author: CALOGERO, Justice.

text:
    Dan THOMPSON v. TELEDYNE MOVIBLE OFFSHORE, INC., et al.
    No. 82 C 0339.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    Rehearing Denied Oct. 15, 1982.
    Robert L. Beck, Jr., Antoon, Dalrymple & Beck, Alexandria, for relator.
    Joel E. Gooch, Allen, Gooch, Bourgeois, Breaux & Robison, Lafayette, for respondents.
   CALOGERO, Justice.

The issue involved in this case is whether a worker hired in the state of Louisiana and injured while working on a fixed platform located on the outer Continental Shelf beyond the territorial waters of the State of Louisiana is entitled to recover Louisiana Worker’s Compensation benefits, in state court, notwithstanding his entitlement to and receipt of benefits under the federal Longshoreman and Harbor Workers’ Compensation Act.

Relator Dan Thompson injured his right hand while employed by respondent Tele-dyne Movible Offshore, Inc. on an immovable platform located on the outer Continental Shelf off the coast of Louisiana.

He sued in Louisiana state court (the Ninth Judicial District Court for the Parish of Rapides) for workers’ compensation benefits. His employer and its compensation carrier, Argonaut Insurance Company, filed exceptions of prescription and lack of jurisdiction over the subject matter. The exception of prescription was abandoned; the district court overruled the exception to the jurisdiction. The Court of Appeal for the Third Circuit granted a writ on application of defendant, and thereafter made it peremptory, sustaining the defendants’ exception of lack of subject matter jurisdiction and dismissing plaintiff’s suit at his cost.

We granted relator’s writ application to consider the issue expressed at the outset of this opinion. 412 So.2d 81 (La.1982). We determine that there is jurisdiction in the Louisiana state court over the claim involved in this litigation.

Dan Thompson, a Louisiana roustabout, had been employed for approximately one and a half years as a derrick hand for Teledyne Movible Offshore, Inc. out of its New Iberia, Louisiana office. Intercoastal City, Louisiana was his departure point to an immovable platform rig in Vermillion Block 26, approximately four miles off the coast of Louisiana in the federal waters of the outer Continental Shelf. While Thompson was working on the platform on March 9,1980, a pipe fell, striking and injuring his right hand. When his employer and compensation carrier resisted his demand for state compensation benefits, he sued them in Rapides Parish.

The district judge, in written reasons for denial of the exception of lack of jurisdiction, relied upon two United States Supreme Court decisions: Gulf Offshore Co. v. Mobil Oil Corp., et al., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981) and Sun Ship, Inc. v. Commonwealth of Pennsylvania, et al., 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 258 (1980). The Court of Appeal, in reversing the district court, cited the earlier cases, Smith v. Chevron Oil Company, et al., 517 F.2d 1154 (5th Cir. 1975) and Strange v. Fidelity and Casualty Company of New York, 262 So.2d 799 (La.App. 3rd Cir. 1972).

For the reasons which follow, we find that the Louisiana state courts do have subject matter jurisdiction over a claim for Louisiana compensation benefits because of an employment related accidental injury sustained by a Louisiana worker hired in Louisiana for work on a fixed platform outside the territorial waters of Louisiana.

For many decades past, Louisiana courts have entertained worker’s compensation suits by Louisiana residents injured outside Louisiana while engaged in employment having a substantial connection with Louisiana. In 1951, this Court expressly approved earlier jurisprudence in that regard, quoting McKane v. New Amsterdam Casualty Co., 199 So. 175 (La.App.Orl.1940) at 178-79 in its decision, Ohlhausen v. Sternberg, 218 La. 677, 50 So.2d 803 (1951):

Although there is no express stipulation contained in the statute to the effect that it shall have extra-territorial jurisdiction, it has been consistently held by our courts that, if the contract of employment is made within this State, the law will apply even though the employee was injured in another State or in a foreign country. See Hargis v. McWilliams Co., Inc., 9 La.App. 108, 119 So. 88, Festervand v. Faster, 15 La.App. 159, 130 So. 634, and Selser v. Bragmans Bluff Lumber Co., La.App., 146 So. 690. And the Supreme Court of the United States has declared that the State courts have power to grant compensation to employees, locally employed, for injuries received outside of its borders. See Bradford Electric Light Co., Inc. v. Clapper, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 1026, 82 A.L.R. 696, and Alaska Packers Ass’n v. Industrial Accident Commission, 294 U.S. 532, 55 S.Ct. 518, 70 L.Ed. 1044.

Therefore, had Thompson been working in another state or even a foreign country under the same circumstances (a Louisiana worker injured in the course of hazardous Louisiana connected employment), he could avail himself of Louisiana’s compensation law and have access to our courts if need be., Mattel v. Pittman Construction Co., Inc., et al., 248 La. 540, 180 So.2d 696 (1965); Babineaux v. Southeastern Drilling Corp., 170 So.2d 518 (La.App. 3rd Cir. 1965).

This jurisprudence was codified in 1975 with the enactment of La.R.S. 23:1035.1 which reads in pertinent part:

(1) If an employee, while working outside the territorial limits of this state, suffers an injury on account of which he, or in the event of his death, his dependents, would have been entitled to the benefits provided by this Chapter had such injury occurred within this state, such employee, or in the event of his death resulting from such injury, his dependents, shall be entitled to the benefits provided by the Chapter, provided that at the time of such injury
(a) his employment is principally localized in this state, or
(b) he is working under a contract of hire made in this state.
(2) The payment or award of benefits under the workmen’s compensation law of another state, territory, province, or foreign nation to an employee or his dependents otherwise entitled on account of such injury or death to the benefits of this Chapter shall not be a bar to a claim for benefits under this act; provided that claim under this act is filed within the time limits set forth in R.S. 23:1209. If compensation is paid or awarded under this act:
(a) The medical and related benefits furnished or paid for by the employer under such other workmen’s compensation law on account of such injury or death shall be credited against the medical and related benefits to which the employee would have been entitled under this act had claim been made solely under this act; (b) The total amount of all income benefits paid or awarded the employee under such other workmen’s compensation law shall be credited against the total amount of income benefits which would have been due the employee under this act had the claim been made solely under this act.

While this Court has not expressly addressed the issue, there have been Louisiana Court of Appeal cases which have prevented a Louisiana worker injured on the outer Continental Shelf off the coast of Louisiana from seeking redress in Louisiana courts, on the theory that the federal presence in the area excluded state jurisdiction. Strange v. Fidelity & Casualty Company of New York et al., 262 So.2d 799 (La.App. 3d Cir. 1972); Crooks v. American Mutual Liability Ins. Co., et al., 175 So.2d 875 (La.App. 3d Cir. 1965). Writ refused. “No error of Law in the judgment of the Court of Appeal.” 248 La. 372, 178 So.2d 659 (1965). However, in an incisive concurring opinion which may be viewed as prophetic in light of the recent pronouncements of the United States Supreme Court discussed hereinafter, Judge Tate, then a judge of the Third Circuit Court of Appeal of Louisiana said in Crooks, supra at 878:

In summary, I personally feel that the provision in the Outer Continental Shelf Lands Act that a injured employee “shall” be afforded the Longshoremen’s remedy means simply that, if he so elects, he shall be afforded such remedy; but it is not intended to bar his resort to the state compensation remedy otherwise applicable because of the state-connected employment relationship in which the state-resident employee is injured.

Little more than a year ago, the U. S. Supreme Court directly addressed the question of whether federal courts have exclusive subject matter jurisdiction in personal injury and indemnity actions arising out of injuries on the outer Continental Shelf. Gulf Offshore Company v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981). The Court concluded that the federal political jurisdiction to which the Outer Continental Shelf Lands Act (43 U.S.C. § 1331 et seq.) is directed did not preclude a state court’s concurrent judicial jurisdiction over matters traditionally within their province.

The Gulf Offshore decision recognized that concurrent jurisdiction (state and federal) is presumed. This presumption of concurrent jurisdiction can be rebutted however, by “[1] an explicit statutory directive, by [2] unmistakable implication from legislative history, or by [3] a clear incompatibility between state court jurisdiction and federal interests.” Gulf Offshore, supra at 482, 101 S.Ct. at 2875. The Court concluded that none of these considerations barred a state court’s assuming jurisdiction over personal injury or indemnification actions stemming from events occurring on the outer Continental Shelf.

The discussion in Gulf Offshore about the text and legislative history of the OCSLA is applicable to the case at hand. On those points, the Court found that despite the reference to exclusive federal jurisdiction in OCSLA, 43 U.S.C. § 1333(a)(1), wherein the Shelf was equated with a landlocked federal area within a state, Congress did not mean by that assertion of political jurisdiction that the federal courts should be the sole forum for adjudicating all controversies arising from operations on the Shelf. Not only have state and federal courts enjoyed concurrent jurisdiction in areas of federal territorial sovereignty, the Court noted, but also, in the case of the Shelf in particular, the legislative history underscores the fact that the Congressional concern was to assure federal political control over the Shelf and its “real property, minerals and revenues, not over causes of action.” Gulf Offshore, supra at -, 101 S.Ct. at 2877.

Furthermore, the Court expressly minimizes the distinction between events happening in another state and events happening in the federal territory of the Shelf by stating in Gulf Offshore, supra at 481-482, 101 S.Ct. at -:

That the location of the event giving rise to the suit is an area of exclusive federal jurisdiction rather than another State, does not introduce any new limitation on the forum State’s subject-matter jurisdiction. Ohio River Contract Co. v. Gordon ... [244 U.S. 68] at 72, 37 S.Ct. [599] at 601 [61 L.Ed. 997],

Finally, while 43 U.S.C. § 1333(b) states that the LHWCA is applicable to “disability or death of an employee resulting from any injury occurring as a result of operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources or involving rights to the natural resources of the subsoil and seabed of the outer Continental Shelf,” it does not state that the LHWCA is the only compensation act that can be applied to instances of disability or death to an employee thereon. There is no language of exclusivity in 43 U.S.C. § 1333(b). Therefore we conclude that there is no (1) explicit statutory directive, nor (2) unmistakable implication from the legislative history, to bar a state court from exercising concurrent jurisdiction over worker compensation claims arising on the outer Continental Shelf.

The final inquiry under the Gulf Offshore test, then, becomes whether there is a clear incompatibility between the application of the Louisiana compensation law, for injuries sustained by a Louisiana worker engaged in Louisiana related work on an immovable platform on the outer Continental Shelf, and the federal interests evidenced in OCSLA through application of the LHWCA.

The United States Supreme Court found that there exists no incompatibility when a state applies its workers’ compensation scheme to land-based injuries that fall within the coverage of the LHWCA. Sun Ship Inc. v. Commonwealth of Pennsylvania, et al., 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458, rehearing denied, 448 U.S. 916, 101 S.Ct. 37, 65 L.Ed.2d 1179 (1980). The Sun Ship Court found that the 1972 deletion from LHWCA § 903(a) of the phrase: “[i]f recovery . .. through workmen’s compensation proceedings may not validly be provided by State law,” reinforced the Supreme Court’s previous interpretation that the LHWCA contemplated federal and state concurrent jurisdiction. Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). The Court in Sun Ship, supra, at 722, 100 S.Ct. at 2437 concluded:

We therefore find no sign in the 1972 amendments to the LHWCA that Congress wished to alter the accepted understanding that federal jurisdiction would coexist with state compensation laws in that field in which the latter may constitutionally operate under the Jensen doctrine. (Footnote omitted. Emphasis provided.)

The U. S. Supreme Court’s conclusion in Sun Ship is the same as that reached earlier by this Court in Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (1976) in a well-reasoned opinion by Justice Marcus. In the Poche opinion, Justice Marcus summarized the historical development of the LHWCA from Jensen to the present.

In Poche, supra at 1217, we concluded that even though the United States Supreme Court had not overruled Jensen, its applicability had been confined to its facts (suits relating to the relationships of vessels, “plying the high seas and our navigable waters, and to their crews”), so that there was “no constitutional impediment to the concurrent operation of the LHWCA and Louisiana Workmen’s Compensation Act with respect to injuries sustained on land in the course of new ship construction.”

Furthermore the case now before us does not involve longshoremen or historically maritime workers. Rather this plaintiff is like the plaintiff in Crooks, the case which spawned Judge Tate’s farsighted concurrence: Thompson is an oil worker who may perform essentially the same non-maritime duties on land or alternatively on an offshore site. Therefore the application of state law would not “work material prejudice to the characteristic features of the general maritime law, or interfere with the proper harmony and uniformity of that law in its international and interstate relations.” Crooks, supra at 879.

Defendants’ counsel argues that neither Gulf Offshore, nor Sun Ship, nor Poche are applicable to the case at hand. Gulf Offshore, they argue, should be limited to the application of state law where it is surrogate federal law. However, there is nothing in Gulf Offshore at variance with affording state court jurisdiction on the Shelf, and the application of state compensation law. As stated earlier, the only potential barrier is the question of whether the state compensation scheme is incompatible with the LHWCA. That question has been resolved clearly in this Court’s Poche decision and most recently by the U. S. Supreme Court in Sun Ship.

State and federal compensation schemes may coexist on land and in the territorial waters of Louisiana. Malone and Johnson, Workers’ Compensation § 411, 14 La.Civ. Law Treatise 336 et seq. It is argued, however, that the co-existence of federal and state compensation schemes within Louisiana territory does not support their co-existence beyond the state’s territorial waters, the contention being that in the latter situation there is an incompatibility with federal interests. We do not find any incompatibility.

Plaintiff admits that the benefits due under the federal and state compensation laws may be different. But such a difference does not constitute incompatibility. As the Court in Sun Ship remarked, 447 U.S. at 725, 100 S.Ct. at 2439:

we are not persuaded that the bare fact that the federal and state compensation systems are different gives rise to a conflict that, from the employer’s standpoint, necessitates exclusivity for each compensation system within a separate sphere.

It is significant and we are impressed by the fact that the United States Supreme Court determined that while the emphasis in the LHWCA was on establishing a federal minimum to upgrade compensation benefits, there was no indication that Congress was concerned about a potential disparity between “adequate federal benefits and superior state benefits.” Sun Ship, supra U.S. at 723-724, 100 S.Ct. at 2438. Furthermore, the Court commented supra at note 8, that in the case of recovery under both compensation schemes, one would be •credited against the other to avoid double recovery.

We conclude that the LHWCA is not the exclusively applicable workers’ compensation statute for injuries occurring on the outer Continental Shelf. Such exclusivity is neither mandated by federal statute, by federal legislative history, or by incompatibility with state law. Furthermore, the recent United States Supreme Court decisions effectively invite the state courts to apply state law in matters arising on the outer Continental Shelf if otherwise within the subject matter jurisdiction of the state court. Absent any federal prohibition and consistent with the public policy of the state of Louisiana, Louisiana state courts have subject matter jurisdiction over state compensation litigation resulting from work performed on fixed oil platforms on the outer Continental Shelf. Any reticence to assume jurisdiction and apply the Louisiana workers’ compensation statute heretofore expressed by inferior Louisiana courts was prompted by perceptions of the exclusivity of federal law. Such perceptions are not valid in light of the Gulf Offshore and Sun Ship decisions of the United States Supreme Court.

Therefore, we find that this plaintiff, a Louisiana worker injured while engaged in Louisiana connected employment on a fixed platform on the outer Continental Shelf (outside the territorial waters of Louisiana) may sue in Louisiana state court under La.R.S. 23:1021 et seq. and seek benefits thereunder.

Decree

Accordingly, we reverse the Court of Appeal’s dismissal of the plaintiff’s action for lack of subject matter jurisdiction, reinstate the district court’s judgment overruling the defendants’ exception, and remand the case to the district court for further proceedings.

COURT OF APPEAL JUDGMENT REVERSED; DISTRICT COURT’S OVERRULING DEFENDANTS’ EXCEPTION AFFIRMED; REMANDED.

      . There is not here involved the possibility of double recovery of benefits, for when the injured worker receives benefits under each compensation act, the employer is allowed credit for benefits paid under one plan against those paid under the other. Calbeck v. Travelers

        Insurance, 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). See also: Larson, 45 So. Calif.L.Rev. 699, 728-738 (1972).

      . The outer Continental Shelf includes all submerged lands lying seaward and outside the adjacent state water boundaries, of which the subsoil and seabed are subject to United States jurisdiction and control. 43 U.S.C. § 1331(a). Louisiana’s historic gulfward boundary extends three marine leagues into the Gulf of Mexico from the coast of Louisiana. La.R.S. 49:1.

      . In that case respondent Mobil Oil Corporation had contracted with petitioner Gulf Offshore for the performance of certain operations on an offshore drilling platform. During a hurricane evacuation by boat, an employee of Gulf Offshore was injured. He sued Mobil and the boat owner in Texas state court seeking recovery of damages based upon negligence. Mobil sought to third party Gulf Offshore for indemnification. The case did not involve a workers’ compensation claim.

      . OCSLA 43 U.S.C. 1333(a)(1) reads as follows:
      The Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State: Provided, however, That mineral leases on the outer Continental Shelf shall be maintained or issued only under the provisions of this subchapter. (Emphasis provided)

      . Justice Marcus stated in pertinent part at 339 So.2d 1215 1217:
      In 1917, the United States Supreme Court held, in a divided opinion, that a state compensation law could not constitutionally be applied to a longshoreman who was killed aboard a ship in navigable waters while engaged in unloading cargo. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 62 L.Ed. 1086 (1917). The Court emphasized that, under the facts of the case, the matter was clearly within traditional admiralty jurisdiction and therefore not subject to the diverse legislation of the various states. The Court noted however, that while “it (is) difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified, or affected by state legislation [sic]. That this may be done to some extent cannot be denied. ...” The rule was announced that state legislation would be permissible unless “it contravenes the essential purpose expressed by an act of Congress, or works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of that law in its international and interstate relations.” In 1917, a majority of the Court felt that this rule was violated when a state provided workmen’s compensation to a stevedore injured on navigable waters. That state law could constitutionally apply to longshoremen injured on land was confirmed in State Industrial Commission v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933 (1922).
      Thereafter, in Grant Smith-Porter Shipping Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922), the Supreme Court crossed its own line of demarcation between state and federal jurisdiction and held that, if the nature of an employee’s work was of “local concern,” a state compensation act could apply without working a material prejudice to the federal maritime law, even if the injury occurred on navigable water.
      In 1927, Congress passed the Longshoremen’s and Harbor Worker’s Compensation Act, 33 U.S.C. 901 et seq., which provided a federal compensation remedy for workers injured on navigable waters “if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law.” 33 U.S.C. 903(a). This language of the act appeared to make the state and federal compensation remedies exclusive and engendered much confusion over which cases involved interests that were “maritime but local” and thus cognizable under state as opposed to federal law.
      In Davis v. Department of Labor & Industries, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), the Supreme Court coined the phrase “twilight zone” to describe the shadowy area in which it was difficult to determine whether state or federal law should apply. In this area, if a worker elected to apply for state benefits his choice would be upheld and the application of state law presumed constitutional. In subsequent cases, the Court made it clear that an area of concurrent jurisdiction existed wherein workers injured on navigable waters, even when their occupations were traditionally maritime, could pursue remedies available under state compensation laws. (Citations omitted.) Although dicta in the Supreme Court’s decision in Pennsylvania Railroad Co. v. O’Rourke, 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367 (1953) referred to the LHCA as an exclusive remedy, the Court’s comments were made in a case involving a contest between two federal compensation systems (FELA and LHCA). Moreover, in Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed. 368 (1961), the Court judicially excised the troublesome clause in the LHCA “if recovery . . . may not validly be provided by State law,” which had created the implication that state and federal compensation systems were exclusive. The Court held that LHCA benefits would be available for all workers injured on navigable waters, whether or not a particular injury might also have been within the constitutional reach of a state compensation act. In so ruling, the Court did not suggest that the availability of federal benefits thereby excluded the operation of state law, but rather stated that its decision was consistent with Davis and the twilight zone concept.
      ... What can be gleaned from an examination of these cases is that the United States Supreme Court has made it clear that state compensation laws can be constitutionally applied concurrently with the federal compensation system to some, if not all, categories of maritime workers. While the Court has never overruled Jensen, it has demonstrated that the uniformity of the federal maritime law is not materially prejudiced by the operation of state compensation remedies even in areas where the federal law is also applicable. .. .

      . Under the LHWCA, plaintiff is entitled to a scheduled payment for his injury, limited to a maximum of thirty weeks of compensation, regardless of whether it produces a permanent and partial disability and impairment of earning capacity. Potomac Electric Power Company v. Director, 449 U.S. 268, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980). Under the Louisiana corn-pensation law, he may be entitled to greater benefits, for permanent and partial disability. In this regard the Louisiana Act provides for payment of sixty-six and two thirds (662A) of the difference between his present wages and the wages he was earning at the time of the accident up to a maximum of 450 weeks.


source: Caselaw Access Project

author: DIXON, Chief Justice. MARCUS, Justice BLANCHE, Justice LEMMON, Justice,

license: Public Domain

text:
    Johnny HAMMOND v. FIDELITY & CASUALTY COMPANY OF NEW YORK.
    No. 82-C-0326.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    Rehearing Denied Oct. 15, 1982.
    Louis D. Bufkin, McHale, Bufkin & Dees, Lake Charles, for applicant.
    John S. Bradford, Stockwell, Sievert, Vic-cellio, Clements & Shaddock, Lake Charles, for respondents.
   DIXON, Chief Justice.

We granted writs in this case to review the holding of the courts below that relator’s “. .. present disability is not causally related to the employment accident he suffered on June 8,1979.” Hammond v. Fidelity & Casualty Co. of New York, 407 So.2d 13, 14 (La.App.1981). Both courts found that plaintiff’s disability was caused by the operation to remove a cancerous tumor (which was discovered after an on-the-job accident) and not by the work related accident.

On June 8, 1979, while driving a truck performing his duties on the job, plaintiff seriously bruised his upper left arm in the spokes of the steering wheel of the truck when a front wheel dropped in a hole. After work he went to the hospital because of the pain and swelling; the injury was diagnosed as a suspected hematoma (a tumor or swelling containing blood, Merriam-Webster’s Third New International Dictionary). Hammond was released and told to apply ice to the affected area.

Plaintiff returned to work for Morgan Crop Service the next day in spite of the pain and swelling he was experiencing. He remained in their employ until he left to go to work for Glasscock Drilling, for higher wages, near the end of the summer, despite the continual swelling and pain in his upper left arm, and the gradual loss of strength he testified he experienced.

Although the swelling of the arm subsided some within the first week after the accident, it began to swell again and did not thereafter subside. In August of 1979 plaintiff was forced to discontinue his employment with the drilling company because of the continued swelling, pain and loss of strength in his left arm. The testimony of the plaintiff and his wife establish that prior to the work related accident plaintiff had had no indication of any diseased condition in his arm; it appeared to be as normal as his right arm. There had been no weakness, no swelling and no manifestation of anything abnormal in the upper left arm.

After termination of his employment, the plaintiff consulted Dr. Gunderson, an orthopedic surgeon, upon the recommendation of Memorial Hospital, in August of 1979. Dr. Gunderson admitted plaintiff to the hospital and performed a biopsy on the swollen mass on September 14, 1979. Dr. Gunder-son consulted with Dr. Gore, a cancer specialist (an internist with a subspeciality in cancer medicine or oncology). Dr. Gore physically examined the mass on the plaintiff’s upper left arm and determined that the plaintiff had a malignant cancerous growth in his upper left arm; the pathologist’s report on the biopsy confirmed this determination by finding that the neoplasm was a sarcoma (a malignant new growth or tumor of connective tissues). Dr. Gunder-son then referred plaintiff to Dr. Romsdahl, a general surgeon who does musculoskeletal tumor work at M. D. Anderson Hospital in Houston, Texas. The biopsy specimen was examined and found to be a sclerosing neoplasm (a new growth forming scar tissue or fibrous tissue). On October 10, 1979, Dr. Romsdahl removed the tumor and the surrounding muscle by making a wide excision. The histological classification of the tumor after its removal was that it was an undifferentiated sarcoma; meaning a sarcoma whose tissue origin cannot be identified or is unknown. After the operation the plaintiff received cobalt therapy at M. D. Anderson Hospital, and he presently continues this cobalt therapy at St. Patrick’s Hospital in Lake Charles.

Because of the tumor and the necessity for its removal, the plaintiff is disabled. He suffers continual pain in his upper left arm and he has lost substantially all strength in that arm. Therefore he can no longer perform the type of manual labor he was able to do prior to the work related accident. Plaintiff has only a sixth grade education.

Under our workmen’s compensation statute, the plaintiff-employee is entitled to benefits if he “... receives personal injury by accident arising out of and in the course of his employment ...” R.S. 23:1031. Both the trial court and the court of appeal held that the total and permanent disability suffered by the plaintiff was not causally connected to the employment accident; that the medical evidence indicated that the trauma did not cause the cancerous mass and that the medical evidence was sufficient to rebut the presumption in favor of the plaintiff.

The plaintiff-employee in a workmen’s compensation case bears the burden of establishing the causal connection between the disability and the employment accident by a reasonable preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421, 422 (La.1974). Nevertheless, it is not necessary for the experts to determine the exact cause of the disability in order for the employee to recover. The complaint need show only by a preponderance of the evidence that the work accident caused the disability. Allor v. Belden Corp., 393 So.2d 1233, 1236 (La.1981); Lucas v. Insurance Company of North America, 342 So.2d 591, 595 (La.1977). “... Furthermore, medical testimony ‘must be weighed in the light of other credible evidence of a nonmedical character, such as a sequence of symptoms or events in order to judicially determine probability’ ...” Schouest v. J. Ray McDermott & Co., 411 So.2d 1042, 1044—45 (La.1982).

A plaintiff-employee’s disability will be presumed to have resulted from an employment accident if before the accident the plaintiff-employee was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves, provided that the evidence shows that there is a reasonable possibility of causal connection between the accident and the disabling condition. Allor v. Belden Corp., supra at 1236; Lindsey v. H. A. Lott, Inc., 387 So.2d 1091, 1092 (La.1980); Lucas v. Insurance Company of North America, supra at 596; Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 1146, 221 So.2d 816, 827-28 (1969). This presumption is not a conclusive one; rather, it compels the defendant to come forward with sufficient contrary evidence to rebut it. Allor v. Belden Corp., supra at 1236.

As the facts related above illustrate, the plaintiff did not suffer from any apparent disabilities or abnormalities in his upper left arm until he experienced the mechanical trauma to that portion of his left arm. Almost immediately after the trauma the plaintiff began experiencing the symptoms of swelling and pain in the same region of his upper left arm where he had sustained the mechanical trauma. Although the symptom of swelling subsided within the first week, it did not totally disappear and it continuously manifested itself until the swollen mass was removed by the wide excision. The plaintiff continues to suffer from an aching pain in this area. Additionally, the evidence, both medical and nonmedieal, shows that there is a reasonable possibility of causal connection. Specifically, Dr. Gore, the oncologist, in a letter and in his testimony indicated that there was a possibility that the trauma caused the tumor to hemorrhage internally resulting in a manifestation of the tumor not previously experienced. He felt that the tumor was preexisting, but was sub-clinical (not perceivable by a layman or a doctor upon physical examination) prior to the trauma. The fact that a condition is preexisting does not preclude recovery for the disabled employee; the employer takes the employee as he is, and the fact that the disease alone might have disabled the employee in its ordinary course of progress is not the inquiry. The employee’s disability is compensable if a preexisting disease or condition is activated or precipitated into disabling manifestations as a result of a work accident. Allor v. Belden Corp., supra at 1236; Johnson v. The Travelers Insurance Co., 284 So.2d 888, 891 (La.1973); Behan v. John B. Honor Co., 143 La. 348, 351, 78 So. 589, 590 (1917). The sequence of events and Dr. Gore’s letter and testimony establish a reasonable possibility of causal connection between the accident and the disabling condition.

The lower courts based their decisions upon the assertions of Dr. Gunderson, Dr. Gore and Dr. Romsdahl that in their opinion a trauma could not cause a tumor and that trauma would have no effect upon the eventual progression of the disease. The lower courts believed that the medical evidence was sufficient to deny compensation. They failed to distinguish the “medical” meaning of cause from the “legal” meaning of cause. When the doctors speak of cause they are essentially speaking of etiology — the origin of disease; what initially causes a disease. When courts and lawyers speak of cause they are concerned with the question of whether the particular incident in question contributed to the plaintiff’s disability by making manifest symptoms previously unnoticed. “Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence.” Haughton v. Fireman’s Fund American Insurance Companies, 355 So.2d 927, 928 (La.1978).

Furthermore, “[i]t is immaterial that the disability could have been brought on by causes other than a work-related trauma, if, in fact, trauma on the job which meets the standards of accidental injury is a disabling factor.... ” Parks v. Insurance Company of North America, 340 So.2d 276, 281 (La.1976). See Allor v. Belden Corp., supra at 1237; Bertrand v. Coal Operators Casualty Co., supra.

As in Haughton v. Fireman’s Fund, supra, there is no separate, intervening cause of the worker’s disability in this case. Haughton stumbled, fell and broke his thigh; it was discovered that his recovery was complicated by the existence of multiple myeloma. Here, Hammond’s arm became swollen and painful immediately after the trauma at exactly the location of the tumor, which was surgically removed along with the surrounding muscle tissue. In the three and one-half months following the accident, Hammond’s arm became progressively worse. The only “intervention” was the apparent activation, commencing immediately after the trauma, of the preexisting tumor. The accident might not have caused the sarcoma any more than Haugh-ton’s fall caused his myeloma, but in neither case did the defendant establish that the accident did not cause the disability. To the contrary, the record in this case is clear that Hammond is entitled to compensation benefits “[f]or injury producing permanent total disability ...” R.S. 23:1221(2).

The plaintiff is not, however, entitled to penalties and attorney fees because the termination of the benefits by the insurer was not arbitrary and capricious. The nature of the required causal effect between the accident and the disability is even now subject to considerable litigation. See Adams v. New Orleans Public Service Inc., 418 So.2d 485 (La.1982); Guillory v. United States Fidelity & Guaranty Insurance Co., 420 So.2d 119 (La.1982); Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982) (No. 81-0-3116). The insurer with justification could rely upon the opinions of the three doctors that the accident did not cause the cancer, and, therefore, did not cause the disability.

The judgments of the trial court and the court of appeal are reversed. There is now judgment in favor of the plaintiff and against the defendant, Fidelity & Casualty Company of New York, for total and permanent disability in the amount of $141.00 per week for the extent of the disability, all at the defendant’s cost.

MARCUS, BLANCHE and LEMMON, JJ., dissent and assign reasons.

MARCUS, Justice

(dissenting).

Plaintiff-employee in a workers’ compensation case must prove by a preponderance of the evidence (more probable than not) that an accidential injury caused his or her present disability. Clearly, Hammond is presently disabled as a result of the removal of a malignant tumor and surrounding muscle from his left arm. However, I do not believe that he proved that his disability is causally connected to the employment accident. In other words, the trauma did not cause the cancerous mass or the need for its removal. Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

The plaintiff in a workmen's compensation case must prove there is a causal connection between the disability and the employment accident. Three doctors testified in the present case that there was no causal connection between the employee’s accident and the cancer which resulted in his disability.

Dr. Clark Gunderson is an orthopedic surgeon who examined Mr. Hammond’s arm on approximately twenty different occasions. He performed a biopsy of the tumor which was found in the plaintiff’s upper arm. In his deposition, Dr. Gunderson stated:

“Q. Doctor, did you have an opinion as to whether or not the tumor was caused by a job-related accident?
A. Yes, I didn’t feel it did, that it was caused by a job-related accident.” TR p. 33.

A few minutes later, in the same deposition, Dr. Gunderson was again questioned as to causation:

“Q. And so, the disability would not be related to the job-related accident that he described?
No.” TR p. 34

In a letter received into evidence, Dr. Marvin Romsdahl gave his opinion as to the cause of the plaintiff’s disability. Dr. Romsdahl excised the cancer in Mr. Hammond’s arm.

“In evaluating events relating to the development of this neoplasm, it is not my opinion that the tumor mass was caused by, or rendered more malignant, by any trauma which the patient may have sustained at a previous time. It is my opinion that the trauma incident, in June 1979, as described by Mr. Hammond was incidental in regard to the basic disease process. It is unfortunate that such an accident may have focused attention away from the specific nature of this problem. However, it is not appropriate to assume an association between the actual trauma incident and development of the neoplasm.” TR p. 40

The only shred of evidence which links the work accident with the defendant’s disability is a sentence in a letter written by Dr. Stanley Gore.

“It is my opinion, however, that the process could have first become manifest by an intra-tumoral hemorrage as a consequence of the trauma.” TR p. 26

At trial both attorneys and the court questioned Dr. Gore as to this statement. On one such occasion, Dr. Gore explained,

“The trauma may have caused hemorrhage which would have created a mass effect within the arm. A physician, if he were consulted at that time, would appreciate that mass and have the history of trauma and might wish just to observe that and see if it resolved. If the swelling, et cetera, resolved, then the obvious conclusion would be that this were a he-matoma or a hemorrhage which was reabsorbed into the tissues, into the blood, and, if it did not, the swelling did not go down and the mass effect in the arm did not go away in a set period of time, you decide how long you were going to observe this, then perhaps further investigation of that would have been indicated at that time.
Q. But just so I can understand it, you said that the hemorrhage would have no effect whatsoever in the cancer problem—
A. No.
Q. —in this man.
A. No.” TR pgs. 113-114.

Dr. Gore, in using the term “manifestation” in his letter, was simply stating that the trauma would have focused a doctor’s attention on Mr. Hammond’s upper arm. This additional attention may have led to an early discovery of the tumor. Dr. Gore denied that the cancer was caused or was aggravated by the work-related accident.

Allor v. Belden Corp., 393 So.2d 1233 (La.1981) does provide a presumption in favor of the employee who is in good health before the accident, but only when “... there is a reasonable possibility of causal connection between the accident and the disabling condition.” I find no evidence of a causal connection.

LEMMON, Justice,

dissenting.

Plaintiff had a cancerous tumor in his arm prior to the accident. The accident did not cause or aggravate the tumor, according to the medical testimony. The accident caused the arm to swell (possibly because of intratumoral hemorrhage), but the swelling from the accident soon subsided. Later, the arm again became swollen, but the medical experts did not relate that swelling back to the accident. They looked for and found another cause, the cancer which preexisted the accident. Because of that cancer (and not because of the accident), surgery was required, resulting in disability.

The accident did not cause the disability. I would affirm the judgments below.

      . Sarcoma: A tumor, usually highly malignant, formed by proliferation of mesodermal cells; a malignant connective tissue neoplasm.
      Mesodermal: Origin of all connective tissues (blood, musculature, etc.); middle of three primary germ layers of embryo.
      Neoplasm: New growth; an abnormal tissue that grows by cellular proliferation more rapidly than normal and continues to grow after the stimuli that initiated the new growth cease. Neoplasms show partial or complete lack of structural organization and functional coordination with the normal tissue; they usually form a distinct mass of tissue. Synonym: Tumor (any swelling). Stedman’s Medical Dictionary (4th Unabridged Lawyer’s Edition 1976).

      . “It is my opinion, however, that the process could have first become manifest by an intra-tumoral hemorrhage as a consequence of trauma.” Letter marked P~5.

      . The following exchange took place between plaintiff’s counsel and Dr. Gore:
      “Q Dr. Gore, it is my impression that it is the consensus of opinions of people who deal with malignant neoplasms that they are not, to use the term caused, by trauma, is that correct?
      A There are some several exceptions to that, but there has never really been any documentation that trauma is a direct etiological factor in malignant neoplasm, but there is suggestive evidence in some forms.
      Q Now, I’m referring to your report to me dated May 7, 1980, in which you discuss what you just said, that there was no etiological— known medical etiological nexus, but did you not also add that this tumor was present on June 8, 1979, but was sub-clinical?
      A Yes, I stated that.
      Q What does that mean exactly? — sub-clinical.
      A It means that it would not have been evidence by physical examination. The tumor had not brought forth symptoms.
      Q And you went on to say:
      ‘That is, the tumor was not appreciated by the patient and possibly could not have been detected by physical examination.’
      You added:
      ‘Of course, this is pure speculation.’
      How about if we filled in that speculation with facts established on the trial of this case, that he had not ever felt anything over there, he had never had any abnormal feeling, no weakness, no swelling, and then suddenly as a result of having his arm thrust through a steering wheel and the back portion of that arm hit on that date, and he subsequently developed pain, swelling, et cetera, would that not give a basis for the conclusion as you expressed that your opinion was that the process could have first become manifest by an intra-tumoral hemorrhage as a consequence of trauma?
      A It’s possible.
      Q Now, when one says that there is no known medical etiological nexus between a malignant neoplasm and trauma that that does not contradict this conclusion?
      A No.

      Q Then if you take that set of facts, that is, it swelled on the day of the trauma, the physician prescribed ice to the area and it never thereafter went down until the biopsy or, really, until the surgery, does that not lead it back to what you said about the manifestation as a result of trauma?
      A It has to.”

      . “. .. When the doctor comes before a court or a workmen’s compensation commission, he comes prepared to answer questions and give his opinion as a thoroughly trained, qualified expert who is supposed to know whereof he speaks. If, in a cancer case, he says that the cause is unknown, or that trauma is an unlikely cause, he rests his statement not on his own belief alone, but on the beliefs of all his doctor brethren. He probably expects that his position on cause will be respected. Perhaps it will be respected, taken at face value. It is just as likely, however, probably more likely, that the cause which he describes as being unlikely for cancer will nevertheless become, after the lawyer has bandied it about, the cause for legal liability. Though doctor-cause and lawyer-cause may coincide in other types of cases, the likelihood is not great in harms like cancer where the forces of Man and the forces of Nature both contribute to the common end. The doctor has his cause and the lawyer his, and each is different from the other, with the result that the doctor becomes convinced of the lawyer’s post hoc addiction. So far as is known, only one doctor was ever very much pleased with lawyer-cause in a cancer case, and his only reason was that he happened to be the successful plaintiff, suffering from a cancer ‘caused’ by a street-car accident.

      To be sure, the lawyer’s formulae contribute little toward finding the source or etiology of a disease, but the doctor must realize that they are not designed for that. The formulae, both proximate cause in tort and occasionment in workmen’s compensation, are liability standards; they are used to allocate legal responsibility equitably on the basis of a sufficiency, not a totality, of causal risk. The doctor must realize that a determination of legal responsibility is not the same as'finding a pathological cause or source for disease.... ” Small, Gaffing at a Thing Called Cause: Medico-Legal Conflicts in the Concept of Causation. 31 Tex. L.Rev. 630, 657-58 (1953)


text:
    STATE of Louisiana v. Ronald BURNETTE.
    No. 82-KA-0281.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    Rehearing Denied Oct. 15, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Carey T. Sehimpf, Asst. Dist. Atty., for plaintiff-appellee.
    Timothy R. Fischer, Jeanette G. Garrett, Asst. Indigent Defender, Shreveport, for defendant-appellant.
   WILLIAM H. BYRNES, III, Justice Pro Tempore.

On July 28, 1980 defendant, Ronald Bur-nette, cashed two checks at two separate businesses in the Shreveport area. These checks were among a large group of checks stolen from a local service station. The defendant had forged the drawer’s signature and named himself as payee. He was arrested in Jonesboro, Arkansas on or about April 2, 1981 on nine counts of forgery. He was charged by bill of information with four counts of forgery, a violation of La. R.S. 14:72. On August 14, 1982, pursuant to a plea bargain with the state, defendant pled guilty to two of these counts and was sentenced to ten years at hard labor on each count, to run concurrently. On appeal defendant urges two assignments of error.

ASSIGNMENT OF ERROR I

The first assignment of error alleges that the trial court erred in not complying with the terms of the plea bargain agreement. Defendant contends that his plea was entered on the condition that if he were determined to be a drug addict under La.C.Cr.P. Art. 902 he would be sentenced to Odyssey House for treatment instead of being given a jail term. The record in this case makes it abundantly clear that the trial judge did not at any time promise the defendant a particular sentence. Indeed the trial judge went to great lengths to make sure the defendant realized that no guarantees as to sentencing were being given. At the hearing on the acceptance of defendant’s guilty plea the judge specifically stated:

“Do you also understand that by entering a plea of guilty that the maximum sentence on each of these charges would be a total of ten years at hard labor? However, I have agreed with both the district attorney and the defense attorney to their proposal to me. If it turns out that you are, in fact, after the pre-sentence investigation report that you have a drug problem, in contemplation of that, which is set out in Article 902; in other words, you are a drug addict, that the court would probably sentence you, but consider sending you, instead of to prison, to Odyssey House.”

The court went on to state:

“Do you understand that no one can make any promises from me as to what your sentence will be, but subject to what I have just told you on the record, that would be the intent of all parties? ... I will have to get that pre-sentence investigation. We will have to have a hearing so I can better understand the facts and your background, which are very important in this case, and then make my decision upon the basis of those facts.”

This is not a case where the defendant was induced to plead guilty by a promise of a particular punishment. The trial judge obviously went out of his way to make absolutely sure the defendant was not misled. The defendant, under these circumstances, could not reasonably believe that he had been promised anything more than a chance at Odyssey House treatment which would depend entirely on the results of the pre-sentence investigation. The defendant was given ample opportunity to rebut any adverse information contained in the report and to present his arguments in favor of commitment to Odyssey House. Accordingly this assignment of error lacks merit.

ASSIGNMENT OF ERROR II

The defendant also contends that his sentence is excessive and that the trial judge did not consider mitigating factors such as the defendant’s age, work record, family, or his potential for rehabilitation in imposing sentence. This contention is without merit. The trial judge in this case did an exemplary job of following the guidelines set forth in Code of Criminal Procedure Article 894.1 and particularizing the sentence to the defendant. Before imposing sentence, the court commented extensively on numerous aggravating and mitigating circumstances. He outlined the defendant’s extensive criminal background which included charges of vagrancy, possession of marijuana, simple burglary, accessory after the fact to murder, obtaining narcotics by fraud, and six counts of forgery unrelated to the instant offense. The court further noted that the defendant had been pursued by the authorities for nine months before his arrest. Additionally the trial court emphasized that the defendant’s record did not support placing him in a facility which he could leave at any time and again endanger the community by his criminal activities. The burglary of a neighbor’s home to steal checks was an indication to the trial court that the defendant’s conduct threatened serious harm to others. Furthermore the court noted that no restitution had been offered by the defendant. Defendant had enrolled in drug treatment programs in the past without success. The court felt that the defendant would be likely to commit other crimes if not confined for treatment. The court did not feel that the defendant’s self-induced drug habit provided the type of strong provocation which could justify his conduct. In short, the trial court went painstakingly down the list of every circumstance which might have had a bearing on the appropriate punishment of this defendant, including his professed willingness and desire to rehabilitate himself. The proceeding was eminently fair and exceedingly thorough.

The choice of sentences within the statutorily prescribed range lies within the sound discretion of the trial judge. State v. Williams, 412 So.2d 1327 (La.1982); State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (1982). This discretion is subject only to the constitutional limitations on excessive sentences and should not be disturbed absent manifest abuse.

In this case the trial judge carefully articulated the factual basis for his sentence taking into account circumstances, both mitigating and aggravating, which had a bearing on his decision. We find no manifest abuse of discretion in the sentence imposed. This court has upheld similar sentences in similar circumstances. State v. Perkins, 384 So.2d 782 (La.1980); State v. Gilmore, 323 So.2d 459 (La.1975). The conviction and sentence are therefore affirmed.

AFFIRMED.

       Judges Charles R. Ward, William H. Byrnes, III and David R. M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.


author:
WILLIAM H. BYRNES, III, Justice Pro Tern.
     CALOGERO, J., DIXON, Chief Justice

text:
    STATE of Louisiana v. Jacquelyn JACKSON.
    No. 82-KA-0201.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    Rehearing Denied Oct. 15, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Jack Pee-bles, Asst. Dist. Attys., for plaintiff-appel-lee.
    Walter Sentenn, Jr., Dwight Doskey, Me-taire, for defendant-appellant.
   WILLIAM H. BYRNES, III, Justice Pro Tern.

Defendant Jacquelyn Jackson was charged with cruelty to a juvenile in violation of La.R.S. 14:93 by a bill of information filed June 17, 1981. Jackson waived her right to a jury trial and was tried on August 6 and 7, 1981. She was found guilty as charged and sentenced on September 28, 1981 to 2 years in parish prison. The sentence was suspended and she was placed on three years active probation with orders to seek treatment from certain social agencies. Defendant appeals her conviction and alleges one specification of error, that the state’s evidence was insufficient to support her conviction.

The juvenile in question, John Paul Jackson, was born to the defendant on Nov. 20, 1980. A case worker, Ms. LeBlanc, from the State Department of Human Development, first met with Jackson and her son in Jackson’s trailer home in early December 1980. In the case worker’s words, the infant “looked fine” at that time. The worker next saw the child on January 23, 1981 and at which time the infant looked healthy but “a little bit thin.” The next time Le-Blanc saw the child was on April 22, 1981. She described his condition as follows: “On that date when I saw him he appeared to be very thin. He had two little scabs on his upper, right forehead. His finger nails were excessively long and dirty. He had a rash on his chin, a rash around his chine area on his legs and he also had a little red spot on the back of his neck, above the nape.” Jackson advised LeBlanc that she was going to take the child in soon for his three month shots. At that time the child was five months old.

LeBlanc next saw the child on May 21, 1981 as a result of an anonymous tip regarding the child’s physical condition. The child abuse officer picked up Jackson at her place of employment and went to the baby sitter with Jackson to get the child. At that point the child was described as being very thin and pale. Defendant at that time told LeBlanc that she did not feel that there was anything wrong with the child and attributed the child's thinness to the fact that the child’s father had a slim build.

The child was taken by LeBlanc to be examined by Dr. Sproles, a pediatrician. Upon receiving his diagnosis, the child was placed in foster care and Jackson was arrested the next day for cruelty to a juvenile in violation of La.R.S. 14:93.

Dr. Sproles, one of the doctors who examined the child, stated that the child had a markedly decreased subcutaneous fat content, a distended abdomen, as well as a marked non-responsiveness all of which indicated to him malnourishment for a period of some time.

Dr. Guy, who examined the child periodically as a result of the complaint, then testified that the child was grossly under nourished, dehydrated, and was lacking in the fatty tissue associated with small babies. The baby, in his words was very weak, had diminished reflexes, and did not have good muscle tone or strength all of which indicated a moderately severe malnourished condition. When asked to explain the term “moderately severe malnourishment”, the doctor explained that severe malnourishment was near death. Dr. Guy was of the opinion that the malnourishment of the child occurred over a prolonged period of time which indicates to this court, as it obviously did to the trial judge, a period of ongoing abuse. Of particular interest to this court is Dr. Guy’s statement that the only thing that was done to the child in the hospital was to feed him. The child gained 7 pounds in two months and since his discharge from the hospital, the child has continued to gain weight. The doctor further refuted defendant’s claim that a milk allergy was a cause of the child’s suffering inasmuch as the baby had gained weight during hospitalization on a cow’s milk diet.

Further testimony indicated that at the time of the defendant’s arrest, the child, now seven months old, had not received his three months shots. The child had not been to see a doctor until the defendant’s arrest in spite of a recommendation by the social worker on April 27th that the child be taken for a physical examination. In light of the condition of the child at that time, the mother’s excuse that she was too busy working is totally inadequate. Given the mother’s work schedule and her attitude it appears to this court that, had the complaint against her not been registered when it was, medical attention would have been withheld from the child for much longer, in all probability causing irreversible physical and mental trauma and quite possibly death.

From testimony of the two doctors and Ms. LeBlanc, it is quite clear to this court that the actions of the mother did indeed constitute an abuse of her young child in violation of La.R.S. 14:93. We dismiss defendant’s contention that there was no proof of suffering on the part of the child. The testimony of both doctors clearly indicates that the child did indeed suffer physical trauma as a result of this abuse.

! The proper standard of review of the sufficiency of evidence was enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) where the court held that the reviewing court is to consider “the evidence in the light most favorable to the prosecution” to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original). 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573; State v. West, 408 So.2d 1302 (La.1982); State v. Edwards, 400 So.2d 1370 (La.1981) Defendant contends that her conviction is based on circumstantial evidence insufficient to support the judgment. In State v. Austin, 399 So.2d 158, 160 (La.1981) this court stated that: “[W]hen we review a conviction based on circumstantial evidence we must determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence has been excluded.” This court further noted in Austin, supra that “[C]ir-cumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and experience”. We must look to the inferences made by the trier of fact based on circumstantial evidence and these inferences need only exclude all reasonable hypotheses, not every possible theory of innocence. We feel in this case that this burden has been met.

We see no error patent on the face of the record and for the above reasons we affirm the verdict and sentence handed down by the trial judge.

AFFIRMED.

DIXON, C. J., dissents with reasons.

CALOGERO, J.,

dissents. Under the Jackson v. Va. standard there was insufficient evidence to support the conviction.

DIXON, Chief Justice

(dissenting).

I respectfully dissent. There is clearly insufficient evidence here to support a conviction for cruelty to children. The infant suffered from malnutrition, but there is no evidence that it was because of intentional acts of the mother nor of criminal negligence of the mother.

       Judges Charles R. Ward, William H. Byrnes, III and David R. M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.

      . Louisiana Revised Statute 14:93 states: Cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense.
      Whoever commits the crime of cruelty to juveniles shall be fined not more than one thousand dollars, or imprisoned for not more than ten years, with or without hard labor, or both.


author: DENNIS, Justice. MARCUS, Justice LEMMON, Justice,

text:
    STATE of Louisiana v. Charles Lee ROGERS.
    No. 82-K-0056.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    Rehearing Denied Oct. 15, 1982.

      Timothy R. Fischer, Shreveport, Caddo Parish Indigent Defender Office for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Sonia Peters, Carey T. Schimpf, James C. McMichael, Jr., Dale G. Cox, Asst. Dist. Attys., for respondent.
   DENNIS, Justice.

A writ of certiorari was granted to evaluate the trial court’s finding that the defendant, Charles Lee Rogers, has the mental capacity to stand trial for aggravated rape. After the defendant’s indictment on March 10, 1981, his defense counsel, by motion, raised the question of defendant’s mental capacity to proceed. The trial court ordered a mental examination of the defendant, indicating that the judge had reasonable grounds to doubt the defendant’s mental capacity to proceed. La.C.Cr.P. art. 643. Pursuant to this order, the court appointed a sanity commission consisting of two psychiatrists to examine and report on the mental condition of the defendant. Subsequently, at a contradictory hearing on May 20, 1981, the trial court received testimony pertaining to the defendant’s mental capacity to proceed from the two psychiatrists, two police officers and an attorney who represented the defendant in a prior criminal case. The two psychiatrists testified that defendant was mentally retarded to the extent that he lacked the mental capacity to proceed. At the close of the contradictory hearing, the trial court ordered transcribed the recording of defendant’s plea of guilty to a prior offense of sexual battery. The recording was never transcribed, however, because of the retirement of the court reporter. Following the court’s discovery that the transcript would not be available, the judge appointed a third psychiatrist to examine and report on the mental condition of the defendant and ordered a second contradictory hearing.

At the second hearing, which was held on November 23, 1981, the trial court received testimony from the third psychiatrist and additional testimony from one of the psychiatrists it had originally appointed. The third psychiatrist testified that the defendant had the mental capacity to proceed. At the close of the second contradictory hearing, the trial court declared that the defendant had the mental capacity to proceed and ordered that the criminal prosecution should be resumed.

The trial court indicated in its oral reasons that its determination was based entirely on the testimony of the third psychiatrist. Although we agree with the trial court’s apparent conclusion that the lay testimony of the police officers and the defense counsel was of little probative value on the question of defendant’s mental capacity, we think its ultimate decision was clearly erroneous.

Essentially, the testimony of the police officers indicated that the defendant appeared to them to be coherent during their conversation with him during investigations of the present offense and a prior crime. The defendant’s former defense counsel testified that he permitted the defendant to accept a favorable plea bargain offered by the state in the previous case, although he questioned the defendant’s ability to understand his rights. However, the defense counsel said he would have raised the question of the defendant’s mental capacity to proceed in the absence of a favorable plea bargain. Obviously, the testimony of these lay witnesses, most of which concern a previous case, did not result from objective expert analyses of the defendant’s present mental capacity to stand trial for aggravated rape and was not based on tests or interviews designed to gather information pertinent to such an inquiry.

Dr. Norman Mauroner, the third doctor appointed by the court, disagreed with the two psychiatrists originally appointed. He testified that the defendant is mildly mentally retarded, with an I. Q. roughly estimated between 60 and 70, and is mentally able to assist counsel at trial. He answered affirmatively when asked if the defendant could understand the nature of the charges, probably understand the defenses available, understand his legal rights and the possible verdicts, maintain a consistent defense, detect distortions in witnesses’ testimony, and decide whether to take the witness stand. He testified that the defendant could “possibly” help locate witnesses, assist “to a degree” in examining witnesses, and understand the consequences of a conviction if it were explained to him, although “he did not appreciate what he might get as a penalty from the charge that he has against him now.” However, Dr. Mauroner gave little factual basis for his conclusions. Except for what the doctor called his “interaction” with the defendant during a one-hour interview, his opinion was based on the defendant’s ability to recall the phone number and the city block number at his mother’s house where he resided, his place of employment, his involvement in an automobile accident in 1970 or 1971, as well as the defendant’s statement that he had dropped out of school in the eighth grade. Dr. Mauroner did not determine whether the defendant had been socially promoted in school, and none of the doctors inquired as to whether he could read or write. At the conclusion of this direct testimony, Dr. Mauroner, somewhat equivocally, stated, “I would like to make a correction. I’m only saying that I feel that he could assist his attorney. I’m not saying that he’s competent. That’s someone else’s department.” Nevertheless, although he conceded that a psychological test would be the most accurate means of determining the level of defendant’s mental retardation, he insisted that a test result showing even severe mental retardation would not cause him to change his opinion that the defendant could assist counsel at- trial.

Dr. Joe B. Hayes, one of the original psychiatrists appointed by the court, testified that the defendant is severely mentally retarded with an estimated I. Q. between 50 and 55, and is mentally incapable of ¡effectively participating in a criminal prosecution. Dr. Hayes administered a Kent Emergency Intelligence Test to the defendant and the result indicated that his intelligence level was below that of a three-year-old child. Dr. Hayes also questioned the defendant using a five page judicial commitment check list and another check list recommended by the Academy of Law and Psychiatry. The doctor testified that the defendant could not conceptualize the crime of rape and did not understand that a non-consensual sexual act is wrong. Also, he stated that the defendant could not understand the defenses of alibi or insanity. He reported that the defendant had extreme difficulty in recalling events and circumstances and concluded that he would not be able to assist in his defense by recalling his whereabouts, locating witnesses or testifying without confusion and contradiction. Dr. Hayes testified that the defendant did not understand the nature of the charge against him, the penalty which could be imposed, the difference in the verdicts which could be rendered and did not completely grasp his legal rights. After observing the defendant in the courtroom, Dr. Hayes, who testified at both contradictory hearings, noted that the defendant had never looked up, showed extreme motor retardation, and did not appear to listen more than one tenth of the time, confirming the doctor’s opinion that the defendant is seriously intellectually deprived. The doctor stated that if he were asked for a diagnosis of the defendant’s condition he would think that he had an organic brain syndrome which resulted in his mental retardation to a degree that the doctor was surprised he had not been institutionalized at an earlier age.

Dr. Lucretia Little, the other psychiatrist originally appointed by the trial court, was of the opinion that the defendant is moderately mentally retarded with an I. Q. of less than 50 and found that he lacked the mental capacity to stand trial for aggravated rape. She stated that she asked him indirect questions to estimate his judgment and intelligence and found that he was lacking in many areas. The defendant reported to her that he has periods of time up to an hour and a half when he does not know what happened. He scored below the lowest recordable grade on a Kent E.I.T. test given to him by Dr. Little. When asked to compare her findings with those of Dr. Hayes, Dr. Little said she thought the defendant had a mental capacity greater than a three year old child in some areas, but apparently she agreed that his intelligence was lower in others. Dr. Little concluded that the defendant could not recall facts to assist in his defense, maintain a consistent defense, make critical decisions during trial or testify effectively in his defense.

A person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing and conducting his defense, may not be subjected to a trial. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); La.C.Cr.P. art. 641; State v. Bennett, 345 So.2d 1129 (La.1977). The failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

Our statutory scheme for detecting mental incapacity to proceed jealously guards a defendant’s right to a fair trial. La.C.Cr.P. arts. 641-649.1. When mental disease or retardation is so severe as to impair a defendant’s capacity to understand the object, nature and consequences of the proceedings against him, to consult with counsel in a meaningful way, and to assist effectively in his defense, that defendant is, within the contemplation of our law, incompetent to stand trial. State v. Bennett, supra. Because of the presumption of sanity in our law, the defense carries the burden of proving by a preponderance of the evidence that he lacks the capacity to understand the proceedings against him or to assist in his defense. Ibid. Accordingly, if the evidence shows that it is more probable than not that the defendant lacks the mental capacity to proceed, the criminal prosecution must be suspended. La.C.Cr.P. art. 648.

Due process and our statutory law require that the issue of the defendant’s mental capacity to proceed shall be determined by the court. La.C.Cr.P. arts. 647, 648. This cardinal principle permits the court to receive the aid of expert medical testimony but prohibits it from committing the ultimate decision of competency to a physician or anyone else. State v. Bennett, supra. As a corollary, the court may not base its decision solely upon an expert’s conclusion which has no rational basis in the facts contained in the record of the contradictory hearing. Otherwise, the legal question of mental capacity to proceed in the particular criminal prosecution would be judged by a medical rather than a judicial authority.

Applying these precepts to the evidence, we conclude that the trial court’s decision was clearly erroneous. The trial court completely disregarded the testimony of Drs. Hayes and Little and based its decision entirely upon the opinion of Dr. Mau-roner, although there is no rational factual basis in the record for preferring the opinion of the latter. Dr. Mauroner conceded that the defendant is mentally retarded and that a psychological test could accurately gauge the level of his intelligence. Yet he relied on little other than his own intuitive interaction with the defendant and declared that no amount of testing would change his opinion that the accused could assist counsel in an aggravated rape prosecution. Even a very young child can perform intellectual feats such as those of the defendant that Dr. Mauroner found significant, e.g., remembering his home phone number and the block in which he lived. The doctor may have been justified in making a medical diagnosis on the basis of this sketchy information and his intuitive “interaction” with the patient. But the absence of a factual basis in the record for Dr. Mauroner’s opinion renders his testimony clearly insufficient, in view of the substantial contrary evidence, to warrant a judicial determination of mental capacity to proceed.

Our review of the evidence convinces us that the defense proved by more than a clear preponderance of the evidence that the defendant presently lacks the mental capacity to proceed. Both Dr. Hayes and Dr. Little concluded that the defendant is seriously, perhaps severely, mentally retarded to the extent that he cannot effectively participate in his defense. Furthermore, their conclusions were based on psychological tests, observations, and interview questions which they fully described in their testimony. Acceptance of Dr. Mauroner’s inadequately supported conclusion in the face of contrary medical opinion having a substantial factual basis was tantamount to turning the court’s judicial function over to the doctor. This dereliction by the trial court constituted a failure to observe procedures adequate to protect the defendant’s right not to be tried or convicted while incompetent to stand trial.

For the reasons assigned, we find • the trial court erred in its determination that the defendant has the mental capacity to proceed. Accordingly, the matter is remanded to the trial court for further proceedings not inconsistent with this opinion.

MARCUS and LEMMON, JJ., dissent and assign reasons.

MARCUS, Justice

(dissenting).

I am unable to say that the trial judge’s finding, based on the testimony of one of three psychiatrists, that defendant has the mental capacity to stand trial for aggravated rape was clearly erroneous. Accordingly, I respectfully dissent.

LEMMON, Justice,

dissenting.

The trial judge accepted the testimony of Dr. Mauroner over the testimony of Dr. Hayes and Dr. Little because “Dr. Mauroner was much more practical, asked much more practical questions that one might readily know”. I too was impressed by the practical approach taken by Dr. Mauroner.

All experts agreed that the primary problem was defendant’s mental deprivation. Dr. Mauroner attempted to determine defendant’s mental capacity to proceed by asking him simple questions relating to everyday life and evaluating his answer, while the other doctors’ questions relating to geography, history and government, although encompassing matters of common knowledge, did not as accurately measure the mental ability of a retarded person.

On the basis of the record of the several hearings,.I cannot say that the trial judge’s finding on capacity to proceed was clearly erroneous.