source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Jonathan Edward BOYER.
    Nos. 10-694, 10-693.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.
    Rehearing Denied March 16, 2011.
    John F. Derosier, District Attorney, Cynthia S. Killingsworth, First Assistant District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Richard Bourke, New Orleans, LA, for Defendant/Appellant, Jonathan Edward Boyer.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

For the reasons set out in the companion case hereto, State v. Boyer, 10-693 (La.App. 3 Cir. 2/2/11), 56 So.3d. 1119, 2011 WL 312690, Defendant’s convictions and sentences are affirmed.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Pedro Jose RELOBA.
    No. KA10-809.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      John F. DeRosier, District Attorney— Fourteenth JDC, Carla Sue Sigler, Assistant District Attorney — Fourteenth JDC, Lake Charles, LA, for Appellee, State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Appellant, Pedro Jose Reloba.

      Court composed of SYLVIA R. COOKS, BILLY H. EZELL, and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

|,On July 6, 2006, a grand jury indicted Pedro Jose Reloba (Defendant) charging him with one count of second degree murder, a violation of La.R.S. 14:30.1. Defendant entered pleas of not guilty and not guilty by reason of insanity on July 24, 2006. The trial court ordered a sanity commission, and a sanity hearing was held on September 27, 2006. The trial court ordered Defendant transferred to the Feli-ciana Forensic Facility for an evaluation.

A sanity review was conducted on March 25, 2009; the trial court found Defendant was competent to proceed to trial. An interpreter was furnished for Defendant at the hearing. Defendant pled not guilty and elected to be tried by a jury.

Trial, with an interpreter for Defendant, took place on September 16-18, 2009. The jury unanimously convicted Defendant of second degree murder after twenty-one minutes of deliberation. Defendant’s motion for new trial was denied, with an interpreter present, on February 5, 2010. On that date, the trial court, after Defendant waived sentencing delays, sentenced Defendant to life imprisonment without the benefit of probation, parole, or suspension of sentence, as required by statute. La.R.S. 14:30.1.

At the hearing on the motion for new trial on February 5, 2010, newly-appointed counsel for Defendant sought a new trial arguing ineffective assistance of counsel alleging the previous trial counsel failed to introduce any evidence in support of Defendant’s insanity defense. The trial court and the State assert Defendant entered only a plea of not guilty, without a dual plea of not guilty by reason of insanity, at the sanity hearing. The record also indicates trial counsel suggested, at the hearing of the motion for new trial, that he told Defendant of the possibility he was not given due process regarding his transfer from the mental hospital to the jail. Nothing, however, was preserved in the record in the trial court that would permit an 12appeal related to that issue. The trial court denied the motion for new trial.

Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging the record contains no errors to support reversal of Defendant’s conviction and sentence in this matter. After a thorough review of the record we find no non-frivolous issues for appeal in this matter. Accordingly, we affirm Defendant’s conviction and sentence and grant counsel’s motion to withdraw.

FACTS

Defendant voluntarily appeared at the Calcasieu Parish Sheriffs Department on the morning of May 13, 2006, and on his own accord told deputies he killed his girlfriend. Defendant told authorities he wrapped a portion of a bicycle tube around her neck twice and killed her by strangulation. He appeared calm, not intoxicated, and related his actions and whereabouts after the murder. Defendant spoke in both English and Spanish with a Spanish-speaking interpreter present.

ERRORS PATENT

In accordance with La.Code Crim. P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find an error patent regarding the advisement of the prescriptive period of La.Code Crim.P. art. 930.8.

At the end of the sentencing hearing, the trial court stated, in pertinent part: “You have two years from the rendition of the judgment and conviction and sentencing to file for post-conviction relief.” According to La.Code Crim.P. art. 930.8, the two-year prescriptive period begins to run when the defendant’s conviction and sentence become final under the provisions of La.Code Crim.P. Article 914 or 922. The trial court’s advisement did not clearly set forth the prescriptive period of art. 930.8, thus, it must inform Defendant of the correct prescriptive period by sending appropriate written notice to Defendant within ten days of the rendition of |sthis opinion. Additionally, the trial court must file written proof in the record that Defendant received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

ANDERS ANALYSIS

Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, Defendant’s appellate counsel filed a brief stating he could find no errors on appeal that would support reversal of Defendant’s conviction or sentence. Thus, counsel seeks to withdraw.

In State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990), the fourth circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

Id. at 531.

While it is not necessary for Defendant’s counsel to “catalog tediously every merit less objection made at trial or by way of pre-trial motions with a labored explanation of why the objections all lack merit,” counsel’s Anders brief must “assure the court that the indigent defendant’s constitutional rights have not been violated.” State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, (quoting McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988)). Counsel 14must fully discuss and analyze the trial record and consider “whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id. Thus, counsel’s Anders brief must review the procedural history, the evidence presented at trial and “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Id. at 242 (quoting State v. Mouton, 95-981, p. 2 (La.4/28/95), 653 So.2d 1176, 1177).

Counsel states he, in review of the record, “studied and researched any possible errors for review, including: the validity of Defendant’s competence; errors in jury selection; the qualifications of expert witnesses; jury selection errors; trial errors; jury charge errors; verdict errors; sufficiency of the evidence; errors in the allegations that a new trial should have been granted; and sentencing errors.” This review revealed no non-frivolous grounds for appeal to counsel.

Pursuant to Anders and Benjamin, we have performed a thorough review of the record, including pleadings, minute entries, the charging instrument, and the transcripts, and have confirmed the statements by counsel. Defendant was properly charged in his bill of information. He was present and represented by counsel, with an interpreter, at all crucial stages of the proceedings. The jury composition and form of verdict were correct. Defendant’s sentence complies with the statutorily-mandated sentence, and review of the transcripts in the record provides only frivolous issues for appeal.

At the sanity commission hearing on March 25, 2009, defense counsel acknowledged Defendant met the criteria of State v. Bennett, 345 So.2d 1129 (La.1977) and was competent to stand trial. Prior to the onset of trial, on September 16, 2009, defense counsel objected to the court’s finding of voluntariness regarding | ^statements made by Defendant. The first was Defendant’s verbal statement given to Deputy Casey Williamson on May 13, 2006 (that he killed his girlfriend on the previous night). However, the record showed Defendant “walked into the [Sheriffs] office,” identified himself to Deputy Williamson, and told him “last night he killed his girlfriend cause she had been cheating on him.” Defendant appeared calm and not intoxicated as he made that spontaneous statement.

The next statement to which defense counsel objected was videotaped by Detectives Les Blanchard and Nelson Robles while Defendant described the murder in detail. The detectives communicated with Defendant in both Spanish and English and obtained his signature on Miranda rights forms in both languages. Defendant appeared to understand the waiver of his rights when it was read to him in English, and he said he understood “perfectly” when it was read to him in Spanish. Defense counsel admitted the detectives “were very thoughtful in their — in the gathering of evidence here,” but lodged “an objection proforma ” “just in case [he] missed something.”

Counsel then objected to the voluntariness of a second statement to Detective Robles and Detective Brent Young in which Defendant spoke about how he disposed of the victim’s belongings. Detective Robles read Defendant his rights, and Defendant appeared to understand them just as well as he did when he gave his first statement. At that time, he signed another waiver of his rights in Spanish. Defense counsel did not “have information that would indicate that there was anything improper or that that statement was not voluntary,” but objected to its admissibility because he did not know “that [he had] enough information not to object at [that] point.” Based on the record, we find that any appeal regarding the objections relating to voluntariness would be frivolous.

LAt trial, defense counsel objected to the denial of his challenge for cause of Juror Miller, but was able to exercise a peremptory challenge to excuse her from the jury. Defense counsel used all of his peremptory challenges, but accepted the next two potential jurors without objection to complete the panel.

Only one defense objection, concerning the admission into evidence of three autopsy photographs of the victim’s body, was overruled by the trial court. Defense counsel argued he “was not sure that [the photographs] have any probative value” because the defense had conceded the mechanism of the victim’s death. The State argued it had selected “the least graphic and the least horrific, gruesome” photographs in order to display the victim’s injuries.

Defense counsel did not object, however, to the admission of the State’s exhibits seven and eight, which showed the victim’s body lying where it was discovered. While the autopsy photographs may have been cumulative when considered with the other photographs, defense counsel did not argue their potentially cumulative nature and has not shown any prejudice resulted from their admission into evidence.

This court has held the probative value of autopsy photographs outweighs any prejudicial effect they may have. State v. Gilbert, 10-31 (La.App. 3 Cir. 6/2/10), 41 So.3d 566. The Gilbert defendant stipulated to the cause of death and argued the photographs were unnecessary and prejudicial. This court held such photographs “are admissible to prove corpus delicti, to corroborate other evidence establishing cause of death, as well as location and placement of wounds and to provide positive identification of the victim,” and “will be admitted unless [they are] so gruesome as to overwhelm jurors’ reason and lead them to convict without sufficient other evidence.” Id. at 573 (quoting State v. Broaden, 99-2124, pp. 22-23 (La.2/21/01), |7780 So.2d 349, 364, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001) (citations omitted)).

Here, the jury was presented with overwhelming evidence of Defendant’s guilt. The jury saw portions of a videotaped interview in which Defendant described the details before, during, and after the murder, and he confessed to strangling the victim to death. We find the verdict would have been exactly the same without the objectionable photographs in evidence, and any argument on appeal to the contrary would be frivolous.

We find no issues which would support an assignment of error on appeal. Therefore, counsel’s motion to withdraw is granted. - However, we find the trial court’s advisement did not clearly set forth the prescriptive period of Article 930.8. Thus, we order the trial court to inform Defendant of the correct prescriptive period by sending appropriate written notice to Defendant within ten days of the rendition of this opinion. Additionally, we order the trial court to file written proof in the record that Defendant received the notice.

CONVICTION AND SENTENCE AFFIRMED WITH INSTRUCTIONS. MOTION TO WITHDRAW GRANTED.

UORDER

After consideration of appellate counsel’s request to withdraw as counsel and the appeal presently pending in the above-captioned matter;

IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is granted.


author: GENOVESE, Judge.

text:
    Sharon LeCROY, Individually and on Behalf of Brandy Cook v. BYRD REGIONAL HOSPITAL, Dr. Hussein Alammar, Dr. Mohamed Shehata, Dr. Hemant Pande, and Dr. Joseph Crookshank, Jr.
    No. 10-904.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.
    Rehearing Denied March 23, 2011.

      John E. Morton, Morton Law LLC, Alexandria, Louisiana, for Plaintiff/Appellant, Sharon LeCroy.
    J. Gregory Bergstedt, Jodi C. Andrews, Fraser, Wheeler, & Bergstedt, Lake Charles, Louisiana, for Defendant/Appel-lee, Dr. Joseph W. Crookshank, Jr.
    Frederick B. Alexius, Jeremy C. Cedars, Provosty, Sadler, deLaunay, Fiorenza & Sobel, APC, Alexandria, Louisiana, for Defendant/Appellee, National Healthcare of Leesville, Inc. d/b/a Byrd Regional Hospital.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this medical malpractice case, Sharon LeCroy, individually and on behalf of the estate of Brandy Cook, appeals the trial court’s grant of summary judgment in favor of Defendants, Dr. Joseph W. Crook-shank, Jr. and National Healthcare of Leesville d/b/a Byrd Regional Hospital. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 28, 2005, Brandy Cook presented to the emergency department of Byrd Regional Hospital in Leesville, Louisiana, via ambulance with complaints of altered mental status and an increased respiratory rate. Ms. Cook was seen by Defendant, Dr. Joseph W. Crookshank, Jr., who contacted Ms. Cook’s treating physician, Defendant, Dr. Hussein A. Alammar; however, Dr. Alammar advised Dr. Crookshank that he was “unable to accept [Ms. Cook] any longer and [that] he had recommended that [she] go to a neurologist in Alexandria or Shreveport.” According to the Petition for Damages, “Dr. Crookshank suggested a psych evaluation, which was declined, and discharged [Ms. Cook] home.” The following morning, Ms. Cook was found unresponsive and was transported via ambulance back to Byrd Regional Hospital in cardiac arrest, where efforts to resuscitate her were unsuccessful and she expired. An autopsy was performed by Dr. Collie Trant, a forensic pathologist for the Lafayette Parish Coroner’s Office, whose report stated that the cause of Ms. Cook’s death was an “accident” caused by “[a]cute cital-opram [] use[.]”

This matter was submitted to a medical review panel, and, on December 10, 2007, the medical review panel rendered an opinion wherein it unanimously found that the evidence did not support the conclusion that Dr. Crookshank and Byrd ^Regional Hospital failed to comply with the appropriate standard of care. The medical review panel’s written opinion specified, in pertinent part:

With respect to Dr. Crookshank, the panel finds that his treatment of the patient was proper in all respects. He attempted to get Dr. Alammar to come in to treat the patient, and he referred the patient for other consults. He also treated the potassium deficiency property-
With respect to [Byrd Regional Hospital], the panel finds that the nursing staff and hospital personnel property and timely followed all physician orders and directives. The patient was timely triaged each time[ ] and was monitored throughout the patient’s stays in the hospital.

Ms. LeCroy instituted this medical malpractice lawsuit on January 23, 2008, naming, among others, Dr. Crookshank and Byrd Regional Hospital as defendants. Dr. Crookshank and Byrd Regional Hospital each filed motions for summary judgment, asserting that Ms. LeCroy will be unable to sustain her burden of proving that they breached the appropriate standard of care owed to Ms. Cook because Ms. LeCroy offered no expert testimony as to the standard of care and offered no evidence as to whether said standard of care had been breached.

In her opposition to the motions filed by Dr. Crookshank and Byrd Regional Hospital, Ms. LeCroy offered the affidavit of Dr. William Fann, a pharmacologist, in which he opined that Ms. Cook “died by suicide.” Dr. Fann further opined that “Dr. Crookshank’s failure to properly evaluate [Ms. Cook] for suicide potential, and Dr. Alammar’s refusal to continue treating her on her visit to [Byrd Regional Hospital] on [July 28, 2005], fell below standards and, within reasonable medical probability, caused her to suicide [sic].” Ms. LeCroy supplemented her opposition to the motions filed by Dr. Crookshank and Byrd Regional Hospital by offering a ^second affidavit from Dr. Fann, wherein his opinion had changed. This affidavit declared:

. I have been made aware of the following sequence of events:

A. Dr. Ghanta, in her sworn deposition of November 6, 2009, testified that she discontinued the prescription of citalopram (Celexa), a serotonin re-uptake inhibitor (SSRI), over a year before [Ms.] Cook’s death.
B. Dr. Ghanta instituted a prescription for escitalopram (Lexapro), which is also an SSRI and an enantomer [sic] of citalopram, in the year before [Ms.] Cook’s death in July 2005.
C. On July 5, 2005, Diflucan was added to [Ms.] Cook’s prescription medication regimen for the treatment of her severe candidiasis esophagitis. Diflucan inhibits the metabolism of escitalopram and thereby raises its blood level.
[]
The combination of prescriptions for Lexapro and Diflucan, under these circumstances, within reasonable medical probability, caused the elevated citalo-pram levels discovered at autopsy and listed as the cause of Ms. Cook’s death.
[]
Dr. Alammar, who prescribed the Diflucan, should have been aware of the known contraindications for its use under these circumstances and should have given cognizance to this known interaction of Diflucan and Lexapro.

A hearing was held on November 9, 2009. After taking the matter under advisement and allowing the parties to submit post-trial memoranda, the trial court issued Written Reasons on January 14, 2010, granting the motions for summary judgment filed by Dr. Crookshank and Byrd Regional Hospital. The trial court signed its Judgment on April 6, 2010. Ms. LeCroy has appealed.

|4LAW AND ANALYSIS

Assignment of Error

In her sole assignment of error, Ms. LeCroy alleges that “[s]ummary judgments in favor of [Dr.] Crookshank and Byrd Regional Hospital were inappropriate due to pending discovery requests] and allegations of fault among the health care providers.”

Standard of Review

Our Louisiana Supreme Court has instructed us on the standard of review relative to a motion for summary judgment as follows:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., [06-363 (La.11/29/06) ], 950 So.2d 544, [see La.Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, [06-1181 (La.3/9/07) ], 951 So.2d 1058[ ]; King v. Parish National Bank, [04-337 (La.10/19/04) ], 885 So.2d 540, 545; Jones v. Estate of Santiago, [03-1424 (La.4/14/04) ], 870 So.2d 1002[.]

Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (footnote omitted). Louisiana Code of Civil Procedure Article 966(C)(2) provides:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

]¿Discussion

In the present case, Dr. Crook-shank and Byrd Regional Hospital, who are the movants in these motions for summary judgment, do not bear the burden of proof at trial on the issue of whether medical malpractice was committed. Louisiana Revised Statutes 9:2794(A) provides that the plaintiff shall prove:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Thus, pursuant to La.R.S. 9:2794(A) and the jurisprudence interpreting said statute, Ms. LeCroy has the burden of proving, by a preponderance of the evidence, the following: (1) the standard of care for treating a patient such as Ms. Cook; (2) that Dr. Crookshank and Byrd Regional Hospital breached that standard of care; and, (3) that the breach caused Ms. Cook’s death. See also Browning v. West Calcasieu Cameron Hosp., 03-332 (La.App. 3 Cir. 11/12/03), 865 So.2d 795, writ denied, 03-3354 (La.2/13/04), 867 So.2d 691.

Dr. Crookshank and Byrd Regional Hospital have met their initial burden of proof on their motions for summary judgment. The medical review panel concluded that there is an absence of factual support for Ms. LeCroy’s contention that there was |6a breach of the standard of care, which is an essential element of her claim. Therefore, the burden shifts to Ms. LeCroy “to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial.... ” La.Code Civ.P. art. 966(C)(2). Thus, one issue presently before this court is whether the trial court was correct in ruling that Ms. LeCroy failed to demonstrate that she presented sufficient evidence to prove her malpractice claims against Dr. Crookshank and Byrd Regional Hospital at trial.

On appeal, Ms. LeCroy argues that the trial court prematurely granted summary judgment because Dr. Crookshank purportedly admitted in his deposition that he did not follow the hospital’s chain-of-command policy when Ms. Cook’s primary care physician, Dr. Alammar, refused to attend to her. Ms. LeCroy also argues that the trial court was premature in granting summary judgment in favor of Byrd Regional Hospital because she had served requests for production of documents relative to the hospital’s alleged knowledge that Dr. Alammar had previously abandoned other patients.

Dr. Crookshank counters that “the only expert opinions with regard to [his] treatment were the opinions of the medical review panel members who unanimously found that [he] did not breach the standard of care.” Byrd Regional Hospital argues that Ms. LeCroy “did not enter any evidence to support the claim that [it] had any actual knowledge of Dr. Alammar’s conduct.”

“Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony.” Samaha, 977 So.2d at 884 (citing Pfiffner v. Correa, 94-924, 94-968, |794-992 (La.10/17/94), 643 So.2d 1228). The affidavits of Dr. Fann filed in opposition by Ms. LeCroy do not attest to the standard of care owed to Ms. Cook by Dr. Crookshank, nor do they attest that he did anything wrong in his treatment of her. The affidavits of Dr. Fann also do not attest to the standard of care owed to Ms. Cook by Byrd Regional Hospital, nor do they attest that it breached the standard of care relative to Ms. Cook’s treatment. Pursuant to our de novo review of the record, we conclude that the trial court was correct in holding that Ms. LeCroy failed to produce sufficient evidence to establish that she will be able to prove a breach of the standard of care at trial; thus, no genuine issue of material fact exists, and the motions for summary judgment filed by Dr. Crookshank and Byrd Regional Hospital were both properly granted.

We next address the issue of whether the trial court’s grant of summary judgment was inappropriate because of outstanding discovery. The record reflects that Ms. LeCroy filed suit on January 23, 2008. In April of 2009, Ms. LeCroy served discovery upon Byrd Regional Hospital which sought to elicit information regarding Byrd Regional Hospital’s alleged knowledge of Dr. Alammar’s propensity to abandon patients. Pursuant to Ms. LeCroy’s request in May of 2009 that this matter be set for trial, the trial court scheduled a trial by jury for April 26, 2010. The motions for summary judgment at issue herein were filed in August and September of 2009. Ms. LeCroy filed a motion to compel discovery on October 20, 2009, alleging that Byrd Regional Hospital “failed to provide adequate and sufficient responses to said discovery....” The hearing on the motion for summary judgment filed by Byrd Regional Hospital was held on November 9, 2009.

Louisiana Code of Civil Procedure Article 966(A)(1) provides that a defendant's able to move for summary judgment “at any time.” Further, La. Code Civ.P. art. 966(C)(1) provides that “[a]fter adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.”

The provision for adequate discovery does not grant a party an absolute right to delay a decision on a motion for summary judgment until all discovery is complete. West v. Watson, 35,278 (La. App. 2 Cir. 10/31/01), 799 So.2d 1189, writ denied, 01-3179 (La.2/8/02), 809 So.2d 140. Unless the party opposing the motion for summary judgment shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there are no genuine issues of fact. Advance Products & Systems, Inc. v. Simon, 06-609 (La.App. 3 Cir. 12/6/06), 944 So.2d 788, writ denied, 07-26 (La.3/9/07), 949 So.2d 444. The abuse of discretion standard is used to determine if the trial court allowed adequate time for discovery. Id.

Prime Income Asset Mgmt., Inc. v. Tauzin, 07-1380, pp. 13-14 (La.App. 3 Cir. 4/30/08), 981 So.2d 897, 905-06. In the case before us, the motions for summary judgment filed by Dr. Crookshank and Byrd Regional Hospital were made more than a year after suit was filed and four years after the incident in question. As such, on the facts presented in this case, we find no error in the trial court’s grant of summary judgment while there was outstanding discovery.

DECREE

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Dr. Crookshank and Byrd Regional Hospital is affirmed. All costs of this appeal are assessed to Plaintiff/Appellant, Sharon LeCroy, individually and on behalf of the estate of Brandy Cook.

AFFIRMED.

      . Citalopram, also known as Celexa, is a serotonin reuptake inhibitor and was not prescribed for Ms. Cook at the time of her death.

      . This affidavit is dated September 18, 2009, and is Dr. Fann’s first of two affidavits.

      . This is Dr. Farm's second affidavit. It is dated November 6, 2009.


author: THIBODEAUX, Chief Judge.

text:
    Carlos REYES-SILVA v. DRILLCHEM DRILLING SOLUTIONS, LLC.
    No. 10-1017.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.
    Rehearing Denied March 23, 2011.

      James Isaac Funderburk, Funderburk & Herpin, Abbeville, LA, for Defendant/Appellee, Drillchem Drilling Solutions, LLC.
    Carl M. Duhon, Ike Huval, Duhon Law Firm, Lafayette, LA, for Plaintiff/Appellant, Carlos Reyes-Silva.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

|,The plaintiff-appellant, Carlos Reyes-Silva, appeals a summary judgment granted in favor of the defendant-appellee, Drillchem Drilling Solutions, LLC (Drill-chem), finding that an “Employment Agreement” (Agreement) entered into by the parties was not a fixed-term contract. We find that, due to issues of law and fact, the defendant is not entitled to summary judgment on the at-will employment status of the plaintiff. We reverse.

I.

ISSUES

We must decide whether the trial court erred in granting Drillchem’s motion for summary judgment and in finding that the Employment Agreement between the parties represented an at-will, rather than fixed-term, contract.

II.

FACTS AND PROCEDURAL HISTORY

On July 2, 2008, Mr. Reyes-Silva and Drillchem executed a four-page document entitled “Employment Agreement” which stated that Drillchem would pay Mr. Reyes-Silva a salary of $200,000.00 a year, beginning July 15, 2008, plus quarterly sales bonuses, group health benefits, and $1,500.00 per month for the lease of his automobile. The Agreement contained terms and conditions of the employment, including the duties and responsibilities of Mr. Reyes-Silva’s new position as “Director of Business Development.” The position was a sales position, and Mr. Reyes-Silva’s primary responsibilities were to develop new customers to expand Drillchem’s customer base and to aggressively market and sell Drillchem proprietary products, both domestically and internationally. The Agreement ^contained two paragraphs regarding termination, which provide the basis for the present appeal. Those paragraphs, eleven (11) and twelve (12), state:

11. Termination of Agreement by the Company; After six (6) months from the initial employment date, without cause, the Company may terminate this agreement at any time upon providing thirty (30) days written notice to the Employee. If the Company requests, the Employee will continue to perform his/her duties and may be paid his/ her regular salary up to the date of termination. In addition, the Company will pay the Employee on the date of the termination a severance allowance of $10,000 (pre-tax). The Company may, at any time, with cause (“cause” may include dereliction of duty, committing a criminal act, alcohol or drug abuse, etc.), terminate this agreement. Notwithstanding anything to the contrary contained in this agreement, the Company may terminate the Employee’s employment upon thirty (30) days’ notice to the Employee should any of the following events occur; a) The Company’s decision to terminate its business and liquidate its assets, b) Bankruptcy or Chapter 11 reorganization.
12. Termination of Agreement by the Employee: After six (6) months from the initial employment date, without cause, the Employee may resign from employment with the Company upon providing thirty (30) [days’] written notice to the Company. Employee may be required to perform his or her duties and will be paid the regular salary to date of resignation but shall not receive severance allowance.

The effective date of the Agreement was July 7, 2008.

On October 17, 2008, Drillchem sent a letter to Mr. Reyes-Silva informing him that he was being terminated effective November 16, 2008 because he had not fulfilled his contractual obligations, pre-de-fined sales quotas, and pre-employment promises regarding the work that he would deliver. The letter stated that Mr. Reyes-Silva’s sales profits were not close to offsetting the cost of his salary and benefits. Mr. Reyes-Silva stated in his affidavit that, a few days later, he was told at a meeting to ignore the October 17th letter and that he was not terminated.

| sOn December 1, 2008, Drillchem prepared two alternative termination letters. The first letter terminated Mr. Reyes-Silva immediately, due to lack of sales performance, and it referenced no sales whatsoever in the prior month of November. The letter indicated that Mr. Reyes-Silva could express his opinions at the exit interview that afternoon. It also offered him a two-week severance package in exchange for signing a general release. Mr. Reyes-Silva did not sign the release. The alternative termination letter, also dated December 1, 2008, stated that Mr. Reyes-Silva was terminated effective December 31, 2008 for under-performance in sales and no sales in November. It did not offer him a severance package, and it demoted him to the position of warehouseman.

On December 3, 2008, Drillchem sent another termination letter effective January 6, 2009, which, as it stated, coincided with the end of his sixth month of employment. This letter referenced paragraph eleven of the Agreement and indicated compliance with the thirty-day written notice requirement. It further indicated that Mr. Reyes-Silva would receive his regular pay check through January 6, 2009, and that his final check would include the $10,000.00 severance allowance referenced in paragraph eleven of the Agreement.

On December 5, 2008, Drillchem sent another letter, effectively terminating Mr. Reyes-Silva as of December 6, 2008. This letter stated that it superceded and nullified any termination offers previously transmitted, and it stated that Mr. Reyes-Silva was being “terminated with cause.” It specified three enumerated causes: (1) failure to deliver on pre-employment sales projection promises; (2) failure to meet or come close to meeting pre-defined sales quotas in any month of employment, with total sales for July through December of $51,035.00, only 6.2% of the $833,335.00 pre-defined sales quota; and, (3) failure to follow the |4directives of his supervisor. The letter indicated that Mr. Reyes-Silva would receive a final paycheck and a final expense check through December 6, 2008.

Mr. Reyes-Silva’s last paycheck, dated December 9, 2008, shows that Mr. Reyes-Silva received $83,333.31 in salary from Drillchem, which is $16,666.66 per month, for his five (5) months of employment, and that his final check was at the same rate of pay as previous checks.

On February 4, 2009, counsel for Mr. Reyes-Silva sent a demand letter to Drill-chem, referencing paragraph eleven (11) and asserting that Drillchem had breached the Agreement by terminating Mr. Reyes-Silva before his sixth month of employment. It stated that Mr. Reyes-Silva was owed $100,000.00 for six (6) months of employment, that he was paid only $83,333.31, and that he was, therefore, owed $16,666.66 for the sixth month that he did not work due to the termination. The letter further asserted that Mr. Reyes-Silva was not given a thirty-day notice at the end of the six-month period, amounting to an alleged seventh month of income due under the Agreement, and that he was, therefore, owed another $16,666.66 for the thirty-day notice period. The demand letter thus asserted that Mr. Reyes-Silva was owed $33,333.35 in salary under the Agreement. It further alleged that, because the notice requirement was violated, the monthly salary of $16,666.66 continued to accrue monthly.

The February 4, 2009 demand letter then addressed paragraph three (3) of the Employment Agreement, which relates to the “Performance Bonus” section of the Agreement. Paragraph three (3) states as follows:

3. Performance Bonus: The Company shall pay a quarterly bonus to the Employee equal to 10% of the Net Sales (Sales minus Sales Returns) of the Company’s “Proprietary Product Line” exceeding $500,000 in any calendar quarter. The performance bonus will be paid on the 15th of the month following the end of each calendar quarter year.

| ¿Asserting that Mr. Reyes-Silva was informed that Drillchem had $3,000,000.00 in net sales for the third quarter of 2008, the letter applies the math of the above paragraph ($3,000,000.00-$500,000.00 $2,500,000.00 x 10% = $250,000.00) and makes demand for $250,000.00 as an unpaid performance bonus for Mr. Reyes-Silva for the third quarter of 2008. For the fourth quarter of 2008, Mr. Reyes-Silva estimated $4,000,000.00 in net sales, and the letter demanded a performance bonus of $350,000.00 for that quarter ($4,000,000.00-$500,000.00 = $3,500,000.00 x 10% = $350,000.00).

Mr. Reyes-Silva’s attorney concluded the demand letter with an offer to settle the claims against Drillchem for $633,333.35 ($600,000.00 in unpaid performance bonuses + $33,333.35 in unpaid salary), payable within ten days from the date of the letter.

Because the demand was not met, Mr. Reyes-Silva filed suit against Drillchem. The petition sought all amounts previously demanded, reiterating the monthly accrual of $16,666.66, and it sought ninety (90) days of “penalty wages,” plus attorney fees pursuant to La.R.S. 23:631 and La.R.S. 23:632. The petition further sought damages for mental anguish, damage to reputation, and other damages to be established at trial. The supplemental petition of Mr. Reyes-Silva sought an additional $10,000.00 for the severance allowance referenced in paragraph eleven (11) of the Agreement.

Drillchem filed a motion for summáry judgment, asserting that the Agreement at issue merely established Mr. Reyes-Silva’s salary, as a salesman for Drillchem, at $200,000.00 per year, payable on the 15th and the last day of each month. Drillchem asserted that the Agreement did not include a fixed term of employment, nor a fixed date of termination. Drillchem argued that without a fixed term of employment, Mr. Reyes-Silva was an “at-will” employee, pursuant to_[gLa.Civ.Code art. 2747, who was subject to termination at any time, with or without cause, just as he was free to leave at any time, with or without providing cause.

The trial court granted Drillchem’s motion for summary judgment, finding that the Agreement was not a fixed-term contract and that Mr. Reyes-Silva was an at will employee of Drillchem. Mr. Reyes-Silva filed this appeal.

III.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991).

IV.

LAW AND DISCUSSION

Mr. Reyes-Silva contends that the trial court erred in granting summary judgment in favor of Drillchem, in finding that the employment relationship of the parties was at will, and in finding that the Agreement between the parties did not contain a fixed-term for employment. He argues that paragraphs eleven (11) and twelve (12) of the Agreement created a fixed term or limited duration contract, and that Drillchem’s motion for summary judgment should have been denied. He further asserts that if there was ambiguity in the contract, then there were questions of material fact which precluded summary judgment.

The trial court found ambiguity in the contract, regarding the requirement of “cause” for termination during the first six months of employment, and it told the parties to prepare that issue for trial. However, at the same time, the trial court found no fixed term in the Agreement and granted summary judgment to 17Prillchem on the issue of at will employment. As fully explained below, if the employment was truly at will, then there would be no need for a trial on cause. Therefore, we must reverse.

The Louisiana Civil Code provides for employment which is terminable at will under La.Civ.Code art. 2747, and it provides for employment of limited duration, or fixed-term employment under La.Civ. Code art. 2749. Those articles state as follows:

Art. 2747. Contract of servant terminable at will of parties

A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.

Art. 2749. Liability for dismissal of laborer without cause

If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.

Accordingly, under the at will employment of La.Civ.Code art. 2747, an employer is generally at liberty to dismiss an employee at any time, for any reason, without incurring liability for the discharge. Quebedeaux v. Dow Chem. Co., 01-2297 (La.6/21/02), 820 So.2d 542. Unless the employment contract is for a definite period of time, there is no enforceable action for damages under Louisiana law, as the contract can be terminated at the will of either employee or employer. Deus v. Allstate Ins. Co., 15 F.3d 506 (5th Cir.), cert. denied, 518 U.S. 1014, 115 S.Ct. 573, 130 L.Ed.2d 490 (1994).

Under the fixed term employment of La.Civ.Code art. 2749, however, when the parties enter into a contract of employment for a definite term, an employer must show good or just cause for terminating the employee during that term. See Griffith v. Sollay Found. Drilling, Inc., 373 So.2d 979 (La.App. 3 Cir.1979); Bartlett v. Doctors Hosp. of Tioga, (La.App. 3 Cir.1982), 422 So.2d 660, unit denied, 427 So.2d 869 (La.1983); Wiley v. Mo. Pacific R.R. Co., 430 So.2d 1016 (La.App. 3 Cir.1982), unit denied, 431 So.2d 1055 (La.1983).

An employer’s discharge, without cause, of an employee hired under a fixed term contract results in the employee’s entitlement to compensation for all wages or salary that he would have received but for the breach. Coates v. Hill Wholesale Distrib. Co., 42,584 (La.App. 2 Cir. 10/24/07), 968 So.2d 315, unit denied, 08-13 (La.3/24/08), 977 So.2d 953. Because there is a presumption that employment is at will, the party relying on an alleged contract of employment for a fixed term has the burden of proving that there was a meeting of the minds on the length of time of employment. See Brodhead v. Bd. of Trustees for State Colleges and Univs., 588 So.2d 748 (La.App. 1 Cir.1991), unit denied, 590 So.2d 597 (La.1992).

In the present case, we find that paragraphs eleven (11) and twelve (12) of the Agreement attempted to bind the parties and to create obligations that would not exist in the at will employment governed by La.Civ.Code art. 2747. Paragraph twelve (12) required that Mr. Reyes-Silva provide a thirty-day written notice if he resigned without cause, after six months of employment. We summarize paragraph eleven (11) as providing for three actions by Drillchem:

1) Drillchem can terminate the Agreement with cause at any time;
2) Drillchem can terminate the Agreement without cause after six months by providing a thirty-day written notice to the employee; this includes $10,000.00 severance allowance.
3) Drillchem can terminate employment upon a thirty-day notice if it decides to end business and liquidate its assets or file bankruptcy proceedings.

|9In our analysis, the Agreement provides for termination without cause only after the initial six-month period ended. At any other time before the initial six month period ended, cause was required. Therefore, the Agreement established a fixed period of six months during which Mr. Reyes-Silva could only be terminated for cause. While the Agreement does not guarantee employment for a fixed term, it does require just cause for termination during the first six months, which comports more closely with La.Civ.Code art. 2749 as fixed term employment than with the at will employment of La.Civ.Code art. 2747. In addition to the language of the Agreement, Mr. Reyes-Silva’s affidavit evidences his belief that, through discussions with Mr. William Kortlang, President and COO of Drillchem, at the time of signing the Agreement, he could not be terminated during the first six months of employment except for good cause.

Whether Drillchem terminated Mr. Reyes-Silva for good or just cause is a matter for trial. It is clear that the parties anticipated trial, as neither presented documentation regarding the sales receipts of either Drillchem or the sales made by Mr. Reyes-Silva. All of Drillehem’s letters attempting to terminate Mr. Reyes-Silva referenced under-performance and poor sales profits as the cause for termination. The final letter on December 5, 2008, specifically referenced pre-employment sales projection promises, pre-de-fined sales quotas of $833,335.00 with only $51,035.00 in actual sales, and Mr. Reyes-Silva’s failure to follow directives. In Mr. Reyes-Silva’s affidavit, he denies that there were any sales projection promises or pre-defined sales quotas, and he denies that he failed to follow directives. Accordingly, the contrary assertions by Drillchem and Mr. Reyes-Silva raise material issues of fact regarding the existence of good cause, which is to be determined through evidence at trial.

|1ftAs a preliminary matter, however, we note that some of Mr. Reyes-Silva’s assertions call for an overly broad interpretation of the Agreement that is unsupported in the document itself. Accordingly, we make the following findings for remand: Under paragraph eleven (11) of the Agreement itself, (1) good cause may include, but is not limited to, dereliction of duty, crime, or substance abuse, as these were examples only, as evidenced by the use of the permissive “may” and the inclusion of unspecified additional causes indicated by “etc.”; (2) a thirty-day notice is not required for termination during the first six months of employment unless the reason is Drillehem’s liquidation or bankruptcy, and the Agreement does not require that this particular notice be written; and, (3) a severance allowance is not required for termination during the first six months of employment.

V.

CONCLUSION

Based upon the foregoing, we reverse the trial court’s finding of at-will employment, and we reverse the summary judgment granted to Drillchem on that issue. We find that the Agreement between the parties contained a fixed term of six months during which Mr. Reyes-Silva could only be terminated for good or just cause. We further find issues of material fact regarding whether the termination by Drillchem was for good and just cause, and we remand the case to the trial court for a trial on the merits consistent with the findings expressed in this opinion.

Costs of appeal are assessed against Drillchem Drilling Solutions, LLC.

REVERSED AND REMANDED.


author: PETERS, J.

text:
    Michael BROUSSARD v. COUNTRY CLUB AUTO REPAIR.
    No. 10-1116.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      Mark Zimmerman, Lake Charles, LA, for plaintiff/appellee, Michael Broussard.
    Kathleen W. Will, Briney, Foret & Cor-ry, L.L.C., Lafayette, LA, for defendant/appellant, Country Club Auto Repair.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PETERS, J.

[,The defendant in this workers’ compensation litigation matter, Country Club Auto Repair, Inc. (Country Club Auto Repair), a Lake Charles, Louisiana automotive body shop, appeals the judgment of the workers’ compensation judge (WCJ) which found that the plaintiff, Michael Broussard, suffered a work-related accident and which awarded him weekly indemnity benefits, reasonable medical treatment, and statutory penalties and attorney fees. Mr. Broussard answered the appeal seeking an additional attorney fee award for work performed by his attorney on appeal. For the following reasons, we affirm the WCJ judgment in all respects and render judgment in favor of Mr. Broussard and against Country Club Auto Repair in the amount of $5,000.00 as attorney fees for work performed by Mr. Broussard’s counsel on appeal.

DISCUSSION OF THE RECORD

Mr. Broussard suffered a work-related injury on July 27, 2007, while working as a body technician for Country Club Auto Repair. The accident occurred when a jack collapsed and caused an automobile to fall on Mr. Broussard as he was attempting to push the tires back onto a frame-straightening machine from underneath the fender.

Mr. Broussard reported to Mike Crisp, his immediate supervisor, but Mr. Crisp did not take the report seriously. When Mr. Broussard requested access to medical care the next day, Mr. Crisp rejected his request. Mr. Broussard then approached Wesley Berlin, the company manager, with his claim and was immediately fired.

Two days after the accident, Mr. Brous-sard presented himself to the LSU — W. O. Moss Regional Emergency Room (Moss Regional) in Lake Charles, complaining of pain in his right shoulder, right scapula, neck, and lower back. The ^emergency room personnel examined him, took x-rays of his right shoulder and knee, prescribed pain medication and muscle relaxers, and told him to follow up with an orthopedic surgeon.

Mr. Broussard returned to the Moss Regional emergency room on August 7, 2007, again complaining of pain in his right knee, neck, and back. He was again given pain medication and was told to return if there was no improvement. On that day, he saw Dr. Harpal Benipal, an internist at Moss Regional’s outpatient clinic and his primary care physician. X-rays of Mr. Broussard’s shoulder and knee were basically negative, but an x-ray of his lumbar spine revealed an old anterior compression fracture at L2. At various times thereafter, Dr. Benipal prescribed Mr. Broussard pain medication for his back and neck pain and placed him on anti-depressants for depression. On May 20, 2008, Dr. Benipal referred Mr. Broussard to LSU for pain management based on his chronic lower back and neck pain. In association with this referral, he issued a no work excuse for a three-month period commencing that day.

Three days after he presented himself to the emergency room on August 7, 2007, Mr. Broussard was involved in a serious automobile accident wherein he received additional injuries. Mr. Broussard was treated at Moss Regional for this incident as well when he presented himself to the emergency room complaining of neck, back, right leg, and left forearm pain. The emergency room physician concluded that Mr. Broussard suffered from an acute lumbar sprain and from a lacerated left elbow. He received stitches in his left forearm, was given pain medication, and released.

|sThe next day, Mr. Broussard sought treatment at the Louisiana State University Health Sciences Center’s Emergency Care Center in Shreveport, Louisiana (LSU Shreveport). There, he complained of blood in his urine, pain in his chest, left foot, and right ankle, and an abrasion to his lower right leg. X-rays and CT scans were performed, which revealed a right inguinal hernia, transverse process fractures at TI, L2, and L3 on the left, and two fractured ribs on his left side. After a negative assessment by the Neurosurgery Department, Mr. Broussard was released to return home.

On August 15, 2007, Mr. Broussard returned to LSU Shreveport after his family reported him being disoriented and hallucinating after he abruptly stopped his pain medications. He was hospitalized for five days while undergoing evaluation by the psychiatry department. He was discharged pursuant to three diagnoses on August 21, 2007: delirium secondary to benzodiazepine withdrawal, hypertension, and major depressive disorder.

On October 3, 2007, Mr. Broussard filed a disputed claim for compensation against his employer seeking indemnity benefits and medical treatment as well as penalties and attorney fees for Country Club Auto Repair’s failure to provide these benefits. After issue was joined, the WCJ authorized a one-time evaluation by Dr. Dale Bernauer, a Lake Charles orthopedic surgeon.

Trial on the merits initially occurred on April 8, 2009. On July 10, 2009, the WCJ rendered judgment finding that Mr. Broussard had suffered a work-related accident on July 25, 2007, and awarded him weekly temporary total disability benefits (TTD) of $469.52 payable from the date of the accident until modified in the future. The WCJ also awarded Mr. Broussard all reasonable and necessary medical treatment [4as might be determined by Dr. Bernauer and awarded him penalties of $2,000.00 for his employer’s failure to pay indemnity benefits, $2,000.00 for his employer’s failure to provide medical benefits, and $11,800.00 in attorney fees.

Thirteen days later, on July 23, 2009, Country Club Auto Repair filed a motion for new trial, asserting that it had acquired evidence of fraudulent statements made by Mr. Broussard during his testimony at trial. Country Club Auto Repair subsequently amended its answer to formally raise allegations of fraud on the part of Mr. Broussard. Over Mr. Broussard’s objections and his own reservations, the WCJ granted the employer’s motion for new trial and heard the matter a second time on January 27, 2010. The only changes in the judgment resulting from the second trial related to the nature of the weekly benefit and the amount of the attorney fee. Instead of awarding TTD benefits, the WCJ changed the award to supplemental earning benefits (SEBs) with a zero rate earning capacity. Additionally, the WCJ increased the attorney fee award by $5,000.00 to $16,800.00.

Country Club Auto Repair suspensively appealed the WCJ judgment, asserting five assignments of error:

1. The Trial Court erred in not finding fraud under 28:1208 by finding that plaintiff did not deliberately make false statements under oath about his ability to work, his ability to perform activities, and the child support lien in order to obtain workers’ compensation benefits.
2. The Trial Court erred in finding that the injuries claimed by plaintiff were caused by the alleged work accident of July 25, 2007.
3. The Trial Court erred in not finding that the subsequent motor vehicle accident of August 10, 2007 was the intervening cause of plaintiffs disability and medical treatment.
4. The Trial Court erred in finding plaintiff to be entitled to disability benefits from July 25, 2007 to the present since plaintiff failed to prove disability related to the work accident.
|fi5. The Trial Court erred in assessing penalties and attorney fees against the employer because the employer had reasonably controverted the claim.

Mr. Broussard answered this appeal, seeking an additional award of attorney fees for the work his counsel has performed on appeal.

OPINION

The standard of review applying to factual findings in workers’ compensation matters is the manifest error — clearly wrong standard. Vidrine v. Teche Elect. Supply, L.L.C., 08-1287 (La.App. 3 Cir. 4/1/09), 6 So.3d 1012, writ denied, 09-964 (La.6/19/09), 10 So.3d 739.

Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander [v. Pellerin Marble & Granite, 93-1698], 630 So.2d [706,] 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir. [6/27/03]), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105.

Dean v. Southmark Contr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.

La.R.S. 23:1208 Fraud Defense

Country Club Auto Repair’s first assignment of error relates to statements made by Mr. Broussard in his testimony at the April 8, 2009 trial. Mr. Broussard testified that he was unable to return to work because he could not bend repetitively, maintain a bent position, or put weight on his knee. Country Club Auto Repair bases its fraud defense on surveillance videos taken by two different investigators over two periods: July 22-24, 2009, and October 20-23, 2009.

The first surveillance video was filmed by Robert Jerry DeFatta, a private | (¡investigator and owner of DeFatta & Associates Investigative Services. According to Mr. DeFatta, he learned that Mr. Broussard might be working at Auto Styling, a Lake Charles automobile customizing, painting, and body shop owned by Mr. Ray Guillory, and on July 21, he went to the establishment and spoke with Mr. Guillory concerning a paint job for his vehicle. In the conversation, he asked Mr. Guillory if Mr. Broussard was there and was informed that Mr. Broussard had left early that day but would be there the next day.

During the three days that followed, Mr. DeFatta obtained approximately thirty minutes of video relating to Mr. Brous-sard. The video depicts Mr. Broussard emptying a trash can into a dumpster; talking to the employees working on cars; talking to customers and inspecting damaged vehicles; climbing into and out of a semi-truck; helping to unload one tire from the back of a car and rolling it into the shop; walking around vehicles and writing what appears to be estimates; and bending into a vehicle for several minutes while rubbing at a stain on the floor or floor matt. Based on what Mr. Guillory told him and what he observed during the three days of surveillance, Mr. DeFatta concluded that Mr. Broussard worked for Mr. Guillory at the Auto Styling business. However, he admitted that he never observed what Mr. Broussard may or may not have done inside the shop itself and that he never saw Mr. Broussard perform any heavy-duty body work.

The second surveillance video was filmed by Wallace Dempsey Young, a private investigator with Littleton’s Claims Services in Lake Charles, and an associate. Mr. Young testified that they were unable to obtain any video on October 21 because Mr. Broussard remained in the office on that day, and they could not see what he was doing. He testified that on October 22, he observed Mr. Broussard |7working with another employee on a fender and in the detail area. However, even then, he was only able to see Mr. Broussard walking in and out of the shop area as he could not clearly observe the area from his surveillance position. On October 23, the most he saw was Mr. Broussard working in the detail area and helping sand and change a mirror on a truck.

Mark Perkins, the owner of Master Mechanics, a Lake Charles automobile mechanics shop, testified that he observed Mr. Broussard at the former Auto Styling location leased from him between 2006 and 2008, but admitted that he only saw Mr. Broussard there sporadically and that he never saw him perform any physical labor; rather, he acted more in an advisory role. He further testified that Mr. Broussard wrote approximately five estimates for him at no cost in either 2007 or 2008.

On the other hand, Paul Areeneaux, a friend of both Mr. Broussard and Mr. Guil-lory and the father of Mr. Broussard’s girlfriend, testified that he was present in Mr. Guillory’s business establishment several times per week for two to three weeks beginning in July 2009, assisting Mr. Guil-lory with a frame machine he had sold him. During his visits to the shop, he never saw Mr. Broussard working, although he acknowledged that Mr. Broussard might have dropped by while he was there.

When called to testify, Mr. Guillory acknowledged that he had known Mr. Brous-sard since childhood and that Mr. Brous-sard often stopped by the shop when he was unemployed, but he denied ever employing Mr. Broussard. He stated that when Mr. Broussard would drop by, he would perform little odds and ends, run errands, or render him any assistance he could — but as a personal favor and not as an employee. According to Mr. Guillory, the only time he paid Mr. Broussard was sometime before June or July of 2009 when he paid him $300.00 for assistance in ^writing an estimate for a motor home. Past that payment, the most Mr. Guillory did for Mr. Broussard was to repay his kindness in helping out around the shop by purchasing him lunch from time to time.

Mr. Guillory did acknowledge that Mr. Broussard has a key to the shop, but he denied that he had the responsibility of opening the shop each morning. That job was assigned to an employee of the shop, Carlton Foreman, although he acknowledged that he would not mind if Mr. Broussard were to open the shop from time to time.

With regard to his conversation with Mr. DeFatta, he acknowledged that he recalled being visited by the investigator. He stated that Mr. DeFatta claimed to be hunting someone to perform insurance work for an insurance company he represented. When Mr. DeFatta asked him if he had anyone who could help him if he got behind in his work, he replied that his friend, Mr. Broussard, could assist him in writing estimates. According to Mr. Guil-lory, he brought up Mr. Broussard’s name to the investigator to make him feel comfortable about doing business with Auto Styling. However, he emphatically denied that Mr. Broussard actually wrote estimates for Auto Styling.

Mr. Guillory also acknowledged that he loaned Mr. Broussard a truck owned by him and his brother. However, he testified that the loan had nothing to do with his business and was intended to provide Mr. Broussard with personal transportation for him and his daughter. The vehicle was not being used, according to Mr. Broussard, and it was better to have it driven than to allow it to sit around unused.

Carlton Foreman, the man whom Mr. Guillory testified was assigned the task of opening the business every day, testified that Mr. Broussard was often at the Auto Styling shop. However, he denied that Mr. Broussard worked at the shop. Instead,disaccording to Mr. Foreman, Mr. Broussard would do little more than sit around, drink coffee, and visit with Mr. Guillory and others who might be present. According to Mr. Foreman, body work and detailing were his responsibility, but because he was just beginning his career, he welcomed pointers from the more experienced Mr. Broussard.

At the second trial, Mr. Broussard testified that he has not worked since his July 25, 2007 accident, but acknowledged that he did spend time at the Auto Styling shop. He acknowledged providing Mr. Guillory with advice, handing him tools, picking up lunches, and running errands. However, he denied exercising any supervising authority over Mr. Guil-lory’s employees, although he did acknowledge advising them concerning a particular problem when asked. He also acknowledged that on occasion, he examined vehicles for Mr. Guillory and provided him with information to be used in completing estimates on the cost of repair. Mr. Guillory handled the actual calculations involved in preparing the estimate because although he had previously owned a body shop for eight years, Mr. Broussard could only approximate the cost of repair because he did not have the expertise to enter the data into a computer to properly calculate the repair cost.

Other than the $300.00 testified to by Mr. Guillory, Mr. Broussard denied receiving income from Mr. Guillory. Additionally, he stated that the $300.00 payment occurred after the initial trial, and, therefore, he did not fail to mention it in his testimony because it had yet to happen. He acknowledged having a key to Mr. Guillory’s shop as well as possession of Mr. Guillory’s truck.

Country Club Auto Repair also asserts that Mr. Broussard made false statements in the first trial concerning a child support lien against him. In his 11ftdeposition, he had stated that he was subject to a child support lien, but at the first trial, he had testified that he and his former wife had worked out the support issue and that he only owed her a couple of thousand dollars. At the second hearing, Mr. Broussard acknowledged that he still had a child support lien against him, that it was in effect at the time of the first trial, that it amounted to approximately $30,000.00, and that his former wife was aware of his claim against his former employer.

At the end of the second trial, the WCJ denied the employer’s fraud claim in its oral reasons for judgment, stating in pertinent part that:

The heart of the defendant’s argument, especially his request for a new trial, is the accusation of fraud.
I listened carefully to the defendant’s position on this matter and have concluded that Mr. Broussard was seen standing, walking, and sitting in a body shop during the period he was [unable] to work. Not a single witness that I heard saw him doing any physical labor in what looked like to be rather sporadic visits to his friend’s automobile repair shop. No surveillance showed him painting a car. Nothing showed him with a hammer in his hand. He did seem to carry a clipboard on occasion, but nobody submitted any evidence that he was ever paid a salary or a commission or anything resembling that on a regular fashion.

Louisiana Revised Statutes 23:1208(A) provides in, pertinent part, that “[i]t shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” In order to establish fraud, an employer must prove: (1) a false statement or misrepresentation by the employee, (2) that was willfully made, and (3) made for the purpose of obtaining workers’ compensation benefits. Campbell v. City of Leesville, 07-1061 (La. App. 3 Cir. 1/30/08), 974 So.2d 908, writ denied, 08-491 (La.4/25/08), 978 So.2d 366. Proof of fraud results in an employee’s forfeiture of the right to recover any workers’ compensation benefits. La.R.S. 23:1208(E).

|, iAfter reviewing the evidence, including the surveillance video, we find no manifest error in the WCJ’s conclusion that Country Club Auto Repair failed to establish fraudulent actions by Mr. Brous-sard sufficient to trigger the forfeiture provisions of La.R.S. 23:1208(E). In all of the surveillance videos, Mr. Broussard arrived before the shop employees and opened the shop only once. His girlfriend was present with him at the time, and the video does not establish whether she or Mr. Broussard actually opened the door. At all times when he was being videoed at the shop, Mr. Broussard wore shorts and a tee shirt. He generally left at or after closing time; sometimes carried a clip board and appeared to be examining vehicles; was seen talking to other employees and what appeared to be customers; got down on his knees and bent down several times; once emptied an office-sized trash can; moved vehicles, including a semi-truck, around the lot; and he used a palm sander on one occasion to sand the side of a truck. Still, as pointed out by the WCJ, none of the video depicts Mr. Broussard performing actual automotive body work, other than the use of the palm sander on one occasion.

The WCJ obviously found Mr. Brous-sard to be a credible witness as well as that of the other witnesses testifying on his behalf relative to the fraud issue as the only thing subsequently changed from the previous judgment was the determination that Mr. Broussard was capable of performing some type of work. The WCJ is in the best position to judge the witnesses’ credibility, and we find no manifest error in the WCJ’s factual findings based on its credibility analysis. We find no merit in this assignment of error.

_[i2 Cause of Injury

In its next two assignments of error, Country Club Auto Repair argues that the WCJ erred in finding that Mr. Broussard’s injuries were caused by the July 25, 2007 work accident and in failing to find that the August 10, 2007 car accident intervened as the cause of his disability and medical treatment.

An employee is entitled to compensation benefits if he or she suffers a personal injury by an accident arising out of and in the course of employment. LSA-R.S. 23:1031. This court has stated that under this statute a successful claimant’s proof must show personal injury which is the result of an accident, which accident arises out of and in the course of employment. Guillory v. United States Fidelity & Guaranty Insurance Company, 420 So.2d 119, 122 (La.1982). The chain of causation required by the statutory scheme as adopted by the legislature in LSA-R.S. 23:1031 is that the employment causes the accident, the accident causes injury, and the injury causes disability. Id. The employee has the burden of proving, by a preponderance of the evidence, that the resulting disability is related to an on-the-job injury. See Chapman v. Belden Corporation, 428 So.2d 396, 400 (La.1983). (Medical testimony, along with claimant’s testimony, suggested only a possibility of a causal relation between his employment and his disability.); see also, Anthony v. BE & K Construction, 32,729 (La.App. 2 Cir. 5/10/00), 760 So.2d 608, unit denied, 2000-1673 (La.9/15/00), 768 So.2d 1280.

Buxton v. Iowa Police Dep’t., 09-520, pp. 11-12 (La.10/20/09), 23 So.3d 275, 283. Additionally,

Under certain circumstances an aggravation of an injury initially sustained at work is regarded as compensable, obligating the employer to continue paying compensation benefits, even though the aggravation develops away from the premises and when the claimant is no longer employed by the employer. Stewart v. Hospitals Affiliates International, Inc. of Baton Rouge, 404 So.2d 944, 945 (La.1981) (A fall at home was causally connected to an at-work injury that weakened claimant’s leg.) The aggravation is regarded as a development of the initial accident even though the aggravation develops away from the employer’s premises after employment has terminated. Id. The Louisiana jurisprudence is consistent with “[m]ost jurisdictions” wherein the general rule is that “natural consequences that flow from the primary injury are compensable absent an independent intervening cause.” (Emphasis supplied.) Karenina M. Darmer, Worker’s Compensation for Off-Site Aggravation of Employment-Related Injuries-Blackwell v. Bostitch, 591 A.2d 384 (R.I.1991), 26 Suffolk U.L.Rev. 529, 532-533 n. 18, citing Hanover Insurance Company v. Allstate Insurance Company, 554 So.2d 1261, 1264-1265 (La.App. 1 Cir.1989) (Parties stipulated that the off-the-job automobile accident occurred before claimant had fully recovered from surgery to his knee necessitated by a work injury; the surgeon testified the knee was still highly susceptible to injury.) Commentary has noted that “[i]f, as might be the case with an automobile accident following the work-related accident, there is no causal relationship between the two injuries, any complications [ought] properly to fall outside the employer’s responsibilities.” 13 H. ALSTON JOHNSON, III, LOUISIANA CIVIL LAW TREATISE: WORKERS’ COMPENSATION § 236 at 555 (4th ed.2002).
The key question is the relationship between the second injury and the initial, work-related injury. The courts have held that an accident occurring away from work is compensable, where the work-related injury has not healed at the time of the accident, and as such, rendered the employee susceptible to further aggravating injuries. See Hughes v. General Motors Guide Larrup Division, 469 So.2d 369, 376 (La.App. 2 Cir.1985). (Testimony of two physicians, plus that of lay witnesses, established an “overwhelming preponderance of the evidence” of a causal relationship between the two injuries.)
Another example is Carter v. Rock-wood Insurance Company, 341 So.2d 595 (La.App. 2 Cir.1977), which arose when an employee’s continued weakness in her leg initiated by an on-the-job accident caused a fall in the bath tub. The second accident, which resulted during normal activity, was a natural and anticipatable consequence of the work-related accident. The work-related injury prevented plaintiff from catching herself and thereby was a contributing cause of the fall itself; the work-related injury caused plaintiff to fall with greater force than she otherwise would have, contributing to the severity of the fall; the work-related injury had caused osteoporosis of the leg bone and thereby contributed to the severity of the second injury. The court concluded the nature of the original knee injury was such that the chance of subsequent re-injury was a foreseeable risk and consequence. Carter, 341 So.2d at 598-600.

Id. at 283-84 (alterations in original).

In the matter before us, the employer has not appealed the WCJ’s determination that Mr. Broussard suffered a work-related accident, and, therefore, that issue is not before us. Thus, the only issue before us is whether the August 10, 2007 automobile accident intervened to cause Mr. Broussard’s current disability.

114At the outset, we note that there exists very little medical evidence of Mr. Broussard’s physical condition between the day of the work-related accident and the automobile accident of August 10, 2007. This lack of medical evidence is caused partially because Country Club Auto Repair fired Mr. Broussard immediately after he reported his accident and refused, thereafter, to provide him with any medical treatment other than the one court-ordered evaluation by Dr. Bernauer which took place after the automobile accident.

Dr. Bernauer did not see Mr. Broussard until May 28, 2008. Mr. Broussard provided the doctor with a history of the work-related injury as well as the injuries he sustained in the automobile accident. After performing a physical examination, Dr. Bernauer ordered MRIs of Mr. Brous-sard’s lumbar spine, left shoulder, and right knee. He noted also that Mr. Brous-sard suffered from a preexisting neck and back condition.

Mr. Broussard returned to Dr. Bernauer on June 25, 2008, with continuing complaints of pain in his right knee, lower back, and left shoulder. The MRIs had not yet been performed; Dr. Bernauer instructed Mr. Broussard to return a month later for reevaluation. There is no record that this occurred.

Dr. Gregory Gidman, a Lafayette, Louisiana orthopedic surgeon, examined Mr. Broussard on September 24, 2008, at Country Club Auto Repair’s request. At that time, Mr. Broussard complained of a sharp, dull pain in his lower back and right | lslateral thigh down to the lateral three toes of his foot, and left shoulder pain, anteriorly. Mr. Broussard described the back pain to the doctor as varying from moderate to severe; the knee pain to moderate; and the shoulder pain to moderate. He told Dr. Gidman that moving and walking made his pain worse but that the pain was relieved by standing still, stretching, and moving around or lying down.

After conducting an examination and a medical record review, Dr. Gidman opined a diagnosis of chronic lower back pain, left shoulder strain, and right knee strain. He found the clinical examinations of Mr. Broussard’s lumbar spine, left shoulder, and right knee to be essentially normal, with no surgical lesions identified. Dr. Gidman recommended that Mr. Broussard undergo a self-directed home therapy program and that he be encouraged to return to work. He said that he would restrict Mr. Broussard to light duty work initially and that he would restrict him from medium to very heavy lifting, repetitive prolonged forward stooping, prolonged and/or repetitive bending, long-lasting unchanged positions, and avoidance of any activities requiring sudden maximum efforts or exposure to continuous vibratory motions.

Dr. Gidman testified that MRIs of Mr. Broussard’s lower back, left shoulder, and right knee could be obtained, but he opined that any substantial pathology identified from the MRIs would likely be a result of the August 10 car accident. Dr. Gidman stated that he examined post-accident pictures of Mr. Broussard’s car. He described the “entire central third of the windshield was totally destroyed.” He further stated that “it would be more probable, due to the significant trauma of his motor vehicle accident, that any pathology in his knee or lumbar spine would be more directly related to his motor vehicle accident than his Workers’ Compensation injury.”

|1fiDr. Benipal testified to Mr. Brous-sard’s long history of back pain prior to his work-related accident. With regard to his current back condition, Dr. Benipal stated that Mr. Broussard’s injury is related to both his work accident and the August 10, 2007 car accident. However, he declined to give an opinion as to which accident caused Mr. Broussard’s injury based on his opinion that this determination does not relate to his specialty of internal medicine. He did state that because of Mr. Broussard’s past accident history, he is prone to back injuries.

Mr. Broussard testified that while he had the car jacked up on July 25, he was up underneath the car’s fender well with his shoulder, pushing on the car in order to move it onto the ramp. When the jack slipped off, he stated that the car fell back on top of him. He said that he felt pain in his back as a result of this incident, which he reported to Mr. Crisp. Mr. Broussard testified that when he determined the next day that he was unable to work, he again reported the injury to Mr. Crisp, and then to Mr. Berlin, who fired him.

Mr. Broussard testified that when the vehicle fell on him, he immediately felt pain in his back. He stated that in the August 10, 2007 automobile accident, he hit the corner post of the ear’s passenger-side front windshield with his head and hit the windshield with his arms. He asserted that, thereafter, his lower back pain became much more severe, but that in time it improved. However, he stated that the lower back pain related to his work-related injury remained the same.

With regard to the effect of his prior injuries, Mr. Broussard testified that he was still taking pain medication as of the time of his work accident. However, prior to the July 25, 2007 work-related accident, his pain was sporadic.

In his oral reasons for judgment, the WCJ found little variance between the 117evidence presented at the first trial and that introduced at the second trial. The WCJ stated in part:

The fact is Mr. Broussard had a preexisting back problem and that he regularly and rather openly took pain medication while at work is also information which was readily displayed and previously discussed.
One of the arguments most strenuously urged by the defendants centers around the undisputed fact that on August the 10th of 2007, which was about three weeks or so after the alleged accident at work, Mr. Broussard was involved in an automobile accident. The employer insists that even if Mr. Brous-sard is disabled or injured, then the root cause of his problem is probably the traffic accident and not the work-related accident.
Reduced to its barest essentials, the employer’s position is that Mr. Brous-sard is attempting to piggy back his automobile injury onto a workers’ compensation claim. In a word, Mr. Brous-sard has and is committing out and out fraud, as the employer sees it.
The medical records, even those from the employer’s physician, paint a picture of a worker with back problems whose situation was aggravated by a work accident. The motor vehicle accident, according to the medical records, in all likelihood aggravated his back problems even more. Employee[’s] counsel is correct in its assertion that no doctor ever opined that the injury from the work accident had healed, or even improved, by the time of the auto accident.
The clear inference from these reports is that after the Honda work incident, his lower back was very vulnerable to aggravation, which apparently was provided by the auto accident.
There’s no substantive evidentiary support, certainly nothing persuasive, for the employer’s position that the motor vehicle accident on August the 10th precludes the claimant from pursuing a workers’ compensation claim for the July 25th incident at work.

After considering the record before us, we cannot say that the WCJ erred in finding that Mr. Broussard’s injuries were caused by the July 25, 2007 work accident or that the August 10, 2007 car accident was not an intervening cause of the disability for which he seeks treatment. In reaching our conclusion, we note that Country Club 11sAuto Repair’s efforts to disprove Mr. Broussard’s claim is fatally defective due to the dearth of medical evidence following the work accident. Because Country Club Auto Repair refused to provide any medical treatment to Mr. Broussard until ordered to do so by the WCJ on May 27, 2008, the WCJ was limited to considering Mr. Broussard’s testimony and Moss Regional’s medical records in determining whether the work accident caused his lower back injury and the further effect that the August 10 accident had on his lower back. As both of these determinations required the WCJ to reach decisions as to Mr. Broussard’s credibility (and we have already affirmed that decision), we will not disturb these reasonable evaluations on appeal. Accordingly, we affirm the WCJ’s finding that Mr. Broussard’s injuries were a result of the July 25, 2007 work-related accident. We further affirm the WCJ’s finding that the August 10, 2007 car accident was not an intervening cause of his disability and required medical treatment.

Disability

In its next assignment of error, Country Club Auto Repair argues that the WCJ erred in finding that Mr. Broussard is entitled to indemnity benefits from the date of his work accident, as he failed to prove a disability as a result of this accident.

Mr. Broussard testified that he has not worked since his accident, as he still suffers pain in his lower back. He explained that body work includes replacing roofs, quarter panels, bed sides, cradles, and bumpers — and that this involves heavy lifting as some bumpers weigh between 100-120 pounds. He did state, however, that he could perform some light-duty body work such as changing a headlight or using a sander, so long as these duties did not require standing and squatting too long — activities that aggravate his back. Additionally, while he stated that he could | ,9do some bending, repetitive bending causes him excruciating pain. On some days, according to Mr. Broussard, the pain is so severe that he is forced to remain in bed. He stated that while he might have three to four decent days, when his back begins to hurt, the pain can persist for as much as a week at a time. His only relief is bed rest and constant hot baths.

Since his accident, Mr. Broussard stated that he has only earned $800.00 from assisting Mr. Guillory with the estimate for a motor home. However, he denied working for Mr. Guillory. He stated that while at Auto Styling, he sits around, drinks coffee, talks, and offers advice to Mr. Guillory. He also admitted running some errands for Mr. Guillory and writing down information for estimates; he denied completing the estimates. He stated that Mr. Guillo-ry takes the information he has gathered and enters it into the computer in order to compile the exact amount.

Mr. Broussard testified that his only income since the accident was the $800.00 paid to him by Mr. Guillory and that Country Club Auto Repair has not offered him vocational rehabilitation assistance or any light duty position. If a light duty position were offered, Mr. Broussard asserted, he would return to work.

With regard to physical restrictions, Dr. Gidman suggested that Mr. Broussard should be restricted to light duty work, and this would preclude medium to heavy lifting, prolonged forward stooping, prolonged and/or repetitive bending, long-lasting unchanged positions, and any activities requiring sudden maximum efforts or exposure to continuous vibratory motions. Dr. Benipal suggested that on May 20, 2008, he found Mr. Broussard incapable of returning to any type of work and suggested that he would recommend that he not return to work for at least three |Mmonths.

The WCJ awarded Mr. Broussard TTD benefits based on the evidence presented at the first hearing. However, after the second hearing, the WCJ changed Mr. Broussard’s indemnity benefits from TTD benefits to SEBs and based the SEBs on a zero earning capacity.

Louisiana Revised Statutes 23:1221(3)(a) provides an employee with SEBs if he proves by a preponderance of the evidence his inability to earn ninety percent or more of his pre-accident wages as a result of his work accident, under the facts and circumstances surrounding his claim. Williams v. Averitt Express, Inc., 08-1343 (La.App. 3 Cir. 4/1/09), 7 So.3d 160. Once the employee satisfies his burden, the burden shifts to the employer to prove that the employee is physically capable of performing a certain job, that the job was offered to him, or that it was available to him or within his or the employer’s geographic region. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; La. R.S. 23:1221(3)(c)(i). An award of SEBs is a finding of fact, which will not be reversed on appeal absent a finding of manifest error. Cooper v. St. Tammany Parish Sch. Bd., 02-2433 (La.App. 1 Cir. 11/7/03), 862 So.2d 1001, unit denied, 04-434 (La.4/23/04), 870 So.2d 300.

The WCJ’s June 7, 2010 judgment states that Mr. Broussard’s average weekly wage is $704.24, and Country Club Auto Repair has not appealed that determination. Based on the light-duty restrictions placed on Mr. Broussard by Dr. Gidman, we find no error in the WCJ finding that Mr. Broussard was unable to perform the heavy work required of a body technician. Moreover, the record is devoid of any efforts made by Country Club Auto Repair to assist Mr. Broussard in returning to gainful | ⅞1 employment. Rather than helping Mr. Broussard, all of Country Club Auto Repair’s efforts centered on proving fraud on Mr. Broussard’s part in order to evade its workers’ compensation obligations. We find no merit in this assignment of error and affirm the WCJ’s judgment awarding Mr. Broussard SEBs, based on a zero-rate earning capacity.

Penalties and Attorney Fees

In its final assignment of error, Country Club Auto Repair argues that the WCJ erred in assessing it with penalties and attorney fees as it reasonably controverted Mr. Broussard’s claim. We find this assertion by Country Club Auto Repair to be without any merit. Country Club Auto Repair did nothing to investigate the claimed accident or to assist Mr. Broussard after he reported his work accident. Instead, it fired him as soon as he reported his injury. Although it gave no reason for Mr. Broussard’s termination in the July 26, 2007 statement it presented to him, it later redacted its records on July 27, to state that it terminated Mr. Brous-sard due to “[ujnacceptable quality of work, leaving work without permission, inferior production time[.]” It further stated that Mr. Broussard “created a scene at the work place after being terminated] ... had to eventually call police to have him escorted off the premisis [sic] ... Now is saying he has a WC injury ... did not report this until after he was fired[.]”

Louisiana Revised Statutes 23:1201(F) provides for the imposition of penalties when an employer fails to provide indemnity benefits or medical benefits to its injured employee and, in this case, all of Country Club Auto Repair’s actions focused on avoiding its obligations at all costs. We find no error in the WCJ’s award of $4,000.00 in penalties and $16,800.00 in attorney fees.

122Mr. Broussard’s Answer to the Appeal

We award Mr. Broussard an additional $5,000.00 in attorney fees for the work performed by his counsel in successfully defending this appeal. Minor v. J. & J. Carpet, Inc., 10-45 (La.App. 3 Cir. 6/2/10), 40 So.3d 434.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the workers’ compensation judge in all respects. We render judgment in favor of Michael Broussard and against Country Club Auto Repair, Inc. in the amount of $5,000.00, said judgment representing an award of attorney fees for legal services rendered by Mr. Broussard’s counsel on appeal in successfully defending the workers’ compensation judge’s judgment. Finally, we assess all costs of this appeal to Country Club Auto Repair, Inc.

AFFIRMED AND RENDERED.

      . The WCJ rejected the employer's assertion that a compensable accident did not occur and that issue is not before us on appeal.

        . This was so despite the fact that Country Club Auto Repair presented evidence of Mr. Broussard's criminal record in the form of a conviction for carnal knowledge of a juvenile as well as the inconsistencies of his testimony with regard to the child support lien.

      . The entire medical record is contained in the treatment Mr. Broussard received from the Moss Regional emergency room on July 27 and August 7, 2007.

      . Mr. Broussard had a history of back injuries extending as far back as 1998, when he injured his back after stepping off a pipe rack and falling. This accident prevented him from working for three years. In 2001, he suffered an abrupt onset of parascapular pain after throwing a bundle of newspapers. In 2006, he was involved in an automobile accident wherein his vehicle was rear ended by another. At the time of the work-related accident now before us, he was openly taking pain medication whenever the pain in his back flared up.

      . It is undisputed that Country Club Auto Repair has paid no weekly benefits and no medical expenses.