text:
    Dianna BROUSSARD v. LAFAYETTE PARISH SCHOOL BOARD.
    No. 2006-268.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff/Appellee — Dianna Broussard.
    Larry Lane Roy, Preis, Kraft & Roy, Lafayette, LA, for Defendant/Appellant — • Lafayette Parish School Board.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

1 defendant, Lafayette Parish School Board (LPSB), appeals the judgment of the Office of Workers’ Compensation (OWC) which assessed penalties and attorney fees against LPSB for violating the OWC judgment which both increased the weekly compensation benefits owed to plaintiff, Dianna Broussard (Ms. Brous-sard), and made those increased payments “payable until further order of this court.” Ms. Broussard, in answering the appeal, asks for judicial interest on the penalties and attorney fees and for additional attorney fees for defending this appeal. For the following reasons, the judgment of the OWC is affirmed, and judicial interest and additional attorney fees of $3,000.00 are awarded to Ms. Broussard.

I.

ISSUE

LPSB implores us to consider whether:

1. the OWC committed manifest error when it assessed $3,000.00 in penalties, $2,500.00 in attorney fees, and court costs against LPSB for unilaterally terminating Ms. Broussard’s weekly compensation benefits without first seeking an order of the OWC?;
2. the OWC committed manifest error by assessing $5,040.00 in penalties against LPSB for paying a previous judgment untimely?; and,
3. subsection La.R.S. 23:1201(F) of the Louisiana Workers’ Compensation Act limits all penalties awarded in this case to a total of $8,000.00?

In her answer to this appeal, Ms. Brous-sard seeks interest on the awards of penalties and attorney fees and desires additional attorney fees for work done at the appellate level.

II.

FACTS

Ms. Broussard was a full-time employee of LPSB in December of 1998. She worked as a food service technician at Carenero Middle School. She injured her back in a work-related accident and has not worked since April 8,1999.

Ms. Broussard filed a disputed claim for compensation benefits on March 9, 2000. Ms. Broussard sought an increase in her weekly compensation benefits retroactive to the date she was first eligible to receive those benefits and penalties and attorney fees against LPSB. On June 11, 2003, the OWC rendered judgment and ordered LPSB to increase Ms. Broussard’s weekly compensation benefits retroactive to the initial period of disability. The OWC also ordered LPSB to continue paying those temporary total disability (TTD) benefits “until further order of this court, together with interest as provided by law and all costs of this suit.”

LPSB never increased Ms. Broussard’s weekly compensation benefits in compliance with the June 11, 2003 judgment, nor did it pay the retroactive amount owed to her based on the newly calculated weekly compensation benefit determined by the OWC in the June 11, 2003 judgment until December 14, 2004.

On May 14, 2004, LPSB terminated Ms. Broussard’s weekly compensation benefits without first filing a motion to do so with the OWC. LPSB reasoned that it was authorized to unilaterally terminate Ms. Broussard’s TTD benefits by the language of La.R.S. 23:1221(l)(d), which states that TTD benefits shall cease when the employee’s condition has resolved itself such that regular treatment by a physician is no longer required.

On September 14, 2004, Ms. Broussard filed a motion for penalties and attorney fees against LPSB for nonpayment of the June 11, 2003 OWC final | judgment, and for unilaterally terminating Ms. Brous-sard’s TTD benefits without first obtaining an order of the OWC allowing it to do so. The OWC ordered LPSB to pay $5,040.00 in penalties for failing to pay the June 11, 2003 judgment timely and $3,000.00 in penalties for terminating Ms. Broussard’s TTD benefits. LPSB was also ordered to pay $2,500.00 in attorney fees to Ms. Broussard and to pay all court costs.

III.

LAW AND DISCUSSION

Standard of Review

It is well established that the factual findings in a workers’ compensation proceeding are subject to the manifest error/clearly wrong standard of review: “ ‘[t]he determination of whether an employer should be cast with penalties and attorney fees is a question of fact which should not be reversed absent manifest error.’ Sigler v. Rand, 04-1138, pp. 10-11 (La.App. 3 Cir. 12/29/04), 896 So.2d 189, 196, writ denied, 05-278 (La.4/1/05), 897 So.2d 611 (citing Romero v. Northrop-Grumman, 01-24 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, writ denied, 01-1937 (La.10/26/01), 799 So.2d 1144).” Romero v. Garan’s, Inc., 05-1297, pp. 3-4 (La.App. 3 Cir. 4/19/06), 929 So.2d 258, 261.

Terminating TTD Benefits

Ms. Broussard’s weekly benefits were unilaterally terminated by LPSB without first seeking a modification of the extant June 11, 2003 OWC order mandating the payment of weekly TTD benefits. LPSB argues that it was acting under the authority of a specific section of the Louisiana Workers’ Compensation Act which allows for the cessation of benefits when the claimant is proven to be no longer 14disabled and therefore able to return to some form of employment. LPSB specifically cites La.R.S. 23:1221(l)(d). That statute reads:

(d) An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.

LPSB ignores the fact that a previous order of the OWC was still in effect at the time of its unilateral termination of Ms. Broussard’s TTD benefits. Regardless of LPSB’s interpretation of this subsection of the statute, Louisiana courts have stated consistently that an employer may not unilaterally terminate benefits if those benefits were instituted by a previous order of the OWC. As an example, we have said, “[t]his court and our brethren of the Fourth Circuit have frowned upon an employer’s unilateral termination of benefits despite a judgment of disability or an award of benefits by the Office of Worker’s Compensation.” Fusilier v. Liberty Rice Mill, Inc., 569 So.2d 1050, 1055 (La.App. 3 Cir. 11/7/90).

It is difficult to fathom an act more arbitrary than disregarding a court order. “A judgment must be given full effect whether it is the result of a judicial determination or the consent of the parties.” Lewis v. Cornerstone Vill., Inc., 02-1162, p. 3 (La.App. 3 Cir. 5/21/03), 846 So.2d 970, 972, writ denied, 03-1790 (La.10/10/03), 855 So.2d 347. A workers’ compensation judge has continuing | ¿jurisdiction over a dispute and may modify previously-issued orders pursuant to La.R.S. 23:1310.8 which, in pertinent part, states:

§ 1310.8. Jurisdiction continuing; determining as to final settlement

A. (1) The power and jurisdiction of the workers’ compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified ....
B. Upon the application of any party in interest, on the ground of a change in conditions, the workers’ compensation •judge may, after a contradictory hearing, review ' any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or' minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.

If an employer believes, based on objective evidence and medical proof, that an employee no longer fits the definition of disabled and is, therefore, no longer eligible to receive benefits under the workers’ compensation statute, that employer must petition the court and seek a judgment that the payment of benefits should be terminated. Rather than being an optional statute, as suggested by LPSB, the process for changing previous awards and orders by the OWC set out in La.R.S. 23:1310.8 is mandatory. “La.R.S. 23:1310.8(B) requires that for ‘any award’ to be modified, there must be an application and a contradictory hearing before the workers’ compensation judge.” Lewis, 846 So.2d at 972.

Legal anarchy would reign if employers were allowed to unilaterally decide the efficacy of a statute despite the existence of a contrary court order. “The nature of workers’ compensation proceedings require[s] the WCJ to retain jurisdiction |r4n order to continuously assess the employee’s condition. Furthermore, because the WCJ’s adjudication imposes an ongoing obligation on the employer, it retains jurisdiction to address continuous violations.” Metoyer v. Roy O. Martin, Inc., 03-1540, p. 9 (La.App. 3 Cir. 12/1/04), 895 So.2d 552, 560, writ denied, 05-1027 (La.6/3/05), 903 So.2d 467.

LPSB’s capricious conduct captures the essence of La.R.S. 23:1201(1). That statute provides:

I. Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:658(0 shall be applicable to claims arising under this Chapter.

LPSB, in our view, was assessed a lenient $3,000.00 penalty by the OWC judge for its misconduct. Because LPSB’s unilateral discontinuance of Ms. Broussard’s TTD benefits violated the June 11, 2003 OWC order, La.R.S. 23:1310.8, La.R.S. 23:1201(1), and consistent jurisprudence, we affirm the $3,000.00 penalty assessed against LPSB. We also affirm the award of $2,500.00 for attorney fees, as La.R.S. 23:1201(1) specifically allows for an assessment of attorney fees against an employer found in violation of that subsection of the statute.

Additionally, we affirm the award of all court costs, including the cost of a deposition in the amount of $215.00. The attorney for LPSB was particularly belligerent and obstructive during the deposition in question. He repeatedly interrupted and harassed Ms. Broussard’s attorney. Before the deposition commenced, he had instructed a witness under subpoena not to appear. This is a|7violation of an order of the court. The witness whom the attorney for LPSB instructed not to appear was the person in charge of Ms. Broussard’s benefits account at the time her benefits were terminated. He had firsthand, personal knowledge of the reasoning and process that led to the termination of Ms. Brous-sard’s benefits. Ordering LPSB to pay for the cost of this deposition is a lenient penalty for instructing a witness under subpoena not to appear and engaging in obstructionist behavior.

Failure to Timely Pay the June 11, 2003 Judgment

On June 11, 2003, LPSB was ordered by the OWC to increase weekly compensation benefits to Ms. Broussard and pay her a “sum of $210.20 per week based upon a compensation rate of $315.20 per week, retroactive to the initial period of disability, and subject to a credit for all sums paid, and payable until further order of this court, together with interest as provided by law and all costs of this suit.” LPSB did not increase Ms. Broussard’s weekly benefits as ordered by the OWC, nor did it pay her any retroactive benefits to which she was entitled. Indeed, until Ms. Broussard’s lawyer filed the Motion for Penalties and Attorney Fees in September of 2004, LPSB did nothing to implement the June 11, 2003 judgment. LPSB finally paid the sums due to Ms. Broussard on December 14, 2004, one year, six months and three days after the initial judgment was signed by the WCJ. LPSB’s inaction is the very definition of untimely payment of benefits due under a final, nonappealable judgment.

LPSB argues that the nonpayment of the judgment for a year and a half was merely an oversight that was corrected as soon as it was brought to the attention of LPSB. However, it was brought to LPSB’s attention through a motion filed by Ms. Broussard’s lawyer in September of 2004 — a year and three months after the | ¿judgment was signed. Even after that motion was filed, LPSB failed to pay the amounts owed to Ms. Broussard for another three months. LPSB’s only defense is that this was merely an oversight on its part. However, we have cautioned that “an employer cannot urge its own poor clerical work to escape penalties and attorney fees for nonpayment.” Belaire v. Don Shetler Olds Buick Chevrolet, 02-1152, p. 10 (La.App. 3 Cir. 6/4/03), 847 So.2d 723, 731 (quoting Fisher v. Lincoln Timber Co., 31, 430, p. 15 (La.App. 2 Cir. 1/24/99), 730 So.2d 973, 982). LPSB cannot use its own faulty record-keeping as an excuse to absolve itself from having to pay a penalty for its inactions. Penalties for late payment of entitled benefits are not optional; they are mandatory.

Where the fact of late payment is uncon-tradicted and an employer fails to show that the late payment resulted from conditions over which the employer had no control or that the employee’s right to have the bill paid by the employer is controverted, La.R.S. 23:1201 and 1201.2 mandate an award of penalties and attorney’s fees.

Daugherty v. Domino’s Pizza, 95-1394, p. 14 (La.5/21/96), 674 So.2d 947, 956.

Louisiana Revised Statutes 23:1201(G) specifies how an employer shall be sanctioned for not paying a final, nonap-pealable judgment within thirty days after it becomes due. It states:

G. If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per | flcalendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

La.R.S. 23:1201(G).

There is no maximum penalty for a violation of La.R.S. 23:1201(G) when the WCJ chooses to penalize the employer by imposing a penalty equal to twenty-four percent of the amount due. The WCJ used this calculation to assess the $5,040.00 penalty against LPSB, and she was not manifestly erroneous for doing so. We, therefore, affirm the OWC judgment assessing $5,040.00 in penalties against LPSB for the untimely payment of the June 11, 2003 judgment increasing the weekly TTD benefits owed to Ms. Brous-sard, and doing so retroactive to the initial period of disability.

Multiple Penalties in Excess of $8,000.00 Cap

The Louisiana Supreme Court has specifically stated that La.R.S. 23:1201(F) allows for multiple penalties when there are multiple violations of compensation and medical benefits claims. Fontenot v. Reddell Vidrine Water Dist., 02-439, 02-442, 02-478 (La.1/14/03), 836 So.2d 14. In June of 2003, the Louisiana Legislature amended section 1201 of the Louisiana Workers’ Compensation Act. The following words were added to subsection F: “The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars.” 2003 La. Acts No. 1204, § 1. Subsections I and J were also added to the statute at that time. Id. LPSB argues that the legislature intended for the $8,000.00 cap set forth in subsection F to apply to any and all penalties for violating any and all subsections of section 1201. LPSB argues that because of the 2003 amendments to section 1201, the luiOWC could not assess penalties in the aggregate of more than $8,000.00. We disagree.

“The legislature is presumed to have enacted each statute with deliberation and with full knowledge of all existing laws on the same subject.” State v. Brisco, 04-3039, p. 11 (La.7/6/06), 933 So.2d 754, 761. The legislature is therefore presumed to have known that subsection G was still in full force and effect when subsection F was amended by adding an $8,000.00 cap on all penalties for violations described in that subsection. Subsection G sets no limit on the amount of penalties that can be assessed when a WCJ chooses to penalize an employer in violation of that subsection by assessing a penalty equal to twenty-four percent of the unpaid award. “It is presumed that every word, sentence or provision in the statute was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used.” ABL Mgmt., Inc. v. Bd. of Supervisors of S. Univ., 00-798, p. 6 (La.11/28/00), 773 So.2d 131, 135.

Thus, we presume that the legislature left subsection G intact because it intended to punish employers additionally and differently when they did not pay an award under the terms of a final, nonappealable judgment within thirty days after it became due versus when they failed to provide pre-judgment payment of benefits and an employee filed a claim with the OWC. See La.R.S. 23:1201(G) and (F), respectively. Subsection F allows for the possibility of penalties assessed against an employer based on claims made by an employee of nonpayment of benefits due to that employee by the employer. Subsection G allows for penalties not based on claims, but based on the employer not paying an award of adjudicated claims based on a final judgment. As our supreme court has explained:

It is well recognized that although the term “claim” appears throughout the Workers’ Compensation Act, a | ¶ definition of that term does not exist in the Act. Ross v. Highlands Ins. Co., 590 So.2d 1177, 1181 (La.1991). “Nonetheless, it is clear from the context of provisions using the term [in the Workers’ Compensation Act] that the underlying claim for relief is what is meant, not the enforcement of a judgment. A claim is initiated by the filing of a petition with the OWC once an issue surfaces which the parties cannot themselves resolve.” Id. at 1181; LA.REV. STAT. ANN. §§ 23:1310, 23:1310.3; see also Rock v. City of New Orleans, 94-2613 (La.App. 4 Cir. 9/15/95), 661 So.2d 1091, reversed on other grounds sub nom Fauchaux v. City of New Orleans, 95-2500 (La.1/12/96), 666 So.2d 285.
Viewing the penalty issue contextually, we observe that LA.REV.STAT. ANN. §§ 23:1201(B), (C), (D), and (E) impose a twofold continuing obligation on the employer/insurer: (1) to pay all compensation and medical benefits due, i.e., payment of the correct amount owed, and (2) to pay for compensation and medical benefits within the time limit specified. It is further evident from the statute that should the employer/insurer not abide by those dictates, the Legislature has made available to the employee the provisions of LA.REV. STAT. ANN. § 23:1201(F) which provide for the assessment of a penalty as well as an award for reasonable attorneys’ fees as a means to encourage compliance with the statutory obligations.

Fontenot, 836 So.2d at 23-24.

Therefore, since the legislature did not change subsection G when it amended subsection F, it must have intended that there be an $8,000.00 cap on penalties based on claims made by an employee against an employer for not paying benefits owed, but not on awards payable under the terms of a final, nonappealable judgment which the employer did not pay within thirty days after it became due.

Our conclusion that subsection F does not limit penalties under all subsections of La.R.S. 23:1201 to an aggregate of $8,000.00 is also based upon the basic jurisprudential principle that, “when interpreting the Workers’ Compensation Act, courts must take into account the basic history and policy of the compensation movement.” Fontenot, 836 So.2d at 20. The workers’ compensation law is more |12akin to social legislation because its purpose is to impose a duty on employers and insurers of a continuing obligation to pay an injured worker the maximum amount of benefits. Id. The penalty provisions were put in place to make defiant employers obey their obligations to injured workers. Id. “Courts should give effect to all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided.” Succession of Boyter, 99-761, p. 9 (La.1/7/00), 756 So.2d 1122, 1129. The legislature must have intended that employers should be cast with a limit of $8,000.00 in penalties based on one or multiple claims made against them and also be subject to additional penalties for nonpayment of court-ordered judgments under La.R.S. 23:1201(G).

“Rules of statutory construction provide that where two statutes deal with the same subject matter, they should be harmonized if possible; however, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.” LeBreton v. Rabito, 97-2221, p. 7 (La.7/8/98), 714 So.2d 1226, 1229.

The second basic canon of statutory construction on which we base our conclusion that La.R.S. 23:1201(F) does not impose an $8,000.00 limit on all penalties assessed for all violations of subsections of La.R.S. 23:1201 is that when there appears to be a conflict between a generally-worded statute and one that is more specifically-worded, the specifically-worded statute controls. Fontenot, 836 So.2d at 28; see also Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. Louisiana Revised Statutes 23:1201(F) refers generally to an employer’s “failure to provide payment in accordance with this Section,” while La.R.S. 23:1201(G) deals with the nonpayment of a specific violation: namely, an “award payable under the terms of a final, nonappealable judgment” not paid within thirty days of when it becomes due. Because 113subsection G is specific and subsection F is more general, the specific subsection of the statute must be given priority. Louisiana Revised Statutes 23:1201(G) does not set a cap on penalties assessed under that subsection. Therefore, when the WCJ assessed LPSB $5,040.00 in penalties for the very late payment of the June 11, 2003 judgment, she was neither manifestly nor legally erroneous.

Plaintiffs Answer

Ms. Broussard asks for additional attorney fees for answering and defending this appeal. She also asserts that the WCJ failed to order legal interest on penalties and attorney fees assessed in the November 28, 2005 judgment, even though legal interest on those amounts was requested by Ms. Broussard in her motion filed in September of 2004. The November '28, 2005 judgment ordered LPSB to pay penalties and attorney fees. The interest that is owed on these amounts begins to run from the date of judgment. Sharbono v. Steve Lang & Son Loggers, 97-110 (La.7/1/97), 696 So.2d 1382. This is because penalties and attorney fees represent a post-judgment debt owed to Ms. Broussard by LPSB; they do not represent deprivation of money owed to her by LPSB. In the case of interest on penalties and attorney fees, it is applied to encourage the employer to pay those sums as quickly as possible. Id.

Because the losing party did not deprive the victor of the use of funds to which the victor was entitled, no prejudgment interest may be calculated on the award of attorney’s fees. Rather, post-judgment interest on that amount may be calculated only from the date the debt came into being and thus became due to the date it is paid.

Id. at 1388.

The same logic applies to interest on penalties. All interest due on penalties can be calculated only from the date they become due until the date they are paid. Id.

|14We amend the November 28, 2005 judgment of the OWC to include interest on penalties and attorney fees, which began to accrue on the date of judgment.

We also award Ms. Broussard an additional $3,000.00 in attorney fees for the work required in defending and answering this appeal. After reviewing the entire record, we find that Ms. Broussard’s attorney put in many hours of research preparing for this appeal and has performed in an exemplary fashion in protecting Ms. Broussard’s interests.

IV.

CONCLUSION

An employer may not unilaterally discontinue payment of court-ordered benefits to an injured employee without first seeking court intervention. Because LPSB was under a court order to continue to pay TTD benefits to Ms. Broussard until further orders of the OWC, it was arbitrary and capricious in its actions in unilaterally terminating those benefits without first petitioning the court and proving that the benefits were no longer owed. We affirm the OWC judgment casting LPSB with $3,000.00 in penalties, $2,500.00 in attorney fees, and all court costs for its actions.

An employer may not ignore the terms of a judgment of the OWC and must pay all amounts due under the terms of a final, nonappealable judgment within thirty days after it becomes due. LPSB offered no legitimate reason why it failed to pay the judgment of June 11, 2003 until December 14, 2004. We affirm the award of $5,040.00 in penalties for the untimely payment of the June 11, 2003 judgment.

Since La.R.S. 23:1201(F) refers to claims made by employees against employers for either nonpayment or untimely payment of benefits owed or for not consenting to provide medical benefits, the penalty provision of that subsection setting an $8,000.00 limit for violations of that subsection does not apply to La.R.S. 1^23:1201(0). Subsection G refers to the untimely payment of a final, nonappealable judgment. There is no limit on the amount of the penalty that can be levied against an employer when the OWC chooses to assess the penalty at twenty-four percent of the unpaid award. Subsection F also refers more generally to claims for nonpayment of benefits, whereas subsection G refers more specifically to the untimely payment of final judgments of the OWC. We, therefore, find no manifest or legal error in the OWC judgment assessing penalties greater than $8,000.00 in the aggregate against LPSB for violating La. R.S. 23:1201(G) and La.R.S. 23:1201(1).

We also amend the judgment of the OWC to include legal interest which began to accrue on the date of the judgment. We also grant an additional $3,000.00 in attorney fees to Ms. Broussard for the work required in preparing for, defending, and answering this appeal. All costs of this appeal are assessed to LPSB.

AMENDED AND, AS AMENDED, AFFIRMED.

PETERS, J., concurs in the result.

      . The signed November 28, 2005 judgment of the OWC incorrectly listed the assessment of penalties for this violation as $5,000.40. All parties agree that the correct amount of penalties assessed, as stated in open court on the record, is $5,040.00.

      . Ironically, LPSB recognizes the sanctity of a court order. In a memorandum submitted to the OWC on June 13, 2003, LPSB argues that Ms. Broussard should be made to suffer the suspension of the TTD benefits due her because she had violated a previous order by the OWC requiring her to submit to a medical examination. LPSB specifically argued in that memorandum that "Ms. Broussard's non-compliance is [sic] with a court order cannot be tolerated. A suspension of benefits pending Ms. Broussard's compliance with the order compelling the examination seems the only method, outside of holding her in contempt, of assuring that this type of defiant behavior is not repeated.” LPSB went on to request that the OWC also sanction Ms. Broussard's attorney for his "callous disregard for this' court's authority.” Why then would LPSB believe it could cease paying Ms. Broussard her court-ordered TTD benefits without following the process prescribed by La.R.S. 23:1310.8(B)?

      . La.R.S. 23:1201.2 was repealed by 2003 La. Acts No. 1204, § 2.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    Justin PHILLIPS v. COCA-COLA BOTTLING CO. UNITED, et al.
    No. 2006-323.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Brian K. Abels, Walsh & Bailey, L.L.C., Baton Rouge, LA, for Defendants-Appellants, Coca-Cola Bottling Co. United and Ace American Insurance Company.
    Kevin R. Rees, Abbeville, LA, for Plaintiff-Appellee, Justin Phillips.
    J. Christian Lewis, The Glenn Armentor Law Corp., Lafayette, LA, for Intervenor, The Glenn Armentor Law Corporation.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

11 Claimant, Justin Phillips (“Phillips”), filed the instant suit seeking workers’ compensation benefits due to injuries to his right knee that he alleges resulted from a work-related accident on July 29, 2003, while working for Defendant, Coca-Cola Bottling Company United (“Coca-Cola”). The workers’ compensation judge (“WCJ”) found that Phillips proved by a preponderance of the evidence that he suffered an accident in the course and scope of his employment with Coca-Cola and awarded the benefits. The WCJ further found that penalties and attorney’s fees were not warranted. Coca-Cola and its insurer, Ace American Insurance Company, now appeal, asserting that the WCJ committed legal error in finding that a work-related accident occurred. Phillips did not appeal the failure to award penalties and attorney’s fees. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Phillips began working for Coca-Cola on December 19, 2002, as a delivery driver. On July 29, 2003, while delivering Coca-Cola products at the Penny Wise store in Breaux Bridge, Louisiana, Phillips alleges that he twisted his right knee and felt the onset of pain as he stepped out of the bay of his delivery truck. Rhonda D. Grossie, the assistant manager of the Penny Wise store, was working at that time. Grossie testified that, on July 29, Phillips came in the store and asked to use the phone because he had hurt his knee and needed to call his supervisor. Grossie inquired as to whether he had hurt his knee “at our store,” and she testified that Phillips answered, “no.” She further testified that she intended “at our store” to include the parking lot but only assumed that Phillips knew her intention. Based on this, Gros-sie testified that she did not fill out an accident report.

| ¡.Phillips testified that when he phoned his supervisor, Kenneth Thibodeaux, he requested help to finish his job for the day. Phillips alleges that the request was denied. Thibodeaux testified that Phillips did not tell him that he had hurt his knee until the following Monday.

Phillips, however, did go the emergency room at UMC. The records do not reflect that Phillips told the doctors that he had a work-related accident. Coca-Cola points out that the records do indicate, however, that Phillips told the triage nurse that he had been having symptoms in his knee for two weeks. Phillips’ girlfriend, Monique Jacob, testified that on July 29, 2003, Phillips was limping and that she accompanied him to UMC on that date. She testified that Phillips told the doctor that he had “come the wrong way off the back of a truck, and he had hurt his knee.”

Phillips admitted that he had previous knee problems, including an injury to his right knee in 1995, which required the surgical repair of a torn meniscus and injuries to his knee in an automobile accident in December of 2002. An MRI of the right knee done in December 3, 2002, however, revealed no evidence of internal injury or derangement.

Phillips alleges that the doctor at UMC, Dr. Brian Rich, gave him an excuse to be put on light duty. Phillips testified that he was told that he could not be put on light duty. Thibodeaux disputes that an excuse was given to him. As a result of not being put on light duty, Phillips testified that he had to ask his fellow workers to assist him in completing his job duties. Phillips alleged that prior to July 29, 2003, his knee was pain free and he had been performing his job duties with no problems.

In any event, Dr. Rich suspected a meniscus tear and subsequent examination and MRI by Dr. Edward Lisecki confirmed that injury. Phillips underwent surgery | ato repair the torn meniscus on October 21, 2003. Dr. Lisecki testified that he recommended further orthroscopic surgery and that Phillips will require a total knee replacement in the future. Dr. Li-secki further testified that Phillips’ injury was consistent with Phillips’ account of his accident.

Phillips was cleared to return- to his regular job duties in January 2004. He resigned from Coca-Cola in February of 2004 and began other employment on March 5, 2004.

Phillips filed a disputed claim for compensation on October 29, 2003. Coca-Cola steadfastly denied that Phillips suffered a work-related accident. At trial, the parties stipulated that the applicable compensation rate was $416.00; that if the WCJ found in Phillips’ favor, the past indemnity due was $934.37; that Mr. Phillips paid $1,160.84 toward his medical care; and that there were outstanding balances totaling $2,171.00 for past medical treatment. Following trial, the WCJ found that Phillips proved, by a preponderance of the evidence, that he suffered an accident in the course and scope of his employment with Coca-Cola on July 29, 2003. The WCJ ordered Coca-Cola to pay past indemnity benefits and past medical benefits in the amounts stipulated and to pay future indemnity benefits and medical benefits related to the accident of July 29, 2003. Based on her finding that Coca-Cola was not arbitrary and capricious in its handling of the claim, the WCJ declined to award penalties and attorney’s fees. Phillips thereafter filed a “Motion for Reconsideration” with respect to the WCJ’s failure to award penalties and attorney’s fees. Said motion was denied, and Phillips neither appealed that ruling nor answered Coca-Cola’s appeal.

ldiscussion

On appeal, Coca-Cola asserts that the WCJ committed legal error in finding that a work-related accident occurred based on its allegations that the evidence and testimony cast serious doubts on Phillips’ version of the accident and that Phillips’ testimony is not corroborated by any circumstances following the alleged accident. Thus, Coca-Cola urges us to review this matter de novo.

This court, in Monceaux v. R & R Construction, Inc., 05-533 (La.App. 3 Cir. 12/30/05), 919 So.2d 795, writs denied, 06-0585 (La.5/5/06), 927 So.2d 325, 06-0636 (La.5/5/06), 927 So.2d 317, had occasion to address both the standard of review and a claimant’s burden of proof in workers’ compensation cases involving unwitnessed accidents. In that case, we said:

In Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court discussed the standard of review in workers’ compensation cases:
In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316 Inciting Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).

Recently, this court addressed a claimant’s burden in proving the [sic] he/she suffered a work-related accident:

In order to recover workers’ compensation benefits, an injured employee must prove by a preponderance of the evidence that he suffered a “personal injury by accident arising out of and in the course of his employment.” La.R.S. 23:1031(A). An “accident” is defined as an “unexpected or unfor-seen actual, 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 simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).

The Louisiana Supreme Court, in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992), expounded on what proof will satisfy an employee’s burden in proving a work-related injury:

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson v. [Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. Corroboration may also be provided by medical evidence. West, supra.

In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases).

IfiAs stated in Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted):

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.
Bigge v. The Lemoine Co., 04-1191, pp. 2-4 (La.App. 3 Cir. 3/2/05), 896 So.2d 269, 271-72.

Monceaux, 919 So.2d at 798-800 (emphasis added).

Accordingly, the standard of review in this case is manifest error.

Coca-Cola asserts that the two-prongs of Bruno, 593 So.2d 357 are not satisfied in this case and attempts to point out numerous instances of discrepancies in testimony and other evidence. However, there is no doubt that the burden of proof is a preponderance of the evidence. Thus, the inquiry in this becomes whether “serious doubt” exists and whether Phillips’ testimony is corroborated by circumstances following the alleged July 29 accident.

Specifically, Coca-Cola points to the testimony of Phillips’ supervisor, Thibodeaux, as casting serious doubt on Phillips’ account of events. Phillips testified that Thi-bodeaux told him that he had a pre-exist-ing condition and could not file a workers’ compensation claim for that. Thibodeaux testified that when Phillips had a work-related accident in February of 2003, he responded immediately upon learning |7of the accident by going to the site and calling Coca-Cola’s doctor to examine Phillips and that had Phillips reported the July 29, 2003 accident in the same manner, he would have responded in similar fashion. Coca-Cola asserts that this testimony indicates that Phillips knew the proper procedure for reporting a work-related accident and that Mr. Thibodeaux would not have taken any steps to discourage Phillips from reporting a work-related accident.

After examining the record, we cannot say that the WCJ was manifestly erroneous in either her rejection of the attack on Phillips’ credibility or in her conclusion that Phillips proved the occurrence of a work-related accident. Although the accident was unwitnessed, Phillips testified as to its occurrence and the onset of pain. The WCJ acknowledged certain inconsistencies in the testimony but apparently found, as we do, that these inconsistencies did not rise to the level of “serious doubt.” The WCJ had the choice of believing the employee, his girlfriend, and his treating physicians or the employer’s representative, Thibodeaux. The WCJ made credibility determinations in favor of Phillips, and we cannot find any reason to disturb those evaluations.

As pointed out by Coca-Cola, Phillips has neither answered the appeal nor filed his own appeal with respect to the issue of penalties and attorney’s fees. As such, we are constrained from modifying the judgment in that respect.

DECREE

For the reasons stated above, the judgment of the workers’ compensation judge is affirmed. Costs of this appeal are assessed to Defendants-Appellants, Coca-Cola Bottling Company United and Ace American Insurance Company.

AFFIRMED.

      . Phillips saw Dr. Douglas Bernard, an orthopedist, on August 13, 2003. Dr. Bernard's records indicate that Phillips "came in with complaints of his right knee stating that he thinks he has aggravated it at work.” Dr. Bernard referred Phillips to his partner, Dr. Lisecki.


author: AMY, Judge.

text:
    STATE of Louisiana v. Kendall MILTON.
    No. 2006-550.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Earl B. Taylor, District Attorney, Alisa Ardoin Gothreaux, Assistant District Attorney, Opelousas, LA, for Appellee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Kendall Milton.

      Court composed of OSWALD A. DECUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

|¶ On October 14, 2004, at approximately one in the morning, the body of Brian Mallet was discovered at the Pinecrest Loop apartment complex in Sunset, Louisiana. Brian was found lying on the ground next to a gray Dodge Stratus. The police were notified, and although an ambulance was summoned, Brian was dead at the scene.

Based on information provided to the police, the defendant was arrested and charged with Brian’s murder. He was indicted by a grand jury on a charge of second degree murder, a violation of La. R.S. 14:30.1. Following a jury trial, the defendant was found guilty as charged. The trial court sentenced the defendant to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. The defendant appeals, arguing that the evidence is insufficient to support his conviction for second degree murder. For the following reasons, we affirm.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

Insufficient Evidence

The defendant argues that the “jury’s credibility assessments are not supported by the testimony and the physical evidence introduced at trial. Therefore, there was insufficient evidence introduced at trial to support a finding that Kendall Milton was guilty of the second degree murder of Brian Mallet.”

|2Louisiana Revised Statutes 14:30.1 provides in pertinent part: “Second degree murder is the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm[.]”

In State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27, a panel of this court explained:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See [State ex rel. Graffagnino v.] King, 436 So.2d 559 [(La.1983)], citing State v. Richardson, 425 So.2d 1228 (La.1983).

At trial, the State presented the testimony of three witnesses who claimed that they saw the shooting that morning. The first eyewitness was Geraldine Richard, who resided on Pinecrest Loop. Geraldine testified that around midnight, she and her friend, Judy Meche, were outside on her front porch drinking a bottle of wine. Geraldine stated that she noticed a man, the victim, sitting in what appeared to be a gold car. The car was parked about twenty to thirty feet from her and was across from her apartment. Geraldine testified that sometime later, a white Corsica came from the street behind her apartment, backed up, and parked in front of the gold car, thereby blocking it. According to Geraldine, she recognized some of the occupants of the white car. She remembered that Walter Johnson was the driver and that Ricky Amos 13and Kendall Milton were on the passenger side. Geraldine stated that she did not know the identity of the fourth passenger.

Geraldine testified that Ricky exited the white car, sat in the victim’s front passenger seat, and left the door open while they talked. She further testified that: “[Sjomebody, Kendall, on the passenger back side, got down. So I said, ‘Who’s that?’ Judy said, ‘That’s Kendall.’ And I heard his voice. Then I knew it was Kendall.” According to Geraldine’s testimony, the defendant went to the driver’s side of the gold car and said, “ ‘N-r, what the f — k?’ And all I heard was boom!, and then me and Judy ran in the house.”

Upon further questioning, Geraldine stated that she did not recognize the defendant because he had a hood on which did not give her a good view of him. She testified that before he fired the gun, the defendant opened the victim’s car door and uttered those words. Geraldine testified that when she and Judy were in her apartment, they heard a second shot. She explained that she did not call the police because she was shaken and panicked.

The State then called Judy Meche to the stand and she, like Geraldine, implicated the defendant in the victim’s death. Judy testified that after getting off from work, she arrived at Geraldine’s apartment around midnight. She stated that she and Geraldine were on Geraldine’s front porch drinking wine. According to Judy, she saw a man sitting in a gold car across from the apartment. Thereafter, a white car passed in front of them and stopped “[a] little bit past the driver of the gold car.” Judy testified that Ricky exited the white car and went over to the passenger side of the gold car where he proceeded to talk to the victim through the window. Then, ^according to Judy, the defendant “[gjot out of the car and he had a gun in his hand and he approached from the passenger side, stuck the gun in the car, and [she] heard the shot.” She and Geraldine ran in the apartment where they heard a second shot. Judy testified that when she left Geraldine’s house approximately twenty minutes later, no one was outside.

Walter Savoie, Jr. testified that he was driving the white Corsica which belonged to his girlfriend. He stated that Ricky Amos was seated behind him, the defendant was the front passenger, and Wilbert Howard was seated behind the defendant. Walter testified that when he was driving through the apartment complex, he noticed a “dude in a gray car and two women outside[,j” whom he identified as Geraldine and Judy. He stated that when Ricky told him to turn around, he “[pjulled up in the street, backed up and turned back in the project.” After Walter parked the white car in front of the gray car, Ricky went to the passenger side of the gray car to talk to the victim. Walter testified that the defendant then exited the white car and went to the driver’s side of the gray car and shot the victim.

Walter testified that after the shot was fired, Ricky jumped out of the gray car and told the defendant not to shoot. Walter stated that he also yelled at the defendant “[t]o don’t shoot. Don’t shoot the gun no more.” When asked what happened next, Walter responded: “It’s like he just ain’t hear me. He got the dude out [of] the car and Wilbert slapped me on my arm and told me to pull off.” According to Walter, when he and Wilbert were leaving the complex, he heard a second shot. Walter stated that he was not able to leave quickly because another vehicle was blocking his path. He testified that because of this, the defendant was able to return to the car. Walter | ¿further testified that when they left the apartment complex, Ricky, who ran down the street after the first shot was fired, reentered the car.

Walter testified that when the defendant reentered the car, the gun was still in his possession. He stated that he asked the defendant where he shot the victim, to which the defendant allegedly replied, “[i]n the shoulder and in the side.” According to Walter, he drove to his house where he and his passengers “got out [of] my girlfriend’s car and jumped in my truck.” After traveling to Lafayette, the men dropped Ricky off at his house in Carenero and then dropped Wilbert off in Sunset. Walter stated that he and the defendant then returned to his house to switch vehicles once again.

Now driving a blue Lincoln Town Car, Walter and the defendant returned to Sunset. Walter testified that they drove “[a]cross the track where the incident happened.” Then, they proceeded to a truck stop to get gas. Walter further testified that after he and the defendant exited the Lincoln, a police officer requested that they report to his patrol unit. They complied, and the officers transported them to the Sunset Police Department. Upon the discovery of additional evidence, the defendant was charged with second degree murder.

In his brief to this court, the defendant contends that there are “[n]umerous factual contradictions on material facts- — facts used to identify the shooter. These inconsistencies or contradictions raise significant reliability problems.” The | ^defendant specifically questions as contradictory, the witnesses’ testimonies regarding the position of the white Corsica as it may have bearing on “the degree of focus the witnesses had on what was transpiring just before, during and immediately after the shooting” as well as “the identity of the two persons exiting the Corsica and the direction each approached the gray car.”

With regard to the positioning of the white Corsica, the record reveals that Geraldine testified as follows:

Q. And when did you first see that white Corsica?
A. When it first came in, it came in around from the back way, and then it backed up. It’s like the guy’s car—
Q. Okay.
A. —was blocked in like.
Q. Okay. And just to stop you, when you say it came in, did the car enter in the direction in front of you or where did that car, that white Corsica, come from?
A. It came from like around the apartment and in front of us. Then it backed — it got to the stop sign, it just backed up by the guy’s car.
Judy explained:
Q. Do you recall what direction the white car came from? Did it enter in?
A. It entered in, that’s all I remember.
Q. Facing you all where you were sitting? Did it come in the direction that you were in, or did—
A. Yes.
Q. • — it come from a different direction?
A. No, it came in from the direction where we were sitting.
Finally, Walter testified:
|7Q- Okay. And you drove through that area initially?
A. Yes, Ma’am.
Q. And you stopped at the stop sign?
A. Yes, Ma’am.
Q. And what did you do after you stopped at the stop sign?
A. Turned around.
Q. When you say turned around, what did you do? How did you turn around?
A. Pulled up in the street, backed up and turned back in the project.
Q. And where did you go to?
A. To the dude in the gray car.
Q. Do you recall where you parked the white Corsica?
A. In front of them.
Q. In front of?
A. The dude in the gray car.

“The resolution of a matter where conflicting testimony exists requires a determination of credibility of the witnesses and is a matter of weight of the evidence and not sufficiency.” State v. Mitchell, 01-0872, p. 9 (La.App. 3 Cir. 2/13/02), 815 So.2d 1041, 1047, writ denied, 02-0785 (La.11/8/02), 828 So.2d 1110, (quoting State v. Taylor, 96-1043, p. 5 (La.App. 3 Cir. 2/5/97), 688 So.2d 1262, 1267). While the witnesses’ testimonies are not particularly specific, we find that they are not so inconsistent that the jury’s determination was irrational, “especially in light of its function as a fact-finder and the deference given its credibility determinations!/]” Id.

The defendant also argues that there were inconsistencies between Walter and Judy’s pre-trial statements and their trial testimony. He references the fact that when |sWalter gave a statement to the police on the day of the shooting, he stated that he was in a blue Lincoln Town Car. However, when he gave a second statement four days later, he stated that he was in the white Corsica. At trial, Walter testified that he was, in fact, in the white Corsica at the time of the shooting. He explained that he told the police he was in the Lincoln because he did not want them to take his girlfriend’s car.

Judy gave a statement to Chief Deputy Laura Balthazar in the hours following the shooting. In her statement, which was written by the chief deputy, Judy stated that she was in Geraldine’s bathroom when she heard gunshots and that: “I came out and saw a black male getting into the drivers’ side, I heard his voice it was Ken-dell [sic] Milton I recognized his voice[.]”

At trial, Judy testified that she and Geraldine were on Geraldine’s front porch when the first shot was fired. According to Judy, she did not recall telling the chief deputy that she was in the bathroom at the time of the shooting. Furthermore, she testified that she did not hear the defendant say anything. Judy explained that those assertions were wrongly included in her statement: “It might have got some crossed up. I don’t know because I was hysterical.”

With regard to inconsistencies between a witness’s pre-trial statement and his or her trial testimony, this court explained in State v. Bender, 598 So.2d 629, 636 (La.App. 3 Cir.), writ denied, 605 So.2d 1125 (La.1992):

When a witness is impeached, this simply means the jury, as the trier of fact, was presented with evidence which it could consider and weigh in determining the credibility, or believability, of a witness. Simply because the witness may have been impeached by prior inconsistent statements does not mean that the jury was prohibited from believing anything said by the witness. The inconsistencies in the witness’s statements are one of any number of factors the jury weighs in determining whether or not to believe a witness’s trial testimony.

| sFurthermore, the jury may “accept or reject, in whole or in part, the testimony of any witness.” State v. Leger, 04-1467, p. 19 (La.App. 3 Cir. 6/1/05), 907 So.2d 739, 754, writ denied, 05-2263 (La.4/17/06), 926 So.2d 509, (quoting State v. Duncan, 93-1384, p. 8 (La.App. 3 Cir. 4/6/94), 635 So.2d 653, 657, writ denied, 94-1067 (La.10/28/94), 644 So.2d 649).

At trial, defense counsel highlighted inconsistencies between Walter and Judy’s pre-trial statements and trial testimony; however, the witnesses were given an opportunity to explain the discrepancies. Because the jury is free to accept or reject this testimony, we will not second guess its ultimate conclusion regarding the witnesses’ credibility. See State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

In a further attempt to discredit the witnesses’ testimonies, the defendant relies on the testimony of Dr. Cameron Francis Snider, former regional forensic pathologist at the Lafayette Parish Coroner and Forensic Center, to show the position of the shooter in relation to the victim. Dr. Snider testified that “there was an entrance gunshot wound of the top right sternum area or breastbone area of the body and an exit gunshot wound a little bit lower down on the left side of the back[.]” According to Dr. Snider, this was a contact entrance gunshot wound, meaning that the end of the gun was placed on the victim’s clothing when it was fired.

Dr. Snider testified that “the bullet entered from front to back. It traveled from the right side to the left side of the victim’s body and it went from upward to downward path through the body.” He opined that the shooter held the gun from a position above the victim. In order for this shot to have come from a person standing outside the driver’s door, “the victim would have to be turned toward the door to the | mpoint almost that the door would be open.” Nevertheless, Dr. Snider did not rule out the possibility that the shooter was sitting in the passenger seat of the victim’s car. In that scenario, the shooter “would have to reach upward in order to get the same type trajectory as opposed to shooting straight across.”

Dr. Snider also found a graze type gunshot wound on the victim’s left arm. He hypothesized that the end of the gun barrel was probably within a foot or a foot and a half away from the [victim’s] body[.]” Noting that the arm is movable, Dr. Snider opined that this shot came from the front or left side of the body and traveled from left to right. He agreed with the State’s assertion that this graze wound could have occurred if the victim’s arm was outstretched toward the front left side, and the shot was fired from the left window area with the bullet coming from left to right. Dr. Snider could not say whether this shot was fired first.

Dr. Snider’s report also noted two skin scrapes on the front of the victim’s right lower leg. He explained that those injuries were fresh and happened in close proximity with the victim’s other injuries, i.e., the gunshot wounds. According to Dr. Snider, the victim’s skin scrapes possibly occurred as a result of falling onto concrete.

Given the evidence in the record, we find that the witnesses’ testimonies are not irreconcilable with the physical evidence and Dr. Snider’s testimony. Walter testified that as the defendant ran to the gray car, he fired the gun. Walter denied defense counsel’s assertion that the defendant fired the gun from ten feet away. We recall that Dr. Snider testified that after examining the graze gunshot wound to the victim’s arm, he determined that the barrel of the gun may have been fired from as far as a foot and a half away. Walter alleged that after the first shot was fired, the defendant pulled the victim out of the car. Dr. Snider opined that the scrapes to the luvictim’s leg may have been the result of being pulled down on. concrete. We note that the victim was found lying on concrete. Walter maintained that he only heard and did not see the second shot.

Judy testified that she saw the defendant approach the driver’s side of the vie-tim s car and shoot him through the window. Although she heard the second shot, she did not see it. A videotape of the crime scene showed that the victim’s driver’s side window was partially down. Furthermore, the testimony of Dr. Snider indicated that if a shot came from the left window and the victim’s arm was outstretched, that could cause a graze gunshot wound.

According to Geraldine’s testimony, the defendant went to the driver’s side of the victim’s car, opened the door, and then shot the victim. She also did not see the second shot. Once again, this factual scenario does not contradict Dr. Snider’s testimony. Dr. Snider testified that the shot to the victim’s sternum was a contact wound. Dr. Snider opined that one way this wound could have occurred is if the shooter was outside the driver’s door and “the victim would have to be turned toward the door to the point almost that the door would be open.”

After a review of the record, we find that there is sufficient evidence to support the defendant’s conviction. Although there may be inconsistencies between and in the witnesses’ testimonies, the fact remains that all three eyewitnesses identified the defendant as the person who shot and killed the victim. Furthermore, the witnesses’ testimonies are not refuted by the physical evidence. When we examine the evidence in the light most favorable to the prosecution, we determine that a rational trier of fact could have found the defendant guilty of second degree murder.

| ^DECREE

For the foregoing reasons, the defendant’s conviction is affirmed.

AFFIRMED.

      . Louisiana Revised Statutes 14:30.1(B) provides: "Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

      .Whereas Geraldine testified that the driver of the white car was Walter Johnson, another witness identified the driver as Walter Savoie. Walter Savoie confirmed that he was the driver of the white car.

      . Geraldine opined that this second shot was fired from a different gun because it did not sound as loud as the first shot.

      . Upon further questioning, Judy clarified the defendant’s position by indicating that he went to the driver’s side of the victim’s car.

      . According to Detective Craig Ortego of the St. Landry Parish Sheriff's Office, a subsequent search of the Lincoln yielded a .357 magnum gun with six live .357 caliber hollow-point cartridges in the chamber. Detective Brandon Harris, St. Landry Parish Sheriff's Office, testified that he found three live hollow-point .357 caliber rounds in the back of the patrol unit in which the men were riding. According to Douglas Lancon, a forensic firearms examiner with the Acadiana Crime Lab, testing performed on the bullet fragments that were removed during the victim’s autopsy confirmed that the retrieved .357 magnum gun fired that bullet jacket. Winnie Wong, a forensic chemist at the Acadi-ana Crime Lab, testified that although there was a mixed DNA profile found on both the grips and trigger of the gun, the defendant was determined to be the major DNA contributor.


author: PAINTER, Judge. THIBODEAUX, Chief Judge,

text:
    Barbara SHELTON, et vir. v. James G. HAIR, et al.
    No. 06-233.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Frank M. Ferrell, Shreveport, LA, for Plaintiffs-First Appellants Barbara Shelton, et vir.
    Victor H. Sooter, Alexandria, LA, for Defendants-Second Appellants Dr. James G. Hair and the Doctors Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

hln this medical malpractice action, Plaintiff, Barbara Shelton, and her husband, David Shelton, sued Dr. C. Babson Fresh, a surgeon, and Dr. James G. Hair, a pathologist, following brain surgery. Plaintiffs alleged that Mrs. Shelton suffered severe deficits from having a portion of her brain removed unnecessarily after Dr. Fresh performed the surgery based on a “presumptive” diagnosis of astrocytoma from Dr. Hair. Dr. Fresh was voluntarily dismissed from the lawsuit by Plaintiffs. Following a bench trial, the trial judge found Dr. Hair to be ten percent at fault and awarded damages to Plaintiffs. Plaintiffs and Defendant appealed.

FACTUAL AND PROCEDURAL BACKGROUND

On February 27, 1998, Mrs. Shelton, who was fifty-seven years old at the time, presented to Dr. L.R. Collier, a general practitioner and surgeon whom Mrs. Shelton described as her family doctor, in Winnfield, Louisiana with complaints of right-sided weakness in her leg and arm. She also had a history of hypertension controlled by medication. On that day, Dr. Collier noted her blood pressure to be high. Mrs. Shelton was hospitalized and Dr. Collier ordered several tests, including a CT scan of the brain which showed a lesion in the left fronto-parietal area. Based on this CT, Dr. Collier requested a consult with Dr. C. Babson Fresh, a neurosurgeon in Alexandria, Louisiana. Mrs. Shelton was transferred to Rapides Regional Medical Center on March 4, 1998. A repeat CT scan of the brain was performed on that date and interpreted as showing a fronto-parietal cortical lesion approximately 1.5 to 2.0 cm. in diameter with a significant amount of edema surrounding the lesion. An MRI confirmed the location of the lesion just above the atrial region of the left lateral ventricle. The MRI was interpreted by Dr. Paul Larson as showing no mass effect and some associated adjacent increased signal in white matter due to gliosis, which 12is a benign condition. Plaintiffs allege that the information from Dr. Larson’s report was not made available to them.

Mrs. Shelton testified at trial that Dr. Fresh thought it was a tumor that needed to be removed immediately. When she requested a second opinion, Mrs. Shelton testified that Dr. Fresh told her that there wasn’t really time for a second opinion and that the condition needed to be taken care of immediately. That was Wednesday, and surgery was scheduled for Friday morning.

On March 6, 1998, Dr. Fresh performed a stereotaxic guided craniotomy and resection of tumor. During the procedure, a biopsy was obtained and the material was sent to Dr. Hair for analysis before completion of the surgery. Dr. Hair prepared the specimen for frozen section examination and had only several minutes to make a diagnosis. Dr. Hair’s impression was “probable high grade astrocytoma.” This information was conveyed to Dr. Fresh, and based thereon, Dr. Fresh proceeded to full invasive surgery to remove the abnormal tissue. Dr. Hair testified that he told Dr. Fresh that he did not have sufficient material with which to make a definitive diagnosis, but that based upon what he saw, it was probably a high grade astrocy-toma, which would indicate a malignancy. Dr. Hair further testified that additional aspirated material was provided to him but was of no use because it was not part of the tumor.

A Permanent section of the biopsied material was reviewed by Dr. Seldon J. Des-hotel, who diagnosed low grade astrocyto-ma. The tissue specimen was forwarded to Dr. Peter C. Burger, a neuropathologist at the Johns Hopkins University Medical Center in Baltimore, Maryland. Dr. Burger performed some additional testing using staining techniques that are not available intraoperatively and made the diagnosis that the tissue was abnormal but not malignant.

| sMrs. Shelton alleged that the surgery was unnecessary and rendered her unable to walk without the use of a cane and has drastically curtailed her activities of daily life.

The matter was submitted to a medical review panel composed of Drs. David A. Cavanaugh, Travis Harrison, and Paul McGarry. The panel found that neither Dr. Fresh nor Dr. Hair breached the applicable standard of care. Drs. Harrison and McGarry testified at trial by deposition.

A bench trial was held on March 22, 2005 before the Honorable B. Dexter Ry-land, who took the matter under advisement. However, Judge Ryland died on June 28, 2005, before issuing any written reasons for judgment. Judge B.C. Bennet was appointed to take over Judge Ryland’s docket. In accordance with La.R.S. 18:4209, the parties agreed that Judge Bennett would review the transcript of the trial testimony and all exhibits accepted into evidence. Judge Bennett rendered written reasons for judgment on September 19, 2005, wherein he found for Plaintiffs. Judge Bennett awarded the following damages: (1) $250,000.00 in general damages to Barbara Shelton; (2) $81,175.80 in medical specials to Barbara Shelton; (3) $52,920.00.00 in past lost wages to Barbara Shelton; and (4) $100,000.00 to David Shelton for his loss of consortium. Thus, total damages were $484,095.80. However, Judge Bennett found Defendant, Dr. Hair, to be ten percent (10%) at fault, and in a October 28, 2005 judgment in accordance with his written reasons, reduced Plaintiffs’ recovery to $48,095.80.

Defendants, Dr. Hair and his insurer, The Doctor’s Company, filed a motion for new trial which was heard by Judge Patricia Koch on December 22, 2005. By _yudgment dated January 3, 2006, Judge Koch denied the motion for new trial. Defendants suspensively appealed, asserting that the trial court erred in the following particulars: (1) in failing to grant a motion in limine seeking to preclude the testimony of Plaintiffs’ expert, Malcolm Goodwin, as to the applicable standard of care; (2) in finding a breach of the applicable standard of care by Dr. Hair and in the subsequent allocation of ten percent (10%) of fault to him; (3) in holding that Plaintiffs had met their burden of proof regarding the amount of damages purportedly caused as a result of the alleged breach of the standard of care; and (4) in denying the motion for new trial. Plaintiffs also appealed, asserting that the trial court erred in its allocation of fault and seeking an increase in the award of general damages.

We first note that there is an error in calculation of the judgment. Ten percent (10%) of $484,095.80 is $48,409.58 rather than $48,095.80. Accordingly, we amend the judgment to provide that the amount recoverable by Plaintiffs is $48,409.58. In all other respects, for the reasons that follow, we affirm the judgment of the trial court.

DISCUSSION

Motion in Limine

Defendant complains that the trial court failed to preclude Plaintiffs’ expert, Dr. Malcolm Goodwin, from testifying as to the standard of care for pathologists. The thrust of Defendant’s argument is that Dr. Goodwin is a “hired gun” who has not performed a frozen section diagnosis of brain tissue in over thirty years. Defendant also points out that Dr. Goodwin has never been accepted by any court as an expert witness in a case such as this where the focus of the case was the pathologic examination of a frozen section of brain tissue. Thus, Defendant alleges that Dr. Goodwin’s testimony was neither relevant nor reliable.

iJFhe trial court denied Defendant’s motion in limine and allowed Dr. Goodwin’s testimony by deposition to be admitted into evidence and considered it in making its ruling. In written reasons for judgment, Judge Bennett found that Dr. Goodwin was qualified as a pathologist and that his testimony had some probative value. Judge Bennett did note that he had not practiced in many years. He apparently weighed Dr. Goodwin’s testimony that the samples were inadequate against the testimony of the medical review panelists.

Defendant cites Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) for the proposition that expert scientific testimony must rise to a threshold level of reliability in order to be admissible under La.Code Evid. art. 702. Louisiana Code of Evidence article 702 reads: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” We find, as did the trial court, that Dr. Goodwin’s testimony was reliable, probative, and aided the trier of fact in reaching its decision. Furthermore, the trial court has great discretion in its consideration of motions in li-mine, which provide litigants with a procedural vehicle to have evidentiary matters decided prior to trial. Scott v. Dauterive Hosp. Corp., 02-1364 (La.App. 3 Cir. 04/23/03), 851 So.2d 1152, unit denied, 03-2005 (La.10/31/03), 857 So.2d 487. This court has also recognized that “the trial court is allowed much discretion in determining whether to allow a witness to testify as an expert under La.Code Evid. Art. 702” and that “[i]ts judgment will remain undisturbed unless clearly erroneous.” Hall v. Brookshire Bros., Ltd., 01-1506, p. 19 (La.App. 3 Cir. 8/21/02), 831 So.2d 1010, 1024, writs granted, 02-2404, 02-2421 (La.11/27/02), 831 So.2d 285, and decision affirmed, 02-2404 (La.6/27/03), 848 So.2d 559. Accordingly, we find that the trial court did not err in its implicit finding that Dr. Goodwin met the Daubert criteria for admissibility of his expert testimony and that there was no abuse of discretion in the trial court’s refusal to grant Defendant’s motion in limine.

Allocation of Fault

Defendant alleges that no fault should have been allocated to him since it was error for the trial court to find that he breached the standard of care. Plaintiffs, on the other hand, argue that the trial court erred in assessing only ten percent (10%) of fault to Dr. Hair.

In LeBlanc v. St. Paul Fire & Marine Ins. Co., 99-2008, p. 7 (La.App. 3 Cir. 9/6/00), 772 So.2d 133, 138, writ denied, 00-2800 (La.11/27/00), 775 So.2d 1070, this court noted:

Plaintiffs in medical malpractice actions must establish their claim by a preponderance of the evidence. A plaintiff must prove that 1) a doctor’s treatment fell below the ordinary standard of care required of physicians in his or her medical specialty and 2) a causal relationship exists between the alleged negligent treatment and the injury sustained. Martin [v. East Jefferson General Hosp.], 582 So.2d 1272 (La.1991). We recognize, however, that physicians are not held to a standard of absolute precision, but the conduct must not fall below the care ordinarily expected of a physician practicing his or her medical specialty. Broadway v. St. Paul Ins., Co., 582 So.2d 1368 (La.App. 2 Cir.1991).

We cannot say that the trial court committed manifest error in finding that Dr. Hair fell below the ordinary standard of care required of physicians practicing within his medical specialty in failing to adequately caution and impress upon Dr. Fresh that there was a need for more time and more material.

Furthermore, the apportionment of fault by the trier of fact is a factual determination subject to the manifest error standard of review. Hall, 831 So.2d 1010 (citing Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607). Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La.1985) sets forth the following factors for consideration in determining the percentage of fault assessable to all parties:

(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

In considering these factors, we note the time constraints upon Dr. Hair and recognize that the trial court’s ruling reflects that it found that the greater part of Mrs. Shelton’s damages resulted from Dr. Fresh’s actions. Thus, we find no error in the trial court’s allocation of fault.

Damages

Defendant argues that there was no competent medical testimony to support the assertion that Mrs. Shelton’s injuries were the result of the resection of brain tissue and that there is no competent support for her claim for medical specials. Plaintiffs argue that the $250,000.00 award for general damages was inadequate.

A plaintiff in a medical malpractice action must prove, by a preponderance of the evidence, “[t]hat as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.” La.R.S. 9:2794(A)(3). Causation is a question of fact, and we will not disturb the trial court’s determinations in that respect absent manifest error. Martin, 582 So.2d at 1276.

We note that when Mrs. Shelton first presented to her family doctor, she was complaining of right-sided weakness and that her blood pressure was elevated. Following the surgery, she was unable to walk and, as of the time of trial, had regained partial function in her legs allowing her to walk only with the assistance of |sa cane. Further, it is undisputed that the tissue removed during the surgery was from the area of the brain that controls motor function. Thus, we find no manifest error in the trial court’s determination as to causation.

With regard to the award for lost wages, we do not find that the trier of fact erred. Mr. Shelton testified that his wife was working before the surgery and that he believed that she was trying to work long enough so that she could draw social security. There was no testimony that her job was temporary, that she would only work two to three more quarters, or that she would, in fact, stop working as soon as she could draw social security.

“[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of the discretion by the trier of fact.... [T]he adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379, (1994). When there is no clear abuse of discretion, it is inappropriate for this court to refer to other awards in similar cases. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976). In light of these standards, we find that the trial court’s award of general damages in the amount of $250,000.00 was neither excessive nor inadequate.

Motion for New Trial

“A new trial shall be granted, upon contradictory motion of any party, ... [w]hen the verdict or judgment appears clearly contrary to the law and the evidence.” La.Code Civ.P. art.l972(l). Further, pursuant to La.Code Civ.P. art.1973, a new trial may be granted in any case if there is good ground therefor. We review a trial court’s action on a motion for new trial under the abuse of discretion standard. Williams v. W.O. Moss Regional Med. Ctr., 05-22 (La.App. 3 Cir. 6/1/05), 903 So.2d 1150.

Defendant based his arguments in the motion for new trial on the same grounds that he now asserts on appeal, namely that Dr. Goodwin should not have been allowed to testify, that Dr. Hair did not breach the applicable standard of care, and that Mrs. Shelton did not meet the burden of proving that her damages were caused by Dr. Hair’s alleged malpractice. As we have already found Defendant’s other assignments of error to be without merit, we find no abuse of discretion in the trial court’s denial of the motion for new trial.

DECREE

We affirm both the allocation of fault and the total amount of damages awarded by the trial court; however, we amend the judgment of the trial court to reflect the proper calculation of ten percent (10%) of the total judgment recoverable by Plaintiffs. Accordingly, the amount recoverable by Plaintiffs for ten percent (10%) of the total damages of $484,095.80 is $48,409.58. The judgment of the trial court is thereby affirmed as amended. Costs of this appeal are assessed to Defendants.

AFFIRMED AS AMENDED.

THIBODEAUX, Chief Judge, concurs in part and dissents in part and assigns written reasons.

THIBODEAUX, Chief Judge,

concurring in part and dissenting in part.

|H concur with the majority’s view on the apportionment of fault to the Defendant. However, I disagree with the general damage award of $250,000.00. The record reflects that the Plaintiffs motor functions were permanently impaired and she can no longer walk without the assistance of a cane. Further, she can no longer perform the activities to which she was accustomed. In my view, the award of $250,000.00 was an abuse of discretion. Consistent with Coco v. Winston Industries, 341 So.2d 332 (La.1976), I would increase the award to the lowest amount appropriate under the circumstances, $450,000.00.

      . Judge Bennett assessed the other ninety percent (90%) of fault to Dr. Fresh, who had been voluntarily released by Plaintiffs without a settlement. Dr. Fresh had filed a motion for summary judgment prior to his dismissal but that motion was not heard by the trial court.


text:
    Charles KENNEDY, Jr., et al. v. Gerald E. McBRIDE.
    No. 06-208.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Elvin C. Fontenot, Jr., Leesville, LA, for Defendant-Appellant, Gerald E. McBride.
    James R. Mitchell, Leesville, LA, for Plaintiff-Appellee, Charles Kennedy, Jr.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

LThe Defendant/Appellant, Gerald E. McBride, appeals a trial court judgment finding that a road through his property is an apparent continuous servitude established for the use and benefit of the property owned by PlaintiffAppellee, Charles Kennedy. We affirm the trial court’s judgment finding that the road is public in nature.

FACTS

In 1994, Gerald McBride bought a tract of land on the Sabine River in Vernon Parish. In 2004, Charles Kennedy bought a tract bordering the property owned by McBride. Access to Kennedy’s property was through McBride’s property via Miller Road. McBride put a locked gate across Miller Road, blocking access to Kennedy’s property. Kennedy brought this suit asking that he be awarded a servitude of passage over the road to the nearest public road and that McBride be prohibited from denying him access to the road and for damages.

After a trial on the merits, the trial court ruled in favor of Kennedy recognizing Miller Road as an easement across the property owned by McBride. McBride appeals.

DISCUSSION

At trial, Kennedy introduced evidence to support both the theory that the road was public and that a servitude of passage had been established by continuous existence and use for more than thirty years. The trial court explained its decision in written reasons for judgment. In those reasons, the court stated that it could not “find | ¡¿hat it is more probable than not the road in question is public.” However, the court found that “the evidence clearly establishes that the road across the McBride estate is an apparent continuous servitude established for the benefit of the property Kennedy now owns.” The court further found that the servitude has existed for in excess of thirty years.

On appeal, McBride argues that the trial court erred in finding that the Plaintiff proved that an apparent continuous servitude existed for over thirty years. We do not reach that issue, finding that Miller Road, as it passed through McBride’s property, is public.

Louisiana Revised Statutes 48:491 provides, in pertinent part, that:

A. All roads or streets in this state that are opened, laid out, or appointed by virtue of any act of the legislature or by virtue of an order of any parish governing authority in any parish, or any municipal governing authority in any municipality shall be public roads or streets, as the case may be.
B. (l)(a) All roads and streets in this state which have been or hereafter are kept up, maintained, or worked for a period of three years by the authority of a parish governing authority within its parish, or by the authority of a municipal governing authority within its municipality, shall be public roads or streets, as the case may be, if there is actual or constructive knowledge of such work by adjoining landowners exercising reasonable concern over their property.

There is no evidence of record as to whether Miller Road was ever formally dedicated. However, there is sufficient evidence to conclude that the road was maintained by the Vernon Parish Police Jury (VPPJ) for a period of three years or more.

This court, in Griffith v. Cathey, 99-923, p. 3 (La.App. 3 Cir. 2/2/00), 762 So.2d 29, 38, on rehearing explained the degree of public maintenance which must be proven in order to allow a court to conclude that the road in question has become |3public, as follows:

In order to establish public maintenance of the road under the statute, it is necessary to show definitively that work was performed on the road by a public entity and approximately when that work was performed. Boynton [v. Bertrand, 309 So.2d 769 (La.App. 3 Cir. 1975) ]. Although precise moments of maintenance are not required, the claimant must present facts which establish acts of maintenance by a public entity within a narrow margin of time. See St. Charles School Bd. v. P & L Inv. Corp., 95-2571 (La.5/21/96); 674 So.2d 218. Accordingly, we agree with the trial court’s judgment that the record does not support the Defendants’ contention that the road has become public under La.R.S. 48:491.

Even where the road serves only as a driveway for one person or tract of land, public maintenance creates a right of use in the nature of a predial servitude for the benefit of the public. Gatson v. Bailey, 39, 835 (La.App. 2 Cir. 6/29/05), 907 So.2d 859. “In such cases, the tacitly-dedicated roads provide rights tantamount to actual predial servitudes protecting the dominant estate owners at the end of these roads, whose property might otherwise be enclosed.” Id. at 863.

Norris Smith, a ninety-year-old life-long resident of the area, testified that he served on the Vernon Parish Police Jury from 1959 through 1968 and from 1972-1976, representing the area in which the McBride and Kennedy properties are located. He stated that he was familiar with the properties and with Miller Road. He testified that Miller Road goes all the way from Highway 111 to the Sabine river at the mouth of Emerald Creek. He further testified that the VPPJ maintained Miller Road by grading and working it during both his terms as a police juror, although he did not know if the VPPJ continued to maintain it after McBride bought the property.

T.K. Craft, Jr., testified that he was sixty-two years-old and had lived in the area his whole life. He stated that he has been going down Miller Road since he was a toddler and was familiar with the Kennedy property since that time. He stated that the VPPJ had maintained the road and that he had first seen |4the VPPJ employees there when he was a teenager.

McBride testified that he had the road built by Mike White and that the road through his property was not Miller Road. However, the testimony of White indicates that he did not build a road but worked on an existing road that did not appear to have been maintained on a regular basis. He testified that he cleaned it up, filled potholes, and smoothed it.

This testimony establishes both that Miller Road was maintained by the VPPJ for a period of over three years and the time period within which the maintenance was performed. See Griffith, 762 So.2d 29. Therefore, Miller Road was public pursuant to La.R.S. 48:491.

McBride, at trial, seemed to be attempting to establish that the road had been abandoned by the VPPJ and was no longer to be considered a public road.

Abandonment of a public road may be evidenced by (1) a formal act of revocation in accordance with LSA-R.S. 48:701; (2) relocation of the public road by the governing body, or (3) clear and well established proof of intent by the governing body to abandon. Starnes v. Police Jury of Rapides Parish, 27 So.2d 134 (La.App. 2d Cir.1946); Stelly v. Vermilion Parish Police Jury, 482 So.2d 1052 (La.App. 3rd Cir.1986), writ denied 485 So.2d 65 (La.1986). Nonuse of a strip of land as a public road or a street for a period of in excess of ten years may also result in termination of public use. LSA-C.C. Art. 753; Robinson v. Beauregard Parish Police Jury, [351 So.2d 113 ]; Yiannopoulos, Common, Public and Private Things in Louisiana: Civil Tradition and Modem Practice 21 La.L.Rev. 696, 736 (1961); Stelly, [482 So.2d 1052 ].

IP Timberlands Operating Co. v. De Soto Parish Police Jury, 552 So.2d 605, 608 (La.App. 2 Cir.1989) (emphasis added).

There is no suggestion here that there has been a formal act of revocation of Miller Road’s public status, nor has the road been relocated. The question, therefore, |sis whether there is clear and well established proof of intent to abandon. Although there was testimony that the part of the road which passes through McBride’s property has not been maintained since he bought it in 1994, failure to maintain alone is not sufficient to strip the road of its public status. Non-use for more than ten years may be sufficient to establish abandonment. However, even McBride’s son-in-law and daughter-in-law admitted in testimony that the road was regularly used by members of the public until McBride put a locked gate across it. Additionally, Kennedy, Craft, and Tommy McMahon all testified that the road has been in continuous use by the public and the landowners. “Even after a police jury-has in fact abandoned maintenance of a tacitly-dedicated road and refuses to recognize the road as public, the right of owners along the road to use the road as a servitude may be upheld.” Gatson, 907 So.2d at 863.

Accordingly, we find that Miller Road is a public road and that a servitude of use exists to protect the property accessed by it from being enclosed.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are to be paid by the Defendant-Appellant.

AFFIRMED.

      . While McBride averred that the road through his property was not Miller Road, the majority of those testifying identified it as Miller Road and it will be so identified for purposes of this opinion.

      . McMahon also owns property which is accessed though McBrides property via Miller Road.


text:
    Lori CUNNINGHAM v. STATE of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS, The Board of Physical Therapy Examiners.
    No. 05-1378.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Glenn R. Ducote, Baton Rouge, LA, George M. Papale, Kenner, LA, for Defen-danh-Appellant, Louisiana State Board of Physical Therapy Examiners.
    Lewis 0. Unglesby, Robert M. Marion-neaux, Jr., Samuel C. Ward, Jr., Baton Rouge, LA, for Plaintiff-Appellee, Lori Cunningham.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

hThe Louisiana State Board of Physical Therapy Examiners (LSBPTE) appeals the trial court’s grant of a motion to vacate filed on behalf of Plaintiff, Lori Cunningham (Cunningham). Finding that the trial court did not err in vacating the LSBPTE adjudication decision against Cunningham in Case # 2003-1-12 because that proceeding did not comply with La.R.S. 37:2401.1, rendering it constitutionally defective, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Cunningham is a licensed physical therapist in the State of Louisiana. State Farm Mutual Automobile Insurance Company filed a complaint with LSBPTE against Cunningham alleging violations of the Physical Therapy Practice Act. On June 14, 2004, LSBPTE lodged a formal administrative complaint against Cunningham bearing Case # 2003-1-12. A hearing on that complaint was held on September 23, 2004.

The members of LSBPTE who attended the hearing on September 23, 2004 were Mark Brown, Becky Lege, Teresa Lynn Maize, Mike Sheffield, and Kimberly Shook, all of whom were physical therapists. Apparently, two of these were regularly appointed LSBPTE board members and three were pro tem board members. Two other regularly appointed board members were required to withdraw because of their participation in the investigation of the complaint against Cunningham. The interim appointment of the physician member, Dr. Stanley W. Foster, had expired on June 21, 2004, and his name was not submitted to the Louisiana Senate for confirmation as required by law. The physician member seat remained vacant until March 16, 2005.

On November 19, 2004, LSBPTE rendered a decision suspending Cunningham’s license for a minimum of nine months and thereafter until she |2completed remediation in a professional physical therapy curriculum in the areas of medical legal issues and ethics as they relate to the practice of therapy and three years of supervised probation. On December 28, 2004, Cunningham filed a petition for judicial review and stay order in the Fifteenth Judicial District Court. Cunningham next filed a motion to vacate the administrative adjudication on March 31, 2005. In that motion, Cunningham alleged that the hearing was held in violation of La.R.S. 37:2401.1, in that the board was comprised of five physical therapists and no licensed physician. The trial court agreed with Cunningham and granted her motion to vacate. LSBPTE now appeals, alleging that the trial court committed reversible error in vacating the LSBPTE’s adjudication decision against Cunningham. In sum, LSBPTE argues that a vacancy in the physician member seat does not create a constitutional defect or a legal impediment to LSBPTE’s ability to conduct official business. The sole issue for consideration on this appeal is whether or not the trial court correctly granted Cunningham’s motion to vacate.

DISCUSSION

Louisiana Revised Statutes 37:2401.1 provides, in pertinent part:

B. The board shall consist of five members who shall be appointed by the governor as follows:
(1) Three members shall be physical therapists who possess an unrestricted license to practice physical therapy and who have been practicing in the state for no less than three years.
(2) One member shall be a physical therapist who possesses an unrestricted license to practice physical therapy and has been practicing in the state for no less than three years and appointed from a list of names submitted by the Louisiana Hospital Association.
(3) One member shall be a physician who possesses an unrestricted license to practice medicine in the state who specializes in the practice of orthopedic surgery or the practice of physiatry and appointed from a list of names submitted by the Louisiana State Medical Society.

|3Louisiana Revised Statutes 49:964(G) provides, in pertinent part:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

The district court has the authority to reverse the decision of any agency if substantial rights of the party who seeks review have been prejudiced because the agency’s decision is in violation of statutory provisions or made upon unlawful procedure. Sanders v. Pilley, 96-196 (La.App. 1 Cir. 11/8/96), 684 So.2d 460, writ denied 97-352 (La.3/21/97), 691 So.2d 90; La.R.S. 49:964(G). There is no dispute that there was no licensed physician on the board at the times relevant herein. The provisions of La.R.S. 37:2401.1 concerning the composition of the board are mandatory. Therefore, we agree with the trial judge that hearing conducted in the absence of a licensed physician member on the board was in violation of the statute which rendered the decision one made upon unlawful procedure. Thus, we are not inclined to reverse his grant of Cunningham’s motion to vacate.

|4We are also not persuaded by LSBPTE’s argument that Cunningham cannot now challenge the composition of the board because she did not object to it at the time of the hearing. The trial court made a factual finding that neither Cunningham nor her attorney had any knowledge of the defect in the composition of the board at the time of the hearing and we find no reason to disturb that finding.

Furthermore, LSBPTE’s argument that since La.R.S. 37:2401.1(1) provides that “[t]hree members of the board shall constitute a quorum for any business before the board,” the hearing in this case was properly conducted is likewise unpersuasive. Compliance with this section does not negate the fact that the composition of the board was not in compliance with statutory mandates.

DECREE

For the foregoing reasons, the trial court’s judgment vacating the LSBPTE’s adjudication decision against Lori Cunningham in Case # 2003-1-12 is affirmed. Costs of this appeal are assessed to Defendant-Appellant, LSBPTE.

AFFIRMED.