party in an ordinary proceeding brought in the court in which the judgment was rendered. LSA-C.C. art. 3501 and LSA-C.C.P. art.2031. We find that the Legislature intended to create an exception to this general principle and legislatively overrule exceptions to the prescriptive period applicable to judgments against the State through its enactment of LSA-R.S. 49:112. The Louisiana Supreme Court has recognized that the Legislature is empowered to legislatively overrule exceptions to prescriptive periods, such as it did in enacting |7LSA-R.S. 9:5628, which governs the time for filing medical malpractice actions. See Hebert, 486 So.2d at 724; Chaney v. State of La. DHHR, 432 So.2d 256, 259 (La.1983). We find this to be the legislative purpose sought to be achieved by the limitation period set forth in LSA-R.S. 49:112, which is one of the most significant factors in distinguishing peremption from prescription. See Hebert, 486 So.2d at 724.

Thus, a money judgment rendered against any party other than the State of Louisiana may be revived and the consequences of the ten-year prescriptive period set forth in LSA-C.C. art. 3501 avoided. LSA-C.C. art. 3501 and LSA-C.C.P. art. 2031. However, if the money judgment is against the State of Louisiana, LSA-R.S. 49:112 prohibits the judgment’s revival as well as any other form of interruption or suspension of the prescriptive period. Any other interpretation of LSA-R.S. 49:112 would lead to absurd results and would be impermissible. See Palmer v. Louisiana Forestry Commission, 97-0244, p. 11 (La.10/21/97), 701 So.2d 1300, 1306.

Other factors used to distinguish whether a time period is peremptive or prescriptive are: 1) whether the statute under consideration creates both the right of action and stipulates the delay during which the right can be exercised; 2) whether there exists an underlying public interest that the right exist only for a limited period of time; 3) whether the claim is of a public law nature; and 4) whether the limitation period is less than one year. Hebert, 486 So.2d at 722 and 724. LSA-R.S. 49:112 sets forth a period of limitation, but does not purport to create a right to file suit against the State. Moreover, the period of limitation is not less than one year. However, a claim for payment of a money judgment | ¿rendered against the State is of a public rather than a private law nature and there is a public interest in limiting the right of a litigant to enforce payment against the State.

The period of limitation contained in LSA-R.S. 49:112 clearly has some aspects of a peremptive period. Most notably, as the State points out in its brief to this court, the statute provides that there will be no interruption or suspension of the time period. The Louisiana Supreme Court has recognized this as a characteristic of peremption. Flowers v. Rausch, 364 So.2d 928, 931 (La.1978). However, the Legislature is free to enact statutes containing prescriptive periods and to dispense with exceptions to those prescriptive periods. See Hebert, 486 So.2d at 724. Moreover, had the Legislature meant for the time period to be peremptive, it could have expressed its intent in the title or text of the act enacting LSA-R.S. 49:112 or in the language of LSA-R.S. 49:112 itself.

Basically, LSA-R.S. 49:112 creates a hybrid time period as concerns actions against the State. Despite having some characteristics in common with per-emptive time periods, we find that the time period set forth in LSA-R.S. 49:112 is, as the Legislature described it, a prescriptive period, with the qualifications that the prescriptive period is not subject to interruption or suspension. The State has not specially pleaded prescription and the objection cannot be raised by this court. LSA-C.C.P. art. 927. Thus, the issue of prescription is not properly before us and will not be addressed herein. Moreover, any attempt to raise prescription under LSA-R.S. 49:112 would, at this time, be premature.

LIABILITY

Under the duty-risk analysis applicable to Conerly’s claim, a determination of liability requires proof of five separate elements, all of which must be answered 19affirmatively for the plaintiff to recover: (1) proof that the defendant had a duty to conform his conduct to a specific standard of care (the duty element); (2) proof that the defendant failed to conform his conduct to the appropriate standard (the breach of duty element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the injuries (the scope-of-liability or scope-of-protection element); and (5) proof of actual damages (the damages element). Berg v. Zummo, 2000-1699, p. 11 (La.4/25/01), 786 So.2d 708, 715-716. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Perkins v. Entergy Corp., 2000-1372, p. 7 (La.3/23/01), 782 So.2d 606, 611.

The State does not dispute that it owed Conerly a duty. Prison authorities owe a duty to use reasonable care to protect inmates from harm. Misenheimer v. West Baton Rouge Parish Sheriff’s Office, 95-2427, p. 4 (La.App. 1st Cir.6/28/96), 677 So.2d 159, 161, writ denied, 96-1853 (La.10/25/96), 681 So.2d 371.

Conerly testified that the accident occurred after the last meal of the day. At trial, it was established that after the inmates finished eating, a security officer directed certain inmates, according to the rows in which they had been sitting, to rise. At that time, the inmates were expected to follow a certain procedure in which they would return their cups, trays and utensils. Conerly testified that inmates were required to place their cups in a rack situated above a drain in the floor. Emmitt Jones, an inmate at Angola who was present in the Camp D kitchen when the accident occurred, testified that the cups were placed upside down in the rack and, although there was a drain in the floor beneath the rack, Kool-Aid left in the cups would spill onto the floor. Conerly estimated that on the date of the incident, a puddle of Kool-Aid measuring approximately three feet wide had accumulated by the time he reached the rack to return his cup.

Major Andrew Jackson Dunn testified by deposition that when a spill occurred in the kitchen, it was standard procedure to stop the line of inmates so [inthat the spill could be cleaned. However, Major Dunn could not state for sure whether he was present at the time of the accident or whether this procedure was followed on the date Conerly fell. Both Jones and William Hill, a fellow inmate at Angola, testified that they were present in the kitchen when the accident occurred and that the procedure outlined by Major Dunn was not followed after the evening meal. Hill testified that after the evening meal, the kitchen was not cleaned until all of the inmates left.

The trial court specifically found the testimony of the inmates to be credible and accepted their account of the events surrounding the accident over the deposition testimony of Major Dunn regarding the general procedure followed in the Camp D kitchen. Based on this credibility determination, the trial court found that the State breached its duty by ushering rows of inmates out of the Camp D kitchen ■without allowing them to stop so that someone could clean the floor where Kool-Aid from the inmates’ cups had accumulated.

Breach of duty is a question of fact, subject to the manifest-error standard of review. Ethyl Corp. v. Gulf States Utilities, Inc., 2001-2230, p. 9 (La.App. 1st Cir.10/2/02), 836 So.2d 172, 178, writ denied, 2002-2709 (La.12/19/02), 833 So.2d 340. When factual findings are based on a credibility determination, a fact-finder's decision to credit the testimony of one of two or more witnesses can virtually never be manifestly erroneous or clearly wrong. Silliman Private School Corp. v. Shareholder Group, 2001-0964, pp. 5-6 (La.App. 1st Cir.5/10/02), 819 So.2d 1088, 1091, writ denied, 2002-1501 (La.9/20/02), 825 So.2d 1176. Accordingly, we cannot say the trial court was clearly wrong in its finding that the State breached the duty it owed to Conerly.

Cause-in-fact is generally a “but for” inquiry. Hughes v. Goodreau, 2001-2107, p. 18 (La.App. 1st Cir.12/31/02), 836 So.2d 649, 662, writ denied, 2003-0232 (La.4/21/03), 841 So.2d 793. Thus, the cause-in-fact inquiry is whether the harm to Conerly would have occurred but for the State’s breach of its duty. Causation is a question of fact. The trier-of-fact’s determinations are entitled Into great weight and cannot be disturbed absent manifest error or unless clearly wrong. Ethyl Corp., 836 So.2d at 179; see also Berg, 786 So.2d at 716.

Conerly testified that as he was ushered through the line in the kitchen, he stepped in the Kool-Aid, which caused his knee to “pop” and “give out.” Conerly stated that he then fell to the floor. Both Jones and Hill testified that they saw Conerly, after he fell, lying on the floor in the puddle of Kool-Aid. The trial court correctly noted that the witnesses’ explanations of the events surrounding the accident were not refuted. We cannot say the trial court, based on its credibility determination, was manifestly erroneous in finding that the harm to Conerly would not have occurred but for the breach of duty by the State.

The legal-cause or scope-of-duty inquiry ultimately turns on a question of policy as to whether the particular risk falls within the scope of the duty. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 2002-1376, p. 6 (La.App. 1st Cir.5/9/03), 849 So.2d 622, 627, citing Roberts v. Benoit, 605 So.2d 1032, 1044 (La.1991). A risk of a particular injury may be found not within the scope of a duty where the circumstances of that injury to that plaintiff could not be reasonably foreseen or anticipated, because there was no ease of association between the risk of that injury and the legal duty. Although the determination of whether to assign a legal duty is fact specific, the issue of whether there is a duty is ultimately a question of law. Bowman, 849 So.2d at 627. After review, we find no legal error in the trial court’s conclusion that the risk that an inmate would slip and fall when directed to walk through liquid that had accumulated on a smooth concrete floor is encompassed within the scope of protection afforded by the State’s duty to use reasonable care to protect the inmate from harm.

The evidence presented at trial establishes that on the night of the fall, Conerly went to the emergency room at Angola and complained of pain in his knee. Conerly testified that the pain persisted throughout the night and that he experienced swelling in his knee for an extended period of time, even after receiving treatment at Charity Hospital in New Orleans. Based on Conerly’s | ^testimony, the trial court found that Conerly met his burden of proving actual damages. After reviewing the record, we cannot say the trial court’s finding is manifestly erroneous or clearly wrong.

Considering the foregoing, we find no error in the trial court’s finding of liability on the part of the State.

COMPARATIVE FAULT

The State contends the trial court erred in failing to attribute any degree of comparative fault to Conerly for causing the accident. The State contends that Conerly was clearly aware of the puddle of Kool-Aid and failed to take the simple precaution of walking around the puddle. However, an inmate has less freedom of choice than an individual who is not incarcerated and is also subject to disciplinary measures if he refuses to do as he is told. Bridgewater v. State Through Dept. of Corrections, 434 So.2d 383, 385 (La.1983). Considering this, we find no error in the trial court decision not to apportion any fault to Conerly.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal, in the amount of $1,544.35, are assessed to the State of Louisiana through the Department of Public Safety and Corrections.

AFFIRMED.

      . Act No. 110 of 1946 authorizes the institution of suits against the State of Louisiana, through the Governor and Attorney-General, by certain claimants set forth in Section 2 of the Act, for claims for services, supplies and materials rendered to the Louisiana Public Service Commission from June 30, 1930, to November 14, 1932. This exception does not apply to the case at bar.

      . Louisiana’s current constitution also requires that each bill introduced before the Legislature have a brief title indicative of its object. LSA-Const. Art. 3, § 15 (1974).

      . LSA-C.C. art. 3501 was enacted by Acts 1983, No. 173, § 1 and became effective January 1, 1984. However, LSA-C.C. art. 3501 reproduces the substance of former article 3547, which was in effect at the time the Act under consideration was passed, and also provided a ten year prescriptive period for money judgments.

      . In Chaney, the Louisiana Supreme Court found LSA-R.S. 9:5628 to be a prescriptive statute that dispenses with the contra non valentem doctrine’s extension of prescription through the discovery rule, which is a feature normally attendant to prescription. Hebert, 486 So.2d at 724.

      . Article 3, section 35 of the Louisiana Constitution of 1921, in effect at the time the Act under consideration was passed, empowered the Legislature to waive, by passage of special or general laws, the state's immunity from suit and liability. The Act's title does not suggest the Legislature’s intent to create such a waiver, nor does the language of the Act evidence any waiver of the State’s immunity.

      . As previously noted, although the doctrine of peremption was not codified in the Louisiana Civil Code at the time the Act was introduced before and passed by the Legislature, it was an established principle of Louisiana jurisprudence. Moreover, after enacting LSA-C.C. arts. 3458-3461 relative to peremption, the Legislature chose not to amend LSA-R.S. 49:112 to refer to the limitation period as one of peremption rather than prescription.


author: |,CLAIBORNE, J.

text:
    Evangeline M. DIGGS v. SWDI, L.L.C.
    No. 2002 CA 1813.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.

      Robert W. Hallack, Baton Rouge, Counsel for Plaintiff-Appellant, Evangeline M. Diggs.
    Wade A. Langlois, III, Gretna, Counsel for Defendant-Appellee, SWDI, L.L.C.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, Retired, Is Serving As Judge Pro Tempore By Special Assignment Of The Louisiana Supreme Court.

   |,CLAIBORNE, J.

This an appeal by the claimant, Evangeline Diggs, from a judgment of the workers’ compensation judge (WCJ), finding that she violated La. R.S. 23:1208 and 1208.1 and thereby forfeited her rights to workers’ compensation benefits, and dismissing her claim with prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

Ms. Diggs was driving a garbage truck for the defendant, SWDI, L.L.C. (SWDI), when another motorist collided with the garbage truck while attempting to pass it. At trial, the parties stipulated that Ms. Diggs was hired by SWDI on August 1, 2001, and that the accident occurred on August 13, 2001, while she was in the course and scope of her employment with SWDI.

As a result of the accident, Ms. Diggs complained of injury to her neck, back, and arm, and she was taken by ambulance to Lady of the Sea General Hospital. She was diagnosed with having a neck and back sprain, given pain medication, and told to do light duty work for three to four days, to resume normal activities as tolerated, and to follow up with her family doctor in two to three days.

She subsequently followed up her treatment with Dr. Gary Guidry, an orthopedic surgeon in Houma, Louisiana, who examined Ms. Diggs on August 22, 2001, and prescribed pain medication and physical therapy and recommended that she not return to work. Although Ms. Diggs’ x-rays were normal, Dr. Guidry detected spasms in her neck and back, and he felt that she had a cervical and lumbosacral strain. Ms. Diggs saw Dr. Guidry again on September 12, 2001, with continuing symptoms of pain in her neck and | aback, and at that time he recommended she have a cervical and lumbar MRI to determine if she had a disc injury.

The test was not performed for several months, because it was not authorized by SWDI, and in the meantime, Ms. Diggs filed a disputed claim for compensation. When the MRI was performed, it showed no evidence of a disc injury, and Dr. Gui-dry concluded that Ms. Diggs suffered from a soft tissue injury with a strain. As he is an orthopedic surgeon and did not feel he could offer her any additional help, he released her from his care at that time.

After trial on the merits was held on May 8, 2002, the WCJ found that Ms. Diggs had forfeited her right to workers’ compensation benefits under La. R.S. 23:1208 because she had willfully made false statements and representations for the purpose of obtaining benefits. The WCJ also found that Ms. Diggs had forfeited her benefits under La. R.S. 23:1208.1 because she gave untruthful answers on SWDI’s medical history questionnaire. Ms. Diggs’ workers’ compensation claim was dismissed with prejudice at her costs. From that judgment, Ms. Diggs now appeals, urging the following assignments of error:

1. The WCJ was clearly wrong in determining that Ms. Diggs had forfeited her right to workers’ compensation benefits under La. R.S. 23:1208 by making willful misrepresentations for the purpose of securing benefits.
2. The WCJ was clearly wrong in failing to consider whether SWDI’s medical history questionnaire violated the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.
3. The WCJ was clearly wrong in determining Ms. Diggs had forfeited her right to workers’ compensation benefits by providing false answers to a pre-employment medical history questionnaire completed at the office of the doctor who performed Ms. Diggs’ pre-employment physical examination, although the questionnaire did not meet the form requirements of La. R.S. 23:1208.1.
|44. The WCJ was clearly wrong in failing to determine that SWDI’s medical history questionnaire was ambiguous and not designed to elicit information that would allow the employer to discern if it has hired or will hire a worker with a permanent partial disability for Second Injury Fund purposes.
5. The WCJ was clearly wrong in concluding that Ms. Diggs’ answers to SWDI’s medical history questionnaire provided the basis for forfeiture of benefits without further proof:
a) That the subsequent injury was inevitable or very likely to occur because of the presence of any preexisting condition;
b) Of a permanent partial disability;
c) That any permanent partial disability was so serious as to hinder claimant’s employment;
d) That the employer had actual knowledge of the employee’s permanent partial disability before the occurrence of the injury forming the basis of the compensation claim; and
e) That the permanent partial disability merged with the injury to produce an even greater disability.

SWDI has answered the appeal, arguing that the WCJ erred by failing to award sanctions and restitution, including the cost of litigation and attorney’s fees, pursuant to La. R.S. 23:1208 and 1208.1.

LAW AND ANALYSIS

In her first assignment of error, Ms. Diggs asserts the WCJ erred in determining that she had forfeited her right to workers’ compensation benefits under La. R.S. 23:1208 by willfully making false statements for the purpose of obtaining benefits. She argues that the WCJ’s main focus was on her responses to SWDI’s medical history questionnaire and that, as those responses were given prior to her work-related accident, they could not have been made for the purpose of obtaining benefits and could not form the basis of a forfeiture under La. R.S. 23:1208. With respect to any alleged misrepresentations made by Ms. Diggs after the work-related accident at issue in this litigation occurred, she asserts that they could not result in forfeiture, because they were inadvertent or inconsequential.

[..¡Louisiana Revised Statute 23:1208 provides, in pertinent part, as follows:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

This statute applies to any false statement or misrepresentation, including one concerning a prior injury, made specifically for the purpose of obtaining workers’ compensation benefits and, therefore, generally becomes applicable at the time of an employee’s accident or claim. The statute is broadly worded and encompasses false statements or misrepresentations made to anyone, including the employer, physicians, or insurers, when made willfully or deliberately for the purpose of obtaining benefits. There is no requirement that an employee be put on notice of the consequences of making such false statements or misrepresentations. Resweber v. Haroil Construction Company, 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7, 9; see also Varnado v. Winn-Dixie Louisiana, Inc., 98-0301 (La.App. 1st Cir.9/25/98), 720 So.2d 66, 70. The only requirements for forfeiture of benefits under La. R.S. 23:1208 are that (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of | ¡¡obtaining or defeating any benefit or payment. Resweber, 660 So.2d at 12; see also Varnado, 720 So.2d at 71.

The issue of whether an employee forfeited his workers’ compensation benefits is one of fact, which is not to be reversed on appeal absent manifest error. Before an appellate court may reverse the factual determinations of a WCJ, it must find from the record that a reasonable factual basis does not exist for the findings and that the record establishes that the findings are clearly wrong or manifestly erroneous. Hull v. Fluker Farms, 00-0757 (La.App. 1st Cir.5/11/01), 787 So.2d 535, 589, writ denied, 01-2291 (La.11/16/01), 802 So.2d 612. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

When Ms. Diggs began receiving treatment for her neck and back from Dr. Guidry after her accident, she represented to him that she had not had prior problems with her neck. However, records show that on April 14, 2000, she had slipped and fallen in Rouse’s Supermarket and gone to the emergency room complaining of pain in the back of her head and in her neck. The doctors took x-rays of her skull and spine, the results of which were normal, and she was diagnosed with having a contusion of the scalp and a neck strain. When questioned about this at trial, Ms. Diggs denied that she had any neck pain after her fall at Rouse’s. She stated that emergency room personnel thought she might have sprained her neck when she fell, but that she complained to them only about pain in her head, not in her neck. However, several times throughout the hospital records, notations show that 17Ms. Diggs was complaining of neck pain, and she was diagnosed with having a neck strain and given special instructions to work on the range of motion of her neck. Furthermore, in a lawsuit entitled Evangeline Diggs v. Rouse’s Enterprises, L.L.C. d/b/a Rouse’s Supermarket and filed in the Seventeenth Judicial District Court, the petition for damages, which was introduced into evidence by SWDI, contains allegations that Ms. Diggs injured the back of her head and strained her neck when she fell in the supermarket.

Although Ms. Diggs represented to Dr. Guidry when she began seeing him in August of 2001 that she also had not had prior problems with her back, medical records reveal that she began seeing Dr. Pete H. Rhymes, an orthopedic surgeon, in June of 1996 complaining of pain in her left hip and leg and pain in her lumbar back. She told Dr. Rhymes that as a result of an automobile accident in 1994, she suffered a broken femur that required surgery on her left hip and leg. The doctor had put pins and a rod in her hip and leg. She told Dr. Rhymes that she had been in another automobile accident in May of 1996, which was causing pain in her left leg and hip and lumbar back, and that the pain was constant and had been getting worse since the accident. She answered a question on Dr. Rhymes’ medical questionnaire by writing, “can’t walk for [sic] at all for my leg and for the pain in my lower back.” Ms. Diggs returned to Dr. Rhymes in October of 1996, complaining of severe and unbearable pain in her back. He ordered a CT scan to assess her inner vertebral disc status, but it was can-celled and apparently never rescheduled. When questioned about this at trial, Ms. Diggs testified that she did not remember telling Dr. Rhymes that she was experiencing back pain or him recommending a CT scan of her back.

|sMs. Diggs also made misrepresentations regarding her applications for Social Security disability benefits. The Social Security records admitted into evidence clearly show that Ms. Diggs applied for benefits based on the hip and leg injury she had received in the automobile accident in 1994. In interrogatories propounded by SWDI, Ms. Diggs was asked if she had ever applied for Social Security disability benefits. She answered, “Yes. Plaintiff has applied on four separate occasions for Social Security Disability benefits. However, none of the attempts to receive disability benefits was based on a physical disability. The requests were made with regard to a learning disability, particularly reading.” The only Social Security disability applications which were introduced into evidence were based on Ms. Diggs’ physical problems with her leg, and there were none introduced concerning a learning disability.

When questioned at trial, Ms. Diggs first testified that she did not fill out the Social Security forms concerning the physical problems with her leg, but one of her sister-in-law’s friends did. Subsequently, she testified that her father applied for those benefits for her, because she was a minor at the time. However, the applications are dated June 4, 1996, and September 28, 1997, and Ms. Diggs, born November 17, 1976, was not then a minor. She signed the applications herself.

Although Ms. Diggs’ answers to SWDI’s medical history questionnaire are not directly relevant with regard to a violation of La. R.S. 23:1208, the reasons she gave at trial for those answers are relevant with regard to the WCJ’s credibility determinations. Ms. Diggs offered several reasons why she failed to indicate on the medical history questionnaire that she suffered from various prior medical conditions. First, she testified that she could not read very well. She claimed she just answered “no” to |9everything without reading the questions because she figured there was nothing wrong with her. However, the WCJ found there was objective evidence that Ms. Diggs has fundamental reading skills; for example, she has graduated from Diesel Driving Academy and obtained her CDL license, a requisite of which is a written knowledge and skills test.

Ms. Diggs later testified that she thought the questionnaire was only asking how she felt at the time she was filling out the questionnaire, even though it clearly asks to indicate “whether or not you currently have or previously have had any of the following conditions.” The WCJ specifically found that her “various excuses” demonstrated her lack of credibility. The WCJ’s determination regarding Ms. Diggs’ credibility is reasonable.

We find this case to be similar to Var-nado, wherein this Court held that the evidence supported a finding that the claimant -willfully made false statements or representations regarding his medical history and injury to his lower back for the purpose of obtaining workers’ compensation benefits, and thus, forfeited any right to those benefits. The claimant misrepresented his past physical condition to two treating physicians and made false statements during his testimony at a hearing. Although the claimant asserted during the hearing that he had not injured his lower back or reported symptoms of lower back pain prior to his alleged work-related accident, the medical evidence established that he had sustained injury to his lower back, had reported lower back pain to his medical providers, and had received treatment for his lower back pain on several previous occasions. Varnado, 720 So.2d at 71.

After reviewing the record in its entirety, we find a reasonable factual basis exists to support the WCJ’s conclusion that Ms. Diggs made false statements or representations, that such statements or representations were |1flmade willfully, and that they were made for the purpose of obtaining compensation benefits. Accordingly, we conclude the WCJ did not err in determining that Ms. Diggs forfeited her right to workers’ compensation benefits under La. R.S. 23:1208. Since Ms. Diggs has forfeited her right to benefits, it is unnecessary to address Ms. Diggs’ remaining assignments of error.

SWDI has answered the appeal, arguing that the WCJ erred by failing to award sanctions and restitution, including the cost of litigation and attorney’s fees, pursuant to La. R.S. 23:1208 and 1208.1. Although La. R.S. 23:1208(D) does provide for civil penalties and restitution, the authority to order such an award lies within the discretion of the WCJ. Rhone v. Boh Brothers, 01-0270 (La.App. 4th Cir.12/12/01), 804 So.2d 764, 768-69. We find that the WCJ did not abuse his discretion in failing to order such an award.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the WCJ, finding that Ms. Diggs forfeited her right to workers’ compensation benefits and dismissing her .claim with prejudice.

AFFIRMED.

      . La. R.S. 23:1310.5(F) requires that the published court of appeal opinion identify the office of workers’ compensation district from which the appeal was taken and the name of the WCJ who rendered the judgment. The WCJ was Honorable Glynn F. Voisin of the Office of Workers’ Compensation Administration, District 9.


author: I «WHIPPLE, J.

text:
    Deborah BATSON, Eula Maye Batson and Billy M. Batson v. SOUTH LOUISIANA MEDICAL CENTER and State of Louisiana Through the Department of Health & Human Resources.
    No. 2002 CA 2381.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.

      Herbert Barnes, Houma, for Plaintiffs/Appellees, Eula Maye Batson and Billy M. Batson.

      Richard Ieyoub, Attorney General, Baton Rouge, Gregory C. Weiss, New Orleans, for Defendants/Appellants, South Louisiana Medical Center and State of Louisiana, through the Department of Health and Human Resources.
    Richard Ieyoub, Attorney General, Baton Rouge, for the State of Louisiana Department of Justice.
    Peter Elliot Sperling, New Orleans, for Defendant, Med-Force Physical Therapy.
    Amos H. Davis, Baton Rouge, for Defendant, Chicago Insurance Company.
    Before: WHIPPLE, DOWNING and CLAIBORNE
      , JJ.

      . Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

   I «WHIPPLE, J.

This matter is before us on appeal following a remand to the trial court for a determination of whether certain health care providers were qualified state health care providers pursuant to the Malpractice Liability for State Services Act, LSA-R.S. 40:1299.89 et seq., and, accordingly, whether the State of Louisiana was entitled to a credit for a settlement payment made by those health care providers to the plaintiffs herein. On remand, the trial court determined that the settling health care providers were not qualified state health care providers and, accordingly, that the State was not entitled to a credit against its obligation to plaintiffs for sums paid by the settling health care providers. Finding no error in the judgment, we affirm.

FACTS AND PROCEDURAL HISTORY

This medical malpractice suit arose out of injuries suffered by Deborah Batson while hospitalized at South Louisiana Medical Center (SLMC) in Houma, Louisiana. At the original trial of this matter, the trial court found that Batson had suffered three separate and unrelated injuries resulting from independent acts of negligence. Those three separate injuries were (1) sepsis and related injuries, (2) flexion contrac-tures and (8) decubitus ulcers. Having found three separate and unrelated injuries, the trial court further determined that a separate $500,000.00 cap on damages as set forth in LSA-R.S. 40:1299.39(F) of the Malpractice Liability for State Services Act (MLSSA) applied to each independent act of negligence causing a separate and independent injury.

Ultimately, the Louisiana Supreme Court affirmed the trial court’s finding that Batson was entitled to three separate $500,000.00 caps for her separate and independent injuries, holding that the MLSSA does not prohibit multiple statutory caps for multiple acts of negligence that produce separate hand independent damages. Batson v. South Louisiana Medical Center (Batson I), 99-0232, p. 11 (La.11/19/99), 750 So.2d 949, 957. The Supreme Court then remanded the matter to this court with instructions to “review quantum under each cap.” Batson I, 99-0232 at p. 11, 750 So.2d at 957.

On remand, this court affirmed the damage awards under each cap, finding no abuse of the trial court’s discretion in its awards. Batson v. South Louisiana Medical Center (Batson II), 98-0038R, pp. 27-28 (La.App. 1st Cir.12/22/00), 778 So.2d 54, 68-69, writ denied, 2001-0960 (La.5/11/01), 792 So.2d 740. However, in the remand of the appeal, SLMC and the State also contended for the first time that they were entitled to judgment in their favor setting forth that they owed plaintiffs nothing because the judgment had already been fully satisfied by virtue of a settlement between plaintiffs and Robert Rowe, Leah Angelito and Medforce Physical Therapy Services, Inc. (“the physical therapy defendants”). Batson II, 98-0038R at pp. 23-24, 778 So.2d at 66. SLMC and the State contended that the physical therapy defendants were qualified state health care providers and that Batson was only entitled to recover $1,500,000.00 in total damages from all qualified state health care providers, representing one cap for each claim. Thus, they contended that because the amount paid in settlement by the physical therapy defendants exceeded all three caps to which Batson was entitled, SLMC and the State had no further liability to plaintiffs. Batson II, 98-0038R at pp. 23-24, 778 So.2d at 66.

Noting that the settlement by the physical therapy defendants involved Batson’s flexion contractures claim only, this court ruled that, as a matter of |4law, there was no basis for granting SLMC and the State a credit from the settlement proceeds against the remaining two malpractice claims (ie., the claim for sepsis and related injuries and the claim for decubitus ulcers). Batson II, 98-0038R at p. 24, 778 So.2d at 66-67. However, with regard to SLMC’s and the State’s liability to plaintiffs for Batson’s flexion contractures claim, this court found that the trial court had never made a determination as to whether the physical therapy defendants were in fact qualified state health care providers who were covered by the MLSSA for the instant claim and that this determination could be made only following an evidentiary hearing at the trial court level. Batson II, 98-0038R at pp. 26-27, 778 So.2d at 67-68. Thus, we remanded the matter to the trial court for the limited purpose of determining whether SLMC and the State were entitled to a credit on the flexion contractures claim. Batson II, 98-0038R at p. 27, 778 So.2d at 68.

On remand, the trial court held that: (1) Robert Rowe, Leah Angelito and Medforce Physical Therapy Services, Inc. (“Med-force”) were not state qualified health care providers under the MLSSA and (2) Rowe, Angelito and Medforce committed gross negligence and/or willful or wanton acts and that such acts excluded coverage under LSA-R.S. 40:1299.39(A)(l)(a)(iv)(ec). Thus, the trial court rendered judgment, | r,finding that the State was not entitled to any credit against its liability to plaintiffs as a result of the settlement between plaintiffs and other non-state parties, specifically the settlement payments made by St. Paul Insurance Company, on its own behalf and on behalf of its insureds, Med-force, Rowe and Angelito.

From this judgment, SLMC and the State appeal, contending that the trial court erred: (1) in finding that Rowe, An-gelito and Medforce were not qualified state health care providers under the MLSSA and, consequently, that the State was not entitled to a credit against the amount the State would otherwise owe for Batson’s flexion contractures claim; and (2) in finding that Rowe and Angelito committed gross negligence and/or willful or wanton acts and that such acts exclude coverage under LSA-R.S. 40:1299.39(A)(l)(a)(iv)(cc), thus precluding the State from receiving a credit even if the physical therapy defendants were found to be qualified state health care providers.

DISCUSSION

The MLSSA affords protection with regard to liability to certain health care providers providing health care services on behalf of the State. LSA-R.S. 40:1299.39 et seq.; Ruiz v. Oniate, 97-2412, pp. 4-5 (La.5/19/98), 713 So.2d 442, 444-445. Pursuant to LSA-R.S. 40:1299.39(G), the State shall pay any damages and other costs in connection with any claim lodged against a state health care provider when the state health care provider is acting within the terms of the definition of “state health care provider” or “person covered by this Part” as provided in paragraph (1) of Subsection (A) of LSA-R.S. 40:1299.39.

In the instant case, the State argues that the physical therapy defendants were qualified “state health care providers,” and, thus, that any [(¡payment to plaintiffs for their acts of negligence inured to the benefit of the State in that plaintiffs could collect only one $500,000.00 cap for the flexion contractures claim from all qualified state health care providers.

At the time of the acts of malpractice by the physical therapy defendants, a “state health care provider” or “person covered by this Part” was defined, in pertinent part, as follows:

(ii) A person acting in a professional capacity in providing health care services, by or on behalf of the state, including, but not limited to, a ... physical therapist, ... who is either:
(aa) Acting within the course and scope of his employment pursuant to a contract with the state, which contract specially names that health care provider and designates him to render such health care services, pursuant to a staff appointment to a state hospital or other state health care facility, or pursuant to an assignment to render such health care services for or on behalf of the state, without regard to where the services are performed, whether or not he is paid for such services; or
(bb) Performing voluntary professional services in a health care facility or institution for or on behalf of the state

LSA-R.S. 40:1299.39(A)(l)(a)(ii)(aa) & (bb). Pursuant to the language of subpart (aa), a health care provider would be considered a qualified state health care provider for purposes of the MLSSA if performing health care services: (1) pursuant to a contract with the state if that contract specifically named that health care provider and designated him or her to render those services; (2) pursuant to a staff appointment to a state hospital or health care facility; or (3) pursuant to an assignment to render such services without regard to where the services were performed.

In the instant case, following an evidentiary hearing on remand, the trial court found that the physical therapy defendants were not qualified state health care providers under the facts presented. A court of appeal may not set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Stobart v. State, Department of 7Transportation and Development, 617 So.2d 880, 882 (La.1993). On review, we find no error in the trial court’s resolution of this issue or in its conclusion that no credit was due the State.

The record establishes that SLMC and the State entered into a contract with Louisiana Physical Therapy and Athletic Rehabilitation, Inc. (“Louisiana Physical Therapy”), whereby Louisiana Physical Therapy provided inpatient physical therapy services at SLMC. Louisiana Physical Therapy had entered into a contract with Medforce, through which Medforce agreed to “provide licensed physical therapists on an ‘as needed’ basis” to Louisiana Physical Therapy. Rowe was an employee of Med-force. Additionally, Medforce had entered into a contract with Sunbelt Physical Therapy Services, Inc. (“Sunbelt”), through which Sunbelt agreed to provide Medforce with a physical therapist. Angelito was an employee of Sunbelt.

Although SLMC and the State contend that Rowe, Angelito and Medforce were qualified state health care providers pursuant to the contract between SLMC and Louisiana Physical Therapy, it is undisputed that none of these parties were specifically or “specially” named in the contract at issue, as clearly required by LSA-R.S. 40:1299.39(A)(l)(a)(ii)(aa). As plaintiffs correctly note, by requiring that the health care provider providing services be “specially” named in the contract with the State, the MLSSA represents a compromise of competing interests. On one hand, the primary purpose of the MLSSA is to attract qualified professionals to provide health care services on behalf of the State by protecting against malpractice judgments. Ruiz, 97-2412 at pp. 7-8, 11, 713 So.2d at 446-447, 449. |8 On the other hand, by requiring that such providers be specifically identified in the contract, the MLSSA affords the State the ability to control the identity and, presumably the qualification, of those health care providers for whom the coverage under the MLSSA will be afforded and for whom the State may ultimately be liable. As such, the MLSSA, under its contract language, extends its protection, and statutorily obligates the State, only to those health care providers chosen by, and named by contract with, the State. Thus, under the facts of the instant case, the settling physical therapy defendants cannot be considered qualified under the MLSSA by virtue of a contract between the State and Louisiana Physical Therapy.

Moreover, there is no evidence in the record to show that Rowe or Angelito had been given staff appointments at SLMC or that the State had assigned them to that facility to render physical therapy services for or on behalf of the State. Nonetheless, the State now argues that the physical therapy defendants should be “deemed assigned” to SLMC by virtue of the subcontract between Louisiana Physical Therapy and Medforce and the sub-sub-contract between Medforce and Sunbelt. At the outset, we note that because the MLSSA limits the liability of certain health care providers in derogation of the general rights of tort victims, any ambiguities in the Act must be strictly construed against coverage. Ruiz, 97-2412 at p. 4, 713 So.2d at 444. There is no language in LSA-R.S. 40:1299.39(A)(l)(a)(ii)(aa) providing that employees of a subcontractor, which subcontractor is not specifically named in a contract with the State, will be afforded the status of qualified “state health care provider.” Rather, the language of the statute specifically limits those qualified pursuant to contract to those individuals “specially” named in the contract with the State. In the instant case, the only party “specially” named in the contract at issue with SLMC was Louisiana Physical Therapy. Thus, strictly construing the language of this section of |9the Act, as we must, and considering the undisputed facts presented, we find no merit to the State’s argument.

As additional support for its argument that the physical therapy defendants were qualified health care providers, the State relies upon the Louisiana Supreme Court’s decision of Ruiz v. Oniate, wherein the Court held that health care providers employed by the State are qualified state health care providers under the MLSSA Ruiz, 97-2412 at p. 9, 713 So.2d at 448. In Ruiz, the question presented was whether direct employees of a state hospital, who did not have a written employment contract with the State, were covered under the MLSSA as it existed in 1988. In considering this issue, the Court detailed the evolution of the definition of persons covered under the Act and, in so doing, noted that in 1978, the MLSSA was amended to add language referring to a contract with the Department of Health and Human Resources that “specially” names the health care provider. Ruiz, 97-2412 at p. 6, 713 So.2d at 446.

In concluding that this added language did not require that such direct employees of a state hospital have a written contract with the State, the Court stated as follows:

[I]t seems the intent behind the addition of the “contract” language as originally inserted with Act 611 of 1978 and as amended in 1979 and 1986 was to insure that medical professionals who personally or through their privaite employers had contracted with the state as independent contractors to provide medical services on behalf of the state would also be extended the benefits of the MLSSA since it was possibly questionable whether these independent contractors who may or may not be employed by private companies would have been considered “employees” of the state health care facility.

Ruiz, 97-2412 at p. 10, 713 So.2d at 448 (emphasis added).

hnCiting this language from the Ruiz opinion, the State contends that the physical therapy defendants did not need written contracts with the State to attain the status of qualified state health care providers.

However, we find the facts and analysis of Ruiz to be distinguishable from the instant case. First, as mentioned above, the Court in Ruiz was faced with the question of whether direct employees of a state hospital were qualified state health care providers. Ruiz, 97-2412 at p. 1, 713 So.2d at 443. In the instant case, we must address whether third parties who were not employed by the State and had not contracted with the State, their sub-contractors and employees of those sub-contractors are qualified state health care providers.

Additionally, in finding that pursuant to the “contract” language medical professionals who contracted with the State through their private employers as independent contractors were extended coverage under the MLSSA, the Court relied upon the language added by Act 141 of 1986, which specifically provided that the contract could be between the state and the health care provider himself “or his employer.” Ruiz, 97-2412 at pp. 10-11, 713 So.2d at 448-449. However, the “or his employer” language was deleted by Act 786 of 1988. Thus, under the version of the MLSSA applicable herein, the contract with the State for medical services had to specially name the health care provider himself in order for coverage under the Act to be afforded. Accordingly, we find that Ruiz is not controlling herein.

Finally, in arguing that the physical therapy defendants were qualified state health care providers, the State relies upon a certificate of qualification, In issued by the Commissioner of Administration and listing the physical therapy defendants as qualified under the provisions of LSA-R.S. 40:1299.39.1. We agree that a certificate of qualification from the Louisiana Commissioner of Administration, certifying that a health care provider is qualified under the provisions of LSA-R.S. 40:1299.39, can serve as prima facie evidence of state employment. See Holt v. Stallworth, 594 So.2d 1082, 1084 (La.App. 4th Cir.1992).

We note that the certificate of qualification was issued on December 22, 1995, by the Division of Administration at the request of counsel for the physical therapy defendants over four years after the acts of malpractice by these defendants. Despite the issuance of this certificate, the physical therapy defendants nonetheless thereafter entered into a settlement with plaintiffs, agreeing to pay plaintiffs a minimum of $750,000.00, more than their liability would have been as qualified state health care providers. While not solely determinative of the issue of coverage, clearly, these physical therapy defendants were not acting under any belief that the issuance of the certificate of qualification established that they were in fact qualified state health care providers.

Moreover, we note that the certificate of qualification was signed by Dianna Schenk, an “administrative specialist 1” with the Division of Administration. With regard to the circumstances prompting the issuance of the certificate and her determination of whether the physical therapy defendants were in fact qualified under the MLSSA as state health care providers, Schenk testified that after reviewing the contract and subcontracts at issue, she merely telephoned an unidentified individual at SLMC and requested that the individual orally advise her whether these defendants were state health care providers at the time these incidents occurred. Schenk | ^acknowledged that she has no legal training; nonetheless, she individually made the decision to issue the certificate of qualification to the physical therapy defendants. Under these circumstances, we conclude that the certificate of qualification is of little value to our analysis herein, and we find no manifest error in the trial court’s implicit finding that plaintiffs had sufficiently rebutted any prima facie evidence of qualification under the MLSSA.

Considering the foregoing, we find no manifest error in the trial court’s determination that the physical therapy defendants were not qualified state health care providers as defined in LSA-R.S. 40:1299.39(A) and, consequently, that the State is not entitled to any credit against its liability to plaintiffs by virtue of the settlement between plaintiffs and the physical therapy defendants. Given our ruling on this issue, we pretermit consideration of the second assignment of error raised by the State and SLMC, contending that the trial court erred in its alternative ruling that, even if state health care providers under the MLSSA, the physical therapy defendants were not entitled to the protection of the Act because they were grossly negligent herein.

CONCLUSION

For the above and foregoing reasons, the November 2, 2001 judgment of the trial court, decreeing that the State is not entitled to a credit against its liability to plaintiffs as the result of the settlement payments made by St. |13Paul Insurance Company on behalf of Medforce, Inc., Robert Rowe and Leah Angelito, is affirmed.

AFFIRMED.

      . Plaintiffs were paid $1,636,949.91 pursuant to their settlement agreement with these defendants. Batson II, 98-0038R at p. 23 n. 6, 778 So.2d at 66 n. 6.

      . This court also held that if, in fact, the trial court determined that the physical therapy defendants were state health care providers, then the State would be relieved of its liability to plaintiffs for the flexion contractures claim alone, as Batson would have already received the statutory cap for that claim from a qualified state health care provider. However, we further held that if the physical therapy defendants were found not to be qualified stated health care providers, no reduction would be warranted. This finding was based on the trial court’s award wherein it had specifically held that, even after reducing the flexion cont-racture award by the percentage of fault attributable to the settling physical therapy defendants, the portion of Batson’s general damages for which SLMC and the State would be liable exceeded $500,000.00. Thus, the trial court had already taken into consideration a reduction of SLMC's and the State's liability to plaintiffs by the proportionate share of fault of the physical therapy defendants. Batson II, 98-0038R at p. 27 n. 8, 778 So.2d at 68 n. 8.

      . The issues presented in this appeal are limited to the contract between SLMC and Louisiana Physical Therapy.

      . Through amendments to the MLSSA subsequent to the version discussed in Ruiz, employees of state hospitals and facilities were specifically included within the coverage of the Act. See LSA-R.S. 40:1299.39(A)(l)(a)(i).

      . In this assignment of error, SLMC and the State argue that the trial court should not have considered whether the physical therapy defendants were grossly negligent because plaintiffs had not alleged gross negligence in their original pleadings at the trial court level. Without commenting on the applicability of the gross negligence exception to the facts as established herein, which was not raised by defendants, we note that the issue of gross negligence became relevant only when the State and SLMC raised the issue of extin-guishment of their debt to plaintiffs or entitlement to a credit by virtue of plaintiffs’ settlement with the physical therapy defendants. The State and SLMC first raised this issue in the appellate court in original appeal of this matter after remand from the Supreme Court. See Batson II, 98-0038R at pp. 23-24, 778 So.2d at 66.

      . This court has been advised by the Thirty-Second Judicial District Court that due to a previous overpayment of costs by the State, no payment for costs is currently due. Thus, we decline to assess any additional costs.


author: |,KLINE, J. LMcCLENDON, J.,

text:
    Brett BARNHILL v. A-1 REMODELING
    No. 2002 CA 0357.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.
    Writ Denied Nov. 14, 2003.

      Robert Lowther, Jr., Covington, Counsel for Appellant Brett Barnhill.
    Robert Sorio, Covington, Counsel for Appellee A-l Remodeling.
    Before: FOIL, McCLENDON, and KLINE, JJ.

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

   |,KLINE, J.

This is a suit for recovery of workers’ compensation benefits filed by plaintiff, Brett Barnhill. After a trial on the merits, the workers’ compensation judge dismissed plaintiffs claims with prejudice. Plaintiff took this devolutive appeal.

FACTS AND PROCEDURAL HISTORY

Plaintiff was injured on January 4, 2000, while working for defendant, A-l Remodeling (A-l). On that day, plaintiff fell approximately ten feet from a roof onto landscape timbers. As a result of that accident, plaintiff sustained a fractured wrist and fractured ribs, and allegedly sustained neck, shoulder and back injuries. Plaintiff was subsequently paid workers’ compensation benefits, including wages and medical benefits, until July 1, 2000. At that time, A-l suspected that plaintiff was working in Mississippi and suspended his benefits pending an investigation.

On August 8, 2000, plaintiff filed a disputed claim for compensation, requesting wage benefits from July 1, 2000, and medical treatment, including a bone scan and MRI. Made defendants were A-l and, by amended petition, Louisiana Homebuilders Self Insurance Fund, the workers’ compensation insurer for A-l. The investigation did not show that plaintiff was working in Mississippi, so his benefits were reinstated on July 19, 2000. On August 9, 2000, Barbara Heath, the claims adjuster assigned to this case, issued a check to plaintiff paying him for the period of July 19 through August 6, 2000. Also, at that point, plaintiff was put back on the repetitive payment schedule for benefits. On November 15, 2000, plaintiffs deposition was taken. During that deposition, plaintiff testified that he had not suffered any previous neck, back or shoulder injuries. On December 10, 2000, A-l received a report from Dr. Morgan indicating that plaintiff was at maximum medical improvement and was able to return to work. In addition, upon receiving that report, A-l discovered that plaintiff had suffered injuries to his neck and back prior to his accident while working for A-l. Accordingly, A-l discontinued plaintiffs benefits and also |,-¡alleged that he had misrepresented his injuries to A-l. A-l also filed a recon-ventional demand requesting that plaintiff, pursuant to La. R.S. 23:1208, be required to forfeit all benefits and make restitution to A-l for all investigative, medical and legal costs. A trial on the matter was held on August 6, 2001. The trial court rendered judgment dismissing plaintiffs claims and denying A-l’s claims. Plaintiff took this devolutive appeal.

THE EVIDENCE

Work related injury

During plaintiffs deposition, he testified that he had been having problems with his shoulder and neck ever since the accident and that when he initially went to the emergency room he complained about those areas. The medical records from the emergency room did not reflect that he initially complained of the shoulder and neck area. However, at trial, contrary to the deposition, plaintiff testified that he must have misunderstood the question during his deposition because at the time of the emergency room visit he did not have any neck or shoulder pains. At the time of his deposition, however, plaintiff testified that his current pain included pain in his shoulder, neck and pain between his shoulder blades.

Dr. Deryk Jones is the doctor who initially treated plaintiff. He first treated plaintiff on February 7, 2000. He testified during his deposition that plaintiff was complaining primarily of left wrist and rib area pain at that time. At that time, Dr. Jones immobilized plaintiffs arm with a cast, so the wrist could heal. On February 28, 2000, plaintiff reported some burning in his ribcage to Dr. Jones, but still did not complain about his shoulder, neck or back. On May 25, 2000, plaintiff began to complain to Dr. Jones about pain in the rib area and upper back. Dr. Jones thought it might be paraseapular bursitis, which sometimes can set in after trauma to and immobilization of an area. At that time, he still found plaintiff to be disabled from working, primarily due to his back pain. During | ¿plaintiffs June 30, 2000 visit to Dr. Jones, he indicated that he had pain in the left paraseapular region with any attempt at overhead use of the left arm. Dr. Jones indicated that plaintiff had significant tenderness with palpation along the left paraseapular region. There was also some crepitus (creaking sound) in the left shoulder with motion of the shoulder, but it did not appear to be in the parasca-pular bursal region. His assessment was that plaintiff demonstrated some left shoulder anterior rhomboid muscle weakness with associated tenderness along the paraseapular bursal region. On plaintiffs July 19, 2000 visit, Dr. Jones did not find any significant limitation in range of motion regarding plaintiffs neck or shoulder. However, he indicated that plaintiff had continued tenderness with palpation in the midline at the T6 through T8 levels and had some tenderness along the parascapu-lar area. He indicated that plaintiff had not resolved with conservative measures such as injection into the left parascapular bursal region. At that time plaintiff was set up for a bone scan. On August 7, 2000, Dr. Jones indicated that the bone scan revealed increased uptake along the left rib cage consistent with his prior rib injuries and that plaintiff had what appeared to be parascapular muscle problems. As of September 9, 2000, Dr. Jones indicated plaintiff still had irritation along the thoracic spine but indicated there was no significant pain at that time with palpation along the scapular border. Dr. Jones subsequently set plaintiff up for a cervical MRI to assess for signs of disc herniation and nerve root impingements. The MRI was not approved.

Dr. Joe Morgan first treated plaintiff on November 17, 2000. Plaintiff told him he had injured his neck and shoulders at the time of the A-l accident. Plaintiff indicated the area between the shoulder blades was the area that was painful. However, Dr. Morgan testified that plaintiff presented with no signs of abnormalities whatsoever and found there was no objective medical evidence based on his physical examination that justified plaintiffs pain complaints. At that time plaintiff indicated that the most significant pain was between his shoulder blades. Upon physical examination, Dr. Morgan found no crepitus in the left shoulder. However, Dr. Morgan’s medical report from November 17, 2000, | Rstates that there was some “left shoulder serratus anterior rhomboid muscle weakness with associated tenderness in the parascapular bursal region.” This is the same region indicated by Dr. Jones. Dr. Morgan stated he wouldn’t object to a cervical MRI but did not feel it was necessary. Dr. Morgan asserted that there was no objective medical evidence to corroborate any continued disability involving plaintiff.

Medical records from the Gulf Coast Pain Institute indicated that plaintiff had full range of motion of the shoulder but with slow movements at extremes.

The trial court found that plaintiff “failed to establish by clear and convincing evidence a causal [connexity] between the alleged accident and any subsequent disabling condition” and that the “weight of objective medical evidence does not support the Plaintiffs medical complaints.”

The trial court did not give other reasons for judgment. The testimony and medical records show that, prior to the A-1 accident, plaintiff suffered injuries to some of the areas of which he complained after the A-l accident. However, the hospital medical records regarding plaintiffs injuries sustained in a 1998 automobile accident showed plaintiff complained of right upper quadrant pain and nausea and right upper quadrant tenderness, although he also complained of neck pain as he did after the A-l accident. The evidence also showed that plaintiff had suffered a previous work injury in June of 1999. Medical records from Washington-St. Tammany Hospital, where plaintiff was treated for that injury, showed he complained of neck pains and had mild tenderness in the neck. However, Dr. Jones testified that he did not know if plaintiff had a recurrence of those symptoms because “what they’re describing there is more of a muscle strain, some mild tenderness at the base of his neck, but not particularly where we’re pointing to on this injury here.” He testified that it “wasn’t the same area.”

Nonetheless, the workers’ compensation judge found no connexity between plaintiffs injury with A-l and his subsequent complaints of pain and alleged disability.

As a basis for his appeal, plaintiff asserts the workers’ compensation judge erred in determining there was no con-nexity between plaintiffs accident with A-l and his subsequent disability. Plaintiff also asserts the workers’ compensation judge erred in finding that the medical evidence did not support | (¡plaintiffs medical complaints and in not imposing sanctions against defendant and defense counsel for their “frivolous litigation and unethical conduct” in this matter.

In an answer to plaintiffs appeal, A-l asserted the workers’ compensation judge erred in failing to find that plaintiff violated the provisions of La. R.S. 23:1208, thus, forfeiting his entitlement to benefits and allowing for reimbursement to A-l.

Because of our ruling on the motion to remand, we pretermit discussion of the workers’ compensation judge’s 1208 ruling and failure to impose the sanctions requested by plaintiff.

AUTHORITY TO REMAND

A devolutive appeal was granted on October 25, 2001. On April 17, 2002, plaintiff filed his appellant brief with this court. Subsequently, a motion to remand was filed by plaintiff on December 18, 2002. This motion alleges that plaintiffs medical condition has been clarified as a result of a shoulder surgery obtained subsequent to the judgment of the workers’ compensation judge. The motion alleges that this surgery and the associated findings show that plaintiffs disability and surgery are directly related to the work injury.

Pursuant to La. C.C.P. art. 2164, courts of appeal have the power to remand a case for the introduction of additional evidence if grave injustice might result from failure to do so. Our Lady of the Lake Hosp. Inc. v. Carboline Co., 632 So.2d 339, 343 (La.App. 1 Cir. 12/29/93), writs denied, 94-0287 (La.3/25/94), 635 So.2d 228 and 94-0753 (La.5/6/94), 637 So.2d 1052. Such a remand is warranted only when the new evidence is likely to affect the outcome of the case. Id. The power to remand on this basis should be exercised sparingly. MMR-Radon Constructors, Inc. v. Continental Ins. Co., 1997-0159, p. 5 (La.App. 1 Cir. 3/3/98), 714 So.2d 1, 4, writ denied, 1998-1485 (La.9/4/98), 7721 So.2d 915. Whether a particular case is remanded is a matter over which the court has much discretion and is governed by the particular facts and circumstances in each case. Batiste v. Our Lady of the Lake Regional Med. Ctr., 550 So.2d 1338, 1344 (La.App. 1 Cir.1989), judgment vacated, 558 So.2d 1136 (La.1990)(the Louisiana Supreme Court vacated the judgment of this court and remanded the case to the trial court for the introduction of additional evidence).

The evidence obtained subsequent to the trial shows that a cervical MRI was conducted and showed plaintiff had a “left paracentral disc protrusion and associated osteophyte at C4-5” and “small left para-central disc protrusion at C6-7, and small anterior osteophyte at C5.” This evidence also shows an MRI of the left shoulder was conducted on June 14, 2002. That MRI showed there were several irregularities that indicated the presence of a labral tear. Furthermore, on April 25, 2002, Dr. Me-toyer, who had treated plaintiff approximately a year and a half before and had ordered an MRI that was denied, found, as a result of the MRI, that plaintiff had two disc protrusions and believed this was all secondary to his accident on January 4, 2000. He stated that he had requested MRI’s in the past that were not approved and that he thinks “it is pretty obvious that this is the result of [plaintiffs] injury in January of 2000.” He also found there was tenderness over the posterior and anterior surface of the neck. Thus, plaintiff was treated with injections at the C-4/5 and C-5/6 levels. On June 21, 2002, Dr. Metoyer stated that Mr. Barnhill has cervical disc disease at C-4/5 and C-5/6. He indicated plaintiff continued to have shoulder pain and on July 16, 2002, Dr. Hontas performed shoulder surgery on plaintiff. That surgery revealed that plaintiff had a complete tear of the glenoid labrum. Allegedly, plaintiffs shoulder pain greatly decreased after surgery.

In Nini v. Volume Merchandise, Inc., 282 So.2d 748 (La.App. 1 Cir.1973), the plaintiff, who was seeking workers’ compensation benefits, filed a motion to remand with this court while the matter was on appeal. Subsequent to the trial court’s judgment, the plaintiff had undergone surgery. The doctor performing the surgery attached an affidavit to the motion to remand that stated |sthe plaintiffs surgery was necessitated by the work related accident at issue in that case. In Nini, this court stated:

The plaintiff may not be able to show any connection between the injury sustained by her ... and the findings of Dr. Jackson ... when he performed the cervical fusion for plaintiff. But we believe it would be unwise for this court to refuse to permit the plaintiff the opportunity to show that she sustained a ruptured intervertebral disc in her work connected accident on April 15, 1970.

Nini, 282 So.2d at 752. In addition, in Batiste, 550 So.2d at 1344 this court stated:

There is authority in the jurisprudence for granting a remand for a new trial in a worker’s compensation case where an employee has surgery subsequent to a trial and that surgery could have relevance to the issue of whether or not the employee’s injury is compen-sable. See Crimen v. Fidelity and Casualty Company of New York, 249 La. 1071, 193 So.2d 249 (1966).

We believe the subsequent medical examinations and surgery obtained after the date of judgment in the instant case could show a connexity between plaintiffs work related accident with A-l and the injuries of which he complained. Recall that the accident involved a ten foot fall and landing on timbers.

There is a paternalistic rule in workers’ compensation cases that allows a court of appeal to remand a case for the introduction of further evidence if there is a showing by medical reports or otherwise that reasonably indicates a continued or recurrent work related disability persisting beyond the date to which the trial court’s original judgment allowed compensation. See Gary v. H.B. Zachry Co. Inc., 93-581, p. 10 (La.App. 3 Cir. 2/2/94), 631 So.2d 671, 676, unit denied, 94-0540 (La.4/22/94), 637 So.2d 159. The purpose of this rule is to prevent a truly injured workman from forever losing his day in court. Id. We believe that principle is applicable to a case such as this in which subsequent evidence may show that a plaintiff does in fact suffer from a work related injury.

Therefore, in view of the paternalistic aims of the workers’ compensation statutes and to prevent plaintiff from forever losing his day in court, the judgment from which plaintiff has appealed is annulled and set aside; this case is remanded for further proceedings for the introduction of additional evidence. Thereafter, all of such evidence, together with that in the record as presently made up, shall be considered by the workers compensation judge in 1 ^redetermining the connexity between plaintiffs injuries and the January 4, 2000 accident. In addition, on remand additional credibility determinations may be made under La. R.S. 28:1208. See Crimen v. Fidelity and Casualty Co. of New York, 249 La. 1071, 193 So.2d 249 (La.1966); Nini, 282 So.2d 748; McMurray v. United States Fidelity and Guaranty Co., 99 So.2d 473 (La.App. 2 Cir.1957).

DECREE

The judgment of the trial court is vacated and set aside. This case is remanded for further proceedings in accordance with the views expressed herein. All costs incurred in this appeal shall be deferred until the outcome of this case.

REMANDED.

McCLENDON, J., concurs with reasons.

LMcCLENDON, J.,

concurs.

I concur in the result.

Given Mr. Barnhill’s medical history pri- or to the injury in question, he may have a difficult burden to overcome regarding causation. However, every effort must be made to allow him to fully present his case. I therefore agree that the interest of justice requires a remand in this case.

      . Plaintiff also sought penalties and attorney fees.

      . A-l filed a an answer to the appeal of plaintiff. In addition, upon consideration of plaintiff's ex parte motion to remand, this court remanded for the introduction of additional evidence. The defendant opposed that motion and filed writs with the Louisiana Supreme Court. The Supreme Court, on March 28, 2003, granted that writ and remanded to this court for consideration of the motion by a three-judge panel.

      . Since we shall remand the case for the introduction of evidence on the causation issue, which may involve credibility determinations, the trial judge may redetermine the forfeiture issue.

      . A-l's motion to strike the exhibits attached to plaintiff's motion to remand is hereby denied. In the interest of justice, the courts have considered such exhibits. See the cases cited herein. We do not determine that those exhibits show any connexity whatsoever between plaintiffs injury and his accident on January 4, 2000, while working for A-l.