text:
    STATE of Louisiana, Appellee v. Timmie D. DAVIS, Appellant.
    No. 40,994-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Louisiana Appellate Project, by W. Jarred Franklin, for Appellant.
    Timmie D. Davis, Pro se.
    Jerry L. Jones, District Attorney, Cynthia P. Lavenspere, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   STEWART, J.

hThe defendant, Timmie Davis, was convicted of second degree murder and was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The trial court also denied eligibility for good time. For the reasons that follow, we affirm his conviction and sentence.

FACTS

On February 17, 2003, Monroe police officers responded to a report of shots being fired and found the body of Yolanda Jefferson slumped over the steering wheel of a vehicle resting against a porch. The front-left window of the vehicle was shattered and there was a gunshot wound to her head. The appellant came from the backyard with his hands in the air and blood on his right arm. He was handcuffed, advised of his rights, and asked where the weapon was. He replied that the officers should not worry about that but should instead get an ambulance for the victim.

The investigation revealed that right before the shooting the victim’s neighbor, Lameesha Jefferson, overheard the victim and Davis arguing. She looked out her window and saw the victim sitting in the vehicle and Davis tapping on the driver’s side window. When Davis tried to get into the vehicle, the neighbor saw the victim lock the doors before he could reach the passenger side door. The neighbor walked away from her window and heard the victim scream, “Timmie, Timmie, no.” The neighbor then heard a loud noise and looked out her window again. She testified that she saw Davis shoot the victim with a silver handgun. She said the car then rolled forward. Lameesha then ran outside and asked Davis what he had done. He Infold her to call 911. She said that Davis went into her house, and she stayed and watched as the victim took her last breath. Ballistics tests showed that the weapon found in the victim’s backyard was the one used in the shooting.

The appellant was charged via indictment with second degree murder and found guilty as charged in a 10-2 jury verdict. He was sentenced to life imprisonment and filed a timely motion for appeal.

DISCUSSION

Sufficiency of Evidence

Davis argues that the distance between the shooter and the victim when the shot was fired, the trajectory of the bullet, and the spent shell being ejected into the vehicle, support his statement that the gun accidentally discharged when he fell or leaned into the vehicle’s window. He further asserts that his actions immediately following the shooting are inconsistent with those of a person with murderous intentions.

The state argues that evidence of Davis’ prior beatings and threats to kill the victim prove his intent. Also, the neighbor’s observation of him standing nearby with a handgun after the shooting is sufficient to prove an intentional shooting took place.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virqinia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases 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 inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

|,tA reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

The testimony of Lameesha Jefferson that she saw Davis shoot the victim is critical to the state’s case. At trial, La-meesha demonstrated where Davis was standing, and she stated she saw him “point, point and shoot.” On cross-examination, she stated that she could see what land of gun “he was holding up, as he was shooting it, as he was firing it.” Lamee-sha also testified that prior to the shooting she heard the victim and Davis arguing, as he was trying to get into the vehicle with the victim. On cross examination, she also stated that what she thought was the first shot she heard may have been the breaking of a window. The coroner testified that the victim was shot on the left side of the head right above the ear. He further opined that the evidence shows the victim was shot at a range of under two feet. The coroner’s testimony also shows that the bullet traveled through the victim’s head in a horizontal line. Although the defense counsel argued to the jury that this trajectory would not be possible if Davis was standing outside the vehicle and the victim was seated, the eyewitness demonstrated how Davis was holding the gun when she saw him shoot the victim. The jury obviously rejected his version of the events giving rise to the shooting at issue. We find no error in that determination.

Davis also argues that since the shell casing was found on the rear floorboard of the victim’s vehicle, the physical evidence is consistent with |Rthe shot occurring as he fell or leaned into the victim’s car. We find that the location of the shell easing cannot result in a reversal of the defendant’s conviction. There was no testimony to show the path of the gun in the split second after the bullet was released. It is equally plausible that Davis could have been falling and continued moving toward the victim after the gun accidentally discharged as it is that he could have intentionally fired the shot and continued moving inward toward the car. Another possible theory is that the casing could have ricocheted off Jefferson’s body and into the vehicle. The eyewitness testified Davis was about three feet from the victim, and the coroner stated the gun was fired from about a two-foot range from the victim. The jury obviously found that testimony to be sufficient to establish the requisite intent to support a conviction of second degree murder. The path of the casing is irrelevant in the face of the eyewitness’ testimony.

Therefore, this assignment is therefore without merit.

Other Crimes Evidence

Davis argues that there is a reasonable possibility that the three instances of prior threats he made to this victim improperly contributed to the verdict. Arguing that the evidence of a threat was introduced, but the nature of the threat was never revealed, he concludes that the inference he threatened to kill the victim, absent proof of the nature of the threat, is sufficient to call the verdict into question.

DThe state argues that the victim’s prior relationship and the prior threats show a history of domestic violence and that the prior acts were proven by clear and convincing evidence.

La. C.E. art. 404 provides in pertinent part:

B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

La. C.E. art. 404 clearly recognizes that other “acts” of a defendant, and not merely convictions, can be admissible under certain circumstances. Admissibility of evidence of these prior acts has been succinctly set forth in State v. Jackson, 625 So.2d 146, 148-49 (La.1993). Admission of this evidence requires that the state: (1) comply with the notice requirements and limiting instructions set out in State v. Prieur, 277 So.2d 126, 130 (La.1973); (2) prove by clear and convincing evidence that the other act occurred and was committed by the defendant; (3) show that the evidence falls within one of the La. C.E. art. 404(B) exceptions to the rule against other crimes evidence and that this exception is relevant to the outcome of the case; and, (4) show that the probative value of the evidence outweighs its potential prejudicial value. State v. Jackson, supra.

17A trial court’s ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326; State v. Blackwell, 30,281 (La.App. 2d Cir.11/10/97), 701 So.2d 1389, writ denied, 97-3073 (La.2/13/98), 709 So.2d 755.

The state complied with State v. Prieur, supra, furnishing defendant with written notice of its intent to offer evidence of this and 15 other incidents and convictions. The trial court ruled that it and 7 others were admissible at trial; however, the state offered evidence regarding only three matters.

Officer Darren Canales testified, without objection, that on February 11, 2003, the victim reported that Davis had called her seven times that day and that during the last phone call he made, he made a threat to her. On cross-examination, the officer testified that Davis denied making any threats.

In its ruling on the admissibility of this incident, the trial court found that it could be admitted to show motive, intent, absence of mistake or accident, and state of mind. He specifically found that its probative value outweighed prejudicial effect.

Although the details of what the victim said Davis would specifically do were not revealed, the word threat is defined in WordPerfect’s dictionary as “a stated intention to inflict injury, damage, or other hostile action on someone.” Merriam-Webster’s on-line dictionary defines the word as “an expression of intention to inflict evil, injury, or damage.” Thus, the word |Rthreat alone connotes an intention, and the trial court was correct to find that it had probative value to show Davis’ state of mind toward this victim. Further, in State v. Mamon, 26,337 (La.App. 2d Cir.12/16/94), 648 So.2d 1347, writ denied, 95-0220 (La.6/2/95), 654 So.2d 1104, this court stated:

Even once such independent relevance is shown, the probative value must outweigh its prejudicial effect. The defendant failed to argue how the admission of the prior crimes evidence prejudiced her. Regardless, considering the striking similarity of the two stabbings occurring only days apart, we find as did the trial court, that the potential prejudice resulting from this evidence does not outweigh its probative value. In addition, any prejudice to defendant was minimized because she had ample opportunity on cross examination to rebut the evidence and impeach the witnesses’ testimony regarding the November 25 stabbing, and was able to explain her alleged actions and present her own version of the facts. For these reasons, we find that the trial court properly allowed the State to introduce this other crimes evidence. This assignment presents no reversible error.

Assuming arguendo that one would conclude that the details of the threat should have been given and it was error for the trial court to allow the admission of this incident, the action is subject to a harmless error review. Under the rationale found in State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, the question becomes whether the verdict rendered was unattributable to this error as dictated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Chapman standard was later refined in Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), as follows:

Consistent with the jury-trial guarantee, the question [Chapman] instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand.... The inquiry, in other words, is not whether, in a trial that occurred without the error, | na guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.

The court in State v. Maise, 2000-1158 (La.1/15/02), 805 So.2d 1141, stated:

Assuming that the evidence was improperly admitted, we must consider whether the admission of the evidence was unattributable to the verdict. Factors to consider in making this determination include: (1) the importance of the witness’s testimony; (2) the cumulative nature of the testimony; (3) the existence of corroborating or contradictory evidence regarding the major points of the testimony; (4) the extent of cross-examination permitted; and (5) the overall strength of the state’s case.

The record shows that the testimony of the threatening phone call was cumulative. Prior to the testimony regarding the phone calls, the jury heard evidence of two prior incidents between the parties. Officer Dennis Courtney testified that on February 9, 2003, the victim reported that Davis had grabbed her. The officer said he had observed bruises on both of her arms. However, on cross-examination, the officer stated that both parties were arrested as a result of that incident. The summons against the appellant was for simple battery, and the summons against the victim was for aggravated battery.

The jury had also heard evidence of Davis’ 2001 conviction via a guilty plea to aggravated battery upon the victim. The officer who investigated the complaint stated that Davis struck the victim on the head with the butt of a handgun. A certified copy of the minutes showing the conviction was admitted into evidence. The record shows that the defense counsel was not prohibited from cross-examining the officer about the |]nnature of the threat, nor was the state’s case dependent on this evidence to establish motive. There was an eyewitness to this shooting. Davis’ theory of defense of an accidental shooting was dispelled by the neighbor’s testimony that she saw him point and shoot the victim.

This assignment is therefore without merit.

Excessive Sentence

Davis argues that while the life sentence is within the range authorized by the legislature, it is constitutionally excessive since nothing in the record indicates this sentence is necessary to prevent further criminal activity by him.

The state argues there was no justification for this senseless killing of a victim seated unarmed in her vehicle; therefore, the sentence is neither grossly disproportionate nor shocking to the sense of justice.

The sentence for second degree murder is found in La. R.S. 14:30.1(B) which reads:

Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

When a defendant fails to file a La. C. Cr. P. art. 881.1 motion to reconsider sentence, the appellate court’s review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App. 2d Cir.2/25/98), 707 So.2d 164. State v. Raev, 36,847 (La.App. 2d Cir.3/5/03), 839 So.2d 1015, writ denied, 2003-0988 (La.10/10/03), 855 So.2d 330. Constitutional review turns upon whether the sentence is illegal, grossly |1 t disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App. 2d Cir.12/17/03), 862 So.2d 1123.

A review of the record reveals that no motion to reconsider sentence was filed on behalf of this appellant, and thus this court’s review is limited to constitutional review only.

As to the alleged excessiveness of the mandatory prison term, it is within the legislature’s purview to determine the length of the sentence imposed for crimes classified as felonies and the courts are charged with applying those punishments unless they are found to be unconstitutional. State v. Koon, 31,177 (La.App.2d Cir.2/24/99), 730 So.2d 503. The decision to assess mandatory life sentences for certain felonies is within the prerogative of the legislature. Further, the argument that the mandatory life sentence for second degree murder is a violation of the prohibition against excessive punishment in the Louisiana Constitution has been repeatedly rejected. State v. Parker, 416 So.2d 545 (La.1982); State v. Brooks, 350 So.2d 1174 (La.1977); State v. Davis, 31,-711 (La.App. 2d Cir.3/31/99), 732 So.2d 612, writ denied, 99-3114 (La.5/5/00), 761 So.2d 539.

This appellant fails to articulate why his circumstances justify an exception to the imposition of the mandatory sentence. In order to overcome the legislative mandate, there must be clear and convincing evidence that he is exceptional or that, because of unusual circumstances, he is the victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. There are no such unusual circumstances in this Incase, and, on the evidence presented, the mandatory life sentence does not shock the sense of justice. State v. Dorthey, 623 So.2d 1276 (La.1993).

This assignment lacks merit.

CONCLUSION

Based on the reasons explained above, we affirm the defendant’s conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Magalene LEWIS, et ux., Plaintiffs-Appellants, v. ALBERTSON’S INC., et al., Rio Beach & Back Yard Flag Chair, All-Luminum Products, Inc., and Travelers Insurance, Defendants-Appellees.
    No. 41,234-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      J. Michael Rhymes, Monroe, Ivan Jerome Daigs, for Appellants.
    Cook, Yancey, King & Galloway by Samuel William Caverlee, Scott Louis Zimmer, Ashley G. Simoneaux, Shreveport, for Ap-pellee, Albertson’s, Inc.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell by Donald James Armand, Jr., Shreveport, for Appellees, Traveler’s Ins. and All-Luminum Products, Inc.
    Before BROWN, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

JQMagalene Lewis and her husband, Sel-Ius Lewis, appeal a judgment of the 26th Judicial District Court, Parish of Bossier, State of Louisiana, which, following a hearing, granted summary judgments in favor of the defendants/appellees. Albertson’s Inc. (“Albertson’s”), and All-Luminum, Inc. (“All-Luminum”) in conjunction with its insurer, Travelers Indemnity Company of Connecticut (“Travelers”), answered the appeal. For the following reasons, we affirm.

FACTS

On May 16, 2003, Magalene Lewis started feeling ill while shopping at the Albert-son’s store in Bossier City, Louisiana. As she began to be escorted to her car, Mrs. Lewis felt faint and sat down in a lawn chair on display at the store. Unable to support her weight, the chair collapsed and allegedly injured Mrs. Lewis. She later filed an incident report with Albert-son’s.

The Lewises filed suit against the alleged manufacturer of the chair, All-Lumi-num, and the seller, Albertson’s. During discovery for the case, it was learned that the chair involved in the incident had been disposed of by an employee at Albertson’s. Albertson’s and All-Luminum filed separate motions for summary judgment. The trial court granted All-Luminum’s motion. The Lewises filed a memorandum in opposition to Albertson’s motion for summary judgment. The trial court took the matter under advisement and requested additional briefing.

Thereafter, the Lewises filed an amended petition adding the claim of spoliation of the evidence against Albertson’s. Albert-son’s filed a second | ¿motion for summary judgment on the spoliation claim. The trial court granted both of Albertson’s motions for summary judgment finding that: (1) there was no liability for the chair and, (2) there was no evidence to support the spoliation claim. This appeal ensued.

DISCUSSION

In their first assignment of error, the Lewises argues that the trial court erred in granting Albertson’s motion for summary judgment on the basis that the evidence did not show that Albertson’s knew or should have known of the defect in the chair. Related to that is their second assignment of error in which they argue that the trial court erred in finding that the Lewises could not prevail on their claim based on spoliation of the evidence; the evidence that was thrown out, they claim, would have supported their liability claim. As stated, the trial court granted Albert-son’s motion for summary judgment on the spoliation issue and the product liability claim in favor of the defendants.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file and any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. The mover has the burden of establishing the absence of a genuine issue of material fact. However, if the mover will not bear the burden of proof at trial on the matter, the mover is not required to negate all essential elements of the adverse party’s action or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim or action. |aThe non-moving party must then produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.08/21/96), 679 So.2d 477.

Product Liability

At the outset, we note that the Lewises moved to appeal the summary judgment in favor of All-Luminum and Travelers. All-Luminum and Travelers noted in their brief that no assignments of error and no arguments have been offered with regard to manufacturer liability. After reviewing the appellees’ brief we find that the Lew-ises have abandoned their appeal against All-Luminum and Travelers, and the judgment is not before this court. U.R.C.A. Rule 1-3 and 2-12.4.

The Lewises do allege, however, that Albertson’s is liable for the defective chair. Albertson’s asserts that it is not responsible for damages in tort absent a showing that it knew or should have known the product was defective and failed to declare it. Here, the Lewises’ spoliation claim does not preclude a motion for summary judgment as to the issue of product liability. See e.g. Allen v. Blanchard, 1999-2077 (La.App. 1st Cir.03/31/00), 763 So.2d 704. Although the actual chair was not produced, the Lewises maintained the burden to prove that an issue of material fact existed, namely that Albertson’s knew or should have known and failed to declare the alleged defect in the chair.

|4A non-manufacturing seller is not required to inspect the product prior to sale to determine the possibility of inherent vices or defects. Jackson v. Sears Authorized, Retail Dealers Store, 36,166 (La.App.2d Cir.06/12/02), 821 So.2d 590. The law is clear that a non-manufacturing seller of a defective product is not responsible for damages in tort absent a showing that he knew or should have known the product was defective and failed to declare it. Id.

After a de novo review of the case, we agree with the trial court’s determination that Alberton’s is entitled to summary judgment as a matter of law. The trial court found the evidence established that neither Albertson’s nor Magalene Lewis had knowledge of the defect. At the deposition of Nick Walker, the assistant manager at Albertson’s at the time of the incident, he explained how he helped put together the display and did not notice any defects in the chair. He believed the chairs to be in good condition and never had any problems with other chairs of the same type. Walker also explained that he would watch his co-worker sit in the display chairs after putting them together and had no problems with the chairs. No other evidence was presented that supported the Lewises’ assertion that Albert-son’s knew or should have known of the alleged defect. Accordingly, we find no genuine issue of material fact before us.

Spoliation Claim

The Lewises allege that the spoliation of the evidence prevented them from fully prosecuting and succeeding in their liability claim against the alleged manufacturer, All-Luminum, and the seller, Albertson’s. The 1 RLewises further assert that because Albertson’s Loss Prevention Department knew litigation was a good possibility they had a duty to preserve the evidence and failing to do so created a presumption that the evidence would have been favorable to plaintiffs’ case.

A presumption may arise in the theory of spoliation of evidence when it is an intentional destruction of evidence for the purpose of depriving the opposing parties of its use. Holloway v. Midland Risk Insurance Co., 36,262 (La.App.2d Cir.10/30/02), 832 So.2d 1004, writ denied, 2002-3247 (La.03/28/03), 840 So.2d 571. Generally, a litigant’s failure to produce evidence that is available to him raises a presumption that the evidence would have been detrimental to his case. However, this adverse presumption is not applicable when the failure to produce the evidence is adequately explained. Holloway, supra.

In their amended petition, the Lewises did not allege that Albertson’s discarded the chair intentionally in order to deprive her of its use. Nonetheless, even if alleged, the record does not support the acts were intentional. Here, the evidence established the chair at issue was retained by Albertson’s for a number of months following the incident, but the chair was mistakenly thrown away by an Albertson’s employee who was cleaning out the closet that stored the item. After it was discovered that the chair had been mistakenly thrown out, an effort was made to find a chair similar to the previous one. The failure to produce the chair is adequately explained and does not give rise to the presumption that the evidence would have been detrimental to the case.

| fiThe Lewises do, however, allege that Albertson’s was negligent in their failure to preserve the chair. The Louisiana Supreme Court has yet to address the potential tort right of spoliation stemming from negligence principles, including its requirements and the remedy for this cause of action; the issue is certainly ripe for consideration. This court has recognized a negligence theory for a spoliation claim, but with limitations. In Carter v. Exide Corporation, 27,358 (La.App.2d Cir.09/29/95), 661 So.2d 698, 704, the duty to preserve evidence was enforceable if it arose from “a statute, a contract, a special relationship between the parties, or an affirmative agreement or undertaking to preserve the evidence.”

Merely claiming spoliation of evidence does not relieve the plaintiffs burden to prove that the cause of action exists, namely that Albertson’s is a defendant with the duty to preserve the chair at issue and the duty was breached. In the instant case, on the motion for summary judgment the Lewises failed to present evidence that establishes an enforceable duty after Al-bertson’s pointed out the absence of factual support for the Lewises’ claim. Although we support Albertson’s protocol to preserve the evidence at issue, nothing in the record suggests that this was done because of an agreement among the parties. Furthermore, the Lewises brought suit after the chair was mistakenly thrown out, and the record does not support the contention that Albertson’s was on notice that a suit would be filed. Finally, Albert-son’s did not have a duty arising out of any other circumstances as set forth by Carter, supra.

|7We also note there was affirmative evidence with Walker’s deposition testimony setting forth that Albertson’s did not know or could not have known of the alleged defect. Besides not establishing that a duty existed, the Lewises failed to put on evidence that but for the spoliation they would have a theory of liability under the Louisiana Products Liability Act, the only remedy against a manufacturer. Therefore, we find this argument without merit.

CONCLUSION

For the foregoing reasons, the motions for summary judgment granted by the trial court in favor of the defendants are affirmed. Costs of this appeal are assessed to the Lewises.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee, v. Fredrick G. MATTHEWS, Appellant.
    No. 41,047-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    William R. Coenen, Jr., District Attorney, Penny W. Doueiere, Kenneth D. Wheeler, Assistant District Attorney, for Appellee.
    Before BROWN, PEATROSS, and DREW, JJ.
   BROWN, Chief Judge.

11Defendant, Fredrick G. Matthews, was charged by bill of information with second offense possession of cocaine. A jury found him guilty as charged and the trial court sentenced him to eight years at hard labor with credit for time served. A timely filed motion for reconsideration was denied, following which this appeal ensued. Finding no error, we affirm.

Discussion

Defendant’s appellate counsel filed a Benjamin brief and motion with this court, asserting that he had conscientiously and thoroughly reviewed the trial court record and had found no non-frivolous issues to raise on appeal, nor any trial court ruling which arguably would support an appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Mouton, 95-0981 (La.04/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). In addition to summarizing the procedural history and the facts of the case, the court-appointed appellate attorney’s brief provided a detailed, reviewable assessment of whether the appeal was worth pursuing. See State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241.

In accordance with Anders, Mouton, and Benjamin, supra, defendant’s appellate attorney also notified him of his right to file a pro se brief and filed a motion to withdraw from the case. This court held the motion to withdraw in abeyance and advised defendant of his right to file an appellate brief within 30 days of the February 3, 2006, order deferring a ruling on his attorney’s motion to withdraw. Defendant did not respond to the notice.

pWe have examined all of the pleadings filed in the trial court, as well as the court proceedings, the bill of information, and all transcripts contained in the record. The record shows that defendant was properly charged by bill of information. The record further reflects that defendant was present in court and represented by counsel at all important stages of the proceedings.

Even if we did review his sentence for constitutional excessiveness, we would find that it neither shocks the sense of justice nor constitutes a purposeless and needless infliction of pain and suffering. The eight-year sentence defendant received is within the statutory range for possession of cocaine, second offense, which is imprisonment, with or without hard labor, for not more than ten years, with an optional fine of not more than $10,000. La. 40:967; La. 40:982. The trial court gave reasons for the particular sentence imposed. We find no abuse of the trial court’s discretion in the sentence imposed.

Our independent review disclosed no non-frivolous issues and no rulings which would support an appeal. We likewise found no errors patent on the face of the record. Defendant’s conviction and sentence are affirmed. Appellate counsel’s motion to withdraw is granted.

AFFIRMED.


author: THOMAS F. DALEY, Judge.

text:
    Benjamin JONES & Jacqueline Jones v. Paul JEFFERSON, Werner Transportation, Inc. & Pennsylvania Insurance Company.
    No. 06-CA-25.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2006.
    Rehearing Denied Aug. 24, 2006.
    Anthony S. Taormina and Charles W. Dittmer, Jr., Metairie, Louisiana, for Plaintiff/Appellant, Benjamin Jones.
    Christopher E. Lawler, Christopher P. Lawler, Donovan & Lawler, Metairie, Louisiana, for Defendant/Appellee, Werner Transportation, Inc.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   THOMAS F. DALEY, Judge.

| ¡¡Plaintiff, Benjamin Jones, appeals a judgment reflecting a jury verdict that found he was not injured following an accident on February 19, 1999, between the cab he was driving and the truck owned by defendant Werner Enterprises, Inc.

On appeal, Jones argues two Assignments of Error. First, he argues that the jury verdict was manifestly erroneous in finding that he was not injured in the accident, where defendant stipulated to liability, and the medical testimony, including objective testing, clearly showed that it was more likely than not that the accident did cause the plaintiffs injury. Second, Jones argues that the trial judge erred in admitting into evidence the highly prejudicial evidence of plaintiffs past drug use and psychiatric problems in order to contest his ability to work, where Jones had been working continuously for two years prior to the accident. Plaintiff argues that the evidence’s prejudice outweighed its probative value.

After thorough consideration of the record and applicable law, we find that the jury’s verdict was not manifestly erroneous. Further, we find that plaintiff Iswaived his objection to the introduction of the allegedly prejudicial evidence. Accordingly, we affirm the judgment.

The accident occurred on February 19, 1999, when Jones was forty years old. Jones was driving a cab on Airline Highway near Hickory, when an 18 wheeler, owned by defendant, made a wide right turn from the middle lane. The truck made contact with Jones’s cab on the driver’s side door and damaged the cab. Jones claimed that the cab was dragged for about 25 feet. Jones alleged that he was thrown about inside the cab and briefly lost consciousness. Jones did not go to the emergency room on the day of the accident, but on the following day, upon referral from his attorney, saw Dr. Stewart Altman, who had treated him for a previous motor vehicle accident in 1996. Plaintiff allegedly suffered back and neck injuries in the accident. Prior to trial, Werner Enterprises stipulated to liability.

In his first Assignment of Error, Jones argues that five treating physicians, who all treated him for his back and neck symptoms following this accident, testified that plaintiff was injured in this accident. Moreover, he argues, the objective testing, the MRIs, showed that he was injured in this accident. This evidence, however, must be considered in light of the entire record and evidence presented to the jury.

The first doctor who treated Jones for this accident was Dr. Altman, who first saw plaintiff on the day after the accident and treated him until April 9, 1999. Despite the claimed severity of his injuries, plaintiff did not go to the emergency room on the day of the accident, but called his attorney for a referral to Dr. Altman. The jury heard, through Dr. Altman’s video deposition, that 85% of his practice are attorney referrals. He opined that Jones had healed from his 1996 accident. Dr. Altman’s office recommended that Jones attend physical therapy three times per week, but in fact Jones attended therapy five times in two months.

^According to Dr. Altman’s records, a Dr. Gaupp in his office noted on March 31, 1999, that plaintiff was able to return to work. On April 7, 1999, Jones saw Dr. Altman for leg cramps, which Dr. Altman thought might be deep vein thrombosis (DVT), unrelated to the accident. Dr. Altman did not examine Jones’s neck or back at this visit. Dr. Altman wrote Jones a referral to Charity Hospital, where he underwent testing for DVT, which proved to be negative. Jones last saw Dr. Altman on April 9, 1999, but no examination was performed at that visit. According to his records, Dr. Altman recommended that Jones see an orthopedist because of his continued back and neck complaints. His diagnosis of disc disease was based on the plaintiffs complaints, not on the physical examination.

Plaintiff next saw Dr. David Jarrott, a neurosurgeon, on April 12, 1999, at the recommendation of his attorney. Dr. Jar-rott’s testimony and records revealed that Jones failed to tell him about his prior accident in 1996, nor had Jones told him about other incidents several years before this accident where he had allegedly thrown himself out of a moving car in attempts to commit suicide. Dr. Jarrott prescribed Soma, a muscle relaxant, and Lortabs, a narcotic pain medication. Dr. Jarrott also ordered MRIs of the lumbar and cervical spine, which was performed on April 14, 1999. Dr. Jarrott testified that the lumbar MRI showed a degenerative changes at L5-S1, and that the cervical MRI showed a mild bulge at C5-6, which was not abnormal for a man of Jones’s age. The MRI showed no spinal cord compression or deformity.

Dr. Jarrott related plaintiffs symptoms of pain to this accident. However, it is important to note that Dr. Jarrott did not have the plaintiffs complete medical history, because plaintiff omitted mentioning his 1996 accident and the previous suicide attempts. Dr. Jarrott also did not learn of plaintiffs psychiatric history, which included a diagnosis of bipolar disorder sometime around 1994, until later in his treatment of Jones.

Is Jones returned to see Dr. Jarrott on May 9,1999, and obtained more pain medication. He next saw Dr. Jarrott on July 8, 1999, a two month gap in treatment, and obtained more pain medication. An examination on this date showed no neurological deficit, some muscle and ligamentous tenderness in the spine, with a slightly limited range of motion. Dr. Jarrott concluded that the cervical problem was a soft tissue problem. After another two month gap in treatment, Jones again saw Dr. Jarrott on September 20, 1999, and obtained more pain medication.

In between visits to Dr. Jarrott, plaintiff saw Dr. Michael Haydel, a chiropractor, receiving chiropractic treatments on July 15 and July 20, 1999. Jones testified that the treatments caused him greater pain, so he did not return.

Also during this time, on August 3, 1999, Jones applied for Social Security disability again, claiming that he was totally disabled due to his bipolar condition, as well as his back and neck pain. This second application was denied.

The jury watched a surveillance videotape of plaintiff taken on August 7, 1999, several days after the second application for disability was made. This tape shows Jones performing physical activity that his disability application alleged he was unable to do, such as putting an ice chest into the trunk of his car, carrying a heavy chain, driving and turning his neck to see while he was backing out of the driveway, other moderate lifting, and carrying garbage bags while wearing an unhooked back brace. The same videotape shows Jones driving a car, bending at the waist, carrying a lawn chair, and cleaning out the garage for over an hour.

The record shows that in connection with his application for disability, Jones underwent a psychological evaluation on October 18, 1999. The psychiatrist noted that Jones reported taking cocaine until three years before the application, and that | fihe was not able to manage his funds because of a chronic gambling problem. This second application for disability was rejected on October 27,1999.

Plaintiff returned to Dr. Jarrott on January 26, 2000, after a four month gap in treatment. Jones continued to complain of low back pain, neck pain, headaches, weakness in both legs and pain in both hands.

After eight months without treatment, Jones saw Dr. Bartholomew, a neurosurgeon, on September 19, 2000. Jones gave Dr. Bartholomew an incomplete medical history, failing to tell him about the suicide attempts, the 1996 accident, or a more recent March 2000 motor vehicle accident. An examination revealed normal reflexes, a normal range of motion in the back, but with reports of pain, no spasm, positive straight leg raising test, and some numbness in the left big toe. In the neck, there was no tenderness, no spasm, and a normal range of motion. Dr. Bartholomew reviewed the April 1999 MRIs and diagnosed degenerative changes at C4-5 and C5-6, and a herniated disc at L5-S1. At the time, Dr. Bartholomew felt that a lumbar discogram, a diagnostic test to determine the origin of disc pain, would be beneficial, since Jones’s complaints of back pain seemed to be worse than his complaints of neck pain. However, Dr. Bartholomew wrote a prescription for a cervical discogram instead. The procedure, however, was not performed until nearly a year later, by Dr. Charles Aprill, a radiologist, on August 7, 2001.

Eleven months passed between Jones’s first and second visits to Dr. Bartholomew. During that time, Jones applied a third time for disability status, claiming he was disabled from back, neck, leg and arm pain, bipolar disorder, five injured discs, and deafness in one ear. He claimed that he could not walk, bend, or stoop. This application was denied on September 20, 2001. Jones appealed this denial, and on July 12, 2002, plaintiff was found disabled under the [Social Security] Act and Regulations.

l7Pr. Bartholomew next saw plaintiff on August 28, 2001, which was three weeks after the discogram was performed by Dr. Aprill. Dr. Bartholomew’s records indicate that plaintiffs complaints of pain were again “very bad” and that he wanted to have surgery. However, surgery had not been approved. Plaintiff saw Dr. Bartholomew again on October 11, 2001, with complaints of worsening pain. Plaintiffs next visit to Dr. Bartholomew was on September 5, 2003, where he complained of worse pain, but where a physical examination revealed normal strength in his arms and legs. Plaintiffs last visit to Dr. Bartholomew was on April 13, 2004. The doctor explained the gaps in treatment by noting he was a surgeon, and since surgery had not been approved, there was little he could offer Mr. Jones by way of treatment.

On cross examination, Dr. Bartholomew acknowledged that he first saw Jones one year and seven months after the 1999 accident, and that he based his opinion about causation upon the history as related by the plaintiff. The doctor admitted that it appeared plaintiff did not give him a complete history, because he omitted mention of the suicide attempts, the 1996 accident, or 2000 subsequent accident. He was also unaware of plaintiffs psychiatric history. He noted that he knew nothing of any treatment plaintiff might have had during gaps in his treatment. Dr. Bartholomew felt that plaintiff could perform sedentary employment or employment where he could change positions frequently.

The jury heard from Jones himself, who testified at length. They heard that Jones had a history of drug abuse around 1991— 1992, when he abused cocaine. He testified that he had entered drug treatment programs several times. Jones testified regarding his employment history. His earliest employment was running a bar known as Benny’s that was originally owned by a family member. During that time, Jones developed a habit of cocaine abuse. He testified that the bar was “shut down” by the effect of hostile city ordinances.

IsJones testified that he had been drug free while he was employed at Bunny Bread in 1993, introducing into evidence a negative drag screen performed in May of 1993, but this was refuted on cross examination when Jones was confronted with evidence of a later positive drug test performed while he worked for Bunny Bread. Jones was fired from Bunny Bread, but specifically denied this on his application with Glazer, his next place of employment, claiming that he resigned from Bunny.

Jones worked at Glazer for two years, starting in the warehouse, but ending as a delivery driver. He was fired after he got angry at a delivery, took the loaded truck, and got drunk at a barroom. He pleaded guilty to criminal charges stemming from this incident, but claimed that Glazer offered him his job back if he wanted it upon completion of his probation. This assertion is refuted by employment records from Glazer, which state that Jones would not be offered his job back.

The jury heard Jones’s complaints of pain and his reported limitations of his activities, both in his testimony and his many applications for disability, yet also saw two surveillance videotapes, one from August of 1999 and one from December of 2002, that show him engaging in substantially more physical activity than he claimed to be able to perform. In the 1999 tape, Jones wears a back brace unhooked while cleaning out a garage. He is seen lifting boxes and garbage bags. Later in the tape, Jones drives a car, and looks behind him while backing the car out of the driveway. The jury also heard Jones deny the accuracy of his records from his treatment for drug dependency and depression at Charity Hospital.

Dr. Charles Aprill, the radiologist who performed the discogram on Jones on August 7, 2001, testified that the purpose of the discogram was to determine the source of the pain in the discs. His records indicate that Jones reported a pain level of 8 out of 10, but he felt that Jones’s actions weren’t consistent with pain of that reported magnitude. He testified that there are both objective and subjective | components of this test. He explained that a thin needle is inserted into each disc and a contrast agent is injected, which is viewed through fluoroscopy to determine if the discs have any bulging, which is an objective finding. If the disc is a source of pain, the patient will report pain, which is a subjective finding, but that this pain will depart when he injects anesthetic into the disc. Jones reported a higher level of pain after the anesthetic was injected, which Dr. Aprill called a nonphysiological response.

The jury heard the videotaped deposition of Dr. Deepak Awasthi, a neurosurgeon, who performed an independent medical examination of Jones on October 11, 2001. He took a medical history from Jones, reviewed his MRI films from April of 1999, and performed a physical examination of plaintiff. Jones told Dr. Awasthi about the 1996 accident, but failed to tell him about the suicide attempts. Dr. Awasthi’s physical examination showed no neurological deficits, good motor strength, normal reflexes, and no muscle atrophy. Dr. Awasthi opined that the MRI films showed mild degenerative changes in the affected discs that were very likely present at the time of the accident, but no nerve root compression. Dr. Awasthi testified that disc protrusion, which the MRI showed, was not the same thing as nerve impingement. He felt that at the most, plaintiff would have experienced mild to moderate lumbar and cervical sprains at the time of the accident, and that surgery was not warranted.

Looking at the evidence as a whole, it is clear that plaintiff gave an incomplete and inaccurate medical history to his treating physicians. He neglected to mention all of his previous accidents to several treating doctors, and in most cases neglected to mention his psychiatric history. The objective testing, the MRIs performed in 1999, which plaintiff claims show he was injured in this accident, were interpreted by several doctors, as outlined above, as showing mild degenerative changes, and no nerve root compression or spinal cord compression, 11nthat were most likely present before this accident. Plaintiffs various physical examinations, such as the one performed by Dr. Awasthi, which showed no neurological deficit and normal strength and reflexes, were not consistent with Jones’s complaints of pain or claims of disability.

The jury heard that Jones claimed to suffer from disabling pain from this accident, yet has not availed himself of any treatment at Charity Hospital, a health care institution that he has nevertheless turned to for other health needs, such as drug treatment, mental health care, and testing for suspected DVT in 1999. The jury heard that despite the claimed severity of the accident, plaintiff did not seek treatment at any emergency room on the day of the accident, instead waiting to seek any treatment until the next day when his attorney referred him to Dr. Altman. Finally, the jury heard plaintiffs claims of severe pain and disability, yet viewed two surveillance tapes that showed plaintiff engaging in at least moderate physical labor, which plaintiff claimed to be unable to do.

Plaintiffs Assignment of Error mischaracterizes the nature of the doctors’ testimonies and their interpretations of the objective testing, given that plaintiff failed to give complete and accurate medical histories to those doctors, and that his complaints of pain were subjective and not supported by the objective findings in the physical examinations. Also, the jury did not hear this evidence in a vacuum; they also heard the inconsistencies in plaintiffs testimony and saw the surveillance videotapes. We cannot say that the jury was manifestly erroneous in concluding that plaintiff failed to prove that he was injured in this accident. The factual findings of a jury are accorded great weight and will not be disturbed on appeal absent manifest error. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993).

Plaintiff argues next that the trial court erred in allowing the introduction of evidence of his past drug use, arguing that the prejudicial nature of this evidence outweighed its probative value.

| n Originally, plaintiff filed a Motion in Limine to keep out evidence of his prior drug abuse, psychological history, and criminal conviction, arguing that it was embarrassing, prejudicial, and not probative. The Motion was argued on the first day of trial, August 15, 2005. The trial court denied the Motion, ruling that the information was relevant to the plaintiffs credibility and the loss of wage claim. The plaintiff filed an expedited Application for Supervisory Writs with this Court on the next day, August 16. This Court denied the application the same day, finding that the trial court was within its discretion in allowing this evidence to be introduced.

As defendant points out, however, in opening statements on August 15, prior to the writ being filed and a ruling from this Court, plaintiff counsel himself mentioned the past drug abuse, the psychiatric history, and specifically the bipolar diagnosis, and the plaintiffs conviction stemming from the incident at Glazer. Any objection plaintiff may have had to the introduction of this evidence was thereby waived.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . The record reveals that in 1994, Jones applied for Social Security disability, claiming that the bipolar disorder rendered him totally disabled and unable to work. This application was made after he was fired from his job with Bunny Bread for excessive absenteeism.

      . Defendant further argues that this Court’s ruling became "law of the case” and should not be revisited on appeal. Given that plaintiff waived his objection by inclusion of this information in opening statements, we do not reach this argument.


author: CARAWAY, J. MOORE, J,

text:
    REYNOLDS INDUSTRIAL CONTRACTORS, Plaintiff-Appellee v. Willie Faye FOX, Defendant-Appellant.
    No. 41,051-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Lacey P. Wallace, Bossier City, for Appellant.
    Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P., by Donald J. Anzelmo, Monroe, for Appellee.
    Before STEWART, GASKINS, CARAWAY, DREW and MOORE, JJ.
   CARAWAY, J.

BThe employee was injured in January 1996 when a hammer fell on her foot as she assisted another employee in moving tools out of an office. Workers’ compensation wage benefits were paid to the employee through September 2001. The employer and employee then filed disputed claims for benefits which were consolidated for hearing. A judgment of the Office of Workers’ Compensation was rendered based upon a forfeiture of the employee’s benefits due to false statements in furtherance of the employee’s claim. Finding manifest error in the forfeiture determination, we reverse that portion of the judgment forfeiting benefits, award supplemental earnings benefits of $150.00 per week and affirm the denial of penalties and attorney fees.

Facts

On January 26, 1996, Willie Faye Fox (“Fox”) was working as a secretary for Reynolds Industrial Contractors (“Reynolds”). The company was completing a construction project in Chopin, Louisiana. As Fox assisted another employee move tools out of an office, a sledge hammer fell off of a tray onto her right foot. Fox received medical treatment for her injuries and returned to work on crutches. She worked for Reynolds until February 10, 1996, when the project was finished. Reynolds knew her employment would end before her injury occurred.

In July of 1996, Fox had surgery on her foot for the removal of bone chips. Thereafter she was referred to physical therapy and pain management. Ultimately, Fox was diagnosed with Reflexive Sympathetic ^Dystrophy (“RSD”) and received several sympathetic nerve blocks, but these failed to provide relief. She was referred to Dr. Kathleen Majors of Pain Management Consultants in February of 1999. Dr. Majors ultimately released Fox to perform sedentary work with some restrictions including elevating her right foot, but she never returned to any employment.

For her injuries, Reynolds paid Fox temporary total disability benefits through November 1, 1997, and then supplemental earnings benefits (“SEBs”) through September 30, 2001. On November 26, 2001, Reynolds filed a disputed claim under La. R.S. 23:1208 seeking forfeiture of any further benefits for alleged false statements and misrepresentations made by Fox in furtherance of a claim for benefits. In October 2002, Fox countered with a disputed claim for compensation seeking reinstatement of wage and medical benefits. Fox also sought penalties and attorney fees based upon Reynolds’ allegedly erroneous calculation of her average weekly wage. The consolidated claims were tried on July 30, 2003. Two years later, the workers’ compensation judge (“WCJ”) rendered written reasons and a judgment requiring the forfeiture of any further benefits after September 30, 2001 and denying Fox’s claim for penalties and attorney fees.

Regarding forfeiture, the WCJ determined that Fox “had misrepresented the extent of her disability on numerous occasions” and the “nature of her employment with Reynolds” and willfully made “false statements about accidents that occurred after the work incident.” The WCJ determined that forfeiture was warranted and denied Fox’s request for |3further benefits. The WCJ also determined that Reynolds miscalculated Fox’s benefits because it erroneously treated Fox as a seasonal employee. The court recalculated the benefits on the basis of Fox’s full-time temporary employment and awarded Fox the difference for the period between February 10, 1996 and September 30, 2001. Fox appeals.

Discussion

On appeal, Fox shows that the WCJ’s opinion in this case was rendered 736 days after trial because the record was lost and had to be reconstructed. Because of this, Fox requests de novo review. Fox also argues that the WCJ erroneously determined forfeiture of her benefits and erred when it denied her penalties and attorney fees after the underpayment of benefits between 1996 and 2001.

In brief, both parties apparently concede that the final judgment was based upon a reconstructed record and trial transcript and was rendered almost two years after trial. Fox contends that the workers’ compensation judgment, which was based upon a “very cold file,” deprived her of substantial rights and entitles her to de novo review by this court.

Factual findings in workers’ compensation cases are subject to the manifest error/clearly wrong standard of review. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706; Smith v. Riverwood International, 35,727 (La.App. 2d Cir.2/27/02), 810 So.2d 1175, writ denied, 02-0958 (La.5/31/02), 817 So.2d 101. The courts have consistently held that the manifest error standard applies upon appeal in workers’ compensation actions, even though the evidence before the trier of |4fact may consist solely of written reports, records and depositions. Virgil v. American Guarantee and Liability Ins. Co., 507 So.2d 825 (La.1987); Feild v. General Motors Corp., 36,339 (La.App. 2d Cir.9/18/02), 828 So.2d 150. See also, Shephard on behalf of Shephard v. Scheeler, 96-1690 (La.10/21/97), 701 So.2d 1308; McGill v. Cochran-Sysco Foods, 35,898 (La.App. 2d Cir.5/8/02), 818 So.2d 301, writ denied, 02-1609 (La.9/30/02), 825 So.2d 1196; Haile v. City of Monroe, 31,315 (La.App. 2d Cir.12/14/98), 722 So.2d 1192; Darbonne v. Wal-Mart Stores, Inc., 00-551 (La.App. 3d Cir.11/2/00), 774 So.2d 1022. The jurisprudence has likewise not allowed for de novo review of the lower court’s determinations because of the court’s lengthy delay in making credibility judgments and rendering judgment. Rosenblath’s Inc. v. Evans, 628 So.2d 1149 (La.App. 2d Cir.1993), writ denied, 94-0384 (La.4/4/94), 635 So.2d 1125; Manson v. City of Shreveport, 577 So.2d 1167 (La.App. 2d Cir.1991), writ denied, 580 So.2d 928 (La.1991). Even in situations where a different fact-finder judge has been assigned to render judgment from a trial record received before another judge, de novo review by the court of appeal has been deemed inappropriate. Shephard on behalf of Shephard v. Scheeler, supra.

In view of this jurisprudence, the de novo review requested by Fox is not the correct standard. The matter will be reviewed under the manifest error standard.

Fox next argues that the WCJ erroneously determined that she made false statements which justified the forfeiture of benefits and denied her additional SEBs. In pertinent part, La. R.S. 23:1208 provides:

|SA. 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 authorizes forfeiture of benefits upon proof 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. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. All of these requirements must be present before a claimant can be penalized. Freeman v. Triad Builders, 39,657 (La.App. 2d Cir.5/11/05), 902 So.2d 1220, writ denied, 05-1562 (La.12/16/05), 917 So.2d 1118. Because statutory forfeiture of workers’ compensation benefits for willfully making a false statement for the purpose of obtaining benefits is a harsh remedy, it must be strictly construed. Risk Management Services v. Ashley, 38,431 (La.App. 2d Cir.5/14/04), 873 So.2d 942, writ denied, 04-1481 (La.9/24/04), 882 So.2d 1138. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. An inadvertent and inconsequential false statement would not result in the forfeiture of benefits. Jim Walter Homes, Inc. v. Prine, 01-0116 (La.App. 1st Cir.2/15/02), 808 So.2d 818; Rosson v. Rust Constructors, Inc., 32,789 (La.App. 2d Cir.3/1/00), 754 So.2d 324, writ denied, 00-0914 (La.5/26/00), 762 So.2d 1105. Determinations of misrepresentations for forfeiture of benefits under La. R.S. 23:1208 are governed by the manifest error/clearly wrong standard of review. Freeman v. Triad Builders, supra. Under this standard, if the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart v. State through Dept. of Transp. & Development, 617 So.2d 880 (La.1993).

The very general nature of the WCJ’s written explanation for forfeiture is shown in the quotes from that sparse ruling which are listed above. Accordingly, we will focus our review on those instances of alleged misrepresentations by Fox which may support the ruling. In proof of its claims, Reynolds submitted into evidence certain medical reports of Fox and video surveillance and written reports describing Fox’s activity on the tapes that allegedly disproved her complaints. Fox was the only live witness at trial.

One instance of alleged misrepresentation occurred in September of 2001. At that time, pursuant to Office of Workers’ Compensation 17procedure, Fox was referred to Spectrum Rehabilitation Center for a functional capacity evaluation (“FCE”). Fox previously had an FCE in April of 1998. Fox’s self-reported behavioral pain evaluation on September 20, 2001, reported that “she walks with a cane because of additional pain when putting full weight on the extremity.” Fox evidently had feelings of worthlessness and low self-esteem because she could “never go anywhere.” The occupational therapy evaluation, also on September 20, 2001, reported that Fox’s shopping difficulties were “a nightmare,” and that she could only perform such tasks with her husband’s or grandson’s help. She also experienced difficulty driving because she only has the use of her left foot. Fox was unable to complete the FCE scheduled for September 26, 2001. The report stated that “approximately two thirds of the way into the test the patient began to get irritated and stated that she had strict orders from her Dr. that she was never again to take this type of testing. At this time the test was discontinued. The patient then produced a script from Dr. Majors, dated 10-9-00, which stated she did not need to finish the FCE.” The report further described the termination point of the test as follows: “the test was terminated after the patient had begun the walking portion of the test. She walked with her cane for a total of 71.6 seconds before sitting down.”

At trial, Fox testified that she stopped the test because of pain. She introduced an August 14, 2000 letter which included Dr. Majors’ note describing Fox’s status as to maximum medical improvement and work restrictions. Dr. Majors' notation showed that she did not think Fox needed the FCE. Dr. Majors’ deposition clarified that Fox’s work restriction 1 Rnecessitated elevating her foot approximately six inches to alleviate swelling from the RSD.

To dispute Fox’s representations, Reynolds introduced video surveillance conducted between December of 1999 and May of 2002. The surveillance occurred on 21 different days and on many of those days Fox remained totally in her home. The videotape near the time of the FCE showed Fox walking without a cane and performing errands, including shopping, without assistance. However, they also showed Fox using a cane when she visited her lawyer and attended her grandson’s school function. When questioned, Fox admitted that she could sometimes shop alone and walk without her cane in September 2001.

Another issue developed at trial concerned Fox’s reporting of prior accidents in her discovery deposition. The only accident relevant to her injured foot was a 1997 automobile accident. Fox was a passenger in an automobile driven by her niece which rear-ended another vehicle. Neither one sought medical attention for any injuries. In her deposition, Fox was asked whether “the only accident you’ve ever been involved in that resulted in a need for medical treatment was the accident of January 26,1996?” Fox apparently responded to the question by describing a serious automobile accident which totaled her car sometime during the 1970’s. Fox failed to identify the 1997 automobile accident involving her niece.

Significantly, Reynolds showed through the medical records that while Fox did not seek medical attention for the May 14, 1997 accident, she Uater did discuss the accident with Dr. James Lillich and Dr. Gordon Mead because of the accident’s effect on her foot. Dr. Lillich had apparently been Fox’s treating physician relating to the work accident. Fox had later been referred to Dr. Mead for a second opinion on her foot on April 30, 1996. On May 27, 1997, she visited Dr. Lillich and reported to him that she had been involved in a minor motor vehicle accident and “had to place her foot down forcefully.” Fox reported that she “felt a pop and sudden pain but then much of the plantar pain that she previously experience^] began to resolve.” Dr. Lillich concluded that she had apparently “ruptured some of the fibrous tissue around the FHL tendon which has currently improved some of her motion.” In Dr. Mead’s June 1997 notes, he reported that Fox mentioned the accident and told to him that she “injured her right foot at that time. She felt a pop in her foot when this occurred. She had quite a bit of pain in the foot, but by the time she went to bed that night, her pain was less than it had been for awhile.”

With the test for forfeiture requiring proof of willful intent and strict construction, we do not find that Reynolds established a forfeiture of benefits in this case. Significantly, despite the Reynolds’ surveillance evidence, which showed Fox’s actions for almost two years prior to the time Reynolds ceased paying SEBs, the WCJ’s judgment did not require forfeiture of those SEB payments, but instead actually raised the amount of those payments through September 2001. Our finding of insufficient evidence for forfeiture does not mean that some of the credibility issues presented by Fox’s testimony and actions are not pertinent concerning the |inissue of her continued entitlement to SEBs and her ability to work, as we will discuss below. It simply means that the two incidents described above involving Fox’s statements, which were by no means clear misrepresentations, do not amount to evidence of willful intent for the improper continuation of payment of SEBs.

At the time of the September 2001 FCE, it is significant that Fox was receiving SEBs and had been receiving maximum wage benefits for over five years. There is no evidence that Reynolds was threatening to end those benefits so that a fraudulent ploy by Fox was necessary for the continuance of SEBs. An FCE was previously conducted, and Fox was irritated that the present evaluation was taking place contrary to the views of her physician. Fox’s maximum medical improvement had been reached and this status had apparently gone unchallenged. With the burden of proof on Reynolds regarding this alleged willful deception at the FCE, no testimony was presented from the medical personnel describing the walking test or Fox’s presentation and statements. Under those conditions, while Fox may be viewed as uncooperative, her actions do not amount to misrepresentation with the willful motive for obtaining benefits.

Moreover, we are not persuaded by the video surveillance. The video does not show substantial physical activities by Fox. There are times when she used the cane; there are times when she did not. Considering the description in the medical testimony of Fox’s RSD syndrome, which, according to the physician, may wax and wane, she was not diagnosed with constant pain that would necessarily curtail her actions seen on the tape. In The tapes, Fox’s statements and actions at the FCE, and her testimony at trial do present significant credibility issues concerning her ability to work or receive SEBs. Nevertheless, this body of evidence is not atypical for many SEB work disputes involving subjective pain assessment. While this requires a credibility assessment by the WCJ for any alleged exaggeration of pain, malingering, or downplaying of work abilities by the employee, the willful misconduct justifying forfeiture consists of more than just a credibility call.

With regard to Fox’s deposition testimony, the question presented to Fox in the deposition asked for information regarding past accidents which caused “a need for medical treatment.” Fox did not seek medical attention for the accident. Her later descriptions to her doctors of the accident’s impact on the condition of her foot do not amount to evidence suggesting that her foot pain has persisted in any manner because of that accident. Without proof from the deposition that clearly demonstrates deception and without an incident that would arguably remove the cause of Fox’s condition from this work-place accident, forfeiture was not established by this testimony. This conclusion overruling the WCJ’s judgment of forfeiture requires our determination of Fox’s entitlement to supplemental earnings benefits.

A claimant is entitled to receive SEBs if he sustains a work-related injury that results in the inability to earn 90% or more of his pre-injury wage. La. R.S. 23:1221(3)(a). The claimant bears the initial burden of proving, by a preponderance of the evidence, that the injury resulted in the | ¶ ¿inability to earn that amount, under the facts and circumstances of the case. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. If the claimant meets this burden, the burden then shifts to the employer to prove that the claimant is physically able to perform a certain job and that the job was offered to the claimant or that the job was available to him or within his or the employer’s geographic region. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. If the employer satisfies that burden, then the claimant must show by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the offered or available employment, solely as the result of substantial pain. La. R.S. 23:1221(3)(c)(ii); Payne v. Lawn Lourd Lawn Service, 35,491 (La.App. 2d Cir.12/5/01), 803 So.2d 321.

Through Dr. Majors’ deposition testimony, Fox presented the only medical testimony at trial in proof of her entitlement to SEBs. Fox’s testimony also commented upon her ability to return to employment. Reynolds presented no medical evidence other than Fox’s medical records in opposition to the claim for additional benefits. No medical opinion was presented to dispute the opinion of Dr. Majors.

Dr. Majors indicated that Fox had reached maximum medical improvement by August 2000 and should have been able to return to work with restrictions. Fox initially testified that Dr. Majors had not released her to any type of work activity. She then qualified that statement, conceding that Dr. Majors did allow her to do “like restricted, like secretarial work or something like that with restrictions and stuff like that.” Fox ultimately [ ^conceded that Dr. Majors told her to relax and elevate her leg and foot because she had muscle spasms in her leg when sitting for a long period of time. In her deposition, Dr. Majors confirmed that she had released Fox to sedentary type work with the requirement that she elevate her foot approximately six inches to help with swelling relating to RSD in August of 2000. With these restrictions, Dr. Majors recommended that Fox begin a light duty part-time job, working four to six hours a day and gradually increasing hours. She recommended re-evaluating Fox after a four to six-week period of part-time activities.

It is important that Fox’s medical condition was based largely upon the subjective representations of Fox, which the WCJ rejected as self-serving and lacking credibility. Dr. Majors’ deposition clearly establishes Fox’s ability to return to light duty sedentary employment with a minor foot restriction, initially at a part-time level for a four to six week period. Fox’s questionable credibility and the lack of proof of her inability to work full-time after the six week term precludes any additional award of benefits after the six week period. On this record, we therefore find that Fox has only established an inability to earn 90% of her pre-accident wages for a six week period. In her post-trial brief, Fox conceded her entitlement to weekly SEBs of $316.00 as a temporary employee. With Dr. Majors’ testimony that Fox could work at least half days at a sedentary job, we find the sum of $150.00 per week for six weeks to be an appropriate award.

| ^Finally, Fox also claims an entitlement to penalties and attorney fees for the underpayment of benefits due to Reynolds’ erroneous classification of her as a seasonal rather than temporary employee. The WCJ found that whether Fox was a seasonal or temporary employee was a close factual issue.

The relevant provisions of La. R.S. 23:1201(F), as it read during Fox’s receipt of benefits, provided as follows:

F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

An employee has the burden of proving his entitlement to statutory penalties for the employer’s failure to timely pay workers’ compensation benefits. Williams v. Mark Johnson Plumbing, 38,-954 (La.App. 2d Cir.9/22/04), 882 So.2d 1193; Bolton v. Mike Fleming Const., 36,-521 (La.App. 2d Cir.12/11/02), 833 So.2d 1177. To reasonably controvert a workers’ 1 ^compensation claim so as to avoid imposition of penalties and attorney fees, the employer and its insurer must provide sufficient factual and medical information to reasonably counter the evidence provided by the claimant. Id. To meet this standard, the employer must have some “valid reason or evidence upon which to base his denial of benefits.” Feild v. General Motors Corp., supra. The court must determine whether the employer “engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Id. The defendant must have some valid reason or evidence upon which to base his denial of benefits. Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885. Penalties are siricti juri and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay. Bolton v. Mike Fleming Const., supra. The WCJ has great discretion in deciding whether to award or deny penalties and attorney fees and such decision will not be disturbed absent abuse of that discretion. Williams v. Mark Johnson Plumbing, supra; Fisher v. Lincoln Timber Co., 31,430 (La.App. 2d Cir.1/24/99), 730 So.2d 973.

In support of its classification of Fox as a seasonal employee, Reynolds submitted the testimony of Carolyn Pullman, Reynolds’ Human Relations and Safety Manager. Pullman testified that Fox worked for Reynolds from November 1995 to February 10,1996.

hfiThe record shows that Reynolds was a construction company that performed work necessitating frequent relocation of company operations to different job sites. At the time of the accident, Reynolds’ work was being performed at a plywood plant owned by another company, and Fox lived nearby. Fox understood that Reynolds’ next job might be in Arkansas.

Because of the nature of its work, Reynolds classified Fox as a seasonal employee. Certainly, the construction business is dependent upon the existence of work and weather conditions, and Fox’s employment as a secretary could have been only short-term due to her residence near the temporary job site. Therefore, the classification of Fox as seasonal under these circumstances, while erroneous, is not without any basis of support. Without Fox presenting any evidence that she contested this classification during the period she received benefits, or that Reynolds frivolously classified her as such, we can discern no abuse of discretion in the WCJ’s determination.

Conclusion

For the foregoing reasons, we reverse that portion of the judgment forfeiting Fox’s benefits and award her $150.00 weekly supplemental earnings benefits for a six week term. The remainder of the judgment denying Fox’s request for penalties and attorney fees is affirmed. Costs of this appeal are assessed to Reynolds.

JUDGMENT REVERSED IN PART, MODIFIED IN PART AND AFFIRMED IN PART.

MOORE, J., dissents with written reasons.

DREW, J., dissents for the reasons assigned by Judge MOORE.

MOORE, J,

dissents.

hi respectfully dissent. The majority correctly cites the principle that factual findings of the WCJ are subject to manifest error review. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706. Under this standard, “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Dean v. Southmark Const. 2003-1051 (La.7/6/04), 879 So.2d 112, 117 (emphasis added). In effect, the appellate court is not free to substitute its own view of the evidence for that of the WCJ, but the majority has apparently done so in this case.

The majority concedes that Ms. Fox made a false statement on a “self-reported pain evaluation” and refused to complete a functional capacity evaluation in September 2001; both of these were plainly inconsistent with the unrestricted physical activity captured on videotape between December 1999 and May 2002 and with the earlier report from Dr. Majors. The WCJ found that Ms. Fox’s actions spoke louder than her words, and I would not disturb that assessment.

The majority also concedes that in a 2002 deposition, Ms. Fox failed to report an automobile accident that occurred after her work-related injury, but decides this was not made “willfully” and for the purpose of obtaining benefits. The majority minimizes Ms. Fox’s failure to report yet another injury (sustained while gardening) after her work-related accident, as well as conflicting statements about whether her employment with Reynolds was | ^temporary (according to her deposition) or permanent (as she testified at trial). When all these facts are properly considered, a pattern or syndrome of untruthfulness emerges which adequately supports the WCJ’s finding of a forfeiture under R.S. 23:1208.

The forfeiture statute is harsh and must be strictly construed. Wise v. J.E. Merit Constructors Inc., 97-0684 (La.1/21/98), 707 So.2d 1214. Even so, this court should not reverse the WCJ’s findings unless they are manifestly erroneous. Graham v. McKinney Nissan, 39,656 (La.App. 2d Cir. 6/29/05), 907 So.2d 213; Brown v. International Paper Co., 38,892 (La.App. 2d Cir. 9/22/04), 882 So.2d 1228, writ denied, 2004-2865 (La.1/28/05), 893 So.2d 78. In my view, the evidence was sufficient to support the forfeiture. I would affirm the judgment.

      . This condition is also known as Chronic Regional Pain Syndrome.

      .Reynolds’ original claim related only to the false statements made to health care providers prior to Reynolds’ discontinuance of wage benefits in September 2001. However, at trial, Reynolds sought to impeach Fox by her testimony from a discovery deposition in which she failed to report injury in an automobile accident discussed infra, and the WCJ listed that purported impeachment as the primary basis for its forfeiture determination.

      . The parties stipulated to the testimony of the videographer.

      . The WCJ’s ruling may have also alluded to Fox's reporting of a gardening "accident” that caused Fox injuries unrelated to her work injuiy.

      . This amount was calculated based upon a computation of 2/3 of her average weekly wage ($474.22) for the four weeks preceding the accident.

      . Fox is not barred from seeking a modification of this award for prospective benefits due to any relevant change in her condition. La. RiS. 23:1310.8; Jackson v. Iberia Parish Government, 98-1810 (La.4/16/99), 732 So.2d 517.

      .The penalty provisions in effect at the time of the alleged error control. Gay v. Georgia Pacific Corp., 32,653 (La.App. 2d Cir. 12/22/99), 754 So.2d 1101.


author: MOORE, J.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Shawn Jamar BLANKENSHIP, Defendant-Appellant.
    No. 41,107-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.
    Rehearing Denied Aug. 17, 2006.

      Shawn Jamar Blankenship, In Proper Person.
    Paul J. Carmouche, District Attorney, Brian Paul Joffrion, Eugene W. Bryson, III, Assistant District Attorneys, for Ap-pellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   MOORE, J.

|! Shawn Jamar Blankenship appeals a judgment ordering him to pay child support of $120 per month, plus an administrative fee of $6.00 per month, to the Louisiana Department of Social Services (“DSS”) on behalf of his minor daughter, KKB. We affirm.

Factual Background

KKB was born in May 1997; slightly over a year later, on June 15, 1998, her mother, Adrina Lary, applied for “full service” with DSS. Under La. R.S. 46:236.1.2, DSS filed a rule for child support. Blankenship entered a stipulated order of support under R.S. 46:236.7, agreeing to pay $120 per month, plus an administrative fee of $6.00 per month, to DSS on behalf of the child. This stipulation remained in force until January 1999, when Ms. Lary advised DSS that Blankenship would be making support payments directly to her. DSS filed a motion formally suspending the payment order.

What occurred over the next six years is summarized from a ruling of the Board of Veterans’ Appeals in Washington D.C., a copy of which was admitted into evidence. Blankenship had served in the military, on active duty from 1992 to 1997, and was receiving veteran’s monthly benefits. In July 1999, his VA benefit was $406 per month, from which the VA allocated $50 to the child. The VA gradually upgraded Blankenship’s disability rating, and by February 2002 his monthly benefit was $1,188. Ms. Lary then claimed an increased apportionment for the child. At a hearing in June 2002, it transpired that Blankenship was actually receiving RVA benefits and social security disability benefits totaling $1,487 per month; as a result, the VA increased the child’s monthly allocation to $250. Blankenship filed a notice of disagreement (in effect, a notice of appeal) with this decision.

In a June 2004 ruling, the Board of Veterans’ Appeals agreed with Blankenship. It noted that his monthly expenses exceeded $3,500, he had joint custody of KKB, and Ms. Lary failed to produce credible evidence of the child’s needs. Most importantly, the Board found that increasing KKB’s apportionment would likely result in undue hardship to Blankenship and his other dependents. The Board therefore reversed the increase, noting that if Ms. Lary “is owed back child support, she must apply to the court that ordered these payments for a remedy.”

DSS notified Blankenship that his child support was in arrears; he requested a hearing in the Caddo Juvenile Court in May 2005. The hearing officer found that the original support order had been judicially suspended and that DSS would have to file a rule to reinstate it; DSS filed such a rule. Blankenship objected, arguing in essence that the VA had already declared that he owed no more out of his government benefits for the child.

A series of hearings took place between June 22 and November 30, 2005. At one of these, Blankenship admitted he was then (November 9) receiving VA disability of $2,605 per month (from which KKB was receiving her apportionment of $50 per month) and social security disability benefits of $642 per month. Nevertheless, he contended that the VA was | acorrect: any more than a $50 allocation would work a hardship on him and his other dependents.

The juvenile court found that under Rose v. Rose, 481 U.S. 619, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987), there was no “supremacy problem”: Blankenship’s federal benefits could be considered in figuring the amount of support. The court ordered the original judgment of $126 per month reinstated.

Discussion

Blankenship has appealed, filing a pro se “Notice of Lodging and Briefing Order.” This contains no specifications of error, arguments in support thereof, or citations to the transcript. By reply brief, DSS contends that Blankenship “fails to technically assign any error on appeal * * * [or] to provide any additional facts with which to argument against.”

Under URCA Rule 2-12.4, the appellant’s brief must contain, inter alia, “a specification or assignment of alleged errors relied upon, the issues presented for review, an argument confined strictly to the issues of the case, * * * giving accurate citations of the pages of the record and the authorities cited[.]” Further, the court “may consider as abandoned any specification or assignment of error which has not been briefed.” Blankenship’s filing clearly does not comply with these provisions; the appeal could be dismissed for lack of proper form.

We note, however, that Blankenship is not a lawyer. He has elected to represent himself in this appeal, a right consistent with the constitutional guarantee of access to the courts. La. Const. Art. 1, §§ 19, 22. In the | ¿circumstances, we decline to dismiss his appeal. Instead, we have endeavored to address the substance of his claim to the extent possible on the record. Costales v. Turner Industries, 05-36 (La.App. 5 Cir. 5/31/05), 905 So.2d 410, writ denied, 2005-1707 (La.1/9/06), 918 So.2d 1056; St. Agnes Health/Rehabilitation Center v. Ledet, 2000-1587 (La.App. 3 Cir. 3/21/01), 782 So.2d 1145.

On the merits, Blankenship contends that the juvenile court lacked jurisdiction because of federal supremacy. Citing the former 38 U.S.C. § 211(a), he argues that decisions of the Administrator of the VA on any question of law or fact under any law administered by the VA proving benefits for veterans and dependents “shall be final and conclusive and no other official or any court of the United States shall have power to jurisdiction to review any such decision.” He contends that the state should not be able to reinstate a support order that was judicially suspended, dismissed and pursued through the Department of Veterans’ Affairs. He suggests that the judgment of November 30, 2005, is “arguably in conflict” with § 211(a), and “the State has no right to make a conflicting decision.” He concludes that no state legislature or court has the power to re-order the distribution of federal social security benefits, and asks this court to dismiss DSS’s claim.

DSS responds that in any action against a person who is receiving government benefits, the state gives credit for any amounts already being | Rpaid to the child. It contends that the guideline amount of child support was more than KKB was receiving through Blankenship’s previously calculated veteran’s benefits. It concludes that DSS should be able to recover the difference between the guideline amount and the benefits already distributed to the child.

The supreme court addressed the supremacy issue in Rose v. Rose, supra, concluding that a Tennessee state court had jurisdiction to hold a disabled veteran in contempt for failing to pay child support, where the veteran’s only means of satisfying the obligation was from VA benefits. After quoting 38 U.S.C. § 211(a), the court explained:

As already noted, however, we can find no clear indication that Congress intended the Administrator to make child support determinations contrary to the determinations of state courts. The interest in uniform administration of veterans’ benefits focuses, instead, on the technical interpretations of the statutes granting entitlements, particularly on the definitions and degrees of recognized disabilities and the application of the graduated benefit schedules. * * * These are the issues Congress deemed especially well suited for administrative determination insulated from judicial review. Thus, even assuming that § 211(a) covers a contempt proceeding brought in state court against a disabled veteran to enforce an order of child support, that court is not reviewing the Administrator’s decision finding the veteran eligible for specific disability benefits. The uniformity of the Administrator’s decision is therefore not endangered. And since the Administrator is not a party in the contempt proceeding, no additional litigation burden is created. There being no “major damage” to the federal interests underlying § 211(a), we conclude that it does not pre-empt exercise of state-court jurisdiction to enforce a veteran’s child support obligation.

481 U.S. at 629-630, 107 S.Ct. at 2035-2036 (citations omitted).

As in Rose v. Rose, the instant case does not represent an effort by DSS to override the VA’s determination of Blankenship’s disability and 1 fibenefíts. To the contrary, it is a legitimate effort to satisfy Blankenship’s child support obligation from available resources. This scheme does no “major damage” to any federal interest, as the juvenile court aptly noted. In fact, the Board of Veterans’ Appeals also ruled that if Ms. Lary “is owed back child support, she must apply to the court that ordered these payments for a remedy.” This is precisely the avenue that DSS pursued on her behalf.

In addition to finding no federal preemption, we find the juvenile court did not abuse its discretion with respect to the amount of the award. By stipulation dated August 26, 1998, Blankenship admitted the child was entitled to support of $120 per month. This had the effect of a judicial admission or confession binding the parties and the court. La. C.C. art. 1853; Becht v. Morgan Building & Spas Inc., 2002-2047 (La.4/23/03), 843 So.2d 1109; Lewis v. City of Shreveport, 36,659 (La.App. 2 Cir. 12/11/02), 837 So.2d 44. The record does not show that the stipulation was tainted by error of fact. There is no merit to Blankenship’s general contention that DSS failed to prove its case.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the appellant, Shawn Jamar Blankenship.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, MOORE, and LOLLEY, JJ.

Rehearing denied.

      . At the time, this section was designated as R.S. 46:236.1.

      . The notice from DSS is not in the record, but Blankenship’s request is.

      . Blankenship retained counsel for the hearings on November 9 and 30, 2005, but he formally withdrew in January 2006.

      . This section was repealed by Pub.L. 102-83, § 2(a) but its provisions were reenacted with minor changes as 38 U.S.C. § 511(a), effective August 6, 1991. Section 511(a) now provides that “the decisions of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.”