text:
    In re Richard B. COOK.
    No. 2006-B-0426.
    Supreme Court of Louisiana.
    June 16, 2006.
   |,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Richard B. Cook, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

In November 1996, respondent began representing the plaintiffs in a civil matter captioned Evelyn Faye Allen, et al. v. Richard Stalder, et al., No. 95-1118 on the docket of the United States District Court for the Western District of Louisiana, Alexandria Division, Judge F.A. Little, Jr. presiding (hereinafter referred to as “Allen”). The plaintiffs in Allen were a group of female prison inmates who alleged their civil rights were violated as a result of physical and sexual abuse at the hands of their prison guards.

On June 26, 1998, respondent filed a motion in Allen in which he implied that the court had improperly never “permitted representative civil rights plaintiffs to proceed as class representatives.” He also implied that Judge Little had improperly met with and dissuaded a local attorney from enrolling as co-counsel for the plaintiffs.

On December 31, 1998, respondent filed a motion entitled “Plaintiffs Response to the State Defendants’ Motion to Dismiss Certain Plaintiffs.” In this Rmotion, respondent stated that if Judge Little granted the defendants’ motion, then “the courts in the Western District of Louisiana can be reserved almost entirely for wealthy (predominantly white) litigants, and courts and counsel need not be concerned with poor (predominantly black) plaintiffs.” He also claimed that Judge Little compounded the “lack of balance” between the plaintiffs’ resources and the defendants’ resources through his “unwritten orders, his failure to respond to plaintiff motions, [and] his refusal to even place this case on the docket for many months at the outset.” Finally, respondent suggested that this case would not end until “either the plaintiffs prevail or the Court concludes that the rape and abuse of inmates by their guards is perfectly OK.”

On January 11, 1999, respondent filed a motion in which he requested that the following subjects be discussed at a status conference: 1) the delay in placing the Allen case on the docket; 2) reconsideration of the denial of the plaintiffs’ class representation; 3) the failure of the court to place one of the plaintiffs’ motions on the docket; 4) whether the court has ever authorized class representation in civil rights claims; 5) whether there is a consensus in the court to never allow these types of cases to go forward with class representatives; 6) why Judge Little’s unwritten orders have never been put in writing; 7) whether Judge Little met with a local attorney and dissuaded him from enrolling as co-counsel for the plaintiffs; 8) whether Judge Little has ever appointed counsel to represent an incarcerated person who has complained about conditions of confinement; and 9) whether the court as a whole has ever allowed such a plaintiff to get beyond a defendant’s summary judgment or other motion dismissing the complaint.

On January 14, 1999, respondent filed a motion to recuse Judge Little. The basis for his motion was his belief that his clients’ opportunity for a fair trial was “slipping away” due to Judge Little’s conduct in the Allen case as well as in the case |aof Vergie Lee Valley v. Rapides Parish School Board, No. 96-30441 on the docket of the United States District Court for the Western District of Louisiana, Alexandria Division (hereinafter referred to as “Valley”). Respondent alleged that one of the attorneys in the Valley case was Judge Little’s former law partner and the president of an organization that paid for the judge’s overseas trip to speak at its conference while the Valley case was pending before him. Thereafter, the case was settled in favor of this attorney’s client. As such, respondent alleged that “the judge permitted this counsel’s client to benefit from his judicial function.” Furthermore, because of the judge’s alleged conduct in Valley, respondent argued that the judge “has not maintained the necessary firewall between his personal and his judicial relations and ought not hear Constitutional matters.” Regarding the judge’s conduct in Allen, respondent argued that he acted improperly in denying the plaintiffs’ motion for class representation without conducting a hearing, failed to notice one of the plaintiffs’ motions for a hearing, and twice issued oral orders without later putting them in writing. Respondent also accused Judge Little of engaging-in “lax case management” and having an “indifference to propriety.” He also argued that Judge Little “has not met the judicial requirement of an avoidance of impropriety and the appearance of bias and partiality.” Based on these reasons, respondent argued Judge Little should be recused. Judge Little denied the motion to recuse on January 20, 1999, stating that respondent included only vague allegations that did not identify a conflict the judge has with the Allen case.

Respondent also filed a complaint against Judge Little with the United States Court of Appeals for the Fifth Circuit based on the Valley allegations in his motion to recuse. The Fifth Circuit dismissed the complaint on February 2, 1999, stating “[bjecause Judge Little was not acting improperly either in presiding over a suit in | ¿which his former partner appeared as counsel, or in attending the conference, Judge Little is not subject to discipline for the combination of the two.”

On February 10, 1999, Judge Little provided detailed reasons for his denial of respondent’s motion to recuse. Essentially, Judge Little ruled that the motion to recuse was frivolous and cited the Fifth Circuit’s dismissal of respondent’s judicial complaint in support of the denial of the motion.

On February 22, 1999, respondent filed a second complaint against Judge Little with the Fifth Circuit based on Judge Little’s reference to the Fifth Circuit’s dismissal of respondent’s first judicial complaint, thereby publishing the fact that respondent was a judicial complainant. The complaint was also based on an allegation that Judge Little had a financial interest in the building housing his former law firm, one of whose partners was representing a party in a case before Judge Little. The Fifth Circuit dismissed this complaint on May 12, 1999.

In April 1999, respondent filed a second motion to recuse Judge Little in the Allen case. The motion was based on Judge Little making public the fact that respondent had filed a judicial complaint against him with the Fifth Circuit. Judge Little denied the motion on May 6,1999.

Thereafter, in an attempt to further investigate his allegations regarding Judge Little’s improprieties in other cases, including the Valley case, respondent sought to take the deposition of Jan Holloway, the former office manager of Judge Little’s former law firm, Gold, Weems, Bruser, Sues & Rundell (“Gold”), and its real estate partner, 2001 Odyssey Partnership (“Odyssey”). However, neither Gold nor Odyssey were parties to the Allen case; thus, Judge Little quashed the deposition. Respondent also sought to subpoena documents from Gold and Odyssey. Both filed objections to the subpoenas, and United States Magistrate Judge James Kirk, the presiding magistrate in the Allen case, quashed the subpoenas in a ruling dated July 28, 1999. | ^Moreover, Magistrate Judge Kirk indicated that respondent “persists in what can only be described now as a pattern of harassment in an attempt to influence the district judge.”

On February 3, 2000, Judge Little assigned the Allen case to Magistrate Judge Kirk for pretrial preparation. In response, respondent filed a motion to reconsider the assignment to Magistrate Judge Kirk, raising the same arguments as raised in the two motions to recuse and the two judicial complaints against Judge Little. Specifically, respondent stated,

the plaintiffs are unwilling to litigate their legal interests before a Court who has received a valuable gratuity from litigators with matters pending in his court. The plaintiffs are also concerned about the Court’s fairness, because the Court has improperly published a Judicial Complaint and has identified their counsel as Complainant, thus manifesting an inclination to seek to humiliate and coerce their counsel.

Respondent then indicated he may “seek extra-judicial supervision to enforce the appropriate canons of behavior” because the Fifth Circuit was “unable or unwilling to supervise the district judges as to ethical matters.” Judge Little denied the motion to reconsider on February 28, 2000.

On April 4, 2000, after Judge Little and Magistrate Judge Kirk suggested that respondent’s conduct may warrant sanctions, respondent filed a motion seeking a hearing on sanctions. In the motion, respondent reurged his request that Judge Little be recused. He also claimed that Judge Little improperly quashed Ms. Holloway’s deposition and reurged his request to depose her. The motion was referred to Magistrate Judge Kirk, who found the following:

In this case, it appears that plaintiffs attorney’s continued attacks are calculated to provoke the district judge in an effort toward forum shopping. Cook’s attacks appear to be an attempt to influence the result of this case by threats, intimidation and harassment of the district judge. | ((Warnings by the district judge and by the undersigned have not corrected Cook’s behavior.

Accordingly, Magistrate Judge Kirk ordered that respondent be referred to Judge Little for consideration of contempt proceedings, sanctions, and/or referral to the Louisiana Attorney Disciplinary Board. He also ordered that the clerk of court stop accepting from respondent any pleadings concerning matters raised in the motions to recuse or concerning Ms. Holloway’s deposition. Finally, he ordered respondent to learn the Louisiana Rules of Professional Conduct, the Code of Professionalism, and the Code of Professionalism in the Courts adopted by the Louisiana Supreme Court and comply with same in his activities in and pleadings submitted to the United States District Court, Western District of Louisiana, Alexandria Division.

On May 31, 2000, Judge Little issued an order adopting Magistrate Judge Kirk’s ruling and ordered respondent to show cause why he should not be sanctioned. Judge Little sanctioned respondent on June 30, 2000, ordering him to pay $7,500 to the clerk of court and suspending him from practice before the court until he paid the fíne. Respondent paid the fíne in August 2000.

Between October 25, 2000 and March 6, 2001, respondent was ordered three times to show cause why he should not be sanctioned for subsequent failures to comply with deadlines and court orders, including orders to cease raising the same issues for which he was previously sanctioned. Pursuant to those show cause orders, respondent was ordered to pay $1,243.75 and $1,621.75 in attorney’s fees to the defendants on February 22, 2001, fined $2,000 on February 22, 2001, and fined $4,000 on February 26, 2001.

Also on February 26, 2001, respondent filed a motion to recuse Magistrate Judge Kirk, citing his April 25, 2000 order that respondent not interview an inmate incarcerated in Avoyelles Parish, which order respondent claimed was punishment |7for having filed a judicial complaint against Judge Little. Magistrate Judge Kirk denied the motion.

Respondent paid the attorney’s fees, the $2,000 fine, and the $4,000 fine in March 2001. On March 26, 2001, he filed a pleading in which he apologized to the court, explaining that he recognizes his conduct went “beyond the permissible limits of advocacy.” Respondent also filed, under seal, a motion to withdraw as counsel of record for the Allen plaintiffs. Respondent was dismissed as counsel on May 10, 2001.

DISCIPLINARY PROCEEDINGS

Formal Charges

On April 28, 2004, the ODC filed one count of formal charges against respondent, alleging that his conduct violated Rules 3.1 (meritorious claims and contentions), 4.4 (respect for the rights of third persons), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. Respondent answered the formal charges, essentially denying the allegations of misconduct.

Formal Hearing

This matter proceeded to a formal hearing on the merits. Respondent participated in the hearing via telephone.

|sBoth respondent and the ODC introduced documentary evidence at the hearing. The ODC called Patricia Bowers (defense counsel in the Allen case), Magistrate Judge Kirk, and Rodney Rabalais (defense counsel in the Allen case) to testify before the committee. Respondent did not testify on his own behalf, nor did the ODC call him to testify.

Hearing Committee Recommendation

After considering this matter, the hearing committee made factual findings as follows:

The first sign of trouble in the Allen case appeared on June 26, 1998 when respondent filed a pleading in which he moved the court to “investigate its own docket and determine whether this Court has ever permitted representative civil rights plaintiffs to proceed as class representatives.” In the same pleading, respondent implied that Judge Little had engaged in efforts to dissuade an attorney from enrolling as co-counsel for the plaintiffs. Respondent made similar insinuations in his response to a court order dated December 30,1998.

Respondent then filed a motion to re-cuse Judge Little, accusing him of partiality in favor of a litigant’s attorney who was a member of Judge Little’s former law firm and, as president of a legal association, arranged for Judge Little to travel |flto Italy to address the association’s meeting. The motion was denied, and in reasons for denying the motion, Judge Little referred to the fact that respondent filed a judicial complaint against him. Respondent then filed another motion to recuse, alleging that Judge Little violated Rule 15 of the Fifth Circuit’s Rules Governing Complaints of Judicial Misconduct or Disability, which mandates that judicial complaints remain confidential.

Judge Little’s relationship with the aforementioned attorney became a topic of intense scrutiny for respondent. On June 29, 1999, Gold objected to respondent’s subpoena for the following records: checks made payable to Judge Little from 1984 to the present; checks made payable to Judge Little’s wife from 1984 to present; and checks made payable to any party, which might benefit Judge Little, his wife, or any of his relatives. Odyssey objected to an identical subpoena. On July 28, 1999, Magistrate Judge Kirk ruled that the requested records in the subpoenas were irrelevant and the subpoenas themselves were harassing.

On July 13, 1999, respondent filed a request that the above objections be transferred to another court for consideration. On July 16, 1999, respondent deposed Ms. Holloway, questioning her about the same matters that were the subjects of the above subpoenas. However, Ms. Holloway’s attorney objected to the taking of the deposition and instructed her not to answer. Thus, during the deposition, the parties called Judge Little to resolve the issue, and Judge Little disallowed any questioning of Ms. Holloway.

In response to Judge Little’s February 3, 2000 order assigning the Allen case to Magistrate Judge Kirk for pretrial preparation, respondent filed a request to refer the case to another district court because the plaintiffs did not want to litigate their issues before a judge who “received a valuable gratuity from litigators with matters pending in his court” and who “improperly published a Judicial Complaint and has | ^identified their counsel as a Complainant, thus manifesting an inclination to seek to humiliate and coerce their counsel.”

In response to respondent’s motions to recuse Judge Little, Magistrate Judge Kirk suggested that their frivolous nature might lead to sanctions. The court did not order sanctions or order respondent to show cause why he should not be sanctioned. However, on his own motion, respondent sought a hearing on sanctions, taking this opportunity to also reiterate his allegations of misconduct against Judge Little and his request to depose Ms. Holloway. In response, Magistrate Judge Kirk listed twenty-eight incidents of respondent’s behavior he felt warranted sanctions. Respondent reacted to this ruling by reiterating his previous allegations against Judge Little.

Respondent never appealed the denial of his clients’ motions to recuse. Instead, he continued to reiterate his allegations against Judge Little and later added allegations against Magistrate Judge Kirk. He also continued to raise the issue of deposing Ms. Holloway. His allegations of misconduct against Judge Little continued up to and including the formal hearing in this matter.

Based on these findings, the hearing committee determined that respondent violated Rules 3.1, 4.4, and 8.4(d) of the Rules of Professional Conduct. Respondent did not pursue the proper review of Judge Little’s rulings through interlocutory appeal. Instead, he continued to pursue the same issues to the point of obsession and in a vexatious manner. Furthermore, despite having notice that Gold and Odyssey, who were not parties to the Allen suit, objected to his subpoenas, respondent attempted to obtain the information through Ms. Holloway’s deposition. Respondent’s conduct as a whole amounted to conduct prejudicial to the administration of justice.

The committee determined that respondent knowingly engaged in disruptive conduct in the Allen case. However, his behavior was not intended to personally Inbenefit himself or his clients. The committee agreed with Ms. Bowers, who felt that respondent believed what he was doing was right but allowed his cause to become a crusade. In mitigation, the committee also placed significant weight on a report of respondent’s psychotherapist, who indicated that respondent’s response to perceived injustices resulted in obsessive behavior, which opinion is consistent with the evidence in the record.

Under these circumstances, the committee recommended that respondent be suspended for three years.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board determined that the hearing committee’s findings of fact are not manifestly erroneous. The board also determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. Specifically, the board found that instead of proceeding with interlocutory appeal of the denial of the motion to recuse, respondent continued to “tirelessly” pursue the issue at the district court level without a good faith legal basis to do so. Furthermore, respondent’s pursuit of discovery from third persons not involved in the Allen case was burdensome to these parties. Respondent’s conduct caused undue expense and effort in the federal court proceedings and also caused the defendants to accrue extra expenses.

Based on these findings, the board determined that respondent knowingly, if not intentionally, violated a duty owed to the legal system, causing significant harm to the federal courts as well as Gold, Odyssey, and the defendants in the Allen case. | iaRelying on the ABA’s Standards for Im posing Lawyer Sanctions, the board determined that the baseline sanction is a period of suspension.

As aggravating factors, the board identified a pattern of misconduct and refusal to acknowledge the wrongful nature of the conduct. As mitigating factors, it found the absence of a prior disciplinary record, personal or emotional problems, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, inexperience in the practice of law (admitted 1992), and imposition of other penalties or sanctions.

Turning to the issue of an appropriate sanction, the board looked to this court’s prior jurisprudence and determined that the three-year suspension recommended by the hearing committee is too harsh. Like the attorneys in In re: Zohdy, 04-2361 (La.1/19/05), 892 So.2d 1277; In re: Stratton, 03-3198 (La.4/2/04), 869 So.2d 794; and In re: Boydell, 00-0086 (La.5/26/00), 760 So.2d 326, respondent filed repetitive and unwarranted pleadings in ongoing litigation. Also, like Stratton, respondent’s frivolous and harassing claims and requests for discovery burdened third persons. However, the board found that respondent’s conduct and the resulting harm were not as egregious as that found in the three cited cases. Furthermore, respondent’s conduct spanned approximately three years, which was considerably less than the ten-year spans in Boydell and Stratton. Respondent also did not cause direct harm to his clients as did Zohdy and Boydell. Taking these circumstances into account, as well as the numerous mitigating factors present, the board determined that it is appropriate to defer eighteen months of a three-year suspension.

Accordingly, the board recommended that respondent be suspended from the practice of law for three years, with all but eighteen months deferred.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

J^DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

We find the record supports the hearing committee’s factual findings, and that respondent violated the Rules of Professional Conduct as alleged in the formal charges. Respondent filed repetitive and unwarranted pleadings in ongoing litigation. He also made frivolous and harassing claims for discovery against third persons not involved in the litigation.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In considering that issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

1 ^Respondent knowingly violated a duty owed to the legal system, causing significant harm to the federal courts as well as others. The baseline sanction for this misconduct is suspension.

The aggravating and mitigating factors found by the board are supported by the record. The record also supports the mitigating factor of delay in the disciplinary proceedings. Under all the circumstances, we find the sanction proposed by the disciplinary board is responsive to the misconduct and is consistent with our prior jurisprudence.

Accordingly, we will suspend respondent from the practice of law for a period of three years, with all but eighteen months deferred, subject to the condition that any future misconduct may be grounds for making the deferred portion of the suspension executory or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Richard B. Cook, Louisiana Bar Roll number 21248, be suspended from the practice of law for three years. It is further ordered that all but eighteen months of the suspension shall be deferred, subject to the condition that any future misconduct may be grounds for making the deferred portion of the suspension executory or for imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . In his answer, respondent continued to insist that Judge Little engaged in misconduct. Therefore, because his allegations of misconduct against Judge Little were truthful, respondent argued that he himself did not engage in any misconduct.

      . Ms. Bowers testified that respondent engaged in "almost constant warfare with the judge” during the case. Respondent also filed redundant pleadings, raising the same issues over and over again, which had to be responded to and ruled on each time, making the case go on longer than normal. Since she billed by the hour, respondent's redundant pleadings caused her to bill her clients two to three times more in attorney's fees than normal. While she felt that respondent had the "best of intentions,” she also felt he "stepped over the line,” was "misguided,” and "got carried away about the judge.”

      . Mr. Rabalais testified that respondent filed redundant pleadings and began to focus more on Judge Little, making "outlandish” accusations against the judge, which diverted time and attention away from the merits of the case. Mr. Rabalais also testified that he had to bill his clients for the time he spent on the redundant issues. Finally, he testified that the case was concluded approximately six months after respondent was dismissed.

      . Respondent self-reported his June 30, 2000 suspension from the federal court on August 10, 2000; nevertheless, the ODC delayed filing formal charges for almost four years.


source: Caselaw Access Project

license: Public Domain

text:
    In re CONFIDENTIAL PARTY.
    No. 2006-B-1371.
    Supreme Court of Louisiana.
    June 28, 2006.
   ORDER

Considering the Joint Petition for Consent Discipline filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that the Joint Petition for Consent Discipline be and hereby is rejected pursuant to Supreme Court Rule XIX, § 20.

IT IS FURTHER ORDERED that this matter be remanded for consideration of the previously filed formal charges.

/s/ Jeffrey P. Victory

Justice, Supreme Court of Louisiana


author: PER CURIAM.

text:
    In re Kevin Patrick MONAHAN.
    No. 2006-B-1541.
    Supreme Court of Louisiana.
    June 30, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected his client’s legal matter and failed to communicate with his client. Following the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 1.3 and 1.4 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Kevin Patrick Monahan, Louisiana Bar Roll number 1978, be suspended from the practice of law for a period of six months, with all but forty-five days deferred, followed by a one-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension execu-tory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

TRAYLOR, J., dissents and would remand for further investigation.


author: SAUNDERS, Judge.

text:
    Daryl LEBERT v. McNEESE STATE UNIVERSITY.
    No. WCA 2005-856.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2006.
    Rehearing Denied March 29, 2006.

      Marcus Miller Zimmerman, Lake Charles, LA, for Plaintiff/Appellee: Daryl Lebert.
    Adam L. Ortego Jr., Assistant Attorney General, Lake Charles, LA, for Defendant/Appellant: McNeese State University.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and OSWALD A. DECUIR, Judges.
   SAUNDERS, Judge.

| í This is a workers’ compensation case. Claimant Daryl Lebert was injured on October 1, 1999, while employed at McNeese State University. The workers’ compensation judge held that Mr. Lebert was entitled to indemnity benefits from the date of termination of payment by McNeese State University, with a credit of thirty-nine weeks of indemnity for the amount of time Claimant was employed elsewhere. The court further held that Claimant was entitled to reasonable and necessary medical benefits for the work related injury. In addition, penalties in the amount of $2,000.00 and attorney fees in the amount of $6,000.00 were awarded to Claimant. We affirm the decision of the trial court and award an additional $2,500.00 in attorney fees for work done on appeal.

FACTS AND PROCEDURAL HISTORY

Claimant Daryl Lebert, a painter and maintenance worker at McNeese State University, was injured on October 1, 1999 when he attempted to lift a five-gallon bucket of sheet rock mud. Mr. Lebert injured his left shoulder and cervical area. He left work the day of the injury and returned to work 10 days later with a release slip allowing him to perform light duty work. On October 14, 1999, Dr. Drez, an orthopedist, diagnosed Mr. Le-bert with a left rotator cuff and acromioc-lavular sprain. The x-rays taken of Claimant’s left shoulder revealed no orthopedic problems. Dr. Drez recommended that Mr. Lebert receive physical therapy over the course of two weeks, and then he could return to work as tolerated. On October 22, 1999, Mr. Lebert was terminated from McNeese State University for disciplinary reasons. On October 28, 1999, Mr. Lebert returned to Dr. Drez’s office. Dr. Drez saw little improvement and ordered an MRI of Claimant’s left shoulder. On November 4, 1999, the MRI was negative. Dr. Drez found that Mr. Lebert’s symptoms were ^secondary to rotator cuff strain with resulting tendinitis in the shoulder, and on November 8, 1999, he injected Claimant’s left shoulder, almost completely eliminating the pain. Again, he recommended physical therapy and stated that Mr. Lebert could return to light duty work.

On November 15, 1999, suspecting that Mr. Lebert may be suffering from a cervical disc disease, Dr. Drez referred him to another orthopedist, Dr. James Perry, for an evaluation of his cervical area. Dr. Perry took x-rays of the neck on November 30, 1999. The x-rays of the neck were negative, and Dr. Perry diagnosed Mr. Lebert with a cervical strain and recommended physical therapy. No MRI of the neck was conducted. Dr. Perry noted on January 18, 2000 that Mr. Lebert’s neurological exam was stable and that he had made “significant” progress. He recommended continuing physical therapy. On February 1, 2000, Dr. Perry recommended that Mr. Lebert return to work without restrictions after finding that his systems were negative, his cervical range of motion was normal, and his neurological exam was stable. He concluded that Mr. Lebert had a resolved cervical sprain. Although they had terminated his employment in October 1999, McNeese State University continued to pay indemnity benefits to Mr. Lebert until February 6, 2000, when they were notified of his release by Dr. Perry.

More than two years later, on October 29, 2002, Mr. Lebert returned to Dr. Perry’s office, complaining of pain in his shoulder and cervical area. He saw no other physicians between his last visit to Dr. Perry’s office in February of 2000 and the October 29, 2002 visit. At this time, Dr. Perry diagnosed Mr. Lebert with bursitis and tendinitis in the left shoulder and ordered another MRI of the left shoulder which was normal. Dr. Charles Lim reviewed the MRI and found that there was no evidence of |3a rotator cuff tear and no definite signs of bony edema or bursitis. He noted that there was little change from the November 4, 1999 MRI, which was also negative.

Mr. Lebert filed a disputed claim for compensation at the Office of Workers’ Compensation against McNeese State University on December 12, 2002, claiming that he was owed supplemental earnings benefits. Following a hearing on a Rule to Show Cause, the Workers’ Compensation Court ordered that Claimant be allowed to see Dr. Lynn Foret, an orthopedic specialist, as his choice of physician and that he be evaluated as soon as possible. On January 28, 2004, Dr. Foret ordered an MRI of the cervical area and found that Mr. Lebert had a tear in the left shoulder rotator cuff and a herniated disc in the cervical area. He concluded that Claimant may require surgery in his left shoulder and neck. An independent medical examination was performed by Dr. Daniel Yan-icko, Jr. on May 4, 2004. From this examination, he determined that there was a left shoulder strain and sprain with underlying rotator cuff disease and a chronic strain and sprain of the cervical spine. He also noted that the x-rays and an MRI of the cervical area suggested a C5-6 disc herniation. The cervical MRI and the reports of Drs. Foret and Yanicko were never sent to or reviewed by Dr. Perry, nor was he asked by Appellant to comment on the findings or opinions of the other physicians.

This matter came to trial on January 27, 2005. After the matter was taken under advisement, the court issued oral reasons for judgment on March 9, 2005. The Workers Compensation Court held that Mr. Lebert was entitled to supplemental earnings benefits from the date of termination of temporary total disability benefits, which was February 6, 2000, with a credit for the thirty-nine weeks of indemnity during which Claimant was employed. The court further held that Claimant was [4entitled to reasonable and necessary medical care, including, but not limited to, the treatments recommended by Dr. Foret and Dr. Yanicko. The court awarded $2,000 in penalties and $6,000 in attorney fees to Claimant. The judgment was signed on March 28, 2005. Defendant now appeals.

ASSIGNMENTS OF ERROR

1) The trial court erred in ruling in favor of Claimant.
2) The trial court erred in denying the defendant’s exception of prescription.
3) The trial court erred in awarding penalties and attorney fees to Claimant.

STANDARD OF REVIEW

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

LAW AND ANALYSIS

Assignment of Error 1:

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

In this case, there is no dispute that Mr. Lebert injured himself while he was working at McNeese State University. Claimant argues that this injury disabled him. Disability is presumed if before the occurrence of the accident, claimant was in good health, and commencing with the accident, the disabling symptoms appeared and continuously manifested themselves thereafter, provided there is a reasonable possibility of a causal connection between the accident and the disabling condition. There is also a presumption of disability if the nature of the accident together with other facts of the case raise a natural inference through human experience of such a causal connection. Walton v. Normandy Village Homes Assoc. Inc., 475 So.2d 320 (La.1985); Jeanise v. Cannon, 04-1049 (La.App. 3 Cir. 2/23/05), 895 So.2d 651, writs denied, 05-0785, 05-0788 (La.5/13/05), 902 So.2d 1021. Appellant, on the other hand, argues that although Mr. Lebert was injured on the job in October 1999, his cervical sprain was resolved by February 2000, as Dr. Perry had determined. They |fiargue that another injury must have occurred after his termination from MeNeese State University, causing him to suffer a herniated disc as was shown in the 2004 MRI of Claimant’s cervical area. Appellant points specifically to the x-rays and MRI of November 1999 taken a month after Mr. Lebert’s injury and an MRI taken two years after the date of Mr. Lebert’s injury. Appellant points out that the first x-rays and MRI show no objective signs of injury, and the subsequent MRI shows little change from the previous one. However, an MRI taken in 2004 shows major injury to Claimant’s neck and shoulders. Therefore, Appellant asserts that there must have been an intervening incident which caused this injury. The 2004 MRI arguably shows a shoulder injury that was not readily apparent in the previous x-rays and MRIs. Appellant, however, failed to get an analysis or opinion on these findings from Dr. Perry, or any other physician, for that matter. Therefore, there is no medical evidence in the record showing that the 2004 MRI reflects a new injury. We cannot determine from the record whether it is a new injury or whether it is an injury that was simply not picked up by the previous scans. Appellant also argues that there is a neck injury that was not previously apparent. However, the first x-rays and MRI conducted in 1999 as well as the MRI ordered in 2002 did not include the cervical area; they were only of the left shoulder. The first time an MRI of the cervical area was conducted was in 2004. We, therefore, cannot determine whether the herniated disc was a result of the original accident or whether it was the result of a hypothetical intervening accident, as Appellant asserts. Appellant has offered no evidence to prove that an intervening accident did, in fact, cause this injury. Without such evidence, we do not find the trial court’s holding to be unreasonable.

|7The Appellant further argues that Claimant made false representations and that any right he may have had to collect from MeNeese State University was forfeited by making such representations. In order for a claimant to forfeit his workers’ compensation benefits, he must have: (1) made a false statement or representation; (2) willfully made the statement or misrepresentation; and (3) made the statement or misrepresentation for the purpose of obtaining or defeating any benefits or payments. Lowe’s Companies, Inc. v. Leblanc, 02-730 (La.App. 3 Cir. 2/5/03), 839 So.2d 434. Appellant points out a long list of misrepresentations allegedly made by Mr. Lebert. First, Appellant points out that Mr. Lebert testified in his deposition and at trial that he was not terminated from his employment at St. Patrick Hospital. However, Mr. Lebert’s supervisor at St. Patrick’s, Mr. Savario, testified that Mr. Lebert had been terminated. Mr. Lebert also testified that he did not undergo any kind of physical examination upon accepting his employment, and while working at the hospital, he could only use one arm. To the contrary, Mr. Savario testified that Mr. Lebert did have to pass a physical in order to work at St. Patrick’s. He also testified that Mr. Le-bert performed his work satisfactorily, that he appeared to have no difficulty performing the job, never complained of any pain, and he was fired for reasons unrelated to his job performance. While Mr. Lebert’s testimony conflicts with Mr. Sa-vario’s testimony, there is no conclusive evidence as to whose testimony is accurate. Appellants further assert that Mr. Lebert testified in his deposition that he worked only for St. Patrick’s Hospital and Winters Construction subsequent to his termination from McNeese State University. However, at trial, he testified that he had worked at Realty Source after he worked at St. Patrick’s. These issues did not need to be and were not resolved by the Workers’ Compensation Court. They are collateral | sissues, the resolution of which have no direct bearing on the outcome of this case. Therefore, even if it were shown that Claimant was inaccurate, such inaccuracy on collateral issues would not support a finding of willful misrepresentation. Lowes Companies, Inc., 839 So.2d 434.

Next, Appellant claims that Mr. Lebert testified falsely about his physician of choice. At a hearing on that issue, Mr. Lebert testified that McNeese sent him to see Dr. Drez, and insisted that he did not see Dr. Seep, his family doctor, after the injury. Appellant points out that Mr. Le-bert’s testimony differed in a deposition taken on March 4, 2004.

Q. Now, didn’t you also see him [Dr. Seep] after your October '99 injury?
A. Well, he’s my-—he’s my regular doctor.
Q. And that you went to see—what I have is that you went to see Michael Seep initially, Dr. Michael Seep.
A. I went to see Charlene Broussard at McNeese, and she set me up with my doctor and he sent me to—or he—somehow I ended up at Dr. Drez.

While Mr. Lebert’s recollection of which doctor he saw when may not be accurate, it is not relevant to the determination of his entitlement to benefits, and therefore, cannot support a finding of willful misrepresentation.

Appellant also argues that Mr. Lebert testified that Dr. Perry did not treat him for his neck complaints, which is contradicted by the fact that there were x-rays of Mr. Lebert’s neck taken on November 30, 1999. Dr. Perry also diagnosed Mr. Lebert with a cervical strain and referred him for physical therapy. Despite the testimony of Mr. Lebert, the medical evidence and doctor’s testimony has been entered into the record, |gand stands on its own. The fact that Mr. Lebert’s recollection is inaccurate does not support a finding of willful misrepresentation.

Finally, Appellant urges that Mr. Lebert claimed that he was fired from McNeese because of his workers’ compensation claim, but in fact, he was fired justifiably. We find this to be yet another collateral issue wholly irrelevant to Mr. Lebert’s entitlement to benefits under the law of workers’ compensation. While Mr. Lebert’s opinion as to the reason for his firing may be inaccurate, it is clear that whether or not Mr. Lebert was fired due to his claim has no direct bearing on his entitlement to benefits for the accident.

The trial court did not find that Mr. Lebert made any misrepresentation or fabrication of the essential facts for the purpose of obtaining workers’ compensation benefits. We agree. Accordingly, we affirm the decision of the trial court.

Assignment of Error No. 2:

In its second assignment of error, Appellant argues that the trial court erred in denying its exception of prescription. Appellant argues that Mr. Lebert’s claim for benefits prescribed under La. R.S. 23:1209 and should have been dismissed. Louisiana Revised Statute 23:1209 provides:

A. In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or 1 mdevelop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases, the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

Therefore, a claimant must file his claim for workers compensation benefits within: (1) one year from the date of the accident; (2) one year from the date of the last compensation payment for total disability or three years from the last payment of partial disability; or (3) one year from the time the injury develops if not immediately manifested, but, in any event, no more than two years after the accident. Iverstine v. Albemarle Corp., 02-2555 (La.App. 1 Cir. 7/2/03), 852 So.2d 492, unit denied, 2003-2583 (La.12/12/03), 860 So.2d 1154. In the instant case, McNeese State University was paying Mr. Lebert supplemental earnings benefits under La.R.S 23:1221(3) until February 6, 2000. Therefore, because it specifically falls under the exception found in La.R.S. 23:1209, Mr. Lebert’s claim for payment would not have been barred until three years from the date of the last payment of supplemental earnings benefits by McNeese State University. By filing on December 2, 2002, Mr. Lebert was well within the three year prescriptive period.

Claimant maintains that his claim has not prescribed, but argues the Appellant is precluded from now raising this objection, as it had never specifically pled this exception. Louisiana Code of Civil Procedure Article 927 dictates that an objection of prescription is raised through the peremptory exception and must be specifically pled. However, a peremptory exception may be raised at any time, and at any stage in the proceedings. Therefore, the issue of prescription is properly before us.

|nThe trial court did not err in denying Appellant’s exception of prescription, as Claimant filed his claim within the three years allowed by La.R.S. 23:1209. Accordingly, we find that this assignment of error lacks merit, and we affirm the holding of the trial court.

Assignment of Error No. 3

Appellant further argues that the trial court erred in awarding penalties and attorney fees to the Claimant. Under La.R.S. 23:1201(F), a claimant in a workers’ compensation case has the burden of proving his entitlement to statutory penalties for the employer’s refusal or failure to timely pay workers’ compensation benefits. To avoid the imposition of penalties and attorney fees, the employer and its insurer must provide factual and medical evidence to reasonably controvert a workers’ compensation claim. Bolton v. Mike Fleming Construction, 36,521 (La.App. 2 Cir. 12/11/02), 833 So.2d 1177. The employer must have an “articulable and objective reason to deny benefits at the time it took the action.” Authement v. Shappert Engineering, 02-1631 (La.2/25/03), 840 So.2d 1181, 1188.

Under Bolton, penalties should be imposed only when there is no good faith or just cause on the part of the employer and his refusal to pay the benefits. A workers’ compensation judge’s decision to award attorney fees and penalties is subject to the manifest error standard of review. Bolton, 833 So.2d 1177.

Appellant asserts that Claimant’s rights to benefits were “reasonably controverted” by the factual and medical information available to McNeese. It argues that the doctors’ unrestricted release of Claimant, Claimant’s failure to report back to his doctor for over thirty-three months, and his lack of veracity reasonably justify their | ^opposition to the claim. However, Claimant submitted evidence, in the form of physicians’ opinions, that was developed in 2004 which tended to support his claim for disability. Although this evidence differed from evidence Appellant gathered from Dr. Perry, it did not ask Dr. Perry to examine or give an opinion on this new medical evidence. Appellant had a duty to investigate the claim, and could not simply ignore the new evidence. Given the fact that Appellant chose not to investigate the new medical evidence, it is difficult for them to prove the claim was reasonably controverted. Therefore, we do not find that the trial court committed manifest error in awarding attorney’s fees and penalties to Claimant. Accordingly, we affirm the trial court’s award of attorney fees and penalties to Claimant.

Additionally, in the answer to the appeal, Claimant has prayed for an award of additional attorney fees for work done on this appeal. We award Claimant $2,500.00 in attorney fees for work done on this appeal.

CONCLUSION

The judgment of the trial court is affirmed. Costs of the appeal are assessed against Appellant. Additionally, Claimant is awarded $2,500.00 in attorney fees for work done on appeal.

AFFIRMED AS AMENDED.


author: MAX N. TOBIAS JR., Judge.

text:
    Sharvonne JOHNSON v. ORLEANS PARISH SCHOOL BOARD.
    No. 2005-CA-1038.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 3, 2006.

      John L. Young, Law Offices of John L. Young, New Orleans, Counsel for Shar-vonne Johnson.
    Michael B. Forbes, Hammond, Counsel for Sharvonne Johnson.
    Philip A. Costa, Costa Law Firm (APLC), New Orleans, Counsel for Defendant/Appellant.
    (Court Composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, Jr.)
   MAX N. TOBIAS JR., Judge.

hln this workers’ compensation case, the employer, the Orleans Parish School Board (“OPSB”), appeals the judgment of the Office of Workers’ Compensation (“OWC”) rendered in favor of Sharvonne Johnson (“Johnson”). For the reasons assigned, we affirm in part and reverse in part.

On 13 January 2000, Johnson was involved in an automobile accident while operating a school bus in the course of her employment with the OPSB. Johnson began receiving workers’ compensation benefits in January 2000.

Johnson, through her attorney, John L. Young, filed a tort suit in the Civil District Court for the Parish of Orleans against the driver of the other vehicle involved in the accident. The OPSB intervened in that action. Johnson received a settlement check from the third-party tortfeasor’s insurer for the policy limits of $25,000.00. The OPSB did not endorse the check. In response thereto, Johnson filed a Disputed Claim for Compensation with the OWC on 13 May 2003.

Johnson’s workers’ compensation benefits were terminated on 3 October 2003, following the issuance of a “Release to Return to Work” issued to Johnson on 1 October 2003. At trial, the parties stipulated that (a) Johnson was involved in |?,a work-related accident, (b) her average weekly wage was $332.40 at the time of the accident, and (c) the OPSB paid in excess of $40,096 in indemnity benefits to Johnson and $55,252.01 in medical benefits for Johnson.

After considering the stipulations and hearing testimony from Johnson, the trial court rendered judgment decreeing: (1) Johnson did not carry her burden of proof of entitlement to temporary total disability benefits (“TTD”); (2) the OPSB carried it’s burden of proof through medical records to establish that Johnson was able to perform sedentary work; (3) the OPSB did not timely inform Johnson of any available job positions so that she could apply for appropriate work; (4) Johnson was entitled to supplemental earning benefits (“SEB”) at the full TTD rate, from the date of indemnity termination in October 2003 and continuing; (5) Johnson’s attorney in the tort action, John L. Young, was entitled to an attorney’s fee of $8,333.00 (one-third of the $25,000.00 settlement) and to reimbursement for all medical expenses paid by him; (6) the OPSB was ordered to pay for the physical therapy and the updated MRI recommended by Johnson’s treating physician; and, (7) the OPSB was ordered to pay for Johnson’s vocational rehabilitation. The OPSB appealed, asserting two assignments of error: (a) the trial court erred in not properly applying the provisions of La. R.S. 23:1103 with regard to the award of attorney’s fees in the tort action or La. R.S. 23:1102 concerning the third-party settlement; and (b) the trial court erred in finding that Johnson was entitled to SEB.

We review the judgment of the OWC applying a “manifest error/ clearly wrong” standard of review. Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.

The OPSB asserts that because it paid in excess of $95,000.00 to Johnson in benefits, it is entitled to the entire $25,000.00 settlement proceeds in accordance with La. R.S. 23:1103(A)(1), which states that in the event an employee recovers damages against a third-party tortfeasor, “the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor.” La. R.S. 23:1103(C)(1) further provides that “the intervenor shall only be responsible for a share of the reasonable legal fees and costs incurred by the attorney retained by the plaintiff, which portion shall not exceed one-third of the intervenor’s recovery for prejudgment payments of prejudgment damages.”

Johnson counters that the trial court correctly awarded Mr. Young an attorney’s fee arising out of the tort suit because he was solely responsible for obtaining the settlement and because counsel for the OPSB did not provide any assistance in procuring the third-party’s funds. Johnson concedes that she is not personally entitled to any of the settlement proceeds, but argues that her attorney in the tort action is entitled “Moody fees.”

While we agree that Mr. Young may be entitled to an attorneys’ fees for his work in the tort action, we find that the OWC does not have jurisdiction to award |/‘Moody fees” pursuant to La. R.S. 23:1103(C). Fleniken v. Safeway Transp., Inc., 02-2389 (La.App. 1 Cir. 7/2/03), 859 So.2d 50.

La. R.S. 23:1103(0(1) provides:

If either the employer or employee intervenes in the third party suit filed by the other, the intervenor shall only be responsible for a share of the reasonable legal fees and costs incurred by the attorney retained by the plaintiff, which portion shall not exceed one-third of the intervenor’s recovery for prejudgment payments or prejudgment damages. The amount of the portion of attorney fees shall be determined by the district court based on the proportionate services of the attorneys which benefited or augmented the recovery from the third party. The employee as interve-nor shall not be responsible for the employer’s attorney fees attributable to postjudgment [sic] damages nor will the employer as intervenor be responsible for the attorney fees attributable to the credit given to the employer under Subsection A of this Section. Costs shall include taxable court costs as well as the fees of experts retained by the plaintiff. The pro rata share of the intervenor’s costs shall be based on intervenor’s recovery of prejudgment payments or prejudgment damages. [Emphasis added.]

In Fleniken, the court stated:

The plain language in La. R.S. 23:1103(C) requires that attorney fees must be determined by the district court. The word “shall” is mandatory and the word “may” is permissive. La. R.S. 1:3. The phrase “[a]ttorney fees shall be determined by the district court” is mandatory language. In construing legislative enactments, we must assume that the Legislature intended every word, phrase, and clause to have some meaning and that none was inserted by accident. Consequently, we must construe every provision of a statute in such a manner so as to give it some effect. Hoag v. State ex rel. Kennedy, 01-1076, p. 13 (La.App. 1 Cir. 11/20/02), 836 So.2d 207, 219, writ denied, 02-3199 (La.3/28/03), 840 So.2d 570; citing Elevating Boats, Inc. v. St. Bernard Parish, 00-3518, p. 18 (La.9/5/01), 795 So.2d 1153, 1166. And so construing, it is clear that the Office of Workers’ Compensation lacks jurisdiction in this regard.
Fleniken argues that OWC has jurisdiction because of the language in La. R.S. 23:1310.3(E) provides OWC with exclusive jurisdiction over claims “arising out of this Chapter.” The Moody fee claim, however, arises from the tort litigation and does not “arise out of this Chapter” as contemplated in La. R.S. 23:1310.3. The statutory grant of jurisdiction to the Office of Workers’ Compensation in La. R.S. 23:1310.3(E) has been specifically limited by the language of the amendment to Article V, § 16(A) of the Louisiana Constitution, which gives the WCJ only as much jurisdiction as this constitutional amendment authorizes. Albe v. Louisiana Workers’ Compensation Corporation, 97-0581, p. 6 (La.10/21/97), 700 So.2d 824, 827. Fleniken, 02-2389, p. 3, 859 So.2d at 52.

Applying the holding of Fleniken to the present case, we find that the OWC lacked jurisdiction to award “Moody fees.” Per La. R.S. 23:1103(C)(1), the award of such fees falls within the exclusive jurisdiction of the district court. Accordingly, we conclude that the OWC erred in awarding an attorney’s fees to Mr. Young.

The OPSB also argues that the OWC judge failed to properly apply the provisions of La. R.S. 23:1102 as it pertains to Johnson’s settlement of the tort action without prior consent of her employer. La. R.S. 23:1102(C)(1) states:

When a suit has been filed against a third party defendant in which the employer or his insurer has intervened, if the third party defendant or his insurer fails to obtain written approval of the compromise from the employer or his insurer at the time of or prior to such compromise and the employee fails to pay to the employer or his insurer the total amount of compensation benefits and medical benefits out of the funds received as |fia result of the compromise, the third party defendant or his insurer shall be required to reimburse the employer or his insurer to the extent of the total amount of compensation benefits and medical benefits previously paid to or on behalf of the employee to the extent said amounts have not been previously paid to the employer or his insurer by the employee pursuant to the provisions of Subsection B of this Section. Notwithstanding such payment, all rights of the employer or his insurer to assert the defense provided herein against the employee’s claim for future compensation or medical benefits shall be reserved.

In response, Johnson argues that no settlement has ever been perfected and the OPSB’s rights have not been compromised. More particularly, Johnson maintains that she has never received any funds and has never signed a release. At the outset, we note from our review of the record before us that the issue of Johnson’s alleged failure to obtain consent for the settlement was never raised by the OPSB before the OWC and thus was never addressed by the OWC judge. We find no evidence in the record regarding the OPSB’s consent or lack of consent to the third-party settlement. The only argument presented to the OWC was the OPSB’s entitlement to the full $25,000.00 settlement due to the fact that it paid more than $95,000.00 in benefits.

As a general rule, this court will not consider an issue raised for the first time before us and which was not pleaded, urged, or addressed in the court below. Johnson v. State, 02-2382, p. 3 (La.5/20/03), 851 So.2d 918, 921. Accordingly, we decline to consider for the present the issue concerning the alleged lack of consent for the settlement.

II.

The purpose of SEB is to compensate the injured employee for the wage-earning capacity lost as a result of the injury sustained in a work-related accident. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993). La. R.S. 23:1221(3)(a) mandates that an employee is entitled to SEB if he or she sustains a work-related injury resulting in an inability to earn 90% or more of his or her average pre-injury wage. An employee seeking SEB must initially prove that the injury resulted in his or her inability to earn that amount. Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 16 (La.3/4/98), 708 So.2d 375, 384. This burden must be met by a preponderance of the evidence. Id. After the employee satisfies the above-described initial showing, the burden shifts to the employer. Seal v. Gaylord Container Corp., 97-0688, p. 8 (La.12/2/97), 704 So.2d 1161, 1166. Once the burden shifts, the employer “must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region.” Id., citing La. R.S. 23:1221(3)(c)(i).

In determining whether Johnson has established a prima facie case, the trial court may and should take into account all those factors that might bear on an employee’s ability to earn a wage. Cannedy v. Yarborough, 02-0728, p. 3 (La.App. 1 Cir. 6/27/03), 858 So.2d 504, 506, citing Daigle v. Sherwin-Williams Company, 545 So.2d 1005, 1007 (La.1989). Whether a claimant’s injury prevents him or her from obtaining employment earning 90% of the pre-injury wage is a question of fact. Thus, an appellate court may not set aside the workers’ compensation judge’s findings in this regard absent a finding of manifest error or unless the findings are clearly wrong. Smith v. J.E Merit Constructors, Inc., 01-2824, p. 6 (La.App. 1 Cir.11/08/02), 835 So.2d 749, 754.

|RUpon review of the record in the case at bar, we do not find that the OWC judge was clearly wrong in her finding that Johnson was entitled to SEB. As a result of the accident, Johnson was treated at the East Jefferson Hospital emergency room for complaints of right arm, right shoulder, and low back pain. Thereafter, Johnson treated with various physicians such as Robert L. Mímeles, M.D. (an orthopedist), Warren L. Gottsegen, M.D. (a vascular surgeon), R. Hugh Fleming, M.D., Kenneth E. Vogel, M.D. (a neurosurgeon), and D.L. Kewalramani, M.D. (Johnson’s treating physician). Johnson underwent neurosurgical evaluation by Dr. Vogel from 26 June 2001 through 30 April 2002. Dr. Vogel performed a right cervical facet arthrogram on 3 October 2001, which reproduced symptoms on the right with injections at the C3^, C4-5, and C6-7 levels of the cervical spine. Johnson underwent a right cervical medial branch neurotomy on 24 January 2002. When he last saw Johnson on 16 April 2002, Dr. Vogel assigned a 5% whole body medical impairment. Johnson treated with Dr. Kewalra-mani from January 2001 through the date of trial. Dr. Kewalramani opined that Johnson could not return to her previous position as a school bus driver and that she could only return to sedentary work. Thus, based on the evidence presented and the degree of work restrictions placed on her, we do not find that the OWC judge was clearly wrong in finding that Johnson was unable to earn 90% of her pre-injury wage.

It is clear from the reasons for judgment that the OWC judge determined that the OPSB failed to discharge its burden under La R.S. 23:1221(3)(a), by not providing Johnson with a list of available jobs in a timely fashion. We do not find that this factual determination was manifestly erroneous.

|flOn 23 May 2003, the OPSB’s vocational rehabilitation consultant, Hayward Johnson, sent Johnson a list of four possible job positions. However, Dr. Kewalramani did not approve the positions until 16 June 2003. Johnson’s testimony (that she was never notified of the jobs approved by Dr. Kewalramani) was not refuted by the OPSB. Moreover, the OPSB provided no evidence that the positions were still available when Dr. Kewalramani approved them. Accordingly, we find no error in the OWC judge’s ruling regarding Johnson’s entitlement to SEB.

For the foregoing reasons, we reverse the OWC’s award of attorney’s fees to Mr. Young because an award of “Moody fees” falls within the jurisdiction of the district court. In all other respects, the 26 October 2004 judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

      . Reference is made in the record on appeal to another Disputed Claim for Compensation filed on 29 September 2003. However, that claim form is not found in the record before us.

      . In Moody v. Arabie, 498 So.2d 1081 (La.1986), the case from which the term "Moody fees” is derived, the Louisiana Supreme Court set out a rule when an attorney representing an injured plaintiff could recover an attorney's fee and costs from amounts that would ordinarily be due to an intervenor employer. The holding of the case was codified in La. R.S. 23:1103(C).


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

text:
    STATE of Louisiana v. Robert WILLIAMS.
    No. 2005-KA-0176.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 3, 2006.

      Eddie J. Jordan, Jr., District Attorney, Yolanda J. King, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defen-danVAppellant, Robert Williams.
    (Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).
   LEON A. CANNIZZARO, JR., Judge.

|,The defendant, Robert Williams, was sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence after he was convicted under the Habitual Offender Law, La. R.S. 15:529.1, as a third felony offender. He is appealing his sentence on the grounds that it is unconstitutionally excessive.

STATEMENT OF THE CASE

Mr. Williams was charged with one count of distribution of cocaine and with one count of possession with the intent to distribute cocaine. He was charged with violating La. R.S. 40:967(A) on each count. After a jury trial, Mr. Williams was found guilty of both charges. Mr. Williams filed motions to set aside the verdict and for a new trial. Both motions were denied by the trial court. Mr. Williams waived the sentencing delays and was sentenced to thirty years at hard labor. The state then filed a multiple offender bill of information alleging that Mr. Williams had two prior felony convictions. The trial court conducted a hearing on the multiple offender bill of information and adjudicated Mr. Williams a third felony offender. The previously imposed thirty-year sentence was vacated, and the sentence of life imprisonment was imposed under the Habitual Offender Law.

| ¡¡Mr. Williams appealed his convictions and his sentences. This Court affirmed his convictions, but his sentences were vacated. Because the sentencing transcript did not indicate whether or not the original thirty-year sentence was imposed for both of the convictions, the sentence was vacated, and the matter was remanded for re-sentencing. State v. Williams, 00-1233 (La.App. 4 Cir. 4/11/01), 793 So.2d 572, unpub., writ denied, 01-1417 (La.3/28/02), 812 So.2d 646, 795.

At the re-sentencing hearing, Mr. Williams’ counsel moved for a downward departure from the life sentence that was statutorily required by the Habitual Offender Law, but the trial court denied the motion. The trial court then stated that Mr. Williams’ original thirty-year sentence as to the first count on which he was convicted was vacated. The trial court re-sentenced Mr. Williams to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence under the Habitual Offender Law. Mr. Williams was also re-sentenced on the second count on which he was convicted to thirty years at hard labor with credit for time already served. The sentences were to be served concurrently.

STATEMENT OF FACTS

An undercover New Orleans Police Department (“NOPD”) officer, whose unmarked vehicle was equipped with both audio and video recording capabilities, was driving in an area where it was known that street dealers sold narcotics. The ^officer saw Mr. Williams standing on Thalia Street near Simon Bolivar Avenue in New Orleans. The officer waved at Mr. Williams, and he waved back. The officer stopped his vehicle and negotiated a purchase of narcotics from Mr. Williams, who then walked away and spoke with his sister who was standing nearby. Mr. Williams’ sister handed something to him, and he walked back to the undercover officer and opened his hand to reveal three pieces of what appeared to be crack cocaine. The officer bought one of the pieces, took possession of it, and paid Mr. Williams with a ten-dollar bill belonging to the NOPD that had been photocopied so that it could later be identified.

A nearby team of officers working with the undercover officer, the “takedown team,” were notified of the transaction. The takedown team subsequently stopped Mr. Williams and his sister, who were identified by the undercover officer as the persons from whom he had obtained the cocaine. When the takedown team stopped Mr. Williams, he put in his mouth the ten-dollar bill that was given to him by the undercover officer. He was told to spit out the money, which he did. When he spit out the money, he also spit out a powered substance that appeared to the takedown officers to be crack cocaine. The takedown team seized the ten-dollar bill and the substance that was believed to be crack cocaine. Mr. Williams and his sister were arrested. The entire transaction between the undercover officer and Mr. Williams was recorded on videotape and played to the jury at Mr. Williams’ trial. Mr. Williams was convicted of distribution of cocaine and possession of cocaine with the intent to distribute it.

\ .DISCUSSION

Errors Patent

Because this is an appeal from re-sentencing only, a complete review of the record for errors patent is unnecessary. The only errors found in the original appeal related to the defendant’s sentence, which resulted in the remand for re-sentencing. The sentence imposed at the re-sentencing on the first count on which Mr. Williams was convicted is legal, and Mr. Williams was present and represented by counsel at the re-sentencing. As to the re-sentencing on the second count of which Mr. Williams was convicted, the trial court failed to note that the first five years of the sentence for that conviction must be served without the benefit of parole, probation, or suspension of sentence as was required by La. R.S. 40:967 as in effect at the time of the commission of the crime. Because more than five years have elapsed since the conviction and original sentencing in this matter, this error is moot. Furthermore, pursuant to La. R.S. 15:301.1(A), the sentence is deemed to have been imposed with the restriction, even though the trial court failed to specify the restrictions. See also State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 799. Therefore, there is no need for this Court to correct the sentence.

Assignments of Error

Assignment of Error No. 1: The statutorily mandated sentence imposed on Mr. Williams is constitutionally excessive and must be reduced.

| ¡¡Mr. Williams argues that the life sentence imposed on him in this case is unconstitutionally excessive. The state legislature amended the Habitual Offender Law after Mr. Williams was convicted, and under the amended statute Mr. Williams would not have been eligible for a life sentence. Therefore, he contends that the amendment to the Habitual Offender Law is evidence that the state legislature has determined that a life sentence in cases such as his is unconstitutionally excessive. Nevertheless, Mr. Williams agrees that the amendments to the Habitual Offender Law are not to be applied retroactively. In fact, the legislation amending the Habitual Offender Law expressly provided that “[t]he provisions of this Act shall only have prospective effect.” Act No. 408, § 6 of the 2001 Regular Session of the Louisiana Legislature.

In State v. Dorthey, 623 So.2d 1276 (La.1993), the Louisiana Supreme Court held that in certain instances a sentence less than the minimum sentence mandated by the Habitual Offender Law might be permitted. Id. at 1280-81. The Supreme Court stated that a punishment is constitutionally excessive if it does not make a measurable contribution to acceptable goals of punishment, if it does nothing more than purposelessly impose pain and suffering, and if it is grossly disproportionate to the severity of the crime being punished. Id.

In State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the Louisiana Supreme Court established the standard of review to be used in determining whether the trial court properly imposed under the Dorthey case a sentence less than the minimum sentence mandated by the Habitual Offender Law. 709 So.2d at 676. In Johnson the Supreme Court stated that the judiciary should give the legislature’s determination of an appropriate minimum sentence great deference. 1 Jd. If, however, a court determines that a mandatory minimum sentence is excessive in a particular case, the court has the authority to impose a constitutional sentence instead of the minimum mandatory sentence. Id. This authority is granted under La. Const, art. 1, § 20. Id.

In determining whether the minimum mandatory sentence under the Habitual Offender Law is excessive, the sentencing judge must always start with the presumption that the minimum mandatory sentence is constitutional. Id. Only if there is clear and convincing evidence in a particular case that rebuts the presumption of constitutionality may the court depart from the minimum sentence. Id. A trial judge is not permitted to rely solely upon the non-violent nature of the crimes for which a person has been convicted as evidence to justify the rebuttal of the constitutional presumption. Id. Although the non-violence of the offenses should not be discounted, this consideration has already been taken into account by the legislature in enacting the Habitual Offender Law. Id. A sentencing judge may consider a defendant’s record of non-violent offenses in sentencing the defendant under the Habitual Offender Law, but a record of non-violent offenses cannot be the only, or even a major, reason for determining that the mandatory minimum sentence under the Habitual Offender Law is excessive. Id.

The Supreme Court in Johnson stated that the defendant has the burden of proof in rebutting the presumption that the mandatory minimum sentence under the Habitual Offender Law is constitutional. To meet that burden of proof the defendant is required to clearly and convincingly show that “[h]e is exceptional, which in this context means that because of unusual circumstances this defendant |7is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the ease.” Id., citing, State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 528 (Plotkin, J., concurring). The Supreme Court has emphasized to sentencing judges that “departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.” Id. at 677 (emphasis added). See also State v. Lindsey, 99-3256, 99-3302 (La.10/17/00), 770 So.2d 339, 345.

In State v. Wilson, 01-2815 (La.11/22/02), 836 So.2d 2, the Louisiana Supreme Court stated that the trial judge is vested with broad discretion in sentencing, because the trial judge is in the best position to assess the aggravating and mitigating circumstances present in each case. 836 So.2d at 3. Additionally, in State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, the Supreme Court stated:

On appellate review of sentence, the only relevant question is “ ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const, art. I, § 20, i.e., when it imposes “punishment disproportionate to the offense.” State v. Sepulvado, 367 So.2d 762, 767 (La.1979).

In State v. Finch, 97-2060 (La.App. 4 Cir. 2/24/99), 730 So.2d 1020, this Court discussed the harshness of mandatory sentences as follows:

|RWhere a minimum sentence does not transcend constitutional limits, it may not be reformed by this Court merely because it seems harsh. This Court does not have the authority to second guess the legislature concerning the wisdom of minimum sentencing on any ground other than that of constitutional excessiveness.

720 So.2d at 1027-28.

In the instant case, the trial court judge imposed the maximum mandatory sentence, and in doing so he carefully considered the report of a presentenee investigation. At the sentencing hearing, the trial court judge referred to the report and sated that Mr. Williams’ adult criminal history began in 1989, with an arrest on a battery charge. In 1990, he was arrested for possession of stolen property, but the charge was refused by the district attorney’s office. Also in 1990, Mr. Williams was arrested on an armed robbery charge, but the charge was refused, because the victim did not appear for trial. Again in 1990, Mr. Williams was arrested for armed robbery, simple kidnapping, and second degree kidnapping. He pled guilty to simple kidnapping and first-degree robbery, and he received a sentence of three years. Another charge for possession of stolen property was refused.

In 1992, Mr. Williams was again arrested for possession of stolen property and theft, and he pled guilty only to the theft charge. In 1993, Mr. Williams was arrested on a drug charge for the first time, and he pled guilty to possession of cocaine. He received a suspended sentence, but he was arrested in 1994 for distribution of cocaine. He was allowed to plead guilty to a reduced charge of possession of cocaine, and he received a sentence of thirty months. In 1996, Mr. Williams was arrested for possession of cocaine and marijuana, but he was 1 flacquitted by a jury of the cocaine charge. The marijuana charge was refused. In 1997, Mr. Williams was again arrested again for possession of cocaine. That charge resulted in a guilty plea. Mr. Williams was sentenced under the Habitual Offender Law to a sentence of thirty months as a second offender. A related charge of distribution of cocaine was refused. Mr. Williams’ next, and final, arrest was the one involved in the instant case.

The trial court judge noted at the sentencing hearing that the presentence report showed that Mr. Williams had violated both his probation and his parole when they had been granted to him. Thus, Mr. Williams had not taken advantage of the opportunities made available to him.

The trial court judge further noted at the sentencing hearing that Mr. Williams “has a lengthy and extensive criminal history that dates back to him reaching the age of majority.” The judge also stated that the “defendant is a self-confessed substance abuser.” The judge then considered the following language in the presen-tencing investigation report:

The subject has an extensive criminal record. Mr. Williams was first introduced to the criminal justice system at the age of fourteen. Since then, he’s been arrested numerous times and has amassed five felony convictions. He has been supervised on probation and or parole both as a juvenile and as an adult. Mr. Williams did not adjust well while under supervision and continued to feed his drug addiction through criminal activity. The subject is a fifth felony offender, [and] probation is not available to him.

Based on the presentencing report, the trial court judge imposed the mandatory life sentence on Mr. Williams. The judge specifically stated that he did not consider the Dorthey case applicable to Mr. Williams’ case. He said that |in“Dorothy [sic ] must be considered in certain special and limited circumstances” and found that Mr. Williams’ case did not embody those circumstances.

The trial court judge considered the mitigating factors that were presented at Mr. Williams’ sentencing hearing, including the fact that he was addicted to drugs when he committed the crimes for which he was convicted. Nevertheless, the trial court judge did not find that to be a sufficiently mitigating factor to cause the sentence imposed on Mr. Williams to be constitutionally excessive.

Mr. Williams argues that his case is similar to State v. Burns, 97-1553 (La.App. 4 Cir. 11/10/98), 723 So.2d 1013, and to State v. Combs, 02-1920 (La.App. 4 Cir. 5/21/03), 848 So.2d 672. In both of these cases, this Court found that the mandatory life sentences that had been imposed pursuant to the Habitual Offender Law were excessive. The facts in those cases, however, are clearly distinguishable from those in the instant case. In the Bums case, this Court found that the defendant’s young age, his father’s support, the nonviolent nature of his five offenses (one conviction each of distribution of cocaine, possession of cocaine with the intent to distribute it, and possession of stolen property and two convictions of possession of cocaine), and his diminished brain function all mitigated in favor of a departure from the mandatory sentencing guidelines. Further, this Court found that the defendant in the Bums case could be rehabilitated. Mr. Williams’ criminal history is far more extensive and violent than that of the defendant in the Bums case.

In the Combs case, this Court found that the defendant’s situation was similar to that of the defendant in the Bums case. In Combs, none of the defendant’s four felony convictions (one conviction each of possession of cocaine, ^possession of cocaine with the intent to distribute it, forgery, and distribution of cocaine) was for a violent crime. The defendant had strong family support, and he had held a job and supported his two sons. There is no evidence in the instant case that the defendant’s family is willing or able to support and assist him, he did not testify that he had a stable work history, and he had been involved in criminal activities since he was fourteen years old. We do not find that Mr. Williams’ situation is analogous to that of the defendant in the Combs case. See also State v. Houston, 03-0854 (La.App. 4 Cir. 10/1/03), 859 So.2d 707; State v. Wilson, 02-0776 (La.App. 4 Cir. 1/22/03), 839 So.2d 206; and State v. Rice, 01-0215 (La. App. 4 Cir. 1/16/02), 807 So.2d 350, where this Court remanded the cases for resen-tencing because the trial court judges had indicated that they had no alternative but to impose life sentences. In the instant case, unlike in the Houston, Wilson, and Rice cases, the trial court judge specifically determined that the mandatory sentence was appropriate, even though Mr. Williams argued to the trial court that the imposition of the mandatory minimum sentence would be constitutionally excessive in his case and even though he was permitted to present evidence to support his position.

We find that the trial court judge did not abuse his discretion in sentencing Mr. Williams to life imprisonment as required by the Habitual Offender Law. This assignment of error has no merit.

Assignment of Error No. 2: Mr. Williams’ thirty year sentence was excessive, because possession of 0.1k grams of cocaine is not the most serious violation of the crime of possession with the intent to distribute cocaine.

In State v. Wilson, 01-2815 (La. App. 4 Cir. 11/22/02), 836 So.2d 2, 4, the Louisiana Supreme Court stated that “[t]he trial judge is vested with broad sentencing discretion because he or she remains in the best position to assess the | ^aggravating and mitigating circumstances presented by each case.” For the reasons set forth above, we do not find that the trial court judge abused his discretion.

Assignment of Error No. 3: As applied to recidivists whose predicate felonies were the direct result of drug addition, La. R.S. 15:529.1 violates the ban on cruel and unusual punishment imposed by U.S. Const, amend. VIII.

Mr. Williams argues that under the ruling of the United States Supreme Court in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), a sentence may not be enhanced under a recidivism statute on the ground that a defendant is a drug addict. We read the Robinson case to hold that it is unconstitutional to punish a person for being a drug addict. In the Robinson case, the defendant had “track marks” on his arms indicating illegal drug use. On that basis and on the basis that the defendant allegedly admitted that he was a drug user, he was convicted under a California statute that made it a crime to “be addicted to the use of narcotics.” 370 U.S. at 660, 82 S.Ct. at 1417. In the instant case, Mr. Williams was not convicted of being addicted to crack cocaine based on his status as a drug addict. Instead, he was convicted of the act of distributing crack cocaine and the act of possessing crack cocaine with the intent to distribute it. He was convicted based on his actions, not his status.

We also note that the Habitual Offender Law has been held to be constitutional in numerous cases. See, e.g., Dorthey, 623 So.2d at 1279, where the Louisiana Supreme Court stated that the Habitual Offender Law “does not punish status and does not on its face impose cruel and unusual punishment.”

113We find that the Habitual Offender Law is not unconstitutional under the provisions of the United States Constitution that prohibit cruel and unusual punishment. This assignment of error is without merit.

Assignment of Error No. ⅛: La. R.S. 15:529.1 violates U.S. Const, amend. VI, because it allows a judge to increase a sentence beyond the statutory maximum without requiring the fact of the prior convictions to be submitted to the jury and proved beyond a reasonable doubt.

Mr. Williams bases this assignment of error on the holding of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We find Mr. Williams’ reliance on Apprendi to be misplaced. The Apprendi case specifically rejected Mr. Williams’ position. The Supreme Court stated that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. at 2362-63 (emphasis added). Therefore, we find that this assignment of error is without merit.

CONCLUSION

The sentences imposed on Mr. Williams are not unconstitutionally excessive. His sentences are affirmed.

AFFIRMED.

BELSOME, J., concurs in result.

      . The minute entry for the sentencing hearing and the hearing on the multiple offender bill of information states that "COURT SENTENCED DEFENDANT AS TO EACH COUNT INDIVIDUALLY AND CONCURRENTLY TO 30 YEARS...." The minute entry then states that the defendant was found to be a multiple offender and that the trial court vacated "ITS PREVIOUSLY IMPOSED SENTENCE AS TO COUNT 1 ONLY AND RE-SENTENCE [sic] DEFENDANT AS A TRIPLE OFFENDER UNDER ARTICLE 15:529.1 AS TO COUNT 1 ONLY TO LIFE IMPROSMENT [sic]...." If there is a discrepancy between a minute entry and a transcript, the transcript is controlling, however. State v. Short, 94-0233 (La.App. 4 Cir. 5/16/95), 655 So.2d 790.

      . Mr. Williams’ sister pled guilty to the charges against her.

      . La. R.S. 15:301(A) provides that "[w]hen a criminal statute requires that all or a portion of a sentence imposed for violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without the benefit of probation, parole, or suspension of sentence.”

      . La. Const, art. 1, § 20 provides that ”[n]o law shall subject any person ... to cruel, excessive, or unusual punishment.”

      . "Track marks” are areas of the skin where drug addicts have injected drugs. When a series of injections have been made in one area of the skin, the marks made by the needles have the appearance of tracks,