author: AMY, Judge.

text:
    Brian BACA v. NATCHITOCHES PARISH HOSPITAL.
    No. 2006-1132.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      John B. Saye Hayes, Harkey, Smith & Cascio, L.L.P., Monroe, LA, for Defendant/Appellant, Natchitoches Parish Hospital.
    J. Chris Guillet, Natchitoches, LA, for Plaintiff/Appellee, Brian Baca.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

| tin this workers’ compensation matter, the plaintiff-employee alleged that he was injured while in the course and scope of his employment with the defendant hospital. The employee did not immediately report the accident. After an investigation, the defendant denied the claim, alleging that the employee’s injury was not work-related. The employee subsequently filed a disputed claim for compensation, seeking medical benefits, penalties, and attorney’s fees. Following a trial, the workers’ compensation judge found that the employee was entitled to medical benefits and ordered the defendant to pay the employee’s medical bills and court costs. The defendant appeals the finding that the employee’s accident occurred in the course and scope of his employment and that the employee established the causation of his injury. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that on November 29, 2004, the plaintiff, Brian Baca (Baca), was employed by the defendant, Natchi-toches Parish Hospital (the Hospital), as a paramedic. According to Baca, it was raining that night, and he and his partner received a call concerning a single car motor vehicle accident. When they arrived on the scene, they found the victim lying in a ditch. Baca testified that he and his partner put the victim on a spine board and were carrying the victim out of the ditch when his foot slipped, and he felt a “twinge” or a “little pop” in his back. He stated that there was no immediate pain; however, a few days later, he experienced some pain and stiffness in his back.

Baca scheduled an appointment with Dr. Carl Goodman, an orthopedic surgeon at Highland Clinic, who had performed back surgery on him in 2003. On December 8, 2004, Baca was examined by Dr. Goodman who, according to Baca, told him:

^[¿[Hle just thought it was some inflammation from my old injury from the previous surgery. And he told me to go home, take some ibuprofen or Aleve, which I usually take. And he told me in a week if it doesn’t feel like it’s getting any better, give him a call back and he’d schedule an MRI. And that’s what happened. We scheduled an MRI.
The MRI revealed a new injury to the disc above the old one. And he said my old surgical site was perfectly fine. There was nothing wrong, no inflammation, nothing wrong with it. He said it was a new injury.

Baca testified that after receiving this information, he informed the Hospital of the accident on January 10, 2005 by filling out an “Employee Report of Injury/Illness/Incident” form.

Linda Hollingsworth (Hollingsworth), an insurance adjuster for Hospital Services of Louisiana (HSL), stated that HSL handles the workers’ compensation claims for the Hospital. She testified that after receiving the Employer Report of Injury form on January 18, 2005, she faxed a questionnaire to Dr. Goodman on March 15, 2005 regarding Baca’s injuries and treatment. According to a copy of the fax entered into evidence, Dr. Goodman responded to the questions as follows:

1) What was the history given to you? Injury, Thanksgiving
2) What is your diagnosis? recurrent L disc herniation
3) Is the employee disabled from his/her employment? No.
4) If so, what are the inclusive dates of his/her disability? [No answer.]
5) What is the treatment plan? Surgery?

On March 23, 2005, Hollingsworth interviewed Baca. On that same day, she requested Baca’s medical records from Dr. Goodman, which she stated were not sent right away. Hollingsworth testified that when she received the medical records, she read a report dated December 8, 2004 in which Dr. Goodman noted: “LB & R [low | aback and right] leg pain started about 2 weeks ago after playing volleyball on Thanksgiving[.]” She testified that she sent a letter to Baca dated April 1, 2005, informing him that his claim was denied because “Dr. Goodman’s report of December 8, 2004 states that you had a back injury at Thanksgiving from playing volleyball. There was no history of a work related injury.”

In response, Baca filed a disputed claim form on May 11, 2005, seeking “medical benefits and penalties and attorney’s fees for the employer’s arbitrary denial of the claim.” Following a trial, the workers’ compensation judge found that Baca was entitled to medical benefits and ordered that the Hospital pay his medical bills “without the benefit of the offset or reduction provided by the Louisiana Worker’s Compensation Fee Reimbursement Schedule!.]” The workers’ compensation judge assessed the Hospital with court costs and denied Baca’s request for penalties and attorney’s fees. The Hospital now appeals, asserting two assignments of error.

1. The workers’ compensation court erred in determining that the plaintiff established by [a] preponderance of the evidence that an accident occurred in the course and scope of his employment.
2. The workers’ compensation court erred in determining that the plaintiff established, more probably than not, the causation of his injury.

Baca answered the appeal, designating the following as error:

1. The trial court erred in concluding that the employer could reasonably controvert the claim, because the employer did not undertake an investigation sufficient to determine whether the employee’s claim was valid.
2. The trial court erred in failing to award penalties and attorney’s fees for the employer’s failure to investigate and timely pay the claim.

| ¿Discussion

Work-Related Accident

The Hospital argues that Baca did not establish by a “preponderance of the evidence that an accident occurred in the course and scope of his employment.” It points out that Baca did not immediately report the accident to his supervisor in accordance with hospital procedure. Furthermore, the Hospital asserts that when Baca sought treatment with Dr. Goodman on December 8, 2004, he did not state that his injury was work-related but rather stated that it occurred while he was playing volleyball on Thanksgiving.

In a workers’ compensation case, the plaintiff has the burden of proving, by a preponderance of the evidence, that a work-related accident occurred. Fluitt v. Christus Health Cent. La., 05-945 (La.App. 3 Cir. 6/28/06), 935 So.2d 369, writ denied, 06-2302 (La.12/8/06), 943 So.2d 1094. In Fluitt, this court went on to explain:

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence.

Id. at 377 (quoting Bruno v. Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992)) (citations omitted). The workers’ compensation judge’s factual determinations will not be overturned on appeal absent manifest error. Id.

In his oral ruling, the workers’ compensation judge explained:

[T]he essential issue before the Court, [sic] is Mr. Baca able to establish by [a] preponderance of the evidence that he sustained an accident in the course and scope of his employment such that he may be entitled to have [¿recovery of his medical expenses. As pointed out by counsel for Mr. Baca in his pre-trial brief, the issue primarily centers around this Court’s assessment of the credibility of Mr. Baca.
Of course, Dr. Goodman’s medical record from December 8th of 2004 in the present illness section right at the top of that report, “Present illness, lower extremity and right leg pain started about two weeks ago after playing volleyball on Thanksgiving.”
And his recommendation is trigger point injection of the lumbar spine — I can’t read part of that — and a[n] MRI if his complaints are consistent, and he is to continue work. He has a[n] MRI subsequently later that month of December, [sic] 2004, which discloses a herniated disc.
Now, this gentleman did have a previous herniated disc for which Dr. Goodman did surgery. And this MRI in December of 2004 shows a new injury to a different disc than that previously injured in 1991 while Mr. Baca was in Colorado.
Mr. Baca testified he thought he had ongoing pain with his previous back problem and more stiffness, not much pain. He hadn’t had much pain when he said it popped with the patient [on] November 29th of 2004.
He testified that he was asked at the doctor’s office if he’d done anything differently, and he said he played volleyball. He didn’t deny anything today that was ever asked of him or ever showed up in any report.
He works for the Natchitoches Parish Hospital. It was interesting to the Court that at the beginning of the trial, Natchitoches Parish Hospital only would stipulate to the fact that in the year 2004, this gentleman was an employee. But they wouldn’t stipulate that on November 29th of 2004 that he was an employee or in the course and scope of his employment.
Well, they must possess records. They didn’t produce any records today to contradict this man in his assertion that on that day, he was fine until a one motor vehicle accident and they retrieved an injured victim and transported him presumably back to Natchitoches Parish Hospital.
|fiIf they didn’t stipulate that he was employed on that date, they should have produced records that he wasn’t working on that day and that he didn’t respond to any such accident.
He reports his injury on January the 10th of 2005. He reports his accident — I don’t know if — you really — it’s hard to tell what he was asking the hospital to do for him at that time. He wasn’t really asked to do anything. They didn’t give him any bills. They wasn’t [sic] asking them [sic] to let him to [sic] see a doctor.
He just told them, “I had this accident. I’ve been to the doctor. I’ve had this MRI. He says it’s a new injury, and the doctor says I may need surgery. And this is how it happened to me,” and end of story.
I believe when I read Dr. Goodman’s testimony, and Mr. Baca’s testimony today in trial, he said he tried to tell Dr. Goodman about the incident of the ambulance picking up this gentleman off the side of the road in November of 2004.
Dr. Goodman unfortunately doesn’t have any independent memory of these things. But we do know from his record on January 4th of 2005 because of the discussion between he and Mr. Baca about the findings of the MRI. And we see written out there, “Workers’ comp?” — question.
And then the health insurer got the records. They saw “Workers’ comp?” And they said, ‘We’re not paying.” That was long after this gentleman reported this incident to the hospital.
I couldn’t find anything inconsistent about Mr. Baca’s situation today after I looked at the case hard other than the fact that it says “volleyball Thanksgiving.” Because everything else, other than that, is corroborated somewhere or other in the records.
Putting all these things together, the Court does find that Mr. Baca has proven by [a] preponderance of the evidence that he had an incident on November 29, 2004 in his response to the single motor vehicle accident where he felt his twinge and pop in his back.

After reviewing the record, we find that it supports a determination that Baca proved by a preponderance of the evidence that his accident occurred in the course |7and scope of his employment with the Hospital. Baca testified that he was injured on November 29, 2004, while he and his partner were lifting a patient out of a ditch. Although he felt a “twinge” or “little pop” in his back, he stated that he did not immediately feel any pain but that his back was stiff.

Baca testified that over the next couple of days, his back “didn’t really hurt a lot. It mostly got stiff. And after a while, [he] started getting those pains like pinching a nerve[.]” He visited Dr. Goodman on December 8, 2004, and Dr. Goodman told him to take over-the-counter medications, and if there was no improvement, he would schedule Baca for an MRI. According to the record dated December 8, 2004, Baca stated that he was injured while playing volleyball on Thanksgiving. At trial, Baca admitted to playing volleyball; however, he insisted that he did not tell Dr. Goodman that this was the cause of his back injury as the volleyball game “wasn’t strenuous enough to do that.” He explained the misunderstanding:

When I went to see Dr. Goodman about my back hurting, he had asked me if I had done anything different that week. And I told him yes and [sic] Thanksgiving we played a little game of volleyball.
He didn’t ask me if that’s how I injured it. He just asked me if I did anything different that week. And that’s all I told him was we played volleyball on Thanksgiving.

Baca testified that he tried to contact Dr. Goodman to straighten out the situation but that he was unable to speak with him.

In his deposition taken on April 5, 2006, Dr. Goodman testified that before he sees his patients, his nurse takes a history from them. According to Dr. Goodman, Baca told the nurse that he was injured while playing volleyball on Thanksgiving. He explained that he verified what the nurse wrote by asking Baca the same|squestions. Dr. Goodman testified that had Baca told him that his injury was work-related, he would have written it down.

We note that Dr. Goodman admitted that Baca’s statement about playing volleyball may have been in response to his nurse asking if he did anything differently. Additionally, Dr. Goodman acknowledged that it was possible that Baca’s injury was caused by moving a patient. He agreed with the assertion of plaintiffs counsel that the pain could have been delayed in that Baca may not have been in pain immediately following the accident.

Baca’s pain persisted, and an MRI was performed on December 29, 2004. According to Dr. Goodman’s records, Baca received the results of his MRI on January 4, 2005. The MRI showed that Baca had “a large right recurrent disc herniation at L4-5[.]” Dr. Goodman testified that although Baca previously had back surgery on the L4-5 level, the MRI showed a new injury at that level.

In a report dated January 4, 2005, Dr. Goodman wrote, ‘Workers’ comp?” Dr. Goodman admitted that he did not know why he had made that notation; however, he reasoned that perhaps Baca “questioned could this be Workers’ Comp.” Dr. Goodman could not recall if Baca stated that he was injured on the job; however, he stated that “[i]f he did, I didn’t write it down at that point.”

According to the record, Baca reported the accident to the Hospital on January 10, 2005, by completing a form entitled, “Employee Report of Injury/Illness/Incident.” Baca testified that he did not immediately report the accident because “I didn’t realize I had re-injured myself. I thought it was just some inflammation, which I always had after that — after my previous surgery. Every once 18in a while, it’ll inflame like that. It just hurt — it was just a little worse, then. So I went to see Dr. Goodman.”

Based on the aforementioned testimony, we find no manifest error in the workers’ compensation judge’s determination that Baca proved by a preponderance of the evidence that his injury was sustained in a work-related accident. “The evidence as a whole tends to support his claim even though he did not report the incident to his immediate supervisor on the job or [readily] file a report of injury ... as required by [hospital] policy.” Fontenot v. Schlumberger Well Serv., 503 So.2d 1109, 1113 (La.App. 3 Cir.1987). Baca consistently recounted the events of November 29, 2004 in his Employee Report form, his pre-trial interview, and his trial testimony. Although Dr. Goodman testified that he had no recollection of Baca stating that this was a work-related injury, Baca insisted that he never stated that he was injured while playing volleyball. We find that the workers’ compensation judge, as the finder of fact, was free to accept Baca’s testimony that he mentioned playing volleyball only in response to whether he did anything differently. Patterson v. State, 95-1668 (La.App. 3 Cir. 12/11/96), 685 So.2d 473, writ denied, 97-0027, 97-0108 (La.2/21/97), 688 So.2d 513.

Accordingly, this assignment is without merit.

Causation

The Hospital argues that the “workers’ compensation court erred in determining that [Baca] established, more probably than not, the causation of his injury.” It points out that Baca suffered a previous back injury in 1991 for which he underwent back surgery in November 2003. Additionally, the Hospital asserts that |in“on December 8, 2004, [Baca] failed to inform Dr. Goodman of any on-the-job accident.”

The claimant bears the burden of proving, by a preponderance of the evidence, that the accident caused his injury and that the injury caused his disability. Hunter v. Alliance Compressors, 06-100 (La.App. 3 Cir. 6/21/06), 934 So.2d 225. Causation is a question of fact that will be reviewed under the manifest error standard of review. Id.

After reviewing the record, we find that it supports a determination that Baca proved that his work-related accident caused his injury. Baca testified that in 1991, he injured his back while working in Colorado. He further testified that the pain became progressively worse and required that he undergo back surgery on November 17, 2003. Dr. Goodman testified that six weeks after the surgery, Baca was cleared “to return to full-work duties.” In January 2004, Baca visited Dr. Goodman for back pain caused by “doing some heavy weight lifting!,] doing squats and leg presses.” He was given medication and was told that he could return to work the next day.

Baca’s medical records show that he did not see Dr. Goodman again until approximately a week after his accident, complaining of back pain and stiffness. An MRI was subsequently performed which showed that Baca had a large right recurrent disc herniation at the L4-5 level. Dr. Goodman testified that although Baca previously had back surgery on the L4-5 level, the MRI showed a new injury to that level.

Dr. Goodman admitted that it was possible that Baca injured his back when he was lifting the patient and that the pain could have been delayed for days or even weeks. Moreover, Dr. Goodman testified that the nurse may have asked Baca if he ludid anything differently, to which Baca responded that he played volleyball on Thanksgiving.

We note that, according to Dr. Goodman, Baca’s back surgery in 2003 was successful. Other than one incident in early 2004, Baca did not experience any back pain until after his accident on November 29, 2004. An MRI confirmed that this was a new injury. Insofar as Baca was in relatively good health prior to the accident and his back problems began soon after the accident, we find that the workers’ compensation judge was not manifestly erroneous in determining that Baca proved by a preponderance of the evidence that his work-related accident caused his injury and that his injury caused his disability. See Duhon v. Permian, 01-406, p. 3 (La.App. 3 Cir. 10/3/01), 796 So.2d 822, 824, writ denied, 01-2971 (La.1/25/02), 807 So.2d 842 (where this court explained that “[a]n employee’s disability is presumed to result from his accident if, prior to the accident, the employee was in good health, but commencing with the accident ‘the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.’ ”)

This assignment is without merit.

Penalties and Attorney’s Fees

In his answer to the Hospital’s appeal, Baca contends that the workers’ compensation judge “erred in failing to award penalties and attorney’s fees for the employer’s failure to investigate and timely pay the claim.”

|1?.In Landry v. Furniture Center, 05-643, p. 10 (La.App. 3 Cir. 1/11/06), 920 So.2d 304, 311, writ denied, 06-0358 (La.4/28/06), 927 So.2d 290 (citations omitted), this court stated:

Under La.R.S. 23:1201(F)[], a claimant in a workers’ compensation claim has the burden of proving his entitlement to statutory penalties for the employer’s refusal or failure to timely pay workers’ compensation benefits. To avoid the imposition of penalties and attorney fees, the employer and its insurer must provide factual and medical evidence to reasonably controvert a workers’ compensation claim. The employer must have an “articulable and objective reason to deny benefits at the time it took the action.”

The workers’ compensation judge’s decision to award penalties and attorney’s fees will not be overturned on appeal absent manifest error. Id.

With regard to the Hospital’s investigation of the claim, the workers’ compensation judge stated:

The information was turned in by the hospital to their adjusting group. I don’t know why they waited from January of 2005 to March of 2005 to request records from Dr. Goodman. That’s why I started asking those questions about when [they] found out about Dr. Goodman. [ 1sBecause Mr. Saye [defense counsel] was asking, “Well, you didn’t even name Dr. Goodman in your report on January the 10th of 2005.”
So I’m thinking, ‘Well, I don’t know when this came up. What was the reason for the delay from the reporting of the incident to the requesting of the information?” I don’t know if I have a satisfactory conclusion about that.
However, I must conclude, even though it seems late to the Court, that there was a question posed to Dr. Goodman about, “What you have on Mr. Baca, what does your records show?” But even if the question was asked the same day the hospital got the report from Mr. Baca and they got the records within a day or two, the records were going to show the hospital this information about the back injury playing volleyball [on] Thanksgiving, which would give them sufficient grounds to deny this gentleman’s claim, closed question. And they have the right to bring it to trial.
So — but there are no penalties and attorney’s fees, because I have to conclude based on the information contained in Dr. Goodman’s records that the employer has sufficient grounds to dispute the claim.

According to the testimony of Hollings-worth, the insurance adjuster, she received the Employer Report form on January 18, 2005. She explained why she waited until March 15, 2005 to request information from Dr. Goodman:

This was set up as a medical-only claim to Courtney Rothenberger. And when she received it, she talked to Sarah Ingram and she said that Mr. Baca had prior back surgery and that he had treated with Dr. Goodman. So Ms. Rothenberger requested any medical that she might have from Ms. Ingram.
Okay, now, this came. Of course, I did not have this until Darla called me on March 15 and asked me about this and about it being work-related. And so I got the employer’s report at that point and requested — of course, I do see that the 1007 does have Doctor ... Carl Goodman as the physician on here.

In the fax sent on March 15, 2005, Holl-ingsworth asked Dr. Goodman, ‘What was the history given to you?” Dr. Goodman responded, “Injury, Thanksgiving[.]” |14 Hollingsworth testified that she requested Baca’s medical records from Dr. Goodman on March 23, 2005, the same day that she conducted an interview with Baca. Holl-ingsworth remembered receiving the records in March 2005. She testified that Baca’s claim was denied because there was not “any medical evidence that pointed to this being a work-related injury carrying a patient up a wet, slippery slope.” Holl-ingsworth pointed out that the medical evidence stated that Baca was injured as a result of playing volleyball on Thanksgiving. Baca was notified of the denial of his claim by a letter dated April 1, 2005.

We note that Hollingsworth waited approximately two months before contacting Dr. Goodman concerning Baca’s treatment with him. Nonetheless, Dr. Goodman’s answer to the questionnaire and the notation in Baca’s medical records that Baca’s injury resulted from playing volleyball, gave the Hospital an “articulable and objective reason to deny benefits at the time it took the action.” Landry, 920 So.2d at 311 (quoting Authement v. Shappert Eng., 02-1631 (La.2/25/03), 840 So.2d 1181, 1188). Therefore, we find no manifest error in the workers’ compensation judge’s determination that the Hospital reasonably controverted Baca’s claim and that the assessment of penalties and attorney’s fees for the failure to pay Baca’s medical bills was unwarranted.

Baca also alleges, in his answer to the appeal, that he should be “awarded attorney’s fees for the work performed pursuant to this appeal.” Because we have held that the workers’ compensation judge did not err in denying Baca’s request for penalties and attorney’s fees pursuant to La. R.S. 23:1201(F), Baca’s request for additional attorney’s fees is denied. Richard v. Workover & Completion, 00-794 (La.App. 3 Cir. 12/6/00), 774 So.2d 361.

|1sThis assignment lacks merit.

DECREE

For the foregoing reasons, the ruling of the workers’ compensation judge is affirmed. All costs of these proceedings are assessed against the defendant, Natchi-toches Parish Hospital.

AFFIRMED.

      . Louisiana Revised Statutes 23:1201(F) provides:
      Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing.

      (2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    Carla SOWELL v. PROCESS EQUIPMENT.
    No. 2006-1198.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      M. Blake Monrose, Hurlburt, Privat & Monrose, Lafayette, LA, for Defendant/Appellant, Process Equipment.
    Edward A. Kaplan, Alexandria, LA, for Plaintiff/Appellee, Carla Sowell.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

| ¶Process Equipment appeals a workers’ compensation judgment in favor of its former employee, Carla Sowell. For the following reasons, we affirm as amended.

Discussion of the Record

Mrs. Sowell filed a disputed claim for compensation alleging that she was injured on August 21, 2004, while setting up a monorail on a job for Process Equipment in Florence, South Carolina. At trial, she described being knocked to the floor on her right side when her co-employee, Wayne Johnson, “wiggled” a piece of equipment that she was holding after the monorail became jammed. Mrs. Sowell’s husband, Wayne Sowell, who was working at the same job site but on another level, testified that he arrived on the scene just after Mrs. Sowell fell and while she was still on the floor. Mr. Sowell stated that he heard a “bam-slam” as he was walking upstairs and that, when he got to the top of the stairs, he saw Mr. Johnson kneeling beside her on the floor. Mr. Sowell then described how he and Mr. Johnson helped his wife up and sat her in front of a window, where she requested to stay for about ten minutes. Mr. Johnson, however, denied that he witnessed Mrs. Sowell having an accident on the job.

Mrs. Sowell testified that she reported the accident later that day to Jeff Bowden, the job foreman, who was away from the site at the time of the accident, and to Roger Land, the safety man on the night shift, but that no one mentioned anything to her about filling out an accident report. Mr. Land testified that Mrs. Sowell reported to him that she had hurt her back while working with Mr. Johnson, but that she did not want to go to the doctor because she thought it was only a muscle strain. Mr. Land then told her to report the accident to Mr. Bowden and to Mike Williamson, the company’s safety director. According to Mr. Land, Mrs. Sowell later told him Lthat she did report the accident to Mr. Bowden. Mr. Land also testified that he assumed she had reported the accident to Mr. Williamson because at some point Mr. Williamson called him about it, and Mr. Land told Mr. Williamson that Mrs. Sowell told him that she hurt her back. However, both Mr. Bowden and Mr. Williamson testified that they did not learn about the accident until after Mrs. Sowell filed suit in January of 2005, and Mr. Williamson stated that Mr. Land never told him that Mrs. Sowell had reported the accident to him.

After the accident, Mrs. Sowell continued to work on several jobs in other states for Process Equipment, sometimes returning to her home in Jena, Louisiana, between jobs. She first sought medical treatment on November 16, 2004, from Dr. I.C. Turnley, Jr., reporting to him that she hurt her back two and a half months earlier while pulling on a beam and has had pain since then. Dr. Turnley ordered an MRI, which revealed marked spondylosis with discogenie and plate changes at L5-Sl; neural foraminal narrowing and facet hypertrophy bilateral at L5-S1 and right-sided at L4-5, with clinical correlation for a right L4 and bilateral L5 radiculopathy recommended; and a left paracentral disc bulge at L5-S1 contacting the left SI nerve root, with clinical correlation for left SI radiculopathy recommended. Mrs. So-well was also seen by at least two other physicians, one at LSU Hospital in Shreveport, Louisiana, and one at Huey P. Long Medical Center in Pineville, Louisiana, who recommended physical therapy. She finally did begin a physical therapy program in March of 2005, but that course was discontinued in April of 2005 after she reported no significant change in pain and that some exercises “made her back pain worse.” She testified that she is no longer able to work, as she cannot sit or stand very long due to back and leg pain. She acknowledged that three years before the present [ ?,accident she reported to Dr. Turnley that she had low back pain for about a year, but she also stated that she had never had this type of back pain before.

At the close of the evidence, the workers’ compensation judge (WCJ) found in favor of Mrs. Sowell, awarding her supplemental earnings benefits (SEB) at the maximum compensation rate and on a zero-earnings basis, $4,000.00 in penalties for the failure to pay indemnity benefits and medical expenses, and $5,000.00 in attorney fees.

Work-Related Injury

In its first assignment of error, Process Equipment argues that the WCJ erred in finding that Mrs. Sowell was injured in the course and scope of her employment, given that her co-employee, Mr. Johnson, denied that an accident occurred and that Mrs. Sowell continued to work and did not seek medical treatment for nearly three months after the accident.

In oral reasons, the WCJ stated that he found corroboration of Mrs. Sowell’s accident in the testimony of Mr. Land, who stated that she reported the accident to him and that he later told this to Mr. Williamson; in the testimony of her husband, who saw her on the floor with Mr. Johnson kneeling beside her; and in the medical records of Dr. Turnley, who recorded that Mrs. Sowell reported hurting her back about two and a half months previously while pulling on a beam. In making these credibility determinations, the WCJ specifically noted the conflict in the testimony of Mr. Land and Mr. Williamson, in that Mr. Land stated that he told Mr. Williamson that Mrs. Sowell reported the accident to him, whereas Mr. Williamson denied that Mr. Land ever told him that the accident had been reported to him. The WCJ also found that any inconsistent statements regarding Mrs. Sowell’s prior back problems |4were insignificant, considering that there was no evidence of any medical care for those problems and that Mrs. Sowell continued to work for Process Equipment during that time.

In Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117 (citations omitted), the supreme court discussed the standard of review in workers’ compensation cases as follows:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact.

Further elaboration on the manifest error standard can be found in Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted) (emphasis added), wherein the supreme court explained:

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact-finder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

| sProcess Equipment argues that the testimony of Mr. Johnson, who stated that he did not witness an accident, discredits Mrs. Sowell’s account of the incident. However, the WCJ, in detailed reasons, chose to accept the testimony of Mrs. So-well’s husband, who stated that he came upon the scene shortly thereafter and saw Mr. Johnson kneeling beside his wife, and of Mr. Land, who stated that an accident occurring while Ms. Sowell was working with Mr. Johnson was reported to him. We can find no manifest error in the WCJ’s credibility determinations, given that Mrs. Sowell’s account of the accident is corroborated by a current employee of Process Equipment and by the medical records of Dr. Turnley.

Disability

In its second assignment of error, Process Equipment argues that the WCJ committed legal or manifest error in finding that Mrs. Sowell was entitled to SEB, when no treating physician restricted her from working and she continued to work for three months after the accident.

When making a claim for SEB, the employee bears the initial burden of proving that he is unable to earn wages equal to 90% of his pre-accident wages. La.R.S. 23:1221(3)(a). If the employee meets this threshold showing, then the burden shifts to the employer to show that the employee is physically capable of work and that work was offered or available in the employer’s or the employee’s reasonable geographic region. La.R.S. 23:1221(3)(c)(i).

The WCJ based its decision to award SEB on the medical evidence in the record, in particular the MRI finding of a left paracentral disc bulge at L5-S1 that contacts the left SI nerve root, the findings of paraspinal muscle spasms, and the recommendation for physical therapy (which course of treatment was unsuccessful, Ras it did not produce a significant change in pain). In addition to the medical evidence, Mrs. Sowell testified that she is not able to work because she cannot sit or stand very long without her back and legs giving her a lot of trouble.

In Thomas v. Casino Magic, 39,725, p. 5 (La.App. 2 Cir. 5/11/05), 902 So.2d 1283, 1287, writ denied, 05-1970 (La.2/3/06), 922 So.2d 1183, the court reiterated the following principle regarding proof of disability in a workers’ compensation case:

The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately the question of disability is a question of fact, which cannot be reversed in the absence of manifest error.

In the present case, the WCJ found that Mrs. Sowell was entitled to SEB based upon objective evidence of an injury, identified by the WCJ as “a disc abutting a nerve,” that has yet to be resolved. The fact that her physicians did not discuss work restrictions is not surprising, given that Mrs. Sowell was no longer working when she saw them. Additionally, we note that most of Mrs. Sowell’s medical care was not rendered within the workers’ compensation system, in that she mostly visited the state’s charity hospitals and her employer did not send her to a physician of its choosing. We decline to disturb the WCJ’s finding of disability on the record before us.

Average Weekly Wage

In its third assignment of error, Process Equipment argues that the WCJ erred in calculating Mrs. Sowell’s average weekly wage to be $733.00, thereby entitling her to the maximum compensation rate of $490.00. Process Equipment argues that her average weekly wage should either be $550.00, which amount is based upon a |7calculation submitted by Mrs. Sowell, or should be $610.00, which is based upon a presumption of forty hours per week at a rate of $16.00 per hour.

Louisiana Revised Statutes 23:1021(12) (emphasis added) provides in part:

“Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as: (a) Hourly wages.
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or
(in) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.

A “[p]art-time employee” is defined in La.R.S. 23:1021(11) as “an employee who as a condition of his hiring knowingly accepts employment that (a) customarily provides for less than forty hours per work week, and (b) that is classified by the employer as a part-time position.” (Emphasis added.)

Mrs. Sowell worked for Process Equipment on a per-job basis, with those jobs varying in length and occurring in different states. The only wage records for review are those for the five weeks before the accident. Those records show that Mrs. Sowell worked for three of those weeks, and during the weeks that she did work, she had forty-five hours, twenty-two hours, and fifty-three hours, respectively. Additionally, we note that in each week that she worked, she was paid for some hours at a higher, overtime rate before she accumulated forty hours that week. (For example, for the | sweek of August 15, 2004, she was paid for thirty-two hours at a regular rate of $16.00 and for thirteen hours at an overtime rate of $24.00.)

In the present case, there is no evidence that Mrs. Sowell was classified by Process Equipment as a “part-time employee” or that she “regularly, and at [her] own discretion,” worked less than forty hours a week. Accordingly, it would seem that she is entitled to the presumption of forty hours in La.R.S. 23:1021(12)(a)(i). Nonetheless, we disagree with Process Equipment that Mrs. Sowell’s average weekly wage should be calculated simply by multiplying forty hours by a base rate of $16.00, when she was paid at the higher rate of $24.00 for some of those forty hours. In Soileau v. R & H Refractory Services, Inc., 01-355, p. 3 (La.App. 3 Cir. 10/30/01), 796 So.2d 903, writ denied, 01-2954 (La.1/25/02), 807 So.2d 841, this court considered the case of an “as-needed” employee who worked only one full week, with overtime pay, in the four weeks before the date of his accident. In affirming the WCJ’s calculation that resulted in the maximum compensation rate, we stated:

Our review of the jurisprudence leads us to conclude that the most equitable calculation to be utilized in the unique circumstances presented herein is to average the wages from the full weeks worked out of the last four. See Henry v. Bolivar Energy Corp., 95-1691 (La.App. 3 Cir. 6/5/96), 676 So.2d 681, writ denied, 96-1749 (La.10/11/96), 680 So.2d 644. Soileau worked only one full week out of the four preceding his injury. Therefore, we will use his wages from that week, including overtime wages, and we hold that his average weekly wage is $670.00. Accordingly, we affirm the finding that Soileau is entitled to the maximum compensation rate of $367.00 per week.

Id. at 905-06 (emphasis added). The calculation made by the WCJ in this case is similar to that in Soileau, in that the WCJ averaged Mrs. Sowell’s earnings for the [athree weeks that she actually worked before this accident. Under the facts herein, we find no error in the WCJ’s calculation of Mrs. Sowell’s average weekly wage.

Penalties and Attorney Fees

In its fourth assignment of error, Process Equipment argues that the WCJ erred in finding it liable for penalties and attorney fees, considering that it investigated the accident upon the filing of the disputed claim, that Mrs. Sowell did not report the accident to her supervisor or the safety director, and that she never submitted any medical records, bills, or mileage requests for reimbursement.

In assessing the employer with penalties and attorney fees, the WCJ relied on the testimony of Mr. Land, who stated that Mrs. Sowell reported that she hurt her back but did not want to see a doctor at that time and that Mrs. Sowell had later called and stated that she had to have an MRI. Accordingly, the WCJ reasoned that by November of 2004, around the time of the MRI, the employer should have had an accident report filed and should have begun an investigation, which would have included at least requesting the medical records of the MRI of which it was aware. As to the propriety of reporting the accident to Mr. Land, as opposed to Mr. Bowden or Mr. Williamson, we note that Mr. Land held a safety position with the company and that Mr. Bowden and Mr. Williamson both testified that it was Mr. Land who informed them of suit being filed in January.

The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact, and the trial court’s finding must not be disturbed on appeal absent manifest error. “To avoid penalties and attorneys fees for the nonpayment of benefits, the employer or insurer is under a continuing duty to investigate, to assemble, and to assess factual information before denying benefits.”

Rose v. Maison Deville Care Center, 05-1307, p. 5 (La.App. 3 Cir. 4/5/06), 927 So.2d 625, 628-29, writ denied, 06-1054 (La.9/1/06), 936 So.2d 205 (citation omitted) |in(quoting George v. Guillory, 00-591, p. 13 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1209).

We find no error in the WCJ’s decision to award penalties and attorney fees in this case. The WCJ obviously accepted the testimony of Mr. Land that Mrs. Sowell timely reported the accident and that she requested that the employer provide at least one medical procedure, an MRI, in connection with that accident. Although the request for the MRI came in November of 2004, the company’s two other safety officials both testified that they were not aware of an accident until January of 2005, after suit was filed. On this record, we find no error in the WCJ’s credibility determination that an accident warranting further investigation was timely reported.

Process Equipment also argues that the WCJ erred in awarding an excessive amount of attorney fees in this case. However, when we consider that claimant’s counsel participated in two depositions in addition to trying the case on the merits, we decline to disturb that award. Mrs. Sowell has answered the appeal, seeking additional attorney fees for appellate work, which we fix at $1,000.00.

Forfeiture of Benefits

In its final assignment of error, Process Equipment argues that the WCJ erred in rejecting its claim that Mrs. So-well forfeited all workers’ compensation benefits based upon her denial of a previous back injury that was referenced in her medical records.

In her deposition taken on July 14, 2005, Mrs. Sowell denied that she had ever injured her back, neck, or spine before August of 2004. However, in October of 2001, she reported to Dr. Turnley that she had low back pain for about a year after lifting material at work, but that she had received no medical treatment for this Incondition, had no X-rays taken, and was given pain relievers without an evaluation. When confronted with Dr. Turnle/s medical records at trial, Mrs. Sowell testified that she has had backaches in the past, but “I hadn’t had a back problem like this.” She explained that when “[y]ou get out there pulling on everything .... yeah, you gonna hurt,” but that if she had previously injured her back on the job, she could not remember it.

The WCJ did not specifically address Process Equipment’s forfeiture claim in his reasons, but he did comment on Mrs. Sowell’s testimony, stating that he found any inconsistencies about prior back problems to be “insignificant” and “insufficient to say that I should not weigh her testimony favorably.” The WCJ also noted that Mrs. Sowell admitted to having back problems on and off due to the nature of her work for this company and that the medical records reflect that she had no X-rays or medical treatment other than pain medication for any prior back problems.

In Scallon v. Boise Cascade Corp., 05-327, p. 5 (La.App. 3 Cir. 11/2/05), 915 So.2d 1004, 1007-08, this court stated the following regarding a claim for forfeiture of workers’ compensation benefits:

The Louisiana Supreme Court has interpreted La.R.S. 23:1208 as providing for the forfeiture of workers’ compensation benefits when a claimant (1) makes a false statement or representation; (2) that statement or representation is willfully made; and (3) the false statement or representation is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Constr. Co., 94-2708 (La.9/5/95), 660 So.2d 7. A forfeiture pursuant to La.R.S. 23:1208 is not necessary where the false statement is inconsequential or was made inadvertently. Jeanise v. Cannon, 04-1049 (La.App. 3 Cir. 2/23/05), 895 So.2d 651. “Forfeiture of benefits under La.R.S. 23:1208 is a harsh remedy which must be strictly construed.” Regan v. Eunice Superette, Inc., 04-227, p. 5 (La.App. 3 Cir. 9/29/04), 884 So.2d 1209, 1213. A workers’ compensation judge’s determination whether an employee has forfeited his or her right to workers’ compensation benefits is a finding of fact that will not be reversed on appeal in the absence of manifest | 1Perror. Smith v. Quarles Drilling Co., 99-171 (La.App. 3 Cir. 6/2/99), 741 So.2d 829, writ denied, 99-1949 (La.10/8/99), 751 So.2d 227.

From the WCJ’s comments concerning Mrs. Sowell’s credibility, we can conclude that the WCJ did not find any inconsistencies between her testimony and her medical records to rise to the level of fraud. Mrs. Sowell explained that she had backaches in the past due to the nature of her work, but that she did not have pain like she does now. There is no evidence of any prior treatment, other than what she reported to Dr. Turnley, or of any prior work-related claim being filed. We find no error in the denial of the forfeiture claim.

Decree

For the above reasons, the judgment of the Office of Workers’ Compensation is amended to award additional attorney fees in the amount of $1,000.00 for work performed on appeal. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to Defendant-Appellant, Process Equipment.

AFFIRMED AS AMENDED.

      . In Dabney v. Boh Brothers Construction Co., 97-1041 (La.App. 4 Cir. 3/11/98), 710 So.2d 1106, the court stated that it was not persuaded that a guarantee of forty hours every work week was a requirement for the application of that statute. In Dabney, 710 So.2d at 1111, the court found that a construction worker whose hours depended on the weather and job availability, but who "more often than not” worked a forty-hour week, was entitled to the presumption of forty hours under La. R.S. 23:1021 (12)(a)(i).


author: DECUIR, Judge.

text:
    SUCCESSION OF Achille BIJEAUX.
    No. 06-1256.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.
    Stan Gauthier, II, Kristi D. Husher, Attorneys at Law, Lafayette, LA, for Appel-lees, Lawrence James Menard, Lisa Me-nard Guillotte.
    James Patrick MacManus, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Mildred Bourque Broyles.
    Arthur Daniel Mouton, Attorney at Law, Lafayette, LA, for Appellee, Alexander Bourque, Wade Bourque, Lester Bourque.
    Glynn Rozas, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Mildred Bourque Broyles.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

| Mildred Bourque Broyles appeals the trial court’s revocation of her appointment as executrix. Finding no error in the decision rendered below, we affirm.

The evidence in the record before us indicates that Achille Bijeaux died on January 19, 2003, at the age of ninety-three. He had signed a will in 1998 wherein he designated his niece, Mildred Bourque Broyles, as executrix of his estate. She was also the primary legatee named in the will. Shortly after Bijeaux’s death, Broyles petitioned the court to confirm her as testamentary executrix and requested that letters testamentary issue. She did not, however, take the “oath to discharge faithfully the duties of [her] office” as required by Article 3158 of the Louisiana Code of Civil Procedure.

Broyles’ three brothers, Alexander, Wade, and Lester Bourque, and Achille’s brother-in-law, Lawrence James Menard, were also named beneficiaries in the will, along with numerous other relatives. They petitioned the court for an accounting and sought to traverse the detailed descriptive list filed by Broyles. During the course of discovery, the Bourques and Menard learned that Broyles was the beneficiary of two annuities purchased by Ac-hille in 1998 and that she had collected approximately $225,000.00 in annuity benefits. Alleging numerous grounds for her removal, the Bourques and Menard sought to have Broyles’ appointment as executrix revoked.

A hearing was held on November 29, 2004. After verifying that Broyles had indeed failed to file the required oath, the trial court removed her as succession representative. The court was then presented with the application of Lisa Menard Guillotte who sought to be appointed dative testamentary executrix. Acknowledging Broyles’ continuing desire to serve as executrix, the court took evidence on the relative merits of the two candidates.

|¡>The evidence revealed the following facts. At the time the 1998 will was signed, Mildred lived on the family farm with Achille and took care of him. He could not read or write the English language and had depended on his wife and son to handle his affairs until their deaths in 1996 and 1991, respectively.

In the years after Achille’s wife’s death, Mildred handled all of his financial business and often signed his name on documents even though she had no power of attorney authorizing her to do so. In 1998, Achille purchased two annuities through a Dallas stockbroker working for Salomon Smith Barney, Inc. The documents were filled out and signed by Mildred and she was the named beneficiary on both. Months later, Achille signed a new will naming Mildred as executrix and leaving her significant portions of his estate. The evidence in the record before us also discloses that Mildred wrote and signed numerous checks made out to “Cash” on Achille’s accounts, checks totaling over $125,000.00. Finally, in her testimony, Broyles offered no explanation for failing to take the requisite oath of office as executrix and failing to file annual ac-countings as requested by her co-legatees.

In rendering the decision to appoint Guillotte as the succession representative, the trial court noted Broyles’ failure to file the oath of office and furnish an accounting. The court also based its decision on the “information I learned during the course of this hearing to really question whether or not Ms. Mildred Broyles should be appointed to serve.” Conversely, the court found nothing to suggest that Guillotte would not be capable of serving as executrix. We find no error in these factual conclusions. The determination of whether to remove or replace a succession representative is within the discretion of the trial court and will not be reversed by this court in the absence of an abuse of that discretion. Succession of LaFleur, 99-1100 (La.App. 3 Cir. 12/8/99), 752 So.2d 237, writ denied, 00-0446 (La.3/31/2000), 3759 So.2d 74; Succession of Songne, 94-1198 (La.App. 3 Cir. 11/2/95), 664 So.2d 556, writ denied, 95-2877 (La.2/2/96), 666 So.2d 1101.

Under the authority of Articles 3181 and 3182 of the Louisiana Code of Civil Procedure, the trial court removed Broyles as the representative of the Succession of Achille Bijeaux. Finding no abuse of discretion in this decision, we affirm the judgment rendered below. Costs of this appeal are assessed to Mildred Bourque Broyles.

AFFIRMED.


text:
    Donald FRANK v. Josie FRANK.
    No. 2006-1223.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      Salvador M. Brocato, III, Metairie, Louisiana, for Plaintiff/Appellant: Donald Frank.
    Pride J. Doran, Jermaine D. Williams, Williams & Doran, P.L.L.C., Lafayette, Louisiana, for Defendant/Appellee: Josie Frank.
    Leslie J. Schiff, Schiff Law Corporation, Opelousas, Louisiana, for Appellee: Louisiana Indigent Defense Assistant Board for St. Landry Parish.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

Lin this legal malpractice matter, the plaintiff appeals the trial court’s apportionment of 80% fault to him and general damage award of only $7,500. We amend the trial court’s apportionment of fault and affirm the remainder of the judgment.

Facts

Donald Frank was arrested on January 22, 2001, in St. Landry Parish for simple burglary of an inhabited dwelling and possession of a controlled dangerous substance. When Mr. Frank was arrested, he was on parole for forcible rape, and a parole hold was placed on him. A magistrate’s hearing was held on January 24, 2001. At that hearing, Josie Frank, a contract attorney with the Indigent Defender Board, was appointed to represent Mr. Frank.

Mr. Frank was formally charged with simple burglary of an inhabited dwelling on April 6, 2001, and his arraignment on the charge was scheduled for April 27, 2001. Before the arraignment, Mr. Frank was transferred from the St. Landry Parish jail to the Louisiana Correctional Center at Basile. He was later transferred to the state prison at Pine Prairie. He did not appear at the arraignment because he was unaware of it and the State did not transport him to court. At the time of his arraignment, neither Ms. Frank nor any of the court personnel knew of Mr. Frank’s transfer from the St. Landry Parish jail. As a result of his failure to appear at his arraignment, a warrant was issued for his arrest. The arraignment was rescheduled for May 25, 2001. However, as before, Mr. Frank did not appear because he was not notified of it and the State did not have him transported to appear in court. Consequently, the warrant for his arrest was reissued.

| ¡¡Mr. Frank remained incarcerated until November 8, 2002, when he was released for good time on his parole hold. Neither Ms. Frank nor Mr. Frank attempted to contact the other during that period. Mr. Frank did not contact Ms. Frank after he was released from prison.

On March 26, 2004, Mr. Frank was stopped for a traffic violation. During the stop, the officer learned of the outstanding bench warrant and arrested him. Mr. Frank and Ms. Frank met for the first time when he was arraigned on April 23, 2004. Mr. Frank testified that he knew when he was incarcerated in Pine Prairie that if two years passed without his being prosecuted on the simple burglary charge a motion to quash could have been filed. He also testified that he asked Ms. Frank about filing a motion to quash the simple burglary charge, but she told him that the law had changed and that she did not believe the motion would be successful. Mr. Frank claims that he met with Ms. Frank four or five times while he was incarcerated in 2004, that he asked her to file a motion to quash each time, and that she refused, citing a change in the law.

Ms. Frank testified that her usual process was to meet with a client within thirty days of being notified of her appointment of representation. She admitted that she did not meet with Mr. Frank within that thirty-day period; however, she testified that she went to the parish jail to meet with him, but he was not there. She further testified that when he did not appear in court in April and May 2001 she assumed he was no longer in jail because he would have been brought to court from the jail if he had been in jail.

Ms. Frank acknowledged that she must have questioned Mr. Frank’s absence when she went to interview him at the jail, as she was told that he had been ^transferred to Basile. She admitted that she did not make any communications with the Basile facility. She also testified that when she appeared for the April 27, 2001 arraignment, she informed the trial court that Mr. Frank was not present, but the trial court did not ask if she knew where he was, and she did not volunteer any information.

Ms. Frank admitted that the time limitation for bringing Mr. Frank to trial on his simple burglary of an inhabited dwelling charge lapsed on April 9, 2003, and that she did not file a motion to quash. However, she testified that Mr. Frank told her he wanted to participate in the trial court’s drug program because he had a drug problem. She further testified that she told Mr. Frank he needed to provide her with documentation regarding his incarceration and release from prison before she could file a motion to quash, but he did not do so. Mr. Frank denied telling Ms. Frank that he had a drug problem and that he wanted to participate in the trial court’s drug program. Ms. Frank explained that at her first meeting with Mr. Frank she recommended that he go with the drug court option first because she did not have, and he did not provide to her, the documentation necessary to prepare and file a motion to quash.

Mr. Frank appeared in court on August 2, 2004. Ms. Frank informed the trial court that he was being evaluated for the Drug Court Program. The court minutes also reflect that “[t]he defendant waives all prescriptive delays in this matter.” Mr. Frank next appeared in court on August 27, 2004, at which time the trial court was informed that he had been rejected for the drug program.

In October 2004, Mr. Frank wrote a letter to the trial court complaining of Ms. Frank’s representation. The Indigent Defender Board’s chief administrator was 14notified of Mr. Frank’s letter, and after investigating the matter, he filed a motion to quash on October 14, 2004. The motion was immediately granted, and Mr. Frank was released that day.

The trial court found that Ms. Frank committed malpractice in her representation of Mr. Frank and awarded him general damages in the amount of $7,500; the trial court assessed Mr. Frank with 80% fault and denied his claim for loss of earnings. Mr. Frank appeals the finding of fault on his part and the award of only $7,500 in general damages.

Discussion

Apportionment of Fault

An appellate court may reallocate fault only after finding an abuse of the trial court’s discretion and then only to the highest or lowest percentage of fault reasonably within the trial court’s discretion. Clement v. Frey, 95-1119, 95-1163 (La.1/16/96); 666 So.2d 607.

The trial court held that Ms. Frank committed malpractice when she:

[F]ail[ed] to file a motion to quash, after the two year period to bring plaintiff to trial had run its course. This took place after plaintiff had broached the subject with defendant. Plaintiff testified that defendant wanted him to go to Drug Court. Defendant admitted this fact.

Apparently, the trial court accepted Ms. Frank’s testimony that Mr. Frank wanted to participate in the drug program, not Mr. Frank’s testimony that he was going to participate in the program only because Ms. Frank recommended it to him. Review of the entire record shows that this credibility determination is not clearly wrong or manifestly erroneous. Stobart v. State, Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). The trial court also observed that Mr. Frank was on probation for another crime until August 14, 2004. The record does not indicate that a hold was | ¡^issued because of Mr. Frank’s violation of his probation; however, we do not find it error for the trial court to consider this as a factor in assessing fault to Mr. Frank.

Mr. Frank was forty-seven at the time of trial. He testified that he had four felony convictions and had been in and out of prison since he was eighteen years old. He knew his rights regarding a motion to quash the simple burglary charge while he was incarcerated in the Pine Prairie facility. Therefore, he could have contacted Ms. Frank from prison or when he was released from prison in November 8, 2002, to have her file a motion to quash; he did not do so. Furthermore, he appeared in court on August 2, 2004, and represented to the trial court that he wanted to participate in the drug program.

We have considered the evidence in light of the factors enumerated by the supreme court in Watson v. State Farm Fire & Casualty Insurance Co., 469 So.2d 967 (La.1985), and find no error with the trial court’s assessment of 80% fault to Mr. Frank from the time of his arrest in March 2004 until August 27, 2004, when Ms. Frank notified the trial court that his request to participate in the drug program had been rejected.

Ms. Frank testified that she relied on Mr. Frank to provide her with documentation of his incarceration. However, the record of that proceeding indicates that there was no documentation required to file the motion to quash, see La.Code Crim.P. arts. 578-583, and the trial court observed that Ms. Frank “did not offer a logical explanation in her testimony ... as to why she did not file a motion to quash.” Accordingly, once Mr. Frank was rejected for participation in the drug program on August 27, 2004, there is no justification for Ms. Frank not having filed a motion to quash. Accordingly, we find no basis for assessment of fault to Mr. Frank from | fiAugust 27, 2004, until his release on October 14, 2004, and assess Ms. Frank with 100% fault for that period of time.

Damages

Mr. Frank urges that the trial court’s award of $7,500 in damages for his wrongful incarceration was error. Our review of the trial court’s general damage award is guided by Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), where the supreme court held that the trier of fact has “vast” discretion in awarding damages and that an appellate court should rarely disturb a general damage award. The initial inquiry on appeal is “whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the ‘much discretion’ of the trier of fact.” Id. at 1260.

Mr. Frank had four felony convictions and had been in and out of prison since he was eighteen years old. He apparently wanted to participate in the trial court’s drug program and remained in jail for some time for this reason. Under the facts presented herein, we find no abuse in the trial court’s general damage award of $7,500.

Motion to Supplement Record

Mr. Frank filed a motion to supplement the record in which he requests that the appellate record be supplemented to include pre-trial and post-trial memoranda. An appellate court must render its judgment upon the record on appeal. La.Code Civ.P. art. 2164. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, 1 judgments and other rulings, unless otherwise designated. La.Code Civ.P. arts. 2127 and 2128.

Mr. Frank urges that the briefs at issue were filed with the trial court but not included in the record. The briefs may have been provided only to the trial judge for his consideration and/or filed with the clerk’s office, but the record does not establish that they were introduced into evidence; therefore, they are not part of the record on appeal. Tranum v. Hebert, 581 So.2d 1023 (La.App. 1 Cir.), writ denied, 584 So.2d 1169 (La.1991). The motion to supplement the record is denied.

Disposition

The judgment of the trial court is amended to assess Josie Frank with 100% fault for the period of time from August 27, 2004 through October 14, 2004. It is affirmed in all other respects. The motion to supplement the record is denied. Costs of the appeal are to be divided equally between the parties.

AFFIRMED AS AMENDED.