author: WILLIAMS, J.

text:
    Susan Renee MUEY, Plaintiff-Appellee, v. Berry M. CHANDLER, M.D. and Medical Practice Associates, L.C. D/B/A After Hours Clinic, Defendant-Appellant.
    No. 41,942-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.
    Karl J. Koch, Baton Rouge, for Appellant.
    Michael L. Dubos, Monroe, for Appellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   WILLIAMS, J.

| defendant, Berry M. Chandler, M.D., appeals a judgment of the trial court finding him liable to plaintiff, Susan Renee Muey, for offensive, non-consensual touching and awarding $7,500 in damages. For the following reasons, we affirm the trial court’s judgment.

FACTS

Defendant operated After Hours Urgent Care Clinic (“the clinic”), a walk-in medical clinic, in West Monroe, Louisiana. Plaintiffs two school-aged sons had been examined by defendant at the clinic on various occasions. In November or December of 2000, plaintiff visited the clinic to request a medical excuse for one of her sons. Defendant led plaintiff to his- office where he kissed her and placed her hand on his erect penis without her consent.

On January 30, 2001, plaintiff reported the incident to the police after seeing a news report of defendant being arrested for similar conduct with other female patients. Plaintiffs allegations led to additional criminal charges being filed against defendant.

Plaintiff filed the instant civil suit, alleging the incident with defendant caused her past, present and future pain and suffering, mental anguish, distress, • embarrassment and worry. Following a bench trial, the trial court ruled in favor of plaintiff stating:

The Court believes plaintiff made a casé in violating trust she placed in him as a member of the health care |2profession. That he violated her physically by kissing and placing her hand on his erect penis. He also violated her emotionally in that by her own testimony, she has had lack of sleep, lack of concentration, embarrassment, and emotional distress. '

The trial court awarded plaintiff $7,500 in damages, plus court costs. This appeal followed.

DISCUSSION

Defendant contends the trial court erred in finding him liable to plaintiff for damages. According to defendant, the trial court based its judgment solely upon plaintiffs testimony, which was not credible, while ignoring evidence submitted by the defense.

In a fact-intensive case, the appellate standard of review is the manifest error/clearly wrong standard. When findings of fact are based on determinations regarding the credibility of witnesses, the manifest error/clearly wrong standard demands great deference to the trier of fact’s findings. Rosell v. ESCO, 549 So.2d 840 (La.1989); Crawford v. Ryan’s Family Steak Houses, Inc., 31,911 (La.App.2d Cir.5/5/99), 741 So.2d 96; Tanner v. Brookshire Grocery Co., 29,276 (La.App.2d Cir.4/2/97), 691 So.2d 871.

In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Cosby v. Holcomb Trucking, Inc., 2005-0470 (La.9/6/06), 942 So.2d 471; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Munro v. Carstensen, 41,-714 (La.App.2d Cir.12/20/06), 945 So.2d 961. The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Id. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, supra. But where such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id.

In the instant case, plaintiff testified that she entered the clinic and explained the reason for her visit to the receptionist. While she was speaking to the receptionist, defendant exited an examination room and advised plaintiff that 'he would need to speak to her privately before providing her with the medical excuse for her son. Plaintiff waited in the waiting area until defendant called her to his office. Once plaintiff and defendant entered his office, defendant closed the door and told her he had been attracted to her for some time and wanted to get to know her more intimately. Plaintiff informed defendant that she was married, and defendant responded, “So am I. Nobody has to know.” Defendant then |4asked her if she could come back to the clinic later so they could “work something out.” Defendant informed her that he had a bed in one of the back rooms because he lived at the clinic. When plaintiff asked once more for the medical excuse, defendant grabbed her and kissed her. Plaintiff pushed defendant away, and he grabbed her arm and placed her hand on his erect penis, stating, “See what you do to me.” Plaintiff pulled free from defendant’s grasp and fled the premises.

Plaintiffs friend, Kristen Coon, testified that plaintiff called her from her cellular phone soon after she left defendant’s office. Plaintiff was crying and “very upset” and could not speak coherently. Once she was able to speak, plaintiff told Ms. Coon that she had just left defendant’s office and defendant had “grabbed her and kissed her and put her hand on his genitals.”

Judy London, defendant’s former nurse, also testified during the trial. Ms. London stated that on a prior occasion, defendant had asked her whether plaintiff was married and, if so, “if she messed around.”

Amy Day, one of the women who initiated criminal charges against defendant, also testified during the trial. She stated that she visited defendant’s clinic in September or October of 2000 for treatment of an ear infection. She stated that defendant began to make “flirtatious” comments, which she ignored. While listening to her heart with a stethoscope, defendant placed his hand inside of her bra and told her to unhook her bra so he could examine a rash on her neck and upper chest area. When she complied, defendant fondled her breasts. She allowed defendant to | ^administer an injection in her hip, and he positioned her on a stool and positioned himself behind her, stating, “That looks good.” Ms. Day pulled her pants down to receive the injection, but defendant told her it was necessary to pull her pants down further than her hip area. He attempted to pull her pants further down, but she kept pulling them back up. After receiving the injection, Ms. Day left the examination room, and defendant followed her to her vehicle telling her in a flirtatious manner, “Come back and see me.”

Defendant testified that plaintiff visited his medical clinic on the day in question to receive a false medical excuse because her son was in danger of failing one of his classes due to excessive tardiness. Defendant corroborated plaintiffs testimony that their initial conversation took place in the waiting area of the clinic. However, defendant denied inviting plaintiff to his office. He testified that when he proceeded to his office to review her son’s medical records, plaintiff followed him uninvited. After reviewing the chart, defendant realized the child had not visited the clinic in several months. When he told plaintiff it was improper to give false medical excuses, plaintiff leaned over toward him in a “coy” and “flirtatious” manner. When he ignored her attempt to flirt with him, plaintiff became angry and demanded the excuse. He told her, “Get the hell out of the office and do a better job of raising your kid.” Plaintiff angrily left the clinic.

Defendant denied telling plaintiff he was attracted to her and he denied grabbing her or kissing her. Defendant also denied asking Ms. | fiLondon about plaintiffs marital status and whether plaintiff “messed around.” Defendant further denied behaving inappropriately with Ms. Day. On cross-examination, defendant admitted that in the initial encounter with plaintiff in the waiting area of the clinic, he asked plaintiff whether or not she had inquired about him at a party.

Kevin Albritton testified that he and his son were at the clinic on the day in question. Mr. Albritton stated that he heard “loud talking” and a door slamming, and soon thereafter, defendant entered the examination room where he and his son were waiting. Defendant told Mr. Albritton that he was “kind of shook up” because one of his female patients had requested a two-week medical excuse for her son. Defendant described the request as “outrageous” and told Mr. Albritton that the woman was dissatisfied when he refused to comply with her request. On cross-examination, Mr. Albritton admitted that he did not see the person defendant had been talking to and did not hear the contents of the conversation between defendant and the other person.

In an effort to bring plaintiffs credibility into question, defendant introduced plaintiffs medical records into evidence and cross-examined her with regard to the contents of the records. Plaintiff admitted that she was hospitalized in the psychiatric unit at North Monroe Hospital on June 28-29, 2001 for anxiety and depression. She informed the hospital staff that her symptoms were associated with marital conflicts, and she did not mention the incident with defendant to health care professionals during her hospitalization. Plaintiff testified that the incident with defendant [ 7“compounded” her marital difficulties.

Plaintiff was also hospitalized in the psychiatric unit at Gulf Coast Medical Center in Biloxi, Mississippi on July 4-5, 2001 following a suicide attempt. She told the hospital personnel that she took “some pills” after an argument with her husband because she was “tired of being manipulated” by her husband. Plaintiff did not mention the incident with defendant during her hospitalization. She testified that she did not want “everyone in the world” to know about the incident.

Defendant also introduced into evidence records from Dr. J. Dean Stockstill, plaintiffs primary care physician. Dr. Stocks-till had previously prescribed plaintiff medication for depression and anxiety. After her discharge from the hospital in Biloxi, plaintiff was examined by Dr. Stockstill, and she did not mention the suicide attempt to him. During her testimony at trial, plaintiff stated she did not mention the suicide attempt to Dr. Stocks-till because there was “no point in bringing it up.”

Defendant also submitted the transcript of plaintiffs testimony during the preliminary examination in defendant’s criminal proceedings, pointing out that during her testimony, plaintiff did not mention her suicide attempt; nor did she mention any prior molestation and/or abuse by family members. However, the transcript reveals that plaintiff was not questioned about the suicide attempt or prior incidents of molestation and/or sexual assault during the preliminary examination.

Defendant further cross-examined plaintiff with regard to past incidents of “bizarre conduct.” Soon before her psychiatric hospitalization |sat North Monroe Hospital, plaintiff became angry with her husband and used a brick to break the windows of a bar she and her husband owned. Plaintiff also threw a beverage at her husband’s business partner and had his car towed away. Ken Schlessman, a former Ouachita Parish Sheriffs Deputy, testified that on April 8, 1997, plaintiff reported that a member of a work crew working at her house had attempted to crawl through her window. No arrest was made because there was no evidence that the worker had actually gained entry into the house.

After hearing all of the evidence and observing the demeanor of the witnesses, the trial court concluded that the offensive touching took place. We have reviewed the record and testimony and could find no indication the trial court was clearly wrong. Plaintiff testified defendant grabbed her, kissed her and placed her hand on his penis without her consent. Defendant denied the allegations, and there were no other witnesses to the incident. It is clear from the judgment and the reasons therefor that the trial court found plaintiffs testimony to be credible. For these reasons, we find the trial court’s determination that defendant touched plaintiff in an offensive manner was reasonable and will not be disturbed by this court.

CONCLUSION

For the reasons set forth above, the trial court’s judgment is hereby affirmed. Costs of this appeal are assessed to defendant, Berry M. Chandler, M.D.

AFFIRMED.

      . After the criminal trial ended in a mistrial, defendant entered a best interest plea, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Defendant pled guilty to four counts of misdemean- or battery and one count of misdemeanor possession of a controlled substance. He was 'sentenced to probation and was required to surrender his license to practice medicine.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Donnie TAYLOR, Appellant.
    No. 41,898-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.

      Peggy J. Sullivan, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Dale Montgomery, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   GASKINS, J.

| jThe defendant, Donnie Taylor, entered a plea of guilty to attempted aggravated rape, a violation of La. R.S. 14:42 and 14:27. He was sentenced to serve 50 years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant was granted an out-of-time appeal in which he argues that his sentence is excessive. For the following reasons, we affirm the conviction and sentence.

FACTS

The defendant was originally charged with aggravated rape of a six-year-old child. The offense allegedly occurred between May 1 and June 15, 2003. Pursuant to a guilty plea agreement, the defendant was allowed to enter a plea of guilty to the reduced charge of attempted aggravated rape. On February 27, 2006, the defendant was sentenced to serve 50 years at hard labor, without benefit of parole, probation, or suspension of sentence, with credit for time served.

On April 7, 2006, the defendant filed a motion for reconsideration of sentence, arguing that the sentence should be reduced. The motion was denied by the trial court. In June 2006, the defendant applied for an out-of-time appeal which was granted by the trial court. On appeal, the defendant argues that the court imposed an unduly harsh and excessive sentence and failed to sufficiently consider the guidelines of La. C. Cr. P. art. 894.1 in fashioning a sentence.

^DISCUSSION

When, as in the instant case, a defendant’s motion for reconsideration urges simply that his sentence is excessive, he is relegated to a claim of constitutional exces-siveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Jacobs, 41,663 (La.App.2d Cir.12/13/06), 945 So.2d 897; State v. Smith, 41,544 (La.App.2d Cir. 11/1/06), 942 So.2d 618. Constitutional review turns upon whether the sentence 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. Smith, supra. As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Jacobs, supra; State v. Smith, supra.

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the district court has wide discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, we will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345.

In sentencing the defendant, the trial court considered a presentence investigation report (PSI). The court also heard a statement by the defendant, read by his lawyer, in which the defendant expressed remorse for |sthe offense. In sentencing the defendant, the court noted that the present offense was the defendant’s second conviction for attempted aggravated rape. In 1993, he was convicted of a similar offense and was paroled in 1997. The court noted that the defendant was a danger to society and was a sexual predator of small children. The court found that the defendant was in need of correctional treatment most effectively provided by commitment to an institution and that a lesser sentence than that actually imposed would deprecate the seriousness of the offense. The court found that the victim was particularly vulnerable due to extreme youth and that the child had suffered severe emotional problems as a result of this offense. The court found that these circumstances were likely to recur.

Under the aggravated rape statute, La. R.S. 14:42, as originally charged, the defendant faced a mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Further, due to the youth of the victim, the state could have chosen to seek the death penalty. By pleading guilty to the lesser offense of attempted aggravated rape, the defendant’s maximum sentence exposure was reduced to 50 years at hard labor without benefit of parole, probation, or suspension of sentence. Even though the maximum sentence was imposed here, we do not find constitutional error. Due to the youth of the victim and the benefit afforded the defendant by virtue of his plea agreement and, in light of his prior conviction for an almost identical crime, the sentence is lawful. It is neither grossly disproportionate to the severity of the offense, nor is it shocking to our sense of justice. It is tailored to the offender and the | ¿offense. There is no showing of an abuse of the trial court’s discretion in the imposition of this sentence.

CONCLUSION

For the reasons set forth above, the conviction and sentence of the defendant, Donnie Taylor, are affirmed.

AFFIRMED.

      . The motion for reconsideration of sentence was denied by the trial court even though it was not filed within the 30-day time limit set forth in La. C. Cr. P. art. 881.1.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Jeffery Sanchez SMITH, Appellant.
    No. 41,829-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.
    Rehearing Denied May 3, 2007.

      Louisiana Appellate Project by Edward K. Bauman, Lake Charles, Indigent Defender Board by Mary Louise Jackson, New Orleans, for Appellant.
    Jeffery Sanchez Smith, Pro Se.
    J. Schuyler Marvin, District Attorney, Mike Craig, Assistant District Attorney, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   MOORE, J.

| defendant was charged by bill of information with Aggravated Criminal Damage to Property in violation of La. R.S. 14:55, an offense punishable by a fine up to ten thousand dollars or imprisonment at hard labor for not less than one year nor more than fifteen years, or both. The bill charged that on or about February 15, 2005, the defendant “did intentionally com-mitt [sic] aggravated criminal damage to a door, wall, and various parts of the kitchen” belonging to the victim, “where it was foreseeable that human life might be in danger.”

Pursuant to a guilty plea and sentence agreement, defendant pled guilty to the charge of “Felony Criminal Property Damage” and was sentenced to serve three years at hard labor, suspended and placed on three years probation with conditions including a $55 supervision fee; a fine of $500 and costs or serve 30 days default time; complete an anger management course; and serve time already served in jail. Part of the plea agreement required that the defendant make restitution to the Benton Place Apartments, which he made prior to entering his guilty plea. The state also agreed that it would not file an habitual offender bill and dismiss two other charges pending against the defendant— aggravated battery and aggravated burglary.

Defendant now appeals, and he alleges that his conviction and sentence are invalid because the property damage amounted to only $275, which is below the threshold amount for felony criminal damage to property. La. R.S. 14:56(B). He contends that legally he could not plead guilty to a crime he could not have committed. For the following reasons, | gwe affirm the conviction and sentence.

Facts

On May 1, 2006, the defendant withdrew his previous plea of “not guilty” to aggravated criminal damage to property and entered a plea of guilty to “felony” criminal damage to property. The guilty plea and sentencing transcript shows that the defendant was properly advised of his Boykin rights, and he waived those rights in order to plead guilty. The transcript establishes that the court ask the defendant if his attorney informed him of the maximum and minimum sentence associated with the charge, and he answered “yes, sir.” The district attorney read the factual basis of the offense in which he stated that the defendant “did enter the apartment where Shannon Erika Scully resided, where he kicked in the door causing damage to the apartment at Benton Place Apartments” ... and that “the damage has exceeded the amount required for this to be felony criminal property damage.” The defendant affirmatively acknowledged that the district attorney’s statement was correct. Defense counsel also indicated that he believed the defendant understood his rights and waived those rights, after which, the court found that the defendant knowingly and voluntarily waived his rights. The defendant pled guilty to the charge of felony criminal property damage and the court accepted the plea.

The transcript discloses that prior to the Boykin colloquy, the district attorney placed in the record a receipt indicating that the defendant paid $275 to the agent for the Benton apartments for the damages he caused to the property in question and the record shows that the court understood this |sto be a restitution of the damages to the property. After the court accepted the guilty plea and sentenced the defendant, the court stated that it “did not mention anything about restitution because based on the evidence provided, restitution has already been taken care of.” The court also stated that it understood that the other two charges were being nolle prossed or dismissed and defense counsel added her understanding that there would be no multi-bill. Finally, the assistant district attorney placed in the record two letters from the two alleged victims of these crimes wherein they stated that they did not wish to further pursue the charges against the defendant.

After his conviction and sentencing, defendant filed a pro se motion for an appeal alleging his trial counsel made an error by not advising the court that the restitution was under $500, and that the district attorney had knowledge that the restitution was under $500, but did not so state in his summary of the facts, and that the Bill of Particulars showed that the damages were under $500. Appellate counsel was appointed through the Louisiana Appellate Project. Appellate counsel subsequently filed an Anders brief in conformity with the procedures outlined in State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, and State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990) in which he stated that after a conscientious and thorough review of the record, he could find no non-frivolous issues to raise on appeal. In conjunction with this brief, appellate counsel moved to withdraw as counsel of record for the defendant. We denied the motion on grounds that the defendant’s pro se motion set forth arguable issues and ordered counsel to brief those issues.

|4Discussion

We observe initially that the appellate record in this case leaves much to be desired. The state did not bother to favor this court with a brief of the issues; instead, the state submitted only an unhelpful letter, concurring with the Anders brief submitted by appellate defense counsel. There is no record of the arrest or the police report indicating the initial charges at defendant’s arrest by which we may evaluate the factual basis of the claims of the defendant. The defendant was apparently arrested for or charged with aggravated battery and aggravated burglary in addition to aggravated criminal damage to property. However, there is nothing in the record that establishes a factual basis for these questionable charges by the district attorney’s office. We are also disturbed by our observation that possibly neither the district court, the district attorney, nor defense counsel were aware that there are two grades of felony criminal property damage, and, by virtue of the 3-year hard labor sentence, defendant’s plea of guilty must have been to the highest grade of the offense, that is, criminal property damage over $50,000, notwithstanding their awareness that restitution amounted to only $275.

Turning to defendant’s pro se claims, we note at the outset that the record before this court does not contain the Bill of Particulars upon which the defendant based his claim that this bill establishes that the damages were specified to be under $500. Defendant further alleges that both his counsel and the district attorney were aware that the damages were under $500, and his counsel did not bring the matter to the court’s attention, nor did the | ^district attorney state it in the summary of facts. The record establishes that the district attorney and court were aware that the damages to the Benton Place apartment were $275.

Any claim by defendant based upon an allegation of ineffective assistance of counsel should be raised by application for post conviction relief. La. C. Cr. P. art. 924, et seq.

Although the district attorney placed into the record a receipt from Benton Place Apartments for restitution by the defendant in the amount of $275, in reciting the factual basis of the guilty plea, he stated that the defendant “did enter the apartment where Shannon Erika Scully resided, where he kicked in the door causing damage to the apartment at Benton Place Apartments” ... and that “the damage has exceeded the amount required for this to be felony criminal property damage.” The defendant acknowledged to the court that this was an accurate statement of the facts.

The crime of simple criminal damage to property is a graded offense. La. R.S. 14:56. When the damage is less than $500, the maximum possible term of imprisonment is six months, rendering the crime a misdemeanor. There are two felony grades of the offense. When the damage is equal to or greater than $500 but less than $50,000, the maximum possible term of imprisonment, with or without hard labor, is two years. However, if the damage is greater than $50,000, the sentencing range is imprisonment with or without hard labor for not less than one year nor more than ten years.

Since the defendant received a hard labor sentence of three years pursuant to his guilty plea to “felony criminal property damage,” he must | fihave pled guilty to the highest felony grade of the offense, that is, criminal property damage greater than $50,000. The guilty plea and sentencing transcript indicates that court asked the defendant if he had been informed by his attorney of the sentencing range of the crime associated with his guilty plea, and the defendant answered affirmatively. This acknowledgment is sufficient under our jurisprudence to meet the due process requirements that a guilty plea be entered “knowingly and voluntarily.” State v. Whitaker, 543 So.2d 1073 (La.App. 2 Cir.1989). We conclude then that the defendant voluntarily entered the guilty plea to the felony grade offense even though he knew he made $275 restitution for the damages to the door. Additionally, the transcript shows that part of the plea bargain included an agreement by the district attorney to nolle pros the additional charges of aggravated battery and aggravated burglary and the defendant would not be multi-billed.

By judicially-created principle, a defendant normally waives any non-jurisdictional error by his plea of guilty. Under both state and federal jurisprudence, an unqualified plea of guilty waives all non-jurisdictional defects occurring prior thereto, and precludes review thereof either by appeal or by post-conviction remedy. State v. Crosby, 338 So.2d 584 (La.1976). State v. Hardy, 39,233 (La.App. 2 Cir. 01/26/05), 892 So.2d 710, 712; State v. Buggs, 567 So.2d 744, 747 (La.App. 2 Cir.1990). However, even an unqualified plea of guilty does not preclude review of what are regarded as ‘jurisdictional’ defects— those which, even conceding the accused’s factual guilt, do not permit his conviction of the offense charged, |7State v. Crosby, supra at 588. The question in this case is whether a trial court can accept a knowingly and voluntarily tendered guilty plea pursuant to a plea and sentence agreement where the factual basis of the plea is contradicted by the record.

This case is somewhat analogous to State v. Brooks, 38,963 (La.App. 2d Cir.9/22/04), 882 So.2d 724. In Brooks, Count 2 of the original bill charged the defendant with possession of stolen things valued in excess of $500. The stolen items included guns and jewelry. The district attorney later amended Count 2 by dropping the firearms from the list of items stolen. The defendant agreed to plead guilty to possession of stolen things, which now .consisted of only the jewelry and other things. At the guilty plea hearing, defense counsel told that the sentencing range for the charge was “zero to ten” years imprisonment, which is the felony grade of the offense indicating the value of the stolen things exceeded $500. La. R.S. 14:69(B)(1). During the plea colloquy, defendant indicated that he understood the charges and the sentencing range of the offenses to which he was pleading guilty. The state gave a brief summary of the factual basis of the pleas, and the defendant agreed that the facts were substantially correct. The defendant also affirmatively indicated that he understood his rights and desired to freely and voluntarily waive those rights for the purpose of entering the guilty pleas. The defendant then entered a guilty plea to this charge and two other charges without objection or any protestation of innocence. The court accepted the guilty pleas and subsequently sentenced the defendant to the maximum sentence for each charge and ordered that thelssentences run concurrently.

After the conviction and sentence, defendant appealed, alleging that the actual value of the stolen jewelry was unknown and potentially under $500, in which case the maximum penalty would be either 2 years, or alternatively, six months in jail if the value was under $300. Defendant argued that when the district attorney dropped the firearms from the list of stolen things included as part of Count 2, the court was put on notice of the possibility that he might be innocent of the offense — that is, that the value of the stolen things was below the felony grade of $500.

A panel of this court rejected the defendant’s argument. It reiterated the general rule is that “when a guilty plea is voluntary, there is no necessity to ascertain a factual basis for the plea unless the accused protests his innocence or for some other reason the trial court is put on notice that there is a need for such an inquiry.” Brooks, supra at 730. Only in that event does due process require judicial factual finding to support the plea. Id. Since the defendant did not protest his innocence while pleading guilty, the court was not required to establish a factual basis for the plea, as is called for in order to accept an Alford plea. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The question, then, was whether the court was “put on notice” that there was a need for further inquiry into the facts when the district attorney dropped the firearms from the list of stolen things in Count 2.

The panel in Brooks stated that since the guilty plea was not an Alford plea, the court was not required to make a judicial finding of a significant | factual basis for defendant’s plea. Secondly, the court held that it was illogical to argue that the factual basis set forth by the state qualified as “some other reason the court is put on notice that there is a need for such an inquiry” into the facts. The allegedly deficient factual basis set forth by the state for Count 2 was substantially correct and not so deficient to qualify as “some other reason the trial court is put on notice” that there is a need for inquiry into the factual basis of the plea. It noted that the defendant agreed that the facts set forth were substantially correct and made no contemporaneous objection.

In the case sub judice, the defendant neither objected to the factual basis set forth by the district attorney nor protested his innocence while entering the guilty plea. As in Brooks, supra, defendant’s plea is also not an Alford plea. The guilty plea transcript establishes that defendant’s guilty plea to felony criminal property damage was free and voluntary, that defendant waived his rights and did not reserve or object to anything in the proceedings. Defendant affirmatively told the court that he was aware of the sentencing range for the offense through his attorney. Accordingly, there was no necessity to ascertain a factual basis for the plea, even though the defendant agreed that the factual summary by the district attorney, including a statement that the amount exceeded the amount required for the offense to be a felony, was substantially correct. Although the court was apparently aware that there had been restitution in the amount of $275, we hold that it does not qualify as a reason to “put the court on notice” to further investigate or further establish a factual basis for the guilty plea |inwhere the record otherwise establishes that the guilty plea to the felony grade was knowingly and voluntarily entered, the sentence was agreed to, and the defendant agreed to the facts set forth by the district attorney that damage he caused was a felony grade amount without objection nor protestation of innocence.

For these reasons, we affirm the conviction and sentence of the defendant.

AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

GASKINS and LOLLEY, JJ., would grant a rehearing.


text:
    Dana LITTLETON, Plaintiff-Appellant v. RICHARDSON MEDICAL CENTER, Defendant-Appellee.
    No. 42,082-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.

      Street & Street by C. Daniel Street, Monroe, for Appellant.
    Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P. by Donald J. Anzelmo, Monroe, for Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   GASKINS, J.

h The claimant, Dana Littleton, appeals from a judgment dismissing her workers’ compensation claim against her employer, Richardson Medical Center. We affirm.

FACTS

The claimant was employed as a registered nurse at Richardson Medical Center (RMC) in Rayville, Louisiana. According to the form initiating her claim with the Office of Workers’ Compensation (OWC), the claimant was at work on April 11, 2004, when she struck her buttock/hip on a handrail in the hospital. She alleged that this incident caused her to suffer from reflex sympathetic dystrophy syndrome (RSD), a painful chronic neurological condition described in the record as a malfunction of that portion of the nervous system that, among other things, regulates blood flow. The claimant asserts that pain caused by her RSD prevents her from working.

RMC refused to pay the claimant workers’ compensation benefits because of what the hospital considered insufficient evidence that she suffered an accident at work that could have caused her to suffer RSD. The matter went to trial before the OWC judge on May 10, 2006. After hearing the witnesses and considering the medical evidence, the. OWC judge concluded that the claimant failed to prove that any injury she suffered at work caused her disability.

The claimant now appeals, urging that the trial court’s finding was manifestly erroneous.

^TESTIMONY

Injury

The claimant testified that on April 11, 2004, she was exiting the nurse’s station to take medication to a patient when she almost collided with a patient. To avoid contact with the patient, she turned and hit a handrail on the wall. The handrail struck her right buttock. She testified that she felt a sharp pain go down her leg and that she was unable to move for a few minutes.

A nurse’s aide, Lucy Collins, testified that she saw the claimant bump into a handrail right outside the door to the nurse’s station. While Ms. Collins finally concluded that a patient was probably with her at the time, she indicated that the claimant could not have been trying to avoid bumping into them. She also testified that the claimant struck her left side, not the right.

The claimant testified that since the accident occurred on Easter Sunday, she had to wait until the following day to inform her supervisor, Linda Blaine, about the incident and that Rosemary Johnson was present when she told Ms. Blaine. However, Ms. Johnson testified that she was not present during any such conversation between the claimant and Ms. Blaine and that she knew nothing about the claimant bumping into a handrail. She recalled the claimant complaining about her knee, but she believed that this predated when the claimant struck the handrail. Also, the claimant did not|sfill out a written incident report or go to the emergency room to be examined after the incident as required by hospital policy.

Medical evidence

The claimant testified that she continued working after her injury, but she developed pain in her right knee. She also went to Disney World on vacation with her family at the end of May 2004. She did a considerable amount of walking on the trip, and she experienced severe right knee pain.

On June 17, 2004, the claimant went to see Dr. Sol Graves at the Orthopedic Clinic of Monroe. According to his notes, she complained of right knee pain of a month’s duration. She told him that she did not recall any injury; however, she mentioned doing lunges while exercising and extensive walking at Disney World. He prescribed an anti-inflammatory medication. When she saw Dr. Graves again on June 22, 2004, she was complaining that the pain had moved up her right leg. Dr. Graves believed that her back was the source of her pain. However, MRI’s on her right knee and back were essentially normal, as was a lumbar myelogram.

In the meantime, on June 18, 2004, the claimant ceased working as an RN at RMC.

In early July 2004, the claimant sought a second opinion from Dr. Douglas Brown, an orthopedic surgeon. He diagnosed her as having inflammatory arthritis, right sciatica, of unknown etiology. According to the information supplied by the claimant, her current problem was the result |4of “other,” as opposed to “vehicle accident,” “work accident” or “accident,” and it occurred during “unknown” activity.

In mid-July 2004, Dr. Brown sent the claimant to Dr. Robert Goodman, a rheu-matologist, for evaluation. She reported pain in her right leg and buttock with a burning sensation in the right knee, thigh and calf. She also recounted changes in the color and temperature of her right leg. According to Dr. Goodman, she denied trauma preceding the knee pain, but talked about several car accidents and her walking at Disney World. He diagnosed her as having RSD and an anxiety disorder.

Several hours after her initial appointment with Dr. Goodman on July 14, 2004, the claimant called his office to report that she had suffered a blow to her right hip and asked if that could have caused her problems. The nurse told her it was unlikely. In his deposition, Dr. Goodman agreed with the nurse’s assessment, stating that it would be “very unusual” for RSD to be caused by bumping a hip and that the chances were “relatively small” that it caused the claimant’s injury. In Dr. Goodman’s experience, if RSD is caused by trauma, it is a significant injury, such as a broken bone, a herniated neck disc, or a pinched nerve in the neck or back. Also, the trauma would be to the sciatic nerve or very close to the nerve. He testified that he has never seen it develop as the result of bumping into a handrail.

At Dr. Goodman’s request, the claimant was seen on . July 27, 2004, by Dr. Randall Brewer, who specializes in pain management. His records contain a notation that “[m]uch of her difficulty began after she struck her rt hip at work. No acute injury requiring urgent medical care was reported.”

| 50n August 12, 2004, the claimant was seen in Dr. Goodman’s office again. She complained of significant pain, muscle spasm and burning in the right leg. On a scale of one to ten, she rated her pain at eight and stated that her level of functioning was “very poor.” The notes from this visit state that the claimant was “[histrionic] and manipulative” with the staff and in front of other patients in the waiting room. Although complaining of right ghiteal pain, she refused to allow the nurse practitioner to examine the area, saying she had a torn ligament from a job injury. As her MRI results were normal, she was told that this was unlikely.

The next day, the claimant called Dr. Goodman’s office to request that disability papers be filled out for her. She was told that Dr. Brewer should fill them out; according to the claimant, Dr. Brewer had refused. When Dr. Goodman likewise refused, the claimant became agitated and threatened to talk to her lawyer and “do what I have to do” to get them to fill out the paperwork for her. Dr. Goodman sent her a letter dated August 13, 2004, discharging her from his practice due to her abuse and anger toward the staff. He specified that he was not prepared to complete long-term disability paperwork in her case because there was insufficient evidence at that point to conclude that she required long-term disability. He stated that he would not be coerced by her threats.of “having your attorney make us fill it out.” The claimant did not recall receiving this letter discharging her as a patient, and she denied making a scene in front of other patients.

Dr. Brewer referred the claimant to Dr. Robert Schwendimann, a neurologist at LSUHSC, in late August 2004. The claimant indicated to him | fithat she might have had “a slight trauma” to her right buttock and hip in April or May 2004; however, she “barely recalls this event.” He did not fill out disability forms for the claimant because he thought it was premature to do so. The neurological study conducted on the claimant was normal.

The claimant was next seen by Dr. Brewer’s partner, Dr. William Whyte. She received several lumbar sympathic block injections. However, these injections provided no relief, and the claimant was deemed to no longer be an interven-tional spine candidate. The medical records indicate that on November 1, 2004, she was discharged as a patient from the Louisiana Pain Physicians’ practice due to “multiple episodes of staff abuse.” The claimant denied this.

In the meantime, Dr. Whyte completed a disability form for the claimant; he indicated that her injury was not related to her employment. In a disability form filled out by the claimant, she stated that it was “unknown” when queried about the injury being related to her employment.

On November 10, 2004, the claimant was seen by several doctors at Tulane University Hospital in New Orleans. The report of Dr. Carlos Garcia, a neurologist, recounted that the claimant hit the right gluteal area while taking care of a patient. He diagnosed her as having RSD. When she saw Dr. Donald Richardson, a neurosurgeon, the claimant told him that she hit her right buttock on “the edge of a piece of furniture, desk or something.” According to Dr. Richardson, she said that the pain was like an electric shock down her leg and that it was so severe that she fell to the floor. Upon examination, he noted that the claimant’s right leg was red and |7colder than the left. A differential spinal block was performed and corroborated Dr. Richardson’s diagnosis of RSD. Psychological testing indicated that the claimant had a' chronic pain syndrome which included depression, anger and irritability.

In July 2005, Dr. Richardson implanted a spinal stimulator which was successful in significantly reducing her pain. In his opinion, she is unable to work as an RN. However, he believes that she could do a light job assignment involving mainly paperwork.

The claimant testified that she did not fall to the floor when she bumped into the handrail. She stated that she is always in pain and that she is unable to work. Since the implantation of the stimulator, she can raise her hands and do “a few light things,” whereas she previously said she was unable to pick up “anything heavier than a fork.”

Ruling of OWC judge

After reviewing all of the evidence, the OWC judge found that any disability suffered by the claimant was not the result of an injury she sustained when she struck her hip or buttock on a handrail or other object at RMC. The judge noted the many varying explanations given throughout her medical histories — exercise lunges, excessive walking at Disney World, lifting a heavy object. The OWC judge concluded that the claimant failed to demonstrate the required connexity between the injury and the resulting disability. She noted that only one doctor, Dr. Richardson, found a connexity between the injury and the claimant’s RSD. However, his opinion was based upon a “faulty” history given to him by the • claimant. ^Because the evidence left the probabilities evenly balanced and only showed a possibility of a causative connection between the claimant’s injury and disability, the OWC judge found that “the claimant’s case must fail.”

Judgment dismissing the claimant’s claim with prejudice and at her cost was signed on August 16, 2006.

LAW

A plaintiff in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Hammock v. Weyerhaeuser, 40,464 (La.App. 2d Cir.12/14/05), 917 So.2d 733; Graham v. Nissan, 39,656 (La.App. 2d Cir.6/29/05), 907 So.2d 213. If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the plaintiff fails to carry the burden of proof. Hammock, supra; Player v. International Paper Company, 39,254 (La.App. 2d Cir.1/28/05), 892 So.2d 781.

The worker’s testimony alone may be sufficient to satisfy this burden, provided that two elements are satisfied: first, there must be no other evidence which discredits or casts serious doubt on the worker’s version of the incident; and second, the worker’s testimony must be corroborated by the testimony of fellow workers, his spouse and other close family members, friends, or the introduction of medical evidence. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992); Kidd v. Brown Radiator & Frame, 38,729 (La.App. 2d Cir.12/22/04), 890 So.2d 796, writ denied, 2005-0172 (La.3/24/05), 896 So.2d 1042. If a claimant’s testimony 19contains discrepancies and inconsistencies, that testimony alone does not meet the burden. Hammock, supra; Harris v. General Motors, Truck and Coach Division, 577 So.2d 1160 (La.App. 2d Cir.1991).

Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the OWC judge. Hammock, supra; Lewis v. Chateau D’Arbonne Nurse Care Center, 38,394 (La.App. 2d Cir.4/7/04), 870 So.2d 515. Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Hammock, supra; Culotta v. A.L. & W. Moore Trucking Company, 35,344 (La.App. 2d Cir.3/5/03), 839 So.2d 1063, writ denied, 2003-0998 (La.5/30/03), 845 So.2d 1052. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989).

DISCUSSION

We note at the outset that the claimant argues that she is entitled to a presumption of causation in this case. In Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977), the supreme court stated:

[a] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

hnThis rule, further discussed in Housley v. Cerise, 579 So.2d 973 (La.1991), has become known as the “Housley presumption.” The application of this presumption to the facts is itself a question of fact subject to manifest error review. Detraz v. Lee, 2005-1263 (La.1/17/07), 950 So.2d 557. The OWC judge in this case did not apply the presumption to the claimant’s case. We detect no manifest error in her decision not to do so because the medical evidence conflicted about whether there was a reasonable possibility of causal connection between the accident and the disabling condition.

The evidence indicates that the claimant suffers from RSD and that the onset of this condition was sometime after she struck her hip on a handrail at work in April 2004. As the OWC judge correctly recognized, the difficulty in this case arises with the conflicting medical evidence concerning the likely cause of the claimant’s RSD. The burden of proving this connection rests with the claimant. Both Dr. Goodman and Dr. Richardson opined that RSD is ordinarily caused by a trauma of some kind. Dr. Goodman’s testimony indicated that the trauma would have to be something significant such as falling down stairs. He also testified that it could also be from a slipped disc, a bone spur, arthritis or a pinched nerve caused by lifting something heavy.

Dr. Goodman’s records do not show that the claimant gave him a clear description of her injury at work; the entry concerning that injury in the doctor’s records related to a post-diagnosis phone call. There was no indication that she told the doctor that she had a shooting pain at the time of Inthe incident that would suggest injury to a nerve. Further, Dr. Goodman said that since the sciatic nerve and the nerve branches that lead to it are fairly deep inside the body, there would be only a “small possibility” that a blow to the hip could cause RSD.

Dr. Richardson did connect the claimant’s condition with the trauma she related to him. However, his impression of the severity of the accident differed even from that related by the claimant at trial. According to Dr. Richardson, the claimant reported a “shock down her leg” and told him that the impact made her leg give way. Dr. Richardson was under the impression that the accident was sufficiently severe that it caused the claimant to fall to the floor; at trial, the claimant denied falling. Additionally, the records do not reflect that the claimant told any of the doctors she saw before Dr. Richardson that the impact caused her to feel a “shock down her leg.” In fact, the history reported by Dr. Schwendimann indicates that the claimant “barely recalls” the event and that she may have had some “slight trauma” that caused bruising to her right hip and buttock.

The OWC judge described the claimant’s evidence on causation as being evenly balanced between a showing that the work-related accident caused the claimant’s RSD and a showing that the condition was caused by some other unknown event. With this assessment of the evidence, we find no error. Thus, the OWC judge correctly denied the claimant’s claim for compensation.

I ^CONCLUSION

The judgment of the OWC judge is affirmed. Costs of this appeal are assessed against the appellant/claimant, Dana Lit-tleton.

AFFIRMED.

      . Hospital records indicate that there was only one patient in the unit where the claimant and Ms. Collins were working that day.

      . The report on the lumbar MRI stated that the patient had been "[ijnjured while lifting heavy object.” The claimant denied saying that.


author: LOLLEY, J.

text:
    Essie V. JACKSON, Plaintiff-Appellant v. RED RIVER PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 42,080-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.
    See also 948 So.2d 374.

      Essie Viola Jackson Pro Se.
    Johnson, Stiltner & Rahman, by Thomas D. Travis, Baton Rouge, for Appellee.
    Before CARAWAY, LOLLEY and SEXTON (Pro Tempore), JJ.
   LOLLEY, J.

11 Claimant, Essie V. Jackson, appeals a judgment rendered by the Office of Workers’ Compensation, Parish of Caddo, State of Louisiana, which granted an involuntary dismissal in favor of her employer, Red River Parish School Board. For the following reasons, we affirm.

FACTS

For almost ten years beginning in August 1994, Jackson was employed as a school bus driver for the Red River Parish School Board (“RRPSB”). In addition, from September 2000 through May 2002, Jackson worked at the Ware Youth Center during the day. On May 10, 2005, Jackson reported to the RRPSB that she suffered from various physical ailments that she attributed to her work as a bus driver. On May 25, 2005, appearing pro se, Jackson filed a disputed claim for compensation alleging that she had been injured “from [her] head to [her] legs” while employed with RRPSB; she gave the date of her illness as May 10, 2005. For the date, time and place of the accident, she stated:

Over a period of time longer than one week or shift. It resulted from systemic and repeated exposure to aggravated stress & few strains.

In describing the accident and injury in detail, Jackson said:

Occupational disease claim medical conditions was (sic) manifested in the course and scope of my employment, of repeated stress, aggravation and strain; and continuing conditions until no longer able to work.

She claimed that she was totally disabled from working as a result of her ailments. Also in the record is another form entitled “Employee Medical | ¿Treatment Questionnaire” that was completed on May 10, 2005, by Dr. Wayne Barksdale. The doctor listed Jackson’s most current diagnosis as:

Coronary artery disease, hypertension, diabetes, depression, sleep apnea, hyper-cholesterolemia, pulmonary fibrosis, bilateral leg pain, reflux, diastolic heart failure.

Dr. Barksdale indicated that he had prescribed a variety of medications for Jackson since October 11, 2002, and further indicated that he expected Jackson to take these medications for the duration of her lifetime. In particular, Dr. Barksdale noted that Jackson’s prednisone medication was responsible for muscle weakness and cramps in her legs and could interfere with her ability to drive. Dr. Barksdale stated that he did not anticipate Jackson to improve “at this time” due to multiple medical problems that had dramatically affected her quality of life.

RRPSB and its compensation insurer, Louisiana Workers’ Compensation Corporation (“LWCC”), answered the claim and denied that Jackson had suffered an accident or any injury as a result of her employment at RRPSB. Discovery was taken and included a letter from Dr. Wyche Coleman, Jr., stating that Jackson had been hospitalized from May 23, 2002, until May 28, 2002, with pneumonia and that she had subsequently been diagnosed with in-trastitial fibrosis. Dr. Coleman reported that Jackson stated that at the time of admission in 2002, she had been subjected to severe cold “at work.” Dr. Coleman stated that “the extreme cold at work could have worsened her pneumonia symptoms during that period of time.” RRPSB and LWCC (“respondents”) subsequently filed an amended answer |3in which they also denied that Jackson had an occupational disease. They also urged an exception of prescription.

On April 18, 2006, the workers’ compensation judge (“WCJ”) held a hearing on the employer’s exception of prescription. Jackson admitted that her conditions developed over the years and did not arise after an “accident.” She testified that she did not know until 2005 that her pneumonia in 2002 might have been work related. The WCJ denied the employer’s exception of prescription but ordered Jackson to file an amended form because the original complaint was too vague.

In May 2006, Jackson filed an amended claim for compensation and reported as the date, time and place of accident:

Occupational disease (Respiratory Infection C.O.P.D.) disability developed over a period of time longer than one week or shift; and stress and strains; degenerative lumbar disk disease L4-5 and L5-Sl, exposures to fumes.

In describing the injury in detail, Jackson stated:

Pre-existing conditions of lung disease, heart disease, degenerative disk disease, treatment with medications and straining back and legs driving the school bus over a period of time has become totally and permanently disabled.

Jackson also added a claim against RRPSB for failing to provide a “state-funded benefit retirement plan” and alleged discrimination.

Trial was held in this matter on August 1, 2006. Jackson represented herself and explained that at the time she got sick in 2002, she was working for Ware Youth Center as a security officer from 6:00 p.m. until 6:00 a.m. and that she drove the school bus for RRPSB from 7:00 a.m. until 8:00 a.m. and then again from 2:30 p.m. until 4:00 p.m. Subsequently, Jackson | ¿attributed her bronchitis to getting on and off the bus in the cold, the manual labor involved when driving the bus, and having to deal with the children on the bus. She also attributed the “stress” in her back and legs to her employment as a bus driver.

Jackson did not call any witnesses other than her sister, Bettye Law Richardson, who testified that Jackson’s problems began in April 2002 with bronchitis, sinusitis and hypertension. Jackson submitted evidence from Dr. Barksdale listing Jackson’s health problems. She also offered into evidence a set of her medical records and several hundred pages of medical bills. After Jackson rested her case, the respondents asked the court to dismiss Jackson’s discrimination complaints for want of jurisdiction, and the WCJ agreed. Next, the respondents asked the court for an involuntary dismissal of Jackson’s claim arguing that she failed to allege that she suffered an “accident” and had no evidence to prove that any of her health problems qualified as compensable occupational diseases.

The WCJ reviewed Jackson’s medical records and noted that none of Jackson’s doctors attributed her health problems, including any of her back or leg pain, to her employment as a bus driver. The WCJ found that Jackson’s back problem was likely the result of a degenerative condition whose onset was “regardless of someone’s job duties unless they have done heavy lifting and stressing their back for a prolonged period of time.” Likewise, the WCJ noted that there was no proof that Jackson’s bronchitis resulted from her employment and observed that thousands of people who suffer from that condition are “not even engaged in employment.” | (¡Accordingly, the WCJ granted the respondents’ motion for an involuntary dismissal, noting its sympathy with Jackson’s genuine and serious health problems. Jackson now appeals.

LAW AND DISCUSSION

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Newsome v. Atmos Energy, 41,413 (La.App. 2d Cir.08/23/06), 938 So.2d 1098; Culotta v. A.L. & W. Moore Trucking Company, 35,344 (La.App. 2d Cir.03/05/03), 839 So.2d 1063, writ denied, 2003-0998 (La.05/30/03), 845 So.2d 1052. Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. Newsome, supra; Lewis v. Chateau D'Arbonne Nurse Care Center, 38,394 (La.App. 2d Cir.04/07/04), 870 So.2d 515.

An occupational disease or illness is “due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” La. R.S. 23:1031.1(B). Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of La. R.S. 23:1031.1(B). In Lee v. Schumpert, 36,733 (La.App. 2d Cir.01/29/03), 836 So.2d 1214, 1220-21, this court explained how a claimant must prove that she has an occupational disease:

The claimant asserting an occupational disease must prove, by a preponderance of evidence, a disability related to an employment-related disease, that it was contracted during the course of employment, and that it is the result of the work | r,performed. The causal link between the claimant’s occupational disease and the work-related duties must be established by reasonable probability. The claimant will fail if there is only a possibility that the employment caused the disease, or if other causes not related to the employment are just as likely to have caused it. Expert testimony is required to support a finding of an occupational disease. (Citations omitted).

Medical reports may serve as the required expert testimony for proof of disputed medical matters. Fite v. Louisiana Title Co., 2002-2607 (La.06/27/03), 852 So.2d 983. Here, nothing on the forms attributes Jackson’s medical conditions to her employment. More importantly, none of the medical records attributed any of Jackson’s health problems to her employment with RRPSD.

Provided that the plaintiff has completed the presentation of her case, an involuntary dismissal may be granted in a workers’ compensation case. See LAC 40:1:6211; Taylor v. Tommie’s Gaming, 2004-2254 (La.05/24/05), 902 So.2d 380; Newsome, supra. La. C.C.P. art. 1672(B) provides, in part:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

The record clearly supports the WCJ’s factual finding that Jackson proved neither that she suffered an on-the-job accident nor that she suffered from an occupational disease. Indeed, Jackson did not attempt to prove the occurrence of an accident but urged that her working conditions at RRPSB |7caused her to suffer lung problems which in turn caused her other health problems.

Assuming arguendo that Jackson’s lung condition could be a disease compensable in workers’ compensation, she presented no evidence that would satisfy her burden of proving that her condition resulted from her employment with RRPSD. At one point in her testimony, Jackson said that the cold exposure referred to in Dr. Coleman’s letter occurred at her job with Ware Youth Center. In fact, she relied on that letter in her case against that employer. In Jackson v. Ware Youth Center, supra, in affirming the employer’s motion for summary judgment, this court observed:

We note in particular that Dr. Coleman’s August 2005 letter only points out that Jackson had pneumonia in May 2002, speculates that extreme cold at work could have worsened her pneumonia symptoms during that period of time, and lastly that Jackson subsequently had a diagnosis of intrastitial fibrosis. These statements establish neither a genuine issue of material fact with respect to a work-related accident, nor a genuine issue of material fact with respect to an occupational disease. Accordingly, we conclude both that Jackson failed to produce the necessary factual support to show that she would be able to satisfy her evidentiary burden of proof at trial and there is no genuine issue of material fact in this case.

In the absence of proof that Jackson’s health conditions resulted from her employment with RRPSB, the WCJ correctly dismissed Jackson’s claim for workers’ compensation benefits.

Accordingly, the judgment of the WCJ is affirmed at Essie Jackson’s cost.

AFFIRMED.

      . Jackson made a compensation claim against Ware Youth Center as well, but those claims were dismissed by the WCJ prior to the trial in the instant matter, and this court affirmed that ruling. Jackson v. Ware Youth Center, 41,830 (La.App. 2d Cir.01/24/07), 948 So.2d 374.