text:
    TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, et al., Plaintiffs-Respondents v. Vernadette PRATT, d/b/a Dette’s Concessions, et al., Defendants-Applicants.
    No. 41,387-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 2006.

      Hayes, Harkey, Smith & Cascio, by Thomas M. Hayes, IV, Monroe, for Defendants-Applicants, Colony Ins. Co., Verna-dette Pratt and Dette’s Concessions.
    Waller & Associates, by Sean M. Casey, for Plaintiffs-Respondents, Travelers Property Casualty Co. of America, Joseph Costanza, Patricia Costanza and Salvadore Miletello, Jr.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   STEWART, J.

l,We granted writs in this matter to review the trial court’s denial of a motion for summary judgment by the defendants, Vernadette Pratt, d/b/a Dette’s Concessions, and her insurer, Colony Insurance Company. At issue is whether Pratt, as a lessee, can be held liable under a negligence theory to the lessee of an adjacent business and to the lessor for property damages from arson committed by an unknown third person who broke into Pratt’s business. Having conducted a de novo review of the record, we find both no dispute of material fact that would preclude summary judgment in favor of the defendants and no duty owed by Pratt to protect against the unforeseeable criminal acts of an unknown third party under the facts of this case.

FACTS

Vernadette Pratt had an oral lease with Joseph and Patricia Costanza for a space in which she operated a restaurant known as Dette’s Concessions. Pratt’s space shared a common wall with the adjacent business, Sal’s Men and Boy’s Fashions, which was operated by Salvadore Miletel-lo, Jr. Miletello also leased space from the Costanzas, who owned the building in which the two businesses operated.

On April 20, 2004, an unknown person broke into the rear door of Dette’s Concessions and started a fire. The fire caused extensive damage. Both the Costanzas and Miletello were insured by Travelers Property Casualty Company of America under separate policies. Travelers paid its insureds’ losses and then filed a subrogation action against Pratt and her insurer. Travelers alleged that the “sole and proximate cause” of the fire |awas the fault of Pratt for negligently failing to adequately secure the premises.

Pratt and her insurer moved for summary judgment, contending that Pratt owed no duty either to the Costanzas or to Miletello to protect from criminal acts of an unknown third person which were not reasonably anticipated. They asserted that Travelers would not be able to establish that Pratt was at fault in causing the fire by failing to secure the premises or that she had any reason to anticipate that someone would break in the building to commit arson.

Travelers opposed the summary judgment motion, noting that Pratt’s restaurant had been burglarized on two prior occasions through the front entrance and that there had been multiple instances of the rear door alarm being triggered. Thus, Travelers asserted that Pratt had notice that her business was subject to crime and should have reasonably anticipated that her business was a potential target for arson. Pointing out that Pratt had taken steps to better secure the front entrance of her building, Travelers argued that she should have also taken steps to better secure the rear entrance. Finally, Travelers asserted a genuine issue of fact existed as to how the rear door actually was secured on the night of the fire.

After hearing arguments, the trial court denied the motion for summary judgment. The trial court determined that issues of fact concerning how the intruder entered the business and how the rear entrance was actually secured the night of the fire precluded summary judgment. Following the adverse judgment, Pratt and her insurer filed a writ | ¡¡application seeking supervisory review of the trial court’s ruling. We granted the application.

DISCUSSION

Applicable Law

On appeal, summary judgments are given a de novo review using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Taylor v. Rowell, 98-2865 (La.05/18/99), 736 So.2d 812.

Our law provides that the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Racine v. Moon’s Towing, 2001-2837 (La.05/14/02), 817 So.2d 21. If the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law, then summary judgment shall be rendered. La. C.C.P. art. 966; Patton v. Strogen, 39,829 (La.App. 2d Cir.8/17/05), 908 So.2d 1282, writ denied, 2005-2397 (La.3/17/06), 925 So.2d 548.

As explained in La. C.C.P. art. 966(C)(2) and throughout our jurisprudence, the burden of proof on a motion for summary judgment remains with the mov-ant. However, when the movant will not bear the burden of proof at trial on the matter before the court on the summary judgment motion, the burden does not require the movant to negate all | ¿essential elements of the adverse party’s claim, but rather to point out that there is an absence of factual support for one or more elements essential to that claim. La. C.C.P. art. 966(C)(2). If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact. Id.

As provided in La. C.C.P. art. 967(B), the adverse party may not rest on the mere allegations or denials of his pleading in response to a properly made and supported motion for summary judgment; rather, his response, by affidavits or otherwise, must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment shall be rendered against him, if appropriate. La. C.C.P. art. 967(B).

A material fact is one whose existence or nonexistence may be essential to the plaintiffs action under the applicable theory of recovery. Such facts potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.07/05/94), 639 So.2d 730; Patton, supra. Not all disputed facts are material, and summary judgment may be granted if contested facts present no legal issues. Harvey v. Francis, 2000-1268 (La.App. 4th Cir.3/21/01), 785 So.2d 893. Whether a disputed fact is material is determined in light of the substantive law applicable to the case. Id. Genuine issues are triable issues for the fact that reasonable persons could disagree as to the conclusion. Patton, supra.

In a negligence action, we use the duty-risk analysis to determine liability. This analysis requires the plaintiff to prove that the defendant’s |ficonduct was the cause-in-fact of the resulting harm, that the defendant owed a duty of care to the plaintiff, that the defendant breached the duty, and that the risk of harm was within the scope of protection afforded by the duty breached. Posecai v. Wal-Mart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762.

The threshold issue in any negligence action is whether the defendant owed a duty to the plaintiff. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La.04/03/02), 816 So.2d 270; Posecai, supra; Patton, supra. Whether a duty is owed is a question of law. Posecai, supra. The legal inquiry involves a determination of whether the duty of the particular defendant that has allegedly been breached extends to protect against the risk of the harm suffered by the plaintiff, and whether there are legal or policy reasons which may excuse the defendant from the consequences of his negligence. Peacock’s Inc. v. Shreveport Alarm, Co., 510 So.2d 387 (La.App. 2d Cir. 1987), writs denied, 513 So.2d 826, 513 So.2d 827, and 513 So.2d 828 (La.1987). A risk may not be within the scope of a duty where the circumstances of the particular injury to the plaintiff could not be reasonably foreseen or anticipated, because there was no ease of association between that risk and the legal duty. Todd v. State Through Social Services, 96-3090 (La.9/9/97), 699 So.2d 35, reh. denied, 96-3090 (La.10/31/97), 701 So.2d 958; Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). The extent of protection owed by a defendant to a plaintiff is made on a case-by-case basis to avoid making a defendant an insurer of all persons against all harms. Todd, supra.

| (¡With regard to the potential liability of a lessee, the articles in effect at the time of the fire included former La. Civ. C. arts. 2721 and 2723. Article 2721 provided that the lessee is only liable for those damages sustained through his own fault. With regard to destruction caused by a fire, Article 2723 specified that a lessee could only be liable for such destruction upon proof that the fire happened by either his own fault or neglect, or by that of his family. The articles on lease were revised by Acts 2004, No. 821, and became effective on January 1, 2005. The pertinent revised article is La. Civ. C. art. 2687, which states, “The lessee is liable for damage to the thing caused by his fault or that of a person who, with his consent, is on the premises or uses the thing.” We discern no substantive change in the pertinent provisions as they apply in this matter. All three articles provide for liability of the lessee for damages caused by his own fault. As is made clear by the 2004 Revision Comment (b), the lessee is not responsible for damage caused by persons who use the leased premises without his consent, such as a passerby or a trespasser. Moreover, there is generally no duty to protect others from the criminal activities of third persons. Posecai, supra; Patton, supra.

In Harvey, supra, the fourth circuit held as a matter of law that, in the absence of actual knowledge, neither a landlord nor tenant has a duty to protect an adjoining property owner from a fire caused by an unrelated third person. In that case, the plaintiff sued the owner and lessee of the building next to hers where a fire had begun and then spread to her building causing damage. There was no dispute as to the fact that the fire was started by an 17unknown third person. Although the court found a genuine issue of fact concerning terms of the lease and prior notice of the condition of the property, the court found that the issue was not one of material fact for the reasons that the fire was started by an unknown third person, and the court found nothing in the law imposing liability for such damages on either the landlord or tenant.

Analysis

The parties agree that an unknown third person broke into Dette’s Concessions and committed arson, which damaged the Costanzas’ building and Mile-tello’s business. Both parties rely on Pratt’s deposition in supporting and opposing summary judgment.

Pratt testified that she opened Dette’s Concessions in May or June of 2003. She had an oral lease agreement with the Cos-tanzas. A wall separated her business from Miletello’s business in the same building, and there was an interior doorway between the two businesses that was controlled by Miletello. The front entrance of Pratt’s business was a glass door for which she had a key for the lock. The business also had a back door opening to the alley, but Pratt could not enter her business from the back door. She used it only when taking trash to the dumpster. The back door was secured from the inside by a push button lock on the doorknob, for which there was no key, and by a board placed across the interior doorway and fitted into brackets on the sides. The rear door also had two unusable, broken bolt locks.

|sShortly after starting her business, Pratt had a burglar alarm system installed. The alarm system consisted of motion detectors and sensors on the front and back doors. Almost immediately, Pratt began having problems with the sensor on the back door triggering the alarm. Pratt explained that even with the door locked and the board placed across it, the door did not fit snugly in the frame. There was enough room to allow the door to jiggle or somehow lose the connection between the sensors. To remedy the problem and avoid paying further false alarm fines to the police, she changed the placement of the board. Instead of placing it in the brackets, she placed one end of the board under the doorknob and the other end on the floor at an angle with a block of wood against it. This apparently solved the problem with the rear alarm sensor.

Pratt also testified about three instances of burglaries or attempted burglaries that occurred over a few weeks during the winter. A former employee who had been fired and had made threats against Pratt was arrested for these crimes. He had threatened to have her business shut down and to report her to the board of health. He had also warned that she should watch out when alone at the business. Because in each instance the intruder entered or attempted to enter through the front glass door, Pratt had a metal gate installed over the front as an additional security measure.

Pratt testified that she did not work the day of the fire but that she was at the restaurant a little before closing time. She went to get the money, and she left at the same time as her employees. However, she did not check the back door before leaving. She explained that her employees’ duties | included locking the back door if it had been opened that day to take out the trash. The rear door was locked by pushing the button on the doorknob and securing the board under the knob. Pratt felt that her business was secure and often left money there over the weekends. Despite the prior break-ins, she did not believe that anyone would set fire to her business.

Although Pratt did not personally lock the back door on the night of the fire, her deposition establishes the customary manner in which the back door was secured each night. Pratt correctly argues that her deposition testimony regarding the customary manner of locking the back door was sufficient to shift the burden to Travelers to come forth with evidence to show that the door was not adequately secured the night of the fire. Travelers, not Pratt, bears the burden of proof as to whether the door was inadequately secured the night of the fire. Travelers’ reliance on Pratt’s deposition and the fact that she did not personally lock the back door the night of the fire does not create a genuine issue of material fact for trial in the absence of other evidence, such as an affidavit, suggesting that the door was not locked or that the method of securing the door was inadequate. Thus, we find no dispute of fact that would preclude summary judgment.

To establish liability, Travelers must prove that Pratt had a duty to protect the Costanzas and Miletello from the criminal acts of the unknown person who entered her business. Travelers must also be able to prove that the risk of arson was within the scope of protection afforded by that duty. Because there was no written lease, Pratt’s liability as a lessee is set forth in the Civil Code articles previously quoted. She may be held liable for those Imdamages occasioned by her own fault. But the articles do not impose liability on the lessee for damages caused by intruders, trespassers, or the mere passerby. The Civil Code provisions support Pratt’s motion for summary judgment.

Travelers seeks to defeat summary judgment by asserting that the history of criminal activity directed at Pratt’s business, the threats by her former employee, the additional security measures taken by Pratt to protect the front entrance, and the alarms that had been triggered at the back door put Pratt on notice that her business was a target for crime and created a duty requiring her to take additional security measures at the back entrance to protect her lessor and neighbor from the possibility of damage from arson. Travelers cites Peacock’s, supra, in support of this duty.

In Peacock’s, a jewelry store located in a shopping center sued its lessor after a burglary. The burglars entered the shopping center through a utility room door that the lessor failed to keep locked over many months. Locks placed on the door had been continuously broken, so the manager of the shopping center had abandoned efforts to keep the door locked. In imposing liability on the shopping center owner / lessor, this court found that the risk of burglary of a jewelry store was imminently foreseeable. The court further found there to be an ease of association between the owners’ duty to reasonably secure the utility room and the risk that a burglar would use the room to facilitate his crime. We held that the owner of the shopping center had a duty to “undertake reasonable efforts” to shut and lock the Inutility room door. However, we also recognized that no locked door is burglar proof.

We find no support in Peacock’s for Travelers’ assertion of a duty on the part of Pratt vis-a-vis the Costanzas or Miletel-lo. First, Peacock’s does not address the duty of a lessee. Second, Travelers put forth no evidence suggesting that Pratt maintained an unlocked back door over a period of time. Third, Peacock’s requires only that one make reasonable efforts to maintain a locked door. Pratt’s deposition established the customary manner in which she secured the back door of her business. In response, there was simply nothing offered by Travelers in opposition to summary judgment to suggest that Pratt did not make reasonable efforts to maintain a locked back door or that the customary manner of securing the back door was inadequate. Fourth, although the burglary of a jewelry store was determined to be imminently foreseeable, the same cannot be said for the crime of arson committed by the intruder in Dette’s Concessions. Even considering the prior burglaries and threats by Pratt’s former employee, the possibility that an intruder might enter the business and start a fire is not a foreseeable event that a reasonable person would take additional security measures to protect against.

While the gravity of harm from arson is great, the risk of arson is simply not foreseeable under the facts presented on summary judgment. None of the prior crimes involved arson; instead, they were minor break-ins involving theft of only cigarettes and chips. The prior break-ins occurred within a short time span, and the perpetrator was arrested. The perpetrator, l19who was Pratt’s former employee, had not threatened to set fire to her business. The back door of Dette’s Concessions was customarily kept locked. As observed in Peacock’s, supra, no locked door is burglar proof. An intruder intent on committing a crime will not necessarily be deterred by a locked door. Requiring more than the customary security measures taken by Pratt to engage the pushbutton lock, place the board under the doorknob, and arm the burglar alarm would impose an unreasonable and impossible duty to protect against all crimes that might occur, whether foreseeable or not. Finally, arson is not the type of crime that necessarily requires entrance into the building; thus merely securing entry to a building may not suffice to prevent a perpetrator intent on committing arson.

The exhibits in support of and in opposition to summary judgment establish that Pratt took reasonable measures to keep her business secured and protected against criminal intruders. The exhibits further establish that Pratt had no reason to believe that her business was a target for arson. The prior occurrence of minor criminal activity by a former employee did not give rise to a duty requiring Pratt to protect against any and every type of criminal activity that might occur nor did it make the occurrence of arson a foreseeable possibility for which a duty of protection might be imposed.

Finding no disputed genuine issue of material fact for trial and concluding that Travelers will be unable to prove either the existence of a duty under the duty-risk analysis or that arson is a foreseeable risk included in Pratt’s duty as a lessee, we grant summary judgment in favor of Pratt.

| ^CONCLUSION

For the reasons explained, we find in favor of the defendants, Vernadette Pratt and Colony Insurance Company, on their motion for summary judgment. We hereby vacate the trial court’s ruling, grant the defendant’s motion for summary judgment, and dismiss the plaintiffs’ claims. Costs are assessed against the plaintiffs.

WRIT GRANTED, JUDGMENT VACATED, AND SUMMARY JUDGMENT GRANTED.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Jamie JOHNSON, Appellant.
    No. 41,428-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 2006.

      Phyllis E. Mann, Alexandria, Derrick D. Carson, for Appellant.
    William R. Coenen, Jr., District Attorney, Johnny R. Boothe, Assistant District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   WILLIAMS, J.

1 ¶A Franklin Parish grand jury returned an indictment charging the defendant, Jamie Johnson, with the second degree murder of Darryl Baker. Following a trial, a jury convicted the defendant of the responsive verdict of manslaughter. The trial court sentenced him to serve 20 years in prison at hard labor, with credit for time served. The defendant now appeals. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

The victim, Darryl Baker, and his wife, Katrina Baker, were residents of the Westwood Apartments, which were owned by Farrington Johnson (“Johnson”), the defendant’s brother. On May 25, 2004, Johnson went to the Bakers’ apartment to discuss past due rent and to deliver an eviction notice, but no one answered the door. Later that day, Johnson sent his maintenance employee, Ace Smith, to deliver the notice to the Bakers. While at the Bakers’ apartment, Smith used his cellular phone to call Johnson, and Johnson and Darryl Baker spoke. Johnson, accompanied by the defendant, later returned to the apartment complex to speak to Baker in person.

When Johnson and the defendant arrived at Westwood Apartments, Baker was standing outside of his apartment. Johnson exited his vehicle, and he and Baker began to discuss the past due rent, eviction and the return of Baker’s deposit. The defendant remained in Johnson’s vehicle. An argument between Johnson and Baker ensued. Johnson agreed to return Baker’s deposit, minus past due rent and a late fee, but he did not have any checks or cash with him at that time. Johnson testified that the defendant |2exited the vehicle to return Baker’s deposit. When Baker reached into a black zippered day planner, the defendant pulled a handgun from his pocket and shot Baker three times, striking him in the chest, left side and left wrist. Baker ran across the street to the residence of Carolyn Brass and Ace Smith. Baker asked for help and told Brass that the defendant had shot him. Brass alerted the authorities. Baker was transported to a local hospital, where he subsequently died from his injuries.

Law enforcement officers soon arrived on the scene and began to interview witnesses. The defendant told the officers that he had shot Baker after Baker reached into a “black bag.” Johnson told the officers that the defendant shot Baker during an argument when Baker reached into his “pocket.” According to the officers’ testimony, when the defendant and Johnson were interviewed on the night of the shooting, neither of them mentioned Baker having a gun. However, two weeks after the shooting, Johnson told an investigator that he saw a gun in Baker’s planner. No gun was found on Baker’s body or in the day planner Baker was carrying at the time of the shooting, and no weapon, other than the handgun taken from the defendant, was discovered at or near the scene of the crime.

The defendant was placed under arrest. Subsequently, the grand jury charged the defendant with second degree murder. Following a trial, a jury convicted the defendant of manslaughter, a responsive ver-diet to second degree murder. The trial court sentenced the defendant to serve a prison term of 20 years at hard labor •with credit for time served. The trial court denied the defendant’s motions for new trial, post-verdict judgment of |3acquittal and reconsideration of sentence. The defendant appeals his conviction.

DISCUSSION

Sufficiency of Evidence/Seif-Defense

The defendant contends the evidence was insufficient to support the verdict of guilty of manslaughter because the state failed to establish beyond a reasonable doubt that he did not act in self-defense or defense of others when he shot Baker. Conversely, the state contends the verdict was supported by the evidence, and the only evidence of self-defense was “highly suspect.”

When sufficiency of the evidence and one or more trial errors are raised as issues on appeal, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hea-rold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, unit denied, 1997-1203 (La.10/17/97), 701 So.2d 1333.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. Where there is conflicting testimony about factual matters, the resolution of Rwhich depends upon a determination of the credibility of witnesses, the matter is one of the weight, not the sufficiency, of the evidence. State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, Allen v. Louisiana, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

In this case, the defendant was found guilty of manslaughter. The defendant does not deny that he shot Baker three times, inflicting the fatal wound, during a heated argument between Baker and Johnson, the defendant’s brother. Thus, we are satisfied that there was sufficient evidence to support the defendant’s conviction for manslaughter, unless the state failed to prove, beyond a reasonable doubt, that the homicide was not committed in self-defense.

IsLSA-R.S. 14:20 provides, in pertinent part:

A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

When self-defense is raised as an issue by a defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State v. Garner, 39,731 (La.App. 2d Cir.9/08/05), 913 So.2d 874, writ denied, 2005-2567 (La.5/26/06), 930 So.2d 19; State v. Cheatham, 38,413 (La.App. 2d Cir.6/23/04), 877 So.2d 164, writ denied, 2004-2224 (La.6/24/05), 904 So.2d 717. Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary include the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of the assailant’s bad character. State v. Spivey, 38,243 (La.App. 2d Cir.5/12/04), 874 So.2d 352; State v. Hardeman, 467 So.2d 1163 (La.App. 2d Cir.1985). Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary |fito avoid the danger. State v. Brown, 414 So.2d 726 (La.1982); State v. Spivey, supra.

In the instant case, Carolyn Brass testified that immediately after she heard, three gunshots, she saw Baker running toward her house with a “black book” in his hands. Baker was asking for help, saying that the defendant had shot him.

When law enforcement officers arrived at the scene, the defendant and Johnson were still there. The defendant told the officers that he had shot Baker after Baker reached into the day planner. Johnson told the officers that the defendant shot Baker when Baker reached into his pocket. Johnson refused to give a formal statement on the night of the incident, claiming that his attorney had advised him to give a written statement. However, when nearly two weeks had passed, Investigator Emmett Coleman contacted Johnson. At that time, Johnson gave a statement, in which he informed the officers that when Baker reached into the day planner, he saw a gun and he told the defendant to run.

During the trial, Johnson testified that on the night of the shooting, Baker became angry after being told that his entire deposit would not be refunded to him. Johnson testified that he heard Baker say, “I got something that’ll make you give me all my God damned money back!” Johnson also testified that he then saw the tip of a “silver” gun barrel inside Baker’s day planner and that he yelled to the defendant, “Run, Jamie, he has a gun!” Johnson testified that he heard gun shots after he started to run. Johnson also stated that on the night of the shooting, he told Winnsboro 17PoIice Officer Chris Shaw and Ace Smith about Baker having a gun, but “someone” must have picked it up.

Ace Smith and Officer Shaw also testified during the trial. Smith stated that all Johnson said to him that night was, “Jamie shot him.” Smith did not corroborate Johnson’s claim that Johnson had told him that he saw a gun in Baker’s planner that night. Officer Shaw testified that when he arrived on the scene, other law enforcement officers had taken the defendant to the sheriffs office, and Johnson told him that the defendant had shot Baker after Baker reached into his pocket. Johnson informed Officer Shaw that he had seen a weapon in Baker’s possession on that night.

Deputy Lafayette Ainsworth testified that, while transporting the defendant to the sheriffs office, the defendant told him that he and Johnson had gone to Baker’s apartment to collect the rent. According to Deputy Ainsworth, the defendant stated that Baker and his brother had gotten into a heated argument, that Baker went to pull something out of his black case, and that he shot him. Deputy Ainsworth testified that the defendant offered no other details about the shooting.

Assistant Police Chief Bruce McCarthy testified that Johnson stated that he and the defendant had gone to collect Baker’s rent when they got in a heated argument and that the defendant shot Baker when Baker reached into his pocket. Officer Shaw and Assistant Chief McCarthy testified that Johnson did not mention Baker having a gun or a weapon and that he did not ask them to search the area for one. Assistant Chief McCarthy also testified that Johnson told him that he did not know the defendant had a gun |Rbefore the shooting.

Franklin Parish Deputy Michael L. Jones testified that he searched the day planner that Baker had been carrying, and no weapon was found. Deputy Jones stated that Baker had no other bags or pouches in his possession that night. Deputy Jones also testified that he searched the area between the Brass/Smith home and the apartment and found no other evidence besides a trail of blood. Deputy Jones testified that Johnson showed them where the shooting occurred in the apartment parking lot and that they found the spent shell casings to confirm it.

Saundra Lee, who was visiting a friend at the Westwood Apartments on the night of the shooting, testified that she heard Farrington Johnson say that “Jamie shot that boy!” She did not mention hearing anything about Baker having a gun in his possession.

Katrina Baker, the victim’s wife, testified that Baker took his day planner with him when he left the apartment to talk to Johnson. According to Mrs. Baker, her husband kept bills and recorded the family’s financial matters in the planner. Mrs. Baker also testified that she never knew of her husband owning a gun and that she would have known if he had.

The only evidence to corroborate Johnson’s claim that Baker had a gun at the time of the shooting came from the testimony of Jimmy Don Miller, a resident of Westwood Apartments. Miller testified that he saw a “dark-colored” gun in Baker’s right hand as he was running toward the Brass/Smith house, but that Baker no longer had it after he ran through a hedge close to the house. Miller testified that he stayed by the apartments 19and did not go into the yard of the Brass/Smith house. However, Carolyn Brass testified that she remembered Miller being in her yard after the shooting.

At the conclusion of the testimony, the trial court instructed the jury with regard to the definitions of second degree murder, manslaughter and negligent homicide. The jury was informed that manslaughter and negligent homicide were responsive verdicts to second degree murder. Thereafter, the trial court defined justifiable homicide and informed the jury that the state bore the burden of proving, beyond a reasonable doubt, that the homicide was not committed in self-defense.

After reviewing the record in its entirety, we find that a rational fact-finder could have found, beyond a reasonable doubt, that there was no gun inside Baker’s day planner, and the defendant did not act in self-defense. The state presented evidence that Baker did not own a gun, and there was conflicting defense testimony with regard to the appearance/color of Baker’s alleged gun. Further, the testimony from law enforcement officers that no one mentioned that Baker had a gun in his possession until almost two weeks after the shooting may have caused the jury to view the defense testimony as not credible. As the triers of fact, the jurors were free to accept or reject, in whole or in part, the testimony of any witness. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

Although Johnson’s testimony might suggest that the defendant may have believed that he and his brother were in danger, the issue is whether a | inreasonable person would have believed that he was in immediate danger of death or serious physical injury and that the killing was necessary to save himself or others from that danger.

In State v. Garner, supra, the defendant and the victim engaged in a fist fight. The defendant testified that the victim initiated the fight when the victim grabbed him from behind, turned him around and hit him in the mouth. The defendant, in turn, struck the victim numerous times. The victim was unconscious when the defendant left the scene and later died from his injuries. An eyewitness to the incident testified that the victim struck the defendant on his arm with a lug wrench, and the defendant hit the victim two or three times. This court, on rehearing, affirmed the defendant’s manslaughter conviction, finding that there was “little or no evidence to support a justifiable homicide defense.” Id. at 884. This court noted that even if the victim had struck the defendant with a weapon, he caused little or no injuries. Thus, the state met its burden of proving that the defendant did not reasonably believe that he was in imminent danger of losing his life or receiving great bodily harm, and the defendant’s actions were not necessary to prevent great bodily harm to himself by the victim.

In a case factually similar to the instant case, State v. Ducre, 596 So.2d 1372 (La.App. 1 Cir.1992), writ denied, 600 So.2d 637 (La.1992), the defendant and the victim had an argument in the parking lot of a bar. The defendant drove away in his vehicle, and the victim went inside the bar. The defendant returned, pulled a gun and shot the victim one time in the chest. Witnesses testified that the victim did not own a gun and was notlnknown to carry a weapon. However, one witness testified that after the shooting, he saw the victim’s former girlfriend retrieve a gun from his pocket. The court found that the victim’s actions in being the verbal aggressor and making several hand motions would not place a reasonable person in fear of death or great bodily injury.

Similarly, in this case, the defendant never mentioned to the police officers that he thought the victim was armed with a weapon, and it is clear that the jury did not believe either Johnson or Miller when they testified that Baker was carrying a gun. A reasonable fact-finder could have found that the defendant did not reasonably believe that he was in imminent danger of losing his life or receiving great bodily harm. Additionally, the jury could have found, beyond a reasonable doubt, that Baker’s action of reaching into his day planner would not have placed a reasonable person in fear of death or great bodily harm, and the defendant’s response— shooting the unarmed Baker three times— was not necessary to prevent death or great bodily harm to him or his brother. This determination was reasonably supported by the evidence, viewed in a light most favorable to the prosecution. Accordingly, we find that the state presented sufficient evidence, from which a rational fact-finder could have determined that defendant was not acting in self-defense or defense of others when he intentionally shot and killed Baker. This assignment is without merit.

Motion in Limine

The defendant argues that the trial court improperly granted the state’s motion in limine to exclude the testimony of defense expert |¶ ¡¡witnesses, who would have testified as to the effects of cocaine and alcohol. The defendant sought to use the expert testimony to explain the victim’s behavior as part of the defendant’s self-defense claim.

Both the Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to present a defense. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); State v. Van Winkle, 1994-0947 (La.6/30/95), 658 So.2d 198; State v. Tauzin, 38,436 (La.App. 2d Cir.8/18/04), 880 So.2d 157. However, this right to present evidence does not require the trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. See LSA-C.E. art. 403; State v. Mosby, 595 So.2d 1135 (La.1992).

In this case, the defense experts’ opinions were based upon the toxicology results contained within the autopsy report, which reportedly stated that Baker had alcohol and cocaine in his system at the time of his death. The defendant claims that the toxicology results should not be excluded under LSA-C.Cr.P. art. 105 as hearsay because the death of the forensic pathologist, Dr. George McCormick, should not impair his ability to present a defense. The state contends the expert testimony was properly excluded because it was based upon facts contained in the autopsy report, which is admissible only to prove death and the cause of death pursuant to LSA-C.Cr.P. art. 105.

We agree. In homicide cases, the coroner’s report shall certify the 11?,cause of death. LSA-C.Cr.P. art. 105. A coroner’s report shall be competent evidence of death and the cause thereof, but not of any other fact. Id.; State v. Green, 2002-2479 (La.6/6/03), 845 So.2d 1076; State v. Kelly, 375 So.2d 1344 (La.1979); State v. Rhodes, 29,207 (La.App. 2d Cir.1/22/97), 688 So.2d 628, writ denied, 1997-0753 (La.9/26/97), 701 So.2d 980. The coroner or one of the coroner’s deputies may testify with regard to the victim’s death or the cause thereof, even where the testifying witness did not perform the autopsy or prepare the report. State v. Rhodes, supra.

In this case, the defendant’s argument that Dr. McCormick’s death impaired his ability to present a defense is without merit. Although Dr. McCormick performed the autopsy and prepared the report, it would have been permissible for a coroner’s deputy to testify with regard to Baker’s cause of death. Even if Dr. McCormick had been alive to testify, he would have been prohibited, pursuant to LSA-C.Cr.P. art. 105, from testifying with regard to Baker’s toxicology results, since the cause of death was the injuries Baker sustained as a result of the gunshot wounds. This argument lacks merit.

The defendant also argues that evidence of an overt act by the victim justifies the introduction of the expert testimony, under LSA-C.E. art: 404(a)(2), to bolster his self-defense claim. Conversely, the state argues that the trial court properly excluded the expert testimony because evidence of the victim’s cocaine and alcohol use before death is improper character evidence under LSA-C.E. art. 404(a)(2).

|14When a defendant attempts to present evidence of a victim’s character, it must be for a relevant purpose, such as self-defense. See LSA-C.E. art. 401. Thus, character evidence that paints the victim as a bad person deserving his fate of death at the hands of the defendant is prohibited by LSA-C.E. art. 404. State v. Wade, 33,121 (La.App. 2d Cir.5/15/00), 758 So.2d 987, 996, writ denied, 2000-2160 (La.9/28/02), 797 So.2d 684.

Evidence of the dangerous character of the victim is admissible only if the accused first produces evidence that at the time of the incident, the victim made a hostile demonstration or committed an overt act against the accused of such character that would have created in the mind of a reasonable person a belief that he was in immediate danger of losing life or suffering great bodily harm. See State v. Scott, 31,379 (La.App. 2d Cir.10/28/98), 720 So.2d 415, 424, writ denied, 1999-0170 (La.5/14/99), 741 So.2d 664 (citing State v. Gantt, 616 So.2d 1300 (La.App. 2d Cir. 1993)). An “overt act” within the meaning of LSA-C.E. art. 404 is “any act of the victim which manifests in the mind of a reasonable person a present 1^intention on his part to kill or do great bodily harm.” See State v. Scott, 720 So.2d at 424 (quoting State v. Demery, 28,396 (La.App. 2d Cir.8/21/96), 679 So.2d 518).

Before being entitled to present evidence of the victim’s character, the defendant must present “appreciable evidence” of the overt act. See State v. Woodhead, 2003-1036 (La.App. 5th Cir.1/27/04), 866 So.2d 995, 1001, writ denied, 2004-0598 (La.7/2/04), 877 So.2d 144 (citing LSA-C.Cr.P. art. 404; State v. Edwards, 420 So.2d 663 (La.1982)). Once the defendant has presented appreciable evidence of the overt act, “the trial court cannot exercise its discretion to infringe on the fact-determination function of the jury by disbelieving this defense testimony and thus, deny the accused a defense permitted by law.” See State v. Woodhead, 866 So.2d at 1002 (quoting State v. Lee, 331 So.2d 455, 459 (La.1975)). Thus, the threshold inquiry is whether the defendant presented evidence of “hostile demonstration or an overt act on the part of the victim.”

In State v. Cavalier, 421 So.2d 892 (La.1982), after a brief conversation with the defendant, the victim walked toward the defendant and reached behind his back into the waistband of his pants. The defendant immediately drew a gun and shot the victim. Witnesses for the defense testified that after the shooting, the victim’s cousin removed the gun from his body. However, the state’s witnesses testified that the victim did not have a gun in his possession, and he did not own one. The Louisiana Supreme Court upheld the defendant’s second degree murder conviction, finding that the victim’s act of walking across the street and reaching behind |1fihis back did not constitute appreciable evidence of an overt hostile act that would create a reasonable belief of the victim’s intent to kill or do great bodily harm.

In State v. Woodhead, supra, the defendant gave a statement to police officers in which he claimed that he killed the victim in self-defense when the victim lunged at him with a knife. The defendant further contended “an acquaintance” had told the defendant that the victim “was of a dangerous character,” particularly when he was under the influence of alcohol or drugs. The trial court denied the defendant’s motion to introduce evidence of the victim’s dangerous character and granted the state’s motion to exclude evidence of cocaine detected in the victim’s body. The court of appeal upheld the trial court’s decision, finding that the defendant’s statement alone did not constitute appreciable evidence of an overt act, especially since it was not corroborated by other trial testimony.

Similarly, in State v. Jones, 1999-798 (La.App. 5th Cir.11/10/99), 748 So.2d 1176, writ denied, 2000-0306 (La.12/8/00), 775 So.2d 1076, the defendant testified that he was acting in self-defense when he killed the victim. The trial court denied the defendant’s request to present evidence of the victim’s prior felony convictions to show his propensity for violence. The appellate court upheld the trial court’s decision, noting that the defendant’s testimony was controverted by the testimony of the eyewitnesses to the murder, who stated that the victim did not hit the defendant until after the defendant had stabbed him several times. The court concluded that the defendant failed to carry his burden of showing that |17the victim made a hostile demonstration or committed an overt act against him.

In this case, as stated above, on the night of the shooting, both the defendant and Johnson stated that the defendant shot Baker after Baker attempted to remove something from his day planner. No gun was found in the day planner or at or near the scene of the shooting. No gun was mentioned until nearly two weeks after the shooting. Neither the defendant nor Johnson stated that he saw a gun or any other weapon in the defendant’s hand. The only acts committed by Baker were the acts of arguing with Johnson and reaching into his day planner.

We find that the defendant failed to present appreciable evidence that Baker committed an overt act that would make a reasonable person fear immediate death or serious physical injury. Accordingly, we find that the trial court did not abuse its discretion in finding that LSA-C.E. art. 404 precluded evidence of the victim’s bad character.

CONCLUSION

For the reasons set forth herein, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . LSA-R.S. 14:31 defines manslaughter, in pertinent part, as follows:
      A. Manslaughter is:
      (1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
      (2) A homicide committed, without any intent to cause death or great bodily harm.

      . LSA-C.E. art. 404 provides, in pertinent part:
      A. Character evidence generally. Evidence of a person's character or a trait of his character, such as a moral quality, is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

      (2) Character of victim, (a) Except as provided in Article 412, evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible; ...


text:
    STATE of Louisiana, Appellee v. Edwin LOTT, Appellant.
    No. 41,426-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 2006.
    James E. Beal, Jonesboro, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, John W. Montgomery, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   WILLIAMS, J.

| ¶ A Webster Parish Grand Jury returned an indictment charging the defendant, Edwin Lott, with simple rape, in violation of LSA-R.S. 14:43(A)(2). The defendant entered a plea of guilty to the charge. The district court sentenced the defendant to serve a prison term of 20 years at hard labor without benefit of parole, probation or suspension of sentence. The defendant appeals. For the reasons that follow, we affirm the defendant’s sentence.

FACTS

On January 8, 2005, a woman contacted the Minden Police Department and reported that the defendant had been witnessed engaging in anal sex with the woman’s mentally disabled brother. Two police officers went to the defendant’s home and transported him to the police station. After being advised of his rights pursuant to Miranda v. Arizona, the defendant stated to the officers that he and the victim had engaged in various sexual acts on several occasions. The defendant also admitted that he knew the victim possessed the mental capacity “of a teenager.”

The defendant was originally charged with aggravated rape. Subsequently, the grand jury returned an indictment for simple rape. The | ¡¡defendant pled guilty as charged. The district court sentenced the defendant to serve 20 years in prison at hard labor without benefit of parole, probation or suspension of sentence. The district court denied the defendant’s motion to reconsider sentence. The defendant appeals.

DISCUSSION

In his sole assignment of error, the defendant contends the sentence is excessive because he had only one prior misdemean- or conviction. The defendant also argues that he was 52 years old at the time of the offense, and a 20 year sentence “is essentially a life sentence.”

When, as here, a defendant’s motion for reconsideration urges merely that the sentence is excessive, he is relegated only to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App. 2d Cir.2/25/98), 707 So.2d 164. The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A sentence is considered excessive if it is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of | ¿justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App. 2d Cir.12/17/03), 862 So.2d 1123.

A trial court has broad discretion to impose sentences within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. Lingefelt, 38,038 (La.App. 2d Cir.1/28/04), 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.

The crime of simple rape is punishable by imprisonment with or without hard labor, without benefit of parole, probation or suspension of sentence, for not more than 25 years. LSA-R.S. 14:43(B). As stated above, the defendant herein was sentenced to serve 20 years in prison at hard labor, without benefit of parole, probation or suspension of sentence.

Prior to imposing the sentence, the district court reviewed the presentence investigation (“PSI”) report and considered as a mitigating factor that the defendant’s criminal history was limited to a misdemeanor theft conviction in 1986. The district court also recognized the defense counsel’s argument that the defendant did not contemplate, at the time of the offense, that his conduct would cause or threaten serious harm. The district court stated that the PSI report showed that the victim suffered from serious emotional and mental distress as a result of the offense, and, since the rape, he has been frequently recommitted to mental health facilities due to problems related to his memories of the offense.

Furthermore, the district court found that the defendant was in need |4of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution and that there was an undue risk that during the period of a suspended sentence or probation, the defendant would commit another crime. The district court stated that a lesser sentence would deprecate the seriousness of the crime. The court further concluded that the defendant’s conduct during the commission of the offense manifested deliberate cruelty to the victim, the defendant used his position as the victim’s friend to facilitate the commission of the offense and the defendant knew or should have known that the victim was particularly vulnerable or incapable of resisting the acts due to his disability. Finally, the district court noted that the offense resulted in significant permanent injury or economic loss to the victim and his family.

We must first recognize that the district court incorrectly stated that the defendant had originally been formally charged with aggravated rape. The defendant was initially arrested and informally charged with aggravated rape. However, the indictment shows that the defendant was formally charged with simple rape. Therefore, we are aware that the defendant did not receive the benefit of a reduction in potential exposure to. confinement through a reduced charge for this offense. However, as part of the plea agreement, the state agreed not to prosecute another charge.

Nevertheless, on this record, we do not find constitutional error. The sentence is lawful and is neither grossly disproportionate to the severity of the offense nor shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence. |fiThe defendant’s argument lacks merit.

CONCLUSION

For the foregoing reasons, the sentence is affirmed.

AFFIRMED.

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . A psychological examination revealed that the victim had a full scale IQ of 45 and the mental capacity of a child of 3-4-years of age.

      . LSA-R.S. 14:43 provides, in pertinent part: A. Simple rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed under any one or more of the following circumstances:

      (2) When the victim is incapable, through unsoundness of mind, whether temporary or permanent, of understanding the nature of the act and the offender knew or should have known of the victim's incapacity.

      B. Whoever commits the crime of simple rape shall be imprisoned, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than twenty-five years.


author: WILLIAMS, Judge.

text:
    Betty SHARP and Sherry Wyatt Brady, Plaintiff-Appellant, v. PARKVIEW CARE CENTER, INC., Defendant-Appellee. Betty Sharp and Sherry Wyatt Brady, Plaintiff-Appellant, v. Parkview Care and Rehabilitation Center, Inc. and Mark Vance Shelton, M.D., Defendant-Appellee.
    Nos. 41,341-CA, 41,342-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 2006.

      David A. Thomas, Baton Rouge, for Appellant.
    Gregory Engelsman, Alexandria, for Ap-pellee, Parkview Care Center, Inc.
    Madeline J. Lee, Alexandria, for Appel-lee, Mark Vance Shelton, M.D.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   WILLIAMS, Judge.

hThe plaintiffs, Betty Sharp and Sherry Brady, appeal judgments in favor of the defendants, Parkview Care Center, Inc. (“Parkview”) and Dr. Mark Shelton. The district court granted the defendants’ motions for summary judgment. For the following reasons, we affirm in part, reverse in part and remand for further proceedings.

FACTS

On August 23, 1998, Joel Brady was admitted to Parkview Care Center following a stroke. The right side of Brady’s body was paralyzed, including his mouth and throat, and this condition interfered with chewing and swallowing. At the time of admission, the dietician noted Brady’s diet as “soft, N.C.S. [no concentrated sweets] chop meat.” At Parkview, Dr. Mark Shelton was the physician in charge of Brady’s care until August 2001, when Dr. Julio Iglesias assumed care of Brady.

Following prostate surgery in October 1998, Brady’s diet was changed to a 1,800 calorie diabetic diet. A nutritional care plan in effect from December 1998 through November 1999 noted that Brady had a “chewing problem” and the suggested approach was to “modify texture: chopped soft” diet. In February 1999, a barium swallow test given to Brady did not show any difficulties in swallowing.

On April 16, 2002, Brady was alone in his room eating a ham sandwich when he began to choke. Brady, who was in a wheelchair, wheeled himself into the hallway and gestured for. help. A laundry room attendant saw Brady and called for assistance. Two nurses responded and tried to remove the obstruction from his airway. They performed the | ^Heimlich maneuver and CPR until emergency medical personnel arrived. A quarter-size piece of meat was removed from Brady’s throat and he was transported to the Winn Parish Medical Center, where he was pronounced dead. The death certificate of Joel Brady, the decedent, listed the causes of death as cardiorespiratory arrest, previous cerebrovascular accident, aspiration of a piece of meat and cardiac arrhythmia.

Subsequently, the plaintiffs, Betty Sharp and Sherry Brady, the adult children of decedent, filed a complaint with the Patient’s Compensation Fund against the defendants, Parkview Care Center, Inc. and Dr. Mark Shelton, alleging that the medical treatment provided deviated from the standard of care of a nursing home. The plaintiffs also filed a petition for damages in district court against Dr. Iglesias, who was not a qualified health care provider under the medical malpractice statute. The plaintiffs’ claims against Dr. Iglesias were later settled and dismissed. In January 2005, the Medical Review Panel (“MRP”) opined that the evidence did not show that either Parkview or Dr. Shelton had breached the applicable standard of care.

Thereafter, the plaintiffs filed a petition for damages against the defendants. After discovery, Parkview and Dr. Shelton filed motions for summary judgment on the grounds that plaintiffs had not presented expert opinion showing that defendants had deviated from the applicable standard of care. Defendants attached the MRP opinion and affidavits of the MRP members in support of their motions. In opposing summary judgment, plaintiffs submitted the affidavits of Dr. Robert Rush and Susan Lofton, Ph.D., a registered nurse, who opined that Parkview and Dr. Shelton had | ¡¡breached the standard of care.

After a hearing, the district court granted the defendants’ motions for summary judgment, without issuing reasons for the decision. The court rendered judgments in favor of defendants, dismissing plaintiffs’ claims. Plaintiffs appeal the judgments.

DISCUSSION

In several assignments of error, the plaintiffs contend the district court erred in granting summary judgments in favor of the defendants. The plaintiffs argue that the expert affidavits which they submitted were sufficient to create a genuine issue of material fact as to whether defendants breached the applicable standard of care.

Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Hawes v. Kilpatrick, Funeral Homes, Inc., 39,089 (La.App.2d Cir.11/17/04), 887 So.2d 711. Summary judgment may be rendered to dispose of a particular issue, theory of recovery, cause of action or defense, even though the granting of same does not dispose of the entire case. LSA-C.C.P. art. 966(E).

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on hthe matter before the court, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Thereafter, the adverse party must produce evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. LSA-C.C.P. art. 966(C)(2); Hawes, supra. In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-0066 (La.7/6/04), 880 So.2d 1.

In a medical malpractice action, the plaintiff must prove the applicable standard of care, the breach of this standard of care, and the causal connection between the breach and the resulting injury. LSA-R.S. 9:2794(A); Britt v. Taylor, 37,378 (La.App.2d Cir.8/20/03), 852 So.2d 1128; Orea v. Brannan, 30,628 (La.App.2d Cir.6/24/98), 715 So.2d 108. Generally at trial, a plaintiff must prove the applicable standard of care through expert medical testimony unless, “the physician does an obviously careless act ... from which a lay person can infer negligence.” Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228 at 1233; Strange v. Shroff, 37,353 (La.App.2d Cir.7/16/03), 850 So.2d 1077. Expert opinion |Rtestimony in the form of an affidavit or a deposition may be considered in support of or opposition to a motion for summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

In the present case, defendants submitted the MRP opinion finding that the record did not show any “pattern of swallowing disturbance” to indicate that decedent should have been on a different diet, and concluding that defendants had not breached the standard of care. Defendants also submitted the affidavits of Drs. Eric Dupree, Robert Morrison and Bruce Barton, the MRP members. Dr. Dupree stated that although the decedent initially had swallowing problems after his stroke in 1994, he was placed on a “regular 1800 calorie diabetic diet” after admission to Parkview and did not have a choking incident until his death in April 2002. Dr. Dupree found that decedent did not have any symptoms to warrant placing him on a restricted diet during the time Dr. Shelton was the treating physician.

Dr. Morrison stated that the medical evidence did not show that decedent had any swallowing difficulty on the day of his death or during the weeks leading up to the incident. Dr. Morrison opined that the choking incident occurred due to decedent’s “lack of attention” and had nothing to do with his diet.

Dr. Barton stated that the MRP opinion was based on the decedent’s previous barium swallow tests, which did not show a swallowing problem or any abnormality of the esophagus. Dr. Barton opined that the evidence did not support the assertion that Parkview failed to meet the applicable | ^standard of care.

In opposition to summary judgment, the plaintiffs submitted the affidavits and expert reports of Susan Lofton, R.N., Ph.D., and Dr. Robert Rush. In her affidavit, Dr. Lofton referenced her report, which opined that the Parkview nursing staff did not meet the applicable standard of care and that this breach caused the decedent’s death. Dr. Lofton’s report noted that she had earned a doctorate degree with a specialization in gerontological nursing. Dr. Lofton stated that in preparing the report, she had reviewed the medical records of Parkview, Dr. Shelton and Dr. Iglesias.

Dr. Robert Rush opined in his affidavit that Dr. Shelton breached the standard of care for physicians who treat nursing home patients. In his report, Dr. Rush noted his experience as operator of an acute care hospital with nursing home patients and stated that he had reviewed the medical records of decedent, the deposition of Dr. Iglesias and the MRP opinion. Dr. Rush stated that when decedent was admitted to Parkview he was placed on a chopped, soft diet with supervised dining because of his lack of control over the eating process, but this dietary restriction was omitted when decedent was placed on a diabetic diet. Dr. Rush opined that decedent should have been continued on a mechanical chopped, soft diet and that Dr. Shelton’s failure to maintain such a diet was a breach of the standard of care contributing to decedent’s death.

The exhibits submitted by the parties contain various medical records relating to the decedent’s stay at Parkview, including Dr. Shelton’s progress notes, periodic care plans and summaries, nurses’ notes and dietary progress |7notes. Parkview admission forms prepared in August 1998 show that decedent was initially placed on a “chopped, soft diet.” However, Dr. Shelton’s “standing orders,” dated January 1999 and January 2000, provide: “May alter texture of diet as tolerated.... May deviate from prescribed diet on special occasions.” Dr. Shelton’s records include a report of the February 1999 esophagus x-ray results showing that decedent “swallowed barium without difficulty.” In April 2000, Dr. Shelton noted that decedent was swallowing well and in January 2001, that decedent was “eating and drinking well.”

In the March 1999 care plan, decedent’s diet was listed as “NCS chopped soft,” and this diet continued through November 2000. However, the February 2001 care plan listed decedent’s diet as “1500 cal ADA,” and no longer referred to the restriction of chopped, soft. In the Parkview resident assessment form, dated September 4, 1998, among a list of problems in section K, the box labeled “chewing problem” is marked, but the boxes labeled “swallowing problem” and “mechanically altered” diet are not marked.

However, in the November 2000 resident assessment, the chewing problem is no longer indicated and the box labeled “none of above” is marked. Additionally, in a November 2000 dietary supplement assessment form, the decedent’s food consistency is indicated as “regular,” not mechanically altered or chopped, soft. A “Nutritional Assessment” form covering the periods of March 2001, June 2001, September 2001 and February 2002, listed decedent’s diet each time as “1500 cal ADA,” without | sany limitations as to texture, and indicated “yes” for the ability to chew and swallow in each period.

Although a nurses’ note of March 10, 2001, stated that decedent tolerated oral medications well, but with “difficulty swallowing due to CVA,” another note two days later stated that decedent took his medication without difficulty. The nurses’ notes do not contain any further references to a swallowing difficulty. Instead, the notes indicate that decedent was regularly eating breakfast, which included bacon and eggs with biscuits. As early as March 1999, the quarterly nursing assessments noted that decedent was eating his meals in his room by himself at his request. The May 2000 assessment stated that decedent “feeds self in room, appetite good, snacks frequently.” The medical records show that decedent continued to eat meals and snacks in his room through February 2002 without any reported swallowing difficulties or choking incidents.

At the time of decedent’s admission in August 1998, the dietician noted that his “diet is soft N.C.S. chop meat.” However, the October 5, 1998 entry states that his diet is “Regular NCS, chopped meats.” As of October 28, 1998, when decedent’s diet was changed to “1800 cal ADA,” no further restrictions as to food texture appear in the dietary progress notes. To the contrary, the November 17, 1999 entry stated that decedent was able to “eat all food.”

The plaintiffs contend there is a genuine issue of material fact as to whether decedent had been restricted to a chopped, soft diet at the time of his death and in July 2001, when Dr. Shelton was his treating physician. | aHowever, the medical records demonstrate that by July 2001, the decedent was no longer restricted to a chopped, soft diet as shown by the November 2000 resident assessment, which no longer indicated a chewing problem, and the February 2001 care plan, which did not restrict the texture of food in decedent’s diet.

Plaintiffs presented the opinion of Dr. Rush that Dr. Shelton breached the standard of care by relying on the results of the barium swallow and esophagus x-ray tests as reasons for not taking greater dietary precautions and by failing to maintain decedent on a “mechanical” chopped and soft diet as required because of his lack of control over the eating process. However, the evidence does not support Dr. Rush’s assertion that decedent lacked control over his eating function. The medical records show that over time decedent demonstrated an ability to eat non-soft foods, such as biscuits, bacon and various snacks, without any apparent difficulty in swallowing and’ without choking. While decedent was a resident at Parkview, the only reference to swallowing difficulty is the nurse’s note of March 10, 2001, and there is no indication of this problem two days later when the nurse noted that decedent took his medication without difficulty.

Dr. Rush opined that Dr. Shelton’s failure to maintain the decedent on a mechanical chopped soft diet caused his death. However, the record shows that Dr. Shelton was no longer involved in the decedent’s care after Dr. Iglesias became decedent’s attending physician in August 2001. Dr. Iglesias stated in his deposition that from that time forward he made the decisions regarding the treatment of decedent. Dr. Iglesias testified that |1nwhen he became attending physician, the decedent was not exhibiting any eating or swallowing difficulties and his only dietary limitation was a diabetic diet. Dr. Iglesi-as stated that there were no reports that decedent had previously choked on food.

In a medical malpractice action, the plaintiff has the burden of proving by a preponderance of evidence the existence of a causal relationship between the alleged negligent treatment and the injury sustained. Lewis v. Tulane University Hospital and Clinic, 03-0184 (La.App. 4th Cir.8/27/03), 855 So.2d 383.

The medical records show that during the time of Dr. Shelton’s treatment, the decedent did not have any choking incidents and that after August 2001, Dr. Shelton was no longer participating in decedent’s care. Dr. Rush’s report does not specify the manner in which the conduct of Dr. Shelton could have caused decedent’s subsequent choking on a piece of sandwich. Based upon the evidence presented, we must conclude that the plaintiffs have not presented factual support to carry their burden of proving that the treatment delivered by Dr. Shelton was a cause of decedent’s death. Thus, the district court did not err in granting Dr. Shelton’s motion for summary judgment.

Parkview Motion for Summary Judgment

As previously noted, the plaintiffs submitted the affidavit and report of Dr. Lof-ton in opposition to Parkview’s motion for summary judgment. In her report, Dr. Lofton explained that she evaluated the nutritional needs of decedent by applying the “nursing process methodology,” which involves In the assessment, planning and implementation of patient care and is recognized by the American Nursing Association.

Dr. Lofton stated that there were “numerous points of documentation” in the medical records indicating the decedent’s difficulty in chewing and swallowing after his stroke. Dr. Lofton opined that the gerontological nursing care standard was not met in this case because the Parkview nursing staff failed to consistently update decedent’s care plan to reflect his repeated problems with chewing and swallowing. Dr. Lofton stated that the nursing standard of care also required the Parkview staff to provide the decedent with a diet meeting his special dietary needs. Dr. Lofton opined that Parkview breached this standard by allowing decedent to eat meals without supervision and to take items from a food cart that was left unattended. Dr. Lofton concluded that this breach of care was a cause of decedent’s death.

The medical records show that decedent was admitted to Parkview because he needed assistance in performing daily activities following his stroke. The Parkview records include a medical report advising that decedent “will eat fast if not observed and instructed to eat slowly.” Despite this report, the nurses’ notes indicate that within one year of his admission, Parkview staff members allowed decedent to eat meals in his room without supervision. The records show that there was a dining hall available where Parkview residents could eat while supervised by staff.

In her report, Dr. Lofton noted that decedent was a patient with many health problems who needed close monitoring and supervision at all meal times given his partial paralysis after the stroke. Dr. Lof-ton opined that | ^because of his physical impairment, the decedent was at a “high risk” for choking and he should not have been allowed to eat meals without supervision.

In addition, the nurses’ notes indicate that decedent was previously observed waiting for the snack cart and that he frequently ate snacks when unsupervised by the nursing staff. Dr. Lofton opined that Parkview staff breached the standard of care on the date of decedent’s death by allowing him to have free access to an unattended food cart, to remove a sandwich and to eat the food in his room without supervision. Dr. Lofton concluded that this breach of the standard of care by Parkview personnel was a cause of decedent’s choking death.

Although summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Knowles v. McCright’s Pharmacy, Inc., 34,559 (La.App.2d Cir.4/4/01), 785 So.2d 101. Furthermore, on a motion for summary judgment, the district court cannot make credibility determinations or weigh conflicting evidence. Independent Fire Insurance Go., supra; Knowles, supra. In light of the factual circumstances described above, one could draw an inference that more adequate supervision by the Parkview nursing staff could have prevented decedent from eating too quickly and choking, or at least provided an opportunity for timely intervention to prevent his death.

After reviewing the record, we conclude that the expert testimony submitted by plaintiffs raised a genuine issue of material fact as to whether |13the Parkview nursing staff should have supervised decedent more closely at meal times as part of a comprehensive care plan, given his propensity to eat quickly and his continuing physical limitations. Consequently, the district court erred in granting Parkview’s motion for summary judgment.

CONCLUSION

For the foregoing reasons, the district court’s judgment granting Dr. Mark Shelton’s motion for summary judgment is affirmed; the summary judgment rendered in favor of Parkview Care Center is hereby reversed and the matter is remanded for further proceedings. Costs of this appeal are assessed to the appellee, Parkview Care Center.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.


author: EZELL, Judge.

text:
    Sarah CAPTAIN v. CITGO PETROLEUM CORPORATION.
    No. WCA 06-481.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Deanne Breaux McCauley, Rabalais, Unland & Lorio, Covington, LA, for Defendant/Appellant, Citgo Petroleum Corporation.
    Marcus P. LaCombe, The Townsley Law Firm, Lake Charles, LA, for Secondary Plaintiff/Appellant, Sarah Captain.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

| ¶ Sarah Captain and her employer, Citgo Petroleum Corporation, both appeal a judgment from the Office of Workers’ Compensation. Both have alleged errors with the workers’ compensation judge’s decision.

FACTS

On January 29, 2004, Ms. Captain was injured when the chair she was sitting in slipped out from under her and she fell to the concrete floor, hitting her neck on the chair. Due to complaints of pain in her knees, neck, and back, Citgo sent Ms. Captain to Dr. Allen Richert. MRI’s of her neck, back, and left knee were performed. There were some degenerative changes in her lower back and a herniation was observed at C5-6 with some bulging at C6-7. There were severe degenerative changes in her knee. However, the knee problems are not at issue in this case because all medical evidence indicated that the changes were caused by Ms. Captain’s morbid obesity. Ms. Captain is five-feet-two-inches tall and weighs from 300 to 330 pounds.

Dr. Richert referred Ms. Captain to an orthopedic surgeon, Dr. David Perry, who first saw Ms. Captain on February 20, 2004. Ms. Captain returned to see Dr. Perry on February 26, 2004 with her MRI’s. Dr. Perry then recommended that Ms. Captain be treated conservatively with over-the-counter medication and return to work.

On March 2, 2004, Nancy Murphy, a senior claim representative with Ace Esis who handled the claim for Citgo, wrote a letter to Ms. Captain informing her that Dr. Perry had released her to return to work as of February 27. However, on March 15, 2004, Ms. Captain was seen by a podiatrist, Dr. Mickey Peshoff, for an infected toe. He restricted her from wearing steel toe boots. Since Citgo could not accommodate this request, she continued to receive temporary total disability benefits she had been 12receiving since her accident at work. Dr. Peshoff did release her to return to work on April 13, 2004. Benefits were then discontinued.

Ms. Captain requested that Ms. Murphy allow her to see a neurosurgeon. Ms. Murphy indicated to Ms. Captain that she would have to see Dr. Perry to determine whether she needed to see a neurosurgeon. At this time, Ms. Captain hired an attorney.

On May 3, 2004, Ms. Murphy received a request from Ms. Captain to see her choice of orthopedic surgeon, Dr. Dale Bernauer. Ms. Captain saw Dr. Bernauer on June 9, 2004. At that time, her neck and back were hurting with the pain radiating down into her shoulders and arms. Dr. Ber-nauer opined that the fall caused the herniation in her neck. He offered her pain management therapy, hoping it would help her get back to gainful employment. Dr. Bernauer commented that there was nothing else he could do for her due to her morbid obesity. Dr. Bernauer continued seeing Ms. Captain emphasizing that she needs pain management therapy. He also recommended weight loss surgery.

On August 31, 2004, Ms. Captain filed a claim with the Office of Workers’ Compensation. She requested reinstatement of benefits and the authorization of pain management therapy. She also requested penalties and attorney fees.

Dr. Lynn Foret was appointed to perform an independent medical examination. Dr. Foret examined Ms. Captain on November 16, 2004. Dr. Foret’s report indicates that he also recommended pain management therapy in addition to weight loss surgery.

Prior to trial, Ms. Captain amended her claim to include a request to see a neurosurgeon and an award of penalties and attorney fees for Citgo’s failure to authorize the examination. , The case went to trial on June 3, 2005. Judgment was 1 ¡¡rendered on November 14, 2005. The workers’ compensation judge (WCJ) ordered that Ms. Captain be treated by a pain management physician of her choice. He also ordered that she be paid past-due benefits at $429.00 a week from April 13, 2004, with credit for any and all wages and sick pay earned by her subsequent to the date of the accident. Although the WCJ refused to order weight loss surgery, he did order that she be evaluated by a weight reduction specialist. Ms. Captain’s demand to see a neurosurgeon was denied. A $2,000.00 penalty was assessed for failure to institute compensation benefits timely in addition to another $2,000.00 penalty for failure to provide pain management therapy. Attorney fees were also awarded in the amount of $7,000.00. Both parties appealed this judgment, with Ms. Captain appealing the ruling on the neurosurgeon and Citgo appealing the other rulings.

CHOICE OF DOCTOR

Ms. Captain claims the trial court erred in refusing her request to be evaluated by a neurosurgeon. In oral reasons, the WCJ ruled that he did not think an evaluation by a neurosurgeon was appropriate because no doctor thought that it would help her at this point.

Louisiana Revised Statutes 23:1121(B) provides that an employee has a right to select one treating physician in any field or speciality. However, this statute must be read in conjunction with La. R.S. 23:1203(A), which requires that treatment be medically necessary in order for the employer to be responsible for the expenses. Scott v. Piccadilly Cafeteria, 97-1584 (La.App. 3 Cir. 4/1/98), 708 So.2d 1296.

Ms. Captain’s own treating orthopedic surgeon, Dr. Bernauer, did not think that she needed to see a neurosurgeon. The record is absolutely devoid of any evidence that Ms. Captain needs to see a neurosurgeon. Furthermore, there is no evidence that a neurosurgeon could help Ms. Captain at this time. Therefore, we affirm the Indecision of the WCJ that an evaluation by a neurosurgeon is not necessary.

FORFEITURE OF BENEFITS

Citgo argues on appeal that the WCJ erred in not finding that Ms. Captain had made wilful misstatements in violation of La.R.S. '23:1208, thereby forfeiting workers’ compensation benefits. In the same vein Citgo argues that Ms. Captain is not credible and, therefore, any medical opinions based on statements made by Ms. Captain to the doctors cannot be reliable.

Louisiana Revised Statutes 23:1208(A) provides: “It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” A violation of La.R.S. 23:1208 may result in forfeiture of benefits. La.R.S. 23:1208(E). Importantly, La.R.S. 23:1208 must be strictly construed because forfeiture is a harsh remedy. Whaley v. Christus St. Patrick Hosp., 04-1296 (La.App. 3 Cir. 2/2/05), 893 So.2d 915, writ denied, 05-531 (La.4/29/05), 901 So.2d 1070. Moreover, the employer bears the burden of proving an La.R.S. 23:1208 violation. Id. The question of whether an employee has forfeited his right to workers’ compensation benefits is one of fact that will not be disturbed on appeal absent manifest error. Wells v. Dunham Price, Inc., 04-209 (La.App. 3 Cir. 9/29/04), 883 So.2d 495.

Price v. Ratcliff Const. Co., 05-239, p. 4 (La.App. 3 Cir. 11/2/05), 915 So.2d 979, 982-83.

There is no doubt that Ms. Captain suffers from numerous medical problems that predated this accident. She is morbidly obese which in turn has created other problems like diabetes and sleep apnea. She has suffered from serious depression which has required several hospital admissions. She had abdominal surgery which resulted in a staph infection and required that she be on bed rest for a year.

Our review of the medical questionnaires filled out by Ms. Captain reveals that she was forthcoming with her previous problems. However, Citgo has picked out incidences when it claims she made several misstatements. For example, when asked if she had previous lower back pain before the accident, she stated that she had a |5kidney or bladder infection twenty years earlier. She was then confronted with her admittance into the hospital in 1984 for lumbar strain. Citgo has also pointed out that while Ms. Captain was in Vermilion Hospital for depression problems, she received pain medication for back, leg, wrist, and neck pain.

When asked about any previous slip and fall accidents, Ms. Captain denied that she had any. Citgo then reminded her of the time she choked, aspirated on soda, passed out, and struck her chin on concrete in 1998. As a result she broke her chin and bit through her lip. However, she had no neck or back injury from this incident.

Citgo also asked Ms. Captain if gastric bypass surgery had ever been recommended for her before, which she denied. She was then reminded that Dr. Jana Kaimal of the Sleep Disorder Center had recommended it. We find that the suggestion of gastric bypass surgery was listed as a recommendation in a letter to Ms. Captain’s referring'physician and not Ms. Captain. The actual sleep study was not performed until after this letter, at which time Ms. Captain was diagnosed with sleep apnea. Gastric bypass surgery was never mentioned again.

An inconsequential or inadvertent statement will not result in forfeiture of benefits. Scallon v. Boise Cascade Corp., 05-327 (La.App. 3 Cir. 11/2/05), 915 So.2d 1004. We find that Ms. Captain was very forthcoming with her previous problems. We do not see any wilful attempts on her part to hide information. When reminded of events, she admitted that they did occur. There is no indication that she lied to any of her doctors when seeking treatment. We find no error in the WCJ’s ruling that Ms. Captain did not violate La.R.S. 23:1208.

MEDICAL TREATMENT

Citgo appeals the WCJ’s ruling that Ms. Captain is entitled to pain management therapy. It also disagrees with the WCJ’s decision that she is entitled to an evaluation | fiby a weight reduction specialist.

Louisiana Revised Statutes 23:1203 requires the employer to furnish all necessary medical treatment. Necessary medical treatment includes palliative treatment necessary to relieve an employee of the pain she suffers as a result of her disability as well as that designed to cure her work-related injury. Scott, 708 So.2d 1296. A WCJ’s finding as to whether a particular medical treatment is necessary is factual in nature and will not be disturbed on review in the absence of manifest error or unless it is clearly wrong. Freeman v. Poulan/Weed Eater, 93-1580 (La.1/14/94), 630 So.2d 733.

Weight Reduction Evaluation

Regarding the weight reduction evaluation, Citgo argues that Ms. Captain’s morbid obesity problem preexisted her accident at work. It argues that the fact she needed to lose weight was not caused or associated in any way with the accident and, therefore, it was legal error for the WCJ to order that it be responsible for such expense.

While we agree that Ms. Captain’s morbid obesity was not caused by her accident at work, this court has held that a weight reduction program was compensable as medically necessary when it is in an effort to help relieve the pain caused by the work injury. Simmons v. State, through the Louisiana Health and Human Resources Adm., 502 So.2d 187 (La.App. 3 Cir.), writ denied, 503 So.2d 1017 (La.1987). See also Fontenot v. Citgo Petroleum Corp., 529 So.2d 69 (La.App. 3 Cir.1988).

There is no doubt that Ms. Captain has a serious weight problem which affected her health, even before this accident. She admitted she suffers from diabetes, sleep apnea, and even serious depression as a result of her weight. However, there |7was ample medical evidence that Ms. Captain needed to lose weight in order to help alleviate the pain resulting from her fall at work.

As testified to by Dr. Bernauer, the pain that Ms. Captain suffers can be long-term in somebody her size because she has extra pressure on her back. Dr. Bernauer further explained that really obese people have muscles that are very weak. This makes them more susceptible to injury from a fall because of the weakness. Once they are hurt, they are more liable to stay hurt because they are carrying all the extra weight on top of the muscles that are damaged. He explained that she would benefit from weight loss for the injury she received at work.

In his initial report, Dr. Foret agreed that Ms.' Captain would benefit from weight loss and would not improve anymore until she loses weight. He explained that it would be almost impossible to get her to return to work because of her size and what has happened to her back and neck.

As previously stated, Ms. Captain had been hospitalized for severe depression problems before the accident. The doctors recognized that Ms. Captain’s psychological problems could affect her ability to lose weight.

As stated by the WCJ, the evidence is clear that Ms. Captain needs to lose weight if any other treatment is going to be successful in alleviating her work-related problems. He recognized that there may be problems with the success of Ms. Captain losing weight and that the proper approach to take was not clear at this time. We find no error in the WCJ’s ruling that Ms. Captain is entitled to be evaluated by a weight reduction specialist.

Pain Management

Citgo also assigns as error the WCJ’s ruling that Ms. Captain was entitled to pain management therapy. It claims that Ms. Captain failed to prove that pain | ¡.management therapy was medically necessary.

■ Dr. Bernauer observed that the MRI revealed a central disk herniation at C5-6, causing some massive effect on the spinal cord. He explained that this condition could be debilitating and painful. He has been adamant that Ms. Captain would benefit from pain management therapy since he first saw her. Dr. Bernauer explained that pain management therapy was the best way to try and get her back to some type of gainful employment. He further stated that had Ms. Captain received pain management therapy for the past year, her situation would be a lot better.

Even Dr. Foret recommended pain management therapy when he first saw her in November 2004. He stated that it would help her manage the chronic pain. He even continued to advocate pain management therapy when his deposition was taken, explaining that she would benefit from it and needed it to help control her medications. We find no error in the WCJ’s decision that Ms. Captain is entitled to pain management therapy.

TEMPORARY TOTAL DISABILITY BENEFITS

Citgo claims that Ms. Captain is not entitled to temporary total disability (TTD) benefits beyond three months after the accident. It argues that Ms. Captain’s inability to return to work is caused by her depression which has nothing to do with any neck or back injury.

In order for a claimant in a workers’ compensation case to receive benefits for temporary total disability, he must prove by clear and convincing evidence that he is physically unable to engage in any employment or self-employment due to his injury. Veazie v. Gilchrist Const. Co., 04-118 (La.App. 3 Cir. 6/2/04), 878 So.2d 742, writ denied, 04-1692 (La.10/8/04), 883 So.2d 1018. In order for a claimant to establish by clear and convincing evidence that he is unable to engage in any type of employment, he must introduce objective medical evidence. Ratliff v. Brice Bldg. Co., 03-624 (La.App. 5 Cir. 11/12/03), 861 So.2d 613. Workers’ compensation laws are construed liberally in favor of the claimant. However, the claimant carries the burden of proving by a preponderance of the evidence that the injury caused his ^[¿disability. Id.

Lebert v. McNeese State University, 05-856, p. 5 (La.App. 3 Cir. 2/1/06), 932 So.2d 678, 683.

Dr. Perry’s reports indicate that he always thought Ms. Captain could go back to work and only needed over-the-counter medications. While he noted that the MRI did not reveal a surgical lesion in the cervical spine, he did not comment on the herniation. Dr. Bernauer agreed that no surgery was warranted at this time.

However, it was Dr. Bernauer’s clear opinion that Ms. Captain cannot return to work due to the amount of pain she is suffering, even though her job at Citgo was considered sedentary. He did not find that she was exaggerating her symptoms. As testified to by Dr. Bernauer, a herniated disk can be debilitating and painful.

Dr. Foret’s initial report after he saw Ms. Captain states that she could not work because her work restrictions were too many to list. It was his opinion that she could not go back to work until her complaints of pain in her neck and back decreased. In his deposition in February 2005, Dr. Foret then stated that there was no reason she could not go back to work. In his opinion her neck and back could go back to work but psychologically she could not. However, we observe that Dr. Foret had not examined Ms. Captain since the November visit. At the time of his initial report, a few days after examining Ms. Captain, Dr. Foret stated, “I think it is going to be almost impossible to get her to return to work because of her size and because of what has happened to the back and neck on big women like this who fall and have muscular strains to their back area....”

The WCJ obviously did not give much credit to Dr. Perry’s opinion when he stated that he “would not characterize Dr. Perry’s view of Ms. Captain’s complaints as dismissive, but the term is not completely inappropriate.” We find no error in the ImWCJ’s conclusion that Ms. Captain is entitled to TTD benefits.

PENALTIES AND ATTORNEY FEES

Citgo finally argues that the WCJ erred in awarding penalties and attorney fees. The WCJ awarded a $2,000.00 penalty for failing to institute compensation benefits timely and another $2,000.00 penalty for failing to provide pain management therapy. Attorney fees in the amount of $7,000.00 were also awarded.

The determination of whether an employer should be cast with penalties and attorney fees in a workers’ compensation case is essentially a question of fact. Reed v. Abshire, 05-744 (La.App. 3 Cir. 2/1/06), 921 So.2d 1224. The “failure to authorize treatment is a failure to furnish compensation benefits warranting the imposition of penalties and attorney fees except when the claim is reasonably controverted.” Id. at 1226 (citing Authement v. Shappert Eng’g., 02-1631 (La.2/25/03), 840 So.2d 1181).

We find that Citgo chose to rely solely on the opinion of its treating physician, Dr. Perry, in choosing not to authorize pain management therapy and in discontinuing Ms. Captain’s benefits. As we have previously explained, it was clear that Ms. Captain needed pain management therapy. Until her pain is controlled, she cannot go back to work. We find no error in the awards of penalties and attorney fees made by the WCJ.

In her own appeal, Ms. Captain has asked for an increase in attorney fees necessitated by the work performed on appeal. We find an additional award of $1,500 is appropriate for work performed in answering the issues raised by Citgo in its appeal.

For these reasons, judgment of the Office of Workers’ Compensation is affirmed as amended to include an additional award of attorney fees in the amount of $1,500.00. Costs of this appeal are divided with five-sixths of the cost to be paid by |n Citgo and one-sixth of the cost to be paid by Sarah Captain.

AFFIRMED AS AMENDED.