author: AMY, Judge. THIBODEAUX, Chief Judge,

text:
    STATE of Louisiana v. Jeremy D. LEE.
    No. 06-941.
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2007.
    Rehearing Denied June 20, 2007.
    John F. Johnson, District Attorney, Ronnie O. McMillin, Assistant District Attorney, Vidalia, LA, for Appellee, State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Jeremy D. Lee.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   AMY, Judge.

hThe defendant was convicted of possession of cocaine with intent to distribute and possession of marijuana with intent to distribute. The trial court imposed concurrent sentences of twenty years at hard labor for the former conviction and eight years at hard labor for the latter conviction. The defendant appeals, questioning the sufficiency of the evidence. For the following reasons, we affirm.

Factual and Procedural Background

Officer John Hawkins of the Ferriday Police Department testified that, on April 12, 2005, he stopped a vehicle after he observed it run a red light. Officer Hawkins explained that he arrested the driver, LaToya Evans, after learning that her driver’s license was suspended.

The defendant, Jeremy D. Lee, was a passenger in the vehicle. Officer Hawkins initiated a check on the defendant’s name. Wfiiile the check was proceeding, the defendant telephoned Joseph White for a ride from the scene. When Mr. White arrived, the defendant entered the vehicle and prepared to leave. However, according to Officer Hawkins, the name check on the defendant revealed an outstanding arrest warrant in California. Officer Hawkins shouted for Mr. White to stop the vehicle, which he did. The defendant was removed from the vehicle and arrested. Mr. White was also arrested. By this time, Officer Rickey Hollins and a State Trooper had arrived on the scene to assist Officer Hawkins. The defendant was placed in the back of Officer Hollins’ patrol car for transport to the police station.

Officer Hollins testified that he returned to the patrol vehicle after taking the defendant into the police station. When he searched the back seat, he found a basket containing what lab testing revealed to be marijuana and cocaine. The defendant was charged with one count of possession of cocaine with intent to distribute, a violation 12of La.R.S. 40:967(A)(1), and possession of marijuana with intent to distribute, a violation of La.R.S. 40:966(A)(1).

After an initial jury trial setting resulted in a mistrial, the defendant waived his right to a jury trial. Following a two-day bench trial, the trial court found the defendant guilty on both charges. The trial court sentenced the defendant to twenty years at hard labor for possession of cocaine with intent to distribute and eight years at hard labor for possession of marijuana with intent to distribute. The trial court ordered that the sentences run concurrently.

The defendant appeals and, in his sole assignment of error, questions the sufficiency of the evidence to support the convictions for possession of cocaine and marijuana with intent to distribute.

Discussion

Errors Patent

Having reviewed this matter in accordance with La.Code Crim.P. art. 920, we find no errors patent on the face of the record.

Sufficiency of the Evidence

The defendant’s sufficiency of the evidence argument focuses on inconsistencies in the State’s version of events. In particular, he points out discrepancies in the officers’ version of events and what was recorded in the dispatcher’s log and the report of the incident.

In State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So.2d 583, 592, the Louisiana Supreme Court reiterated that:

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La. R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt be- ( yond a reasonable doubt to a rational jury.” Neal, 2000-0674 p. 9, 796 So.2d at 657.

Given these charges, the State was required to prove beyond a reasonable doubt that the defendant intentionally possessed cocaine and marijuana and that he had the specific intent to distribute the cocaine and marijuana. See La.R.S. 40:967(A)(1) and La.R.S. 40:966(A)(1).

In support of its case, the State presented the testimony of Officer Hollins who explained that he visually checked his patrol car prior to transporting the defendant to the police station. Officer Hollins testified that he saw the defendant “wiggling” and moving around while in the back seat of the car. Officer Hawkins explained that he also saw the defendant “moving around” in the ear. According to Officer Hollins, he discovered the drugs in his vehicle after he took the defendant into the police station and returned to his car. He explained that the drugs were contained in what he described to be a “basket.” The laboratory testing results were introduced into evidence and revealed that the “sealed plastic bag containing 115 small plastic bags containing white substance” contained cocaine. The lab report further indicates that the “vegetable matter” in the “sealed plastic bag containing two (2) plastic bags containing suspected marijuana” was marijuana.

As the marijuana and cocaine were found on the backseat where, according to Officer Hollins, only the defendant had been and where he had been observed to be Rmoving about, we find that the evidence was sufficient to support a determination that the defendant intentionally possessed both the cocaine and the marijuana. See State v. Major, 03-3522 (La.12/1/04), 888 So.2d 798 (wherein the supreme court explained that possession can be established by either actual physical possession or by constructive possession. The State can establish the latter by demonstrating that the defendant had dominion and control.). Also, while the statement was apparently not memorialized in his report, Officer Hawkins testified that, after questioning at the police station, the defendant admitted “that the drugs were his.”

As for the remaining element of the offenses, specific intent to distribute the cocaine and marijuana, we find that the record supports the determination that the State presented evidence sufficient in this regard. The record lacks specific testimony regarding the weight of the drugs found, the characteristics of drug distribution, and whether the amount of the drugs found was consistent with personal use. Rather, the transcript is largely focused on the question of possession. However, given the context of the contraband’s discovery, two bags of marijuana bundled with 115 bags of cocaine, we find that the trial court was free to conclude that the sheer amount and packaging of the drugs were indicative of intent to distribute rather than personal use. Also, the transcript reveals that the trial court was able to review the amount and packing of the contraband as the drugs were presented as State’s Exhibits Two and Three.

Finally, we address the defendant’s contention that the testimonies of the State’s witnesses were unreliable given certain omissions from the dispatcher’s log and from the arrest reports. Having reviewed the record, we do not find that the trial court, as the trier of fact, was required to find that these inconsistencies were of such |sa nature so as to require the rejection of the testimony of Officers Hawkins and Hollins. Rather, the trial court’s ruling indicates that it considered the various credibility issues in making its determination.

While “Louisiana law neither requires nor precludes a statement of reasons supporting the verdict returned by the court sitting as a fact finder in the case[,]” such a statement “may provide a useful guide for reviewing the sufficiency of the evidence under the Jackson standard.” State v. Marshall, 04-3139, pp. 6-7 (La.11/29/06), 943 So.2d 362, 367. This standard requires that the appellate court focus on whether the trier of fact made a rational determination and not on its particular thought processes. \Jd. In examining the trial court’s ruling, it is apparent that the trial court accepted the version of events provided by Officer Hawkins and Officer Hollins and concluded that certain inconsistencies were due to a failure to memorialize the events in the arrest reports. As explained in Marshall, “Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence.” Id. at 369. Considering both the testimony of these officers and the quantity of the packages of drugs discovered in a light most favorable to the prosecution, we conclude that the trial court could have reasonably concluded that the evidence established that the defendant possessed the cocaine and marijuana with intent to distribute;

This assignment lacks merit.

DECREE

For the foregoing reasons, the defendant’s convictions for possession of cocaine with intent to distribute and possession of marijuana with intent to distribute are affirmed.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

hThe majority opinion focuses on issues of credibility and is conspicuously absent of any discussion regarding the elements of intent to distribute cocaine and marijuana. The elements supporting such a determination are firmly entrenched in our jurisprudence, particularly the seminal Louisiana Supreme Court opinion in State v. House, 325 So.2d 222 (La.1975) which is nowhere discussed or even mentioned by the majority. The majority opines “that the trial court was free to conclude that the sheer amount and packaging of the drugs were indicative of intent to distribute rather than personal use.” These are only two of the factors addressed by State v. House, 325 So.2d 222.

In State v. House, 325 So.2d 222 (La.1975), the Louisiana Supreme Court discussed factors to be considered when evaluating circumstantial evidence to determine if such evidence is sufficient to find a defendant intended to distribute drugs: 1) whether the defendant ever distributed or ever attempted to distribute the drugs; 2) whether the drugs were in a form usually associated with possession for distribution to others; 3) whether the amount of drugs created an inference of an intent to distribute; 4) whether expert or other testimony established that the amount j aof drugs found in the defendant’s possession is inconsistent with personal use only; and 5) whether any drug paraphernalia was found with the drugs, such as baggies or scales, evidencing an intent to distribute. “Testimony of street value and dosage of the drug is also relevant to the issue of intent.” State v. Moore, 40,311, p. 4 (La.App. 2 Cir. 1/13/06), 920 So.2d 334, 339. State v. Trahan, 425 So.2d 1222 (La.1983), affirmed a conviction for possession of marijuana with the intent to distribute where the state put on an expert witness who testified that the amount of drugs seized was inconsistent with personal use; the amount of marijuana seized would have made 1,600 marijuana cigarettes. State v. Crosby, 98-372 (La. App. 4 Cir. 11/17/99), 748 So.2d 502, also affirmed convictions for possession of marijuana and cocaine with the intent to distribute, where the state offered expert narcotics testimony that paraphernalia found at the scene were commonly used in the packing and retail sales of crack cocaine. Moore, 920 So.2d at 340, affirmed a conviction for possession of cocaine with intent to distribute where the state’s narcotics expert testified that “possessing such a large amount of crack cocaine [27 rocks] with no crack pipe found on the defendant’s person was absolutely consistent with street level distribution of crack cocaine.”

However, where the state offers only circumstantial evidence to prove intent to distribute, courts have reversed convictions where the state failed to provide expert testimony to support the circumstantial evidence. See State v. Durgan, 05-1642 (La.App. 3 Cir. 5/31/06), 931 So.2d 1182, where this court reversed a possession with intent to distribute cocaine conviction, entered a conviction for possession of cocaine, and remanded for resentencing, where the state failed to provide expert testimony that the amount of drugs recovered was inconsistent with personal use or that the defendant possessed any distribution paraphernalia at the time |aof his arrest. See also State v. Perkins, 97-1119 (La.App. 3 Cir. 6/17/98), 716 So.2d 120, where this court vacated a conviction for possession with intent to distribute marijuana and entered a verdict of possession of marijuana, where the state failed to establish the quantity of marijuana recovered from the defendant. Thus, the inference of intent to distribute based on the quantity could not be supported.

In this case, the State proved that the Defendant was found to be in possession of 115 bags of cocaine and two bags of marijuana; however, no evidence or testimony was presented at trial to support the inference that Defendant intended to distribute the drugs. Other than proving that the Defendant was in possession of 115 bags of cocaine, there is nothing in the record to indicate the amount of cocaine contained in each bag, or the total weight of cocaine recovered. Moreover, there was no testimony, expert or otherwise, or evidence offered, to prove or suggest that either the weight of the cocaine or marijuana was of such a quantity that it could not have been for personal use, or that the packing was consistent with distribution as opposed to personal use. Evidence . of street value and dosage is also lacking.

Furthermore, it is apparent that the State was aware of jurisprudence regarding expert narcotics testimony based on its statement at trial prior to opening statements, “[i]n addition to that I may call Officer Gregg Jackson with Concordia Parish Sheriffs Narcotics for testimony regarding the packaging of the material as far as distribution as opposed to personal onsumption [sic].” A close review of the appellate record and trial transcript re-fleets that the State failed to elicit any testimony to indicate the Defendant attempted to distribute the drugs, that the manner in which the drugs were packaged was consistent with the distribution of drugs, how much of the substance was contained in each package, the total weight of the drugs, or the street value of the drugs.

| /The State failed to produce any testimony, expert or otherwise, to show that the manner of packaging or the amount of drugs was consistent with the distribution of drugs. Therefore, the State failed to prove that the Defendant had the specific intent to distribute the drugs. Accordingly, following the jurisprudence in House, Trahan, Crosby, and Moore, the State failed to provide sufficient evidence to prove the Defendant was guilty of possession with the intent to distribute either marijuana or cocaine.

In summary, the State unquestionably presented evidence that the Defendant was in possession of the drugs at issue; however, it failed to show that the Defendant had the required specific intent to distribute any drugs. Louisiana Code of Criminal Procedure Article 821(E) states:

If the appellate court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.

Accordingly, based on the statutory language of La.Code Crim.P. art. 821(E), I would find the Defendant guilty of one count of possession of cocaine in violation of La.R.S. 40:967(C) and one count of possession of marijuana in violation of La.R.S. 40:966(C).

For the foregoing reasons, I respectfully dissent.

      . The trial court explained:
      In this particular case the Court acknowledges that there are numerous problems. That Officer Hawkins did not make a notation in his report. That there was an alleged confession by Mr. Lee. The Court notes that Officer Hollins did not submit a written report, even though he found the drugs. And Officer Hawkins testified that the policy required that any officer who found drugs should have made a report. The Court acknowledges that there are problems with the police log. The Court acknowledges also that this was the first night that the dispatcher was on duty. The Court acknowledges that because there was no report by Office Hollins that perhaps his memory on certain evidence is not as well instilled as it would have been had he had a written report. However, the Court does believe that Officer Hollins had no reasons to plant drugs on Mr. Lee and the Court finds that Officer Hollins's testimony is truthful and he is a credible witness. Some errors were made in record keeping by the Town of Ferriday. The officers did do a cursory search where they both testified, Hawkins and Hollins, that they checked Mr. Lee about the waist. There has been no evidence that they did a sophisticated search checking any other parts of his clothing, including his pockets. The Court has been presented with two bags of marijuana and 115 individual packages of cocaine. The Court finds that these drugs were located by Officer Hollins after he transported Mr. Lee to the station. Essentially, the Court has, even though there is no written report that indicates a confession was made by Mr. Lee, Officer Hawkins testified that he acknowledged the drugs were his. Officer Hollins testified that he acknowledged that the drugs were his. And his own relative, Mr. White, testified that Mr. Lee had acknowledged that the drugs were his. The Court goes back to Mr. Magoun’s earlier argument, why would you confess to possessing drugs in the first place if you did not possess the drugs, other than if you are confronted or accused, or threatened in any manner by one of the officers. And there has been no evidence that Mr. Lee was. So essentially in this case even though we have numerous problems with record keeping, numerous conflicts, the Court is taking into consideration that the dispatcher, it was her first night on the job. That Officer Hollins is credible even though he is lacking in his reporting skills. The Court finds that the State has proven that two bags of marijuana and 115 individual packages of cocaine were in Officer Hollins’s vehicle. That they were found after Mr. Lee was transported. And that Mr. Lee acknowledged ownership of the drugs in the presence of two officers and his cousin, Mr. White, his relative. Essentially, in this particular instance there is a credibility call. The Court, even though acknowledging that there are problems, the Court believes the testimony of Officer Hawkins and Officer Hollins. The State has met its burden and the Court finds Mr. Lee guilty on both counts, possession of cocaine with intent to distribute and possession of marijuana with intent to distribute....


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Joseph N. CHISLEY, Jr.
    No. 06-KA-900.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2007.
    Rehearing Denied May 25, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

LThis case comes to us on a second appeal. In his first appeal, defendant, Joseph N. Chisley, Jr., challenged his conviction for possession of 28 grams or more but less than 200 grams of cocaine. La. R.S. 40:967 F(l)(a). This Court affirmed defendant’s conviction and vacated his 20-year habitual offender sentence as illegally lenient, remanded the case to the district court for re-sentencing, and reserved to defendant the right to withdraw his previous stipulation as a second felony offender. State v. Chisley, 03-426 (La.App. 5 Cir. 10/15/03), 860 So.2d 45, writ denied, 03-3358 (La.4/2/04), 869 So.2d 874.

On remand, the defendant withdrew his prior admission to the habitual offender bill of information. The State then alleged the defendant to be a third felony offender. The trial court held a habitual offender hearing, and scheduled the defendant’s sentencing as a third felony offender for March 9, 2006. On that day, |athe State offered a stipulation that the defendant was a second felony offender, and the defense accepted the stipulation. The trial court vacated the defendant’s original sentence and imposed an enhanced sentence of 30 years at hard labor without benefit of probation or suspension of sentence for the entire term, and without benefit of parole for the first 10 years.

For the following reasons, we affirm.

In his first assigned error, the defendant argues the evidence at trial was insufficient to support his conviction. This issue is not properly before us because, as the defendant concedes, he raised it on his first appeal. At that time, this Court addressed the defendant’s argument and found the evidence was sufficient to prove, beyond a reasonable doubt, that the defendant possessed between 28 grams or more but less than 200 grams of cocaine. The defendant’s conviction was affirmed, and the judgment became final. See, La. C.Cr.P. art. 922. This assignment of error has no merit.

By his second assignment of error, defendant complains his 30-year habitual offender sentence — the mandatory minimum for the defendant’s offense under the Habitual Offender Law — is excessive given the nature of the underlying offense, his age, and his criminal history. He also asks this Court to consider that his conviction was obtained upon only the barest proof. The defendant filed both counseled and pro se motions to reconsider the sentence below, arguing only that his sentence is constitutionally excessive. He did not state specific grounds to support either motion. The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence for constitutional excessiveness. La. C.Cr.P. art. 881.1; 4State v. Clark, 05-61 (La.App. 5 Cir. 6/28/05), 909 So.2d 1007, 1017, writ denied, 05-2119 (La.3/17/06), 925 So.2d 538.

Mandatory minimum sentences under the Habitual Offender Law are presumed constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 675; State v. Mims, 00-1507, p. 6 (La.App. 5th Cir.12/26/01), 806 So.2d 760, 765, writ denied, 02-0466 (La.2/7/03), 836 So.2d 88. But if the trial judge finds that an enhanced punishment mandated by La. R.S. 15:529.1 makes no “ ‘measurable contribution to acceptable goals of punishment’ or that the sentence amounted to nothing more than ‘the purposeful imposition of pain and suffering’ and is ‘grossly out of proportion to the severity of the crime,’ ” the trial judge has the option and the duty to reduce the sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). See also, State v. Johnson, 03-620 (La. App. 5th Cir.10/28/03), 860 So.2d 180, 189-190, writ denied, 03-3171 (La.3/19/04), 869 So.2d 849 (quoting Dorthey).

Downward departures from a mandatory minimum sentence should occur only in rare circumstances. Johnson, 709 So.2d at 676. A court may only depart from the mandatory minimum sentence if it finds there is clear and convincing evidence to rebut the presumption of constitutionality. Id. The burden is on the defendant to rebut the presumption of constitutionality by showing

[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case, (citation omitted).
Id.

In this case, the defendant made no attempt at a Dorthey argument below. Therefore, this issue is not before us. This assignment of error has no merit.

| Jn his third assignment, the defendant requests an errors patent review. We note that this Court routinely reviews the record for errors patent regardless of whether the defendant explicitly requests it. La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The defendant received an errors patent review on his original appeal. State v. Chisley, 860 So.2d at 46. He is now limited to a review of the trial court’s proceedings on remand. See, State v. Gassenberger, 02-658 (La.App. 5 Cir. 12/11/02), 836 So.2d 271, 274. We find two errors on re-sentencing that require corrective action.

The commitment reflects defendant was “found GUILTY under La. R.S. 15:529.1 on count 1) 40:967F ... POSS/ WITD CDS OVER 28 GRAMS.” This notation is inaccurate, since defendant’s underlying offense was possession of 28 grams or more but less than 200 grams of cocaine, and he admitted to the allegations in the habitual offender bill. Generally, where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). The district court is directed to make an entry in the minutes reflecting the proper grade of offense, and the fact that defendant admitted to being a second felony offender. The clerk of court is directed to transmit the original of the minute entry to the officer in charge of the institution to which defendant has been committed. See, State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

The commitment erroneously indicates the defendant was properly advised of the prescriptive period for applying for post-conviction relief at the time of the habitual offender re-sentencing, when the transcript shows the trial court’s advisal was incomplete. La. C.Cr.P. art. 930.8 A provides that a defendant has two years “after the judgment of conviction and sentence has become final” in which to file an | fiapplication for post-conviction relief. But the trial court advised the defendant he had “two years from the date of your sentencing” in which to apply for post-conviction relief.

Accordingly, it is ordered that the defendant’s habitual offender finding and sentence are affirmed. We further order that this case be remanded to allow the trial court to amend the commitment as directed above. Finally, we order that the trial court send the defendant written notice of the prescriptive period for post-conviction relief applications within 10 days of this judgment, and that evidence of said notice be filed in the record.

HABITUAL OFFENDER FINDING AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The record shows that the parties stipulated only as to defendant’s second offender status, and not as to the sentence he would receive.


author: PAINTER, Judge.

text:
    Cherry COTTON v. FIRST FLEET.
    No. 07-29.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.
    Rehearing Denied June 20, 2007.

      George A. Flournoy, Alexandria, LA, for Plaintiff-Appellee: Cherry Cotton.
    Robert A. Dunkelman, S. Michael Cooper, Shreveport, LA, for Defendants-Appellants: First Fleet and Travelers Property Casualty Company of America.
    Court composed of ELIZABETH A. PICKETT, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| -i Defendants, First Fleet, and its insurer, Travelers Property Casualty Company of America (Travelers), appeal the ruling of the Worker’s Compensation Judge (WCJ) awarding Claimant, Cherry Cotton, supplemental earnings benefits, a penalty for discontinuing benefits and, attorney’s fees. For the following reasons, we affirm in part, vacate in part, amend in part, and award an additional attorney’s fee on appeal.

FACTS

Cherry Cotton and her husband, Clayton Cotton, worked for First Fleet as a long-haul driving team, driving an 18-wheel tractor-trailer rig. On April 1, 2004, Mrs. Cotton was injured while unloading goods they had transported. She reported the injury to her husband and to the dispatcher. The employer apparently paid temporary total disability benefits until August 9, 2004, when it discontinued payments. Mrs. Cotton filed a disputed claim for compensation on November 8, 2004.

At the hearing, First Fleet and Travelers asserted that Mrs. Cotton had a preexisting back condition which she had concealed from the doctors who treated her for the April 2004 injury. Therefore, they argued that Mrs. Cotton’s claim was barred by this fraud pursuant to La.R.S. 23:1208. They further asserted that Mrs. Cotton was released to work by her physician in July 2004.

The WCJ ruled in favor of Mrs. Cotton ordering First Fleet and Travelers to pay SEB, related medical expenses, a penalty in the amount of $4,000.00 for discontinuing the benefits, and an attorney’s fee of $6,500.00. The WCJ denied the claim for failure to pay compensation for the first week of disability. First Fleet and Travelers appeal. Claimant has answered the appeal.

1 .DISCUSSION

In workers’ compensation cases, the factual findings of the trial court are subject to the manifest error standard of review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the standard, the appellate court must determine not whether the trier of fact’s conclusion was right or wrong, but that it was reasonable. Freeman, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous. Stobart, 617 So.2d at 882. Therefore, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Lebert v. McNeese State Univ., 05-856, p. 4 (La.App. 3 Cir. 2/1/06), 932 So.2d 678, 683 (alteration in original).

Disability

Defendants first assert that the WCJ erred in finding that Mrs. Cotton was disabled as the result of her work accident after she had been released to full-duty work by Dr. Shutte.

In a workers’ compensation case, the claimant must establish a causal link between the work-related accident and the claimed disability. Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320 (La.1985). To aid the employee in meeting this burden:
[t]he employee’s workplace accident is presumed to have caused or aggravated her disability when she proves that: (1) before the accident, she had not manifested disabling symptoms; (2) commencing with the accident, the disabling symptoms appeared; and (3) there is medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and activation of the disabling condition. Once an employee establishes the presumption of a casual relationship, the employer must produce evidence and persuade the trier of fact that it is more probable than not that the injury was not caused by the work accident.
3Tate v. Cabot Corp., 01-1652, p. 6 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, 461, writ denied, 02-2150 (La.11/22/02), 829 So.2d 1044 (quoting Rideaux v. Franklin Nursing Home, 95-240, p. 5 (La.App. 3 Cir. 11/22/95), 664 So.2d 750, 755, writ denied, 95-3093 (La.2/16/96), 667 So.2d 1058 (citations omitted)).

Bollich v. Family Dollar, Inc., 05-1459, p. 5 (La.App. 3 Cir. 6/21/06), 934 So.2d 249, 252.

In this case, Defendants are asserting that any symptoms suffered by Mrs. Cotton after her release by Dr. Schutte are not causally connected to the accident, but rather to her underlying scoliosis and associated arthritic condition. However, Dr. Schutte’s testimony does not clearly support this conclusion. Dr. Schutte stated that, based on Mrs. Cotton’s complaints of lumbar pain radiating into her left leg, he diagnosed her condition as a strain/sprain injury. While he testified that she reached maximum medical improvement on June 22, 2004, on cross-examination he admitted that she had not fully recovered from the lumbar strain. On releasing her to work on June 22, 2004, Dr. Schutte gave work restrictions of no more than thirty minutes continuous sitting and no repetitive lifting over twenty-five pounds. He stated that these restrictions were based on her degenerative arthritis associated with scoliosis. He opined that these conditions pre-existed the accident and stated that he would have placed the same restrictions on her prior to the accident. He stated that he would have told her to stop working as a truck driver if she had back pain which recurred every two to three months so as to prevent her from working. However, he admitted that if she was not having problems which prevented her from working, he would not have recommended stopping work as a truck driver.

Mrs. Cotton testified that, although she had been diagnosed with scoliosis as a teenager, it had not prevented her from working as a truck driver for the two and a |4half years prior to the accident. Further, the disabling symptoms appeared immediately after the accident.

Dr. Robert Moore first treated Mrs. Cotton’s back problems on April 12, 2004, prior to her treatment by Dr. Schutte, then saw her again for back pain from August 2004 through January 2005. Her back pain, while fluctuating in degree, remained the same, including lumbar and left hip pain radiating down the outside of her left leg to her left knee.

Further, Mrs. Cotton was evaluated by Dr. Clark Gunderson, an orthopedic surgeon. After examining her, he opined that she was suffering from a lumbar straining injury superimposed on degenerative disk disease and lumbar scoliosis. He stated that he believed her condition to be related to the on the job injury.

The medical evidence, taken as a whole, indicates a reasonable possibility of causal connection between the accident and the onset of the disabling condition This testimony fulfills the three requirements noted in Bollich, 934 So.2d 249. Prior to the accident, Mrs. Cotton had not manifested the disabling symptoms. In fact, it is uncontested that she worked for First Fleet as a truck driver for over two years prior to the accident without manifesting back symptoms.

Accordingly, we find no error in the WCJ’s determination that Mrs. Cotton carried her burden of showing a causal connection between her continuing back problems and the on-the-job accident of April 1, 2004.

Fraud

Defendants next assert that the WCJ erred in failing to find that Mrs. Cotton willfully made misstatements with regard to her pre-existing back problems in order |Rto obtain workers’ compensation benefits, and, as a result, forfeited her right to collect benefits, as set forth in La.R.S. 23:1208.

Under the unambiguous and clear language of the statute, an employer claiming that an employee has violated La. R.S. 23:1208 must prove “that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. If the WCJ finds that all three of “these requirements are met, Section 1208 applies and its forfeiture provisions must be enforced.” Id. at 14.
The determination by a WCJ as to whether a claimant has made a false statement, willfully, for the purpose of obtaining workers’ compensation benefits is a finding of fact, and is, therefore, subject to the manifest error standard of review. Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. However, we must keep in mind that La.R.S. 23:1208(E) is penal in nature. Any statute that is penal in nature must be strictly construed in favor of the one receiving benefits under that chapter of the law. Fontenot v. Reddell Vidrine Water Dist, 02-439 (La.1/14/03), 836 So.2d 14; Olander v. Schillilaegh’s, 04-725 (La.App. 3 Cir. 3/23/05), 899 So.2d 97.
La.R.S. 23:1208 authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. All of these requirements must be present before a claimant can be penalized. Because this statute is penal in nature, it must be strictly construed, both in its substantive ambit and in its penalty provisions.
Concerning the standard of appellate review of a forfeiture claim, the court in Rowan Cos., Inc. v. Powell, 02-1894, 02-1895, p. 6 (La.App. 1 Cir. 7/2/03), 858 So.2d 676, 680, writ denied, 03-2177 (La.11/14/03), 858 So.2d 425 (citations omitted), stated:
The determination of whether there is a false statement or representation willfully made for the purpose of obtaining any benefit or payment involves inherently factual determinations and, thus, this court’s review of those findings by the WCJ is governed by the manifest error standard. Under that standard of review, this court may only reverse the WCJ’s decision if we find (1) there is no reasonable factual basis for the finding in the record and (2) the finding is clearly wrong or manifestly erroneous.
6Phillips v. Diocese of Lafayette, 869 So.2d at 316-17, (quoting in part Flintroy v. Scott Cummins Salvage, 36,857, p. 12 (La.App. 2 Cir. 3/10/03), 839 So.2d 1231, 1238, writ denied, 03-1068 (La.6/6/03), 845 So.2d 1093 (citations omitted)).

Jim Walter Homes, Inc. v. Guilbeau, 05-1473, pp. 5-6 (LaApp. 3 Cir. 6/21/06) 934 So.2d 239, 243-4.

Defendants assert that Mrs. Cotton lied about not having had lower back problems for at least 12 years. In support of this, they point to an injury which Mrs. Cotton sustained while employed by Wein-ers’ Department store in 2001. The record, however, shows that Mrs. Cotton injured her upper back and shoulders at that time. Defendants assert that in her pretrial deposition, Mrs. Cotton claimed to have had no back problems for twelve years. However, the deposition shows that she was specifically asked about lower back problems. Therefore, nothing in the record indicates that her denial of such problems during the last twelve years was false. They further point to a medical history Mrs. Cotton filled out during a visit to Dr. Morrison for an unrelated problem in which she indicated that she suffered from severe or recurring back problems. The WCJ found this question to be ambiguous, and therefore not to be relied on for purposes of determining whether La.R.S. 23:1208.1 required a forfeiture of benefits. The WCJ cited Wise v. J.E. Merit Constructors, Inc., 97-684 (La.1/21/98), 707 So.2d 1214, in which the court found that similarly broad questions on an employer’s questionnaire did not serve the purposes of the statute and, were to be construed against the employer in determining whether the employee failed to give truthful answers with regard to pre-existing medical questions. Although the questionnaire at issue here was not the employer’s pre-hire questionnaire, we agree with the WCJ that it is overly broad and cannot be used to require forfeiture of an employee’s workers’ compensation benefits.

^Considering the entirety of the record and Mrs. Cotten’s statements with regard to her pre-existing medical problems in context, we find no error in the WCJ’s determination that she made no statements or misrepresentations which rise to the level that would require forfeiture of benefits.

Average Weekly Wage

Mrs. Cotton asserts that the WCJ erroneously calculated her average weekly wage without an accurate tally of the actual of number of days worked. Mrs. Cotton testified that she was paid on the basis of miles driven. Therefore, La.R.S. 23:1021(12)(d) provides the appropriate method for calculation of her average weekly wage, as follow:

(12) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as:
(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week.

While Mrs. Cotton’s gross wage was in evidence, no evidence was adduced with regard to the number of days worked. Therefore, the WCJ did not have before it sufficient evidence for calculation of the average weekly wage. Accordingly, the WCJ’s judgment is vacated insofar as it purports to set out Mrs. Cotton’s average weekly wage. This matter is remanded to allow evidence to be adduced with regard |sto the number of days worked by Mrs. Cotton during the twenty-six weeks preceding the accident, and for a recalculation of her average weekly wage as set out in La.R.S. 23:1021(12)(d).

SEB Judgment

Defendants also assert that the WCJ erred in signing a judgment which was impermissibly vague in that it did not state the amount of the recovery with certainty.

The portion of the judgment complained of reads as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff is entitled to supplemental earnings benefits, beginning April 1, 2004, and continuing in accord with LSA R.S. 23:1221(3), together with legal interest from due date, subject to a credit for all indemnity benefits previously paid.

Ordinarily, this language would be sufficient to allow calculation of SEB and would not result in an improperly vague judgment. However, in this case, having found that the calculation of the average weekly wage was improperly made, there is not sufficient evidence of record to allow calculation of the appropriate amount of SEBs.

SEBs are calculated by taking:

sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment.... Average monthly wages shall be computed by multiplying his “wages” by fifty-two and then dividing the quotient by twelve.

La.R.S. 23:1221(3)(a).

Wages in this case, as has been stated above, must be calculated by dividing the employees’ gross earnings for the twenty-six week period prior to the injury by the actual number of days worked in the twenty-six week period prior to the injury. See La.R.S. 12:1021(12)(d). Since we do not know the number of days Mrs. Cotton 1 flworked in that period, “wages” cannot be calculated. If “wages” cannot be calculated, the average monthly wage cannot be calculated, and thus, SEBs cannot be calculated. Therefore, the judgment rendered herein is vague in that it is not possible to determine the amount of supplemental earnings benefits payable. Therefore, we remand this matter so that evidence may be adduced which will allow calculation of Mrs. Cotton’s appropriate SEB rate.

Medical Expenses

Defendants further assert that the following language in the WCJ’s judgment is an improper award of future medical benefits:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant is responsible for all reasonable and necessary medical treatment of plaintiffs accidental work-related injuries of her back sustained on April 01, 2004.

Defendants cite Prevost v. Jobbers Oil Transport Co., 95-224 (La.App. 1 Cir. 10/6/95), 665 So.2d 400, writ denied, 96-440 (La.4/8/96), 671 So.2d 336, in support of the argument that a WCJ may not make an award of future medical benefits. This court discussed that issue, as well as the holding of Prevost, in Stelly v. Health South Rehabilitation, 03-171, pp. 13-14 (La.App. 3 Cir. 7/2/03), 854 So.2d 960, 968:

They also contend its award of “all related medical expenses during plaintiffs disability” amounts to an improper award of future medical expenses.
Under La.R.S. 23:1203(A), an employer is obligated to furnish an employee who has a compensable claim “all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.” As we explained in Jacquet v. Southern Structures, Inc., 97-1696, p. 8 (La.App. 3 Cir. 5/20/98), 713 So.2d 723, 728 (emphasis added), “An award of compensation benefits for future medical expenses is separate and distinct from an award of disability benefits. An injured employee’s entitlement to benefits for medical expenses exists even if he returns to |inwork, provided he needs further medical treatment for the work-related injury.” Thus, the judgment incorrectly awards medical expenses “during plaintiffs disability,” as the right to those benefits may extend beyond the period of disability. Although future medical expenses were awarded in Jacquet, the court in Prevost v. Jobbers Oil Transport Co., 95-224, p. 5 (La.App. 1 Cir. 10/6/95), 665 So.2d 400, 404, writ denied, 96-440 (La.4/8/96), 671 So.2d 336, recognized that such an award is unnecessary because “the right to claim such expenses is always reserved to the plaintiff.” Accordingly, we affirm the judgment insofar as it recognizes the right to receive surgery and other related medical expenses, but we amend it to delete the phrase “during plaintiffs disability” in conformity with La.R.S. 23:1203(A).

Since the judgment in this case merely recognizes the right to claim medical expenses which is reserved to a claimant by law, we affirm the judgment of the WCJ.

Defendant further asserts that the judge erred in failing to specify what is owed for past medical treatment. We agree. The judgment is vague in that it does not delineate which medical expenses are payable. “An employee establishes a claim for medical benefits by proving by a preponderance of the evidence and to a reasonable certainty, the need for such treatment following his work-related accident. Ware v. Allen Parish Sch. Bd., 02-1011 (La.App. 3 Cir. 5/21/03), 854 So.2d 374.” Funderburk v. Nabors Drilling USA, Inc., 05-1119, p. 7 (La.App. 3 Cir. 4/26/06), 930 So.2d 1058, writ denied, 06-1252 (La.9/15/06), 936 So.2d 1275. Therefore, Mrs. Cotton is entitled to payment only for past medical expenses that she proved at trial were owed her. After reviewing the record, we conclude that Mrs. Cotton established by providing copies of the medical bills that she is entitled to be paid for those medical services rising out to her work-related accidents and provided by Rapides Regional Medical Center, Dr. Clark Gunderson, Central Louisiana Rehab Specialists, and Professional Pharmacy-

Benefits for April 5 through April 11, 2001

Inin her answer to the appeal, Mrs. Cotton argues that the WCJ erred in failing to award benefits the week of April 5 through April 11, 2004.

It was stipulated at trial that a work related injury occurred on April 1, 2004. Mrs. Cotton admits that she was paid for the three days after the injury while her husband drove her home from California. She asserts, however, that First Fleet did not begin paying benefits until April 12, 2004 and that payment should have begun on April 5, 2004. The trial judge apparently refused this payment based his previous grant of an exception of vagueness. However, our review of the judgment on the exception convinces us that it did not apply to the claim for “non-payment of indemnity benefits” under which category this claim falls. Therefore, the evidence of record shows that benefits were due for the week of April 5 through April 11, 2004, and that they were not paid. Accordingly, we amend the judgment of the WCJ to require payment of benefits for that period together with legal interest from the due date.

Plaintiff further asks that a penalty be awarded for the non-payment of benefits for that period. We agree that a penalty is due under the provisions of La.R.S. 23:1201. Therefore, we assess Defendants with a penalty in the amount of $1,000.00 for failure to pay the benefits due for the week of April 5 through April 11, 2004.

Penalties and Attorney’s Fees

Defendants argue that the WCJ erred in assessing it with penalties for improper discontinuance of benefits.

[Penalties should be imposed only when there is no good faith or just cause on the part of the employer and his refusal to pay the benefits. A workers’ compensation judge’s decision to award attorney fees and penalties is subject to the manifest error standard of review. Bolton [v. 12Mike Fleming Construction, 36,521 (LaApp. 2 Cir. 12/11/02),] 833 So.2d 1177.

Lebert, 932 So.2d at 687.

They argue that, as a matter of law, their decision to rely on a treating physician’s release to work cannot be arbitrary or capricious and that they “made a legitimate decision concerning termination of benefits and stood steadfastly by it. First Fleet was entitled to take a serious issue to trial without being penalized for it.” However, Defendants were not entitled “blindly rely” on that initial report, but had “a continuing duty to investigate when [they] received the subsequent medical information.” Bradley v. ConAgra Poultry Co., 03-23, p. 9 (La.App. 3 Cir. 4/30/03), 843 So.2d 1255, 1261. As noted by the WCJ in his reasons for judgment: “The employer here received the records from Dr. Gunderson, Dr. Moore and Dr. Nelson. They apparently ignored those records. They didn’t send her back to Dr. Schutte. They knew that Dr. Schutte had her under limitations. He never gave her a full release.... ” Given the evidence of Mrs. Cotton’s continuing medical problems arising from the accident, and Defendants’ failure to investigate, we find no error in the WCJ’s determination that the termination of benefits was arbitrary and capricious. The award of penalties and attorney’s fees is affirmed.

Attorney’s Fees on Appeal

Taking into consideration the particular circumstances of this case, the lower court’s award of attorney fees in the amount $6,500.00, and recent awards by this court, we find $2,500.00 to be a reasonable award for work done pursuant to this appeal. See Williams v. A-Jax Lumber Co., 05-935 (La.App. 3 Cir. 5/10/06), 930 So.2d 300, writs denied, 06-1486 (La.9/29/06), 937 So.2d 865 and 06-1498 (La.9/29/06), 937 So.2d 866.

| ^CONCLUSION

Accordingly, we affirm the WCJ’s determination that Mrs. Cotton carried her burden of showing a causal connection between her ongoing back problems after June 22, 2004, and the on-the-job accident of April 1, 2003. We further affirm the WCJ’s rejection of Defendants’ “fraud” defense. However, we vacate the WCJ’s determination of the average weekly wage and remand for a determination of the number of days actually worked by Mrs. Cotton during the twenty-six weeks prior to the April 1, 2004 accident so as to allow an appropriate calculation both of average weekly wage and the proper SEB payment owed. We affirm the WCJ’s judgment in so far as it states that Defendants are responsible for all reasonable and necessary medical treatment related to injuries sustained in the April 1, 2004 accident. We further order payment of benefits owed for the week of April 5, 2004 through April 11, 2004 plus interest from the due date of those benefits as well as a penalty in the amount of $1,000.00. Additionally, we affirm the WCJ’s award of a penalties and attorney’s fees for improper discontinuance of benefits. Finally, we award an additional attorney’s fee of $2,500.00 for work done on appeal.

AFFIRMED IN PART; VACATED IN PART; AMENDED IN PART; RENDERED IN PART; AND REMANDED.


text:
    Clayton COTTON v. FIRST FLEET.
    No. 07-41.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.
    Rehearing Denied June 20, 2007.

      George A. Flournoy, Alexandria, LA, for Plaintiff-Appellee, Clayton Cotton.
    Robert A. Dunkelman, S. Michael Cooper, Shreveport, LA, for Defendants-Appellants, First Fleet and Travelers Property Casualty Company of America.
    Court composed of ELIZABETH A. PICKETT, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendants, First Fleet, and its insurer, Travelers Property Casualty Company of America (Travelers), appeal the ruling of the Workers’ Compensation Judge (WCJ) awarding Claimant, Clayton Cotton, temporary total disability benefits, a penalty for discontinuing benefits, and attorney’s fees. For the following reasons, we affirm in part, vacate in part, amend in part, and award an additional attorney’s fee on appeal.

FACTS

Clayton Cotton worked for First Fleet as a long-haul truck driver, driving an 18-wheel tractor-trailer rig. On April 21, 2004, Mr. Cotton fell out of his truck in California. He sought medical treatment there and was treated for fractured ribs and shortness of breath. First Fleet eventually flew him home, and he sought further treatment with Dr. Robert Smith. He was treated for broken ribs and associated shoulder and back pain. After several months, neck and low back symptoms began to manifest themselves. Mr. Cotton was paid compensation benefits through August 5, 2004, when he was released to return to work. He underwent a DOT exam and returned to work on August 8, 2004. On September 13, 2004, while driving near El Paso, Texas, his face and left side began to get numb. He was concerned that he was having a stroke and was taken to a hospital in El Paso. The initial tests showed no signs of a stroke, but Mr. Cotton began complaining of neck, back, and shoulder problems. While she was massaging his neck, his wife found a lump on the back of his neck. An MRI was performed, and Dr. Shanker Sundrani performed emergency cervical surgery. Mr. Cotton has been disabled from working since that time.

First Fleet refused to pay compensation claiming that the problems arose out of a stroke rather than an on-the-job accident. Mr. Cotton filed this disputed claim for compensation. After a hearing, the WCJ rendered judgment finding Mr. Cotton’s [¡¡average weekly wage to be $806.32, awarding temporary total disability benefits in the amount of $429.00 per week from September 14, 2004, and finding First Fleet responsible for “all reasonable and necessary medical treatment of plaintiffs accidental, work-related injuries to his ribs, neck and low back sustained on April 21, 2004.” The WCJ further ordered First Fleet to pay a penalty of $4,000.00 for unreasonable failure to authorize medical treatment and unreasonable failure to pay medical benefits, as well as attorney’s fees of $7,500.00. The court denied Mr. Cotton’s claim for benefits for the period of August 5 through August 8, 2004.

Defendants appeal and Mr. Cotton has answered the appeal.

STANDARD OF REVIEW

In workers’ compensation cases, the factual findings of the trial court are subject to the manifest error standard of review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. PoulanfWeed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the standard, the appellate court must determine not whether the trier of fact’s conclusion was right or wrong, but that it was reasonable. Freeman, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous. Stobart, 617 So.2d at 882. Therefore, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Lebert v. McNeese State Univ., 05-856, p. 4 (La.App. 3 Cir. 2/1/06), 932 So.2d 678, 683 (alteration in original).

I,.DISCUSSION

Causal Connection

Defendants dispute the causal connection between Mr. Cotton’s accident or accidents and the disabling injury.

In a workers’ compensation case, the claimant must establish a causal link between the work-related accident and the claimed disability. Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320 (La.1985). To aid the employee in meeting this burden:
[t]he employee’s workplace accident is presumed to have caused or aggravated her disability when she proves that: (1) before the accident, she had not manifested disabling symptoms; (2) commencing with the accident, the disabling symptoms appeared; and (3) there is medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and activation of the disabling condition. Once an employee establishes the presumption of a casual relationship, the employer must produce evidence and persuade the trier of fact that it is more probable than not that the injury was not caused by the work accident.
Tate v. Cabot Corp., 01-1652, p. 6 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, 461, writ denied, 02-2150 (La.11/22/02), 829 So.2d 1044 (quoting Rideaux v. Franklin Nursing Home, 95-240, p. 5 (La.App. 3 Cir. 11/22/95), 664 So.2d 750, 755, writ denied, 95-3093 (La.2/16/96), 667 So.2d 1058 (citations omitted)).

Bollich v. Family Dollar, Inc., 05-1459, p. 5 (La.App. 3 Cir. 6/21/06), 934 So.2d 249, 252.

Defendants assert that the injuries resulted from pre-existing back conditions and from a stroke arising out of preexisting hypertension. This court in Fontenot v. Wal-Mart Stores, Inc., 03-1570, pp. 6-7 (La.App. 3 Cir. 4/7/04), 870 So.2d 540, 545, writ denied, 04-1131 (La.6/25/04), 876 So.2d 843, (quoting Morris v. City of Opelousas, 572 So.2d 639 (La.App. 3 Cir. 1990)), discussed the effect of a pre-exist-ing condition on the determination of whether an injury is causally connected to an on-the-job accident, as follows:

|4An otherwise compensable accident does not cease to arise out of the employment simply because it can be attributed to a physical infirmity of the employee. Guidry v. Serigny, 378 So.2d 938 (La.1979). It is clear that a worker’s pre-existing condition does not bar his recovery under our worker’s [sic] compensation statute. Id. Moreover, the jurisprudence is replete with statements that an employer takes the employee as he finds him. An abnormally susceptible worker is entitled to the same protection as a healthy worker. Allor v. Belden Corp., 393 So.2d 1233 (La.1981).

The court further laid out a two part inquiry for determining whether an accident “arose out of’ a claimant’s employment:

First, it must be determined whether the employee was then engaged in his employer’s business and secondly, did the necessities of the employer’s business reasonably require that the employee be at the place of the accident at the time of the accident. Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932).

Id. at 544 (quoting Guidry v. Serigny, 378 So.2d 938 (La.1979)).

Accordingly, we will examine Mr. Cotton’s accidents and ensuing injuries subject to these inquiries.

April 21, 200k Accident

Defendants first assert that the WCJ erred in finding that Mr. Cotton’s neck and low back problems were related to an on-the-job accident on April 21, 2004. Defendants argue that the evidence of record shows that the neck and back symptoms complained of by Mr. Cotton were the result of gradual wear and tear or degeneration from pre-existing back problems which have resulted in four previous lumbar surgeries including a fusion in his low back.

In support of this argument, Defendants point to testimony by Dr. Smith that Mr. Cotton did not complain to him of low back or neck pain and that any low back and neck pain which arose later were unrelated to the April 21 accident. However, on cross-examination, Dr. Smith admitted that he did not examine Mr. Cotton’s low [sback or neck, that the pain Mr. Cotton was experiencing between his shoulders could be related to neck injury, and that there was lumbar radiculopathy noted in an August 2004 examination. He further admitted that pain from the broken ribs sustained in the April 21 accident could have masked pain from other back injuries from manifesting itself until after the broken ribs had resolved.

The WCJ, in his reasons for judgment, particularly notes the testimony of Dr. Troy Vaughn, a neurosurgeon who treated Mr. Cotton after a 2001 accident, that it would have taken another accident of some kind to cause the problems Mr. Cotton is currently having and that a fall out of the cab of an eighteen wheeler which causes broken ribs could also cause neck and back injuries. The WCJ further notes that he believed Mr. Cotton and that Mr. Cotton had no significant neck or back problems from the time he was released after the 2001 injury until he fell out of the cab of his truck on April 21, 2004. It is important to note that while Defendants point to testimony which is in conflict with the testimony relied on by the WCJ, Defendants do not suggest that the testimony relied on by the WCJ was false or did not occur.

While the testimony was in conflict, we cannot say that the WCJ erred in his credibility evaluations, or that the record does not contain reasonable support for his conclusion that a causal connection exists between the April 21, 2004 accident and the neck and back injuries incurred by Mr. Cotton.

September lb, 200b Accident

Defendants assert that there was no second accident and that, even if an accident occurred, Mr. Cotton did not show that the neck injury for which he underwent surgery was causally connected to the accident. Symptoms began to appear after the occurrence of the accidents.

| fiAfter reviewing the record herein, we conclude that there is sufficient evidence of record to support the conclusion that a second accident occurred on September 14, 2004, when left-side weakness caused Mr. Cotton to fall back against his bunk while he was trying to get up. Mr. Cotton related this information to Dr. Sun-drani in his medical history. Mr. Cotton’s trial testimony also indicates that he fell back into the bunk area. The WCJ chose to believe this testimony. Although, the record contains certain inconsistencies in this regard, they are not sufficient to cast serious doubt on its occurrence.

Further, the WCJ found that either the first or second accident resulted in a disabling low back and neck injury to Mr. Cotton, that Mr. Cotton had no low back or neck symptoms for several years prior to the accidents, and that medical evidence existed to support a causal connection between the accidents and the disabling injuries. The evidence produced by Defendants did not “persuade the trier of fact that it is more probable than not that the injury was not caused by the work accident.” Id. After reviewing the record, we cannot say that this conclusion was unreasonable.

Fraud

Defendants next asserts that the WCJ erred in failing to find that Mr. Cotton willfully made misstatements with regard to his pre-existing back problems in order to obtain workers’ compensation benefits, and, as a result, forfeited her right to collect benefits as set forth in La.R.S. 23:1208.

Under the unambiguous and clear language of the statute, an employer claiming that an employee has violated La. R.S. 23:1208 must prove “that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. If the WCJ finds that all three of “these requirements are met, Section 1208 applies and its forfeiture provisions must be enforced.” Id. at 14.
17The determination by a WCJ as to whether a claimant has made a false statement, willfully, for the purpose of obtaining workers’ compensation benefits is a finding of fact, and is, therefore, subject to the manifest error standard of review. Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. However, we must keep in mind that La.R.S. 23:1208(E) is penal in nature. Any statute that is penal in nature must be strictly construed in favor of the one receiving benefits under that chapter of the law. Fontenot v. Reddell Vidrine Water Dist., 02-439 (La.1/14/03), 836 So.2d 14; Olander v. Schillilaegh’s, 04-725 (La.App. 3 Cir. 3/23/05), 899 So.2d 97.
La.R.S. 23:1208 authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. All of these requirements must be present before a claimant can be penalized. Because this statute is penal in nature, it must be strictly construed, both in its substantive ambit and in its penalty provisions.
Concerning the standard of appellate review of a forfeiture claim, the court in Rowan Cos., Inc. v. Powell, 02-1894, 02-1895, p. 6 (La.App. 1 Cir. 7/2/03), 858 So.2d 676, 680, writ denied, 03-2177 (La.11/14/03), 858 So.2d 425 (citations omitted), stated:
The determination of whether there is a false statement or representation willfully made for the purpose of obtaining any benefit or payment involves inherently factual determinations and, thus, this court’s review of those findings by the WCJ is governed by the manifest error standard. Under that standard of review, this court may only reverse the WCJ’s decision if we find (1) there is no reasonable factual basis for the finding in the record and (2) the finding is clearly wrong or manifestly erroneous.
Phillips v. Diocese of Lafayette, 869 So.2d at 316-17, (quoting in part Flintroy v. Scott Cummins Salvage, 36,857, p. 12 (La.App. 2 Cir. 3/10/03), 839 So.2d 1231, 1238, writ denied, 03-1068 (La.6/6/03), 845 So.2d 1093 (citations omitted)).

Jim Walter Homes, Inc. v. Guilbeau, 05-1473, pp. 5-6 (La.App. 3 Cir. 6/21/06) 934 So.2d 239, 243-44.

^Defendants assert that Mr. Cotton committed fraud first by alleging that his neck surgery was related to his on the job accident of April 21, 2004. Having found that the WCJ correctly concluded that Mr. Cotton proved this causal connection, we find no fraud in this regard. Defendants further assert that Mr. Cotton concealed the nature and extent of his prior neck injuries during his deposition testimony. After reviewing the record, we find that the inconsistencies in Mr. Cotton’s testimony do not rise to the level of fraud.

Average Weekly Wage

Mr. Cotton asserts that the WCJ erroneously calculated his average weekly wage without an accurate tally of the actual of number of days worked. Mr. Cotton testified that he was paid on the basis of miles driven. Therefore, La.R.S. 23:1021(12)(d) provides the appropriate method for calculation of his average weekly wage, as follow:

(12) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as:
(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week.

While Mr. Cotton’s gross wage was in evidence, no evidence was adduced with regard to the number of days worked. Driving logs were introduced. However, |gnot all pages contain dates, making it impossible to determine days worked from this source. Therefore, the WCJ did not have before him sufficient evidence for calculation of the average weekly wage. Accordingly, the WCJ’s judgment is vacated insofar as it purports to set out Mr. Cotton’s average weekly wage. This matter is remanded to allow evidence to be adduced with regard to the number of days worked by Mr. Cotton during the twenty-six weeks preceding the accident, and for a recalculation of his average weekly wage as set out in La.R.S. 23:1021(12)(d).

Medical Expenses

Defendants further assert that the following language in the WCJ’s judgment is an improper award of future medical benefits:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant is responsible for all reasonable and necessary medical treatment of plaintiffs accidental work-related injuries of her back sustained on April 20, 2004.

Defendants cite Prevost v. Jobbers Oil Transport Co., 95-224,(La.App. 1 Cir. 10/6/95), 665 So.2d 400, writ denied, 96-440 (La.4/8/96), 671 So.2d 336, in support of the argument that a WCJ may not make an award of future medical benefits. This court discussed that issue, as well as the holding of Prevost, in Stelly v. Health .South Rehabilitation, 03-171, pp. 13-14 (La.App. 3 Cir. 7/2/03), 854 So.2d 960, 968:

They also contend its award of “all related medical expenses during plaintiffs disability” amounts to an improper award of future medical expenses.
Under La.R.S. 23:1203(A), an employer is obligated, to furnish an employee who has a compensable claim “all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.” As we explained in Jacquet v. Southern Structures, Inc., 97-1696, p. 8 (La.App. 3 Cir. 5/20/98), 713 So.2d 723, 728 (emphasis added), “An award of compensation benefits for future medical expenses is separate 110and distinct from an award of disability benefits. An injured employee’s entitlement to benefits for medical expenses exists even if he returns to work, provided he needs further medical treatment for the work-related injury.” Thus, the judgment incorrectly awards medical expenses “during plaintiffs disability,” as the right to those benefits may extend beyond the period of disability. Although future medical expenses were awarded in Jacquet, the court in Prevost v. Jobbers Oil Transport Co., 95-224, p. 5 (La.App. 1 Cir. 10/6/95), 665 So.2d 400, 404, writ denied, 96A40 (La.4/8/96), 671 So.2d 336, recognized that such an award is unnecessary because “the right to claim such expenses is always reserved to the plaintiff.” Accordingly, we affirm the judgment insofar as it recognizes the right to receive surgery and other related medical expenses, but we amend it to delete the phrase “during plaintiffs disability” in conformity with La.R.S. 23:1203(A).

Since the judgment in this case merely recognizes the right to claim future medical expenses which is reserved to a claimant by law, we affirm the judgment of the WCJ.

Defendants further assert that the judge erred in failing to specify what is owed for past medical treatment. We agree. The judgment is vague in that it does not delineate which medical expenses are payable. “An employee establishes a claim for medical benefits by proving by a preponderance of the evidence and to a reasonable certainty, the need for such treatment following his work-related accident. Ware v. Allen Parish Sch. Bd., 02-1011 (La.App. 3 Cir. 5/21/03), 854 So.2d 374.” Funderburk v. Nabors Drilling USA Inc., 05-1119, p. 7 (La.App. 3 Cir. 4/26/06), 930 So.2d 1058, writ denied, 06-1252 (La.9/15/06), 936 So.2d 1275. Therefore, Mr. Cotton is entitled to payment only for past medical expenses that he proved at trial were owed. After reviewing the record, we conclude that Mr. Cotton established that he is entitled to be paid for those medical services rising out of his work-related accidents and provided by Dr. Clark Gunderson, Dr. Megel Orella-na, Dr. Shander Sundrani, Dr. Robert Moore, Del Sol Medical Center, Rapides General Medical Center, Central Louisiana Rehab Specialists, and Professional Pharmacy.

| nBenefits for August 5 through August 8, 2004

In her answer to the appeal, Mr. Cotton argues that the WCJ erred in failing to award benefits for August 5 through 8, 2004. Mr. Cotton asserts that, although a return to work slip was signed on August 4, 2004, he was not allowed to return to work until he had passed a CDL physical. Dr. Smith testified that he would not do this, and the physical was administered on August 9, 2004, by a chiropractor in Natchez, Mississippi. At that time, he was allowed to return to work.

Finding support for this scenario in the record, and finding nothing to suggest that Mr. Cotton would have been allowed to drive before August 9, 2004, we find that workers’ compensation benefits should have been paid for this period. Therefore, we amend the judgment to require payment of benefits for that period together with legal interest from the due date.

Mr. Cotton further asks that a penalty be awarded for the non-payment of benefits for that period. We agree that a penalty is due under the provisions of La.R.S. 23:1201. Therefore, we assess Defendants with a penalty in the amount of $1,000.00 for failure to pay the benefits due for August 5 through August 8, 2004.

Penalties and Attorney’s Fees

Defendants argue that the WCJ erred in assessing it with penalties and attorney’s fees for improper discontinuance of benefits.

[P]enalties should be imposed only when there is no good faith or just cause on the part of the employer and his refusal to pay the benefits. A workers’ compensation judge’s decision to award attorney fees and penalties is subject to the manifest error standard of review. Bolton [v. Mike Fleming Construction, 36,521 (La.App. 2 Cir. 12/11/02),] 833 So.2d 1177.

Lebert, 932 So.2d at 687.

112Pefendants assert that the refusal to pay benefits after Mr. Cotton’s return to work in August 2004 was justified by the numerous discrepancies in his claim that a second accident occurred and that either accident caused the disability complained of. The trial court found that Defendants ignored the records and testimonies of Dr. Sundrani and Dr. Vaughn. He states: “this is the same employer who let the man go back to work in 2000 with what they say now are so serious neck problems that he shouldn’t have been driving....”

We agree with the trial court that Defendants were not in good faith and did not have just cause to refuse benefits. Accordingly, we find no error in the trial court’s award of penalties and attorney’s fees.

Attorney’s Fees on Appeal

Taking into consideration the particular circumstances of this case, the lower court’s award of attorney fees in the amount $7,500.00, and recent awards by this court, we find $1,500.00 to be a reasonable award for work done pursuant to this appeal. See Williams v. A-Jax Lumber Co., 05-935 (La.App. 3 Cir. 5/10/06), 930 So.2d 300, writs denied, 06-1486 (La.9/29/06), 937 So.2d 865; 06-1498 (La.9/29/06) 937 So.2d 866.

CONCLUSION

Accordingly, we affirm the WCJ’s determination that Mr. Cotton’s injuries and disability are related to on-the-job accidents on April 21, 2004 and September 14, 2004. We further affirm the WCJ’s rejection of Defendants’ “fraud” defense. However, we vacate the WCJ’s determination of the average weekly wage and remand for a determination of the number of days actually worked by Mr. Cotton during the twenty-six weeks prior to the April 21, 2004 accident so as to allow an | ^appropriate calculation average weekly. We affirm the WCJ’s judgment insofar as it states that Defendants are responsible for all reasonable and necessary medical treatment related to injuries sustained in the April 1, 2004 accident. We render judgment ordering that Mr. Cotton be paid for those medical services rising out of his work-related accidents and provided by Dr. Clark Gunderson, Dr. Megel Orellana, Dr. Shander Sundrani, Dr. Robert Moore, Del Sol Medical Center, Rapides General Medical Center, Central Louisiana Rehab Specialists, and Professional Pharmacy We further order payment of benefits owed for August 5 through August 8, 2004 plus interest from the due date of those benefits as well as a penalty in the amount of $1,000.00. Additionally, we affirm the WCJ’s award of a penalties and attorney’s fees for improper discontinuance of benefits. Finally, we award an additional attorney’s fee of $1,500.00 for work done on appeal.

AFFIRMED IN PART; VACATED IN PART; AMENDED IN PART; RENDERED IN PART; AND REMANDED.


author: EZELL, Judge.

text:
    Dewitt WILLIAMS v. A-JAX LUMBER COMPANY.
    No. WCA 2007-1.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      Maurice Blake Monrose, Hurlburt, Pri-vat & Monrose, Lafayette, LA, for Defendant/Appellee, A-Jax Lumber Company.
    George Arthur Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Plaintiff/Appellant, Dewitt Williams.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   EZELL, Judge.

Lin this workers’ compensation ease, Dewitt Williams appeals a judgment which found that his request for payment of a functional capacity evaluation (FCE) was barred under the doctrine of res judicata. For the following reasons, we reverse.

FACTS

The facts of this case are sufficiently detailed in our previous opinion. Williams v. A-Jax Lumber Co., 05-935 (La.App. 3 Cir. 5/10/06), 930 So.2d 300, writs denied, 06-1486, 06-1498 (La.9/29/06), 937 So.2d 865, 866. Therefore, we will not repeat them here.

Before an opinion was rendered by this court, Mr. Williams filed another disputed claim form on April 18, 2006. The purpose of this claim was to procure the reimbursement of the cost of an FCE which had been requested by two doctors. A-Jax Lumber Company, and Southeastern Claims Services excepted to the claim on the basis of lack of subject matter jurisdiction, prematurity, lack of procedural capacity to be sued, and res judicata.

A hearing was held on the matter on October 2, 2006. The trial court granted the exception of res judicata, dismissing Mr. Williams’ claim. He appeals that decision.

RES JUDICATA

Defendants argue that the claim for the cost of the FCE is res judicata because Mr. Williams unsuccessfully tried to admit the FCE into evidence at the first trial. It claims that a cause of action for the cost of the FCE existed at the time of trial and when the judgment became final.

Mr. Williams argues that it was the admissibility of the FCE that was previously litigated. The issue of reimbursement of the FCE was not a concern at the | ¡.first trial.

In Metoyer v. Roy O. Martin, Inc., 03-1540, p. 2 (La.App. 3 Cir. 12/1/04), 895 So.2d 552, 564, on rehearing, writ denied, 05-1027 (La.6/3/05), 903 So.2d 467 (quoting Prudhomme v. Iberville Insulations, 93-778, p. 4 (La.App. 3 Cir. 3/2/94), 633 So.2d 380, 382), this court discussed the concept of res judicata and its applicability in the workers’ compensation setting, observing that “the doctrine of res judicata must be applied to workers’ compensation ⅛ light of the rule that the Act must be construed liberally in favor of the employee.’ ”

In Metoyer, the question of whether claims for incorrect and untimely payments in January, June, and July 1999 were barred by res judicata was at issue. Ms. Metoyer asserted that the judgment of dismissal rendered in August 1999 addressed only the first untimely payment of benefits for the period from December 27, 1998 through January 3, 1999, and that other incorrect or untimely payments were not concluded by that judgment. This court held that the only matter concluded by the August judgment was the first untimely payment of benefits and that the subsequent incorrect or untimely payment of benefits was not barred by res judicata.

At the hearing on this matter, the attorney for Mr. Williams stated that the bill for the FCE was not submitted to the Defendants until after trial. He explained that he had tried to introduce the FCE into evidence at trial, which was denied because Defendants had not previously received a copy of the report. Mr. Williams argues that the subject of payment of the FCE bill was not an issue at the first trial, only its admissibility.

We agree with Mr. Williams that the matter of the payment of a medical expense, i.e. the FCE, would not be precluded by res judicata simply because an attempt was made to submit it into evidence. However, this court does not have a |acopy of the record of the first trial. Without a copy of the record, we cannot determine whether the issue of payment of the FCE was raised.

“When a party raises an objection of res judicata, the court must examine not only the pleadings but also the entire record in the first suit, to determine whether the second suit is, in fact, barred by res judicata. Union Planters Bank v. Commercial Capital Holding Corp., 04-871, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 129, 130. It was the Defendants’ duty to introduce the record from the first suit as the parties raising the exception of res judicata. Id. Without this evidence, Defendants failed in their burden of proof.

For these reasons, the trial court judgment sustaining the peremptory exception of res judicata is reversed. Costs of this appeal are assessed to A-Jax Lumber Company, and Southeastern Claims Services.

REVERSED.