author: BROWN, Chief Judge.

text:
    Caroline BERTHELOT and Bernard J. Dolenz, Plaintiffs-Appellants v. Virginia H. BRINKMANN and John Baxter Brinkmann, as Curator in behalf of Virginia H. Brinkmann and Party Defendant, Defendants-Appellees.
    No. 42,800-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.
    Rehearing Denied Feb. 7, 2008.

      Bernard J. Dolenz, pro se.
    Caroline Berthelot, pro se.
    Lemle & Kelleher by Dale G. Cox, Shreveport, for Appellees.
    Before BROWN, DREW, and LOLLEY, JJ.
   BROWN, Chief Judge.

| Appellant, Bernard Dolenz, and co-plaintiff, Caroline Berthelot, obtained a money judgment on August 13, 1993, against appellee, Virginia Brinkmann, in the 162nd District Court in Dallas, Texas. In that defamation and slander action, Do-lenz was awarded $800,000 and Berthelot was awarded $1.5 million. On January 25, 1995, pursuant to the Enforcement of Foreign Judgment Act (La. R.S. 13:4241 et seq.), Dolenz filed a petition in the First Judicial District Court for Caddo Parish to make the Texas judgment executory in Louisiana. A copy of the Texas judgment properly authenticated was attached to the petition. On January 24, 1995, Judge Charles Scott signed an ex parte order making the Texas judgment executory in Louisiana (apparently the petition was presented to Judge Scott first and filed the next day with the clerk). The clerk’s office sent notice to Brinkmann by certified mail which was received by Brinkmann on January 28,1995.

On February 23, 1995, Brinkmann filed a response to the petition to make the foreign judgment executory which was considered as a motion to vacate Judge Scott’s ex parte order. Judge Leon Emanuel rejected the motion and confirmed Judge Scott’s recognition of the Texas judgment in a judgment signed on April 17, 1995. Brinkmann’s motion for a new trial was also denied by Judge Emanuel on November 25,1996.

Thereafter, there have been three attempts to revive the judgment. All of these attempts to revive were heard and denied by Judge Jeanette Garrett.

On April 4, 2005, both Berthelot and Dolenz filed an affidavit and motion to schedule a hearing for reinscription of Judge Emanuel’s April 17, |⅞1995, judgment. On May 25, 2005, Judge Garrett found that Judge Emanuel’s April 17,1995, ruling had no legal effect on the calculation of prescription and dismissed the case because Judge Scott’s judgment of January 24, 1995, had prescribed by the liberative prescription of ten years. No appeal was taken from this ruling.

A second Petition To Make Foreign Judgment Executory was filed by Dolenz on March 3, 2006. He alleged that revival was mandated by the U.S. Constitution full faith and credit clause. Relief was denied by Judge Garrett in an ex parte order.

On November 20, 2006, Dolenz filed a third Petition For Recognition Of A Foreign Judgment. In that action, Dolenz filed the affidavit of Texas Constable J. Barr, who attests that he attempted to serve a writ of execution on April 11, 12 and 13 of 2005. A Texas judgment can be renewed and extended for ten years by having a writ of execution issued. Tex. Civ. Prac. & Rem.Code, Sec. 34.001. Do-lenz argued that even though “the Louisiana registration had prescribed due to the ten-year lapse, that does not prevent the Texas judgment from being enforced if the original Texas judgment is revived in Texas, and then brought back to Louisiana for enforcement.”

On April 9, 2007, Judge Garrett dismissed this final attempt to revive the judgment on the grounds of res judicata and collateral estoppel, concluding that the suit was a rehash of the first suit decided by her in 2005. It is from this decision that the current appeal is taken. We affirm.

| ^Discussion

Dolenz argues that the trial court erred in failing to give the revived Texas judgment full faith and credit, and in misapplying the defenses of res judicata and collateral estoppel. Dolenz argues that the judgment in the defamation case was revived and extended in Texas, and, as such, the revived Texas judgment is entitled to full faith and credit in Louisiana. He claims this is true even though the original judgment inscribed in Louisiana had lapsed and could not be revived in Louisiana. He argues that this revived Texas judgment is a new judgment.

In the case at bar, after Dolenz submitted the Texas money judgment to a court of this state, Louisiana dutifully granted the Texas judgment full faith and credit by Judge Scott’s ex parte order making the Texas judgment executory in Louisiana. This occurred on January 24, 1995. Thereafter, the Texas judgment became a Louisiana judgment subject to the revival and prescription laws of this state. Louisiana Revised Statute 13:4242 provides:

A copy of any foreign judgment authenticated in accordance with an act of congress or the statutes of this state may be annexed to and filed with an ex parte petition complying with Code of Civil Procedure Article 891 and praying that the judgment be made executory in a court of this state. The foreign judgment shall be treated in the same manner as a judgment of a court of this state. It shall have the same effect and be subject to the same procedures, and defenses, for reopening, vacating, or staying as a judgment of a court of this state and may be enforced in the same manner. (Emphasis added).

Canizaro Trigiani Architects v. Crowe, 35,939 (La.App. 2 Cir. 04/03/02), 815 So.2d 386.

|4A money judgment may be revived at any time before it prescribes by an interested party in an ordinary proceeding brought in the court in which the judgment was rendered. La. C.C.P. art. 2031. A money judgment rendered by a trial court of this state is prescribed by the lapse of ten years from its signing if no appeal has been taken, or, if an appeal has been taken, it is prescribed by the lapse of ten years from the time the judgment becomes final. La. C.C. art. 3501.

Res judicata is an issue and claim preclusion device which prohibits relitigation of matters which were litigated or could have been litigated in a prior suit.

Louisiana Revised Statute 13:4231 provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The comments to La. R.S. 13:4231 provide that the central inquiry is whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action. |RThis serves the purpose of judicial economy and fairness by requiring the plaintiff to seek all relief and to assert all rights which arise out of the same transaction or occurrence. This prevents needless relitigation of the underlying facts and will free a defendant from vexatious litigation. For purposes of res judicata it would not matter whether the cause of action asserted in the second action was the same as that asserted in the first or different as long as it arose out of the transaction or occurrence that was the subject matter of the first action.

Further, a plaintiff must assert all of his rights and claim all of his remedies arising out of the transaction or occurrence. Claims that arise or which he becomes aware of before trial may be asserted through an amended or supplemental petition, and these claims will relate back to the time of the original filing if they arise out of the transaction or occurrence set forth in the original petition. Causes of action that have not been asserted by the plaintiff are extinguished and barred by the judgment.

The first motion to reinscribe Judge Scott’s January 24, 1995 judgment was heard on May 23, 2005. The attempts to serve the writ of execution in Texas, which Dolenz claims revived the Texas judgment in Texas, occurred in April of 2005. That Dolenz timely revived the judgment in Texas by issuing a writ of execution was a question that should have been raised by an amended and supplemented petition. It was not and Judge Garrett’s ruling was not appealed and is final.

When Dolenz initially attempted to rein-scribe the Louisiana judgment, the trial court dismissed that action and all claims that could have | fibeen asserted. Dolenz’s new action to recognize and make executo-ry the revived Texas judgment is clearly prohibited by principles of res judicata and collateral estoppel.

Conclusion

For the reasons set forth above, the trial court’s dismissal of Bernard Dolenz’s suit on the grounds of res judicata and collateral estoppel is AFFIRMED. Costs are assessed to plaintiff, Bernard Dolenz.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, DREW, MOORE, and LOLLEY, JJ.

Rehearing denied.

      . Berthelot has not joined in this appeal.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    Felice DUPREE, et al, Plaintiffs-Appellants v. Kevin B. SAYES, et al, Defendants-Appellees.
    No. 42,792-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Davis Law Firm by S.P. Davis, Sr., for Appellants.
    Corkern & Crews, L.L.C. by Steven D. Crews, Cory B. Wilson, for Appellees.
    Before STEWART, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

|! This personal injury action arose from a motor vehicle accident involving several vehicles. Plaintiffs Felice Dupree and her daughters, Shaleshia Dupree and Darecia Atkins, sued Defendant Kevin Sayes for personal injuries allegedly sustained when the vehicle driven by Mr. Sayes collided with the vehicle driven by Ms. Dupree. Following a bench trial, the trial judge held, without written reasons, that Plaintiffs had not carried their burden of proof on the negligence of Mr. Sayes and dismissed their claim with prejudice. Plaintiffs appeal. For the reasons stated herein, we affirm.

FACTS

On January 21, 2004, Ms. Dupree and her daughters were traveling on Booker Terrace Road when Ms. Dupree stopped at the stop sign at the intersection of Booker Terrace Road and Highway 84 in Mansfield. As Ms. Dupree came to rest at the intersection, a vehicle driven by Larry Bledsoe traveling south on Hwy 84 collided with the rear of another vehicle driven by Tiffany Simpson, knocking Ms. Simpson’s yehicle into the northbound lane of travel of Hwy 84. Mr. Sayes was traveling north on Hwy 84 and swerved to avoid hitting Ms. Simpson’s vehicle. In doing so, Mr. Sayes’ vehicle ran into the ditch and back up onto the highway and collided with the driver’s side of Ms. Dupree’s vehicle.

As previously stated, Ms. Dupree’s daughters, Shalishia and Darecia, were passengers in Ms. Dupree’s vehicle. The three women each claim injuries sustained in the accident. At trial, Plaintiffs testified that Mr. Sayes |2was traveling too fast and his excessive speed was the cause of the accident. Plaintiffs each denied that Mr. Sayes was faced with a sudden decision of how to avoid Ms. Simpson’s vehicle, despite notations of Plaintiffs’ statements to the contrary purportedly made to medical providers and contained in the medical records wherein they stated that Mr. Sayes was trying to avoid hitting another vehicle when he collided with Ms. Dupree’s vehicle. Instead, they contend that Mr. Sayes could have continued to travel straight and avoided the collision with both the vehicles of Ms. Simpson and Ms. Du-pree. Evidence of Plaintiffs’ injuries and treatment was adduced.

Mr. Sayes testified regarding the circumstances of the accident and urged that he was faced with a sudden emergency when he saw Ms. Simpson’s vehicle enter his lane. He denied that he was traveling at an excessive rate of speed. The accident report and deposition testimony of the investigating officer was of little assistance to the trial court as it did not contain precise measurements or other information that would have been beneficial in reconstructing exactly how the accident occurred.

As previously stated herein, the trial judge found at the end of trial no liability on the part of Mr. Sayes and the personal injury claims of Plaintiffs were dismissed. This appeal ensued.

DISCUSSION

When a collision occurs between two vehicles, one of which is in the wrong lane of travel, there is a presumption that the driver in the wrong lane was negligent and that the burden is on him to show that the collision was 13not caused by his negligence. Simon v. Ford Motor Co. 282 So.2d 126 (La.1973). If, however, a motorist has exercised ordinary care as required by law (or the highest degree of care as may be required) and has, nevertheless, inflicted injury on another, the accident is said to be inevitable, for which no liability attaches. Smeby v. Williams, 42,163 (La.App.2d Cir.6/27/07), 961 So.2d 597, citing Welch v. State, DOTD, 93-1134 (La.App.3d Cir.5/4/94), 640 So.2d 596, writ denied, 94-1452 (La.9/23/94), 642 So.2d 1293. The sudden emergency doctrine applies to such an “inevitable accident.” We explained this doctrine in Smeby, supra:

Under the sudden emergency doctrine, one who finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or the best means to adopt in order to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to be the better method, unless the emergency is brought about by his own negligence.

In the present case, Plaintiffs argue that, under Louisiana law, Mr. Sayes should be liable for their injuries sustained in this accident. According to Plaintiffs, Mr. Sayes was traveling in the wrong lane and, as such, there is a presumption that he was negligent and the burden rests on him to prove that he was not negligent. Plaintiffs further assert that the situation was brought about by Mr. Sayes’ negligence in that he could have continued to travel straight on the highway instead of swerving violently to avoid hitting Ms. Simpson’s vehicle. Plaintiffs challenge the assertion of Mr. Sayes that the accident was the inevitable result of a sudden evasive action taken by him to avoid a collision with vehicle two that caused him to run into the culvert that disabled the steering mechanism on his car and |4caused him to hit Plaintiffs’ vehicle. We are not persuaded by Plaintiffs’ argument. Finding a reasonable basis for the conclusion that Mr. Sayes faced a sudden emergency as he encountered Ms. Simpson’s vehicle in his lane of travel, we cannot say that the trial court was manifestly erroneous in finding in favor of Mr. Sayes in this case. We find that Mr. Sayes successfully carried the burden of proving that the accident did not occur because of his negligence.

Mr. Sayes testified that he was less than 50 feet from Ms. Simpson’s vehicle when it suddenly entered his lane of travel. He was faced with having to make a split-second decision as to how to avoid colliding with her vehicle and he chose to veer off of the highway to the right to avoid the collision. There was no way for him to foresee that his vehicle would then hit a culvert in the ditch and be thrown back onto the highway and into the side of Ms. Dupree’s vehicle. We find that this evidence provides a sufficient basis to support a finding of sudden emergency. To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). While we recognize that Plaintiffs were innocent bystanders in this unfortunate accident, we find no manifest error in the trial judge’s ruling.

|fiIn addition, Plaintiffs challenge the ruling of the trial court allowing the deposition testimony of Trooper Carlos Ratliff, the investigating officer, offered by Mr. Sayes. For unknown reasons, Trooper Ratliff did not personally testify and Plaintiffs submit that his failure to personally testify creates a presumption that his testimony would be unfavorable to Mr. Sayes because it was within Mr. Sayes’ power to produce the live witness and he failed to do so. We are not persuaded by Plaintiffs’ argument.

An adverse presumption exists when a party having control of a favorable witness fails to call him or her to testify, although the presumption is rebuttable and is tempered by the fact that a party need only put on enough evidence to prove the case. United Services Automobile Assoc. v. Craft, 37,909 (La.App.2d Cir.12/10/03), 862 So.2d 353, citing Safety Ass’n of Timbermen Self Insurers Fund v. Malone Lumber, Inc., 34,646 (La.App.2d Cir.6/20/01), 793 So.2d 218, writ denied, 01-2557 (La.12/7/01), 803 So.2d 973. There exists ample evidence in the case sub judice to support the conclusion of the trial judge without the deposition testimony of Trooper Ratliff. This argument is without merit.

CONCLUSION

For the foregoing reasons, the judgment in favor of Defendant/Appellee Kevin B. Sayes and dismissing with prejudice the claims of Plaintiffs/Appellants, Felice Du-pree, Shalishia Dupree and Darlecia Atkins, is affirmed. Costs are assessed to Plaintiffs/Appellants.

AFFIRMED.

      . The trial judge failed to provide written reasons as provided in La. C.C.P. Art.1917 B, merely stating in the judgment that he found Plaintiffs’ testimony untruthful and that Plaintiffs failed to meet their burden of proof.

      . Plaintiffs incorrectly assert that the doctrine of sudden emergency is an affirmative defense that must be specifically pled. See McCann v. State Farm Mut. Auto. Ins. Co., 483 So.2d 205 (La.App. 3d Cir.1986), writ denied, 486 So.2d 734 (La.1986), which discusses the issue of whether or not “sudden emergency” is an affirmative defense and holds that the sudden emergency doctrine is not an affirmative de-íense and, therefore, need not be specifically pled in the defendant's answer.


author: MOORE, J.

text:
    Billie FREEMAN, Plaintiff-Appellee v. J.P. Morgan CHASE, Defendant-Appellant.
    No. 42,716-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Ungarino & Eckert, L.L.C. by Brian D. Smith, J. Michael Nash, Shreveport, Christopher C. Broughton, for Appellant.
    Law Offices of Street & Street by C. Daniel Street, Monroe, for Appellee.
    Before PEATROSS, MOORE and LOLLEY, JJ.
   MOORE, J.

L The employer and its insurer, J.P. Morgan Chase and Liberty Mutual Insurance Company (collectively referred to as “Chase”), appeal a judgment that refused to order either a forfeiture of workers’ compensation benefits for intentional misrepresentations by the claimant or a reduction of benefits for the claimant’s failure to accept rehabilitation services. The claimant, Billie Freeman, responds that Chase did not properly plead these defenses and, at any rate, the Workers’ Compensation Judge (“WCJ”) was not plainly wrong to reject them. By answer, she seeks additional attorney fees for defending the appeal. We affirm the judgment and award additional attorney fees.

Factual and Procedural Background

Ms. Freeman was employed as a research analyst at the Chase Bank branch on Delta Drive in Monroe at an average weekly wage of $409.56. On April 25, 2002, she was moving a gondola of office files that weighed about 500 lbs. As she was pushing the gondola, her “back slipped” and she “felt a pop” in her back. She reported the accident and finished that day’s work, but did not come in the next day; after that, she worked intermittently but could never finish a day because of back pain. She has not worked at all since October 2002. .

Ms. Freeman went to her family doctor, Dr. Floyd Jones, who referred her to a pain management doctor, Dr. Vincent Forte. She testified that Dr. Forte used medications and physical therapy; these gave her temporary relief but the lower back pain always returned. Dr. Forte referred her to an orthopedic surgeon, Dr. Brian Bulloch, who initially thought she was not a Ugood candidate for surgery. However, he eventually performed a fusion at L4-5 and inserted four screws in her spine in October 2003. He then placed her on physical therapy. Ms. Freeman saw Dr. Bulloch for the final time in July 2004, and was certain that he has never released her to return to work.

Ms. Freeman also continued to see Dr. Forte, who apparently kept her well medicated; she admitted taking, simultaneously, Zanaflex, Ambien, Neurontin, Remeron, Seroquel, Dantrium, Cymbalta, Protonix and Synthroid; by mid-2005, she was also taking OxyContin and Duragesic, strong narcotics. She admitted that her sister checked her into the detox center at E.A. Conway, and she got off the OxyContin, but testified that the drugs she continues to take for her pain leave her dizzy and “wiped out.”

Chase did not contest the work-related accident and injury; it began paying temporary total disability (“TTD”) benefits of $273 a week and covered her doctor visits, surgery, therapy and pharmacy expenses.

In 2003, Chase hired Cascade Disability Management to try to return Ms. Freeman to work. Cascade’s agent, Sonya Sims, took no action while Ms. Freeman was recovering from surgery, but in early 2004 asked Dr. Bulloch about her progress; he replied that Ms. Freeman would reach maximum medical improvement by the end of April 2004 and he would refer her to the FIT program. In June, Dr. Bulloch reported that Ms. Freeman had finished the FIT program but still needed additional therapy; a functional capacity evaluation taken around this time found she could perform sedentary work with restrictions on occasional lifting, pulling, climbing and other activities.

laMs. Sims then ran a labor market survey, identifying four jobs that were available within Ms. Freeman’s medical restrictions, paying $6.50 to $7.00 an hour. Ms. Sims testified that she sent this information to Ms. Freeman by certified mail, return receipt requested, and that Ms. Freeman signed the receipt on September 20, 2004; Ms. Freeman did not recall receiving it, but acknowledged her signature on the receipt. Ms. Sims also sent the survey to Dr. Bulloch, who approved the jobs on October 15. Meanwhile, Ms. Sims phoned Ms. Freeman to ask why she had not followed up on any of the job leads. According to Ms. Sims, Ms. Freeman said she was still taking Lortab and Zanaflex, and could not drive; Ms. Freeman did not recall this phone call.

In January 2005, Ms. Sims identified another job within Ms. Freeman’s restrictions; Dr. Bulloch approved it on February 10 and Dr. Forte deferred to Dr. Bul-loch’s judgment. However, Ms. Freeman still took no action. Ms. Sims testified that since that time, she had not located any more available jobs for Ms. Freeman.

On October 1, 2005, Chase reduced Ms. Freeman’s benefits to $561.43 a month of supplemental earnings benefits (“SEB”). Ms. Freeman filed the instant contested claim in January 2006, seeking a reinstatement of benefits, a lump sum of past-due benefits penalties and attorney fees.

Chase filed a standard form answer, denying all allegations. Under “affirmative defense” it alleged, “The claimant has violated Section 1208 by misrepresenting the occurrence of an accident and/or the manner in which the accident occurred and/or his/her complaints regarding the alleged Raccident.” A scheduling conference order in May 2006 listed five issues for trial, but not the defense of fraud under § 1208. However, Chase’s pretrial statement, filed June 22, 2006, listed as an issue for trial, “Whether the claimant committed a violation of Section 1208 by misrepresenting the manner in which the accident occurred, the extent of her complaints or physical symptoms and/or medical history” (emphasis added).

Trial Evidence and Judgment

At trial in December 2006, Ms. Freeman objected to the § 1208 defense of fraud on grounds that Chase had not properly pled it. The WCJ overruled the objection, ruling the pretrial statement placed her on adequate notice.

Ms. Freeman described her accident and course of treatment; she maintained that even after the fusion, she is still getting progressively worse. She admitted going to detox in June 2005 and getting off Oxy-Contin, but still taking lots of drugs. She was certain that Dr. Bulloch had never released her to return to work, but Chase suddenly reduced her benefits in October 2005. She was also certain that no one from Chase or Cascade contacted her before this reduction. After the reduction, she called and was told that it happened because she turned down offered work; she testified that with all the drugs she was taking, she could not possibly work.

On cross-examination, she admitted giving a deposition in September 2006 in which she stated that all her prior back problems were “menstrual” in nature, and that she was in one auto accident in 2003 (after the instant injury). However, when confronted with a sheaf of medical records going [fiback to the 1970s, she conceded that she had suffered a host of medical problems, including lower back pain dating back to 1987, for which she received frequent medical treatment and drugs. She also admitted a 1987 car accident. She did not deny her signature on the return receipt of the labor market survey, but explained that she was probably so drugged up she just did not remember signing it. She also admitted that for a period in the late 1990s, she was drawing SSI, and applied to work at Chase when those benefits ran out. She insisted, nonetheless, that she never intended to defraud Chase with this claim.

The only other witness at trial was Sonya Sims, who related her handling of Ms. Freeman’s claim as outlined above. She was not aware if the jobs she submitted to Dr. Bulloch were still available by the time he finally approved them. She testified that Dr. Bulloch approved four jobs in October 2004 and one job in February 2005, Ms. Freeman failed to apply for any of them, and that Cascade closed its file in April 2005. She was not asked, however, why Chase waited until October 2005 to reduce benefits.

The WCJ ruled from the bench, stating it was unable to find fraud or any intentional misrepresentations by the claimant. It further found that Ms. Freeman was indeed unable to earn 90% of her pre-injury wage, based on Dr. Bulloch’s release to sedentary work in January 2003. However, when Chase reduced benefits, the jobs were no longer available; in addition, Chase failed to prove that the jobs were available when Dr. Bulloch approved them. The WCJ held that the employer cannot base its reduction on events that happened nine months earlier. It therefore reinstated “full | ^benefits” of $273.04 a week and awarded of lump sum of $8,704.36 for past due benefits. Finally, the WCJ found Chase’s decision to reduce benefits arbitrary and capricious. She assessed a penalty of $2,000 and attorney fees of $5,000. The instant appeal followed.

Discussion: Forfeiture of Benefits

By its first assignment of error, Chase urges the WCJ erred in finding that Ms. • Freeman did not misrepresent her previous medical history despite the fact that her deposition was clearly contrary to the medical records, showing a long history of back pain and treatment. Chase concedes the standard of review is manifest error, but shows that this court has at least once reversed a WCJ’s finding of no fraud. Baker v. Stanley Evans Logging, 42,156 (La.App. 2 Cir. 6/20/07), 960 So.2d 351. Chase methodically contrasts Ms. Freeman’s medical records with her depo-' sition, in which she either denied or could not remember her medical complaints and treatment, urging that it is full of misrepresentation. Chase also contends that Ms. Freeman’s decision to pursue this claim was motivated by her loss of SSI. It concludes that the only possible interpretation is that she misrepresented her prior medical history for the purpose of obtaining benefits.

Ms. Freeman responds that Chase failed to allege the defense of § 1208 fraud in its answer and thus cannot raise the issue on appeal. She cites La. C.C.P. art. 856, which requires fraud or mistake to be alleged with particularity. On the merits, she submits the WCJ was not plainly wrong. At trial, Chase stipulated that the accident occurred and was work-related, |7and it paid her TTD for over three years; since she was already drawing benefits, the fact that she could not recall an 18-year-old car accident or medical treatment dating to the 1970s could not be an intentional misrepresentation to obtain benefits. Also, most of her prior medical issues involved upper back, neck and head pain, not lower back. Finally, she drew SSI for a heart condition (Romano-Ward Syndrome) completely unrelated to back pain, and this had no effect on her claim.

In pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity. La. C.C.P. art. 856. Chase’s answer, citing § 1208 and the circumstances of and the complaints arising from the accident, did not allege misrepresentation of her preexisting health problems, and thus might run afoul of Art. 856. However, the WCJ is “not bound by the technical rules of evidence or procedure,” so long as the judgment is based upon “competent evidence.” La. R.S. 23:1317 A. The WCJ found that Chase gave Ms. Freeman adequate notice of the issue in its pretrial statement, filed some five months before trial. On this record we cannot say the WCJ abused its discretion in allowing Chase to present evidence of fraud under § 1208.

Forfeiture of benefits for false statements is governed by La. R.S. 23:1208, which provides in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by [the] workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.
Jaf * ⅜

The only requirements for forfeiture of benefits under § 1208 are (1) a false statement or representation, (2) -willfully made, and (3) made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Const. Co., 94-2708 (La.9/5/95), 660 So.2d 7, at 12. There is no requirement of prejudice to the employer; when the statute is satisfied, “benefits will be forfeited for the sole reason that the claimant has willfully and deliberately attempted to defraud the workers’ compensation system, and no further requirements are to be imposed.” Id., at 16; Johnikin v. Jong’s Inc., 40,116 (La.App. 2 Cir. 9/21/05), 911 So.2d 413, writ denied, 2005-2251 (La.2/17/06), 924 So.2d 1020. Section 1208 encompasses false statements or representations concerning prior injuries, if made specifically for the purpose of obtaining compensation benefits. Nabors Drilling USA v. Davis, 2003-0136 (La.10/21/03), 857 So.2d 407, fn. 2; Johnikin v. Jong’s Inc., supra.

Forfeiture is a harsh remedy and must be strictly construed. Wise v. J.E. Merit Constructors Inc., 1997-0684 (La.1/21/98), 707 So.2d 1214; Franklin v. HealthSouth, 41,458 (La.App. 2 Cir. 9/20/06), 940 So.2d 83. An inadvertent and inconsequential false statement would not result in forfeiture of benefits. Resweber v. Haroil Const. Co., supra; Rosson v. Rust Constructors Inc., 32,789 (La.App. 2 Cir. 3/1/00), 754 So.2d 324, writ denied, 2000-0914 (La.5/26/00), 762 So.2d 1105. Section 1208 does not penalize any false statement, but only those willfully made for the purpose of obtaining benefits. Resweber v. Haroil Const. Co., supra. The WCJ’s | ¡finding or denial of forfeiture will not be disturbed on appeal absent manifest error. Johnikin v. Jong’s Inc., supra; Brooks v. Madison Parish Service Dist. Hosp., 41,957 (La.App. 2 Cir. 3/7/07), 954 So.2d 207, writ denied, 2007-0720 (La.5/18/07), 957 So.2d 155.

Several of Ms. Freeman’s statements in deposition were plainly false, as when she denied being involved in any prior auto accidents, making any prior personal injury claims, or receiving medical treatment for her back since 1969. Chase interprets these as intentionally deceitful.

On close review, however, we cannot say that she made these misrepresentations willfully and for the purpose of obtaining benefits. Ms. Freeman sustained a serious back injury in April 2002, requiring major surgery in October 2003 and therapy through June 2004. She suffered the additional complication of drug dependency and continued taking strong drugs through the date of trial. In the face of these life-altering events, she may well have forgotten the 19-year-old auto accident and personal injury claim.' She may have naively thought that her subsequent medical treatment (much of which was for her upper back and neck) was not important enough to disclose. Her inability to recall even recent events, like phone calls from Ms. Sims, suggest some genuine memory -issues.

In short, _ Ms. Freeman’s statements were admittedly false, but the circumstances of. the case reasonably support the WCJ’s finding that they resulted from her work-related accident, devastating injury and other complications rather than from a willful act to obtain benefits. We cannot say the WCJ was plainly wrong.

l1nThe case stands in sharp contrast to Baker v. Stanley Evans Logging, supra, and Franklin v. HealthSouth, supra. Those claimants failed to report post-accident income which would have entitled their employers to a statutory setoff (in Baker’s case, a significant one). The “purpose” of such misrepresentations to obtain benefits is obvious; as noted, Ms. Freeman’s purpose, if any, in failing to recall a 19-year-old accident is not so obvious. Similarly, on the proper showing, a misrepresentation about the claimant’s pre-injury health status may result in forfeiture, especially when the truth would undermine the showing of causation. Johnikin v. Jong’s Inc., supra; Moore v. Transmissions Inc., 41,472 (La.App. 2 Cir. 9/27/06), 940 So.2d 694. Unlike in those cases, Chase has not shown that Ms. Freeman’s current condition predated the work-related accident.

We are cognizant that Chase was required to prove only a false statement, not any resulting prejudice.. However, we are bound to construe § 1208 strictly and to defer to the WCJ’s findings of fact. This record easily shows that Ms. Freeman has endured a myriad of health problems and substance addiction, resulting in an inability to recall even recent events. Although her deposition contains false statements, on this showing we cannot disturb the WCJ’s finding that she did not make them willfully and for the purpose of obtaining benefits. This assignment of error lacks merit.

Reduction of Beneñts

By its second assignment of error, Chase urges the WCJ erred in finding the reduction of benefits was inappropriate, after the treating physician declared Ms. Freeman could return to work and approved several In jobs, but she took no effort to apply for any of them. Chase argues that her failure to apply for the jobs was a refusal of rehabilitation, warranting a 50% reduction under La. R.S. 28:1226 B.' In support, it cites several cases involving claimants who refused jobs or rehabilitation, resulting in reduced benefits or denial of further rehabilitation services. George v. Broadmoor Const., 96 1074 (La.App. 1 Cir. 3/27/97), 692 So.2d 22; Ramogasse v. Lafitte Welding Works, 93-682 (La.App. 5 Cir. 12/13/95), 666 So.2d 1176; Wilson v. Grosjean Contractors Inc., 28,-831 (La.App. 2 Cir. 10/30/96), 682 So.2d 1264, writ denied, 97-0012 (La.2/7/97), 688 So.2d 510; Mendoza v. Leon’s Plumbing Co., 2004-0189 (La.App. 4 Cir. 12/22/04), 892 So.2d 600. Chase concludes that on this record, the WCJ was legally wrong not to reduce Ms. Freeman’s benefits.

Ms. Freeman responds that Chase did not raise this defense by answer and thus cannot argue it on appeal. While refusal of rehabilitation may be a defense which must be “set forth affirmatively,” La. C.C.P. art. 1005, we reiterate that the WCJ is not bound by the technical rules of evidence. La. R.S. 23:1217 A. Here, the WCJ accepted evidence as to rehabilitation and made factual findings on it. The issue is properly preserved for review.

Ms. Freeman contends that the cases cited by Chase are inapposite and one of them, Ramogasse v. Lafitte Welding, supra, actually holds that the employer cannot unilaterally reduce benefits but must first present the issue to the WCJ. Finally, she contends that she attended FIT sessions and had reasonable grounds to decline the jobs; the WCJ’s decision to deny the reduction was not plainly wrong.

| tj/When an employee has suffered a work-related injury, she is entitled to prompt rehabilitation services. La. R.S. 23:1226 A. The employer is responsible for selecting a licensed professional vocational rehabilitation counselor to evaluate and assist the claimant in job placement or vocational training. R.S. 23:1226 B(3)(a). If the employer refuses to provide these services, the claimant may file a claim for review; such claim must be heard on an expedited basis as provided by R.S. 23:1224 B. Id. The claimant must also accept rehabilitation, as set forth in R.S. 23:1226 B(3)(c):

(c) The expedited procedure shall also be made available to the employer to require the employee’s cooperation in the rehabilitation process. Refusal to accept rehabilitation as deemed necessary by the worker’s compensation judge shall result in a fifty percent reduction in weekly compensation, including supplemental earnings benefits ⅝ ‡

A plain reading of this provision shows that the 50% reduction hinges on refusal to accept rehabilitation as deemed necessary by the WCJ. An order of rehabilitation by the WCJ, perhaps by the “expedited process” of R.S. 23:1224 B, is obviously required, but there is no such order in the instant record. Chase’s decision to reduce benefits appears to be the kind of “unilateral decision” disapproved by the court in dictum in Ramogasse v. Lafitte Welding, supra. In the absence of such an order, the WCJ did not err in rejecting Chase’s defense of reduction under R.S. 23:1226 B(3)(e).

Moreover, the WCJ found that Chase failed to prove that the jobs were still available by the time Dr. Bulloch approved them. In the context of SEB, La. R.S. 23:1221(3)(c)(i), an employer may discharge its burden of proving job availability by showing (1) the existence of a suitable job within the claimant’s physical capabilities and within the 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 job position available for that particular job at the time that the claimant received notification of the job’s existence. Banks v. Industrial Roofing & Sheet Metal Works Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Caparotti v. Shreveport Pirates Football Club, 33,570 (La.App. 2 Cir. 8/23/00), 768 So.2d 186, writ denied, 2000-2947 (La.12/15/00), 777 So.2d 1230. The job must still be available when the physician approves it. Lanthier v. Family Dollar Store, 2006-779 (La.App. 3 Cir. 11/2/06), 942 So.2d 732.

Ms. Sims notified Ms. Freeman about four jobs on September 20, 2004, but Dr. Bulloch did not approve them until October 15. While this lag does not seem unconscionably long, Ms. Sims had no idea whether the jobs were still available on the later date. She notified Ms. Freeman about one more job on January 21, 2005; Dr. Bulloch approved it on February 10, by which time Ms. Sims was again unaware if it was still open. Further, Chase was aware of Ms. Freeman’s failure to act on the job leads as early as September 2004, but did not reduce her benefits until October 1, 2005, a full year later. The instant record does not show that any job within Ms., Freeman’s restrictions was available when benefits were reduced. The WCJ was not plainly wrong in denying the request for reduction.

We would note parenthetically that Dr. Bulloch has approved all the suggested jobs, Dr. Forte has deferred to Dr. Bul-loch’s opinion, and no objective medical evidence has been introduced to show that Ms. Freeman [14cannot work. If in the future Chase can document that a job is still open by the time it is medically approved, a reduction of benefits in accordance with R.S. 23:1226 B(3)(c), or a recalculation of SEB to reflect her earning ability in accordance with R.S. 23:1221(3)(a), may well be appropriate. On the instant record, however, the WCJ did not err in denying the reduction. This assignment of error lacks merit.

Attorney Fees on Appeal

By answer to appeal, Ms. Freeman requests additional attorney fees for defending the appeal. A worker’s compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending the employer’s unsuccessful appeal. Frith v. Riverwood Inc., 2004-1086 (La.1/19/05), 892 So.2d 7. Bearing in mind the complexity of the case and the fact that the WCJ already awarded counsel $5,000 for its work at the trial level, we find an additional attorney fee of $2,500 is warranted. Adams v. Dependable Source Corp., 2006-1331 (La.App. 1 Cir. 5/4/07), 961 So.2d 1183; Cotton v. First Fleet, 2007-29 (La.App. 3 Cir. 5/2/07), 957 So.2d 229, writs denied, 2007-1488, -1543 (La.10/5/07), 964 So.2d 947, 948.

Conclusion

For the reasons expressed, the judgment of the WCJ is affirmed in its entirety. Judgment is further rendered in favor of Billie Freeman and against J.P. Morgan Chase and Liberty Mutual for additional attorney fees of $2,500. Appellate costs are to be paid by the appellants.

AFFIRMED; ADDITIONAL ATTORNEY FEES AWARDED.


author: COOKS, Judge.

text:
    Dione CAGLE v. HARRAH’S LAKE CHARLES, L.L.C. and/or Players Lake Charles, L.L.C.
    No. 2007-653.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 2007.

      Rex D. Townsley, The Town'sley Law Firm, Lake Charles, LA, for Plaintiff/Ap-pellee/Cross-Appellant, Dione Cagle.
    J. Mac Morgan, Law Office of J. Mac Morgan, Lake Charles, LA, for Plaintiff/Appellee/Cross-Appellant, Dione Ca-gle.
    James B. Doyle, Lake Charles, LA, for Defendants-Appellants, Harrah’s Lake Charles and/or Players Lake Charles, L.L.C.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and BILLY H. EZELL, Judges.
   COOKS, Judge.

| plaintiff, Dione Cagle, was employed by Harrah’s Lake Charles as a slot machine technician aboard the M/V Players III casino riverboat. On November 5, 2000, Ms. Cagle reported to the Player’s Security Office that she slipped and fell on the stairs of the third deck of the riverboat. Ms. Cagle filed suit on April 30, 2002, alleging her status as a seaman under. the Jones Act, 46 App.U.S.C. § 688, and asserting claims for negligence and unseaworthiness. The defendants answered the lawsuit, denying that any such accident occurred, and alternatively denying liability. A bench trial was held on June 28-30, 2006.

At trial, Ms. Cagle contended the steps did not have the appropriate non-skid material upon them and were improperly installed, which allowed water to pool up on the steps. She also claimed the lighting on and around the stairs was inadequate, and rendered the riverboat unseaworthy. Testimony at trial indicated the lighting in the stairs area was “dim,” although the defendants claimed it was sufficient.

Defendant pointed out that Ms. Cagle did not immediately seek medical treatment, but waited until a few hours after she said she fell. After filling out the accident report, Ms. Cagle drove herself to St. Patrick’s. Hospital, where she was treated and released. Defendant notes she returned for her next assigned shift and remained in Defendant’s employ until she was fired six weeks later for excessive absences.

Defendant stated it conducted an immediate examination of the scene of the incident. Ernest Kickel, who was a security officer, testified he did not find any unreasonably dangerous conditions present at the incident site. He noted the lighting was “dim,” but believed it was adequate for him to see the steps. The lighting in the area was reported on Defendant’s accident report as “Outside Dim.”

12After the alleged accident, Ms. Cagle was treated for a number of months by Dr. James Perry with complaints of lower back pain. She was diagnosed with a lumbar strain with mild radicular symptoms and some disc protrusion at the L5/S1 level. Dr. Perry did question whether the objective findings of injury supported the amount of pain complained of by Ms. Ca-gle. Ms. Cagle received treatment from other physicians over the next few years. Complaining of continued severe pain, an independent medical evaluation was performed by Dr. Clark Gunderson. In his report, Dr. Gunderson found Ms. Cagle to have an “EMG consistent with the disc protrusion with a lumbosacral radiculopa-thy.” Considering that five years had elapsed since the injury and Ms. Cagle still had significant limitation despite years of conservative therapy, Dr. Gunderson was of the belief that Ms. Cagle would require future surgery to alleviate her disc problems.

After a three-day trial, the court rendered judgment in favor of Ms. Cagle, and set forth the following reasons for judgment:

Based on the evidence, it appears evident that, at the time of the accident at issue in this case, the Player’s III was a vessel in navigation for the purposes of the Jones Act. The Court accepts this particularly based on the fact that records show that the Player’s III was still making voyages over Lake Charles at the time of the accident in November 2000.
Considering the fact that Player’s III was in fact a vessel in navigation, then it is evident that Plaintiff had attained seaman status during her employment with Harrah’s and should be able to assert her claim for damages under the Jones Act.
Plaintiff alleges that inadequate lighting on the hurricane deck was a proximate cause of the accident and caused the Player’s III to be unseaworthy. Based on the evidence adduced during the trial, particularly the testimony of Mr. Kiekel, it is evident that the lighting on the Player’s III was not bright enough for the purpose used. Apparently there was only a set of what was referred to as “porch lights” shinning [sic] outside the door that led out to the steps in question. There were no lights near or above the stairs, which according to various accounts, were available for use by patrons and employees for moving between deck levels on the Player’s III. Considering that these stairs were Lfrequently used by both employees and patrons of the casino, during nighttime operations, there should have been lighting that was adequate to ensure that users of the stairs were able to use them safely and easily and to be able to see any hazards which could have existed on the stairs. The stairs were not adequately lit and this was a proximate cause of the accident which occurred. In ruling the vessel unsea-worthy due to the lighting allegations, the Court sees no need to proceed to evaluate the steps’ “non-skid” protection or the failure of the defendants to hold safety meetings. The Court, now establishing liability, moves to discuss causation and damages.
In a Jones Act case, where the vessel is considered unseaworthy, it must be shown that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness. In this case, the Court finds that the lack of lighting on the stairs in question played a substantial part in bring [sic] about the fall of the plaintiff while she was descending the stairs. As a result of this fall, the plaintiff did in fact sustain injuries.
The level of injury sustained and the amount of damages are not abundantly clear from the evidence and testimony presented. While Dr. Raggio and Dr. Perry seem to have some doubt about the severity of the injuries sustained by plaintiff, the I.M.E. performed by Dr. Gunderson found otherwise. The I.M.E. states that the primary complaints are lower back and right leg pain. The I.M.E. also states that the plaintiff has an EMG consistent with disc protrusion with a lumbosacral radiculopathy. As a result, the Court finds that the plaintiff has suffered damages as a result of her fall while at work and is entitled to an award of damages from the Defendant, Harrah’s. The testimony of the IME doctor confirmed injury and was uncontested on medical probability of future surgery. The Court does not find that Plaintiff has reached the point of maximum medical improvement, and thus should be entitled to awards of maintenance and cure from the date of the accident, less any credits for amounts previously paid. Evidence indicates that the Defendant paid most of the accident related medicals, but at no time paid any maintenance to the Plaintiff. Therefore, the Court does find that Defendant has acted in a way, in not paying maintenance and cure which could be described as “callous and recalcitrant or arbitrary and capricious.” A finding of this sort is necessary for a statutory award of attorney fee’s, which the Court finds is present in this case.

The trial court awarded damages in the following amounts: $150,000 in General Damages; $143,722 in Past Loss of Earnings; $331,677.87 in Future Loss of Earnings; $80,000 in Future Medicals; $9,287 in Past Medicals; and $30,885 in Past Maintenance. The trial court found, while Defendant did pay most of the medical 14bills, it paid no maintenance and cure to Ms. Cagle. The trial court then concluded that the Defendant’s failure to pay maintenance and cure was arbitrary and capricious and awarded Ms. Cagle $10,043.14 in Attorney Fees. The trial court also ordered Defendant to pay “legal interest on all past losses from the date of the injury (November 5, 2000) until paid in full.”

Defendant has appealed the judgment and argues the trial court erred in its finding of unseaworthiness. It also argues the trial court committed manifest error by accepting the testimony of Ms. Cagle in the face of “greatly preponderant objective evidence” to the .contrary. Defendant further assigns as error, in the alternative, that the trial court erred in failing to find Ms. Cagle comparatively negligent. Lastly, Defendant contends the trial court awarded excessive damages, should not have awarded attorney fees and erred in awarding prejudgment interest. Ms. Ca-gle answered Defendant’s appeal and argues the amount of damages awarded was inadequate and requests an increase in the, award.

ANALYSIS

Appellate courts in Louisiana apply the manifest error standard of review in Jones Act cases. Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89; Richard v. Mike Hooks, Inc., 99-1631, 99-1632, 99-1633 (La.App. 3 Cir. 10/4/00), 772 So.2d 148, reversed on other grounds, 01-145 (La.10/16/01), 799 So.2d 462. A reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Butler v. Zapata Haynie Corp., 92-71, p. 7 (La.App. 3 Cir. 2/23/94), 633 So.2d 1274, writ granted in part and denied in part, 94-1171 (La.7/5/94), 639 So.2d 1186, cert. denied, 513 U.S. 1017, 115 S.Ct. 579, 130 L.Ed.2d 494 (1994). To reverse the determinations of the trial court, an appellate court must (1) find from the record that a reasonable factual Isbasis does not exist for the finding of the trial court, and (2) determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993).

I. Credibility Determination as to Ms. Cagle.

Defendant initially argues the trial court committed manifest error by accepting the testimony of Ms. Cagle in the face of “greatly preponderant objective evidence” to the contrary. Defendant argues the documents and evidence so contradicted Ms. Cagle’s story, we should find the trial court manifestly erred in accepting her version of the events. Defendant listed several examples of testimony adduced at trial that it believed contradicted Ms. Cagle’s version of events, including the fact she was outfitted with a radio at the time she allegedly fell, but did not call for assistance. However, Ms. Cagle acknowledged freely at trial that she had her radio but did not call for assistance. She stated after the fall she took the elevator down to the break room to sit. It was later, when she realized she may have been significantly injured that she went to the security office to report the fall. Defendant also points to Ms. Cagle’s admission that “she could have avoided walking through dim light down three flights of wet steps in the rain and fog simply by simply taking the elevator inside the casino.” Ms. Cagle testified she chose to use the steps because on the day of the accident, which was on a weekend, the boat was extremely crowded, and using the elevator would have taken “forever” and she would “have missed most of [her] lunch.” Defendant also notes at length that Ms. Cagle apparently did not like her job and had applied for other work prior to the date of the incident. Ms. Cagle freely acknowledged this was true during her testimony, however the trial court obviously found this admission was not sufficient to cast serious doubt upon Ms. Cagle’s credibility or version of the events. The trial court’s decision to accept her “story,” [fias opposed to Defendant’s theory that the accident did not happen was not manifestly erroneous.

Defendant also argues the medical testimony and records contradicted Ms. Cagle’s testimony as to the severity of the injuries she suffered in the accident. It argues Dr. Raggio’s examination revealed numerous instances of “non-physiological findings,” which led him to the conclusion that she was magnifying her symptoms. However, even though Dr. Raggio testified he believed Ms. Cagle was exaggerating her symptoms, he still recommended that she see a pain management specialist.

Defendant also contends “the testimony of Dr. Ramos, whom Ms. Cagle saw after her reported accident while she was still working at Harrah’s, ... contains evidence of Ms. Cagle sustaining additional injury, and is inconsistent with their testimony.” Defendant does not elaborate any further on this contention. The record reveals Ms. Cagle was treated by Dr. Ramos in July 2000 for a wrist sprain superimposed over an old wrist fracture. Dr. Ramos again saw Ms. Cagle in December of 2000 for flu-like complaints, and noted in his chart that she had re-injured her right hand. We find nothing in Dr. Ramos’ testimony which in any way calls into question Ms. Cagle’s testimony. We note the injuries which Ms. Cagle alleges she sustained in the fall were to her back and not her wrist.

The trial court in its written reasons noted there was “some doubt about the severity of the injuries sustained by plaintiff,” but believed the independent medical examination performed by Dr. Gunderson substantiated Ms. Cagle’s complaints. Therefore, we find no merit in Defendant’s argument that the documents and evidence presented at trial contradicted Ms. Cagle’s story.

II. Unseaworthiness.

Defendant notes that the trial court determined that the stairs in question were |7not “adequately lit” and that this rendered the vessel unseaworthy as a matter of law. Defendant argues this was error, “primarily because there was absolutely no factual support for any finding that the lighting affected Ms. Cagle’s walk down the outside stairs.” We disagree.

The trial court relied on the testimony of Ernest Nickel, who was Harrah’s security officer who investigated the accident on the night it occurred and then prepared the accident report. Mr. Kickel testified as follows in response to questions concerning the conditions of the stairs:

Q. When you have opened the double doors and are walking across the deck that you described, how far is it to get to the steps that you later looked at in your investigation?
A. To the best of my recollection, it’s 10' to 12'.
Q. This was at night, wasn’t it?
A. Yes, sir.
Q. How is that area illuminated?
A. On either side of the door, there are — I call them porch-type lights, hanging lights with basically a light bulb on the inside.
Q. And these are over by the double doors?
A. By the doors themselves, yes, sir.
Q. Now, next there is a blank, or there is a section over here called “lighting condition.” Do you see that?
A. Yes, sir.
Q. And would you explain what you’ve checked and why you checked it the way you did and why you wrote in there what you wrote?
A. Okay. I wrote in there “outside dim.” In other words, there were outside lights but the area was dimly lit.

Mr. Kickel also noted that in addition to the lighting on the third deck being dim, | sthere were “no stairwall lights whatsoever.”

Ms. Cagle’s testimony corroborated the inadequate lighting conditions surrounding the stairs in question:

Q. What were the lighting conditions like as you entered the stairwell?
A. Poor. In the stairwell they were nonexistent. Coming out of the door it was dim.
Q. When you got up to go could you see the water on the steps?
A. No.
Q. And why not?
A. Because it was dark.

With the uncontradicted testimony that the lighting in the stairs area was dim, we find no error on the trial court’s part in ruling that the vessel was unseaworthy due to inadequate lighting. As pointed out by Ms. Cagle, the concurring opinion in Mosley v. Cia. Mar. Adra., S.A., 314 F.2d 223, 229 (2 Cir.1963), cert. denied, 375 U.S. 835, 84 S.Ct. 52, 11 L.Ed.2d 65 (1963), stated that there is a “general proposition that proof of inadequate lighting is enough to support a finding of unseaworthiness.”

We also find without merit, Defendant’s contention that Ms. Cagle failed to establish the proximate cause prong of liability for unseaworthiness. There was ample testimony, as well as corroborating evidence in the form of the accident report, that Ms. Cagle’s fall was caused by inadequate lighting. Ms. Cagle also presented the testimony of Captain Joseph Ahlstrom, who was accepted as an expert in vessel operations and marine safety. Captain Ahlstrom inspected the boat and reviewed its shipyard drawings, and concluded the inadequate lighting was a substantial factor in causing Ms. Cagle’s slip and fall, and as such rendered the vessel unseaworthy.

| JII. Comparative Fault.

Defendant contends the trial court erred in not assessing any comparative fault to Ms. Cagle. It argues Ms. Cagle “slipped and fell on stairs made wet by rain, a condition which was obvious to her.” We disagree with Defendant’s assertion that any moisture on the stairs should have been “obvious” to Ms. Cagle. She testified due to the inadequate and non-existent lighting, she was unable to see the water on the stairs. Defendant’s also asserts that “Ms. Cagle’s actions in traversing a stairway, at night during her regular shift, were routine.” Defendant asserts this task was not particularly dangerous and was routinely accomplished without injury by those in her position. However, this assertion ignores the fact that the stairway was not properly lit. Traversing wet stairs in lighting that is deficient to the degree it renders the vessel unseaworthy is not routine.

Defendant also argues Ms. Cagle had “a readily available, safe alternative method” available to her, specifically the inside stairs or elevator, but failed to use that method. Ms. Cagle explained why she chose not to use the inside stairs or elevator. She stated at the time of the incident she was heading ashore to go to the lunch room. The date in question was on a weekend, and she testified the boat was extremely crowded and she would have been forced to use nearly all of her break time trying to descend from the top of the boat, down three levels and through the main casino floor to the ship’s general exit on that date. Thus, she did not feel the inside stairs or elevator were a viable option at that time. The trial court apparently accepted this explanation, and concluded her actions were reasonable. Again, we cannot say the trial court manifestly erred in failing to assess any comparative fault to Ms. Cagle.

IV. Damages.

Defendant contends the amounts awarded for past loss of earnings ($143,-722) |inand future loss of earnings ($331,-677.87) were a “clear abuse of discretion.” Ms. Cagle answered the Defendant’s appeal and asserted the trial court erred when it reduced her future wage loss with an annual minimum wage offset.

Defendant argues it was uncontested that Ms. Cagle continued to work for Har-rah’s after her accident until she was fired, then obtained other employment and worked there until she was laid off. Defendant contends Ms. Cagle became “voluntarily unemployed,” and as such there is no basis for an award for past loss of earnings.

Ms. Cagle testified, although she continued in her job at Harrah’s after the accident, she relied on her co-workers to perform any heavy work and only performed light-duty work. Ms. Cagle also stated because Harrah’s refused to pay maintenance, she was forced to take a job at H.B. Zachary for approximately one month until March 7, 2001. Further, the independent medical examiner, Dr. Gunderson testified he classified Ms. Cagle as totally disabled from May 7, 2001 until the date of trial. He also stated as of the date of trial, Ms. Cagle had yet to reach maximum medical improvement. Finally, Dr. Rice, who was Ms. Cagle’s economist stated he deducted Ms. Cagle’s post-accident earnings from his past wage loss calculations. Therefore, we find no error in the trial court’s award of past loss wages.

Defendant also argues the trial court erred in its award of future lost wages, because Ms. Cagle had “many reasons not to work at all,” including that she was married, had a baby, and her husband received a substantial personal injury settlement. We find no merit in Defendant’s argument that because Ms. Cagle is a wife and mother she should not be a member of the workforce. Dr. Rice specifically testified that the “female workplace is in fact progressing and changing.” In today’s economic climate there are many working mothers in the workforce, most by ^necessity and some by choice. Further, there is nothing in the record to suggest Ms. Cagle had no intention of returning to work if she were physically able. Accordingly, there is no support for Defendant’s “barefoot and pregnant” argument.

We find the record supports the trial court’s future lost wages award. The trial court noted it accepted the uncontradicted testimony of Dr. Rice in reaching the figures at which he arrived. We, therefore, affirm the trial court’s future lost wages award:

Defendant also argues it was not required to pay maintenance and cure because Dr. Perry testified Ms. Cagle had reached maximum medical improvement. Maintenance and cure is an obligation imposed upon a shipowner to provide the cost of medical treatment and basic living expenses to a seaman who becomes ill or injured during his service to the ship. Silmon v. Can Do II, Inc., 89 F.3d 240 (5th Cir.1996). Entitlement to maintenance and cure is not based on negligence or unseaworthiness. Rather, it is akin to a workers’ compensation benefit, for seamen. It is an obligation of the shipowner, irrespective of fault, that is imposed by the law itself as one annexed to the seaman’s employment. Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). Its limited purpose is to make the seaman whole, and it does not extend beyond the seaman’s need; it ends absolutely at the point that maximum medical recovery has been reached. Id. The remedy is essentially curative in nature and is not intended as compensation for injury. Boudreau v. S/V SHERE KHAN C, in rem, 27 F.Supp.2d 72 (D.Maine 1998); Muhammad v. Diamond Offshore Co., 02-172 (La.App. 3 Cir. 7/10/02), 822 So.2d 869, writ denied, 02-2409 (La.11/27/02), 831 So.2d 279, cert. denied, 538 U.S. 1056, 123 S.Ct. 2215, 155 L.Ed.2d 1106 (2003).

Although Dr. Perry stated he believed Ms. Cagle had reached maximum medical improvement, there were numerous other medical opinions that did not agree |1p,with that assessment. Dr. Lopez’s office notes, dated March 6, 2002 and March 25, 2002, which were sent to Defendant with the demand for maintenance, stated that Ms. Cagle had not reached maximum medical improvement. Dr. Gun-derson’s IME report also set forth that Ms. Cagle was not at maximum medical improvement. The trial court specifically found there was a medical probability of future surgery and that Ms. Cagle had not reached the point of maximum medical improvement. Thus, the trial court found she was entitled to maintenance and cure from the date .of the accident. Where there are ambiguities or doubts as to a seaman’s right to receive maintenance and cure, they are resolved in favor of the seaman. Vaughan, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88. The trial court did not err in awarding Ms. Cagle maintenance.

Defendant also argues it should not have been assessed with penalties and attorney fees for the failure to provide maintenance and cure because the “medical picture was cloudy.” We disagree. It is well established in maritime law that any ambiguities and doubts are to be resolved in favor of the payment of maintenance and cure. Vaughan, supra; Warren v. United States, 340 U.S. 528, 71 S.Ct. 432, 95 L.Ed. 503 (1951). We find no error in the trial court’s conclusion that Defendant’s actions in failing to pay maintenance was “callous and recalcitrant or arbitrary and capricious.”

V. Minimum Wage Offset.

Ms. Cagle answered Defendant’s appeal, and contends the trial court erred in its award of future wage loss by reducing it with an annual minimum wage offset. Ms. Cagle contends the evidence did not support the minimum wage offset, and specifically argues Jeffrey Peterson, the only vocational rehab specialist who testified, did not believe she would ever return to work. Our review of the record indicates Mr. Peterson’s testimony was equivocal on whether Ms. Cagle could possibly return to minimum wage work. When asked whether “Ms. Cagle may be able to do some 1^minimum wage jobs in the future,” Mr. Peterson replied “[i]t’s possible, yes.” Mr. Peterson, in responding to a question asking what his appreciation of Ms. Ca-gle’s future earning capacity was, stated:

Because of the limitations set forth, first of all, in the functional capacity evaluation, which was established in the year 2000, and in consideration of what Dr. Gunderson testified to yesterday, based on his analysis which was done four years later, you’re looking at a wage earning capacity that is at least minimum wage of $5.15 per hour, maybe a little bit more than that depending on the job market at the time, but minimum wage jobs up to $6.00 at best.

Contrary to Ms. Cagle’s assertions, we find evidence in the record which supports the trial court’s decision to apply a minimum wage offset.

VI. Prejudgment Interest.

Defendant contends the trial court erred in awarding prejudgment interest on the awards for appellee’s past losses. It argues since this case was tried “at law” in state court, no prejudgment interest is allowable. Defendant notes the seminal case on this issue is Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89. In Milstead, the Louisiana Supreme Court addressed the appropriateness of awarding prejudgment interest:

An award of prejudgment interest in state maritime cases is substantive in nature such that federal law controls.
Under federal law, a plaintiffs entitlement to prejudgment interest in a maritime case depends upon the nature of his claim, particularly the basis from which the federal court derives its subject matter jurisdiction. Federal courts derive their maritime jurisdiction from either the constitutional and statutory grant of such power, referred to as “admiralty jurisdiction,” or from conventional sources such as diversity or ffederal question.
If the court’s jurisdiction is based solely upon conventional sources, such as federal question, the court applies federal law with respect to awarding interest. Since the statute governing the payment of interest in civil cases in federal courts, 28 U.S.C. § 1961, provides that interest shall be calculated from the date of entry of the judgment, prejudgment interest is generally prohibited in such maritime cases. As _L^such, the courts have consistently refused to grant .prejudgment interest on awards recovered under the Jones Act.
Nonetheless, there is an exception to this general rule. Even if the court hears a suit based solely upon federal question, it can sit in “admiralty” if the case is tried before a judge and not a jury. Thus, when an action is based strictly upon the Jones Act, prejudgment interest may be recovered as long as the case is tried to the court and the court exercises its admiralty jurisdiction.
Likewise, where the court’s power to hear a case arises from its admiralty jurisdiction, such as a general maritime action for unseaworthiness, the applicable substantive law is federal maritime law, which gives courts the discretion to award prejudgment interest.
In sum, federal courts have the discretion to award prejudgment interest on causes of action based upon their admiralty jurisdiction. However, courts have clearly chosen not to grant prejudgment interest on awards for future losses, including future earnings and future pain and suffering. The rationale underlying this rule being that “recovery of interest on losses not yet incurred effectively grants the recipient double recovery.”

676 So.2d at 96-97 (citations omitted).

The Milstead decision clearly provided that a state court has the discretion in a judge tried Jones Act ease to award prejudgment interest on past losses. Therefore, we find no error on the trial court’s part in awarding prejudgment interest for Ms. Cagle’s past losses.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Defendant Appellant.

AFFIRMED.


author: CHARLES R. JONES, Judge.

text:
    Alfred HARRIS v. DEPARTMENT OF POLICE.
    No. 2007-CA-1255.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 2007.

      Gary M. Pendergast, Gary M. Pender-gast, L.L.C., New Orleans, LA, for Plain-tiffiAppellant.
    Joseph V. DiRosa, Jr., Chief Deputy City Attorney, Penya Moses-Fields, City Attorney, James B. Mullaly, Assistant City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, and Judge LEON A. CANNIZZARO JR.).
   CHARLES R. JONES, Judge.

b The Appellant, Officer Alfred Harris, seeks review of a Civil Service Commission decision which upheld his eighty-five (85) day suspension from the New Orleans Police Department. We affirm.

The facts in this case are not in dispute. Officer Harris was employed by the New Orleans Police Department (“NOPD”) as a Police Officer I with permanent status. At the time Hurricane Katrina occurred, Officer Harris was assigned to the Seventh Police District. On August 28, 2005, he was ordered to report to the Seventh District’s station on August 29, 2005.

Officer Harris was precluded from reporting to work on August 29, 2005, because his home was flooded. He had to be rescued from his home. On the evening of August 30, 2005, Officer Harris made his way to the Seventh District’s makeshift station at the Crystal Palace reception hall on Chef Menteur Highway. On September 1, 2005, Officer Harris made the decision to leave the station — where he alleges no police action was occurring — to cheek on his family and to let them know he was okay.

^Officer Harris traveled to Acadia, Texas, where he remained until the end of the first week of September, 2005. He then attempted to return to the city, but was not allowed to enter because he did not have his police identification, which was lost in the flood. Officer Harris was ultimately allowed into New Orleans on September 13, 2005.

After a departmental investigation was conducted, the Appointing Authority suspended Officer Harris for eighty-five (85) days for neglect of duty. The length of the suspension was based on a scale set-up by the Superintendent to discipline officers commensurate with the amount of time that they were absent from duty. Officer Harris timely filed an appeal with the Civil Service Commission, where it was assigned to a Hearing Examiner. A hearing was conducted and by a decision rendered on August 7, 2007, the Commission dismissed Officer Harris’s appeal. Officer Harris now seeks review of the Commission’s dismissal of his appeal.

Officer Harris raises two (2) issues on appeal. First, he asserts that the Civil Service Commission committed manifest error in dismissing his appeal because no discipline was warranted under the conditions created by Hurricane Katrina. His second assignment of error is that the Commission also committed manifest error in denying his appeal when the Appointing Authority’s discipline was excessive.

The Civil Service Commission’s findings of fact should be given the same deference as those made by a judge or jury and, accordingly, the standard of review does not differ from that in other civil cases and the Commission’s determination should be affirmed unless it is manifestly erroneous or clearly [swrong. Bruno v. Department of Police, 462 So.2d 139, 141 (La.1986) (citations omitted).

In Robertson v. Department of Police, 07-0795 (La.App. 4 Cir. 10/3/07), 968 So.2d 779, we set forth the standard of review in civil service disciplinary cases as follows:

[T]he appellate court has a multifaceted standard of review. First, as in other civil matters, deference must be given to the factual findings made by the Commission, which should not be disturbed unless manifestly erroneous or clearly wrong. Second, in evaluating the Commission’s determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the appellate court should not modify the Commission’s order unless it is arbitrary, capricious, or characterized by an abuse of discretion. (citing Bannister v. Department of Streets, 95-404, p. 8 (La.1/16/96), 666 So.2d 641, 647 (citations omitted)).

Legal cause exists whenever the employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir.1990). A decision by the Civil Service Commission is “arbitrary or capricious” if there is no rational basis for the action taken by the Civil Service Commission. Bannister v. Department of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647. Furthermore, a legal basis for any change in disciplinary action can only be that sufficient cause for the action was not shown by the Appointing Authority. Branighan v. Department of Police, 362 So.2d 1221 (La.App. 4th Cir.1978).

In his first assignment of error, Officer Harris contends that the Civil Service Commission acted arbitrarily and capriciously in .dismissing his appeal and thereby | ¿upholding his eighty-five (85) day suspension because no discipline was warranted. Officer Harris maintains that the Commission introduced no evidence that his departure impaired the efficiency of the public service considering that the Seventh District had lost its communication capabilities; had no means of transportation; was unequipped, and, therefore, unable to assist anyone in the aftermath of Hurricane Katrina. Under these circumstances, Officer Harris contends that his absence was excusable. We disagree.

In its August 7, 2007 decision, the Commission explained:

The Appointing Authority had established by a preponderance of evidence that it disciplined Appellant for cause. Appellant neglected his duty by abandoning his assignment without permission, and remaining away from his duties for fourteen days.

After reporting to the Seventh District’s makeshift station on August 30, 2007, Officer Harris decided he would rather be elsewhere and without requesting permission from a superior officer to leave his station, he deserted his post. The decision of whether he could leave, however, was never his decision to make. The Commission neither acted arbitrarily nor capriciously in upholding the Appointing Authority’s decision to discipline Officer Harris for forsaking his responsibilities.

Officer Harris survived the flooding of his home, was rescued and managed to report to duty. Yet, he abandoned his post before he was called upon to assist those who had been in his same predicament. In that respect, he impaired the efficiency of public service. Admittedly, Officer Harris acted out of frustration. It would defy reason, however, to allow emergency personnel operating in an | semergency to use exigent conditions created by said emergency to justify leaving their post. We find that this assignment of error has no merit.

Officer Harris’s second assignment of error is that he should not be suspended for eighty-five (85) days because such a lengthy suspension is excessive, even if his behavior does merit punishment. He contends that the Appointing Authority’s implementation of a “mechanical scale” to determine how to discipline its officers is too rigid because it does not take into account mitigating circumstances.

The Superintendent devised a scale to uniformly discipline offending officers. According to Officer Harris, the Appointing Authority testified that guidelines had been established to punish officers based on the time officers missed from duty. An officer was suspended for thirty (30) days if they were absent from zero (0) to seven (7) days. Being absent from seven (7) to fourteen (14) days carried an increasingly larger suspension for each unauthorized day. It is uncontested that Officer Harris was absent for fourteen (14) days.

We recently addressed the issue of excessive suspensions in Cure v. Department of Police, 07-0166 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093. In Cure, a New Orleans Police Officer contested his thirty (30) day suspension for leaving his post for six (6) days during an emergency hurricane evacuation. Officer Cure averred that the imposed penalty was “arbitrary and capricious in that it was imposed through an ‘arbitrarily set formula for punishment that failed to distinguish the people who reported for emergency activation status and stayed [ (¡through the crises [which the plaintiff did] and then left from the people who failed to report on August 28 for emergency activation status and were gone a similar length of time.’ ” Id. at pp. 1-2, 964 So.2d at 1094.

We affirmed the decision of the Appointing Authority and held:

The use of a schedule during the difficult post Katrina times is understandable. Whether the punishment called for by the schedule constitutes an abuse of discretion depends on the facts of the particular case to which the schedule is applied. We find the punishment to be commensurate with the infraction. We do not find that the punishment was excessive relative to the infraction. We further find that the “dereliction bore a real and substantial relationship to the efficient operation of the appointing authority,” i.e., it goes without saying that Officer Cure’s absence from his post during the post Katrina emergency would impair the efficient operation of the appointing authority. The plaintiff cites no authority to the contrary.

Id. at p. 3, 964 So.2d at 1095.

Similarly, we find that the length of Officer Harris’ abandonment gave the Appointing Authority cause to suspend him for eighty-five (85) days. Officer Harris asserts that mitigating factors were at play and should be taken into consideration. As stated above, Officer Harris was a member of the emergency personnel operating in an emergency. The taxing conditions Officer Harris was subjected to (i.e. loss of equipment, lack of communication, etc.) cannot be used to lessen his penalty when said conditions were the result of the very emergency for which he was ordered to report. Because Officer Harris’ penalty corresponds with 17his infraction, we do not find that it is excessive. Therefore, we find that this assignment of error lacks merit.

DECREE

For the foregoing reasons, the decision of the Civil Service Commission is affirmed.

AFFIRMED.


author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Kendall COPELIN.
    No. 2007-KA-0790.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 2007.

      Eddie J. Jordan, Jr., District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY).
   MAX N. TOBIAS, JR., Judge.

hOn 6 October 2004, the defendant, Kendall Copelin (“Copelin”), was charged by a bill of information with one count of possession with intent to distribute crack (count one) and one count of distribution of marijuana (count two). On 12 October 2004, he entered pleas of not guilty to both counts. On 19 April 2005, the state amended the bill of information on count one to delete the reference to “crack” and substitute therefore “cocaine”. Following a hearing on motions, the district court found probable cause to hold Copelin for trial and denied his motion to suppress the evidence. On 3 May 2005, Copelin entered pleas of guilty to both counts, reserving his right to appeal pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced to serve fifteen years at hard labor with credit for time served and concurrent with any other sentence on count one and five years at hard labor with credit for time served and concurrent with any other sentence on count two. The state filed a multiple bill of information as to count one. Copelin pleaded guilty to the multiple bill and his original sentence on count one was vacated. He was resentenced to serve fifteen | ¡.years at hard labor with credit for time served and concurrent with any other sentence.

The following facts are adduced from the transcript of the motion hearing conducted on 19 April 2005.

Officer Nikki Johnson testified that on 8 September 2004 she was assigned to participate in an undercover investigation of narcotics trafficking with other officers as her support team on General Taylor Street near South Johnson Street in New Orleans. While driving an unmarked police vehicle which was equipped with both audio and visual surveillance equipment, she drove lake bound on General Taylor Street toward South Johnson Street. Copelin came around the corner of South Johnson Street riding a bicycle. She stated that when she pulled up to the corner she almost struck him because she did not see him. She testified that Copelin flagged her down and told her to turn onto South Johnson Street and pull to the side of the street. She complied, at which time Cope-lin approached her vehicle. She asked him for “two dimes,” and he responded “okay” and asked her if she also wanted “weed.” She responded that she did, and he asked her if she was “afraid,” to which she responded in the affirmative. He then gave her his shirt, hat, and a little face towel to hold while he went to get the drugs. She contacted her support team and informed them of what had transpired and that the defendant was proceeding eastbound on South Johnson Street. She also stated that the other officers could hear her conversation with Copelin and were able to observe him. She testified that shortly thereafter Copelin returned and gave her the “crack.” He then left again on the bicycle, driving behind her vehicle in the opposite direction. Shortly thereafter he returned and gave her the “weed” and informed her that if she needed him again his name was “Kendall.” She returned Copeliris clothing |3to him and paid for the drugs. She stated that she then radioed the other officers and told them that the defendant left in the direction of the 3200 block of General Taylor Street. She testified that she reviewed the audio and video evidence and positively identified Copelin as the person who sold her the drugs.

On cross-examination, Officer Johnson testified that she did not initially approach the defendant but that he told her to pull over. She admitted that she was the one to ask for “two dimes” which is slang for crack cocaine

ERRORS PATENT;

A review of the record for errors patent reveals errors in both of Copelin’s sentences. By law, a person convicted of possession with intent to distribute cocaine shall be imprisoned for not less than two nor more than thirty years, with the first two years of the sentence being without benefit of parole, probation, or suspension of sentence and may, in addition, be required to pay a fine of not more than fifty thousand dollars. La. R.S. 40:967 B(4)(a). A person convicted of being a second felony offender shall be imprisoned for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for the first conviction without benefit of probation or suspension of sentence. La. R.S. 15:529.1 A (l)(a). Additionally, any sentence imposed must be without the benefit of probation or suspension of sentence. La. R.S. 15:529.1 G.

A person convicted of distribution of marijuana shall be imprisoned at hard labor for not less than five nor more than thirty years, at least five years of which shall be served without benefit of parole, probation, or suspension of sentence and pay a fine of not more than fifty thousand dollars. La. R.S. 40:966 B(2).

|4In the case at bar, the trial court failed to impose Copelin’s sentence without the benefits of parole, probation, or suspension of sentence on both convictions and failed to impose the mandatory fine on the distribution of marijuana conviction. Accordingly, Copelin’s sentences are illegally lenient. However, in instances where the statutory restrictions are not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court. La. R.S. 15:301.1 A; State v. Hall, 02-1098 (La.App. 4 Cir. 3/19/03), 843 So.2d 488. In State v. Williams, 03-0302 (La.App. 4 Cir. 10/6/03), 859 So.2d 751, this court held that a reviewing court must remand cases for the imposition of a mandatory fine where the trial court failed to do so. Thus, this case must be remanded to the trial court for the imposition of the mandatory fine for the distribution of marijuana conviction.

ASSIGNMENT OF ERROR NUMBER 1:

By his sole assignment of error Copelin argues that his plea of guilty is not valid and that he should be allowed to withdraw it because a guilty plea that has as a material component a reservation of appeal rights pursuant to Crosby is not a valid plea if that reservation cannot be honored. He argues that his plea was not predicated on any particular pretrial ruling and the record demonstrates that no conceivable pretrial rulings exist from which an appeal could arise. In support of his claim that no hearing on a motion to suppress was conducted, he asserts that, although the court purported to deny a motion to suppress the evidence, no written motion was filed, and counsel made no argument that any evidence should be suppressed, but rather argued |Kthat the bill of information should be quashed, that there was no probable cause to hold him for trial', and that his arrest was the result of entrapment.

The state counters by arguing that the record fully supports a finding that a motion to suppress hearing was conducted on 19 April 2005 and the motion was denied. The state is correct. The docket master, minute entry, and transcript of 19 April 2005 all indicate that following the hearing the district court explicitly denied the motion to suppress the evidence. Additionally, the state asserts that Copelin’s counsel did not object to the court’s ruling denying the motion to suppress, and the transcript clearly shows that the premise for the motion was the lack of probable cause and the fact that it was the undercover officer, Officer Johnson, who admitted to asking Copelin for “two dimes.” Copelin counters that his counsel did not argue that any evidence should be suppressed, but rather attempted to show the affirmative defense of entrapment and the lack of probable cause. This, he asserts, is proof that the hearing was not a motion to suppress hearing but rather an attempt to establish the defense of entrapment.

In State v. Joseph, 03-315 (La.5/16/03), 847 So.2d 1196, the defendant failed to specify which pretrial rulings he desired to reserve on appeal as part of the Crosby plea. In reversing the appellate court, which ruled that he had failed to preserve the issue for review, the Louisiana Supreme Court found that the defendant’s failure to specify which pretrial rulings he wanted to reserve for review did not serve to preclude review, but limited the scope of review to pretrial rulings no broader than necessary to effectuate the underlying purpose of a conditional guilty plea: to reserve preview of evidentiary rulings that go to the heart of the prosecution’s case that a defendant would otherwise waive by entering an unqualified guilty plea. These rulings include a denial of a motion to suppress evidence or confession and exclude rulings which do not substantially relate to guilt. The appellate court was ordered to afford the defendant his review of the trial court’s denial of his motion to suppress the evidence.

In State v. Adams, 00-2664 (La.App. 4 Cir. 3/27/02), 815 So.2d 307, the defendant argued that his Crosby plea should be withdrawn because the plea was premised upon his right to seek review of the denial of his motion to suppress the evidence that was based on a mistake in the police report which led him to believe there would be a viable claim on appeal when, in fact, there was none. In affirming the defendant’s conviction, this court found that the defendant had pled guilty pursuant to Crosby because it was in his best interest to do so and that contrary to counsel’s argument that the plea was invalid because it was based upon a belief that there was a basis to challenge the trial court’s suppression ruling, the plea was based equally, if not more so, on the state’s agreement not to multiple bill the defendant and the court’s agreement to impose a minimum sentence.

In State v. Guillory, 06-2544 (La.6/1/07), 957 So.2d 132, the defendant entered a Crosby plea, reserving his right to appeal on the issue of whether the police lawfully seized the evidence against him. However, counsel for the defendant failed to file a motion to suppress, and the trial court, therefore, had no opportunity to rule on the validity of the seizure. On appeal, the appellate court, having nothing before it on the Crosby reservation, affirmed the defendant’s conviction and sentence and relegated |7him to post-conviction proceedings on any claim that the failure to address his Crosby reservation on the merits rendered his guilty plea involuntary. In reversing the court of appeal, the Louisiana Supreme Court held that a nunc pro tune determination of the validity of the seizure obviates the need for addressing the validity of the guilty plea either on direct review or in post-conviction proceedings and at the same time gives effect to the Crosby reservation made as a material component of the election to forego trial. Accordingly, the Supreme Court remanded the case to the trial court to provide the defendant with thirty days within which to file a motion to suppress evidence.

In the case at bar, the transcript of the motion hearing of 19 April 2005 reflects that testimony was taken from Officer Johnson relative to the facts and circumstances surrounding Copelin being charged with drug trafficking. Copelin’s counsel acknowledged that the matter had been set for motions and for trial, although the trial court only heard the motions that day. When the court ruled that the evidence was admissible, counsel did not object that he had not moved for suppression of evidence. On 3 May 2005 prior to entering his pleas of guilty Copelin was fully informed of his rights to proceed to trial, to be presumed innocent, to cross-examine and present witnesses, to remain silent and to appeal any adverse verdict following a trial on the merits. Copelin admitted that he was pleading guilty because he was in fact guilty and was not forced or coerced in any way. The plea of guilty forms noted “Crosby Appeal” and were initialed by Copelin. The plea of guilty transcript reflects that the trial court noted: “This will be pursuant to State v. Crosby” [sic]. Defendant received the minimum sentences allowed by law: fifteen years as a second felony offender on the possession with intent to distribute cocaine conviction and five years for the distribution of | ^marijuana conviction. It was clearly in his best interest to enter the guilty pleas. Therefore, contrary to Cope-lin’s argument, a more than adequate material basis for the Crosby pleas existed. Furthermore, no other pretrial hearings were conducted that go to the heart of the prosecution’s case that the defendant would otherwise have waived by entering an unqualified guilty plea. Accordingly, we find no basis for this court to order the trial court to allow Copelin to withdraw his pleas of guilty.

CONCLUSION

Accordingly, We affirm Kendall Cope-lin’s convictions and his sentence as a second felony offender. We remand this case to the trial court for the imposition of the mandatory fine for the distribution of marijuana conviction.

CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The bill of information alleged "crack” instead of “cocaine.”

      . The statutory ground for a motion to suppress evidence is an unconstitutional search and seizure. The plea of entrapment is a defense on the merits and may not be raised in a motion to suppress the evidence in ad-vanee of trial. State v. Bates, 301 So.2d 619 (La.1974).

      .The defendant also entered a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).