author: GREMILLION, Judge.

text:
    Toni W. ODOM v. KINDER NURSING HOME.
    No. 06-1442.
    Court of Appeal of Louisiana, Third Circuit.
    April 25, 2007.

      Robert T. Jacques, Jr., Lake Charles, LA, for Plaintiff/Appellee, Toni W. Odom.
    Craig A. Davis, Lafayette, LA, Counsel for Defendant/Appellant, Kinder Nursing Home.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

_JjThe defendant, Kinder Nursing Home, appeals the workers’ compensation judge’s judgment finding the plaintiff, Toni Odom, permanently and totally disabled and entitled to recommended psychological medical treatment. Odom was further awarded penalties and attorney’s fees as a result of its improper reduction of her indemnity benefits and its failure to properly investigate her claim. For the following reasons, we affirm.

FACTS

Odom was employed as the night staff nurse for Kinder Nursing Home. On July 24, 1997, she was leaning against a bed rail while hanging a feeding bag, when it gave way causing her to fall and strike her head. As a result, she lost consciousness for approximately twenty minutes and injured her right arm and wrist, head,.neck, and upper and lower back. She was treated at the Lake Charles Memorial Hospital Emergency Room for a cervical strain and a closed head injury and told to follow up with her primary care physician, Dr. Peggy Allemand. Dr. Allemand ultimately referred her to Dr. Paul Mayes, a physia-trist, due to persistent musculoskeletal pain.

On May 7, 2003, Odom filed a disputed claim for compensation alleging that Kinder Nursing Home had wrongly reduced her indemnity benefits from temporary total disability benefits to supplemental earnings benefits on May 4, 2008, had provided her with inadequate vocational rehabilitation, disputed her disability status, and was liable for penalties and attorney’s fees on each issue. She amended her disputed claim to later allege that it failed to authorize the EMG/nerve conduction study and speech therapy recommended by its neurologist, Dr. Steven Zuckerman, and |2her treating physicians. Odom further alleged that Kinder Nursing Home had provided her with sham rehabilitation and that it should be liable for maximum penalties and attorney’s fees.

Following a trial on the merits, the workers’ compensation judge rendered written reasons finding that Odom was temporarily totally disabled from a pain management standpoint. The workers’ compensation judge further stated that she did not believe that Odom was malingering neuropsychologically, but appointed an independent medical examiner to conduct a neuropsychological assessment to address whether her current psychological condition was work-related. Thereafter, an independent medical examination was performed on Odom by Dr. Lawrence Dilks, a clinical neuropsychologist. In his September 9, 2005 report, he determined that she met the criteria for cognitive impairment, secondary to post-concussion syndrome, pain disorder, physiological and psychological features; moderate depression, secondary to pain disorder; post-traumatic stress disorder; and insomnia, secondary to pain disorder. Dr. Dilks further found that Odom’s cognitive impairment and post conversion syndrome were a direct result of her work-related injury.

During the interim, Odom filed a third disputed claim for compensation alleging that Kinder Nursing Home improperly altered her supplemental earnings benefits back to temporary total disability benefits on June 20, 2005, without providing proper notice of the alteration. She further sought penalties and attorney’s fees based on this action.

Based on Dr. Dilks’ evaluation, the workers’ compensation judge rendered oral reasons for judgment finding that Odom’s psychological problems were |3compensable. Judgment was then rendered finding that Odom was temporarily and totally disabled from a pain management standpoint, that her central pain disorder resulted from her work-related injury, and that she was not malingering neuropsychologically. The workers’ compensation judge further held that she gave significant weight to Dr. Dilk’s evaluation and found Odom’s psychological problems compensable. Following the rendition of this judgment, both Odom and Kinder Nursing Home filed motions for new trial, which were granted.

After taking the matter under advisement, the workers’ compensation judge rendered judgment finding that the medical evidence preponderated in Odom’s favor from a pain management standpoint and that her psychological problems were compensable injuries. The workers’ compensation judge further held that Kinder Nursing Home failed to provide suitable vocational rehabilitation to Odom, that she did not violate the La.R.S. 23:1208 fraud statute, and that she was permanently and totally disabled. Finally, the workers’ compensation judge held that Kinder Nursing Home improperly reduced Odom’s temporary total disability benefits to supplemental earnings benefits, failed to reasonably investigate her claim, and awarded her $4,000 in penalties and $12,000 in attorney’s fees. This appeal by Kinder Nursing Home followed:

ISSUES

On appeal, Kinder Nursing Home raises eight assignments of error. It argues that the workers’ compensation judge erred in finding that:

1. Odom proved by clear and convincing evidence that she was permanently and totally disabled as a result of her work-related accident.
|42. Odom’s psychological problems were related to her work-related accident.
3.Kinder Nursing Home failed to provide Odom with suitable vocational rehabilitation.
4. Odom did not violate La.R.S. 23:1208.
5. From a pain management standpoint, the medical evidence preponderates in Odom’s favor.
6. Kinder Nursing Home improperly reduced Odom’s temporary total disability benefits to supplemental earnings benefits.
7. Kinder Nursing Home did not reasonably controvert Odom’s claims and in awarding penalties and attorney’s fees.
8. Kinder Nursing Home failed to reasonably investigate Odom’s claim.

Odom has filed an answer to appeal seeking additional attorney’s fees for work performed on appeal.

STANDARD OF REVIEW

As in other civil matters, the standard of review applied to factual findings in workers’. compensation matters is the manifest error standard. This standard, which is based upon the reasonableness of the factual findings in light of the record reviewed in its entirety, is well established in our jurisprudence following the seminal cases of Rosell v. ESCO, 549 So.2d 840 (La.1989), and Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993).

DISABILITY STATUS

In its first assignments of error, Kinder Nursing Home argues that the workers’ compensation judge erred in finding that Odom proved by clear and |ficonvincing evidence that she is permanently and totally disabled as a result of her work-related accident. It further argues that the workers’ compensation judge erred in finding that Odom’s psychological problems stemmed from her work-related accident and that she satisfied her burden of proof with regard to her pain management treatment.

An injured employee will be entitled to recover permanent and total disability benefits if he or she proves their inability to engage in any type of employment by clear and convincing evidence. La.R.S. 23:1221(2)(c). “The issue of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Le-Blanc [v. Grand Isle Shipyard, Inc., 95-2452 (La.App. 1 Cir. 6/28/96)], 676 So.2d [1157,] 1161. The issue of disability is determined with reference to the totality of the evidence, including both lay and medical testimony. LeBlanc, 676 So.2d at 1161.” Walker v. High Tech Refractory Seros., Inc., 03-1621, p. 4 (La.App. 1 Cir. 6/25/04), 885 So.2d 1185, 1188.

Moreover, before an injured employee may be found permanently and totally disabled, La.R.S. 23:1226(D) requires the workers’ compensation judge to consider the likelihood of the employee being rehabilitated through training or education to the extent that he or she may become gainfully employed again. In Comeaux v. City of Crowley, 01-0032, p. 13 (La.7/3/01), 793 So.2d 1215, 1222, the supreme court stated, “Obviously, the Legislature intended, by imposing in La.Rev.Stat. 23:1226 a mandate that the prospects of rehabilitation be explored before an employee is classified as permanently, totally disabled, that the results — negative as well as positive — of such attempted rehabilitations be considered in ultimately | (¡determining disability status.”

Dr. Mayes began treating Odom on October 15, 1997, and continued her treatment up to and after the trial on the merits in this matter. Initially, he stated that she suffered from post-concussive syndrome or a closed head injury and mild and increased tone in her right arm. He felt that the pain in her arm was caused by a central pain syndrome or thalmic pain syndrome, which he described as occurring in stroke and head injury cases when:

[T]he effected side of the body is intertwined centrally in the brain with many mechanisms that control function and sensory and tone; and an environment is set up such that the brain reports pain in the effected limb and it’s modulated and controlled in the brain as opposed to in the limb.

Dr. Mayes testified that Odom’s condition has worsened over time. By March 28, 2003, he stated that it had become static for a history of a closed head injury, which led to the development of a central pain disorder, a right C6-7 radiculopathy, and an ulnar and medial neuropathy in her right arm. He stated that she suffers from speech and cognitive impairment, mood disorder including depression and anxiety, and generalized osteoarthritis. He said that she further has a gait disorder requiring the use of a cane, and occasional spasticity, i.e. tics and clonus. In addition to these work-related problems, Dr. Mayes testified that Odom suffers from various other medical conditions, including coronary artery disease; diabetes mellitus, with its likely accompanying peripheral neuropathy; peripheral vascular disease; gastroesophegeal reflux disease; and obesity.

Dr. Mayes stated that although mild head injuries usually resolve within three months, Odom developed the central pain disorder, which affects her right upper and lower limbs. He described Odom’s right arm and shoulder as being practically |7frozen, in that she holds her arm in a contracted position against her body and has difficulty moving her elbow and shoulder. He related this to either the cervical radiculopathy or the central pain disorder. He stated that the pain in her arm affects her ability to grip and lift things and is chronic in nature. Dr. Mayes testified that the C6-7 radiculopathy and the median and ulnar peripheral nerve injuries, alone, could be disabling, but certainly would be a major contributor to her current disabilities. He further stated that if these conditions are not addressed early on, they become permanent.

Dr. Mayes further related Odom’s depression to her work-related injuries. He stated that Kinder Nursing Home has refused to authorize psychological treatment for Odom despite his request for such treatment early on in his treatment of her. While Kinder Nursing Home finally approved a neuropsychological evaluation, he said that it did not authorize any followup treatment, despite the finding that Odom was very depressed, which he said was common in head-injury patients. He further said that it was normal for a patient, such as Odom, who was questioned about the veracity of her symptoms over a period of years, was examined in an adverse way, was not able to work, and had suffered a loss of income, to be depressed.

Dr. Mayes further said that he could not separate Odom’s psychological problems from her physical problems. Although he agreed that she had suffered from depression prior to her work accident, he stated that she was working and functioning prior to her fall. However, afterwards, he said that her condition worsened. With regard to her speech impairment, Dr. Mayes testified that it was either caused by her psychological problems or by “vascular problems in her brain with a speaking ^mechanism in her throat.” He stated that he has recommended speech therapy to address this problem, which Kinder Nursing Home has never authorized.

As of January 14, 2005, Dr. Mayes stated that Odom was still totally disabled. He related this to the C6-7 radiculopathy, the peripheral neuropathy involving her right arm, her chronic pain disorder, and her severe depression. He further stated that he did not feel that she should undergo a functional capacity evaluation.

Early on, Kinder Nursing Home had Odom examined by Dr. Gregory Gidman, an orthopaedic surgeon. In his March 4, 1998 report, he said that he could not explain the unusual presentation of her right upper extremity or her multiple complaints. Although he noted that she had end-stage osteoarthritis in both knees, he said that he could provide no orthopaedic explanation for her gait or her inability to move her right upper extremity. As Odom had suffered a head injury and there was a question of whether she had suffered a stroke, Dr. Gidman recommended that she see a neurologist/neurosurgeon. He then suggested that she undergo an MRI of her shoulder and then a psychiatric evaluation for possible psychosocial factors. If both tests were negative, he opined that she would be at maximum medical improvement and could return to work pursuant to a functional capacity evaluation.

Kinder Nursing Home next referred Odom to Dr. John Clark, a physiatrist. In his February 22, 2001 report, he found that Odom had suffered a significant brain trauma as a result of her accident, which caused her spastic right hemiparesis, motor imbalance, speech and language deficits, as well as chronic myofascial pain with superimposed thalmic pain syndrome. Dr. Clark opined that | gOdom’s chronic pain stemmed from her increased tone with superimposed thalmic pain condition and that she was incapable of returning to work due to her impairments. He recommended that she undergo an MRI of the brain, a neuropsychological evaluation, and speech therapy. He also suggested an occupational therapy evaluation of her home in order to outfit it with grab bars and a tub bench.

Dr. Zuckerman examined Odom once at Kinder Nursing Home’s request. In his April 18, 2001 report, he doubted whether any of her symptoms were physiological and, although he found her report of a head injury to be very ambiguous, he opined that a mild closed head injury would not cause the sort of persistent problems suffered by her. He further felt that such an injury should have resolved within three months. Dr. Zuckerman recommended that Odom undergo an MRI of the brain to exclude the possibility that she had suffered a stroke. If it was negative, then he recommended an EMG/nerve conduction study of the right arm to exclude any nerve root or peripheral nerve dysfunction. Otherwise, he recommended a psychiatric evaluation for an assessment of malingering. Subsequent to a normal June 8, 2001 MRI of the brain, Dr. Zuck-erman found no physical basis for Odom’s ongoing complaints; therefore, he opined that she could return to work at full duty with no restrictions.

Dr. Rennie Culver, a psychiatrist, also evaluated Odom once at the request of Kinder Nursing Home. In his October 1, 2001 report, he stated that Odom was obviously depressed and he was unable to determine the onset of this condition due to her reluctance to give him relevant information. However, he noted that Dr. Alle-mand’s medical records documented that she was depressed prior to her workjrelat-ed10 accident, and he opined that the source of this depression was the declining health and later deaths of her parents and the fact that she bore three illegitimate children for the same doctor.

Dr. Culver felt that Odom was malingering or suffering from a factitious disorder and indicated that she was positive for three of the four criteria for malingering. He felt that she had suffered a very mild traumatic brain injury as a result of her fall, which should have resolved within three months. He based a finding of malingering on her inconsistent clinical presentation which he said had resulted in a number of diagnoses over the years and with little improvement. He explained that one of the hallmarks of malingering or factitious disorders is the failure of the patient’s complaints to conform to any known medical problem or that the complaints are so inconsistently presented that they result in a number of different diagnoses. Dr. Culver recommended that Odom undergo a psychological evaluation to define the parameters of her mental condition and a functional capacity evaluation to define the nature of her problems.

Dr. Charles Robertson, a clinical psychologist, performed a neuropsychological evaluation, which was authorized by Kinder Nursing Home based on Dr. Zueker-man’s recommendation. In his extensive report, he summarized his findings and recommendations as follows:

Toni Odom is a 49 year old, white female outpatient, referred by Dr. Paul Mayes for neuropsychological assessment. Current test results reflect problems in the cognitive domain with dis-tractability, sustained attention, and speed of mental operations. There were no clear indications of lateralized impairments which would suggest a stroke. Language screening reflected dysarthria and dyscalculia but found adequate verbal fluency with no classic aphasic or apraxic disorders. Intellectual measures suggested greater non-dominant hemisphere | n impairments in visual-spatial tasks with low-average overall functioning. Memory problems found were confounded by attention and concentration problems. Effort demanded by the tasks was a potent predictor of memory performance, suggesting a depression effect. Higher-order reasoning and problem solving was moderately impaired.
Problems in the psychological domain include severe depression and anxiety with likely conversion of psychological stress to physical complaints. A history of psychological instability is reflected. She has complaints consistent with a diagnosis of pain disorder.
Overall results from neuropsychological assessment are more suggestive of severe psychiatric problems than brain injury. She would not be expected to have her current level of difficulty with attention and concentration four years after a mild brain injury. This is not to say she did not sustain a brain injury in her fall 4 years ago, however. The level of impairment found suggests a more acute problem such as a response to medication, psychiatric illness, or more recent brain injury. No clear pattern of lateralized brain injury was found to account for her appearance of hemiparesis. Her language problems are atypical. A more detailed assessment by a certified speech pathologist is warranted.
She does not present as someone malingering neuropsychological impairment, however. Validity measures were all passed. She appears more to be convinced she has severe medical problems and is quite worried about her health. She may convert psychological stress to physical symptoms and completely lack insight into doing so.
While neuropsychological syndromes are not clearly present, her psychiatric profile is less ambiguous. A severe major depression with anxiety is present and probably related to her chronic pain complaints. She also matches diagnostic criteria for somatoform disorder. A history of personality disorder is also likely-
I advise prompt referral for aggressive psychiatric treatment of depression and anxiety. She may respond to medical reassurance about her physical complaints. She should be scheduled for an evaluation by a certified speech pathologist. I can arrange this through my office if needed. She should continue in pain management care with Dr. Mayes. He can determine her readiness to return to work based on limitations from chronic pain and medication. However, I believe her severe psychiatric illness presently prevents her from returning to work. A combination of psychiatric medical management and cognitive behavioral therapy by a neuropsychologist is advised. Once her depression and anxiety resolve, a repeat neuropsycho-logical evaluation may be more revealing.

|1⅞After performing his court-ordered neuropsychological evaluation, Dr. Dilks opined that Odom was suffering from a mild post-concussion syndrome, along with impairments in her memory, judgment, and reasoning. He further found that her profile was indicative of major depression. Based on his findings, he recommended the following actions: 1) psychiatric consultation and follow-up treatment; 2) neurological consultation and follow-up treatment; 8) physical therapy consultation; 4) driving evaluation; 5) individual counseling for depression; 6) group counseling for post-traumatic stress disorder; 7) vocational evaluation; 8) sleep study; 9) speech and language evaluation and follow-up treatment; and 10) re-evaluation in one year. Finally, Dr. Dilks related Odom’s findings directly to her on-the-job injury.

Odom testified that her condition worsened progressively after her fall until she was unable to use her right arm and had to use a cane due to the pain in her right leg and her problems with balance. Although she suffered from preexisting arthritis in her right knee, she said that the fall increased her arthritis. She further stated that her arthritis medication affected her kidneys so she no longer took it. As a result, she stated that she suffered greater pain and increased difficulty in walking.

Odom further testified that she now has difficulty speaking and suffers from increasing depression since her accident. She said that she feels depressed and frustrated because of her loss of independence and her inability to do things for herself since the accident. She stated that she lives alone, but said that her daughter visits her and she has hired someone to clean her house. She said that she lacks stamina and is no longer able to vacuum, sweep, or make her bed; however, she stated that she can load her dishwasher, cook, and wash and fold clothes using one hand.

haOdom testified that she is able to drive her car, which is an automatic, in Kinder and to Eunice, which is twenty-five miles away. However, she said that she requires a driver to go anywhere else, as she is not as confident driving as she was prior to her fall. She stated that this is especially true when she is driving on the interstate, as she does not believe that she would think or react quickly enough in an emergency.

Britaney Bogard, Odom’s daughter, testified that she has noted tremendous declines in her mother’s mental and physical capabilities since her fall. Prior to that, she stated that Odom worked a ten-day shift for Kinder Nursing Home, raised her three children singlehandedly, and did practically everything for herself. However, afterwards, she stated that Odom began experiencing problems with her speech, the use of her right arm and leg, and increasing depression. Now, she stated that Odom’s speech comes and goes and that she uses a four-legged cane to walk. Bogard testified that she and her husband both left well-paying positions in Orlando, Florida to return to Kinder in order to care for her mother.

Bogard stated that Odom’s inability to use her right arm prevents her from drawing and painting. She said that her mother was an accomplished artist, but now she uses her left arm for writing and eating. Although she stated that Odom is able to drive and visit her friend, who lives ten miles away, she said that she requires a driver to go anywhere else. She further testified that she and her husband purchased a scooter for Odom to get her out of the house and do things.

Although Bogard admitted that Odom was depressed due to the illnesses and later deaths of her parents, she stated that her depression increased after her fall. luShe testified that Odom becomes more depressed if she is unable to leave her home and that she feels okay as long as she remembers to take her medication. However, she said that she can tell when Odom forgets to take her medication. She stated that Odom will start crying just from watching a commercial on television. Now, she testified that they cannot watch any movie which has a sad ending and that her mother tries to focus only on good things.

Ronnie Smith, an independent nurse case manager, testified as a friend of Odom’s. He stated that he was the administrator of Kinder Nursing Home from 1978 through 1991, and that he hired Odom as the night LPN. Prior to her accident, he testified that Odom was an excellent employee, who supervised 100 patients and four nurses’ assistants as the night nurse. While he worked for Kinder Nursing Home, he stated that he never noticed that Odom was depressed to such an extent that she was unable to work. He further admitted that she was slightly overweight and that she walked with a slight abnormality as a result of arthritis in her legs. However, he said that neither problem hindered her in any way. He did testify that the way she walks has changed since her fall.

Smith said that he has seen a drastic change in Odom since her fall. He stated that her thought process has become much slower and that her speech has deteriorated. He said that her speech is better on some days than others, but that sometimes she speaks very slowly and does not make complete statements or sentences. He said that she occasionally speaks clearer when she is aggravated, but that her speech slows down again when she becomes calmer.

|1sKaren Pelican and Helen Daniels both work for Kinder Nursing Home; Pelican as secretary and Daniels as Odom’s relief nurse. Both testified that Odom walked with a limp prior to her accident and that they noticed no difference in how she walked prior to her fall than how she walked afterwards. Daniels testified that Odom did not use a cane prior to her fall.

In her written reasons for judgment, the workers’ compensation judge held that Odom carried her burden of proof with regard to the issue of pain management based on the testimony from Drs. Mayes and Clark. The workers’ compensation judge recalled that Dr. Mayes opined that Odom was suffering from a central pain disorder as a result of her brain injury, while Dr. Clark found that she suffered from a “spastic right hemiparesis, motor imbalance, speech and language deficits, as well as chronic myofascial pain with superimposed thalamic pain syndrome.” Both doctors felt that Odom was incapable of returning to work as a result of her impairments. The workers’ compensation judge further held that Odom’s psychological problems were work-related based on Dr. Robertson’s and Dr. Dilks’ neuropsy-chological assessments. Although Drs. Zuckerman and Culver found no relationship between Odom’s psychological condition and her work-related injury, the workers’ compensation judge held that Odom proved by clear and convincing evidence that they were a direct result of her work-related accident.

On the issue of disability, the workers’ compensation judge stated in her written reasons for judgment:

It is undisputed that Dr. Mayes, claimant’s treating physician and Dr. Clark, defendant’s choice of physician, opined that claimant in (sic) not capable of returning to work. Notwithstanding the fact that claimant has |1fiother non-work related medical concerns, the fact remains that she has not been released to work by her treating pain management physician, Dr. Mayes, as well as by defendant’s pain management physician, Dr. Clark. The court appointed psychologist, Dr. Dilks, does not believe claimant is capable of working. In addition, Dr. Dilks indicates that Ms. Odom’s neuropsychological assessment suggests cognitive impairment and post-concussion syndrome that directly relate to her job injury.
Based on the evidence presented, the court finds that the totality of the evidence demonstrates that it will be impossible due to claimant’s mental instability and physical limitations for claimant to work. The fact that Ms. Odom can do limited activities at certain times for limited periods of time does not equate to employment capability. Reeves v. International Maintenance Corporation, [05-1149 (La.App. 3 Cir. 4/5/06)] 926 So.2d 105 (La.App. 3 Cir. 4/5/06). Accordingly, this court finds that claimant is permanently and totally disabled.

After reviewing the record in its entirety, we find no error in the workers’ compensation judge’s finding that Odom is permanently and totally disabled. Dr. Mayes, who has treated Odom continuously from two months postaccident, said that she was totally disabled as a result of her C6-7 radiculopathy, the peripheral neuro-pathy involving her right arm, her chronic pain disorder, and her severe depression. In finding this, he did not take into account Odom’s additional health problems such as her cardiac problem, diabetes, and peripheral vascular disease. Moreover, Dr. Clark, Kinder Nursing Home’s choice of physiatrist, and Dr. Robertson both felt that Odom was incapable of returning to work.

Although Drs. Zuckerman and Culver found no relationship between Odom’s fall and her psychological problems and felt that she was malingering and was capable of returning to work at full duty, we find no error in the workers’ compensation judge’s decision to instead credit the testimony of Drs. Mayes, Robertson, and Dilks. Both Drs. Robertson’s and Dilks’ reports indicate that Odom |17passed all tests for validity and that she was not seen as malingering. Accordingly, the workers’ compensation judge’s judgment, finding that Odom proved by clear’ and convincing evidence that her psychological and pain management problems resulted from her work-related accident and that she is permanently and totally disabled, is affirmed.

VOCATIONAL REHABILITATION

In its next assignments of error, Kinder Nursing Home argues that the workers’ compensation judge erred in finding that it failed to provide Odom with suitable vocational rehabilitation services.

An employee, who suffers a work-related injury rendering her incapable of earning wages equal to or in excess of her pre-injury wages, is entitled to prompt rehabilitation services from a licensed vocational rehabilitation counselor chosen by the employer. La.R.S. 23:1226(A) and (B)(3). The goal of rehabilitation is to return the disabled worker to employment as quickly as possible, with as little retraining as possible.

In this instance, the workers’ compensation judge held that Kinder Nursing Home failed to provide Odom with suitable vocational rehabilitation services, as it failed to meet the standard for proving job availability as set out in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. There, the supreme court stated:

[A]n employer may discharge its burden of proving job availability by establishing, at a minimum, the following, by competent evidence:
(1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or | ^reasonable geographic region;
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.
By “suitable job,” we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education.

Id. at 557 (footnote omitted).

Marcy Holmes was hired by Employer’s Risk Management Services to provide vocational rehabilitation services to Odom. She stated that she received Odom’s file on April 17, 2002, but closed it in September 2002, without completing her evaluation as Dr. Mayes would not release Odom to return to work.

In her July 25, 2002 report, Holmes noted the following barriers to Odom’s successful rehabilitation: 1) secondary conditions-arteriosclerotic vascular disease, diabetes mellitus, and peripheral vascular disease; 2) observed and reported inability to use her right arm for functional activity; 3) evidence of dysarthrimic speech-difficulty with word finding and expression; 4) obvious physical disability as evidenced by use of a cane and dysarthrimic speech; and 5) prescribed medications affecting cognition and her ability to drive-Vicodin, Xanax, and Ambien.

Holmes testified that she completed a generic labor market survey in which she located seven sedentary positions. She admitted that the positions did not necessarily match Odom’s qualifications or vocational background, but described the survey as a snapshot of the positions available between August 8-18, 2002. The 1^positions were 1) slot clerk at Island Gold, Isle of Capri Casino; 2) reservation clerk, Isle of Capri Casino; 3) c.b.x. operator at Lake Charles Memorial Hospital; 4) r.v. guest services representative, Grand Casino Coushatta; 5) registrar position, Women and Childrens Hospital; 6) counter sales representative, AAA Cleaners; and 7) revenue auditor, Isle of Capri Casino.

Holmes testified that she did not feel that there was anything more she could offer Odom until she knew what her physical capabilities were. However, she said that Dr. Mayes indicated that he would not order a functional capacity evaluation for Odom due to her secondary diagnosis of peripheral vascular disease and peripheral neuropathy. Holmes further stated that Dr. Mayes never differentiated as to whether Odom was disabled as a result of her work-related accident or due to her peripheral vascular disease or neuropathy.

Crystal Younger, the owner and manager of Younger and Associates, testified that her company was hired by Employer’s Risk Management Services to provide vocational rehabilitation services to Odom. She stated that her former employee, Shelly Brantley, performed the actual work on Odom’s file, but has since left the vocational rehabilitation field. In reviewing the file, Younger testified that Odom’s counsel would not let her meet with Brant-ley because he complained that Kinder Nursing Home was shopping around for vocational rehabilitation services. She further stated that the file indicated that a June 26, 2002 report by Holmes said that Dr. Mayes placed Odom at maximum medical improvement for her mild brain injury, but that she was not at maximum medical improvement for her unrelated physical problems of peripheral vascular disease and depression.

PpYounger testified that Brantley performed a labor market survey based on Dr. Mayes’ finding that Odom was at maximum medical improvement for her brain injury. However, she described it as being hypothetical as Brantley was limited to Holmes’ information from her initial meeting with Odom. She stated that five positions were found which were approved by Drs. Culver and Zuckerman.

Younger identified the five jobs in the survey. The first job was for a pit clerk at Harrah’s Casino in Lake Charles. She stated that this job was situated in a high volume environment and entailed key wording and the use of a computer terminal. The second job was a c.b.x. operator at Harrah’s Casino in Lake Charles. The job description required the employee to provide professional, courteous, and efficient service at all times; to present oneself as a credit to Harrah’s; required dexterity to perform several functions at the same time; and possess a pleasant and easily comprehensible voice. The third position was for a cashier checker at Piccadilly in Lake Charles. This entailed using a cash register and interacting with customers. The fourth job was for a front desk clerk at Motel Six in Lake Charles. The fifth job was a direct care position with Robinswood School in Lake Charles, which entailed supervising and observing developmentally disabled adults. This position was a light duty job and required occasionally lifting of ten to twenty pounds, frequent sitting, standing, occasional walking, and rare bending, twisting, and reaching above the shoulder.

Dr. Mayes felt that Odom was incapable of performing all of these positions, as she lacked the physical dexterity to perform most of the positions’ functions and would be hindered by her balance problems. When questioned, Dr. |2i Mayes stated that he did not believe it was reasonable to think that Odom could perform any of these jobs.

Melissa Vaughn, a claims representative for Employer’s Risk Management Services, handled Odom’s claim as the third party administrator for Kinder Nursing Home. She testified that she hired Holmes to conduct a labor market survey for Odom, but removed her from the file when she failed to do so based on Dr. Mayes refusal to release Odom to return to work. She stated that she wanted the labor market survey because Drs. Culver and Zuck-erman had released Odom to work based on her work-related problems. Vaughn testified that she never attempted to obtain Dr. Mayes approval for the jobs and she never sent the job descriptions to any other treating physician. Finally, she admitted that Odom was never provided any vocational rehabilitation services, other than the labor market survey conducted by Younger.

In her reasons for judgment, the workers’ compensation judge held that Kinder Nursing Home failed to satisfy the standards set out in Banks. Specifically, she stated that the vocational rehabilitation counselor failed to identify any actual position that was within Odom’s physical capabilities and her reasonable geographic region of Kinder.

After reviewing the evidence, we find no error in this finding. The labor market survey was, by Younger’s own admission, hypothetical in nature and contained positions that Dr. Mayes described as being beyond Odom’s capabilities. All of these positions required physical dexterity in the use of her hands and interaction with the public. Based on Dr. Mayes’ testimony, Odom has very limited use of her right arm and hand and would be incapable of using this, her dominant hand, to perform the | ^described functions. She also has speech difficulty, so interacting with the public would be very difficult for her. Moreover, all of the positions listed were located in Lake Charles. We agree with the workers’ compensation judge that this is outside of Odom’s reasonable geographic area, as she requires a driver to go anywhere beyond Kinder or Eunice, especially if she is required to drive on the interstate. Based on the foregoing, the judgment of the workers’ compensation judge finding that Kinder Nursing Home provided Odom with insufficient vocational rehabilitation services is affirmed. This assignment of error is dismissed as being without merit.

PENALTIES AND ATTORNEY’S FEES

In its next assignments of error, Kinder Nursing Home argues that the workers’ compensation judge erred in awarding Odom penalties and attorney’s fees. The workers’ compensation judge held that Kinder Nursing Home failed to reasonably controvert her claim prior to reducing her weekly indemnity benefits and that it failed to properly investigate her requests for various medical therapies and handicap bars prior to denying them. As a result, she awarded Odom $4,000 in penalties and $12,000 in attorney’s fees.

Dr. Mayes testified that Kinder Nursing Home’s failure to approve testing early on prevented him from making a proper diagnosis in this matter. He stated that it was slow in responding and would not provide diagnostic testing until after its own consultants examined Odom and requested the same tests. Dr. Mayes said that although he requested a test of the brain to rule out neuropathy versus a stroke, the test was not authorized until Dr. Zucker-man requested it in 2001. He further said that he requested an EMG/nerve conduction study as early as 1998 and 2001, which was not | ^approved until Dr. Zuckerman requested it. This test was not performed until 2004. He testified that he has consistently requested psychological treatment for Odom, but that it was not approved by Kinder Nursing Home until after she was seen by Dr. Culver in 2001. He further stated that his requests for a utility cart, cervical pillow, and grab bars for her shower and hallway were never approved.

Vaughn admitted that she relied strictly on her own physicians’ opinions in approving medical tests and in reducing Odom’s benefits, even though she was aware that Drs. Culver and Zuckerman had each seen her only once. Although Dr. Clark was her choice of physiatrist, she testified that she refused to authorize the neuropsycho-logical and occupational therapy evaluations and speech therapy recommended by him, even though he confirmed Dr. Mayes’ findings on Odom. However, she approved a brain MRI and a neuropsychological evaluation after Dr. Zuckerman recommended them.

Vaughn stated that she did not approve any further treatment for Odom, even after Dr. Robertson recommended that she undergo aggressive psychiatric medical management and treatment for depression, cognizant behavior therapy, and speech therapy. She further admitted denying numerous requests from Odom’s counsel for her to see physicians in various other specialities, and she denied Dr. Clark’s request for handicap bars based on her determination that Odom had walked with a limp prior to the accident.

Vaughn testified that she reduced Odom’s temporary total disability benefits to supplemental earnings benefits after Younger conducted a labor market survey based on Drs. Culver’s and Zuckerman’s opinions that Odom was at maximum | i>4medical improvement. This reduction took effect on May 4, 2008. Vaughn further admitted that she reduced Odom’s benefits even though she was unsure that Odom could actually perform the jobs identified in the survey.

An employer avoids the imposition of penalties and attorney’s fees by satisfying its continuing obligation to investigate, assemble, and assess factual information prior to it denying benefits. Wright v. Cypress Gen. Contractors, Inc., 05-700 (La.App. 3 Cir. 12/30/05), 918 So.2d 526, writ denied, 06-0238 (La.4/24/06), 926 So.2d 553. Furthermore, the decision to award penalties and attorney’s fees is factual in nature and will not be reversed on appeal absent manifest error. Bigge v. The Lemoine Co., 04-1191 (La.App. 3 Cir. 3/2/05), 896 So.2d 269. Based on our review of the record and our finding that Odom is permanently and totally disabled, we find no error in these awards. The judgment awarding $4,000 in penalties and $12,000 in attorney’s fees is affirmed.

FRAUD

In its final assignment of error, Kinder Nursing Home argues that the workers’ compensation judge erred in failing to find that Odom forfeited her right to workers’ compensation benefits based on La.R.S. 23:1208 fraud. It bases its argument on the following facts: 1) that Odom sued for a motorized scooter which was not prescribed by Dr. Mayes; 2) that she lied in her deposition about previously being diagnosed with depression; and 3) that she lied about why she was unable to attend an examination by Dr. Culver.

In order for an employer to prove forfeiture pursuant to La.R.S. 23:1208, it must prove that a false representation was willfully made by the employee for the | ¡^purpose of obtaining compensation benefits. Resweber v. Haroil Constr. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7; La.R.S. 23:1208(A). An inadvertent or inconsequential false statement does not result in the forfeiture of benefits. Jim Walter Homes, Inc. v. Brine, 01-116 (La.App. 1 Cir. 2/15/02), 808 So.2d 818.

Louisiana Code of Civil Procedure Article 1005 further provides that all affirmative defenses must be pled in a defendant’s answer. The fraud provision found in La.R.S. 23:1208 is an affirmative defense; therefore, Kinder Nursing Home was required to plead this defense in its answer. However, it failed to do so. The first mention that it makes of fraud is in its post-trial brief to the workers’ compensation judge.

In Richey v. Vanliner Insurance Co., 97-121 (La.App. 3 Cir. 6/4/97), 696 So.2d 190, writ denied, 97-1799 (La.10/13/97), 703 So.2d 620, we noted an exception to Article 1005 when the first knowledge of the alleged fraudulent statements occurred during cross-examination; thereby depriving the defendant of the right to seek relief pursuant to La.R.S. 23:1208. In that instance, we held that “we [would] not support claimant’s fraud by technical applications of rules related to pleadings.” Id. at 193. However, we find that the facts in Richey are clearly distinguishable, in part, from the facts present here.

The second and third statements that Kinder Nursing Home complains about were known by it for several years. These were not facts which first came to light during the trial on February 9, 2005. Kinder Nursing Home claims that Odom lied in her deposition when she testified that she had not taken any medication for depression prior to her fall. Although it failed to introduce Odom’s deposition into the | ¡^record, Kinder Nursing Home obviously had this information prior to the trial.

Kinder Nursing Home further claims that she lied about the reason she could not attend a 2001 appointment. It had scheduled the appointment with Dr. Culver on June 28, 2001, but was informed by her counsel that her father had died and she would be unable to attend it. Vaughn testified that they normally scheduled appointments approximately a month and a half in advance of the actual appointment. When she was told that Odom would be unable to attend, she stated that she hired a private investigator, who learned that Odom’s father actually died on May 19, 2001, and that she was in Mississippi with her daughter on June 28, 2001. As Kinder Nursing Home knew about Odom’s alleged lie in June 2001, it cannot claim that it suddenly learned about her statements during the trial.

The third allegedly fraudulent statement concerning Odom’s request for a motorized scooter presents the closest question. Dr. Mayes’ records reveal that he received a telephone message from Odom’s counsel on October 4, 2001. The message simply asks if she could have a prescription for a scooter. In his deposition, Dr. Mayes testified that he thought she may have asked for one, but, as far as he could recáll, he' did not feel that she needed it at the time. However, no mention of a request for a scooter is made in Odom’s several disputed claims. During the trial on the merits, she testified that Dr. Mayes prescribed the scooter, but said that it was paid for by her daughter and son-in-law. Bogard simply testified that she was surprised to learn that Dr. Mayes never prescribed the scooter.

In reviewing this evidence pursuant to the manifest error standard of review, we find that the workers’ compensation judge evidently decided that Odom’s [^statement about the scooter was not made willfully for the purpose of obtaining workers’ compensation benefits. The fact that Odom never sought repayment for the scooter from Kinder Nursing Home would support this finding. Accordingly, we find no error in the workers’ compensation judge’s finding that Odom did not commit La.R.S. 23:1208 fraud as a result of her testimony concerning the scooter.

ANSWER TO APPEAL

In her answer to the appeal, Odom requests that we award her additional attorney’s fees for work performed in defense of Kinder Nursing Home’s appeal. Based on our decision affirming the judgment in her favor, we award her an additional $5,000 in attorney’s fees for work performed on appeal. Cannon v. Hamilton Transp., 06-1302 (La.App. 3 Cir. 2/7/07), 948 So.2d 1250.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed in all respects. Additional -attorney’s fees of $5,000 are awarded to Odom for work performed on appeal. The costs of this appeal are assessed to the defendant-appellant, Kinder Nursing Home.

AFFIRMED.


source: Caselaw Access Project

author: DECUIR, Judge.

license: Public Domain

text:
    FRANKLIN FINANCIAL, INC. v. Lawrence B. SANDOZ III, et al.
    No. 06-1606.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      Elliott W. Atkinson, Jr., Atkinson & Martin, L.L.C., Baton Rouge, LA, for Plaintiff/Appellant, Franklin Financial, Inc.
    Nora M. Stelly, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, Lawrence B. Sandoz III, Sandoz & Sandoz.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   DECUIR, Judge.

Bln this legal malpractice suit, the plaintiff, Franklin Financial, Inc., appeals the judgment of the trial court granting the defendant’s exception of prescription. For the following reasons, we affirm the judgment rendered in favor of the defendant, Lawrence Sandoz III.

FACTS

Sometime prior to October of 2002, Franklin Financial purchased an Orleans Parish judgment which had been rendered against Clarence and Sandra Landry on April 18, 1994. Franklin retained Sandoz in October of 2002 to assist with the collection of the judgment. Sandoz was asked to have the judgment made executory in Jefferson Parish, where the Landrys owned property. In its petition, Franklin stated that it hired Sandoz on an hourly basis to “revive the judgment and ensure proper perfection of the judgment against the real property of the judgment debtors in Jefferson Parish, Louisiana.”

On November 15, 2002, Sandoz recorded the judgment as requested, and it was made executory by judicial order dated December 2, 2002. Sandoz informed his client that the judgment would have to be revived by April 18, 2004. In August of 2003, Franklin instructed Sandoz to revive the judgment. Sandoz responded by letter dated August 19, 2003, wherein he stated that the judgment was revived and would be in effect until December 2, 2012. A year later, after receiving information showing that the Landrys had refinanced their home with Ameriquest Mortgage, Franklin contacted Sandoz to inquire how a mortgage could have been issued on property encumbered by Franklin’s lien.

In response to a telephone conversation between Sandoz and Franklin’s president, Nick Valorie, Franklin sent a letter to Sandoz on August 24, 2004, detailing the conversation and specifying the numerous errors Sandoz had committed in the 12eourse of representing Franklin. Assessing its losses at $70,000.00, Franklin specifically accused Sandoz of failing to revive the original judgment, failing to properly record the Jefferson Parish executory judgment, failing to protect Franklin’s interests, and misrepresenting his own previous communications with Franklin. Nevertheless, Sandoz’s representation continued, and the parties made an effort to determine whether Ameriquest simply overlooked the Franklin mortgage or whether the correct filings had not taken place and a judicial mortgage never perfected. Letters to this effect were exchanged on September 7, 2004 and again on September 28, 2004. Finally, in a letter dated December 10, 2004 to Sandoz’s malpractice insurer, Franklin stated that San-doz admitted his mistakes in November 2004.

PROCEEDINGS BELOW

Franklin filed suit against Sandoz on October 24, 2005 in Jefferson Parish. San-doz responded by asserting a declinatory exception of improper venue which was maintained by the trial court on February 10, 2006. The venue ruling was not appealed, and the suit was then transferred to St. Landry Parish. In his answer, San-doz raised the peremptory exception of prescription and/or peremption based on the provisions of La.R.S. 9:5605(A), which states in part:

No action for damages against any attorney ... arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

The trial court considered the arguments of counsel and ruled in favor of Sandoz for the following reasons:

Prescription on a legal malpractice claim is one year from the date the alleged act, omission or neglect is 1 ^discovered or should have been discovered. La.R.S. 9:5605. Prescription be- ' gins to run at the time a claimant knew or should have known of the existence of facts that enable him or her to state a cause of action for legal malpractice. Vaughn v. Slaughter, 94-0552 (La.App. 1 Cir. 3/3/95), 653 So.2d 36 [writ denied, 95-828 (La.5/5/95), 654 So.2d 339].
In the present case, attention was given to the defendant’s argument that the suit filed in October 26, 2005 in Jefferson [P]arish was timely. He based this argument that the plaintiff did not have a clear understanding of Sandoz’s negligence until November 2004. Plaintiffs attorney refers to the December 10, 2004 letter written to the malpractice insurer as evidence of this. This court finds that the letter dated August 23, 2004, written by Franklin Financial to Lawrence Sandoz sets out the plaintiffs knowledge that several errors of legal representation had occurred. Reviewing the content of this letter, the plaintiff cites clearly that the services he contracted Lawrence Sandoz to provide were not done properly. Therefore, using this date, the plaintiff had until August 23, 2005 to file suit against the defendant in this case. However, the suit in this case alleging legal malpractice was not filed until October 24, 2005 in an improper venue. The suit was not filed in a court of proper venue until February 21, 2006. This far exceeds the one-year period from the above date of the act set forth in the plaintiffs letter.

ANALYSIS

At issue in this appeal is the date on which Franklin discovered or should have discovered the alleged malpractice committed by Sandoz. Franklin contends that it did not become aware of sufficient facts indicating it may have a cause of action against Sandoz until October or November of 2004. Franklin also suggests that its continuing relationship with Sandoz shows that it did not realize the full extent of his errors until November of 2004. Franklin argues that its suit filed in Jefferson Parish on October 24, 2004 was therefore timely.

The trial court considered the letter of August 24, 2004 to be proof of Franklin’s knowledge of the alleged malpractice. Therefore, the date of the letter is |4the date prescription began to run. After reviewing the evidence in the record before us, we find no error in that conclusion. As of August 24, 2004, Franklin had sufficient information to realize that San-doz had not protected its interest in the Landry judgment. Franklin then had one year from that date in which to file suit.

Even if we were to agree with Franklin’s position that prescription did not begin to run until November of 2004, we would still be compelled to affirm the trial court’s ruling on prescription. The Jefferson Parish suit, whether filed timely or not, was not filed in a court of proper venue and therefore cannot interrupt prescription. We will not revisit the validity of the venue ruling, as that judgment was not appealed and is now final.

For the above and foregoing reasons, the judgment before us is affirmed. Costs of this appeal are assessed to the plaintiff, Franklin Financial, Inc.

AFFIRMED.

COOKS, J., concurs in the result only and would find that prescription did not begin to run until November of 2004.


text:
    STATE of Louisiana v. Demarco D. HAWKINS.
    No. 06-1599.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Demarco D. Hawkins.
    Bradley R. Burget, First Assistant District Attorney, Seventh Judicial District, Vidalia, LA, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   DECUIR, Judge.

hThe Defendant, Demarco D. Hawkins, pled guilty to two counts of simple burglary of an inhabited dwelling, violations of La.R.S. 14:62.2, and seventeen counts of theft of a firearm, violations of La.R.S. 14:67.15. He was sentenced to twelve years at hard labor on each count of simple burglary of an inhabited dwelling, the sentences to run concurrently to one another and the first year to be served without benefit of probation, parole or suspension of sentence, and to ten years at hard labor on each count of theft of a firearm, the sentences to run concurrently to one another, but consecutively to the sentences for simple burglary of an inhabited dwelling. The Defendant lodged this appeal arguing that the trial court erred in ordering consecutive sentences and that the consecutive sentences are excessive.

FACTS

On June 9, 2004, the Defendant broke into the homes of Ronnie and Johnnie Hendricks and Ronnie Carroll, taking numerous items from the homes. During the investigation of the crimes, an undercover confidential informant purchased a gun from the Defendant that had been taken from the Hendricks’ home. A search warrant was issued to search the Defendant’s home, and several items from the burglaries were found in the home. The Defendant was subsequently arrested, charged, and convicted for the crimes herein.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, the Defendant argues that the trial court erred in ordering consecutive sentences when the theft of firearms occurred inside one of the dwellings, all on the same day during the same episode.

Louisiana Code of Criminal Procedure Article 883 states, in pertinent part, “If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of | ¡Imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively.” As noted by this court in State v. Vollm, 04-837, p. 6 (La.App. 3 Cir. 11/10/04), 887 So.2d 664, 669, “The Louisiana Supreme Court has recognized that although concurrent sentencing is favored, it is within the trial judge’s discretion to impose sentences consecutively based on factors in-eluding the defendant’s criminal record, the severity or violent nature of the crimes, or the danger the defendant poses to the public. State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49.” See also State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461.

The factors to be considered in ordering consecutive sentences were addressed by this court in State v. Merritt, 03-946, pp. 28-29 (La.App. 3 Cir. 3/17/04), 875 So.2d 80, 97-98 as follows:

“[I]n cases involving offenders without prior felony record, concurrent rather than consecutive sentences should be imposed, particularly where the convictions arise out of the same course of conduct. State v. Jacobs, 383 So.2d 342 (La.1980); State v. Cox, 369 So.2d 118 (La.1979).” State v. Brawn, 627 So.2d 192, 199-200 (La.App. 3 Cir.1993), writ denied, 93-3101 (La.3/18/94), 634 So.2d 850.
Imposition of consecutive sentences requires particular justification. State v. Dunbar, 94-1492 (La.App. 3 Cir. 5/31/95), 657 So.2d 429: “[T]he trial court must articulate particular justification for such a sentence beyond a mere articulation of the standard sentencing guidelines set forth in La.C.Cr.P. art. 894.1.” State v. Dempsey, 02-1867, p. 5 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, 1040.
Among the factors to be considered are the defendant’s criminal history, State v. Ortego, [382 So.2d 921, cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980)]; State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir.1986); the gravity or dangerousness of the offense, State v. Adams, 493 So.2d 835 (La.App. 2d Cir.1986), writ denied, 496 So.2d 355 (La.1986); the viciousness of the crimes, State v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986); the harm done to the victims, State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied, 435 So.2d 433 (La.1983); whether the defendant constitutes an unusual risk of danger to the public, State v. Jett, 419 So.2d 844 (La.1982); the defendant’s apparent disregard for the 3property of others, State v. Parker, 503 So.2d 643 (La. App. 4th Cir.1987); the potential for the defendant’s rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983); State v. Lighten, 516 So.2d 1266 (La.App. 2d Cir.1987); and whether the defendant has received a benefit from a plea bargain, State v. Jett, supra; State v. Adams, supra.
State v. Coleman, 32,906, p. 42 (La.App. 2 Cir. 4/5/00), 756 So.2d 1218, 1247-48, writ denied, 00-1572 (La.3/23/01), 787 So.2d 1010.

Relying on Merritt, this court in Vollm, 887 So.2d 664, reviewed the record to determine whether the trial court articulated a particular justification for imposing consecutive sentences beyond the standard sentencing guidelines set forth in La. C.Cr.P. art. 894.1. This court concluded that the trial judge articulated a consideration of the factors set forth in Thomas, stating a clear justification for exercising his discretion to impose consecutive sentences for two charges of attempted first degree murder.

In State v. Runyon, 05-36 (La.App. 3 Cir. 11/2/05), 916 So.2d 407, writ denied, 06-667 (La.11/17/06), 942 So.2d 526, the defendant received consecutive sentences for second-degree murder and attempted second-degree murder that involved the stabbing of two victims. This court did not address whether or not the trial court articulated a particular justification for imposing consecutive sentences, but, instead, referred to the factors to consider in determining whether consecutive sentences are appropriate, as set forth in Walker, 799 So.2d 461. The Walker court focused on “... the offender’s past criminality or other circumstances in his background or in the commission of the crimes to justify treating him as a grave risk to the safety of the community.” Id. at 461-62. Because of the violent nature of the offenses and the defendant’s threat to society, this court, in Runyon, concluded that the trial court did not abuse its discretion.

|4In his brief to this court, the Defendant maintains that the trial court did not state any reasons for imposing consecutive sentences, and thus, the failure to do so requires this court to vacate the sentences and remand for resentencing. We disagree with the Defendant’s assertion, noting the trial court reasons for ruling as follows:

The Court, of course, as pointed out by one of the attorneys, has sat through one trial involving a co-defendant and sat through a substantial part of the trial involving Mr. Hawkins. The Court recalls Mr. Hawkins basically tendering his plea of guilty when it became apparent that some of his cohorts were about to testify against him.
The record reflects that Mr. Hawkins has prior offenses as reflected by the presentence report. He has a history of felony theft, history of simple burglary. The egregious nature of the offense and the personal affect on the victims in this matter as pointed out by Mr. Burget, these are not commercial items. These are not five and ten cent dime store items or Wal-Mart items. These were items that involved personal memories, some of departed family members. Mr. Hawkins’ refusal, constant refusal, to cooperate, to mitigate the loss to these victims, and the serious nature of the offense and this history compels the Court, Mr. Hawkins, to give you a serious sentence in this matter.
The Court feels that a term of about 22 years would be proper....

Although the offenses were not crimes of violence as those described in the jurisprudence, the Defendant had a past history of felony theft and simple burglary. The trial court also expressed its concern that the Defendant had not cooperated to mitigate the loss to the victims, resulting in an extensive emotional loss to the victims. Further, the Defendant demonstrated a disregard for the victims’ property. Accordingly, we find that the trial judge articulated a particular justification for imposing consecutive sentences.

ASSIGNMENT OF ERROR NO. 2

By this assignment of error, the Defendant argues that the imposition of consecutive maximum sentences resulted in excessive sentences. This court has set forth the following standard to be used in reviewing excessive sentence claims:

|sLa. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, imit denied, 01-838 (La.2/1/02), 808 So.2d 331.

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

The Defendant pled guilty to two counts of simple burglary of an inhabited dwelling, violations of La.R.S. 14:62.2, and to seventeen counts of theft of firearms, violations of La.R.S. 14:67.15. The penalty for simple burglary as stated in La.R.S. 14:62.2 is one to twelve years at hard labor, without benefit of parole, probation or | (¡suspension of sentence. The penalty for theft of a firearm as provided in La. R.S. 14:67.15 is two to ten years, with or without hard labor, without the benefit of probation, parole or suspension of sentence and a fine of one thousand dollars. Thus, the Defendant received the maximum sentences for the offenses. However, the sentences for simple burglary were ordered to run concurrently to each other, as were the sentences for theft of a firearm. Therefore, the total time of imprisonment, twenty-two years, is significantly less than the possible total maximum penalty allowed.

In his brief to this court, the Defendant asserts that the crimes were not vicious, that no violence was involved and that he has no history of violent crimes. Also, the Defendant admits that he has had problems -with drugs in the past and maintains that he has a great potential for rehabilitation. Lastly, the Defendant contends that he does not pose an unusual risk of danger to the public and has accepted responsibility for his crimes and apologized to the victims for the pain he caused.

As noted in assignment of error number one, the trial court adequately stated for the record the mitigating and aggravating circumstances taken into account in determining the Defendant’s sentences. Although the Defendant eventually apologized to the victims for his crime at the hearing on his motions to reconsider sentence, the trial court observed that he had not cooperated in mitigating the damage caused to the victims. Accordingly, we find that the Defendant has not shown that the sentences imposed by the trial court were unconstitutionally excessive, considering the circumstances of his case and the background of the Defendant.

For the foregoing reasons, the Defendant’s sentences are affirmed.

AFFIRMED.


author: GENOVESE, Judge.

text:
    Andrea S. PANNELL v. ENCOMPASS INSURANCE COMPANY and Dustin Lazarone.
    No. 06-1601.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.
    Eugene P. Cieardo, Jr., Law Offices of Eugene P. Cieardo, Jr., Alexandria, Louisiana, for Plaintiff/Appellee, Andrea S. Pan-nell.
    Mesonie T. Halley, Jr., Law Offices of Harold G. Toscano, Lake Charles, Louisiana, for Defendants/Appellants, Encompass Insurance Company and Dustin Laza-rone.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this personal injury case, Defendants appeal the trial court’s award of $195,000.00 in general damages for an alleged aggravation of a pre-existing back condition and shoulder and neck injuries resulting from an automobile accident. For the following reasons, we affirm as amended.

FACTS

On December 3, 2003, Plaintiff, Andrea Pannell (Pannell), was involved in a motor vehicle accident with Defendant, Dustin Lazarone (Lazarone), in Alexandria, Louisiana. Pannell filed suit for personal injuries against Lazarone and his automobile liability insurance carrier, Encompass Insurance Company (Encompass). The parties stipulated that Lazarone was at fault in the accident and thereby liable to Pan-nell for her personal injury resulting therefrom. Insurance coverage was not at issue. Therefore, the only issue before the trial court was damages.

Following a bench trial, the trial court found that Pannell had sustained an aggravation of a pre-existing back condition and new injuries to her neck and shoulder. The trial court found that there was no evidence to correlate Pannell’s lumbar surgery of January 11, 2005 to the December 3, 2003 automobile accident. Therefore, Pannell was not awarded the medical expenses attributable to the lumbar surgery, nor the lost wages she sustained as a result of the surgery. Based upon these findings, the trial court awarded Pannell $195,000.00 in general damages “plus specials” of $9,083.96. Defendants, Encompass and Lazarone, appeal the general damage award.

ISSUE

The sole issue presented for our review is whether the general damage award | .¿was an abuse of the trial court’s discretion.

LAW AND DISCUSSION

In Andrus v. State Farm Mut. Auto. Ins. Co., 95-801, p. 8 (La.3/22/96), 670 So.2d 1206, 1210 (citations omitted), the supreme court stated:

In appellate review of general damage awards, the court must accord much discretion to the trial court judge or jury. The role of an appellate court in reviewing awards of general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trial court. Only if the reviewing court determines that the trial court has abused its “much discretion” may it refer to prior awards in similar cases and then only to determine the highest or lowest point of an award within that discretion.
Because discretion vested in the trial court is “great,” and even vast, an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Following the automobile accident on December 3, 2003, Pannell was seen and treated by Dr. Roy Strickland (Dr. Strickland), a chiropractor; Tom Boers (Mr. Boers), a physical therapist; Dr. Gerald Foret (Dr. Foret), an internist; Willie Miller (Mr. Miller), a physical therapist; Dr. Todd Drury (Dr. Drury), an orthopaedic surgeon; Dr. Babson Fresh (Dr. Fresh), a neurosurgeon; and Dr. Troy Vaughn (Dr. Vaughn), a neurosurgeon. Pannell contends that the medical records from these health care providers establish that, as a result of her December 3, 2003 automobile accident, she sustained a shoulder injury, neck injury, headaches, and a back injury ultimately requiring lumbar surgery. Defendants refute Pannell’s assertions and contend “that the medical documentation and testimony demonstrates that there is no causal connection between the automobile accident of December 3, 2003 and the hmajority of Pannell’s post-accident medical conditions and treatment.” Defendants further contend that Pannell had significant treatment prior to December 3, 2003 and that she was involved in two subsequent incidents in December of 2004, which precipitated the need for the lumbar surgery.

The oral reasons provided by the trial court indicate that the trial court found that Pannell’s injuries and treatment were a “direct result of the [December 2003] accident.” However, the trial court also found that there was “nothing in the record to reveal or indicate that the subsequent surgery obtained by plaintiff had any direct correlation to this auto accident.” Thus, the trial court awarded Pan-nell medical specials of $9,083.96, which did not include the medical expenses incurred in connection with her lumbar surgery. The trial court also awarded $195,000.00 in general damages. For the reasons which follow, we find the general damage award to be an abuse of the trial court’s discretion.

It is clear from the record of these proceedings that Pannell had a long history of back problems since 1979 for which she sought active medical treatment with an orthopaedist, physical therapist, and chiropractor. Pannell testified that she had at least one, maybe two, herniated discs and some degenerative changes in her back prior to the subject accident. She admits that “she has consistently had back problems up to the date of the [December 3, 2003] accident and afterwards.” These assertions are all corroborated by the medical records and the testimony of the health care providers.

In order to review the general damage award of the trial court, we must review the injuries sustained by Pannell, and the nature and duration of the medical treatment resulting therefrom. As set forth above, several health care providers rendered | treatment to Pannell both before and after the subject accident. This court has reviewed the extensive medical records and deposition testimony in evidence in these proceedings. The following synopsis of Pannell’s medical treatment, both before and after the subject accident, is germane to the issue which this court is called upon to review.

The first medical treatment received by Pannell following the subject accident was with Dr. Strickland, a chiropractor, on December 4, 2003. On this initial visit, Pan-nell complained of pain in her back, neck, and shoulders. She gave a history to Dr. Strickland of eighteen years of back pain. Dr. Strickland’s records document that Pannell experienced continued improvement over the course of her treatment. Moreover, these records do not document any radicular complaints. Pannell was treated by Dr. Strickland from December 4, 2003 through March 12, 2004. She did not return to see Dr. Strickland again until June 7, 2004, at which time her only complaint was that of shoulder pain. Pannell last saw Dr. Strickland on July 1, 2004.

Shortly after the accident at issue, Pan-nell traveled to Georgia to visit her family for the holidays. On December 22, 2003, while in Georgia, she saw Mr. Boers, a physical therapist, with whom she had treated extensively in the past for back, shoulder, and neck pain. On that visit, Mr. Boers’s medical records make reference to her rear-end collision and that Pannell complained of pain in her back, neck, shoulder and leg. The medical records from Mr. Boers, as well as his deposition testimony, further reveal that Pannell returned to see him in August of 2004, approximately eight months after the subject automobile accident. However, Ron that visit, there was no mention of the December 2003 accident. To the contrary, Pannell related chronic shoulder and back pain beginning in 1994. Additionally, she did not inform Mr. Boers of any radicular pain on this visit.

Pannell had also been treating with Dr. Foret, an internist, who had been her primary care physician since January 2003. Dr. Foret was aware of her long-standing history of back problems. Pannell first saw Dr. Foret following the subject accident on January 21, 2004, complaining of shoulder, neck, and back pain. Pannell did not have any radicular complaints at that time. Dr. Foret referred her to Mr. Miller for physical therapy. Pannell returned to Dr. Foret on March 2, 2004, again without any radicular complaints. On subsequent visits in April, May, June, August, and October of 2004, Pannell did not voice any complaints of back pain to Dr. Foret, nor did he document that she was taking any medications for back or neck pain during this time. It was not until December 14, 2004 that Pannell returned to see Dr. For-et complaining of back pain. Notably, on this visit, she provided an additional history of having been at the Cincinnati airport and lifting luggage which caused injury to her back. She also informed Dr. Foret that just days prior to her visit, she had felt a sudden pain in her back while reaching to close her car door. Pannell further stated that on December 13, 2004, she had numbness in her big toe and severe pain in her back with radicular symptoms. Therefore, the first occasion documented by Dr. Foret of Pannell experiencing any radicu-lar symptoms was one year following the subject accident. Dr. Foret ordered an MRI which revealed a ruptured disc at L4-L5 and referred her to Dr. Fresh, a neurosurgeon. Dr. Foret did not see Pan-nell again until March 3, 2005, which was after her surgery and which was her final visit with him.

Pannell also underwent physical therapy with Mr. Miller on more than one | ^occasion over the course of her treatment. Mr. Miller’s records document consistent physical therapy from December 2003 through February 2004. On February 18, 2004, Mr. Miller’s records note that Pannell was “much improved [and] very pleased [with her] present state.” She did not return to physical therapy until November 2004, following a referral from Dr. Drury who was treating her for shoulder complaints. Pannell attended physical therapy on three occasions in November 2004, and then “no showed” for all of her December 2004 appointments. Pannell did not return for physical therapy with Mr. Miller until February 11, 2005, which was after her lumbar surgery. Notably, only then did Pannell relate to Mr. Miller that she experienced radicular symptoms beginning in November or December of 2004.

Pannell first saw Dr. Drury, an orthopedic surgeon, on November 10, 2004, for right shoulder pain. She related a history of the December 2003 automobile accident with resulting soreness. Pannell complained that the shoulder pain had become worse in the five or six months prior to the visit. She did not complain of neck or back pain. Following an MRI of her right shoulder, Dr. Drury’s diagnosis of Pan-nell’s condition was tendonitis of the right shoulder. Dr. Drury found no evidence of tendon tear. She was given a steroid injection in her right shoulder on her last visit with Dr. Drury on November 17, 2004. She was again referred to Mr. Miller for physical therapy. Pannell was to return for follow-up with Dr. Drury in four or five weeks but she did not do so.

Pannell was also treated by Dr. Fresh, a neurosurgeon, first on December 16, 2004. At that time she had back and leg pain with radicular pain into her right leg, and numbness in her foot and leg. Dr. Fresh’s records reveal that, on her initial visit, Pannell provided a history of disc problems, but the history did not include the 17Pecember 3, 2003 automobile accident. In Dr. Fresh’s opinion, Pannell had a herniated disc at L4-5 on the right with severe L-5 radiculopathy on the right. Dr. Fresh ordered a selective nerve root block, and she returned to see him in January of 2005, when he referred her to his partner, Dr. Vaughn, also a neurosurgeon.

Dr. Vaughn confirmed that the history Pannell gave to Dr. Fresh did not reference the December 2003 automobile accident. He also testified that Pannell, herself, related the onset of complaints, which led to her subsequent lumbar surgery, to the December 2004 incident at the airport. Dr. Vaughn also confirmed that the MRI revealed multi-level disc degeneration and disc herniation at L4-5. Dr. Vaughn performed a lumbar discectomy on Pannell at L4-5 on January 11, 2005.

It is clear from the record that Pannell had pre-existing disc herniation which ultimately required surgery. Thus, the underlying inquiry for this court is one of causation. If the injury sustained by Pan-nell as a result of the December 2003 automobile accident was the legal cause of the lumbar surgery, the general damage award may not be considered excessive. If, on the other hand, Pannell’s lumbar surgery in January of 2005 was not causally related to the December 2003 automobile accident, the general damage award by the trial court for the particular injury sustained by this particular plaintiff is an abuse of the trial court’s discretion. Based upon our review of the evidence, we find that the opinions of the health care providers failed to establish that the December 2003 automobile accident was the legal cause of her subsequent discectomy at L4-5.

Dr. Foret gave the following explanation when asked his opinion on causation:

“I think, in my opinion, that the disc injury, in my opinion, more likely than not was not related to her car accident. However, her chronic back problems were exacerbated by this accident, and I think it’s impossible to say which of any of these, pulling on the luggage or whatever, it’s | «impossible to say which of these events have made her back slowly worse. However, I do think it’s worse and I do think that that car accident certainly did not help in any way and may have actually hurt her in terms of her daily back pain, stiffness, etcetera.”

Additionally, in Dr. Fresh’s opinion, it was the December 2004 airport incident that fully herniated Pannell’s lumbar disc, and it was that incident that precipitated the need for surgery. Notably, Dr. Vaughn testified that he didn’t “know anything about a motor vehicle accident, so [he did not] know if this would be related to her injury or not.” Therefore, Dr. Vaughn was also unable to relate his treatment to the December 2003 automobile accident. Another expert to render an opinion on the issue of causation was Dr. Anthony Ioppolo (Dr. Ioppolo), a neurosurgeon, who concluded that the December 2004 incident at the airport caused the large lumbar disc rupture which necessitated the surgery. He also opined that “[i]f this large ruptured disc had been caused by the motor vehicle accident in December 2003 the patient would have had symptoms prior to one year later.” Additionally, “the temporal relationship between the December 2004 incident and the development of the foot drop from nerve root compression certainly makes it more probably than not, in [my] opinion, that this is the incident that caused the large disc rupture and the need for surgical intervention.”

Finally, with respect to Pannell’s alleged shoulder injury, Dr. Drury testified that since he did not see Pannell until nearly a year post accident, it is very difficult for him to tell whether the accident caused her tendonitis. It was his testimony that he did not “see how with any reasonable certainty [he] could tell ... that the tendonitis she has is related to her accident.”

The evidence in the record supports the medical finding that Pannell suffered soft tissue injuries to her neck and shoulder and an aggravation of pre-existing low | iiback problems as a result of the December 2003 automobile accident. She underwent chiropractic treatment and physical therapy for four months, at which time she had returned to baseline. She did not return for further treatment until June 7, 2004, when she treated for shoulder pain for one month. Pannell was treated for her shoulder on only two more occasions in November of 2004 and did not return to the physician. Therefore, the injury to her shoulder, which was soft tissue in nature, was one year in duration. Additionally, the soft tissue injury to Pannell’s neck had resolved in two to three months.

In order for the December 2003 automobile accident to be a cause-in-fact of Pannell’s lumbar surgery, that accident must be a substantial factor in bringing about the lumbar surgery. Perkins v. Entergy Corp., 00-1372, 00-1387, 00-1440 (La.3/23/01), 782 So.2d 606 (citing Boykin v. Louisiana Transit Co. Inc., 96-1932 (La.3/4/98), 707 So.2d 1225; Jones v. Hawkins, 98-1259, 98-1288 (La.3/19/99), 731 So.2d 216; Rick v. State, Dep’t of Transp. & Dev., 93-1776, 93-1784 (La.1/14/94), 630 So.2d 1271; Dixie Drive It Yourself System v. Am. Beverage Co., 242 La. 471, 137 So.2d 298 (1962)). Given Pannell’s medical history of radicular complaints pre-dating the subject accident, her lack of radicular complaints for a significant period of time following the accident, the two incidents in 2004, the temporal relationship between the 2004 incidents, her radiculopathy, her foot drop, and the expert opinions on causation, we find that the December 2003 automobile accident was not a substantial factor in bringing about Pannell’s lumbar surgery. It is evident that the trial court did not feel that the December 2003 automobile accident was the legal cause of Pannell’s lumbar surgery when it failed to award Pannell the medical expenses for the surgery and failed to award anything on her lost wage claim. 11flConsequently, we find that the trial court’s award of $195,000.00 in general damages for soft tissue injuries to Pannell’s neck and shoulder with an aggravation of a pre-existing low back condition to be an abuse of discretion.

After reviewing prior awards in similar cases, we find $90,000.00 to be the highest reasonable award for Pannell’s injuries. See Dugas v. Derouen, 01-1397 (La.App. 3 Cir. 7/3/02), 824 So.2d 475, writ denied, 02-2131 (La.11/15/02), 829 So.2d 426 (general damages of $70,000.00 awarded for an aggravation of a pre-existing disc condition and TMJ condition, broken rib and cervical strain); Boyette v. United Services Auto. Ass’n., 99-1755 (La.App. 3 Cir. 4/12/00), 760 So.2d 492, rev’d on other grounds, 00-1918 (La.4/3/01), 783 So.2d 1276 ($50,000.00 in general damages affirmed for an aggravation of prior back and neck injury with two cervical fusions, depression and residual pain); Guidry v. Millers Cas. Ins. Co., 01-01 (La.App. 1 Cir. 6/21/02), 822 So.2d 675 ($50,000.00 awarded for an aggravation of a degenerative lumbar condition not requiring surgery but resulting in continuing lifetime symptoms); Rabalais v. Mason, 01-925 (La.App. 5 Cir. 1/15/02), 807 So.2d 983, writ denied, 02-490 (La.4/19/02), 813 So.2d 1093 ($50,000.00 in general damages awarded for permanent aggravation of a pre-existing degenerative arthritic condition); See also Brooks v. Henson Fashion Floors, Inc., 26,378 (La.App. 2 Cir. 12/7/94), 647 So.2d 440 ($20,000.00 in general damages for tendonitis of the shoulder with continued pain for twenty months); Talamo v. Shad, 619 So.2d 699 (La.App. 4 Cir.), writ denied, 625 So.2d 175 (La.1993) (general damage award of $15,000 to a 23 year old woman who would suffer flare-ups of biceps tendinitis for the rest of her life); Mayeux v. Selle, 99-498 (La.App. 5 Cir. 11/10/99), 747 So.2d 1174 (general damage award of $22,500 for a shoulder injury of fifteen months and Inresidual complaints).

DECREE

For the foregoing reasons, we affirm the judgment of the trial court awarding Andrea Pannell general damages, but we amend the amount awarded by reducing it from $195,000.00 to $90,000.00.

Costs of this appeal are to be divided equally between the parties.

AFFIRMED AS AMENDED.

      . Mr. Boers testified that his charts did not go back further than August 1999, but that he had treated Pannell prior to that time. This was consistent with Pannell’s testimony that she had begun treating with Mr. Boers as early as 1996. Regarding her past medical history, Mr. Boers also confirmed that in 1999 Pannell had treated with him for a herniated lumbar disc.


text:
    SUCCESSION OF James D. WOOD.
    No. 06-1651.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      Martha Ann O’Neal, DeRidder, LA, John K. (Mike) Anderson, St. Leesville, LA, for Appellant, T.A. Gibson.
    Kenneth N. Simmons, Many, LA, Jack L. Simms, Jr., Leesville, LA, for Appellee, Brenda Wood Davis.
    C. Blair Bright, Provosty, Sadler, de-Launay, Fiorenza & Sobel, New Orleans, LA, for Appellee, Comm-Care Corporation.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

I,The defendant, T.A. Gibson, appeals from the trial court’s judgment sustaining peremptory exceptions of no right of action in favor of the plaintiff, Brenda Wood Davis. We affirm.

FACTS

The decedent, James D. Wood, a resident of Vernon Parish, died in Leesville on September 2, 1999. He left a testament, which named Gibson as universal legatee and as executor of his succession. This appeal stems from proceedings pertaining to Gibson’s probate of the decedent’s testament. Gibson’s right to inherit under the testament has been challenged by the decedent’s sole surviving heir, Brenda Wood Davis. Particularly, Gibson has filed a Reeonventional Demand for Recission of Document in response to a petition for declaratory judgment concerning a cash sale deed in which the decedent and his wife sold immovable property to Davis for the price of “One Dollar ($1.00) and other valuable considerations.” In response, Davis filed peremptory exceptions of no cause of action and no right of action challenging Gibson’s right to demand recission of the sale. Following a hearing, the trial court held that the cash sale deed was actually a donation in disguise, which Gibson lacked standing to challenge. Accordingly, the trial court granted the exception of no right of action in favor of Davis. This appeal by Gibson followed.

ISSUES

On appeal, Gibson argues that the trial court erred in failing to find that the cash sale deed was an act translative of ownership for either a sale or a donation Land in finding that he, as executor of the succession, did not have a right of action to contest the act’s nullity.

EXCEPTIONS

In Teche Financial Services, Inc. v. State, Department of Public Safety, Office of Motor Vehicles, 06-250, pp. 2-3 (La.App. 3 Cir. 9/27/06), 939 So.2d 650, 652, we reviewed the law pertaining to an exception of no right of action:

The peremptory exception of no right of action addresses itself to whether the particular plaintiff falls, as a matter of law, within the general class of those to whom the law grants the cause of action being asserted in the suit. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La.11/30/94), 646 So.2d 885. This exception is a “threshold device to terminate a suit brought by one who has no interest in judicially enforcing the right asserted.” Crochet v. Cisco Sys., Inc., 02-1357 (La.App. 3 Cir. 5/28/03), 847 So.2d 253, writ denied, 03-1838 (La.10/17/03), 855 So.2d 765....

In granting Davis’ peremptory exception of no right of action, the trial court held that the Cash Sale Deed Gibson sought to rescind was actually a disguised donation as set out in La.Civ.Code. art. 2444. Based on this finding, the trial court held that Gibson lacked standing to seek recision of the donation, as only forced heirs could bring such actions.

On appeal, Gibson argues that the trial court erred in granting Davis’ exception of no right of action as the document transferring ownership to her failed to meet any of the prerequisites for a document translative of ownership. He makes several arguments in support of his claim. However, we find that those arguments go to the merits of the matter. In order to reach the merits, a party must first have standing or a right of action to make his claims. In this instance, we agree with the trial court that Gibson, as a matter of law, lacks the right to attack the validity of the laCash Sale Deed. Louisiana Civil Code Article 2444 provides that only forced heirs may attack a sale of immovable property by a parent to his child if certain requirements are met. Gibson is not a forced heir of the decedent; therefore, he has no right of action to contest the validity of the Cash Sale Deed.

Gibson argues, however, that he does have standing to attack the Cash Sale Deed as the donation is an absolute nullity which may be attacked by any person. We disagree. Louisiana Civil Code Article 2030 provides that “[a] contract is absolutely null when it violates a rule of public order, as when the object of the contract is illicit or immoral. A contract that is absolutely null may not be confirmed.” Viewed on its face, we do not find that the Cash Sale Deed is either illicit or immoral; furthermore, both the decedent and his wife had the capacity, as owners, to donate the property to their daughter. Moreover, we find that the document is an act translative of ownership. The donation of the immovable is in writing, is pursuant to an authentic act, and contains a legal description of the property. Accordingly, the judgment of the trial court granting the peremptory exception of no right of action in favor of Davis is affirmed.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to the defendant-appellant, T.A. Gibson.

AFFIRMED.