author: TERRI F. LOVE, Judge.

text:
    Christopher CASCIO v. James Burke DOWNING, M.D.
    No. 2006-CA-0570.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 4, 2007.

      W. Chad Stelly, Blake G. Arata, Jr., C. Perrin Rome III, Rome, Arata & Baxley, LLC, New Orleans, LA, for PlaintiffAp-pellee.
    Richard L. Weil, Gerald F. Arceneaux, Guste, Barnett & Shushan, L.L.P., Bourg, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   TERRI F. LOVE, Judge.

hDr. James Burke Downing appeals the district court’s ruling that he breached the applicable standard of care in his treatment of Mr. Christopher Cascio and that the breach was a cause-in-fact of Mr. Cas-cio’s damages. The trial court found in favor of Mr. Cascio and against Dr. Downing. The trial court was correct in its holding that Dr. Downing breached the applicable standard of care and that the breach was a cause-in-fact of plaintiffs damages. Therefore, we find the trial court was neither manifestly erroneous nor abused its discretion. The decision of the trial court is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In June 1996, the appellee, Mr. Christopher Cascio (hereinafter “Mr. Cascio”), a 28-year-old male, who had been a competitive weight-lifter and body-builder, presented to Dr. James Burke Downing (hereinafter “Dr. Downing”), complaining of persistent, painful lumps in both breasts. Mr. Cascio informed Dr. Downing that he had a family history of breast cancer that concerned him and expressed that the visible lumps in his chest were not aesthetically pleasing to him.

A mammogram and an echogram were performed on Mr. Cascio and revealed that he had gynecomastia of the left breast. A consent form was prepared | aby Dr. Downing’s office and was signed by Mr. Cascio; the form set forth in general terms the nature and purpose of the procedure of bilateral subcutaneous mastectomies to be performed by Dr. Downing on Mr. Cascio, as the removal lumps from both breasts. Also, two blocks of a Mercy Baptist Hospital disclosure form were checked off-“exci-sional breast biopsy” and “lumpectomy (partial excision of breast) with axillary dissection, however, Mr. Cascio signed only the block pertaining to “excisional breast biopsy.” The excisional breast biopsy block that Mr. Cascio signed disclosed the risks of infection, blood clot (hematoma), failure to obtain accurate diagnosis, disfiguring scar, and failure to locate and remove abnormality.

During the procedure, Dr. Downing buttonholed the breast skin of Mr. Cascio on both sides. Upon discharge, Mr. Cascio was instructed to resume normal activities as tolerable, and to rest and refrain from strenuous activity. A follow-up visit was scheduled. Following discharge and prior to the scheduled follow-up, Mr. Cascio felt an unusual sensation in his right breast and went to the emergency room at Chal-mette Medical Center. He was diagnosed with a hematoma of the right breast at the surgical site and was prescribed antibiotics and instructed to attend his previously scheduled follow-up visit with Dr. Downing.

In his office, Dr. Downing attempted to remove the hematoma, but was unsuccessful. He instructed Mr. Cascio to return to Mercy Baptist Hospital for evacuation of the hematoma. A second surgery was performed on Mr. Cascio’s right breast to evacuate the hematoma.

Subsequently, Mr. Cascio returned to Mercy Baptist Hospital, complaining of pain and swelling in his left breast. Dr. Downing’s partner, Dr. Walsh, examined Mr. Cascio and discovered a hematoma in his left breast. Dr. Walsh [^evacuated an ounce of blood or greater from the left surgical site and attached steri-strips to the site. Mr. Cascio remained under postoperative care with Dr. Downing until his condition improved and he was discharged.

Dr. Thomas Crais (hereinafter “Dr. Crais”), a plastic surgeon, treated Mr. Cas-cio, and noted that he suffered from diminished sensation in both nipple areolar complexes, had total lack of sensation in the left nipple, and that both of his breasts remained hypertrophic. Dr. Crais prescribed topical treatment, including injections.

Mr. Cascio filed a request for a review of his medical malpractice claim, and a medical review panel was convened to examine the issue of whether Dr. Downing’s conduct fell below the applicable standard of care. The medical review panel was composed of Dr. Alberto Arrillaga (hereinafter “Dr. Arrillaga”), Dr. Allen Stolier (hereinafter “Dr. Stolier”), and Dr. Michael Friley (hereinafter “Dr. Friley”). One physician was selected by the plaintiff, Dr. Arrillaga; one physician was selected by the defendant, Dr. Stolier; and a third physician was selected by Drs. Arrillaga and Stolier together, Dr. Friley.

Drs. Arrillaga and Friley were of the opinion that the evidence supported the conclusion that Dr. Downing failed to meet the applicable standard of care. Dr. Stolier disagreed; Dr. Stolier opined that the multiple complications of the operation led to disfiguring scars and the patient was informed of the complications of bleeding and scarring prior to the operation and consented to the procedure.

The final opinion of the medical review panel stated that Dr. Downing demonstrated a lack of skill in performing the procedure on Mr. Cascio. The panel opined Dr. Downing’s buttonholing of the skin flaps, burning of the skin with | ¿electrocautery, and failure to adequately achieve hemosta-sis were factors in the resultant disfiguring scars. Also, the panel opined that the care provided by Dr. Downing fell below the standard of care required, and that breach of the standard of care caused Mr. Cascio to suffer expansive scarring.

The trial judge found in favor of Mr. Cascio and against Dr. Downing, and opined that Dr. Downing breached the applicable standard of care and that the breach was a cause-in-fact of plaintiffs damages. The trial court rendered judgment in the amount of $60,000.00 in general damages and $8,367.89 in special damages, plus interest and court costs. This appeal followed.

LAW AND DISCUSSION

Dr. Downing asserts that the trial court erred in finding that he violated the standard of care for general surgeons and that the breach of the standard of care was the cause-in-fact of the damages claimed by Mr. Cascio. In a medical malpractice action, the plaintiff has the burden of proving, by a preponderance of the evidence, (1) that the doctor’s treatment fell below the standard of care expected of a physician in his medical specialty; and (2) the existence of a causal relationship between the alleged negligent treatment and the injury sustained. Gordon v. La. State University Bd. of Supervisors, 27,966, p. 4 (La.App. 2 Cir. 3/1/96), 669 So.2d 736, 739-40, (citing White v. McCool, 395 So.2d 774 (La.1981)); La.Rev.Stat. 9:2794.

COMPETING MEDICAL TESTIMONY

Dr. Downing argues that the third member of the panel opined that he did not breach the standard of care and was not responsible for the injuries. A physician is required to exercise that degree of skill ordinarily employed under similar circumstances by others in the profession and to use reasonable care, | fidiligence, and judgment. Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 718 (La.1986). “In a medical malpractice action, the assessment of factual conflicts, including those involving the contradictory testimony of expert witnesses, lies within the province of the trier of fact.” Hubbard v. State, 02-1654, p. 11 (La.App. 4 Cir. 8/13/03), 852 So.2d 1097, 1103. Where medical experts express differing views, judgments and opinions, great deference is given to the fact-finder’s determinations, which should not be reversed on appeal unless a reviewing court concludes that no reasonable factual basis for them exists. Id.

The medical review panel consisted of one physician selected by the plaintiff, Dr. Arrillaga; one physician selected by the defendant, Dr. Stolier; and a third physician selected by Drs. Arrillaga and Stolier together, Dr. Friley. The medical review panel heard testimony and reviewed evidence regarding whether Dr. Downing breached the standard of care owed Mr. Cascio.

OPINION OF THE MEDICAL REVIEW PANEL

The panel majority was comprised of two of the three members of the panel, Drs. Arrillaga and Friley. While the panel’s written opinion did not distinguish the individual opinions of these two doctors, Dr. Friley later testified in court as to his own medical opinion. The panel’s opinion was that the evidence supported the conclusion that Dr. Downing breached the requisite standard of care and that the breach caused Mr. Cascio to suffer extensive scarring that would not have occurred had the surgery been performed correctly. The majority panel members opined that Dr. Downing lacked demonstration of skill in performing the procedure, where he buttonholed skin flaps, burned the skin with electrocautery, and failed to properly obtain hemostasis. Dr. Stolier disagreed.

_yVÍEDICAL OPINION AND TESTIMONY OF DR. STOLIER

After reviewing evidence and hearing testimony in the medical review panel process, Dr. Stolier, the third member of the panel, who was appointed by Dr. Downing, disagreed with the consensus of Drs. Fri-ley and Arrillaga in the official opinion of the panel. Dr. Stolier opined that the evidence did not support the conclusion that Dr. Downing did not meet the requisite standard of care as charged in the complaint. The opinion states that Dr. Stolier reasoned that based on the operative report, Dr. Downing performed the correct procedure in a timely and proper fashion. The panel’s opinion also states that Dr. Stolier thought that Mr. Cascio consented to the procedure and was preop-eratively informed of the complications of bleeding and scarring that Mr. Cascio endured due to various problems during the procedure.

Dr. Stolier later testified that Mr. Cas-cio’s injuries, scarring and bleeding, are known complications of surgery. However, as to the issue of the causal connection between the breach and the resulting disfigurement, Dr. Stolier stated that multiple complications of the operation led to the disfiguring scars suffered by Mr. Cascio.

TESTIMONY OF DR. FRILEY

Dr. Friley testified at trial that Dr. Downing used bad surgical technique and stated that his failure to achieve hemosta-sis caused the surgical wounds to heal improperly. He also testified that cutting through the skin overlaying the breast while attempting to excise breast tissue caused additional scarring that would not have occurred had a carefully performed surgical procedure been done.

| .TESTIMONY OF DR. WALSH

Dr. John Walsh (hereinafter “Dr. Walsh”) testified on behalf of Dr. Downing. He stated that buttonholing the skin in removing the tissue was not a violation of the standard of care because it is part of the risk of an operation and involves many factors, including the thickness of the skin, the amount of bleeding that the patient has, and the adherence of the breast tissue to the skin. Dr. Walsh opined that the bleeding is a known and expected complication of the procedure.

Based on the evidence presented at trial and the expert testimony, reasonable minds can differ as to whether Dr. Downing deviated from the standard of care required of him and this breach of standard was the cause-in-fact of the injuries sustained by Mr. Cascio. We cannot say that the trial judge was clearly erroneous to accept the opinions of Drs. Arillaga and Friley on the issue of whether a breach occurred and reject the premise and conclusions of Drs. Stolier and Walsh on that particular issue. The evidence and testimony of Drs. Arrillaga and Dr. Friley established that the standard of care owed by Dr. Downing to Mr. Cascio was breached.

Further, as to the causal relationship between the breach and the resulting damages, Dr. Stolier, the appellant’s own medical review appointee, partially contributed to the establishment of the causal relationship between the breach and the resulting disfigurement when he opined that multiple complications of the operation led to the disfiguring scars suffered by Mr. Cascio. As stated above, Dr. Friley testified that the additional scarring suffered by Mr. Cascio would not have resulted had Dr. Downing carefully performed the procedure. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable | Sinferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Burns v. UHS of New Orleans, Inc., 02-1514, p. 11 (La.App. 4 Cir. 2/19/03), 841 So.2d 51, 58. We find that the trial court’s, decision was not manifestly erroneous.

INFORMED CONSENT

The trial court held that informed consent does not apply because a breach of the applicable standard of care occurred. Dr. Downing contends that the trial court erred in its holding, and to support this contention, he maintains that Mr. Cascio suffered from a “known complication” of the procedure that was performed on him, to which Mr. Cascio consented. Dr. Downing also states that the possible complications associated with the subject procedure include possible scarring and bleeding, which were stated on consent forms signed by Mr. Cascio prior to surgery.

Notwithstanding the finding'of a breach of the standard of care, a consent form that has been signed may be presumed valid and effective absent proof that its execution was induced by misrepresentation of material facts. La.Rev.Stat. 40:1299.40(A)(1). The Louisiana Supreme Court has found a doctor’s duty is to disclose to a patient those risks that are material. Jackson v. State, 05-2021, p. 2 (La.9/29/06), 938 So.2d 688, 689-90 (citing Hondroulis v. Schuhmacher, on reh’g, 553 So.2d 398, 421 (La.1989)). Also, according to La.Rev.Stat. 40:1299.40, when obtaining informed consent, technical language will not ordinarily suffice to disclose a risk to a layperson; rather, a doctor is required to disclose material risks in such terms that a reasonable person in the patient’s position would understand, unless the doctor knows or should have known |9something peculiar to the patient or her circumstances prevented her from understanding. Jackson, 05-2021, p. 3, 938 So.2d at 690.

Specifically, La.Rev.Stat. 40:1299.40 required Dr. Downing to use a form that: 1) sets forth in general terms the nature and purpose of the procedure or course of procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars (emphasis added) associated with such procedure or procedures; and 2) acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and, 3) is signed by the patient for whom the procedure is to be performed.

At trial, the parties disagreed as to whether Dr. Downing properly informed Mr. Cascio of all risks associated with the surgery. However, the forms do not reveal that buttonholing of the skin flap on both sides, burning the skin with electro-cautery, and inadequately obtaining he-mostasis were complications that were either contemplated or discussed prior to the procedure. Further, the record does not reveal that Dr. Downing disclosed to Mr. Cascio the risk of the additional surgeries that were performed on Mr. Cascio after the medical error. Specifically, the patient consent form prepared by Dr. Downing indicated that an attachment for risks identified by the Louisiana Medical Disclosure Panel was included. Additional risks were noted on the form and were listed as “infection, bleeding, pain, and recurrence.”

Dr. Downing submits that Dr. Walsh, a defense witness, stated that Mr. Cascio’s injuries are “known complications” of the surgery to which he consented. However, Dr. Stolier testified that while burning through the skin is a “known | incomplication” of the mastectomy, it is not an expected complication of the procedure. Nevertheless, the applicable standard of care requires a physician to look for known complications of medical procedures, to take notice of them, act upon patient information related by other physicians, and assist patients in the management-of post-operative medical problems. Turner v. Stassi 33,022, p. 6 (La. App. 2 Cir. 5/10/00), 759 So.2d 299, 304.

In the instant case, Dr. Downing failed to advise Mr. Cascio of the risk of buttonholing of the skin, disfiguring scars, or additional surgeries. Dr. Friley testified that the additional scarring suffered by Mr. Cascio would not have resulted had Dr. Downing carefully performed the pro-' cedure. Dr. Downing has failed to prove that the materialized risks endured by Mr. Cascio were known complications to which Mr. Cascio consented. Also, Dr. Downing has not established that the medical errors that resulted from a failure to carefully perform the surgery were within the standard of care. Therefore, Dr. Downing’s argument that Mr. Cascio consented to a known complication is without merit. We find no error in the trial court’s decision.

BIAS OF MEDICAL REVIEW PANEL

Dr. Downing alleges that the medical review panel was tainted and the opinion was prejudiced by the failure of Dr. Arrillaga to recuse himself from the panel. Dr. Downing contends that as a result of his testimony in a prior matter, Dr. Arril-laga faced disciplinary action. Dr. Downing asserts that the bias against him was further evidenced in trial by testimony that Dr. Arrillaga had an axe to grind with Dr. Downing. Dr. Downing also maintains that Drs. Arrillaga and Friley were partners operating in the same office to further support his allegations that the panel was biased.

InClaims alleging medical malpractice are governed by La.Rev.Stat. 40:1299.41, et seq. Under the Louisiana Medical Malpractice Act, all medical malpractice claims against qualified health care providers must be submitted to a medical review panel for consideration. La.Rev.Stat. 40:1299.47(A)(1). Further, no civil action against a qualified health care provider or its insurer may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to the Act. La. Rev.Stat. 40:1299.47(B)(l)(a)(i).

The medical review panel is composed of one physician selected by the plaintiff and one physician selected by the defendant. La.Rev.Stat. 40:1299.47 C(3)(f)(ii). A third health care provider panel member is then selected by the first two members. La. Rev.Stat. 40:1299.47(C)(3)(d). Each panelist is required to take an oath swearing to perform his duties without partiality or favoritism and to recognize that he represents neither side. La.Rev.Stat. 40:1299.47(0(5).

The proper method to challenge a medical review panelist is by motion to the trial court. Ortego v. Jurgelsky, 98-1622, p. 11 (La.App. 3 Cir. 3/31/99), 732 So.2d 683, 689. Therefore, as a dispositive issue, we must consider whether Dr. Downing has made a timely challenge to the medical review panelists. In Moore v. Wal-Mart, Inc., the plaintiffs alleged that the jury was tainted by the testimony of Dr. Shames who appeared on the medical review panel because the defendant had been a resident under Dr. Shames; however the plaintiffs did not make any objections at trial nor did they make any motion for the trial court to rule on the issue. 98-1806, p. 5 (La.App. 4 Cir. 3/10/99), 729 So.2d 187, 189-90. This Court found the allegations of taint without merit and opined that the plaintiffs had | ^adequate time prior to the trial to have discovered this information and that the proper time to raise this issue was at the medical review panel level. Id.

Dr. Downing raised an objection to the panel’s composition after the panel rendered its decision. Further, Dr. Downing offered no evidence at trial to establish that he was prevented, prior to the rendition of the panel opinion, from learning of the alleged bias. Therefore, the trial court did not err in deciding that the challenge was untimely. As to the trial court’s finding of no conflict, we pretermit discussion of this issue because we find the challenge was untimely.

DAMAGES

The standard of review for damage awards requires a showing that the trier of fact abused the great discretion accorded it in awarding damages. Adler v. American Nat. Property and Cas. Co., 99-3182, p. 5 (La.App. 4 Cir. 9/20/00), 769 So.2d 698, 701-02. This determination is made with consideration to the individual circumstances of the injured plaintiff. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). After an analysis of the facts and circumstances peculiar to the particular case and the particular plaintiff, an appellate court may conclude that the award is inadequate (or excessive). Davis v. Louisiana Power & Light Co., 00-13 (La.App. 5 Cir. 5/17/00), 762 So.2d 229, 236-37; Theriot, 625 So.2d at 1340. Only then does the appellate court resort to prior awards, and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion. Davis, 00-13, 762 So.2d at 237; Theriot, 625 So.2d at 1340. Further, for an appellate court to reduce or increase an award of general damages, the award must be so low or high in proportion to the injury that it “shocks the conscience.” Davis v. Allstate Property & Cas. Ins. Co., 05-0980, p. 13 (La.App. 4 Cir. 9/13/06), 941 So.2d 602, 610.

11sIn his fourth and final assignment of error, the appellant submits that the trial court’s assignment of damages was erroneous. The trial court made a special damage award of $8,372.89 for the medical bills that the parties stipulated to. Also, the court awarded general damages in the amount of $60,000.

Dr. Downing’s breach caused Mr. Cascio to incur medical expenses from medical treatment that he, more probably than not, would not have received had the breach not occurred, which supports the trial court’s special damage award. Further, we find that the trial court’s award of $60,000 for Mr. Cascio’s disfigurement and pain and suffering is not “beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances,” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). The trial court has great, even vast, discretion in the assessment of general damages. Id., 623 So.2d at 1260-61. When Mr. Cascio consulted Dr. Downing, one surgery was contemplated. However, the evidence shows that the breach in the standard of care required Mr. Cascio to undergo two additional procedures. Mr. Cascio had hematomas removed from his chest on several occasions. Also, Mr. Cas-cio was a body builder and suffered disfiguring scars on chest; he felt that the visible scars on his chest were unattractive. As a result of the breach, Mr. Cascio endured eleven additional months of pain and suffering. Therefore, given the facts and evidence in the case at bar, we find that the trial court’s damage award is not an abuse of discretion.

DECREE

Accordingly, we conclude that the trial court was not manifestly erroneous in its decision that Dr. Downing breached the applicable standard of care and that the breach was a cause-in-fact of plaintiffs damages. Also, the trial court’s award |uof damages is not an abuse of discretion. The judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Susan HAYNE v. WOODRIDGE CONDOMINIUMS, INC., The Woodridge Condominium Association, Inc. and State Farm Fire and Casualty Company.
    No. 06-CA-923.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.

      Frank B. Hayne, III, New Orleans, Louisiana, for Plaintiff/Appellant.
    Darren A. Patín, David K. Persons, Me-tairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

| ¡¿Plaintiff, Susan Hayne, appeals the trial court’s June 12, 2006 judgment granting the Motion for Summary Judgment filed by defendants, The Woodridge Condominium Association, Inc. (“the Association”) and State Farm Fire and Casualty Company (“State Farm”), and dismissing plaintiffs claims against them. For the reasons which follow, we affirm.

FACTS

The Woodridge Condominiums located in Metairie, Louisiana, are comprised of twenty units. On July 30, 1982, plaintiff purchased unit 205 and she remained the owner of this unit until she sold it in November of 2000. Each unit owner is a member of the Woodridge Condominium Association, Inc., which is governed by written declarations and by-laws. In accordance with the declaration, by-laws, and state law, the Association purchased a “Condominium/Association” ^insurance policy from State Farm. The policy relevant to this litigation was in effect from January 5, 1999 through January 5, 2000. On or about February 24, 1999, a fire occurred at the Woodridge Condominiums and completely destroyed each and every unit in the building containing plaintiffs unit. According to defendants, the condominiums were restored to tenantable condition on or about October 1, 2000.

On January 4, 2001, Ms. Hayne filed suit against defendants, asserting that: 1) she was improperly assessed condominium fees and assessments, because representatives of Woodridge had informed her that condominium fees and assessments would be suspended during the time that occupancy was not possible due to rebuilding and repair; 2) that, as an insured under the State Farm policy, she was entitled to reimbursement for her loss of rental income during the time that her unit was uninhabitable; 3) that defendants failed to complete restoration of the condominium building and units in a reasonably prompt manner; and 4) that she is entitled to penalties, attorney fees, and emotional distress damages caused by the defendants’ conduct. Defendants answered the suit and asserted several affirmative defenses, including that plaintiff was not individually insured under the State Farm policy.

On August 1, 2005, the Association and State Farm filed a Motion for Summary Judgment, seeking dismissal of plaintiffs claims against them. In their motion, defendants asserted that the “Condominium/Association” insurance policy in effect at the time of the fire only provided property and liability insurance coverage to the named insured, The Woodridge Condominium Association, Inc. They argued that the insurance policy did not provide personal coverage to the | individual owners, such as Ms. Hayne, and that any personal property owned by the unit owners had to be insured separately. They further contended that plaintiff had no factual support for her claim that the condominium fees and assessments were to be suspended during the time the property was uninhabitable or that these fees were waived. Finally, they asserted that the condominiums were rebuilt and restored in a reasonably timely manner, and they provided an affidavit from James Salvant, a general contractor, in support of their position. Plaintiff filed an opposition to defendants’ Motion for Summary Judgment on March 27, 2006.

The Motion for Summary Judgment came for hearing on May 23, 2006. Counsel for defendants appeared at the hearing, but there was no appearance on behalf of plaintiff. At the hearing, the trial judge opined that he did not believe any argument was necessary and, based on the pleadings alone, he granted the Motion for Summary Judgment filed by defendants and dismissed plaintiffs claims against them. A judgment reflecting this ruling was signed by the trial judge on June 12, 2006. It is from this decision that plaintiff appeals.

DISCUSSION

It is well settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Nucdo v. Robert, 99-1327 (La.App. 5th Cir.04/25/00), 761 So.2d 84, 87, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544. A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, show that there is no genuine issue of material fact such that the mover is entitled to | ¿judgment as a matter of law. LSA-C.C.P. art. 966(B). Summary judgment procedure is favored, and shall be construed, as it was intended, to secure the just, speedy, and inexpensive determination of every action. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, 195; LSA-C.C.P. art. 966(A)(2).

The party bringing the summary judgment motion bears the burden of proof. LSA-C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial, the mover’s burden on the motion for summary judgment does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Id.; Cage v. Road Dist. No. One of Jefferson Parish, 04-1470 (La.App. 5 Cir. 5/31/05), 904 So.2d 863, 865. Then, the burden shifts to the adverse party to produce factual support sufficient to show that she will be able to meet her evidentia-ry burden of proof at trial. LSA-C.C.P. art. 966(C)(2). The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Id.

On appeal, plaintiff asserts several arguments in support of her position that the trial court erred in granting defendants’ Motion for Summary Judgment. In her first assignment of error, plaintiff asserts that the trial judge’s decision was erroneous because it was “based on an unverified, uncertified and incomplete copy of the insurance policy at issue.” She argues that the copy of the policy submitted in support of defendants’ motion failed to include portions that might include coverage provisions applicable to plaintiff. In response, defendants state that the insurance policy attached to their Motion for Summary Judgment was accurate and was a genuine copy of the insurance policy issued to the Association by State Farm. They further assert that a certified copy of the policy was available at the | shearing on the motion, and that there is nothing in the record to call the authenticity of the policy into question.

On a motion for summary judgment, a trial judge may consider uncerti-fied insurance policies that are filed into the record as competent evidence, where nothing in the record calls the authenticity of the policy into question. Grelle v. Youngblood, 96-2210 (La.App. 4 Cir. 3/26/97), 691 So.2d 279, 282, writ denied, 97-1287 (La.9/5/97), 700 So.2d 510; Adams v. Arceneaux, 00-1440 (La.App. 1 Cir. 6/22/01), 809 So.2d 190, 195.

In the present case, plaintiff has not provided any evidence that the copy of the policy attached to defendants’ motion is inaccurate, altered, or unreliable. Further, she does not specify what policy provisions, if any, are missing from the copy of the policy or how they would be pertinent to her case. Rather, she offers mere speculation that something pertinent may be missing. Further, although the record does not indicate what discovery has taken place in this litigation, this case has been pending for several years and there is no evidence to suggest that plaintiff was unable to obtain a certified copy of the policy at issue.

Our de novo review of the Motion for Summary Judgment, the attached insurance policy, and the entire record, does not reveal any evidence or other reason to doubt the authenticity of the copy of the insurance policy attached to defendants’ motion. Plaintiff cannot prevail on this issue by asserting mere speculation that something pertinent to her case could have been excluded from the copy of the insurance policy submitted in support of defendants’ motion. Accordingly, we find that the trial court did not err in considering the copy of the insurance policy submitted by defendants, and this assignment of error is without merit.

17In her second assignment of error, plaintiff contends that summary judgment should not have been granted in favor of defendants because Mr. Salvant was an unqualified witness to opine in areas in which he has no training, experience, or expertise. In her third assignment of error, plaintiff argues that summary judgment was improper in this case because it failed to recognize or give effect to LSA-R.S. 9:1123.112 G of the Louisiana Condominium Act, which requires that a condominium be promptly repaired and replaced by its association. These assignments are related and will be addressed together.

In plaintiffs petition, she alleges that defendants did not restore or rebuild the condominium units in a reasonably prompt and timely manner, in violation of LSA-R.S. 9:1123.112 G, which provides in pertinent part:

Any portion of the condominium damaged or destroyed shall be repaired or replaced promptly by the association ...

In support of their Motion for Summary Judgment, defendants provided an affidavit from James Salvant, who is a general contractor and owner of Pro Builders and Restoration of LA, L.L.C., as well as his resume. Defendants contend that he is an expert in building construction and restoration. In his affidavit, Mr. Salvant set forth a timeline of many of the steps taken to rebuild and restore the Woodridge Condominiums. Mr. Salvant opined that, based on his experience, the Association and State Farm handled the fire loss, repair, and replacement of the property in a professional and timely manner.

In opposition to the defendants’ motion and on appeal, plaintiff contends that Mr. Salvant is a “simple contractor” and that the opinions in his affidavit are outside his expertise and without foundation. She further asserts that since Mr. Salvant’s affidavit should not have been considered, the evidence in support of defendants’ motion did not show that the requirements of LSA-R.S. 9:1123.112 G |swere met. Defendants respond that Mr. Salvant is indeed an expert in building construction and restoration, and that neither his expertise nor his qualifications were ever properly challenged by plaintiff via a Dau-beH motion, deposition, or competing expert opinion.

In Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226, 235, the Louisiana Supreme Court held that expert opinion testimony in the form of an affidavit or deposition can be considered on a motion for summary judgment, and stated as follows:

Although it is true that an expert is subject to cross-examination at a deposition, affidavits are subject to challenge as well, by way of a Daubert hearing, a motion to strike, or counter affidavits. Further, it is impractical for a party to be required to depose his or her own expert in order for that expert’s opinion to be admissible at the summary judgment stage.

If the movant for summary judgment produces convincing proof by affidavits or other evidence of facts upon which the motion is based, and no counter-affidavits or other proof are offered by the opposing party to contradict that evidence, the conclusion may be justified that there is no genuine issue as to the facts so proved. Vanderbrook v. Coachmen Industries, Inc., 01-0809 (La.App. 1 Cir. 5/10/02), 818 So.2d 906, 910.

In the present case, defendants submitted an affidavit from their expert, Mr. Salvant, to show that defendants restored and rebuilt the condominiums in a reasonably prompt and timely manner, as required by LSA-R.S. 9:1123.112 G. They provided his resume as well, which shows that Mr. Salvant has been involved in the construction industry for several years and has experience in insurance restoration and remodeling of residential condominiums and in analyzing insurance claims. Courts may permit affidavits to be opposed by depositions, answers to interrogatories or further affidavits. LSA-C.C.P. art. 967(A). However, at no time |9did plaintiff properly challenge Mr. Salvant’s qualifications or submit an affidavit from a countervailing expert indicating that defendants’ actions were not reasonably prompt and timely.

Claiming that an expert is not qualified without any facts or competing expert opinion is insufficient to withstand summary judgment. Further, we note an absence of factual or evidentiary support for plaintiffs position that defendants violated LSA-R.S. 9:1123.112 G by failing to restore the condominium property in a prompt and timely manner. Accordingly, based on our de novo review, we find that plaintiffs second and third assignments of error are without merit.

In her fourth and final assignment of error, plaintiff asserts that the trial court’s ruling failed to recognize that plaintiff, as a unit owner and member of the Association, has a claim against the owners, manager, and insurer of the condominium complex arising from an alleged failure of management of the common elements, which constitutes an insured risk. She further asserts that she was an “insured” under the provisions of the insurance policy issued to the 'Association by State Farm and thus, she is entitled to the coverage sought in her petition. We disagree.

LSA-R.S. 9:1123.112(A)(1) provides that a condominium association must maintain property insurance on the common elements and units, exclusive of improvements installed in units by unit owners. LSA-R.S. 9:1123.112(0(1) provides that each unit owner is an insured under the association’s policy with respect to liability arising out of his ownership of an individual interest in the common elements or membership in the association. (Emphasis added.)

An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation set forth in the Louisiana Civil Code. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 101180, 1183. Language in an insurance policy which is clear, expresses the intent of the parties and does not violate a statute or public policy, must be enforced as written. LSA-C.C. arts. 2045-2057. If the insurance policy is susceptible to two or more reasonable interpretations, 'then it is considered ambiguous and must be liberally interpreted in favor of coverage. Newby v. Jefferson Parish School Bd., 99-98 (La.App. 5th Cir.6/1/99), 788 So.2d 93, 96.

The State Farm policy at issue in this case provides that the Association is the only named insured under the policy. The insurance policy provides coverage for the replacement costs of the common elements and the condominium units, which benefits each owner as a member of the Association. However, the policy does not indicate that unit owners are entitled to individual coverage for their personal losses, such as rental income. In fact, the policy specifically excludes from coverage the personal property and/or business property of the individual owners. The policy is clear and unambiguous in this regard, and it must be enforced as written. Further, the Association’s declaration provides that each unit owner is responsible for obtaining insurance for the contents of his/her own unit.

Under the clear terms of the State Farm policy issued to the Association, replacement of plaintiffs condominium unit is covered. However, there is no provision in the policy indicating that there is coverage for her personal or business property, including loss of rental income or other damages sought by plaintiff. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Vintage Contracting, L.L.C. v. Dixie Bldg. Material Co., Inc., 03-422 (La.App. 5 Cir. 9/16/03), 858 So.2d 22, 25. |nThe clear wording of the policy does not reveal any reasonable interpretation under which the coverage plaintiff seeks could be afforded.

Our de novo review of the matter before us reveals that there is no genuine issue of material fact and that defendants are entitled to judgment as a matter of law. Defendants have shown an absence of factual support for plaintiffs claims against them, and plaintiff has not produced sufficient evidence to show that she will be able to meet her evidentiary burden at trial. Accordingly, the trial judge was correct when he granted summary judgment in favor of defendants and dismissed plaintiffs claims against them. Thus, we affirm the judgment of the trial court.

DECREE

For the reasons set forth above, we affirm the judgment of the trial court granting defendants’ Motion for Summary Judgment and dismissing plaintiffs claims against them. All costs of this appeal are to be paid by plaintiff.

AFFIRMED.

      . Plaintiff originally filed suit in Civil District Court for the Parish of Orleans. However, on May 13, 2002, the trial court granted an Exception of Improper Venue filed by the defendants. Thereafter, the case was transferred to the 24th Judicial District Court for the Parish of Jefferson via a judgment dated May 13, 2003.

      . The Motion for Summary Judgment was originally set for hearing on September 20, 2005, but it was continued due to Hurricane Katrina. Subsequently, the motion was set for March 13, 2006 and then March 28, 2006, but it was continued on both occasions at plaintiff's request.


author: GREG G. GUIDRY, Judge.

text:
    STATE of Louisiana v. Thomas A. KERLEC.
    No. 06-KA-838.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Juliet Clark, Thomas S. Block, Trial Counsel Assistant District Attorneys, Gretna, Louisiana, for PlaintiffiAppellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and GREG G. GUIDRY
   GREG G. GUIDRY, Judge.

| ?iThe Defendant, Thomas A. Kerlec, appeals from his guilty plea convictions on five counts and his respective sentences. For the reasons which follow, we affirm the convictions, amend the sentence on count two impart, and, as amended, affirm the sentences.

The Jefferson Parish District Attorney filed a six-count bill of information against the Defendant. Count one charged the Defendant with possession of a firearm while in possession of a controlled dangerous substance, diazepam, 3,4-methylenedi-oxyamphetamine (MDMA), methamphetamine and alprazolam, a violation of La. R.S. 14:95(E). Count two charged the Defendant with possession with intent to distribute marijuana, a violation of La. R.S. 40:966(A). Count three charged the Defendant with possession of MDMA, a violation of La. R.S. 40:96(>(C). Count four charged the Defendant with possession of methamphetamine, a |aviolation of La. R.S. 40:969(C). Count five charged the Defendant with possession of diazepam, a violation of La. R.S. 40:969(C). Count six charged the Defendant with possession of alprazolam, a violation of La. R.S. 40:969(C). The Defendant pled not guilty at arraignment. He also filed a motion to suppress.

At the hearing on the motion to suppress, Detective David Barrett of the Ken-ner Police Department testified that, in October of 2004, he received a telephone call from an anonymous source that a white male named “Thomas” was selling marijuana and prescription medication at his residence, located at 1508 Compromise Street. The source advised Detective Barrett that Thomas received “a couple of pounds” of marijuana per week. After checking the registration of a vehicle parked under the carport at that address, Detective Barrett learned that the vehicle was registered to Thomas Kerlec, 1508 Compromise Street, Kenner, Louisiana. He subsequently obtained a photograph of Thomas Kerlec.

On November 10, 2004, Detective Barrett and three other officers went to the residence for further investigation. The officers saw surveillance cameras outside the residence. As they were about to walk towards the residence, a white male, whom Detective Barrett recognized as Thomas Kerlec, exited the front door. Detective Barrett identified himself as a Kenner Police Officer and advised him of the complaint he had received. Detective Barrett testified that a strong odor of burnt marijuana emanated from the Defendant and the residence. When Detective Barrett asked the Defendant if he possessed any illegal weapons or narcotics on his person or in his residence, the Defendant darted inside the residence and Detective Barrett followed. Detective Barrett observed a partially smoked hand-rolled cigarette on an ashtray in plain view. Believing that the cigarette contained marijuana, Detective Barrett placed the Defendant under arrest for possession of marijuana.

|4Petective Barrett advised the Defendant of his rights. The Defendant said he understood those rights, and then said that if the police would leave, he would “throw it all away.” The Defendant also said that “times were hard and he was selling marijuana to supplement his income.” While the officers waited with the Defendant, Detective Barrett obtained a search warrant. During the execution of the warrant, the police seized an assortment of drugs, paraphernalia and weapons. They found a prescription bottle containing two tablets of ecstasy and six tablets of hydro-codone. Another prescription bottle contained four and one-half tablets of zanax (alprazolam), and five tablets of diazepam. They also found two trays containing marijuana, five bottles containing partially smoked marijuana cigarettes, and five plastic bags of marijuana. There were two separate plastic bags containing a crystalline substance, which tested positive for crystal methamphetamine. The officers also found a smoking apparatus, seven smoking pipes, a box of rolling papers, a deodorant can with a false bottom, two scales, two trays, a pack of sandwich bags, and an ashtray. In a locked box next to the Defendant’s recliner, the officers found a Smith & Wesson handgun and a Browning .380 caliber handgun.

The trial judge denied the Defendant’s motion to suppress the statement and the evidence. On January 9, 2006, the State dismissed count four, possession of methamphetamine, and amended count one to reflect that the Defendant possessed a firearm while in possession of methamphetamine, deleting reference to the other drugs from the charge. On January 23, 2006, the Defendant pled not guilty to the amended bill. However, on January 24, 2006, the Defendant withdrew his not guilty plea and pled guilty as charged to all remaining counts. On February 7, 2006, the trial judge imposed the sentences. According to the minute entry/commitment, the Defendant was sentenced to six years at hard labor on count | sone, with the first five years to be served without benefit of probation, parole or suspension of sentence. The Defendant was sentenced to six years on count two and five years on the remaining three counts. The sentences were ordered to run concurrently. Thereafter, the Defendant filed a motion to reconsider sentence, which the trial judge denied. This timely appeal follows.

In his only assigned error, the Defendant contends that his six year sentence “on the gun charge” is excessive because he was a first offender, he showed remorse for his crime, he was gainfully employed, and supported his niece. According to the Defendant, he should have received the minimum five year sentence.

The State responds that the Defendant’s sentences on counts one and two are not excessive. The State points out that the transcript appears to indicate that the trial judge actually did sentence the Defendant to five years imprisonment on count one. The State also notes that the sentence may be indeterminate if it is found to be unclear whether the Defendant received a five or six year sentence on count one. The State further contends that the Defendant’s sentence on count one is actually illegally lenient because it was imposed without restrictions or a fine, both of which are mandatory under the applicable statute.

La. R.S. 14:95(E), the statute applicable to the Defendant’s charge on count one, illegal carrying of weapons, provides for a fine of not more than ten thousand dollars and imprisonment at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence.

lf;On February 7, 2006, after the Defendant stated he was ready for sentencing, the trial judge imposed sentence as follows:

THE COURT:
Okay. That doesn’t say it. I can’t remember which one I do which on. The 95(E) is five years in the Department of Correetions-
[DEFENSE COUNSEL]:
Six on the other counts.
THE COURT:
—six-—okay. The 966(A) Schedule— with an intent to distribute marijuana is going to be six years in the Department of Corrections, the first five without benefit of probation, parole or suspension of sentence. Count three, Schedule — or possession of MDMA, is five years in the Department of Corrections. Let me get through these and then I’ll make them all concurrent, I think. D.O.C., number five, which is possession of diazepam, five years in the Department of Corrections; number six, possession of alprazolam, five years in the Department of Corrections; all of which will run currently with each other. He will get credit or time served.

Upon review, we find no ambiguity in the imposed sentence and find that the trial court imposed a five year sentence on count one and a six year sentence on count two. This conclusion is supported by the facts surrounding its imposition, as indicated in the waiver of rights form, and the applicable law. To hold otherwise would be to assume that the trial court intended to impose a sentence not permitted by law.

The waiver of rights form completed by the Defendant and his attorney does not reflect itemized sentences for each count. It simply provides that the Defendant would receive a six year sentence, with the first five years to be served without benefit of probation or parole. Since the sentencing provision on the first count, La. R.S. 14:96(E), requires that the sentence be imposed with restrictions (without benefit of parole, probation or suspension), the trial court could not have legally imposed a six year sentence with only five of the years to be served without |7benefit. Cor-rectively, the sentencing provision on count two, La. R.S. 40:966(B)(3), does not authorize the trial court to impose a sentence with restrictions. Thus, the court could not have imposed a six year sentence on this count and ordered five years to be served without benefit of parole, probation or suspension of sentence. The only legal sentence that could have been imposed to implement the plea agreement was, as imposed, a sentence of five years at hard labor on count one, without benefit, and six years at hard labor on count two.

As acknowledged by the State, we find that the trial court did, according to the sentencing transcript, ultimately impose a five year sentence for count one, although it was discussed differently during the guilty plea colloquy. In view of this finding, the Defendant’s assignment of error, contending that his sentence on count one was excessive because the five year minimum sentence was not imposed, is rendered moot.

Further, upon review, we find that the sentence imposed on count two, six years at hard labor, with the first five to be served without benefit of probation, parole or suspension of sentence, is beyond the trial court’s authority. La. R.S. 40:966(B)(3), under which the Defendant was sentenced on count two, does not deny parole or probation eligibility or eligibility for suspension of sentence. The trial court lacked authority to place such restrictions on the first five years of the imposed sentence. Therefore, we must amend the sentence, by deleting the [^restrictions improperly placed on it, to comport with law. State ex rel Ducre v. State, 04-0988 (La.10/15/04), 883 So.2d 1054.

The State argues that the Defendant’s sentences on counts one and two are illegally lenient because in neither case did the trial court impose a fine, which the State argues is mandatory. La. R.S. 14:95(E) provides for “a fine of not more than $10,000.” La. R.S. 40:966(B)(3) provides for “a fine of not more than fifty thousand dollars.” While this Court has held that such a statute, providing for a fine for “not more than” a specified amount, does require a mandatory fine, State v. Clemons, 01-1032 (La.App. 5th Cir.2/26/02), 811 So.2d 1047, writ denied, State v. Phillips, 02-0866 (La.11/22/01), 834 So.2d 972, cert. denied, 538 U.S. 1063, 123 S.Ct. 2228, 155 L.Ed.2d 1117 (2003), we note that the matter is not free from doubt. See State v. Phillips, supra, Chief Justice Calogero, dissenting; State v. Francois, 06-0788 (La.App. 3rd Cir.12/13/06), 945 So.2d 865, (holding that, when the trial court does not impose a fine in a situation where the statute authorizes a fine of “not more than” a certain amount, it impliedly imposes a fine of $0 and there is no error requiring remand).

This Court, while finding the omission of the imposition of a fine in such cases to be error, has, nevertheless, as a matter of discretion, refrained from amending the defendant’s sentence to impose a fine. State v. Jackson, 04-728 (La.App. 5th Cir.12/14/04), 892 So.2d 71, writ denied, 05-0548 (La.1/9/06), 918 So.2d 1033. We find that to be the proper course of action in this case, where the State did not object at sentencing, and decline the State’s request to remand the case for imposition of a fine.

| ⅜ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). We found no errors requiring corrective action by this Court.

Accordingly, for the reasons stated above, the Defendant’s guilty plea convictions for illegal carrying of a weapon, possession with intent to distribute marijuana, possession of MDMA, possession of dia-zepam, and possession of alprazolam and his respective sentences, on count one to five years at hard labor without benefit of parole, probation and suspension of sentence, and on counts three, five, and six to five years at hard labor, with credit for time served, and all, including the sentence on count two, to run concurrently, are affirmed. The Defendant’s sentence on count two, as imposed, six years at hard labor with the first five to be served without benefit of parole, probation or suspension of sentence, is amended to delete the unauthorized restrictions, and, as amended, it is affirmed. The case is remanded for the trial court to amend the minute entry/commitment to correctly reflect the sentences as amended and affirmed herein.

CONVICTIONS AFFIRMED; SENTENCES AMENDED IN PART, AND AS AMENDED, AFFIRMED; AND CASE REMANDED.

      . There are discrepancies in the sentences between the commitment and the transcript of the sentencing hearing. In such cases the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). The sentences, as imposed by the trial judge as per the transcript of the sentencing proceeding, are discussed hereinafter.

      . It is noted that the Defendant does not specify the particular count to which the sentence pertains. Rather, the Defendant refers to the challenged sentence as the "sentence of six years on the gun charge.” Thus, although the State asserts that the Defendant is challenging his sentences on counts one and two, the reference in Defendant's brief to "the gun charge” makes it clear that he is only challenging his sentence on count one, 14:95(E), possession of a firearm while in possession of methamphetamine.

      . We note that the trial court neglected to articulate the fact that the Defendant’s sentence under La. R.S. 14:95(E) on count one was imposed without benefit of parole, probation or suspension of sentence. However, it is well settled that under La. R.S. 15:301.1 and State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, these restrictions are automatically included in any sentence where, as here, they are statutorily mandated.

      . On January 24, 2006, during the Boykin colloquy, the trial judge told the Defendant that, on count one, he would receive a sentence of six years at hard labor for possessing a firearm while possessing methamphetamine, with the first five years to be without benefit of parole, probation or suspension of sentence. On counts two and three, he would receive a sentence of six years at hard labor. On counts five and six, he would receive a sentence of five years at hard labor, with all of these sentences to run concurrently with each other. The Defendant evidently believed he had received a six-year sentence on count one, considering his argument at the hearing on the motion to reconsider sentence and in brief on appeal, asserting that his six-year sentence "on the gun charge” is excessive. There is nothing in the record to indicate why the trial judge changed the sentence actually imposed, except for the obvious reason, to comply with law.


text:
    Elvis OCON v. REGENCY MOTORS OF METAIRIE, LLC.
    No. 06-CA-834.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.

      Charlsey Wolff, New Orleans, Louisiana, Counsel for Plaintiff/Appellee.
    Collins C. Rossi, Covington, Louisiana, Counsel for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   WALTER J. ROTHSCHILD, Judge.

Lin 2003, Elvis Ocon was employed by Regency Motors of Metairie, LLC as an automobile mechanic. He suffered a work-related injury on November 24, 2003 while he was removing a tire from a vehicle. Ocon received medical treatment for his finger injury and workers’ compensation benefits which were terminated sometime in 2004. On May 10, 2004, Regency Ford filed a disputed claim for compensation alleging that the claimant was not disabled and that he had made false statements to obtain compensation benefits in violation of La. R.S. 23:1208. On May 11, 2004, Ocon filed a disputed claim for worker’s compensation seeking the continuation of benefits, penalties and attorney’s fees for the arbitrary termination of benefits. He also alleged that he required additional medical treatment as a result of the injuries sustained in the accident, including •referral to a psychiatrist and evaluation of the MRI of his thoracic spine.

IsTrial was originally scheduled for February 24, 2005. On February 22, 2005 defendant moved to continue this date, and claimant opposed the continuance. By order dated February 23, 2005, the matter was continued and was eventually tried on March 28, 2005. By judgment rendered on May 24, 2005, the trial court ruled in favor of claimant, specifically finding that claimant did not make material misrepresentations which would preclude him from the continuation of benefits. The trial court also imposed penalties and attorney’s fees on defendant based on a finding of arbitrary termination of medical treatment and benefits.

Regency Motors now appeals from this judgment on the basis of several assignments of error. For the reasons stated herein, we affirm in part and reverse in part the judgment.

Standard of Review and Applicable Law

To be entitled to workers’ compensation benefits, the claimant must prove that there was a work related accident, resulting in a disability that was caused by the accident. Wiley v. Dijon Services, Inc., 02-242 (La.App. 5th Cir.10/16/02), 831 So.2d 317, 319, writ denied, 02-2612 (La.12/13/02), 831 So.2d 990. The claimant bears the burden of establishing this causal connection by a reasonable preponderance of the evidence. Id.; Quinones v. U.S. Fidelity and Guar. Co., 93-1648 (La.1/14/94), 630 So.2d 1303, 1306-07.

The appellate court’s review of a workers’ compensation case is governed by the manifest error or clearly wrong standard. Blanchard v. Rental Service Corp., U.S.A., 05-460 (La.App. 5 Cir. 1/17/06), 920 So.2d 911, 915-16; Wiley, 831 So.2d at 318. In applying the manifest error or clearly wrong standard, the court must determine not whether the trier of factRwas right or wrong, but whether the factfinder’s conclusion was a reasonable one. Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375, 380; Hookfin v. Advantage Nursing Services, Inc., 03-340 (La.App. 5 Cir.10/15/03), 860 So.2d 57, 59. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the court may feel that its own evaluations and inferences are as reasonable. Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993); Hookfin, 860 So.2d at 59. Thus, if there are two permissible views of the evidence, a factfinder’s choice of them can never be manifestly erroneous or clearly wrong. Chaisson, 708 So.2d at 381; Hookfin, 860 So.2d at 59. Accordingly, if the factfin-der’s findings are reasonable in light of the record, the appellate court may not reverse or modify the judgment. Chaisson, 708 So.2d at 381; Hookfin, 860 So.2d at 59.

La.R.S. 23:1208 A provides that “[i]t 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.” La.R.S. 23:1208 E provides that, “[a]ny employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.”

La. R.S. 23:1208 requires proof of 1) a false statement or representation, 2) made willfully, 3) for the purpose of obtaining or defeating any benefit or payment. Parker v. ADM Milling Co., 01-649 (La.App. 5 Cir.11/27/01), 804 So.2d 120, 125; Scuderi v. Crazy Johnnie Cafe, Inc., 02-243 (La.App. 5 Cir.10/16/02), 831 So.2d 1037, 1049. In | .¡determining whether the statement was made willfully in an attempt to obtain or defeat benefits, “[t]he relationship between the false statement and the pending claim will be probative_” Parker, 804 So.2d at 125; Scuderi 831 So.2d at 1049. False statements that are inadvertent or inconsequential will not result in forfeiture. Parker, 804 So.2d at 125; Scuderi, 831 So.2d at 1049.

Further, La. R.S. 23:1208.1 allows an employer to inquire about previous injuries sustained by the employee and the employee’s failure to answer truthfully shall result in forfeiture of benefits, provided the failure to answer directly relates to the medical condition for which a claim for benefits is made. By its express terms, LSA-R.S. 23:1208.1 provides for forfeiture under three circumstances. There must be (1) an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute. The employer has the burden of proving each of the elements required by the statute. The lack of any one of the elements is fatal to the employer’s avoidance of liability under the statute. Nabors Drilling USA v. Davis, 03-136 (La.10/21/03), 857 So.2d 407, 414.

Forfeiture of worker’s compensation benefits is a harsh remedy. Marler v. New Orleans Area Council, Boy Scouts of America, 01-1167 (La.App. 5 Cir.3/13/02), 815 So.2d 131, 135. Because both La. R.S. 23:1208 and 23:1208.1 are penal in nature, they must be strictly construed, both substantively and in the penalty provisions. Parker, 804 So.2d at 125; Scuderi, 831 So.2d at 1049; Gibbs v. Delasandro Painting and Decorating, 03-1144 (La.App. 5 Cir.2/10/04), 868 So.2d 804, 810; Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214, 1218. The issue of whether an employee has forfeited his right to workers’ eompensation | (¡benefits is a factual question that should not be disturbed on appeal absent manifest error. Parker, 804 So.2d at 125; Scuderi, 831 So.2d at 1049.

Impeachment Evidence

Regency Motors first contends on appeal that the workers’ compensation judge abused his discretion in excluding from evidence certain surveillance materials, sought to be introduced at trial. The record in this matter contains the exhibit and witness lists and pre-trial statement filed by defendant Regency Motors on March 28, 2005, the morning of trial. The exhibit list contained surveillance reports and videotapes which defendant planned to introduce at trial, and the witness list contained the name of an investigator who prepared the reports. Counsel for claimant filed a motion to exclude this impeachment evidence sought to be introduced by defendant on the basis that the pre-trial statement and exhibits list were not timely submitted or filed.

Prior to trial, the court held a hearing on this matter, and granted claimant’s motion to exclude both the surveillance materials and the testimony of the investigator from introduction at trial. After a review of the record in this matter, we find no abuse of the trial court’s discretion in this ruling.

The record in this case contains a Scheduling Conference Order wherein it was ordered that discovery be completed by November 30, 2004 and a pre-trial statement be filed with the court no less than ten days prior to a pre-trial conference scheduled for December 14, 2004. The record indicates that claimant filed his pretrial statement on December 4, 2004 |7pursuant to order of the court. As previously stated, defendant filed its pre-trial statement on March 28, 2005, the morning of trial.

Although defendant contends that counsel for claimant learned of the existence of the surveillance materials at the claimant’s deposition in November of 2004, defendant did not timely submit a pre-trial statement or an exhibit list containing this information. Rather, the record indicates that counsel for claimant received the pre-trial statement and witness and exhibits lists on Thursday, March 24, 2005, immediately before the Easter holiday weekend and four days before the trial date of Monday, March 28, 2005. Further, on motion of defendant, trial had been previously continued over the objection of counsel for claimant, and the record indicates that counsel for claimant requested the impeachment evidence at this time and defendant failed to produce it in a timely manner.

La. Workers’ Compensation Rules and Regulations Sections 6003-6007 require the parties to submit a pre-trial statement. “Because of the need to insure an orderly disposition of cases, the workers’ compensation judge is given broad discretion to determine whether or not to modify a pretrial order listing witnesses. Absent an abuse of discretion, the decision of the trier of fact will be upheld.” Ratliff v. Brice Bldg. Co., 03-624 (La.App. 5 Cir. 11/12/03), 861 So.2d 613, 616, citing Wright v. Wendy’s International, Inc., 01-2758 (La.App. 1 Cir. 12/20/02), 836 So.2d 325, 327.

Under the circumstances presented here, where defendant failed to file its pretrial statement and exhibit list until the date of trial and only submitted the requested evidence to opposing counsel four days before trial and immediately prior to a holiday weekend, we find no abuse of the trial court’s discretion in striking the introduction of these exhibits and testimony.

\ ¿Forfeiture of Benefits

Regency Motors, in its disputed claim for compensation, contends that claimant made false statements in an effort to obtain worker’s compensation benefits in violation of La. R.S. 23:1208 and has therefore forfeited his right to benefits under the workers’ compensation statute. In its pre-trial statement filed on the day of trial, Regency Motors cited for the first time the provisions of La. R.S. 23:1208.1 regarding the employee’s assertion of false statements in a medical questionnaire relating to his previous injuries sustained.

The trial court found that as the contention involving violations of La. R.S. 23:1208.1 was not properly raised by defendant in discovery, and was not asserted for the first time until the day of trial, counsel for claimant had no notice of the issue and no opportunity to prepare a defense to the claim. Further, the trial court found no prejudice to the employer in this case because claimant listed a prior employment-related back injury on the Second Injury Fund Questionnaire. The trial court noted that the employer’s representative testified that he failed to question Ocon about the “back injury,” despite the employer’s opportunity to do so. The trial court also noted limited education and his limited ability with written English. Based on these considerations, the trial court found that the claimant did not violate La. R.S. 23:1208.1.

With regard to the application of La. R.S. 23:1208, Regency Motors contends that the claimant misrepresented his prior medical history both in his deposition and in the Second Injury Fund Questionnaire he completed at |9Regency Motors. Specifically, defendant contends claimant failed to divulge an injury he sustained while working at Wal-Mart in 1999. Further, defendant contends that the claimant failed to divulge that he had previously sustained numerous injuries, including injuries in two motor vehicle accidents and other injuries. Defendant also points to Ocon’s claim which sought benefits for disabilities related to anxiety and panic attacks, and contends that Ocon failed to divulge that this condition existed prior to his injury at Regency Motors.

The workers’ compensation judge found that the claimant did not willfully make material misrepresentations about his pri- or medical condition to warrant a forfeiture of benefits. Our review of the record supports this conclusion. The record in this case indicates that in the Second Injury Fund Questionnaire completed on November 5, 2003, claimant listed a previous injury to his upper back due to an injury he sustained in an accident in 2002 at Crescent City Toyota. He was not questioned further about this injury by his employer. Claimant testified that he has problems with the English language and that he does not distinguish between upper and lower back injuries.

Although claimant admitted that he suffered injury in a work-related accident at Wal-Mart in 1999, he stated he did not consider that to be a “big injury” because it resolved quickly. Also, he stated that he interpreted the question regarding prior injury sustained to mean the most recent injury, and he therefore did not list each and every injury he sustained which he considered to be insignificant. This response is more in the nature of miscommu-nication or misunderstanding and does not constitute a willful misrepresentation of his condition. Thus, although we find certain hnfalsehoods and inconsistencies in claimant’s statements of his medical history, we fail to find his statements to be deliberately or intentionally false. Under these circumstances, we find no manifest error of the workers’ compensation judge in failing to find a forfeiture of benefits is warranted in this case.

Continuation of Benefits

Regency Motors next contends that the trial court erred in finding that Ocon had a continued disability which would entitle him to a continuation of workers’ compensation benefits. Specifically, defendant argues that Ocon failed to establish that he suffered more than an injury to his finger in the accident at Regency Motors.

The parties stipulated at trial that Elvis Ocon was involved in a work-related accident while employed at Regency Motors and that he sustained an injury to his left finger as a result of the accident. With regard to claimant’s alleged back injury, Ocon testified that his injury occurred when, as a result of back pain, he dropped the tire he was changing and that the tire bounced up and struck his finger. Although defendant disputes this version of the accident as unwitnessed, the evidence in the record reasonably supports Ocon’s claim of injury.

Claimant testified at trial that he told his supervisor on the day of the accident that he suffered back pain which caused him to drop the tire and injure his finger. However, he stated that the finger injury presented more of an emergency situation and he first sought medical treatment for that injury. Ocon also testified that he told Dr. Joseph Tamimie on the date of the accident about his back pain, Dr. Tamimie took x-rays of Ocon’s finger and | ] returned him to work on light duty status. However, he stated that Dr. Tamimie ignored his complaints of back pain during the first two visits.

On December 8, 2003, Ocon returned to Dr. Tamimie and continued to complain of back pain. On this date, Dr. Tamimie diagnosed claimant with a lumbosacral strain and placed him on no-work status. Ocon then selected Dr. Raul Diaz as his choice of orthopedic physicians, and he first saw Dr. Diaz on January 9, 2004. The claimant saw Dr. Diaz several times each time complaining of back and shoulder pain and on March 5, 2004, Dr. Diaz ordered a MRI of the thoracic spine. On July 9, 2004, Dr. Diaz diagnosed claimant with a thoracic herniation which was aggravated by the work-related accident on November 23, 2003. Dr. Diaz referred Ocon for an evaluation by a neurologist and a psychiatrist, but these were never authorized. Further, Dr. Diaz’ bill totaling $696.00 was not paid.

The workers’ compensation judge ordered that claimant’s indemnity benefits be restored from the date they were terminated until he is medically released to some form of employment status. This ruling may not be reversed absent a finding of manifest error.

With regard to whether Ocon complained of back pain following the accident at Regency Motors, the workers’ compensation judge apparently chose to believe the testimony of claimant that he suffered a back injury on that date. The judge apparently rejected the testimony of claimant’s supervisor who stated that claimant did not mention back pain. We find the credibility determination made by the workers’ compensation judge to be reasonable in light of the record.

Claimant testified that he previously sustained an injury to his back, but that it had resolved and he was able to return to work as a mechanic. j12There is no dispute that claimant dropped a tire while employed at Regency Motors. He alleges that he also injured his back at this time, and the medical evidence supports such a finding. Although Dr. Tamimie’s records from the date of the injury fail to mention back pain, the records show that claimant complained of back pain within two weeks of this injury. Further, Dr. Diaz, in comparing the medical records of Ocon prior to this accident, found that Ocon had aggravated a pre-existing herniated disc in the accident on November 23, 2003.

The discrepancies regarding claimant’s medical history causes us some concern. However, based on our review of the record in its entirety, especially in light of the appropriate standard of review, we cannot say the workers’ compensation judge was manifestly erroneous or clearly wrong in finding that Ocon proved causation and his entitlement to the continuation of indemnity benefits.

Penalties and Attorneys’ Fees

Regency Motors argues that because claimant is not entitled to compensation benefits due to forfeiture or failure to prove causation, he is not entitled to an award of penalties or attorney’s fees. Although we found no manifest error in findings of the workers’ compensation judge with regard to the forfeiture of benefits and the continuation of indemnity and medical benefits, we find that the judge manifestly erred in awarding claimant penalties and attorney’s fees under the facts of this case.

La. R.S. 23:1201(F) governs the imposition of penalties:

F. Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an 11samount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing.

La. R.S. 23:1201(1) governs the imposition of attorney’s fees:

I. Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:658(C) shall be applicable to claims arising under this Chapter.

Under Section 23:1201(F), unless reasonably controverted, failure to provide payment in accordance with any of the provisions of Section 1201 shall result in the imposition of penalties within the statutory limits and reasonable attorney fees. Medical benefits shall be paid timely and if not paid and not reasonably controverted, penalties and attorney fees shall result. A claim is reasonably controverted if the employer has sufficient factual and medical information to counter that presented by the claimant. See Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 890.

114In the present case, the employer commenced paying compensation and medical benefits soon after claimant’s work-related injury. However, sometime in 2004, the medical and indemnity benefits were terminated and the employer likewise refused to pay the medical bill of claimant’s choice of physicians, Dr. Raul Diaz. The basis in the record for the termination of benefits was the employer’s belief that the back injury was not job-related and that the claimant misrepresented his prior medical history. Although we failed to find sufficient evidence that the claimant made material misrepresentations sufficient to forfeit his benefits, we find that the employer had a reasonable basis to controvert Ocon’s claim that he suffered a back injury in this accident. His accident was unwitnessed and Dr. Tamimie’s repoi’ts do not indicate that he immediately reported a back injury. Further, the record indicates that there are certain discrepancies in claimant’s accident history. Thus, we find that the imposition of $6,000 in penalties for termination of medical and indemnity benefits was unwarranted.

Finally, we fail to find, under the facts of this particular case, that the claimant was entitled to an award of attorney’s fees. The record shows that the employer had a reasonable basis to question the claimant’s award of benefits, and we fail to find the employer’s actions to be arbitrary and capricious so as to subject them to the imposition of attorney’s fees.

11fiConclusion

Accordingly, we reverse that portion of the workers’ compensation judge’s judgment assessing penalties and attorney’s fees against Regency Motors. In all other respects, the judgment is affirmed. All costs of this appeal are assessed to Regency Motors.

AFFIRMED IN PART; REVERSED IN PART.