author: CHARLES R. JONES, Judge.

text:
    STATE of Louisiana In the Interest of D.J.
    No. 2006-CA-1491.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 16, 2007.

      Eddie J. Jordan, Jr., District Attorney, Josie N. Wicks, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Candace Chambliss, Orleans Public Defender, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, and Judge DAVID S. GORBATY).
   CHARLES R. JONES, Judge.

It The Appellant, D.J., seeks a reversal of the juvenile court’s judgment which rendered him a juvenile delinquent.

On June 24, 2006, D.J., was arrested and charged with the following violations: simple burglary (La. R.S. 14:62); possession of marijuana [La. R.S. 40:966(E)(1)]; and possession crack cocaine, a Schedule II controlled dangerous substance (La. R.S. 40:967(0(2)). A petition was filed by the Orleans Parish District Attorney’s Office charging D.J. with the same on June 26, 2006.

On the same date, D.J. appeared in section “B” of juvenile court for a Continued Custody hearing to determine probable cause. At that hearing, probable cause was found on the possession of crack cocaine charge, but no probable cause was found on the possession of marijuana charge and D.J. was released to the custody of his mother. The State subsequently dismissed the drug-related charges and converted the simple burglary charge to a charge of possession of stolen things (La. R.S. 14:69). The case was re-allotted to section “C” of the juvenile court.

At the initial hearing in section “C,” D.J.’s counsel determined that D.J. was not able to assist with his defense and raised the issue of D.J.’s capacity to proceed. _J^D.J.’s counsel submitted a written Motion to Raise Mental Incapacity to Proceed on July 13, 2006. The juvenile court ordered Family in Need of Services (FINS) to provide a free psychological evaluation for the family in order to determine reasonable grounds to doubt D.J.’s mental capacity to proceed. Trial was set for August 17, 2006.

On August 15, 2006, D.J.’s counsel filed a writ with this Court in response to the juvenile court’s failure to appoint a sanity commission. The writ was denied.

On August 17, 2006, the matter came to trial. On the same date, the report from FINS was available; however, it did not address D.J.’s capacity, rather, the report indicated in part that D.J. was mentally retarded and that he was the mental age equivalent between three and nine years old.

On the same date, D.J.’s counsel orally requested that the court appoint a sanity commission to evaluate D.J. However, the court determined that it found no reasonable grounds to appoint a sanity commission. D.J.’s counsel then orally motioned the court to appoint an independent doctor to conduct a psychological evaluation. The court reset the matter for hearing for September 12, 2006, pending the outcome of D.J.’s independent psychological evaluation.

On September 12, 2006, the independent psychologist reported findings consistent with capacity to proceed. At that time, D.J.’s counsel requested a contradictory hearing to determine his capacity to proceed. The court, however, reiterated its earlier determination that there were no reasonable grounds to doubt D.J.’s capacity to proceed to trial in the matter.

laDuring the trial, Ms. Mendel, a witness in this matter testified that she observed D.J. in the yard next door to her home going through purses. She contacted the police and reported the incident.

Ms. Amelia Martinez, the victim in this case, testified that on June 24, 2006, she was the victim of a crime and her purse was stolen from her vehicle. She also testified that her cash and her business debit card were missing from her purse after it was returned to her.

Officer Patrick Mangus testified that he became involved with the investigation and arrest of D.J. when he received a call from a dispatcher to investigate a suspicious subject who was possibly going to steal her purse. Officer Mangus observed D.J., who matched the description of the person of interest, discard a purse and run at a fast rate of speed. D.J. was apprehended and after Officer Mangus conducted a search incident to an arrest, he retrieved a credit card in the name of the victim, Amelia Martinez, and a roll of quarters belonging to the victim on D.J.’s person. Officer Mangus brought D.J. back to the scene of the crime at which time he was identified by Ms. Mendel, the witness in the matter. Additionally, when he was was brought to the Juvenile Bureau, $1000.00 was found on D.J.’s person.

At the conclusion of the trial, D.J. was found guilty and received a delinquent adjudication for the offense of possession of stolen things (La. R.S. 14:69). The disposition date was set for October 10, 2006.

On the same date, D.J.’s counsel submitted a Motion to Implement Dispositional Plan, thereby requesting that D.J. not be detained. D.J. was committed to the Office of Youth Development for a period of time not to exceed three years, and all but 18 months were suspended.

|4On October 12, 2006, counsel filed a motion and notice of appeal, which was granted.

In the present appeal, D.J. raises four assignments of error, enumerated as follows:

1. Whether the juvenile court had reasonable grounds to appoint a sanity commission when D.J. raised the issue of mental incapacity?
2. Whether the juvenile court violated D.J.’s rights by failing to appoint a sanity commission when he raised the issue of mental incapacity?
3. Whether the juvenile court violated D.J.’s rights by failing to conduct a contradictory hearing when he raised the issue of mental incapacity?
4. Whether the juvenile court violated D.J.’s rights when it proceeded to trial after he raised the issue of mental incapacity?

DISCUSSION

“A reviewing court may not set aside a district court’s finding of fact in the absence of manifest error or unless it is clearly wrong.” Hanks v. Entergy Corp., 2006-477, p. 22 (La.12/18/06) 944 So.2d 564, 580, citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993). Additionally, “[i]n order to reverse a district court’s determination of a fact, a reviewing court must review the record in its entirety and (1) find a reasonable factual basis does not exist for the finding, and (2) further determine [that] the record establishes the factfinder is clearly wrong or manifestly erroneous”. Hanks, Id., citing Bonin v. Ferrellgas, Inc., 03-3024 at p. 6-7, 877 So.2d at 94-95.

In his first assignment of error, D.J. asserts that the juvenile court had reasonable grounds to appoint a sanity commission when D.J. raised the issue of mental incapacity. D.J.’s counsel believed that he would be unable to assist in his | ^defense. At the time D.J.’s incapacity to proceed was raised, the court appointed FINS to conduct an evaluation of D.J. However, D.J. asserts that the appointment of FINS did not fulfill the requirements of the Louisiana Children’s Code.

To support his contention that the juvenile court erred, D.J. cites State in the Interest of Causey, 363 So.2d 472 (La.1978). In Causey, the district court denied Causey’s motion to plead not guilty by reason of insanity in district court proceedings. Causey’s application for writ of certiorari was granted. The Supreme Court held that: (1) the right not to be tried while incompetent to assist in one’s own defense is a fundamental due process right, Id. at 476; (2) the right to plead insanity, absent some other effective means of distinguishing mental illness for moral culpability, is also fundamental, Id.; (3) there is no compelling reason to deny such rights to juveniles charged with conduct that would be serious crimes if committed by adults, Id.; and (4) there were facts in record to put the district court on notice that a juvenile might be mentally retarded or insane and, thus, to require court to give district right to plead not guilty by reason of insanity and right to a more thorough mental examination, followed by a contradictory hearing, Id. The case was reversed and remanded.

La. Children’s Code art. 833 provides in pertinent part, that “[t]he court shall order a mental examination of the child when it has reasonable grounds to doubt the mental capacity of the child to proceed.” (emphasis ours) A child’s mental incapacity to proceed may be raised at any time by the child, the district attorney, or the court. La. Ch.Code art. 832. When the question of the child’s mental incapacity to proceed is raised, there shall be no further steps in the delinquency proceeding, except the filing of a delinquency petition, until counsel is appointed Rand notified in accordance with Article 809(B) and the child is found to have the mental capacity to proceed. Id.

D.J. asserts that since the FINS psychological evaluation revealed that his Intelligence Quotient (I.Q.) is a 69, that such a low number constitutes reasonable grounds to appoint a sanity commission. Additionally, he asserts that the report assessed him with a mental age equivalent between three and nine years of age. He contends that such findings are warnings of the capacity requiring the juvenile court to appoint a sanity commission.

The State disagrees with D.J. and argues that D.J. does in fact have the mental capacity to proceed. “Mental incapacity to proceed exists when, as a result of mental disease or defect, the defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” La.C.Cr.P. art. 641. In support of its position that D.J. possessed the mental capacity to proceed, the State cites State v. Weber, 364 So.2d 952 (La.1978). In Weber, the Supreme Court held that “[t]he defendant carries the burden of establishing by a clear preponderance of the evidence that he lacks the capacity to understand the object, nature, and consequences of the proceedings against him, in a rational as well as factual manner, to consult with counsel in a meaningful way, and to assist rationally in his defense.” Id. at 957, citing State v. Bennett, 345 So.2d 1129 (La.1977); State v. Morris, 340 So.2d 195 (La.1976); State v. Veal, 326 So.2d 329 (La.1976). Additionally, “[a] judge’s determination of [a] defendant’s present mental capacity is entitled to great weight on appeal.” Weber, 364 So.2d at 957, citing State v. Mortis, supra; State v. Flores, 315 So.2d 772 (La.1975).

In the instant case, D.J. filed a Motion to Raise Mental Incapacity to Proceed on July 13, 2006, and notified the juvenile court at a pretrial hearing of 17same. The juvenile court, in its effort to determine whether reasonable grounds existed to doubt D.J.’s capacity to proceed, ordered FINS to provide a free psychological exam for the family. The juvenile court employed Katie Brasted, M.A., Q.M.R.P., to conduct an examination. The psychological evaluation was conducted at the Office for Citizens with Developmental Disabilities on August 1, 2006.

The psychological evaluation revealed that D.J. worries about the current charges against him and the possibility of serving time. The report also revealed that D.J. was aware of the offenses with which he was charged. D.J. also demonstrated that he understood the rules of probation and had the ability to recall the facts pertaining to his actions and whereabouts at the time of the alleged offense. D.J. also demonstrated that he also had the ability to alert his attorneys to potential witnesses.

Based on the above psychological evaluation report, the juvenile court determined that D.J. suffered from behavioral problems, rather than mental issues. The court even allowed D.J.’s counsel to conduct an independent evaluation and the matter was reset for hearing pending the outcome of the independent psychological evaluation.

However, at the September 12, 2006 hearing, the independent psychological evaluation by Dr. Delilah Bauer, a specialist in Child and Adolescent Psychology did not reveal findings sufficient to question DJ.’s mental capacity. The evaluation reads in pertinent part:

LABILITY TO ASSIST IN His (sic) DEFENSE

[D.J.] had the ability to recall and relate facts pertaining to his action and whereabouts at the time of the alleged offense and could discuss his ability to alert his attorney to potential witnesses.
[D.J.] had the ability to maintain a consistent defense and inform his attorney of any distortions or misstatements of others.
[D.J.] had a very limited capacity to make decisions in response to well explained alternatives. Initially he did not know what a plea bargain was, but with education was able to grasp the concept and could discuss it. Despite this, he did not appear to be able to generalize what he learned about plea bargains in his own case.
[D.J.] had the capacity to testify relevantly, but did not appreciate his right to refuse to testify. He also initially failed to appreciate the adversarial nature of the trial and did not perceive any difference in answering questions posed to him by the prosecution or defense.
At the time of the evaluation, [D.J.] denied that he would have any difficulty tolerating the stress of trial; however, he does appear to be growing more distressed as a result of the extreme amount of solitary time during his confinement ...
CONCLUSIONS
... [D.J.] had a basic understanding of much of his legal rights. He knew that his lawyer was there to help him and that the prosecution was invested in finding him guilty; however, he had limited understanding of his rights to avoid self-incrimination and his rights to a fair trial. As the session progressed it was clear that he had the capacity to learn these rights.
In summary, [D.J.j’s limited intellectual abilities, depression, and limited appreciation of his rights may impact his ability to have a rational understanding of his legal situation, but with education could learn to | ^appreciate his situation and work more effectively with counsel.

Hence, D.J. failed to introduce any evidence which suggested that he was not able to understand the nature of the proceedings against him. Therefore, based on our review of the record in this matter, we find that the juvenile court did not err in finding that the presumption of sanity was unrebutted and that there were no reasonable grounds for the court to question D.J.’s capacity to stand trial. Thus, we find that this assignment of error does not have merit.

In his second assignment of error, D.J. argues that the juvenile court violated his rights by failing to appoint a sanity commission when he raised the issue of mental incapacity. La. Ch.Code art. 833 provides that “[t]he court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed.” As discussed above, the juvenile court did not find reasonable grounds to appoint a sanity commission. Instead, it ordered an evaluation of D.J. which revealed that D.J. possessed the requisite mental capacity to stand trial. “A defendant does not have an absolute right to the appointment of a sanity commission simply upon request.” State v. Volson, 352 So.2d 1293 (La.1977). “A trial judge is only required to order a mental examination of a defendant when there are reasonable grounds to doubt the defendant’s mental capacity to proceed.” State ex rel. Seals v. State, 2000-2738, p. 5. (La.10/25/02), 831 So.2d 828, 832. Thus, we find that this assignment of error is also without merit.

In his third and fourth assignments of error, D.J. argues that the juvenile court violated his rights by failing to conduct a contradictory hearing when he raised the issue of mental incapacity, and that the juvenile court also violated hphis rights when it proceeded to trial after he raised the issue of mental incapacity.

In our above discussion, we determined that the juvenile court did not have reasonable grounds to doubt D.J.’s mental capacity to stand trial, even after D.J. underwent an independent psychological evaluation. Our review of the record indicates that a Competency Hearing was scheduled in this matter on August 17, 2006. On this date, the court determined that there were no reasonable grounds to doubt D.J.’s mental capacity to proceed to trial. As we discussed above, the court even allowed D.J.’s counsel to conduct an independent evaluation to determine his mental capacity. However, at a subsequent hearing, the independent psychological evaluation did not reveal findings sufficient to call the DJ.’s mental capacity into question. Therefore, based upon our review of the record in this matter, we find that the juvenile court did not err in finding that D.J. was mentally competent to stand trial. Thus, we find that D.J.’s third and fourth assignments of error are without merit.

DECREE

For the reasons stated herein, we affirm the adjudication and sentence of the juvenile court.

AFFIRMED.

      . D.J. is a juvenile defendant. In order to protect his right to confidentiality and privacy, he will be identified solely by his initials.

      . Qualified Mental Retardation Professional.

      . Dr. Bauer is also a forensic psychologist and a specialist in custody evaluations.


source: Caselaw Access Project

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

license: Public Domain

text:
    Karen TAYLOR v. J.C. PENNEY.
    No. 2006-CA-1520.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2007.

      Charlsey Wolff, Wolff & Wolff, New Orleans, LA, for Plaintiff/Appellee.
    Jeffrey C. Napolitano, Juge Napolitano Guilbeau Ruli Frieman & Whiteley, Me-tairie, LA, for Defendant/Appellant.
    (Court Composed of Judge DENNIS R. BAGNERIS, Sr., Judge MAX N. TOBIAS, Jr., and Judge EDWIN A. LOMBARD).
   MAX N. TOBIAS, Jr., Judge.

| jDefendant/Appellant, J.C. Penney, appeals from a judgment in favor of the plaintiff/appellee, Karen Taylor, by the Office of Workers’ Compensation. After reviewing the record and applicable law, we affirm in part, reverse in part, and render.

J.C. Penney employed Ms. Taylor as a clerk commencing in 1983. On or about 16 April 2003, while carrying merchandise in the stock room, Ms. Taylor tripped and lost her balance when she stumbled into a packaged featherbed. Ms. Taylor claims that she “jammed” her right leg/hip while attempting to maintain her balance. She also claims to have twisted her back in the process. Ms. Taylor did not report the injury to her employer until 18 April 2003. J.C. Penney requested that she see a physician at Concerta Medical Center. The physician at Concerta referred Ms. Taylor to Gordon P. Nutik, M.D., a board-certified orthopedic surgeon.

Ms. Taylor first saw Dr. Nutik on 7 May 2003, and reported her accident of 16 April 2003. She claimed to have experienced pain immediately after the |?accident, but continued to work. Dr. Nutik’s examination yielded a working diagnosis of a strain about the right hip, but he could not rule out a displaced fracture at the base of the femoral head. Dr. Nutik took an x-ray, which was inconclusive, so he ordered an MRI of the right hip. Ms. Taylor was told to keep working and doing her regular activities.

Ms. Taylor returned to Dr. Nutik on 19 May 2003. She reported the same pain but was still working. Her next visit was on 2 June 2003. She had undergone the MRI of her hip and it revealed a diffused increased intensity in the femoral head; the radiologist could not rule, out avascular necrosis or a fracture of the femoral head. At that time, Dr. Nutik placed her on limited weight bearing status with crutches and on a sedentary level of work. He also sent her to physical, therapy to learn how to use the crutches.

Dr. Nutik next saw Ms. Taylor on 18 June 2003. She reported that her hip seemed to be getting worse. She also told him that she was also seeing Terry Habig, M.D., also a board-certified orthopedic surgeon, and had seen him before she started to see Dr. Nutik. She reported that Dr. Habig had taken her off work, placed her on sedentary. work, and recommended a C.T. scan of her hip. Ms. Taylor now reported some problems sitting on her right buttock. Dr. Nutik discussed the possibility of her having avascular necrosis, or a loss of blood supply to the bone.

Ms. Taylor returned to Dr. Nutik on 14 July 2003. By then she had undergone the CT scan of her hip, which revealed no evidence of fracture. ^Although Ms. Taylor had been off her hip, she still complained of pain. Dr. Nutik then thought that she at least had a bone contusion as a result of her accident. He thought that she could return to sedentary work and he recommended that she undergo physical therapy for four weeks. He was still considering the diagnosis of avascular necrosis because of the signal changes about the hip. He recommended that the MRI be repeated in one month.

Ms. Taylor returned to Dr. Nutik on 4 August 2003. She was still having problems sitting and stated that she hurt in the groin. She complained that the heating pad used in physical therapy was too heavy; Dr. Nutik thought that this was an exaggerated complaint. Based on a series of normal x-rays, Dr. Nutik did not see any objective evidence to indicate a disability; he though she could continue with the sedentary work being provided by J.C. Penney. When he released her to work in July, he thought she should be able to work an eight-hour day, five days per week. He did not place any restrictions on the number of hours she could work.

Dr. Nutik again saw Ms. Taylor on 27 August 2003, after he had received the results of the second MRI, which were now normal. At this point, his diagnosis was transient osteoporosis, a temporary condition that manifests itself and then goes away. Dr. Nutik explained that the specific cause of transient osteoporosis is unknown, although it is a condition not normally associated with trauma. Most cases last for several months and then go away on their own.

RDr. Nutik saw Ms. Taylor on 17 September, 8 October, 5 November, and 17 December 2003. He had not seen her since that last date. He thought that she had returned to the care of Dr. Habig. Up until the last visit on 17 December, no objective findings existed in Ms. Taylor to explain the continued pain in her leg/hip. He did look at her lower back initially, but Ms. Taylor did not have any findings relating to her lower back at the initial evaluation. At best, Dr. Nutik opined that she had a muscle injury and it got better. Dr. Nutik could not explain her ongoing complaints, however, he found Ms. Taylor difficult to assess and get to know.

Dr. Habig first saw Ms. Taylor on 30 April 2003 where she denied any history of injury. She reported that she had pain in her right hip and groin for two weeks and that the pain radiated down her right leg. She stated that the pain was constant and made worse with standing and walking. She denied any back pain or numbness in her leg.

Dr. Habig’s back exam showed full range of motion and the hip exam showed slight restriction of motion; the neurological and vascular exams were normal. An x-ray of the hip and pelvis did not reveal any abnormalities. Dr. Habig thought she had sciatica, a nerve problem from her back, or possibly a problem in her hip. He suggested that a bone scan be performed.

Dr. Habig contacted Ms. Taylor on 9 June 2003, after a bone scan and M.R.I. had been performed. The scan showed an abnormal femoral head. At this time, he thought Ms. Taylor could have avascular necrosis of the bone, a hip | (¡fracture, or infection. The M.R.I. also showed some fluid within the femoral head and neck, and the radiologist thought she might have a nondisplaced femoral neck fracture.

Ms. Taylor saw Dr. Habig on 11 June 2003, when she reported her 16 April 2003 work-related injury. She said that she had been using a walker to keep her weight off her leg and denied any symptoms suggestive of infection. He took additional x-rays of her hip and saw possible changes in the hip femoral head. Although he did not see a fracture, he saw some areas of less density. He thought the most likely diagnoses were avascular necrosis or transient osteoporosis. With transient osteoporosis, the bone will lose some density, cause pain, and then the pain will go away. Dr. Habig ordered some blood tests to rule out infection and a C.T. scan of her hip. Her blood test results were normal. Dr. Habig also recommended that Ms. Taylor be placed on a no-work status because he was concerned about a fracture.

Ms. Taylor did not return to Dr. Habig until March 2004. She reported that Dr, Nutik was also treating her. She had the C.T. scan done while under Dr. Nutik’s care; Dr. Habig did not see the results of that test. However, he did see the results of her August 2003 M.R.I.

When Ms. Taylor saw Dr. Habig on 3 March 2004, she said that her C.T. scan had been abnormal and that she was kept on crutches or a walker until September 2003. He examined the repeat M.R.I., which was normal, confirming a diagnosis of transient osteoporosis. When Dr. Ha-big saw her, Ms. Taylor was Rusing a cane and she complained of some right hip pain in the groin and buttock area, which worsened with weight bearing. Her hip lacked about twenty degrees of full flexion and about the same amount with external and internal rotation. Dr. Habig thought she could perform the sedentary work provided by J.C. Penney. He did, however, believe that she could still be having problems one year after the accident. In addition, he recommended physical therapy three times a week for four weeks. He thought she went to physical therapy for at least part of the time.

Dr. Habig stated that transient osteoporosis does not always present itself with trauma or secondary to a trauma. However, taking into account that it began after the accident, he would have to consider the accident a factor. With regard to the continued stiffness in her hip, Dr. Habig stated that she might require six months of therapy, but that she would eventually recover.

Dr. Habig next saw Ms. Taylor on 12 May 2004. She stated that she had not gone to physical therapy, but had continued to work with increased pain in her hip and buttock area. Due to the increased pain, she was using a cane for walking. X-rays of her hip were again taken; he did not see any abnormalities, but ordered an M.R.I. of her hip and back. He also said again that he thought that physical therapy would be helpful.

Ms. Taylor’s next visit was on 23 June 2004. She was still using a cane for walking. An examination of. her hip showed a full range of motion, although she complained of some pain in the extreme ranges of motion, with some tenderness about the buttock area. Her back examination also showed a full range of motion 17with some pain with straight leg raising. Both the neurological exam and hip M.R.I. were normal. The lumbar spine M.R.I., according to the radiologist, had some bulging to the right of the disc at L-4/5 and L-5/S-1. However, Dr. Habig was not as impressed as the radiologist and was not sure of the significance of those findings. He stated that she had a mild abnormality of the disc. While he felt that she should continue working on a modified level, he thought she could work a full-time schedule.

Ms. Taylor last saw Dr. Habig on 21 July 2004 at which time she was still using a cane. She had a full range of motion in her hip and her pain was diminishing at the extreme ranges of motion. The straight leg raising revealed pain at 70 degrees in the right leg but negative to the left to 80 degrees. The neurological exam showed no weakness. Dr. Habig told her that he did not have much to offer as treatment for her hip. He recommended that she see a neurosurgeon and continue with modified work. He believed that whatever pain she was having was not coming from the hip. Dr. Habig was not aware of any medical reason that would prevent Ms. Taylor from arriving at work on time and no orthopedic reason for her to continue using a cane or restrict her activities. Dr. Habig also believed that she needed to become more active and should increase her standing and walking.

Ms. Taylor was seen by a neurosurgeon, Rand M. Voorhries, M.D., who performed a physical exam and reviewed her M.R.I. films, as well as the report from the radiologist. Although the radiologist noted some minor bulges, Dr. |sVoorhries stated that he “was struck with how normal everything appeared to be.” Dr. Voohries found no indication for surgical intervention. As he had nothing to offer to Ms. Taylor, he released her from his care.

Ms. Taylor testified at trial that she worked full time after the accident until 2 June 2003, when Dr. Nutik placed her on sedentary work status. Dr. Habig then placed her on no-work status on 9 June 2003 until her next appointment on 25 June 2003. Ms. Taylor continued to treat with Dr. Nutik, who allowed her to return to work with restrictions on 14 July 2003. Ms. Taylor understood that she was to perform office duties for as many hours as her injuries permitted. Ms. Taylor received two courses of physical therapy, one ordered by Dr. Nutik and the other ordered by Dr. Habig. She also received a course of aqua therapy.

Ms. Taylor admitted that J.C. Penney accommodated her beginning the first week of June 2003, when Dr. Nutik first gave her work restrictions. At first she testified that she could not do the desk-work provided to her because it required twisting. However, under cross-examination, she admitted that she could have performed the work without twisting. She testified that at first she was working only 3 to 4 hours per day because she was not aware that J.C. Penney was offering her more hours. She testified that as soon as she finished organizing the media, they let her go home. She admitted, however, that they did not force her to leave. Later, she also conceded that J.C. Penney clearly advised her that it would find as [flmuch work for her as possible. Ms. Taylor, however, claimed that she was in too much pain to work full time. She also admitted that she went to work and left work at whatever time suited her, depending on her physical condition and level of pain. She claimed that Dr. Habig had ordered physical therapy for her on 14 May 2004, but that her employer denied it.

The Office of Workers’ Compensation (“OWC”) entered judgment in favor of Ms. Taylor, finding that she suffered a work-related injury on 16 April 2003 while in the course and scope of her employment with J.C. Penney. The OWC found that Ms. Taylor’s average weekly wage (“AWW”) was stipulated to be $463.46, with a corresponding temporary total disability (“TTD”) of $308.99.

The OWC held that as a result of the accident, Ms. Taylor was entitled to TTD for the period from 11 June 2003 through 14 July 2003 at the stipulated rate of $308.99 and was entitled to supplemental earnings benefits (“SEBs”) from 15 July 2003 until the judgment is modified or a written consent to modify the judgment is signed. The SEBs were awarded because J.C. Penney only offered Ms. Taylor part-time work instead of full-time modified work duty; however, J.C. Penney was entitled to a credit for the wages actually paid. The OWC ordered J.C. Penney to reinstate Ms. Taylor’s paid hours of leave that she took in lieu of receiving indemnity payments, with a credit to J.C. Penney against indemnity due for SEBs.

Finally, the OWC assessed a penalty of $2,000.00 and attorney fees of $3,500.00 for J.C. Penney’s failure to pay any indemnity benefits and a penalty of |in$2,000.00 and attorney fees of $2,500.00 for its denial of physical therapy requested by Dr. Habig on 14 May 2004.

J.C. Penney has appealed from the OWC judgment and challenges all aspects of the OWC judgment.

In Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the Louisiana Supreme Court stated that “[i]n worker’s [sic] compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s [Office of Workers’ Compensation’s] findings of fact is the ‘manifest error-clearly wrong’ standard.” The Supreme Court further stated that “the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety.” Id.

After reviewing the testimony of Drs. Nutik and Habig, we -find that the OWC correctly held that Ms. Taylor sustained a compensable injury while employed by J.C. Penney. An injured employee is entitled to receive benefits for an injury that arises out of and in the course and scope of her employment. La. R.S. 23:1031(A). In order to recover, the injured employee must establish (1) a work related accident; (2) a disability; and (3) a causal connection between the accident and the disability. Wilkerson v. City of New Orleans Fire Dept., 03-1550, p. 2 (La.App. 4 Cir. 3/3/04), 871 So.2d 375, 377, writ denied, 04-1548 (La.10/1/04), 883 So.2d 992. La. R.S. 23:1021(1) defines an accident as:

[A]n unexpected or unforeseen antual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than In simply a gradual deterioration or progressive degeneration.

The law is well established that an employer takes an employee as it finds him. Barber Brothers Contracting Co. v. Cuccia, 98-0675, p. 3 (La.App. 1 Cir. 4/1/99), 734 So.2d 820, 822, writ denied, 99-1258 (La.6/18/99),- 745 So.2d 31. The fact that disease alone might have disabled the employee in its ordinary course of progress is not the inquiry. Duncan v. State, Department of Transportation and Development, 556 So.2d 881, 886 (La.App. 2 Cir.1990). Employers do not “pay for every flare-up;” but they must compensate claimants who prove a disabling aggravation of prior, asymptomatic conditions as a result of an on-the-job injury. Id. at 886-87.

In the instant case, the evidence supports a finding that Ms. Taylor had an accident while in the course and scope of her employment with J.C. Penney, and therefore, a compensable injury. While transient osteoporosis may or may not be caused by trauma, the doctors agree that findings in her M.R.I. suggested a medical condition that later resolved. Dr. Habig focused on the fact that Ms. Taylor was asymptomatic before the accident and symptomatic afterward. Thus, he could not rule out the accident as a cause of Ms. Taylor’s injury. The OWC relied on such testimony when making its ruling. We do not that this was clearly wrong or manifestly erroneous.

The record also supports the finding that Ms. Taylor was placed on no-work status from 11 June 2003 through 14 July 2003 as a result of her compensable injury. Therefore, J.C. Penney is required to pay TTD at the stipulated rate of $308.99. We further find that once J.C. Penney had notice that Ms. Taylor was placed on no-work status, it had an obligation under the law to pay TTD. We find |1?no error in the OWC’s holding that J.C. Penney must pay a penalty in the amount of $2,000.00 and attorney’s fees of $3,500.00 for its failure to do so.

We now address the issue of the SEBs payments ordered by the OWC. Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive SEBs if the employee sustains a work-related injury that results in an inability to earn ninety percent or more of the average pre-injury wage. Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case. Freeman v. Poulan/Weed Eater, 93-1530, p. 7 (La.1/14/94), 630 So.2d 733, 738.

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the claim for SEBs, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. Id. at p. 1, 630 So.2d 739. The amount of an award of SEBs is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. See La. R.S. 23:1221(3)(a).

To determine if a trial court’s finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the employee’s inability to earn ninety percent or more of the pre-injury wages. Seal v. Gaylord Container Corp., 97-0688, p. 8, (La.12/02/97), 704 So.2d 1161, 1166.

This court has held that, although it may consider a claimant’s uncorroborated testimony of subjective pain concerning what his/her physical | ^limitations might be as a result of that pain, the decision of the court should not be based on claimant’s self-serving testimony on the ultimate issue of whether the claimant is able to work. Duhon v. Holi Temporary Services, Inc., 97-0604, pp. 6-7 (La.App. 4 Cir. 10/1/97), 700 So.2d 1152, 1155; see also Scott v. Lakeview Regional Medical Center, 01-0538, pp. 5-6 (La.App. 1 Cir. 3/28/02), 818 So.2d 217, 222, writ denied, 02-1712 (La.10/4/02), 826 So.2d 1127. As this court stated in Duhon:

We are reminded in Banks [v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 p. 8 (La.7/1/97); 696 So.2d 551, 556] of “the jurisprudential tenet that worker’s [sic] compensation is to be liberally construed in favor of coverage,” but we are also bound by La. R.S. 23:1221(3) (c) (ii) which provides that the burden on claimant is not a mere preponderance of the evidence, but one of “clear and convincing evidence” where the disability is “solely as a consequence of substantial pain.” The legislature obviously recognized the potential for abuse in this area when it enacted this heightened standard of proof.

Duhon, 97-0604 at p. 6, 700 So.2d at 1155. See also, Bethley v. City of New Orleans, 06-0921 (La.App. 4 Cir. 10/18/06), 945 So.2d 738.

The evidence demonstrates that Ms. Taylor was released by her doctors to perform sedentary work on a full time basis on or about 14 July 2003. The doctors testified that they could not find any objective evidence to explain Ms. Taylor’s continued complaints of pain. The record also shows that J.C. Penney offered Ms. Taylor forty hours of sedentary work per week. The sedentary work was described to Drs. Nutik and Habig, who both testified that Ms. Taylor was physically capable of doing the work provided by J.C. Penney. Based on the record, therefore, we find Ms. Taylor did not carry her burden of proof and that the trial court erred in awarding SEBs.

| uThe next assignment of error by J.C. Penney concerns the OWC’s order that it reinstate the hours of paid leave taken by Ms. Taylor in lieu of receiving indemnity benefits. J.C. Penney contends that the OWC does not have the jurisdiction to make such an order. Of course, while Ms. Taylor argues to the contrary, neither party has cited any authority to the court to support its position.

This court faced a similar issue in Miller v. City of New Orleans, 95-1005 (La.App. 4 Cir. 12/14/95), 665 So.2d 1293, where an employer was trying to take a credit for the employee’s accrued annual and sick leave. Therein we stated:

The Supreme Court held that the La. R.S. 23:1225(0 credit constitutes a restriction on an injured employee’s right to workers’ compensation benefits and must be strictly construed. Cousins v. City of New Orleans, 608 So.2d 978, 981 (La.1992). The court held that section to be inapplicable to a disabled NOFD [New Orleans Fire Department] employee who is eligible for retirement with the same amount of benefits under both a disability benefit plan and a tenure-based retirement benefit plan. The City relies on the Third Circuit’s holding in Cormier v. Lafayette Parish School Bd., 508 So.2d 207 (La.App. 3rd Cir.1987) wherein Ms. Cormier’s choice to use her sabbatical leave in order to recuperate required reduction of her SEB by the amount of her sabbatical leave earnings.
In the instant case, the City failed to prove the amount paid to Chief Miller as accrued annual and sick leave. However, even if there were evidence of the amount of these payments, they are distinguishable from the sabbatical leave at issue in Cormier. This Court rejected set-off of compensation benefits as sick or vacation days in Blanque v. City of New Orleans, 612 So.2d at 952. The Third Circuit itself rejected extension of Cormier in the context of sick leave. In Lewis v. Malone & Hyde, Inc., 626 So.2d 531, 533 (La.App. 3 Cir.1993), it held:
Because sick leave benefits are not among the enumerated benefits to which an employer is entitled an offset under La. R.S. 23:1225 ... we affirm the hearing officer’s award to Mr. Lewis of benefits for his initial week of disability.
|1F, Neither sick leave nor accumulated annual leave are included in the enumeration of statutory set-offs. Applying Cousins’ rule of strict construction, we conclude that the hearing officer properly refused to reduce Chief Miller’s compensation by the amount, if any, of his accrued annual and sick leave. This assignment of error is without merit.

Id. at p. 10, 665 So.2d at 1298.

In the instant case, Ms. Taylor was forced to take paid hours of leave in order to survive during the time J.C. Penney erroneously denied indemnity benefits. In other words, but for J.C. Penney’s arbitrary refusal to pay indemnity benefits, Ms. Taylor would not have used her annual leave. Because it is not entitled to a credit for these payments, and as the workers’ compensation scheme is to be liberally construed in favor of benefits, Frith v. Riverwood, Inc., 04-1086, p. 1 (La.1/19/05), 892 So.2d 7, 16 (Weimer, J., concurring in part and dissenting in part), we affirm the ruling of the OWC that J.C. Penney reinstate Ms. Taylor’s paid hours of leave that she took in lieu of receiving indemnity payments.

Finally, the OWC assessed a penalty and attorney’s fees against J.C. Penney for its alleged failure to authorize physical therapy requested by Dr. Habig on 14 May 2004. After reviewing the record, we find no evidence of a written order or a medical report from Dr. Habig to J.C. Penney advising it of his request. In addition, his deposition testimony is vague on this issue. Therefore, we reverse the award of penalties and attorney’s fees in this regard for physical therapy.

Based on the foregoing, we reverse the OWC’s award of SEBs and the penalty and attorney’s fees for the denial of physical therapy. In all other respects, the judgment is affirmed.

\ ^AFFIRMED IN PART; REVERSED IN PART; RENDERED.

      . Ms. Taylor did not return to see Dr. Habig until the following year.

      . It is undisputed that J.C. Penney has not paid any indemnity benefits to Ms. Taylor.

      .The deskwork consisted of organizing the "media” from the cash registers. The media are the various receipts, credit slips, coupons, etc., that are taken at the various registers in the store.


author: TOBIAS, Judge.

text:
    Scott A. CIPRIANO v. Sidney C. PULITZER, Liberty Mutual Insurance Company.
    No. 2007-CA-0010.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2007.

      William S. Vincent, Jr., W. Jared Vincent, V. Jacob Garbín, Law Offices of William S. Vincent, Jr., New Orleans, LA, for Plaintiff/Appellant.
    Kevin T. Phayer, Law Office of Marvin H. Olinde, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, Jr.)
   TOBIAS, Judge.

h The issue before us is whether the plaintiffs cause of action prescribed by one day.

On 11 April 2005, plaintiff/appellant, Scott Cipriano (“Cipriano”), and defendant/appellee, Sidney Pulitzer (“Pulitzer”), were involved in an automobile accident in New Orleans after Pulitzer allegedly attempted an illegal left turn in front of Cipriano. Cipriano filed suit on 12 April 2006, asserting that the collision injured his neck, back, and knees. Because the petition for damages was prescribed on its face by one day, Pulitzer filed a peremptory exception of prescription in the trial court proceedings.

In opposition to the exception, Cipri-ano’s counsel submitted an affidavit in which he attested that since Hurricanes Katrina and Rita hit Louisiana, his office had only one staff member return, and she had left the firm since that time. Also, he swore that his office staff had turned over twice since the hurricanes, and that he anticipated further staffing changes at his firm. He further stated that the staffing issues faced by his office caused great difficulty in meeting deadlines, and the efficiency of his firm had been harmed. He asserted that had the staffing problems not occurred, this suit would have been filed timely. Additionally, he put forth an | ^affidavit executed by the landlord for his residence that stated that he was displaced from his residence until 30 December 2005.

The exception was heard on 14 July 2006, and the trial court maintained the exception rendering judgment on 20 July 2006, dismissing Cipriano’s suit with prejudice. In its reasons for judgment, the trial court noted that it had considered the statutory language, as well as the arguments of counsel regarding R.S. 9:5824, labut concluded that the evidence did not preponderate to show that the petition for damages was filed at the earliest time practicable.

Cipriano appealed, assigning three errors. First, Cipriano asserts that the trial court erred in finding that La. R.S. 9:5824 did not bar a finding of prescription in this matter. Second, he asserts that the trial court erred in failing to apply the doctrine of contra non valentem agere nulla currit praescriptio (hereinafter, contra non va-lentem) to this case. Finally, he asserts that the trial court erred in failing to find that prescription was suspended for at least one day pursuant to Louisiana Civil Code article 3472 due to the court closures resulting from Hurricanes Katrina and Rita.

After reviewing the record on appeal, we do not find that the trial court erred in its application of La. R.S. 9:5824. The statute requires the trial court to make a factual determination after reviewing the evidence put forth by the petitioner that the claim is not prescribed. Our review of that finding is subject to a manifestly erroneous/clearly wrong standard, and we do not find that the trial court was clearly wrong in its determination that Cipriano failed to put forth sufficient evidence to carry his burden of proof pursuant to the statute. However, we note that La. R.S. 9:5824 is not the sole defense to an exception of prescription.

|4Civil Code article 3472 provides:

The period of suspension is not counted toward accrual of prescription. Prescription commences to run again upon the termination of the period of suspension.

Thus, if we find that the prescriptive period on Cipriano’s cause of action was suspended by just one day, it did not prescribe as a matter of law.

Prescription runs against all persons unless there is a legislative exception, or unless the doctrine of contra non valen-tem applies. La. C.C., art. 3467; Fontenot v. ABC Ins. Co., 95-1707, p. 4 (La.6/7/96), 674 So.2d 960, 963. Contra non valentem is a judicially-created exception to prescription. Id., citing, Rajnowski v. St. Patrick’s Hospital, 564 So.2d 671, 674 (La.1990). The doctrine suspends the running of prescription in four situations:

(1) Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action;
(2) Where there was some condition coupled with a contract or connected with the proceedings which prevented the creditor from suing or acting;
|s(3) Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action;
(4)Where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.

Id.; Rajnowski at 674.

Cipriano asserts that due to Hurricane Katrina, all available courts with jurisdiction over his cause of action were closed from 29 August 2005 until 2 September 2006, when the Nineteenth Judicial District Court reopened in Baton Rouge. He urges the application of contra non valen-tem to find that because all available courts of jurisdiction were closed due to Hurricane Katrina, he had no legal recourse for those days and prescription should be suspended for that time. We find his argument persuasive. It is undisputed that for at least one day following Hurricane Katrina, all of the courts of jurisdiction over Cipriano’s cause of action in Louisiana were closed and unavailable to litigants. Thus, for at least one day, there was legal cause that prevented the courts from recognizing Cipriano’s cause of action. Therefore, one of the conditions under which contra non valentem applies was present. The effect of the court closures was to suspend prescription for the duration of time that there was no court of competent jurisdiction open in which Cipri-ano could file his petition for damages.

Thus, we find that because prescription was suspended for at least one day, Cipri-ano’s suit was filed timely pursuant to the literal language of La. C.C. art. R3472. Accordingly, we reverse the judgment of the trial court and remand for further proceedings.

REVERSED; REMANDED.

      . § 5824. Purpose; certain courts; suspension and extension of prescription and per-emption and other legal deadlines
      A. The legislature finds that Hurricanes Katrina and Rita created a statewide emergency which affected the entire judicial system in this state and all legal communities, and prohibited the court system from functioning as required by law. The legislature acknowledges that the proper functioning of this state's judicial system is essential to the administration of justice for all citizens. The legislature also recognizes that the courts in Cameron, Orleans, Plaquemines, St. Bernard, Jefferson, and Vermilion, the legal communities, and the citizens were so severely devastated and although the courts may be open on a limited basis, the massive destruction of these areas continues to endanger and infringe upon the normal functioning of the judicial system, the ability of persons to avail themselves of the judicial system and the ability of litigants or others to have access to the courts or to meet schedules or time deadlines imposed by court order or rule or statute. The majority of residents and attorneys domiciled in these areas have been displaced and numerous client files, witnesses, evidence, records and documents have been lost, damaged, or destroyed. The legislature hereby declares that there is a compelling governmental interest in protecting the rights, claims, or actions of parties and the attorneys who represent them by granting additional time and access to these courts provided in this Section.
      B. (1) Notwithstanding the provisions of R.S. 9:5822 or 5823, a party who is domiciled within the parishes of Cameron, Orleans, Plaquemines, St. Bernard, Jefferson, or Vermilion, or whose cause of action arose within such parishes or whose attorney is domiciled within or has a law office within such parishes, may seek in any court of competent jurisdiction in this state a limited suspension and/or extension of prescription or peremption periods or other legal deadlines, beyond the termination dates provided in R.S. 9:5822 and 5823, by contradictory motion or declaratory judgment. The party seeking an additional suspension and/or extension, in accordance with the provisions of this Section, shall bear the burden of proving by a preponderance of the evidence that the motion was filed at the earliest time practicable and but for the catastrophic effects of Hurricane Katrina or Rita, the legal deadline would have been timely met. If the court grants the motion, the prescription or peremptive period or other legal deadline shall be suspended or extended for a period not to exceed thirty days from the date of the granting of the motion. This limited suspension or extension shall terminate on June 1, 2006, and any right, claim, or action which would have expired during the time period of January 4, 2006, through May 31, 2006, shall lapse on June 1, 2006. (2) The failure to file the motion authorized in Paragraph (1) of this Subsection shall not preclude a party from using the basis of the motion as a defense to an exception of prescription.

      . Stobart v. State of Louisiana, through Dept. of Transportation and Development, 617 So.2d 880 (La.1993).

      . Also, éven though we find that Cipriano did not carry his burden of proof under La. R.S. 9:5824, we are mindful of the statute’s stated purpose to protect the legal rights of litigants due to the catastrophic effects of Hurricane Katrina. Counsel for Cipriano admits that the failure to file the petition for damages timely was an oversight that resulted from the chaos in his legal practice brought on by the storm.

      . The Louisiana Supreme Court has held that:
      Suspension of prescription constitutes a temporary halt to its running. One doctrinal source aptly describes suspension as a period of time in which prescription slumbers. Prescription is suspended for as long as the cause of suspension continues. After the cause for the suspension ends, the prescriptive time begins running and the "time which precede[d] the suspension is added to the time which follows it to compose the necessary period; only the period of the suspension is deducted.”

        LeBreton v. Rabito, 97-2221, p. 6 (La.7/8/98), 714 So.2d 1226, 1229, quoting, G. Baudier-Lacantinerie A. Tissier, TRAITE THEORIQUE ET PRATIQUE DE DROIT CIVIL, Nos. 415, 368, 389 (4 ed.1924), reprinted in 5 CIVIL LAW TRANSLATIONS at 15 (La. St. Law Inst. Trans. 1972).


author: LEON A. CANNIZZARO, Jr., Judge.

text:
    Unisa A. IGWIKE v. MEMORIAL MEDICAL CENTER, Dr. William F. Von Almen, II and Louisiana Patient Compensation Fund (PCF 2003-02003).
    No. 2006-CA-0167.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2007.
    Pius A. Obioha, Law Offices of Pius A. Obioha & Associates, LLC, Baton Rouge, LA, for Appellant, Unisa A. Igwike.
    David A. Woolridge, Jr., Carlton Jones, III, Roedel, Parsons, Koch, Blache, Bal-hoff & McCollister, A.L.C., Baton Rouge, LA, for Appellee, Patient’s Compensation Fund Oversight Board and Patient’s Compensation Fund.
    (Court composed of Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, Jr.).
   LEON A. CANNIZZARO, Jr., Judge.

liThe appeal in this case arises in connection with a medical malpractice claim by the plaintiff, Unisa A. Igwike. At issue is the trial court’s interpretation of La. R.S. 40:1299.47(A)(c)-(d), regarding when either a filing fee or the documentation required for a waiver of the filing fee must be received in order for a request for a medical review panel to be valid. We affirm the trial court judgment and find that the deadline established in La. R.S. 40:1299.47(A)(c)-(d) was not met.

FACTS AND PROCEDURAL HISTORY

Pursuant to the Louisiana’s Medical Malpractice Act, La. R.S. 40:1299.41 et seq. (the “Act”), Ms. Igwike’s attorney filed a medical malpractice complaint on her behalf in connection with certain alleged acts of malpractice that occurred in connection with the birth of her son on November 7, 2002. The complaint was mailed to the Louisiana Patient’s Compensation Fund (“the Fund”) with a cover letter dated November 7, 2003. The complaint was received by the Louisiana Division of Administration on November 12, 2003, and by the oversight board for the Fund on November 13, 2003.

|2The Fund sent a letter, which was dated November 25, 2003, but postmarked December 2, 2003, to Ms. Igwike’s attorney. In the letter, the Fund’s malpractice insurance director advised the attorney that the request made on behalf of Ms. Igwike for a medical review panel had been received and that Memorial Medical Center and Dr. William F. Yon Almen, II were both providers who were qualified under the Act. The letter also advised the attorney that “[i]n accordance with Act No. 961 of the 2003 Regular Session, which amended La. R.S. 40:1299.47.A.(l)(c), effective August 15, 2003, a filing fee of $100 per qualified defendant is due within 45 days from the date of this notice.” A filing fee in the amount of $200.00 was requested, and the letter further stated that the filing fee could be waived only if certain documents, as set forth in La. R.S. 40:1299.47(A)(1)(d), were received by the Fund in accordance with the statute. ^Finally, the letter stated that “failure to comply shall render the request [for a medical review panel] invalid and without effect....”

On January 16, 2004, Ms. Igwike’s attorney obtained an In Forma Pauperis Affidavit containing a signed court order authorizing Ms. Igwike to prosecute her malpractice claim in accordance with La. C.C.P. art. 5181 without having to pay costs in advance or as they accrue and without having to furnish security. According to Ms. Igwike’s attorney, also on January 16, 2004, he mailed the In Forma Pauperis Affidavit- to the Fund to satisfy the requirements set forth in La. R.S. 40:1299.47(A)(l)(d)(ii) for a waiver of the filing fee for a medical review panel request. The trial court found, and Ms. Igwike’s attorney agreed, that the In For-ma Pauperis Affidavit was not received by the Fund until February 3, 2004..

In a letter dated January 28, 2004, the executive director of the Fund advised Ms. Igwike’s attorney that he failed either to “remit a filing fee of $200, a physician’s affidavit, or a forma pauperis ruling” within the time period specified in La. R.S. 40:1299.47(A)(l)(c)-(d). Therefore, according to the letter, the request for a medical review panel in Ms. Igwike’s case would not be considered as filed.

In response to the January 28 letter, Ms. Igwike’s attorney wrote a letter, Rdated January 31, 2004, to the Fund explaining that he did not receive the Fund’s letter, dated November 25, 2003, that set forth the requirements for complying with La. R.S. 40:1299.47(A)(l)(c)-(d) until approximately December 15, 2003. The letter to the Fund further explained that the envelope in which the November 25, 2003 letter was mailed was postmarked December 2, 2003. Based on his contention that he had not received the November 25, 2003 letter until approximately December 15, 2003, Ms. Igwike’s attorney took the position that the forty-five day period set forth in La. R.S. 40:1299.47(A)(l)(e) had not yet expired when the In Forma Pauperis Affidavit was submitted to the Fund.

In a letter dated March 10, 2004, from the Fund to Ms. Igwike’s attorney, the executive director of the Fund explained that because the attorney had not complied with the statutory time limits for filing the In Forma Pauperis Affidavit, no further action could be taken with respect to Ms. Igwike’s request for a medical review panel. Ms. Igwike’s attorney responded to the March 10 letter in a reply dated March 15, 2004. In the reply, the attorney contended that the Fund had misconstrued the statutory time limits for filing the In Forma Pauperis Affidavit.

The executive director sent a letter dated March 18, 2004, to Ms. Igwike’s attorney in answer to his March 15 letter. The executive director of the Fund advised Ms. Igwike’s attorney that legal counsel for the Fund had reviewed the contentions that the attorney had raised regarding the timing of the filing of the In Forma Pauperis Affidavit. After the Fund’s legal counsel reviewed the contentions |Bof Ms. Igwike’s attorney and found them to be without merit, the Fund maintained its original position that the affidavit had not been timely filed.

Ms. Igwike then filed a petition for judicial review of the Fund’s decision not to accept her request for a medical review panel. After a hearing, the trial court granted the petition for judicial review. The relief sought was denied, however. Ms. Igwike is now appealing the decision of the trial court to uphold the dismissal of her request for a medical review panel.

DISCUSSION

Standard of Review

The issue in the instant case is a matter of statutory interpretation, which is a matter of law. Cleco Evangeline, LLC v. Louisiana Tax Comm’n, 01-2162, p. 3 (La.4/3/02), 813 So.2d 351, 353. Therefore, this Court is required to conduct a de novo review in determining whether the trial court was legally correct in its interpretation of the statute and its application in the instant case. See id.

Assignment of Error

In Ms. Igwike’s brief she contends that the trial court incorrectly interpreted La. R.S. 40:1299.47(A)(l)(c)-(d) to require the filing of the In Forma Pawperis Affidavit within forty-five days from November 25, 2003. That was the date of the Fund’s letter to Ms. Igwike’s attorney that set forth the requirement that a filing fee, a physician’s affidavit, or an in forma pau-peris court ruling had to be provided within a forty-five day period. The letter further stated that if the forty-five day | fiperiod elapsed without the required payment or filing, the request for a medical review panel would not be valid.

Applicable Law

The relevant sections of the Act that are applicable in the instant case are La. R.S. 40:1299.47(A)(l)(c), La. R.S. 40:1299.47(A)(l)(d), La. R.S. 40:1299.47(A)(3)(b), and La. R.S. 40:1299.47(A)(4), all of which were enacted by Act 961 of the 2003 Regular Session of the Louisiana Legislature (“Act 961”), as well as La. R.S. 40:1299.47(A)(3)(a), which was already in effect at the time Act 961 was passed. Section 3 of Act 961 provided that “[t]he provisions of this Act shall not affect claims filed before the effective date of this Act.” The effective date of Act 961 was August 15, 2003.

R.S. 40:1299.47(A)(l)(c)

This statute provides that a medical malpractice claimant has forty-five days from the mailing date of the confirmation of the receipt of a request for a medical review panel to pay the required filing fee. The filing fee is specified to be one hundred dollars for each qualified health care provider named as a defendant in a malpractice claim.

La. R.S. 4.0:129947(A)(3)(a)

This statute requires the Fund’s oversight board to confirm by certified mail, |7return receipt requested, to a medical malpractice claimant that the claimant’s request for a medical review panel has been officially received. The confirmation must also state whether the defendants named in the claim have qualified under the applicable provisions of the Act.

La. R.S. 40:129947(A)(3)(b)

This statute requires the confirmation for which La. R.S. 40:1299.47(A)(3)(a) provides to contain certain notices to the malpractice claimant. The claimant must be notified of the amount of the filing fee that is due and the time frame within which it will be due. The claimant must also be notified that if the filing fee required by La. R.S. 40:1299.47(A) is not paid or if the necessary documents needed to waive the fee are not provided within the specified time frame, the request for a review of a malpractice claim will be “invalid and without effect.”

La. R.S. 40:129947(A) (l)(d)

This statute sets forth the requirements that must be met for a filing fee to be waived. La. R.S. 40:1299.47(A)(1)(d)(i) provides that a filing fee may be waived upon the timely receipt of an affidavit of a properly licensed physician certifying that adequate medical records have been reviewed and that the malpractice allegations against each defendant health care provider constitute a claim of a breach of the applicable standard of care by the provider. La. R.S. 40:1299.47(A)(l)(d)(ii) further provides that a filing fee may be waived upon the |stimely receipt of an in forma pauperis ruling issued by a district court in a venue in which the malpractice claim could properly be brought after the medical review panel process has been completed.

La. R.S. 40:1299.4.7(A) (í)

This statute requires the Fund’s oversight board to notify a medical malpractice claimant by certified mail, return receipt requested, regarding the receipt or waiver of the filing fee. If the Fund has not received the filing fee or the documentation required for a waiver of the fee, the claimant must also be notified. La. R.S. 40:1299.47(A)(4)(d).

Legal Analysis

In the instant case, the evidence shows that the November 25, 2003 letter from the Fund that confirmed the receipt of Ms. Igwike’s request for a medical review panel was mailed on December 2, 2005. Therefore, under La. R.S. 40:1299.47(A)(l)(c)-(d), Ms. Igwike was required to pay a filing fee, submit a physician’s affidavit, or provide an in forma pauperis court ruling to the Fund within forty-five days of the mailing date of the November 25, 2003 letter, which was December 2, 2003. Forty-five days from December 2, 2003, was January 16, 2004. The In Forma Pauperis Affidavit was not mailed to the Fund until January 16, 2004, at the earliest, and it was not received by the Fund until February 3, |fl2004. Thus, it could not have been received within the applicable time period. Under La. R.S. 40:1299.47(A)(3)(b), Ms. Igwike’s request for a review of her malpractice claim was “invalid and without effect.”

DECREE

Ms. Igwike’s request for a medical review panel is without effect. The judgment of the trial court is hereby affirmed.

AFFIRMED.

      . ' La. R.S. 40:1299.47(Á)(l)(c)-(d); as amended by Act 961 of the 2003 Regular Session of the Louisiana Legislature, read in relevant part as follows:
      (c) A claimant shall have forty-five days from the mailing date of the confirmation of receipt of the request for review ... to pay to the board [the oversight board of the Fund] a filing fee in the amount of one hundred dollars per named defendant qualified under this Part.
      (d) Such filing fee may be waived only upon receipt of one of the following:
      (i) An affidavit of a physician ... certifying that adequate medical records have been obtained and reviewed and that the allegations of malpractice against each defendant health care provider ... constitute a claim of a breach of the applicable standard of care as to each named defendant health care provider.
      (ii) An in forma pauperis ruling issued in accordance with Louisiana Code of Civil Procedure Article 5181 et seq. by a district court in a venue in which the malpractice claim could properly be brought upon the conclusion of the medical review panel process.

      . La. C.C.P. art. 5181 reads in relevant part as follows:
      A. Except as provided in Paragraph B [relating to persons who are incarcerated] of this Article, an individual who is unable to pay the costs of court because of his poverty and lack of means may prosecute or defend a judicial proceeding in any trial or appellate court without paying the costs in advance or as they accrue or furnishing security therefor.

      . Act 961 became effective August 15, 2003, pursuant to La. Const, art III, § 19, which provides in relevant part that unless an earlier or later effective date is specified, "[a]ll laws enacted during a regular session of the legislature shall take effect on August fifteenth of the calendar year in which the regular session is held....”

      . There is no evidence in the record to indicate that the November 25, 2003 letter was sent by certified mail, but this issue was not raised in the trial court or on appeal.

      . The trial court found that the forty-five day period in La. R.S. 40:1299.47(A)(l)(c) began on November 25, 2003. We, however, find that the forty-five day period must be counted from December 2, 2003, because the mailing date, not the date of the confirmation of the receipt of a request for a medical review panel, is the determinative date under La. R.S. 40:1299.47(A)(1)(c).

      . Even if the operative date was the date of receipt of the November 25, 2003 letter, which Ms. Igwike’s attorney contends was received on December 15, 2003, rather than the date of mailing as provided in La. R.S. 40:1299.47(A)(1)(c), Ms. Igwike’s attorney still did not comply with the forty-five day deadline. The In Forma Pauperis Affidavit was not received until February 3, 2004, which was more than forty-five days from December 15, 2003.


author: JAMES F. McKAY III, Judge.

text:
    Keith McELRATH, Sean McElrath v. DEPARTMENT OF POLICE.
    No. 2006-CA-1288.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2007.

      Gary M. Pendergast, New Orleans, Louisiana, for Plaintiffs/Appellants.
    Penya M. Moses-Fields, City Attorney for Orleans Parish, Joseph Y. Dirosa, Jr., Chief Deputy City Attorney for Orleans Parish, James B. Mullaly, Assistant City Attorney for Orleans Parish, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge LEON A. CANNIZZARO, Jr., Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

hln this consolidated appeal, the plaintiffs/appellants, Sergeant Keith McElrath and his son, Officer Sean McElrath, seek review of a decision of the Civil Service Commission of the City of New Orleans upholding a forty-five (45) day suspension for Sgt. McElrath and a thirty (30) day suspension for Officer McElrath imposed by the Superintendent of the New Orleans Police Department. We affirm.

FACTS AND PROCEDURAL HISTORY

On August 27, 2005, due to the approach of Hurricane Katrina, Superintendent Eddie Compass placed the New Orleans Police Department in “Activation Status” in order to mobilize departmental personnel for emergency operations upon the hurricane’s making landfall. Pursuant to this status, all essential personnel were required to report to duty and remain on duty until relieved. It was made clear that only the Superintendent himself could grant furlough to an officer who sought to be relieved of duty after the storm. Both Sgt. | j>McElrath and Officer McElrath were essential personnel and were assigned to the Second Police District.

Sgt. McElrath and Officer McElrath reported for duty on Sunday, August 28, 2005. On August 29, 2005, Hurricane Katrina made landfall. The McElraths’ family members had decided to ride out the storm at the McElrath home in Lacombe, Louisiana. The appellants lost all communication with their family members in the aftermath of the hurricane and by late Monday they began hearing reports of devastation on the northshore, including tornadoes in the Lacombe area. On Tuesday, Sgt. McElrath informed his lieutenant that he and his son would be leaving to check on their family but would return. The McElraths eventually located their family in Houston, Texas and returned to the Second District on Friday, September 2, 2005.

On September 26, 2005, the Public Integrity Bureau initiated a DI-1 investigation form. On November 21, 2005, Sean McElrath received a disciplinary letter wherein he was given a thirty (30) day suspension. On December 1, 2005, Keith McElrath received a disciplinary letter wherein he was given a forty-five (45) day suspension. Both Keith and Sean McEl-rath filed appeals with the Civil Service Commission.

The Commission assigned the matters to a hearing examiner pursuant to Article X, Section 12 of the Constitution of the State of Louisiana, 1974. The respective hearings were held on March 7, 2006 and March 21, 2006. On August 18, 2006, the Civil Service Commission rendered its decision wherein the | ^Commission dismissed the appeals thereby affirming the discipline handed down by the Department of Police. It is from this decision that the McElraths now appeal.

DISCUSSION

On appeal, the appellants raise the following assignments of error: 1) the Civil Service Commission committed manifest error in dismissing the appellants’ appeals since under the conditions created by Hurricane Katrina, no discipline was warranted in these cases; 2) the Civil Service Commission committed manifest error in denying the appellants’ appeals under circumstances where the discipline by the appointing authority was excessive under the circumstances; and 3) the Civil Service Commission committed manifest error in falling to recognize the violation of the appellants’ rights pursuant to the Police Officers Bill of Rights. La. R.S. 40:2531 B(7).

In a civil service matter, the standard of review is whether the decision by the Commission is arbitrary, capricious or characterized by an abuse of discretion. Alongi v. Dept. of Police, 452 So.2d 798 (La.App. 4 Cir.1984). It should also be noted that the Civil Service Commission has an obligation to uphold the disciplinary action of the appointing authority when there is sufficient cause shown to sustain such action. Joseph v. Dept. of Health, 389 So.2d 739 (La.App. 4 Cir.1980).

In the instant case, the appellants left their post for two days (August 30— 31, 2005) after Hurricane Katrina. The appellants were aware that only the 1 ¿Superintendent himself could grant furlough to an officer who sought to be relieved of duty after the storm, but left anyway. Although the appellants actions were understandable, that does not change the fact that they violated the rule laid down by the Superintendent. The purpose of this rule was to centralize control of the police force under the Superintendent and avoid chaos in organizing and administering rescue efforts following the hurricane. As such the appointing authority disciplined both appellants in accordance with its uniform standards (Sgt. McElrath was given more discipline than his son because of his supervisory status as a sergeant). Under the circumstances of this case, the decision by the Civil Service Commission was not arbitrary, capricious or characterized by an abuse of discretion, and it was not excessive.

We also find no violation of the appellants’ rights pursuant to La. R.S. 40:2531 B(7) (the “60 day rule”). Investigations of the appellants were both initiated on September 26, 2005 and the investigations were completed and submitted on October 17, 2005 for Sean McElrath and on October 24, 2005 for Keith McElrath. Accordingly, there is no violation of La. R.S. 40:2531 B(7).

CONCLUSION

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

AFFIRMED.


author: EDWIN A. LOMBARD, Judge.

text:
    Sheena LLOYD, on Behalf of her Minor Son, Anthony LEGAUX, Jr. v. Eloise WILLIAMS, on Behalf of the Minor Child, Charles WILLIAMS, Orleans Parish School Board, and XYZ Insurance Company.
    No. 2007-CA-0004.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2007.

      Clarence Roby, Jr., New Orleans, LA, for Plaintiff/Appellant.
    Cherrell R. Simms, Donesia D. Turner, Bryan & Jupiter, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS Sr., Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| iPlaintiffAppellant, Sheena Lloyd (“Ms. Lloyd”), appeals the trial court’s judgment sustaining the Exception of Prescription of Defendant/Appellee, the Orleans Parish School Board (the “School Board”). For the reasons stated below, we affirm the trial court’s judgment.

Relevant Facts

On October 2, 2002, Ms. Lloyd filed suit in First City Court of the City of Orleans against, inter alia, the School Board, after her minor child, Anthony Legaux, Jr., was injured on October 1, 2001 during a physical altercation with a fellow student, Charlie Williams. The School Board was served with Ms. Lloyd’s Petition on October 22, 2002. On January 15, 2003 the School Board filed, in First City Court, a Declinatory Exception of Lack of Subject Matter Jurisdiction on the basis that the School Board could not be sued in that court. After a hearing on March 28, 2003, the court granted the Exception and ordered the case to be transferred to Civil District Court for the Parish of Orleans (“CDC”). The matter was transferred to CDC on January 11, 2005.

|2On June 9, 2005, the School Board filed, in the district court, a Motion to Dismiss For Failure to Serve Within 90 days and an Exception of Prescription; Or in the Alternative, Exception of Insufficiency of Service of Process. The matter was set for hearing on September 30, 2005, but was continued due to Hurricane Katrina. On February 21, 2006, the School Board filed a Motion and Order to Reset Rule Date and the matter was set for April 28, 2006. Although counsel for Ms. Lloyd was not present for the hearing, the district court proceeded with the hearing and judgment was rendered granting the School Board’s Exception of Prescription, dismissing it with prejudice from the lawsuit. The court also rendered the School Board’s alternative Motion to Dismiss for Failure to Serve within 90 days moot.

Ms. Lloyd filed a Motion for New Trial on May 15, 2006, and the matter was set for hearing on July 21, 2006. At the hearing, the district court granted Ms. Lloyd’s Motion for New Trial and reheard the School Board’s Exception of Prescription. On August 7, 2006, the district court granted the School Board’s Exception and dismissed it with prejudice from the lawsuit. Ms. Lloyd now appeals this judgment.

Law and Analysis

In reviewing a peremptory exception of prescription, an appellate court will 13review the entire record to determine whether the district court’s finding of fact was manifestly erroneous. Katz v. Allstate Insurance Company, 04-1133, p. 2 (La.App. 4 Cir. 2/2/05), 917 So.2d 443, 444. Further, the standard controlling review of a peremptory exception of prescription requires that this Court strictly construe the statutes against and in favor of the claim that is said to be extinguished. Id.

A tort claim is subject to a one-year prescriptive period. La. Civ.Code art. 3492 (West 2006). Ms. Lloyd filed suit against the School Board in First City Court on October 2, 2002, the last day of the prescriptive period. Louisiana Revised Statute 13:5104(B) provides that all suits filed against a political subdivision of the state, such as a school board, “shall be instituted before the district court of the judicial district in which the political subdivision is located or in the district court having jurisdiction in the parish in which the cause of action arises.” La.Rev.Stat. 13:5104(B) (West 2006). A city court, such as First City Court, has no jurisdiction to preside over an action against the School Board. See La.Code Civ. Proc. art. 4847(A)(6) (West 2006). Louisiana Civil Code Article 3462 provides that “[i]f an action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.” La. Civ.Code art. 3462 (West 2006).

In this case, because the lawsuit was filed in a court of incompetent jurisdiction, Ms. Lloyd should have served the School Board with her Petition by October 1, 2002 in order to interrupt prescription. Ms. Lloyd served the School | ¿Board with the lawsuit on October 22, 2002, twenty days after the prescriptive period had ended. Therefore, prescription was not interrupted as to the School Board because it was not served within the prescriptive period, and Ms. Lloyd’s claim against the School Board has prescribed. As such, the trial court was correct in sustaining the School Board’s Exception of Prescription.

Conclusion

We find no error in the trial court’s judgment granting the School Board’s Exception of Prescription. Accordingly, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Ms. Lloyd.

AFFIRMED.

      . The record indicates that the School Board failed to request sheriffs service on Ms. Lloyd regarding the new date, but did serve a copy of the pleading via U.S. mail.

      . During our initial review of this appeal, we noted that Ms. Lloyd’s Motion for Appeal may have been filed untimely in light of the fact that the Notice of Signing of Judgment was mailed on 8/7/2006 and Ms. Lloyd did not file her Motion for Appeal until 10/17/06, several days after the delay for filing an appeal pursuant to La.Code Civ. Proc. art 2087 had run. However, the record indicates that the Notice of Signing of Judgment was returned to the court for insufficient address on or about 8/24/06, was thereafter remailed, and was not actually received by counsel for Ms. Lloyd until 9/13/06. Because the insufficient address was an error not attributable to Ms. Lloyd, we will hear her appeal.

      . Further, lack of subject matter jurisdiction cannot be waived by a general appearance or any other action. Piper v. Olinde Hardware & Supply Co., 288 So.2d 626, 628 (La.1974).


author: PICKETT, Judge. THIBODEAUX, Chief Judge,

text:
    Sheryl CHARLES v. LAKE CHARLES MEMORIAL HOSPITAL.
    No. 06-1590.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.
    Rehearing Denied July 11, 2007.

      Andrew Robinson Johnson IV, Plauche, ' Smith & Nieset, Lake Charles, LA, for Defendanb-Appellant, Lake Charles Memorial Hospital.

      Mark Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff-Appellee, Sheryl Charles.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

_J_jThe defendant-appellant, Lake Charles Memorial Hospital, appeals a judgment of the Office of Workers’ Compensation, finding the claimant, Sheryl Charles, suffered an accident and is entitled to workers’ compensation benefits. Ms. Charles has answered the appeal, seeking attorney fees for work done on this appeal.

STATEMENT OF THE CASE

On May 26, 2002, Sheryl Charles injured her left knee while working as a certified nurse assistant at Lake Charles Memorial Hospital (LCMH). LCMH determined that the injury was covered under workers’ compensation and began paying Mrs. Charles temporary total disability payments. They also paid for all costs associated with the knee injury, including two knee surgeries and subsequent rehabilitation.

While undergoing physical therapy on March 12, 2004 at LCMH, Mrs. Charles alleged an electric stimulation machine malfunctioned and caused an electric shock to jolt through her body. She claimed this electric shock caused her to injure her back. LCMH investigated her claim that an accident occurred and determined that an accident did not occur. LCMH refused to authorize treatment for her back injury.

Mrs. Charles underwent a functional capacity evaluation on July 13, 2004. Dr. Stephen Flood, who treated Mrs. Charles for her knee injury, released her to return to work on August 6, 2004. This release only took into account the injury to her knee, not her complaints about her back injury following the March 12, 2004, accident. LCMH offered Mrs. Charles a position to return to work on January 10, 2005. When she failed to return to work, they terminated Mrs. Charles’ benefits.

Mrs. Charles filed a disputed claim for compensation on November 29, 2004, | ¡.alleging she injured her back when she was shocked while undergoing physical therapy for her knee. LCMH filed an answer denying that an accident occurred on March 12, 2004. A trial before the workers’ compensation judge (WCJ) was held on June 22, 2006, after which the WCJ took the matter under advisement. On September 26, 2006, the WCJ issued a judgment in favor of Mrs. Charles. In oral reasons for ruling dated October 2, 2006, she found that an accident occurred on March 12, 2004, that the accident caused aggravation of Mrs. Charles’ preexisting back condition, and that LCMH failed to reasonably controvert the claim. She awarded Mrs. Charles “all back payments,” as well as $2,000.00 in penalties and $6,000.00 in attorney fees.

LCMH now appeals that judgment, and Mrs. Charles has answered that appeal.

ASSIGNMENTS OF ERROR

The appellant, Lake Charles Memorial Hospital, asserts three assignments of error:

1. The trial court committed manifest factual error in finding that plaintiff received personal injury by accident arising out of and in the course of her employment with LCMH.

2. The trial court committed a reversible, prejudicial legal error in admitting into evidence the August 30, 2005 letter from plaintiffs counsel to Dr. Bernauer.

3. The trial [court] erred in finding that LCMH failed to reasonably controvert plaintiffs claim and, thus, erred in awarding penalties and attorney fees.

The appellee, Sheryl Charles, answers the appeal, seeking attorney fees for work done on this appeal.

DISCUSSION

The first assignment of error involves the issue of whether an accident actually occurred on March 12, 2004. The WCJ found that an accident occurred. This is a ^finding of fact subject to review under the manifest error standard. Dean v. Southmark Constr., 03-1051 (La.7/6/04), 879 So.2d 112.

Mrs. Charles testified that while she was receiving electric stimulation to her knee, she suddenly felt a surge of pain all through her body. This pain caused her to scream and writhe on the treatment table. The physical therapist, Jerry Stillwell, testified that he heard Mrs. Charles scream, but his back was turned when she did, so he did not see her move. He testified that Mrs. Charles was grabbing at her shirt. He also stated that before he turned the machine off, there was an error code, though he did not record it. Mrs. Charles’ blood pressure increased, and she was taken to the emergency room until it returned to normal. All of this information was confirmed by Mr. Stillwell’s notes taken on March 12, 2004.

Bill Wilkie, the safety officer for LCMH, conducted an investigation of the incident. He testified that he was unable to duplicate the situation that Mrs. Charles claims occurred. He contacted the manufacturer of the device, and they could not explain the incident either. Based on this information, LCMH determined there was no accident. After she was released to go back to work regarding the original injury and failed to do so, Mrs. Charles’ worker’s compensation benefits were terminated.

The WCJ found Mrs. Charles’ story to be credible and the testimony of Mr. Still-well corroborated her version of events. We find there is ample evidence to support the finding of the WCJ that an accident occurred on March 12, 2004. Thus, there is no manifest error in this conclusion by the WCJ. This assignment of error lacks merit.

The second assignment of error concerns the admission of evidence. “The trial judge is accorded vast discretion concerning the admission of evidence, and his | ¿decision will not be reversed on appeal absent an abuse of that discretion.” Foster v. Rabolais Masonry, Inc., 01-1394, p. 6 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1164, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784 (citation omitted).

The WCJ admitted a letter offered into evidence by Mrs. Charles over the objection of LCMH. The letter was written by Mrs. Charles’ attorney to Dr. Dale Ber-nauer, who treated Mrs. Charles’ back injuries which she claims arose out of the March 12, 2004 accident. The letter provided some background on the incident and then posed four questions, including a question about causation. The letter includes short handwritten notes, presumably from Dr. Bernauer, answering the questions posed. The letter is signed by Dr. Bernauer.

LCMH objected to the introduction of the letter, arguing that it was not competent evidence since it was not an affidavit or testimony under oath. Section 6209 of the Office of Workers’ Compensation (OWC) Hearing Rules states:

Expert medical testimony may be admitted by:
A. Reports of any health care provider certified as a true copy in accordance with the Louisiana Revised Statutes 13:3715.1.
B. Deposition.
C. Oral examination in open court proceedings; however, no more than two physicians may present testimony for either party except by order of the judge.
D. Any other manner provided by law.

The letter is not a certified copy of a medical report, a deposition, or an oral examination in open court.

Mrs. Charles argues that LCMH did not object to the letter within ten days of receiving it in September 2005, thus it is deemed admitted pursuant to OWC Hearing Rules section 5933(B). This section applies only to medical reports, and this letter is not a medical report. Thus, this section does not apply.

| ^Secondly Mrs. Charles argues that the letter should be considered “competent hearsay evidence.” The supreme court discussed the relaxed rules of evidence applicable to workers’ compensation proceedings in Chaisson v. Cajun Bag & Supply Co., 97-1225, pp. 9-14 (La.3/4/98), 708 So.2d 375, 381-382 (footnote omitted):

LSA-RS 23:1317 mandates that the hearing officer’s factual findings be based on “competent evidence.” LA. REV.STAT. ANN. 23:1317(A) (West Supp.1997). This legislative mandate is necessary because under the express language of LSA-RS 23:1317, worker’s compensation hearing officers are “not bound by the technical rules of evidence.” Id. In other words, the hearing officer has the discretion to admit evidence that would otherwise be inadmissible under the Louisiana Code of Evidence. This more relaxed standard for the admissibility of evidence is the general rule in proceedings before administrative agencies. MCCORMICK ON EVIDENCE § 352 (4th ed.1992). The legislative requirement that a hearing officer’s factual findings be based upon competent evidence is the safeguard that ensures that the factual findings are made on evidence that has some degree of reliability and trustworthiness, notwithstanding that the evidence might fall outside of the technical rules for admissibility. Therefore, when a reviewing court evaluates the factual findings of a hearing officer under the manifest error standard, it must determine whether the factual findings are reasonable and supported by competent evidence in the record. Although the Legislature has not defined “competent evidence,” in order to give the relaxed evidentiary standard in LSA-RS 23:1317 effect, it must not be defined so narrowly as to mean only evidence that would fall within the parameters of the Louisiana Code of Evidence. If the hearing officer’s factual findings are reasonably supported by competent evidence, then the reviewing court must affirm them.
In the instant case, we are first called upon to decide whether hearsay evidence can qualify as competent evidence. “Hearsay” is defined as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” LA. CODE EVID. ANN. art. 801(C) (West 1995). The traditional exclusion of hearsay evidence is based upon concerns of unreliability that arise from the inability to test the veracity of the out-of-court declarant. State v. Arnold, 367 So.2d 324, 326 (La.1979). However, as was noted by one administrative law scholar, “[T]he reliability of hearsay ranges from the least to the most reliable. The reliability of non-hearsay also ranges from the least to the most reliable. Therefore the guide should be a judgment about the reliability of particular evidence in a particular circumstance, not the technical hearsay rule with all of its complex exceptions.” Kenneth Davis, \ (¡Hearsay in Administrative Proceedings, 32 GEO. WASH. L.REV. 689, 689 (1964).
Given the relaxed evidentiary standard for worker’s compensation proceedings, Professor Davis’s approach — to evaluate the quality, i.e. reliability, of the hearsay evidence on the particular facts and circumstances of the case— makes sense, especially since most hearsay evidence in administrative hearings is generally reliable documentary evidence, such as correspondence, physician’s reports, and the like. MCCORMICK ON EVIDENCE § 352 (4th ed.1992). Thus, the general rule in administrative hearings is to allow hearsay evidence and to recognize that the inability to cross-examine the declarant affects the weight that the evidence carries. Id.
To give effect to the more relaxed evidentiary standards in LSA-RS 23:1317, we hold that the hearing officer has the discretion to admit hearsay evidence in worker’s compensation proceedings. We further hold that such evidence can qualify as “competent evidence,” provided that the evidence has some degree of reliability and trustworthiness and is of the type that reasonable persons would rely upon. This determination must be made on a case-by-case basis under the particular facts and circumstances. The reviewing court must evaluate the competency of the evidence under the manifest error standard.

We do not find the letter to be competent evidence. The WCJ committed legal error by admitting it into evidence. While in general the rule concerning hearsay evidence might be more relaxed in workers’ compensation cases in some circumstances, the rule concerning expert medical testimony is more stringent, and it is applicable here. Thus, the letter is inadmissible.

Therefore, the only evidence linking the March 12, 2004, accident to the aggravation of Mrs. Charles’ back injury is her own testimony. Her testimony is corroborated by the testimony of Mr. Still-well. A worker’s corroborated testimony that is not discredited by other evidence is sufficient to discharge her burden of proving an unwitnessed work-related injury. Phillips v. Coca-Cola Bottling Co. United, 06-323 (La.App. 3 Cir. 9/27/06), 939 So.2d 673.

|7The final assignment of error involves the WCJ’s imposition of penalties and attorney fees based on LCMH’s failure to reasonably controvert Mrs. Charles’ claim. “The determination whether an employer should be cast with penalties and attorney fees in a workers’ compensation case is essentially a question of fact and a workers’ compensation judges’ finding shall not be disturbed absent manifest error.” Carter v. Wal-Mart Stores, Inc., 02-122, p. 6 (La.App. 3 Cir. 6/26/02), 820 So.2d 1265, 1270, writ denied, 02-2074 (La.11/1/02), 828 So.2d 573 (citation omitted). The evidence supports the WCJ’s finding that LCMH failed to reasonably controvert the claim. This assignment of error lacks merit.

Mrs. Charles answered the appeal seeking attorney fees for work done on the appeal. We award $2,000.00 for work done on this appeal.

CONCLUSION

The judgment of the workers’ compensation judge is affirmed. We award $2,000.00 in attorney fees to Mrs. Charles for work done on the appeal. Costs of this appeal are assessed to LCMH.

AFFIRMED.

THIBODEAUX, C.J., dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

_JjThe decision of the majority to award workers’ compensation benefits to the plaintiff is neither legally nor factually supportable. I agree that an accident occurred and the proof was sufficient to prove the occurrence of the accident. The proof, however, of a compensable accident is nonexistent. The record is bereft of any competent proof showing objective findings of an injury. See La.R.S. 28:1021(1). In order for an accident producing an injury to be compensable, there must be admissible and competent evidence of disability. Dr. Bernauer’s answers to hypotheticals posed to him in a letter from the plaintiffs attorney was inadmissible. The majority recognizes this and no further discussion will amplify this correct observation. Without the purported evidence posed in the hypotheticals, there is nothing in the record to prove that Mrs. Charles cannot return to her work because of the back problems which allegedly occurred on March 12, 2004.

The majority asserts that “the only evidence linking the March 12, 2004, accident to the aggravation of Mrs. Charles’s back injury is her own testimony. Her testimony is corroborated by the testimony of Mr. Stillwell.” This is not entirely correct. Mr. Stillwell’s testimony corroborates only the occurrence of an accident; l2it does not and cannot prove disability or the extent of disability. The majority’s reference to Phillips v. Cocar-Cola Bottling Co. United, 06-323 (La.App. 3 Cir. 9/27/06), 939 So.2d 673 is unavailing. Phillips focused on the occurrence of an accident, not the existence of disability. The existence solely of an accident is simply insufficient; there must be some disability and some proof of disability which is lacking in this case.

Louisiana Revised Statutes 23:1317(A) in pertinent part states:

The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.

(Emphasis added).

The majority fails to heed the directives of this statute and, in so doing, fell into error.

For the foregoing reasons, I respectfully dissent.