author: AMY, Judge.

text:
    STATE of Louisiana v. Richard D. JASPER.
    No. 11-488.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      J. Phil Haney, District Attorney, New Iberia, LA, Walter J. Senette, Jr., Assistant District Attorney, Franklin, LA, for Appellee, State of Louisiana.
    Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Richard D. Jasper.
    Richard D. Jasper, Epps, LA, In Proper Person.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS and MARC T. AMY, Judges.
   AMY, Judge.

| ]A jury found the defendant guilty of aggravated battery. After the State instituted habitual offender proceedings against the defendant, he was adjudicated a third felony offender and sentenced to twenty years at hard labor. The defendant appeals, asserting that the evidence presented at trial was insufficient to support his conviction. For the following reasons, we affirm.

Factual and Procedural Background

The State initially alleged that the defendant, Richard D. Jasper, committed an aggravated burglary in connection with an attack on Stephen Louviere in Mr. Louvi-ere’s home. The charges were amended to aggravated battery and, after a jury trial, the defendant was found guilty on the sole count of aggravated battery. The State instituted habitual offender proceedings, alleging that the defendant was a third felony offender. After a hearing, the trial court initially imposed a sentence of ten years at hard labor on the aggravated battery charge, but found that the defendant was a third felony offender, vacated the original sentence, and imposed a sentence of twenty years at hard labor pursuant to the habitual offender statute. The defendant then made an oral motion for reconsideration of sentence, which was denied by the trial court.

The defendant appeals, asserting as his sole assignment of error that the evidence presented at trial was insufficient to support his conviction. For the following reasons, we affirm.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, this court reviews all criminal appeals for errors patent on the face of the record. Our review of the record reveals one error patent. The transcript of the habitual offender proceeding does not indicate |2that the defendant was advised of his right to remain silent, his right to a hearing, and his right to have the State prove its case against him.

A panel of this court previously addressed the requirement that a defendant be informed of his rights at a habitual offender hearing, stating:

Although the right to remain silent is not specifically set forth in La.R.S. 15:529.1, in State v. Johnson, 432 So.2d 815 (La.1983), writ granted on other grounds, 438 So.2d 1113 (La.1983); appeal after remand, 457 So.2d 1251 (La.App. 1 Cir.1984), appeal after remand, 471 So.2d 1041 (La.App. 1 Cir.1985), the Louisiana Supreme Court held this statute clearly recognizes the defendant has the right to remain silent, and the statute implicitly provided defendant should be advised by the court of his right to remain silent. The court in Johnson, relying on State v. Martin, 427 So.2d 1182 (La.1983), further stated La.R.S. 15:529.1(D) specifically provides defendant shall be advised of his right to a formal hearing and to demand that the state prove its case. This court has held “where a defendant was not advised of his right to remain silent before admitting his prior convictions at a habitual offender hearing, defendant’s acknowledgment is insufficient where the acknowledgment is the only proof of prior convictions offered by the state.”

State v. Coleman, 96-525, pp. 12-13 (La.App. 3 Cir. 10/7/98), 720 So.2d 381, 387.

However, such an omission is subject to harmless error analysis, requiring that this court determine whether the proceedings as a whole were fundamentally fair and afforded the defendant due process of law. State v. Bias, 10-1440 (La.App. 3 Cir. 5/4/11), 63 So.3d 399. In cases where the defendant neither admitted the allegations of the habitual offender bill of information nor acknowledged his prior offenses and where the state offered sufficient evidence regarding the defendant’s identity and prior convictions, this court has previously found that any error in failing to inform the defendant of his rights was harmless. Bias, 63 So.3d 399; State v. Washington, 96-656 (La.App. 3 Cir. 1/15/97), 687 So.2d 575.

In this case, a habitual offender/sentencing hearing was held three months after the State filed the habitual offender bill of information. The State sought to have the defendant adjudicated a third felony offender, alleging that the defendant had been | spreviously convicted in the State of Missouri of two counts of distribution of a controlled substance (cocaine) and one count of burglary in the first degree.

In support of these allegations, the State introduced into evidence the transcript of the defendant’s testimony at trial from May 4, 2010. In that testimony, the defendant admitted that he had prior convictions for two drug-related offenses and one for “stealing.” We note that the trial court presided over both the defendant’s jury trial on the instant charge and the habitual offender hearing. Further, the State introduced the bill of information, minutes, trial transcript and sentencing transcript from the defendant’s conviction on two counts of distribution of a controlled substance (cocaine) under docket numbers CR592590FX and CR592335FX in the Circuit Court of Missouri, Buchanan County. The State also introduced the court record from the defendant’s burglary in the first degree conviction under docket number CR2921FX from the Circuit Court of Missouri, Andrew County. Additionally, the State introduced a “pen pack” from the State of Missouri, which contained the defendant’s dates of convictions, incarcerations, and discharges from custody and supervision. The pen pack contained a picture of the defendant and indicates that the defendant’s parole on his previous convictions was terminated on December 19, 2005. No objection was made to the State’s evidence.

The defendant testified at the habitual offender/sentencing hearing, and admitted to his prior convictions. In this case, the defendant’s admission was voluntary and he was represented by counsel. Further, a full habitual offender hearing was held and the State offered sufficient other evidence to support the trial court’s determination that the defendant was a third felony offender. See State v. Samuel, 08-100 (La.App. 8 Cir. 5/28/08), 984 So.2d 256, writs denied, 08-1419, 08-1487 (La.2/20/09), 1 So.3d 493, 495. Thus, we find that the trial court’s omission in advising 14the defendant of his rights was harmless error and he was afforded a fundamentally fair hearing.

Sufficiency of the Evidence

In his sole assignment of error, the defendant contends that the evidence adduced at trial was insufficient to support his conviction for aggravated battery. He specifically argues that the State’s witnesses did not offer credible testimony and that the evidence shows that he acted in self-defense.

When a sufficiency of the evidence claim is raised on appeal, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Macon, 06-481 (La.6/1/07), 957 So.2d 1280 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Further, the trier of fact is responsible for determining the weight of the evidence and may accept or reject, in whole or in part, the testimony of any witness. Id. The appellate court should not assess credibility or re-weigh the evidence and may only intrude upon the fact-finding function of the jury to the extent necessary to satisfy the Jackson standard of review. Id.

The defendant was convicted of aggravated battery. Louisiana Revised Statutes 14:34 defines aggravated battery as “a battery committed with a dangerous weapon.” Battery is “the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.” La.R.S. 14:33. Further, as defined in La.R.S. 14:2(A)(3), a “dangerous weapon” is “any gas, liquid, or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” Although a weapon may be “inherently dangerous,” the “dangerousness” of the instrumentality based on the manner in which it is used is a fact for the jury to determine. State v. Ellis, 95-1005 (La.App. 5 Cir. 3/26/96), 672 So.2d 1007, citing State v. Bonier, 367 So.2d 824 (La.1979).

Additionally, in this case, the defendant contended that he acted in self-defense. Louisiana Revised Statutes 14:19 addresses the use of force or violence in defense, stating:

A. The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this Section shall not apply where the force or violence results in a homicide.
B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of force or violence was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:
(1) The person against whom the force or violence was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.
(2) The person who used force or violence knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using force or violence as provided for in this Section and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used force or violence in defense of his person or property had a reasonable belief that force or violence was reasonable and apparently necessary to prevent a forcible offense or to prevent the unlawful entry.

However, an aggressor cannot claim self-defense, “unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” La.R.S. 14:21. It is the defendant’s burden in a non-homicide to establish by a preponderance of the evidence | fithat self-defense was justified. State v. Baker, 08-54 (La.App. 3 Cir. 5/7/08), 986 So.2d 682.

The State and the defendant offered two substantially different versions of the events leading to the stabbing of Mr. Lou-viere. The State contended that, on January 8, 2008, after the defendant found that the windows on his antique car had been broken, he drove in a rage to Mr. Louvi-ere’s house, burst in uninvited and, after fighting with Mr. Louviere and his fiancée, Roxanna Garza, cut and/or stabbed Mr. Louviere in the face, neck and chest. The State contends that the defendant then fled from Mr. Louviere’s house and was apprehended by the police after he sought to turn himself in.

Mr. Louviere testified that he lived on Cromwell Drive with his fiancée and young granddaughter and that the defendant used to live next door to them. According to Mr. Louviere, he had just returned home on his break from work when the defendant burst into his house. Ms. Garza testified that, almost immediately, the defendant started “swinging at” her and hit her on the side of her neck and her head. Both Ms. Garza and Mr. Louviere testified that, after Mr. Louviere tried to intervene, the defendant hit Mr. Louviere and the two ended up fighting. Mr. Louviere also testified that when he demanded to know what the defendant wanted, the defendant said “my car, my car, my car.” Mr. Louvi-ere said he did not know what the defendant meant and denied doing anything to the defendant’s car.

According to his testimony, after the defendant said “this is a knife MF, this is a knife MF, do you feel it, do you feel it,” Mr. Louviere went into his bedroom and retrieved a rifle. Mr. Louviere testified that he cocked the rifle, which ejected an empty cartridge, in order to get the defendant’s attention. However, he testified that [7he did not point the rifle at the defendant and, in any case, it was unloaded. He testified that the defendant refused to leave the house and pushed Ms. Garza into him. Ms. Garza testified that the defendant then slashed Mr. Louviere’s throat. According to her testimony, the two men struggled, and the defendant ended up on top of Mr. Louviere on the couch. Both Ms. Garza and Mr. Louviere testified that the defendant then cut Mr. Louviere on the face and stabbed him in the chest. Mr. Louviere’s testimony was that the defendant then fled.

Ms. Garza corroborated Mr. Louviere’s testimony about the defendant’s behavior and Mr. Louviere’s actions with the rifle. Additionally, she testified that, before Mr. Louviere got the rifle, the defendant was swinging a “shiny object” but that she did not realize what it was. Mr. Louviere’s granddaughter called 9-1-1. Mr. Louvi-ere was taken to the hospital, and he testified that his neck and chest wounds required surgical staples, stitches and plastic surgery. The State entered photographs of Mr. Louviere’s wounds into evidence.

The defendant’s supervisor, Scottie Munnerlyn, testified that, on the date of the incident, he spoke with the defendant on the telephone. According to Mr. Mun-nerlyn, the defendant was upset and told Mr. Munnerlyn he was “going to Cromwell to cut somebody.” Mr. Munnerlyn was sufficiently concerned that he called 9-1-1 and he decided to drive to Cromwell Drive to attempt to intervene. Mr. Mun-nerlyn testified that, when he was about halfway there, the defendant called and told him that “it’s not good,” that he “cut him [and] there’s blood everywhere.” The defendant wanted to turn himself in, so Mr. Munnerlyn made arrangements for the defendant to be taken into custody at a nearby truck stop.

IsThe State also offered into evidence a video of the defendant’s custodial interrogation, which was played for the jury. Therein, the defendant stated that he knew Mr. Louviere was involved in breaking the windows out of the defendant’s car. He also stated that Mr. Louviere knew the reason that the defendant came to Mr. Louviere’s house. However, the defendant did not want to discuss the details because he might need to “make a deal” later. The defendant stated that he would probably serve some time in connection with the incident but that he did not want to serve “a whole bunch.”

In contrast to the State’s version of the crime, the defendant contended that, after he found that the windows on his car had been broken out, he went to Mr. Louvi-ere’s home to confront him because, if Mr. Louviere had not caused the damage himself, he knew who did. The defendant testified, claiming that, although he yelled at Mr. Louviere, he was not physically aggressive until Mr. Louviere put the barrel of a rifle up to his head and cocked it. The defendant contended that his actions thereafter, including cutting Mr. Louviere, were in self-defense.

According to the defendant’s testimony, after he found that his windows had been broken, he drove probably “100 miles an hour” from Broussard to Mr. Louviere’s residence on Cromwell Drive in Coteau. The defendant conceded that he entered Mr. Louviere’s house without permission, but stated that he had not needed permission to enter in the past. The defendant denied that he got into any physical confrontation with Ms. Garza and contended that her testimony to the contrary was because she was lying. According to the defendant, after he asked Mr. Louviere if he knew what happened to the defendant’s car, Mr. Louviere responded that he did not 19break the defendant’s windows. The defendant testified that he started yelling at Mr. Louviere, and that Mr. Louviere started yelling and shoving him.

The defendant claimed that, at this point, he sat down in the living room to try and figure out what was going on. According to the defendant, Mr. Louviere put a rifle against the defendant’s head and told Ms. Garza to get back because he was going to blow off the defendant’s head. The defendant claimed that he heard a “click” as Mr. Louviere pulled the trigger and saw a cartridge hit the floor. The defendant testified that, because he thought Mr. Louviere was trying to kill him, he grabbed the rifle, cutting himself on the rear rifle sights. He further testified that pulled out his work knife and slashed at Mr. Louviere. He.contended that he thought he cut Mr. Louviere’s chest, but that he cut his neck instead. He claimed that, because Mr. Louviere refused to put down the gun, they kept fighting.

According to the defendant, Mr. Louvi-ere and Ms. Garza never told him to leave. He also contended that he would have never taken out the knife if Mr. Louviere had not gotten his rifle. The defendant testified that he did not remember telling Mr. Munnerlyn that he was going to cut someone, but he did not deny that he did so.

Our review of the record reveals that the evidence, viewed in the light most favorable to the prosecution, is sufficient to establish the elements of aggravated battery, i.e., that the defendant intentionally cut Mr. Louviere with a knife. The State and the defendant offered substantially different versions of the altercation at Cromwell Drive. We note that the defendant claimed that he acted in self-defense, however, it was the defendant’s burden to prove this affirmative defense.

Although the defendant contends that the testimony given by State’s witnesses was “incredible,” credibility determinations are the province of the jury, which could have accepted the State’s witnesses’ version of the crime. Further, it was within the | mjury’s purview to find that the defendant was the aggressor in the altercation and that he did not withdraw and, thus, reject the defendant’s contention that he acted in self-defense. See State v. Lafitte, 10-1253 (La.App. 3 Cir. 5/11/11), 63 So.3d 1195; Baker, 986 So.2d 682.

' This assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the defendant’s convictions and sentence.

AFFIRMED.

      . The record variously spells Ms. Garza’s name as "Roxanne” or "Roxanna.” We adopt the spelling from the jury transcript.

      . Copies of Mr. Munnerlyn’s 9-1-1 calls were submitted into evidence but were not played for the jury.

      . Pursuant to a pre-trial ruling, only the first nine minutes and thirty-one seconds of the video was played.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Henry MARANGE, Jr. v. CUSTOM METAL FABRICATORS, INC., et al.
    No. 11-743.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      Kathleen Wigginton Will, Juge, Napoli-tano, Guilbeau, Ruli, Frieman & Whiteley, Metairie, LA, for Defendants/Appellees, Bridgefield Casualty Insurance Company and Custom Metal Fabricators, Inc.
    Gregory Paul Allen Marceaux, Lake Charles, LA, for Plaintiff/Appellant, Henry Marange, Jr.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

h Henry Marange Jr. appeals from a judgment by the office of Workers’ Compensation (OWC) denying him medical treatment, medical expenses, wage benefits, and penalties and attorney fees, for injuries sustained while employed with Custom Metal Fabricators, Inc. Finding that the OWC was manifestly erroneous in its decision to deny benefits, we reverse and render specific awards on each issue.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in failing to find that the claimant sustained a work-related injury;
(2) whether the trial court manifestly erred in failing to find that the claimant was entitled to medical and wage benefits; and
(3) whether the trial court manifestly erred in failing to award penalties and attorney fees.

II.

FACTS AND PROCEDURAL HISTORY

Henry Marange, Jr., was employed as a welder by Custom Metal. On December 28, 2009, while grinding weld seams inside a cone-shaped section of a vessel, his foot slipped on grinding dust, and his body twisted to the left as he fell forward with the weight of the turning grinder and the force of forward motion. He felt burning and pulling in his low back and buttocks but continued to work without reporting the incident. At the morning break, he was called to the phone regarding a family emergency. He left work to assist with his invalid mother’s possible hospitalization, and he did not return to work for the remainder of the day.

|2The following morning, Mr. Marange awoke with burning and pulling in his low back and right leg and required assistance getting out of bed. He called Custom Metal around 7:00 a.m., reported the incident of the previous morning, and asked to be sent to a physician. The employee to whom he had spoken was Karen Porter, the company’s accountant. Ms. Porter called Mr. Marange back thirty minutes later to inform him that the owner of Custom Metal, Jimmy Cureton, would not pay for medical treatment because Mr. Marange did not report an accident. Mr. Marange went to the emergency room (ER) at West Calcasieu Cameron Hospital on his own. The medical record of that visit indicates that Mr. Marange had low back pain radiating into his right leg due to the previous day’s “injury on duty while using a grinder.”

In January 2010, Mr. Marange made two unanswered demands for medical treatment and workers’ compensation benefits and then filed a motion for medical treatment by Dr. Clark Gunderson. The OWC ordered a medical examination by Dr. Gunderson.

Dr. Gunderson found that Mr. Marange had developed sciatica related to the December 28, 2009 work injury and that he was temporarily totally disabled as a result. Dr. Gunderson prescribed physical therapy and ordered an MRI and a return visit. He noted that Mr. Marange had also received treatment at W.O. Moss Regional Medical Center for this injury.

Mr. Marange made a demand for payment of his medical bills and for the physical therapy and return visit ordered by Dr. Gunderson. Custom Metal has not authorized payment for this medical treatment.

Following the trial of this matter, the OWC found that Mr. Marange failed to carry his burden of establishing that he had sustained a work-related injury under Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992). Mr. Marange | Sappeals from that judgment seeking medical treatment, payment of his medical expenses, temporary total disability benefits, penalties, and attorney fees.

III.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two tiered test must be applied in order to reverse the findings of the trial court:

a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
b. the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

IV.

LAW AND DISCUSSION

Mr. Marange’s accident was unwit-nessed. He stated that he was standing, grinding a weld seam at shoulder level, with his weight pushing on the grinder, and with his right foot propped on the cylinder wall. When his right foot slipped off the wall, where grinding dust had accumulated, his body twisted to the left with the grinder still turning, and he fell forward. He experienced burning and pulling in his low back and buttocks.

The workers’ compensation judge stated in her reasons for judgment that Mr. Mar-ange testified that he was grinding overhead, and that his assertions that he was grinding overhead did not comport with the testimony of fellow workers. She found that, under Bruno, 593 So.2d 357, the co-workers of Mr. Marange discredited or cast serious doubt on Mr. Marange’s version of the accident. The workers’ compensation judge cited Kyle Bourgeois, Custom Metal’s quality control manager, for his testimony that no one was expected to grind overhead and that he never saw Mr. Marange grinding at shoulder level or standing to grind. The workers’ compensation judge further cited the testimony of co-worker Mike Ellzey, who said that the grinders weighed only five to six pounds, that no grinding was done on the sides of the cylinder, and that he did not recall Mr. Marange standing to grind. Based upon this testimony, she found that Mr. Mar-ange failed to establish his case by a preponderance of the evidence. We disagree.

Our jurisprudence provides:

[A]s in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. [Prim v. City of Shreveport, 297 So.2d 421 (La.1974) ]; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson; Nelson, [588 So.2d 350]. Corroboration may also be provided by medical evidence. West, [371 So.2d 1146].

Bruno v. Harbert Intern. Inc., 593 So.2d 357, 361 (La.1992).

When there is proof of an attendant disability, without an intervening cause, it is presumed that the accident caused the disability. Additionally, the trier of fact’s determination as to whether a compensable injury was suffered is a question of fact and will not be disturbed unless manifestly erroneous or clearly wrong.

Capitol Mfg. Co. v. Brooks, 99-267, p. 6 (La.App. 3 Cir. 11/3/99), 745 So.2d 825, 829, writ denied, 99-3411 (La.2/4/00), 754 So.2d 236 (citations omitted).

|s[A]n intermediate appellate court is not required to follow blindly the factual determinations of a trial court without discerning whether that court’s discretion in evaluating facts and credibility has been abused. Certainly, the fact finder should be accorded great latitude and discretion, but discretion must always be buttressed by sound judgment. It is not immutable. To extend the quality of immutability to a fact finder’s determinations simply because it articulates the magical word, “credibility” effectively limits and circumvents an appellate court’s constitutionally given power to review facts.

Butler v. Zapata Haynie Corp., 92-71, p. 7 (La.App. 3 Cir. 2/23/94), 633 So.2d 1274, 1279, writ granted in part, judgment amended (to adjust amount of lost earnings awarded by majority), 94-1171 (La.7/5/94), 639 So.2d 1186, cert. denied, Zapata Protein (USA), Inc. v. Butler, 513 U.S. 1017, 115 S.Ct. 579, 130 L.Ed.2d 494 (1994).

Here, the record does not support the trial court’s conclusions that Mr. Mar-ange did not meet his burden of proving that he sustained a work accident by a preponderance of the evidence or that his testimony was discredited by the testimony of co-workers. Contrary to the court’s finding, Mr. Marange did not testify that he was grinding overhead. He testified that he was grinding at shoulder level. The testimony of co-workers did not, as the trial court found, directly contradict Mr. Marange’s version of the events. Moreover, the objective evidence favors Mr. Marange and militates against the lack of support expressed by the trial judge.

The testimony of Kyle Bourgeois did not dispute Mr. Marange’s testimony regarding the performance of grinding work in a standing position. Mr. Marange testified that he was grinding at shoulder level on an inside weld seam that ran up the side of the cylindrical cone-shaped section of the vessel. He stated that the seam ran around the cylinder, that he had to grind up so far and then the vessel would be rolled over to finish grinding the rest of the seam. Mr. Marange testified that he was standing, bracing himself with his right foot on the cylinder | ¿wall, his weight pushing on the grinder, and the grinder pushing on the wall, when his right foot slipped off the wall. He fell forward with the grinder turning, and was twisted to the left, resulting in the injury. He was working alone at the time.

Kyle Bourgeois testified that the floor-to-ceiling height inside the cylinder was eight or nine feet and that the welded seams inside the cylinder were 360-degree welds. He stated that the easiest way to grind seams was while seated. He indicated that there was never an occasion to grind overhead because the metal shop used a crane to rotate the cylinder such that the weld portion to be ground was positioned on the floor. However, he admitted that every portion of a 360-degree weld had to be ground smooth; this would include the weld as it ran up the side of the cylinder. Mr. Bourgeois did not say that there was never an occasion to grind at shoulder level. In fact, at trial, the following colloquy took place between counsel for Custom Metal and Kyle Bourgeois:

Q. And the same with the sides: Is there ever an occasion where a man would have to stand up and [grind] on the side of the cylinder?
A. Where he could physically reach it; but if he couldn’t touch it or reach it, that’s the point of rolling it around to where he could reach it.

This testimony indicates that a worker inside the cylinder must follow the weld as it goes around the cylinder, as long as he can reach or physically touch the weld, before using the crane to rotate the cylinder. Kyle Bourgeois’s testimony supports, rather than disputes, Mr. Marange’s version of the work environment. Both testified that it takes two men to operate the crane to rotate the cylinder, and both testified that the worker grinds a weld as far up as possible before using the crane to rotate the cylinder. Mr. Marange indicated that companies do not want the risk of injuries from faulty cranes; therefore, they expect one to use the crane to roll the vessel as little as possible. Another coworker, Mike Ellzey, testified that the cylinder is turned only once every other day.

17Kyle Bourgeois testified that he had seen Mr. Marange twice on the morning of the incident, and that he was working seated, not standing, at those times. This testimony, however, accounts for only a few minutes out of a two-and-one-half hour period of work, and it does not seriously discredit, as Bruno requires, Mr. Mar-ange’s testimony that he was standing when the accident occurred. Kyle Bourgeois testified that he sent Mike Ellzey to help Mr. Marange on the morning of the incident, but he admitted that Ellzey was subject to being called away as a helper in other areas of the shop and did not work alongside Mr. Marange the entire morning. This testimony does not discredit Mr. Marange’s testimony that he was working by himself when the accident occurred.

Mike Ellzey, a “tack” helper whose testimony was also cited by the trial judge, worked with Mr. Marange for a large part of the morning on which the incident occurred. He admitted that he probably left the cylinder for a water break and to assist as a helper elsewhere during the morning. Mr. Ellzey confirmed that the grinding dust does accumulate so much that a worker can slip in it. He stated that the dust has metal bits in it which stick to you in the hot cylinder and itch when you sit down. The men had to periodically use air hoses to blow the grinding dust out of the cylinder.

Mr. Ellzey stated that he usually grinds while sitting or kneeling on one knee and, as far as he could remember, Mr. Marange was basically doing the same, though he could not remember which position Mr. Marange used. He testified that the men usually rolled the cylinder before doing the side seams, but they only rolled it every other day. When asked whether it was unusual to stand while grinding, Mr. Ell-zey responded, “Well, not — yes, ma’am.” This answer changed in midstream, as it began with a negative and switched to a positive. Mr. Ellzey’s testimony and responses were filled with qualifiers, such as “usually,” “basically,” “most of the time,” “as far as [he could] remember.”

| Neither Mr. Bourgeois nor Mr. Ellzey testified that they had never stood up to grind, or that they had never seen Mr. Marange stand up to grind, or that standing up to grind was impossible, or that it just was not done. They merely testified that they thought it was easier to sit or kneel while grinding and that they did not see Mr. Marange standing to grind on that particular morning. The objective evidence, the photographs of the eight-to-nine-foot-high cylinder and its welds, support Mr. Marange’s testimony regarding standing to grind the seams.

The trial judge further indicated that Mr. Ellzey’s testimony that the grinder weighed five or six pounds disputed Mr. Marange’s testimony that the grinder weighed forty pounds. We note that Mr. Ellzey also said that it was hard to hold the grinder up to grind at shoulder level. This testimony seems to be self-conflicting as it begs the question, if the grinder weighs only five or six pounds, why is it hard to hold up, particularly when you are pressing it against a wall. Moreover, Mr. Marange specifically said that the grinder weighed ten pounds and that with the attachment of the disc and cone, it came to about thirty-five or forty pounds. Kyle Bourgeois testified that the grinder with the disc weighed ten pounds. Contrary to the trial judge’s conclusion, the effect of the actual discrepancy does not cast serious doubt on Mr. Marange’s version of the accident. Three men estimated three different weights for the grinder system.

Mr. Marange weighed 140 to 145 pounds; he was using his weight to push the grinder against the seam in the wall. When his foot slipped in the dust and he pitched forward, the turning grinder would likely have felt heavier to him. Given the mechanics involved, we do not find the weight of the grinder determinative, and the discrepancies in the estimated weight of the apparatus do not justify the conclusion that Mr. Marange’s testimony was seriously discredited.

The trial judge further found that the corroborating testimony and circumstances following the event did not preponderate in favor of Mr. Marange. |9The record does not support this conclusion. Macie Johnson, though not his legal wife, had lived with Mr. Marange for eight years, and they referred to each other as husband and wife. Ms. Johnson testified that she had called Mr. Marange at work on the morning of December 28 because she believed that his mother, who could not speak, might have had a heart attack or another stroke. Mr. Marange left work with permission after the morning break to assist with his invalid mother. Mr. Marange and Ms. Johnson spent some time trying unsuccessfully to get the mother to let them admit her into the hospital. The couple finally went to their home in Vinton and spent the remainder of the day inside the house. Mr. Marange did not mention the incident with his back that day, but Ms. Johnson confirmed that he could not get out of bed when the alarm went off the following morning. She had to help him up and help him get dressed. She asked what was wrong with his back, and he told her that he had been grinding welds at work the previous day and had slipped in the grinder dust. Ms. Johnson confirmed that Mr. Marange called work, spoke to a female employee, and explained that he had hurt his back but did not realize it until he tried to get out of bed. Ms. Johnson further confirmed that Mr. Marange had asked for a doctor and that he was called back thirty minutes later by the female employee and was told that Custom Metal would not pay for anything.

Ms. Johnson then took Mr. Marange to the ER at West Calcasieu Cameron Hospital. Custom Metal suggests that Mr. Mar-ange may have hurt his back trying to lift his mother after he left work on the 28th, but Ms. Johnson, a former construction worker, testified unequivocally that he did not, that she always did the lifting, and that Mr. Marange’s mother only weighed eighty-nine pounds. Ms. Johnson’s testimony corroborated Mr. Marange’s testimony in every respect, as does the medical evidence.

On December 29, 2009, Mr. Marange was seen at the West Calcasieu Cameron Hospital ER at 9:11 a.m. with complaints of burning from his low back | into right leg. The medical records indicate an injury on duty while using a grinder the previous day, back pain, decreased range of motion, a shuffling gait, and muscle spasm. The discharge summary at 11:01 a.m. indicates that medication and instruction was given for lumbar radiculopathy. Medication given included Vicodin and Robaxin.

On January 19, 2010, Mr. Marange was seen at W.O. Moss Regional Medical Center ER for low back pain radiating into his right leg due to having slipped at work. Medication given included Ibuprofen, Tra-madol, and Flexeril.

On April 20, 2010, Mr. Marange saw Dr. Clark A. Gunderson, an orthopedic surgeon, pursuant to the court’s order following Mr. Marange’s motion. Dr. Gun-derson reported that Mr. Marange was grinding on an eight-foot cylinder; his foot slipped, and the grinder was still running; he sustained a twisting injury to his lower back; and he developed sciatica. At the time of the visit, Mr. Marange had lower back pain radiating into his right buttock and thigh down to his knee. The pain was constant and aggravated by walking, sitting, or standing. Upon examination, Mr. Marange was limping on his right leg, could not walk on his toes and heels, had right sided lumbar spasm, limited lumbar motion, and tenderness to the right of L4-5, as well as in the right sacroiliac and sciatic notch region.

Dr. Gunderson’s impression was that Mr. Marange’s current problems were related to his work injury of December 28, 2009. He recommended an MRI of the lumbar spine, referred him to physical therapy, and gave him pain medications, muscle relaxants, and anti-inflammatory agents. Dr. Gunderson did not believe that Mr. Marange could work and classified him as temporarily disabled. Dr. Gunderson expected to see Mr. Marange for follow-up on May 18, 2010, but none of the recommended treatment, imaging, or follow-up was authorized.

|nMr. Marange was again seen at the West Calcasieu Cameron ER on July 10, 2010, due to the work injury several months prior, with acute low back pain and burning, decreased range of motion, and muscle spasm. The medical report indicates no new injury, but rather continuing low back pain that was worse upon waking that day. Medication given included Flex-eril, Medrol Pak, and Ultram.

The foregoing objective medical evidence is consistent. It supports Mr. Mar-ange’s testimony regarding a work-related accident and militates against the trial judge’s finding to the contrary.

Custom Metal contends that Mr. Marange did not have an accident at work because he reported no accident and felt no injury at the time of the alleged accident as required under La.R.S. 28:1021(1). We disagree. Louisiana Revised Statutes 23:1021(1) provides: “ ‘Accident’ means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” Mr. Marange testified that his foot slipped in the grinding dust; he fell forward with the grinder turning; he twisted his back and felt pulling and burning in his low back and buttocks at the time. “[Mjerely because a worker completes a day’s work without reporting an accident does not preclude the worker from recovering compensation.” Bruno, 593 So.2d at 362.

In Bruno, where the accident was unwit-nessed, the Louisiana Supreme Court overturned our reversal and upheld the OWC’s finding that the claimant had sustained a work injury. The court stated:

Louisiana courts consistently have interpreted the work-related accident requirement liberally. Williams v. Regional Transit Authority, 546 So.2d 150, 156 (La.1989). Indeed, it is well-settled in Louisiana that an “accident” exists when “heavy lifting or other strenuous | ^efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition.” Cutno v. Neeb Kearney & Co., 237 La. 828, 112 So.2d 628, 631 (1959); Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991) ] (collecting cases). Moreover, Louisiana courts view the question of whether there was an accident from the worker’s perspective. Williams, [546 So.2d 150].

Bruno, 593 So.2d at 360.

In Capitol Manufacturing Co., 745 So.2d 825, an unwitnessed accident occurred twenty minutes before quitting time on a Friday. The claimant fell off of a ladder and experienced immediate pain in his back but did not report it or seek medical attention until the following Monday when he left work and went to the ER. A co-worker to whom the plaintiff mentioned the accident on the night it occurred did not recall the conversation and testified that he did not learn of the accident until a week later. Notwithstanding, where the medical evidence supported the complaints of pain, we affirmed the OWC’s finding that a work accident had occurred and that the claimant’s actions immediately after the accident were reasonable under the circumstances. “When there is proof of an attendant disability, without an intervening cause, it is presumed that the accident caused the disability.” Id. at 829.

In Richard v. Temple-Inland, 625 So.2d 335 (La.App. 3 Cir.1993), we reversed the OWC’s finding that the claimant sustained no work injury, because the hearing officer failed to follow the legal principles governing the required proof of an accident as laid down in Bruno and West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). That is, while there were inconsequential discrepancies in the testimony, they did not support the OWC’s conclusion that the claimant’s version was not credible. There, as here, the claimant’s testimony regarding the accident and injury was really not seriously discredited; nor was it contradicted to the extent that serious doubt was cast on the plaintiff under Bruno | 13and West. No such serious doubt exists in this case, particularly where Mr. Marange’s version of the accident and injury is clearly corroborated by both medical and lay testimony.

Given the existence of a work-related injury, the OWC was manifestly erroneous in failing to order the payment of Mr. Marange’s related medical treatment and expenses, which we award at this time. As outlined above, Mr. Marange was seen and treated at West Calcasieu Cameron Hospital, where he incurred expenses of $1,081.50. He was seen at W.O. Moss Regional Medical Center and incurred $111.24 in medical expenses; and his bill with Radiology Associates was $50.00. We, therefore, award $1,242.74 for past medical expenses. Custom Metal paid $328.00 for the court-ordered medical examination by Dr. Clark Gunderson, but did not authorize the return visit, the MRI, or the physical therapy recommended by Dr. Gunderson. As described above, Dr. Gunderson related Mr. Mar-ange’s injuries to his work accident and found him temporarily totally disabled (TTD). Accordingly, the demand for treatment recommended by Dr. Gunder-son, and the demand for TTD benefits, should have been granted.

Mr. Marange earned $15.00 per hour. Under La.R.S. 23:1021(12)(a)(i), he is entitled to the presumption that he worked forty hours per week during the four full weeks preceding the accident, and can have his wage benefit calculated on an average weekly wage (AWW) of $600.00, if he was a full-time employee and regularly worked forty hours per week. If, however, he was offered forty hours per week and regularly chose to work less than forty hours, his AWW will be calculated on “the average of his total earnings per week for the four full weeks preceding the date of the accident,” pursuant to La.R.S. 23:1021(12)(a)(ii).

The record reveals that Mr. Marange worked overtime one week and worked forty hours one week, but clocked out early on several occasions and did not regularly work forty hours per week during the two months that he had been 114empIoyed with Custom Metal. Michael McKean, Mr. Marange’s regular supervisor, testified that forty hours of work had been available weekly and that Mr. Marange had left for personal business four times in seven weeks. Kyle Bourgeois, Mr. Marange’s acting supervisor, said everyone occasionally left early for personal business, but there was enough work for forty hours per week. Accordingly, Mr. Marange will not be entitled to the forty-hour presumption under subsection (12)(a)(i). Rather, his AWW for TTD benefits should be calculated on the average of his total earnings per week for the four full weeks preceding the date of the accident, pursuant to La.R.S. 23:1021(12)(a)(ii). Mr. Marange’s wage records indicate that he earned $2,116.63 in the four full weeks prior to December 28, 2009. Therefore, his AWW is $529.16 ($2,116.63 = $529.16).

Mr. Marange further asserts that the OWC erred in failing to award penalties and attorney fees where Custom Metal failed to investigate and failed to reasonably controvert his workers’ compensation claim. We agree. The purpose of imposing penalties is to “nudge the employer into making timely payments when there is no reasonable basis for refusing or delaying its obligation.” Weber v. State, 93-62, p. 8 (La.4/11/94), 635 So.2d 188, 193. An employer refusing to pay benefits has an affirmative duty to investigate an employee’s claim and to ascertain the exact nature of his complaints; the employer’s failure to do so warrants the imposition of attorney fees and penalties. See Capitol Mfg. Co., 745 So.2d 825. There, we found that penalties and attorney fees were warranted where the employer refused to complete an accident report and failed in its duty to investigate the employee’s claim or ascertain the exact nature of his complaints.

Louisiana Revised Statutes 23:1201(F), which is mandatory, provides for reasonable attorney fees and for penalties of up to $2,000.00 for the non-payment of each disputed claim, not to exceed $8,000.00 in penalties, unless the | ^employer reasonably controverts the claim or the non-payment results from a condition over which the employer had no control.

In general, one can surmise from the plain meaning of the words making up the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

Celestine v. Firestone Polymers, L.L.C., 09-1534, p. 14 (La.App. 3 Cir. 5/5/10), 38 So.3d 527, 538, writ denied, 10-1237 (La.9/17/10), 45 So.3d 1055 (quoting Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890).

Here, Mr. Marange reported the accident early on the morning after the accident occurred, and he asked for medical treatment on that day. Within thirty minutes, he received a call from the employer stating that the employer would not pay for any medical treatment. Mr. Mar-ange was not questioned about the accident or his injuries. The basis for the denial was that he did not report the accident on the day that it occurred. The employer’s duty to investigate and to gather factual and medical information on the employee’s workers’ compensation claim is continuing. Celestine, 38 So.3d 527. Mr. Marange’s subsequent demands for medical treatment and wage benefits were ignored. When Mr. Marange finally obtained a court-ordered examination by Dr. Gunderson in April of 2010, Dr. Gunderson took Mr. Marange off work for a month and requested authorization for an MRI. He also prescribed physical therapy. Custom Metal denied all benefits and provided no factual or medical information to reasonably counter the factual and medical information presented by Mr. Marange.

As we stated in Ducote v. Louisiana Industries, Inc., 07-1536, p. 4 (La.App. 3 Cir. 4/2/08), 980 So.2d 843, 846:

In Fontenot v. Reddell Vidrine Water District, 02-439, p. 18 (La.1/14/03), 836 So.2d 14, 27, our supreme court interpreted La.R.S. 23:1201(F) as providing “multiple penalties for multiple violations of compensation and medical benefits claims.” However, the supreme court left it to the office of workers’ compensation and the appellate courts to “ferret out” what actions by the employer warranted the imposition of separate penalties. Id. at 26.
When presented with a claim for multiple penalties, the first circuit made the following observation:
From these cases, we can glean the following guidelines: bills from different medical providers can be considered as separate claims; failure to authorize a surgery by a particular doctor can be considered a separate claim from other treatment costs by the same doctor; the mileage expense associated with treatment by a particular provider is part of the claim for payment of that provider’s treatment; incorrect calculation of a benefit amount is a separate claim from the failure to actually pay benefits; and that reduction of a benefit amount constitutes yet another separate claim on which penalties may be imposed.
Juracovich v. St. Anne Gen. Hosp., 04-1323, p. 4 (La.App. 1 Cir. 6/10/05), 916 So.2d 264, 266, writ denied, 05-1819 (La.1/27/06), 922 So.2d 552.

Here, where we have found that medical payments are owed to West Calcasieu Cameron Hospital, W.O. Moss Regional Medical Center, Radiology Associates; and where authorization for an MRI was denied, physical therapy was denied, and a follow up visit with Dr. Gunderson was denied; and where TTD benefits were denied, we award Mr. Marange $8,000.00 in penalties.

Additionally, we award attorney fees in the amount of $15,000.00 for the work done by Mr. Marange’s attorney at the trial court level, and we award $5,000.00 in attorney fees for the work done on appeal.

_bV.

CONCLUSION

Based upon the foregoing, the OWC judgment is reversed, and Henry Marange is awarded medical and wage benefits as discussed in this opinion. Mr. Marange is further awarded penalties in the amount of $8,000.00 and attorney fees in the total amount of $20,000.00. Costs of this appeal are assessed to the employer, Custom Metal Fabricators, Inc.

REVERSED AND RENDERED.


text:
    Angie BROWN v. SHOP RITE, INC.
    No. 11-727.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      George Arthur Flournoy, Flournoy & Doggett (APLC), Alexandria, LA, for Plaintiff/Appellant, Angie Brown.
    Heather W. Blackburn, Rabalais, Un-land & Lorio, Covington, LA, for Defendant/Appellee, Shop Rite, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

I,Angie Brown slipped and fell on a wet floor while working for her employer, Shop Rite, Inc., in Natchitoches, Louisiana. She injured her right knee, low back, and tail bone. Shop Rite paid Ms. Brown workers’ compensation wage and medical benefits after the accident but discontinued the wage benefits a short time later and denied Ms. Brown a change in physicians.

The matter was heard by the Office of Worker’s Compensation (OWC). The Workers’ Compensation Judge (WCJ) awarded benefits and penalties for specific periods of time, but denied benefits and penalties, as requested by Ms. Brown, for other periods of time. Ms. Brown filed this appeal. Finding manifest error on the part of the OWC in some of its awards, we reverse in part and affirm and amend in part the judgment issued by the OWC.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in finding that Ms. Brown was not entitled to wage benefits after July 7, 2010;
(2) whether the trial court manifestly erred in denying Ms. Brown penalties, pursuant to La.R.S. 23:1201(1); and,
(3) whether the trial court abused its discretion in awarding Ms. Brown only $6,500.00 for her attorney fees in this case.

II.

FACTS AND PROCEDURAL HISTORY

On October 10, 2009, Angie Brown, a thirty-one-year-old cook for Shop Rite, slipped and fell in water on her employer’s floor. Ms. Brown fell hard on her bottom; her right leg twisted backward, and she heard a pop in her right |2knee. She also injured her low back and coccyx, or tail bone. The following day, Ms. Brown’s sister drove her to the Natchitoches Parish Hospital emergency room (ER), where she was diagnosed with a right knee sprain. She was given an injection, a knee immobilizer, and crutches. Ms. Brown was also given medication, a work release for a week, and she was told to follow up with her regular physician. Five days later, Ms. Brown was seen by Dr. Luis Matta at Outpatient Medical Centers, Inc. for right knee and low back pain. She was continued off work and referred to an orthopedist, Dr. Steven Kautz.

Ms. Brown saw Dr. Kautz on October 29, 2009. Her knee was swollen and slipping; she had tailbone pain causing her to limp. Dr. Kautz diagnosed a “Right knee Grade I MCL strain,” put her in a hinged knee brace, and limited her to light duty if available. If light duty was unavailable, he recommended time off from work. Ms. Brown returned to work but averaged only a few hours a week during the eight weeks following the injury.

Dr. Kautz ordered an MRI and reported on December 15, 2009, that the MRI was suggestive of a lateral meniscus tear. He discussed arthroscopic evaluation, but Ms. Brown was hesitant about the surgery. Dr. Kautz continued Ms. Brown’s off-work status for another week and opined that if she did not have surgery, he would “probably consider making her situation permanent and stationary at that point.”

On December 17, 2009, there was still swelling, and Ms. Brown decided on the arthroscopic surgery. Dr. Kautz reported that Ms. Brown was totally incapacitated, and there was no recommendation for a return to work. He did not see her again after December 17, 2009. Surgery was scheduled for January 7, 2010. Ms. Brown had second thoughts and cancelled the surgery. The claims adjuster for Shop Rite faxed a hand-written request to Dr. Kautz regarding Ms. Brown’s work status.

|sOn January 8, 2010, without having seen Ms. Brown since discussing surgery with her in December, Dr. Kautz returned the hand-written fax to the adjuster with two check marks in the “yes” responses, indicating that Ms. Brown could return to full-duty work status and without any restrictions. Shop Rite terminated Ms. Brown’s benefits.

Ms. Brown filed a workers’ compensation claim and requested a change in physicians to another orthopedist, Dr. John Ferrell. Shop Rite did not approve or pay for treatment by Dr. Ferrell. Dr. Ferrell found back strain and patellar dislocation of the right knee with painful subluxation. He recommended a patellofemoral brace and physical therapy for patellar rehabilitation before entertaining surgery. He prescribed Darvocet for pain control. By April of 2010, Ms. Brown’s knee still gave out occasionally; she still limped and had to sit over to one side to relieve the tailbone pain, but her overall pain level was down, and she was improving. Dr. Ferrell encouraged her to stay off her tail bone and to continue her strengthening exercises to avoid knee surgery.

As of July 8, 2010, Dr. Ferrell released Ms. Brown to light, sedentary work and restricted her from climbing, squatting, prolonged walking, and from lifting over twenty-five pounds. Ms. Brown looked for work but could not find anyone to hire her with the restrictions due to her injuries.

Ms. Brown sought reinstatement of her wage benefits, medical treatment by Dr. Ferrell, penalties, and attorney fees. The matter was tried by the OWC on September 30, 2010. The WCJ awarded $6,800.00 in penalties under La.R.S. 28:1201(F) for various non-payment or untimely payment of benefits, $6,500.00 in attorney fees, the payment of all treatment by Dr. Ferrell, supplemental earnings benefits (SEBs) for November and December of 2009, and temporary total disability (TTD) benefits for January through July 7, 2010. The 14WCJ did not award SEBs as of July 8, 2010, when Dr. Ferrell released Ms. Brown to light duty with restrictions.

Ms. Brown appeals the Judgment of the OWC for its failure to award SEBs as of July 8, 2010, for its failure to award penalties under La.R.S. 23:1201(1), and for its failure to award an appropriate attorney fee.

III.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). “The same standard of appellate review applicable to factual findings of district courts is also applicable to the factual findings of an administrative body or hearing officer.” Alexander v. Pellerin Marble & Granite, 93-1698 p. 6 (La.1/14/94), 630 So.2d 706, 710 (citations omitted).

IV.

LAW AND DISCUSSION

Supplemental Earnings Benefits as of July 8, 2010

The WCJ awarded Ms. Brown benefits based upon the following factual findings: TTD benefits from the date of the injury, October 10, 2009, through October 16, 2009 — for the first week of disability; SEBs from November 1, 2009, through December 31, 2009 — for the limited amount of post-injury work that she did at Shop Rite in the eight weeks following the accident; TTD benefits for January 16, 2010 through July 7, 2010 — for the period of time that she was unable to work before being released to light duty by Dr. John Ferrell. However, the trial court denied Ms. Brown’s request for SEBs as of July 8, 2010. In spite of finding that Dr. Ferrell had only released her to light duty, sedentary work, the |BWCJ also found that Ms. Brown had not shown that she was unable to earn ninety percent of her pre-injury wages with the restrictions set by Dr. Ferrell.

Ms. Brown contends that the trial court erred in denying her SEBs after July 7, 2010. We agree. Ms. Brown, however, citing Mallery v. International Harvester Co., 96-321 (La.App. 3 Cir. 11/6/96), 690 So.2d 765, writ denied, 97-1323 (La.9/5/97), 700 So.2d 512, contends that there were no facts in dispute to be determined and that it was legal error, not manifest error, to deny the benefits. We find that there are sufficient facts in dispute regarding her entitlement to SEBs to apply the legal standard of manifest error. Accordingly, we find that it was manifest error to deny Ms. Brown SEBs after July 7, 2010.

“The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 8 (La.7/1/97), 696 So.2d 551, 556 (quoting Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993)). In order to obtain SEBs, the claimant must show by a preponderance of the evidence that his work-related injury resulted in an inability to earn wages equal to at least ninety percent of his pre-disability wages. La. R.S. 23:1221(3)(a). Any post-injury sums received by the employee will be considered wages he is able to earn, even if the earnings are from odd-lot employment, sheltered employment, or employment while working in pain. La.R.S. 23:1221(3)(b).

Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn [ninety percent] under the facts and circumstances of the individual case. Banks, [696 So.2d] at 556.... It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employee’s community or reasonable geographic location. La.R.S. 23:1221(3)(c)(i); Banks, [696 So.2d] at 556; Daigle [v. Sherwin-Williams Co., 545 So.2d 1005, 1009 (La.1989) ].

Poissenot v. St. Bernard Sheriff's Office, 09-2793, p. 5 (La.1/9/11), 56 So.3d 170, 174 (footnote omitted).

As of July 8, 2010, Dr. John J. Ferrell, Ms. Brown’s second orthopedic surgeon, stated that Ms. Brown still had a pain level of six over ten. He opined that Ms. Brown could probably return to work in a light-duty, sedentary position, but he would limit her from climbing, squatting, and stairs, because of her back and knee issues. He further testified that she should not do prolonged walking, but could walk intermittently on a flat surface, and that she should not lift over twenty-five pounds. The record contains a letter from Ms. Brown’s hiring manager/supervisor, Perry Vowell, dated October 29, 2009, nineteen days after the accident, stating that “Angie” needed to be able to work an eight-hour shift that included mopping floors, lifting cases of product up to fifty pounds, squatting, bending, continuous walking, reaching for items above her head, and climbing a stepladder occasionally.

The letter was addressed to Dr. Kautz, Ms. Brown’s previous orthopedist. Attached as page two of the letter was Shop Rite’s “Deli Associate Job Description” listing her duties as cooking, preparing food, washing dishes, mopping floors, cleaning tables, operating cash register, waiting on customers, and lifting product of approximately twenty pounds. The job description in Ms. Brown’s hiring packet listed operation of cash register and other guest service equipment, stocking and maintaining merchandise for sale, daily cleaning duties, a willingness to work extra hours and days off, and performing other job responsibilities as directed by the manager and assistant manager. The record contains yet another “Store Associate/Cashier Job Description” listing the above duties in addition to the following: lifting product of approximately thirty pounds, picking up and putting out trash, dusting shelves, filling cooler, bagging ice, icing |7beer and drinks, draining containers, sweeping parking lot, and cleaning gas pumps, restrooms, floors, toilets, sinks, mirrors, doors and windows.

Shop Rite argues that Ms. Brown testified that she worked as a cook, not a cashier, and that she never provided Dr. Ferrell a job description for his approval. This argument has no merit. The record reveals that Ms. Brown applied for the position of cook and cashier, and that, while she had not yet cashiered, she had numerous duties in addition to preparing food and cooking. The letter from her manager indicates that her job duties exceeded all of the limitations later pronounced by Dr. Ferrell, and the hiring packet materials indicate that she would be expected to perform as directed by her managers. The record is replete with descriptions of work duties expected of Ms. Brown that do not fit into the limitations stated by Dr. Ferrell. Notwithstanding, Ms. Brown did try to work at Shop Rite after her October accident, averaging less than four hours a week over the next eight weeks.

In denying Ms. Brown’s request for SEBs after Dr. Ferrell released her in July 2010 to light, sedentary work, the WCJ pointed out that it is not enough to show that you cannot return to your prior employment. He cited Poissenot, 56 So.3d 170, which reversed the Louisiana Fourth Circuit Court of Appeal’s decision to affirm an award of SEBs because the claimant could not return to work as a Deputy Sheriff. Finding that the workers’ compensation court and the court of appeal had applied an incorrect standard, the Louisiana Supreme Court in Poissenot stated as follows:

La.R.S. 23:1221(3)(a) requires that a claimant prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent or more of wages he was earning at the time of injury “whether or not the same or similar occupation as that in which the employee was customarily engaged when injured.” (Emphasis added). The statute clearly places its focus on the amount of wages earned before and after the accident, not the type of occupation or the type of work performed.

Poissenot, 56 So.3d at 175.

In Poissenot, where the claimant was released to full, medium-level duty and did indeed return to his former employment at full salary until laid off with many others after Hurricane Katrina, the Louisiana Supreme Court found that Poissenot did not meet his initial burden of proving that he could not earn ninety percent of his pre-injury wages. The court also stated:

The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Daigle, [545 So.2d] at 1007. Further, factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman, [630 So.2d] at 737-38; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). “In determining whether a [WCJ’s] finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine all evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages.” Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1166.

Poissenot, 56 So.3d at 174-75.

In Seal v. Gaylord Container Corp., 704 So.2d 1161, quoted above by the Poissenot court, the claimant sustained an occupational disease from working with noxious chemicals and could not return to his former employment making $17.36 per hour. He had been employed by Gaylord for thirty-seven years and had done specialized work as a “bogol operator” for the fifteen years preceding his diagnosis. Mr. Seal testified that he looked for alternative work but was unable to find a job which paid more than minimum wage. The court found that the medical [ nand lay testimony corroborated his testimony. Where he had a limited education, a specialized work history, and no other skills than those of a paper mill worker, and where his pre-injury earnings were more than three times the minimum wage, the court found that he had met his initial burden of proving that he was unable to earn ninety percent of his pre-injury wages and was therefore entitled to SEBs.

Similarly, the record here reveals that Angie Brown has more than physical limitations. Ms. Brown has had a learning disability, for which she receives social security assistance, since childhood. She did not finish high school, and it is not clear from the record whether she received her GED. Before working for Shop Rite, Ms. Brown worked as a cook at various fast food restaurants, as a kitchen helper at a rehabilitation nursing facility, and as an assembly line worker at a compressor facility and a chicken parts processing company. Ms. Brown testified that, after this accident, she looked for other work but was unable to find anyone to hire her with her restrictions. Ms. Brown’s mother testified that, after the accident, she heard Ms. Brown on the phone trying to find work at nursing homes, fast food restaurants, and day-care facilities.

The trial court stated that Angie Brown’s duties as a mother, taking care of her four children, required the same abilities as those of an employer. The record reveals, however, that Angie’s mother went to her house to cook and care for the children after the accident, and that Angie and her children eventually moved into her mother’s apartment to make it easier for Angie’s mother to care for her and her children. Angie’s mother testified that she had seen Angie’s eyes tear up because of the pain from her accident and that she had to help Angie with her own bath at times.

Angie Brown’s pay stubs from Shop Rite, before and after the accident, indicate that she made $7.25 per hour. The WCJ found, and the parties stipulated, that Ms. Brown’s average weekly wage was $290.00. The WCJ found 11flthat she averaged working a little over thirty hours per week prior to the accident and needed to work only twenty and one-half hours per week to make ninety percent of her pre-injury earnings. Ms. Brown’s check stubs however, for the eight weeks that she worked after the accident, indicate that she averaged less than four hours of work per week. After that, she could not work at all for seven months. When Dr. Ferrell released her to light duty, sedentary work, with the restrictions explained above, she could not find work.

Based upon the medical and lay testimony, and Ms. Brown’s pre-injury and post-injury earnings, she has met her initial burden of proving that she could not make ninety percent of her pre-injury earnings. Accordingly, for the period of July 8, 2010, forward, we award SEBs based upon zero earnings.

Penalties Under La.R.S. 23:1201

While the workers’ compensation court awarded her total penalties of $6,800.00 under La.R.S. 23:1201(F), Ms. Brown contends that the WCJ erred in denying her penalties under La.R.S. 23:1201(1). We agree. After Ms. Brown’s accident on October 10, 2009, Shop Rite paid her wage benefits and paid for the medical care of Dr. Kautz, but discontinued her wage benefits in January of 2010. The WCJ found that Ms. Brown was disabled from January to July of 2010 but awarded no penalty for Shop Rite’s discontinuation of wage benefits in January. The penalties awarded by the WCJ included: an $800.00 penalty for the defendant’s untimely payment of indemnity benefits for the last week of October 2009; a $2,000.00 penalty for nonpayment of benefits for the first week of disability, October 10, 2009 through October 16, 2009; a $2,000.00 penalty for failure to pay for Dr. Ferrell’s treatment; and a $2,000.00 penalty for the “failure to resume” the wage benefits upon receipt of Dr. Ferrell’s reports.

| nSections (F) and (I) of La.R.S. 23:1201 provide in pertinent part:

F. Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars ....
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
I. Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 28:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:1892(0) shall be applicable to claims arising under this Chapter.

Accordingly, La.R.S. 23:1201(F) provides for an up to $2,000.00 penalty for each claim of non-payment or untimely payment of benefits unless the employer reasonably controverts the claim or shows that the violation was beyond its control. Non-payments and untimely payments subject to this penalty can include the failure to consent to a physician of choice and the failure to consent to a change of physician. Total penalties recoverable in this section are capped at 112$8,000.00. In order to reasonably controvert a claim for untimely payment of benefits under La. R.S. 23:1201(F), “the defendant must have some valid reason or evidence upon which to base his denial of benefits.” Brown v. Texas-LA Cartage, Inc., 98-1068, p. 9 (La.12/01/98), 721 So.2d 885, 890. The court must determine whether the defendant “possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Id.

Under La.R.S. 23:1201(1), on the other hand, if the employer arbitrarily and capriciously discontinues benefits, the employer can be penalized up to $8,000.00 for the discontinuation. There is no $2,000.00 maximum on a single infraction. In determining whether a defendant’s actions are arbitrary and capricious under La.R.S. 23:1201(1), “the crucial inquiry is whether the employer can articulate an objective reason for terminating benefits at the time of the termination.” Williams v. Tioga Manor Nursing Home, 09-417, p. 22 (La.App. 3 Cir. 11/18/09), 24 So.3d 970, 984, writ denied, 10-298 (La.4/09/10), 31 So.3d 389 (quoting Doyal v. Vernon Parish Sch. Bd., 06-1088, p. 10 (La.App. 3 Cir. 2/7/07), 950 So.2d 902, 909, writ denied, 07-832 (La.6/15/07), 958 So.2d 1190).

Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. BLACK’S LAW DICTIONARY 104, 211 (6th ed.1990). Stated another way, such behavior arises from unrestrained exercise of the will or personal preference or lacks a predictable pattern. WEB-STER’S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED 110, 333 (1966).

Brown, 721 So.2d at 890.

In Williams, 24 So.3d 970, we affirmed the OWC’s finding of arbitrary and capricious (1) discontinuation of weekly benefits and (2) discontinuation of medical treatment, but we increased the awards of $2,000.00 each to $4,000.00 each, for the maximum cap of $8,000.00 under La.R.S. 23;1201(I)_ We further affirmed the OWC’s award of $8,000.00 in penalties for four separate infractions under La.R.S. 23:1201(F), including (1) a miscalculation of benefits; (2) denial of medical treatment by the physician, Dr. Gunderson, with no valid reason; (3) non-payment of a hospital bill; and (4) non-payment of a pharmacy bill. Accordingly, the total penalties awarded were $16,000.00 for violations under both Sections, (F) and (I). Hence, Ms. Brown, in the present case, correctly points out that penalties can be awarded under both Sections if the criteria are met.

At the hearing on Ms. Brown’s motion for a new trial, she essentially suggested that the $2,000.00 penalty awarded by the OWC under Section (F) for the “failure to resume” wage benefits based upon Dr. Ferrell’s reports, should have been an $8,000.00 penalty under Section (I) for that violation. In her appellate brief, Ms. Brown suggests that Shop Rite’s discontinuance was two-fold, a discontinuance of wage benefits in January 2010, and, a discontinuance of medical benefits by refusing to pay for the treatment with Dr. Ferrell. Shop Rite argues that it never discontinued the medical treatment by Dr. Kautz. The record contains the defendant’s denial of Ms. Brown’s request to change her orthopedic specialist to Dr. Ferrell along with its offer to continue treatment with Dr. Kautz.

Under the facts of this case, we find that the discontinuation of wage benefits should have been penalized under La. R.S. 23:1201(1), as explained below, but that the failure to pay for the new treatment by Dr. Ferrell was a non-payment properly penalized by the trial court under La.R.S. 23:1201(F). We further find that the lengthy and complete discontinuation of wage benefits under La.R.S. 23:1201(1) for a year should have been penalized at the $8,000.00 maximum provided for under Section (I).

Shop Rite discontinued Ms. Brown’s wage benefits based upon reports by Dr. Kautz that were so internally inconsistent, that the discontinuation was paramount to a “willful and unreasoning action, without consideration and regard for facts and circumstances presented.” See Brown, 721 So.2d at 890. On October 29, 2009, Dr. Kautz found swelling, put Ms. Brown in a hinged brace, and took her off work, unless a light-duty position was available. He limited her to lifting no more than ten pounds. He ordered an MRI resulting in his December 15, 2009 impression of “Grade I right knee MCL strain” and “possible anterior horn lateral meniscus tear.” At that time he discussed surgery with her and took her off work for the following week. Dr. Kautz reported that if Ms. Brown chose not to have surgery, he would consider “making her situation permanent and stationary.”

On December 17, 2009, Dr. Kautz found mild swelling and prepared a two-page “Progress Note” wherein he indicated that Ms. Brown had decided to have the arthroscopic surgery for the suspected meniscus tear. He noted that they had discussed that the MRI findings were not definitive for a torn lateral meniscus but were suspicious for a tear and that her symptoms were persistent for over six weeks in addition to an MCL strain. On this date, he indicated that Ms. Brown was totally incapacitated, and he made no recommendation for her to return to work. Surgery was scheduled for January 7, 2010. Subsequently, Ms. Brown decided not to have the surgery.

Without seeing Ms. Brown again, in response to a fax from the defendant’s risk management/elaims adjuster, Dr. Kautz responded on January 8, 2010, that Ms. Brown could return to work with no restrictions. Shop Rite discontinued Ms. Brown’s wage benefits. Based upon Dr. Kautz’s internally inconsistent reports, we find that Shop Rite arbitrarily chose portions to support its discontinuation of benefits rather than investigate the inconsistencies or “ask for clarification.” See Williams, 24 So.3d at 981.

The OWC judge noted the inconsistencies. In finding that Ms. Brown had established by a preponderance of the evidence that she was entitled to switch 11sher orthopedic specialist from Dr. Kautz to Dr. Ferrell, the OWC judge stated that, after all, Dr. Kautz had released her to full duty without further examination after saying that she needed follow-up care whether by surgery or otherwise. Accordingly, we amend the judgment of the OWC, increasing the penalties by $6,000.00, based upon our award of an $8,000.00 penalty under La.R.S. 23:1201(1) for Shop Rite’s arbitrary discontinuation of wage benefits, instead of the OWC’s award of a $2,000.00 penalty for “failure to resume” benefits under Section (F).

Attorney Fees

The trial court awarded Ms. Brown $6,500.00 in attorney fees. We find that figure to be abusively low. Ms. Brown cites Williams and contends that the work done and the rationale applied in that case is applicable to the present case, supporting an award of $15,000.00 in attorney fees. We find that $14,000.00 is an appropriate fee in this case for work performed at the trial level. In Williams, we articulated as follows:

Louisiana Revised Statutes 23:1201(F) and (I) both allow for the award of reasonable attorney fees in the event penalties are assessed under these two subsections. However, La.R.S. 23:1201(J) limits the attorney fees awarded pursuant to this statute to “one reasonable attorney fee.” The reasonableness of an attorney fee award is based on “the degree of skill and ability exercised, the amount of the claim, the amount recovered for the plaintiff, and the amount of time devoted to the case.” Naquin v. Uniroyal Inc., 405 So.2d 525, 528 (La.1981); see also Cormier v. State, Dep’t of Wildlife and Fisheries, 07-642, pp. 26-27 (La.App. 3 Cir. 11/21/07), 970 So.2d 1216, 1232, writ denied, 07-2466 (La.2/15/08), 976 So.2d 186 (quoting Lambert v. Brookshire Grocery Co., 06-1001, pp. 21-22 (La.App. 3 Cir. 12/20/06), 945 So.2d 918, 933).

Williams, 24 So.3d at 986.

Here, even though the matter was tried in one morning, counsel for Ms. Brown prepared numerous exhibits, participated in depositions and discovery, obtained medical treatment by Dr. Ferrell, SEBs, TTD benefits, and significant 11fipenalties for Ms. Brown. He also filed post trial papers and filed and argued a motion for a new trial prior to this appeal.

V.

CONCLUSION

Based upon the foregoing, we reverse the denial of SEBs after July 7, 2010, and award SEBs based upon zero earnings as of July 8, 2010. We reduce the penalty award under La.R.S. 23:1201(F) by $2,000.00 and instead award an $8,000.00 penalty under La.R.S. 23:1201(1) for the discontinuation of wage benefits. We increase the attorney fee award to $14,000.00 for work done at the trial level, and award $5,000.00 for work done on appeal. Costs of this appeal are assessed to Shop Rite, Inc.

REVERSED IN PART AND RENDERED; AFFIRMED IN PART AND AMENDED.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Leonidas Dean LOWRY.
    No. 11-314.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      Bradley R. Burget, District Attorney, Seventh Judicial District, David R. Opper-man, Assistant District Attorney, Vidalia, LA, for Appellee, State of Louisiana.
    Peter John, O’Neal Legal, L.L.C., Baton Rouge, LA, for Defendant/Appellant, Leonidas Dean Lowry.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

hln this criminal matter, Defendant, Leonidas Dean Lowry, was convicted by a jury of attempted simple burglary, a violation of La.R.S. 14:27 and La.R.S. 14:62. He was sentenced to serve six years at hard labor with the Louisiana Department of Corrections. He has appealed his conviction, assigning as errors ineffective assistance of counsel and insufficiency of the evidence. For the following reasons, we affirm Defendant’s conviction.

ERRORS PATENT

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

ASSIGNMENT OF ERROR NUMBER 1

Ineffective Assistance of Counsel

Defendant argues he was denied effective assistance of counsel at trial. He contends his attorney did nothing when he “indicated that he felt pressured by the District Attorney to accept a plea deal” that he believed violated his right to a presumption of innocence. Defendant also argues that his attorney inadequately investigated an evidentiary issue, failed to effectively communicate with him and his family about trial strategy, and failed to prepare a memorandum regarding sentencing.

The issue of ineffective assistance of counsel is more appropriately addressed in an application for post-conviction relief where an evidentiary hearing can be conducted in the trial court. State ex rel. A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012. However, where an ineffective assistance claim is raised on appeal, this court may address the merits of the claim if the record discloses sufficient evidence to rule on it. Id.

|2In this case, the record does not address Defendant’s argument and, thus, does not contain sufficient evidence to determine whether counsel was ineffective. Consequently, this issue is appropriately relegated to post-conviction relief.

ASSIGNMENT OF ERROR NUMBER 2

Sufficiency of the Evidence

In his second assignment of error, Defendant contends that he was denied a fair trial because he was convicted with insufficient evidence. However, in his brief, Defendant fails to adequately and fully address this assignment of error. Therefore, Defendant has abandoned this assignment of error. Uniform Rules-Courts of Appeal, Rule 2-12.4.

DISPOSITION

Defendant’s conviction is affirmed. Defendant’s claim of ineffective assistance of counsel is appropriately relegated to post-conviction relief.

AFFIRMED.

      . Defendant’s original filing also included an affidavit that was not submitted to the trial court and is not part of the record on appeal. Thus, it may not be considered here. State v. Savoy, 10-1140 (La.App. 3 Cir. 5/11/11), 64 So.3d 457.