text:
    Judith HENRY and Harris Henry v. NOHSC HOUMA # 1, L.L.C. and Colony Insurance Company.
    No. 2011 CA 0738.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 2012.

      Michael J. Billiot, Houma, LA, for Plaintiffs-Appellants Judith Henry and Harris Henry.
    J. McCaleb Bilbro, The Javier Law Firm, L.L.C., New Orleans, LA, for Defendants-Appellees NOHSC Houma # 1, L.L.C. and Colony Insurance Company.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   PARRO, J.

12Judith and Harris Henry appeal a judgment granting summary judgment in favor of defendants, NOHSC Houma # 1, L.L.C. (NOHSC) and Colony Insurance Company (Colony), and dismissing their claim for damages suffered by Ms. Henry when she was injured in a fall at NOHSC’s restaurant. For the following reasons, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On March 13, 2008, Ms. Henry was a patron at NOHSC’s restaurant in Houma, Louisiana, where she and her husband had dined on at least six occasions during the month since it opened. Ms. Henry was 74 years old and had used either a cane or a walker for support since having two hip replacements some years earlier and to counteract the effects of diabetic neuropa-thy in her feet. On that day, she was having lunch with a group of friends who had participated that morning in a YMCA aquatic therapy class for arthritis, which was led by Ms. Henry. When the group arrived at the restaurant, they found their table and then went to the counter to place their orders and get soft drinks. After Ms. Henry placed her order and got her soft drink at the counter, she began to walk back across the carpeted floor to the table. She was using a cane and one of her friends was walking ahead of her, carrying her soft drink. The route back to the table was the same general route through the restaurant as they had used when approaching the counter. Ms. Henry had walked about fifteen or twenty feet toward the table when she fell. She said in a deposition that she was stepping with her right foot when her toe got caught in the carpet; her foot went backwards, and she fell, landing on the foot and breaking her right ankle. She said she always looked down when she used the cane, so she could see where to place it as she walked. Ms. Henry said she did not notice anything about the carpet to indicate a danger, nor was there any food or other substance on the floor where she fell. However, although the Rcarpet was not frayed or worn, she stated it was uneven, because it had “little squares” that formed its weave. As a result of this fall, Ms. Henry had to undergo four surgeries to stabilize her right ankle and foot, and was essentially wheelchair bound.

On February 17, 2009, Mr. and Mrs. Henry filed suit for the damages they had incurred as a result of her fall, naming NOHSC and its insurer, Colony, as defendants. On April 1, 2010, NOHSC and Colony filed a motion for summary judgment, supported by excerpts from Ms. Henry’s deposition; an affidavit from Paul McGoey, NOHSC’s managing partner; and an affidavit from Donald Maginnis, a registered architect, with attachments consisting of photographs of the restaurant’s interior, a hand-drawn diagram of the restaurant’s interior, and excerpts from the 2006 Life Safety Code Handbook. The motion was set for hearing on May 7, 2010, but was continued at the Henrys’ request until June 18, 2010. On June 16, 2010, the Henrys filed an opposition memorandum, supported by excerpts from Paul McGoey’s deposition; excerpts from the deposition of Kevin McKnight, NOHSC’s general manager; an affidavit from Trepp Lombard, the owner and operator of TREPCO, a construction company; an affidavit from Tracy Peltier, a physical therapist; and a copy of the NOHSC employee handbook.

At the hearing on the motion, the court noted that the Henrys’ opposition and supporting affidavits had not been filed timely. Counsel for the defendants moved to strike the affidavits as untimely, pursuant to LSA-C.C.P. art. 966(B) and District Court Rule 9.9(b). The court granted the motion to strike and did not consider the affidavits when ruling on the motion, but did allow the Henrys’ lawyer to present oral argument. |4After hearing arguments and considering the evidence presented by the parties, the court ruled in favor of the defendants, granting the motion for summary judgment and dismissing the Hen-rys’ claims, with prejudice. The judgment was signed on June 30, 2010.

The Henrys filed a motion for new trial, which was denied by the court after a hearing. This judgment was signed on September 22, 2010. The Henrys then appealed the June 30, 2010 judgment.

APPLICABLE LAW

Motion for Summary Judgment

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, 546; see LSA-C.C.P. art. 966. Appellate courts review summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, namely, whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129, 137. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2).

A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Gisclair v. Bonneval, 04-2474 (La.App. 1st Cir.12/22/05), 928 So.2d 39, 41. The burden of proof on summary judgment remains with the mover. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’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 |Bthere 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. LSA-C.C.P. art. 966(C)(2). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Pugh v. St. Tammany Parish Sch. Bd., 07-1856 (La.App. 1st Cir.8/21/08), 994 So.2d 95, 97, writ denied, 08-2316 (La.11/21/08), 996 So.2d 1113; see also LSA-C.C.P. art. 967(B).

A “genuine issue” is a “triable issue,” or one on which reasonable persons could disagree. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773, 777. A “material fact” is a fact, the existence or nonexistence of which may be essential to the plaintiffs cause of action under the applicable theory of recovery. Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La.7/10/06), 935 So.2d 669, 687. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Boudreaux v. Mich-Continent Cas. Co., 05-2453 (La.App. 1st Cir.11/3/06), 950 So.2d 839, 843, writ denied, 06-2775 (La.1/26/07), 948 So.2d 171.

Liability of Owner/Custodian/Merchant

The general rule is that the owner or custodian of property has a duty to keep the property in a reasonably safe condition. The owner or custodian must discover any unreasonably dangerous condition on the premises and either correct the condition or warn potential victims of its existence. Smith v. The Runnels Sch., Inc., 04-1329 (La.App. 1st Cir.3/24/05), 907 So.2d 109, 112. This duty is the same under theories of negligence or strict liability. Under either theory, the plaintiff has the burden of proving that: (1) the property that caused the damage was in the “custody” of the defendant; (2) the property had a condition that created an unreasonable risk of harm to persons on the premises; (8) the unreasonably dangerous condition was a cause in fact of the | ^resulting injury; and (4) defendant had actual or constructive knowledge of the risk. Id.; see also LSA-C.C. arts. 2815, 2317, and 2317.1.

Concerning the burden of proof in claims against “merchants,” LSA-R.S. 9:2800.6 provides, in pertinent part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition [that] caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

ANALYSIS

The Henrys contend on appeal that the court erred in granting the defendants’ motion for summary judgment, because a genuine issue of material fact exists as to whether the carpet on which Ms. Henry fell contains fibers of varying lengths, constituting a condition presenting an unreasonable risk of harm. They also assign as error the court’s finding that NOHSC did not have notice of the condition that resulted in Ms. Henry’s fall, when NOHSC chose the carpet that was installed at its restaurant, and therefore, is presumed to know of its condition.

In support of the motion for summary judgment, NOHSC and Colony included an affidavit from Paul McGoey, which stated that, as the managing partner of NOHSC, he had personal knowledge of information and documents regarding the restaurant. He said that NOHSC decided to use carpets on the floors in the dining area, because uncarpeted floors tend to become slippery when food and other substances fall on |7them. NOHSC hired Wright to provide and install the carpet, which was a commercial grade carpet and was installed on February 8, 2008. Since the restaurant’s opening on February 14, 2008, the carpet had not been altered in any way. In the month before Ms. Henry’s fall, NOHSC did not receive any complaints from patrons, employees, or anyone else about the restaurant’s floor or carpet, nor did any accidents occur which were attributed in any way to either the floor or carpet. NOHSC did not observe any problems or defects in either the floor or carpet.

In Ms. Henry’s deposition, excerpts of which were also attached in support of the defendants’ motion, she said that she and Mr. Henry went often to the restaurant, especially on weekends. She estimated they had been there six times since it opened. They always ate inside, and she had no difficulty walking across the floor of the restaurant. She had never tripped, slipped, or fallen on the carpeted floor, nor had she seen anyone else slip and fall in the restaurant. On the day she fell, she and her group found their reserved table and then went to the counter to order. As she walked toward the counter, she had no trouble walking on the carpet and did not notice anything on the floor that looked like it presented a hazard or a danger. On the way back to her table, her toe got caught, but she did not know how that occurred. She stated, “All I know is the toe was caught and I couldn’t move and I lost my balance and fell on my foot.” Her foot was bent backwards underneath her when she landed on it. Right before her fall, she was looking down and ahead, in order to see where she could put her cane. She saw nothing about the carpet that indicated there was a danger that her toe might get caught. The area where she fell was in the same general pathway that she had traversed to get to the counter. She said it appeared to her that the carpet on the floor was an “indoor/outdoor” carpet, and it had little squares on it. The surface was not a “smooth, smooth top,” but she saw no unevenness in the carpet or floor where she fell. The carpet was not slippery, was not torn up or worn in any way, and was not a shag-type carpet. She saw no food or foreign objects on the floor that might have caused her to fall. At that time, Ms. Henry had been using a cane for about | sfive or six years. She carried her cane in her left hand, because she had always been told that “you carry the cane in the opposite of the side that’s ailing.” Ms. Henry said the only thing she knew that might have caused her fall was that the carpet “wasn’t an even surface. It looked like it had little squares in it.” She said the squares were in the weave of the carpet, and she could not feel the weave of the carpet under her feet as she walked.

Donald Maginnis, a licensed architect who was NOHSC’s liability expert, inspected the restaurant premises and provided an affidavit concerning the condition of the floor and carpet. His inspection of the premises and review of applicable building and safety codes did not reveal any defects or codal violations. He said the carpeted area of the restaurant was level throughout. He described the carpet as a “standard commercial grade, wall to wall carpet commonly used in restaurants, which was properly affixed to the floor with an adhesive.” It featured “squares” in its design. However, the squares merely represented changes in the color pattern of the carpet, as opposed to changes in the height or weave of the carpet. Maginnis said the carpet was not defective or dangerous and was an approved walking surface. He attached sketches of the restaurant layout, photographs, and copies of relevant provisions of the Life Safety Code. The photographs show that each square has a pattern of lines going across it in one direction. The squares are laid out in such a way that the direction of the lines alternates from square to square. In other words, looking at the floor, one square has the lines running north and south, and the squares on either side of it have the lines running east and west. This pattern is alternated with each row of squares, to give the overall effect of a muted checkerboard.

The Henrys have the burden of proof at trial that NOHSC had custody of the property that caused the damage, that the property had a condition that created an unreasonable risk of harm to persons on the premises, that the unreasonably dangerous condition was a cause in fact of Ms.

Henry’s resulting injury, and that NOHSC had actual or constructive knowledge of the risk. On the motion for summary | ^judgment, NOHSC had to point out that there was an absence of factual support for one or more elements essential to the Hen-rys’ claim. The evidence submitted in support of the motion points out an absence of factual support for the essential element that the carpet or floor where Ms. Henry fell had a condition that created an unreasonable risk of harm to her. Whether the carpet fibers were all one length or were of uneven lengths to create a pattern, the evidence shows that this was new, commercial-grade carpet commonly used in restaurants, that it had been professionally installed just one month earlier, and that it had no frayed edges, worn spots, or loose threads that could have presented a hazard. The Henrys contend that Ms. Henry’s statement that the carpet was “uneven” and had a pattern created by the weave, as contrasted to Maginnis’s statement that the carpet pile had no changes in height or weave, creates a genuine issue of material fact. While these conflicting statements may present a factual issue, that factual issue does not rise to the level of a genuine issue of material fact unless there is some evidence that the carpet surface created an unreasonable risk of harm. Many carpets have variations in pile height to create patterns. This, in itself, does not make a carpet defective or dangerous. Therefore, this factual issue is not material.

The Henrys’ opposition to the motion did not establish that they would be able to satisfy their evidentiary burden of proof at trial that the carpet surface presented an unreasonable risk of harm to Ms. Henry. Therefore, there is no genuine issue of material fact, and the motion was properly granted.

CONCLUSION

For the above stated reasons, we affirm the judgment of the district court, granting NOHSC’s and Colony’s motion for summary judgment and dismissing the Henrys’ claims. All costs of this appeal are assessed to the Henrys.

AFFIRMED.

CARTER, J., concurs.

      . The acronym in the company name represents the New Orleans Hamburger and Seafood Company.

      . In a supplemental and amending petition, they also named as a defendant the company that had installed the carpet in the restaurant, Wright Floor Covering, Inc. (Wright). This company eventually filed a motion for summary judgment, which the Henrys did not oppose, and which was granted by the court.

      . The party opposing a motion for summary judgment may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to LSA-C.C.P. art. 1313 within the time limits set forth in the Uniform Rules of Louisiana District Courts, Rule 9.9. LSA-C.C.P. art. 966(B). District Court Rule 9.9(b) provides, in pertinent part: "A party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing.” The time limitation established by Article 966(B) for the serving of affidavits in opposition to a motion for summary judgment is mandatory. Affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court. Buggage v. Volks Constructors, 06-0175 (La.5/5/06), 928 So.2d 536, 536 (per curiam); Gisclair v. Bonneval, 04-2474 (La.App. 1st Cir. 12/22/05), 928 So.2d 39, 42.

      . Having so concluded, we pretermit consideration of the Henrys' other assignment of error.


source: Caselaw Access Project

author: PETTIGREW, J. KUHN, J., concurring. WELCH, J.,

license: Public Domain

text:
    Dean CHAUVIN v. TERMINIX PEST CONTROL, INC.
    No. 2011 CA 1006.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 2012.

      William S. Bordelon, Houma, LA, for Plaintiff-Appellee Dean Chauvin.
    Wade A. Langlois, Gretna, LA, For Defendant-Appellant Terminix Pest Control, Inc.
    Before KUHN, PETTIGREW, McClendon, welch, and HIGGINBOTHAM, JJ.
   PETTIGREW, J.

12Pefendant, Terminix Pest Control, Inc. (“Terminix”) appeals a judgment of the Office of Workers’ Compensation (“OWC”) awarding claimant, Dean Chauvin, supplemental earnings benefits (“SEBs”) retroactive to December 31, 2009, the cost of a prescription medication, and penalties and attorney fees. For the reasons that follow, we affirm the judgment of the OWC.

FACTS AND PROCEDURAL HISTORY

Mr. Chauvin is employed by Terminix as a pest control technician. He is paid a commission on the accounts he services and also earns commissions on new accounts he brings in. Terminix’s pest control technicians perform “inside services” and “outside services.” Inside services require carrying a can and spraying pesticides inside the home or business of Ter-minix’s customers. Outside services require spraying pesticides outside the home or business of Terminix’s customers. To perform outside services, technicians are required to use a 3/8-inch, 100-foot hose attached to a reel on a Terminix truck to spray the pesticides.

On December 28, 2007, Mr. Chauvin, who was fifty-three years old at the time, slipped on a grate while performing pest control services on a barge and fell to the floor. He reported the incident to his supervisor a few days later. Terminix sent Mr. Chauvin to Dr. Larry Haydel for an evaluation. Mr. Chauvin visited Dr. Haydel from February through July 2008, complaining of back pain with radiation into his right leg following the work accident. Dr. Haydel diagnosed Mr. Chauvin as having a lumbar strain and sent Mr. Chauvin to have an MRI. The MRI showed a central disc protrusion at the L5-S1 level and degenerative disc disease.

Mr. Chauvin returned to work soon after the accident and performed both inside and outside services until April 10, 2008. For several months thereafter, Mr. Chau-vin did not return to work. In July 2008, Dr. Haydel released Mr. Chauvin to return to light duty work. For a short time, Terminix provided Mr. Chauvin with a driver and helper on the job.

Dr. Haydel referred Mr. Chauvin to Dr. Donald Gervais, a pain management | ^specialist. Dr. Gervais placed a 10 to 15-pound pulling and pushing restriction on Mr. Chauvin. On August 7, 2008, a functional capacity evaluation (“FCE”) was conducted by Trevor Bardarson, a physical therapist, in which Mr. Bardarson placed a 10 to 15-pound lifting restriction on Mr. Chauvin and limited pushing and pulling to “occasional.” A 2009 ergonomic analysis by Mr. Bardarson measured the pull force required to move a large section of the 3/8-inch hose. The force to pull the hose averaged 20 pounds with a peak 30 pounds of pull; however, if the hose became jammed, a peak force of 50 pounds of pull force was measured.

Following Dr. Gervais’ restrictions on Mr. Chauvin’s pulling capabilities, Mr. Chauvin began to refuse all jobs requiring that he pull the hose from the reel of his truck. As a result, Mr. Chauvin’s income decreased, and Terminix’s workers’ compensation insurer, Stonestreet Commercial Insurance Company, paid SEBs to Mr. Chauvin through December 31, 2009, when it terminated benefits on the basis of a second FCE that concluded that Mr. Chauvin had the physical capability to pull the hose and thus perform outside services.

On March 3, 2010, Mr. Chauvin filed this disputed claim in the OWC seeking to recover SEBs and challenging the refusal to pay for Cialis for erectile dysfunction (“ED”) and other prescription medications. He also sought to recover penalties and attorney fees. Mr. Chauvin claimed'that he is not capable of performing jobs requiring that he pull the hose from his truck in yards and around trees and buildings of Terminix’s customers because doing so exceeds the 10 to 15-pound force pulling limitations placed upon him by Dr. Gervais. He further asserted that because he can no longer perform the more profitable outside jobs, he is unable to earn more than 90 percent of his pre-injury wage. Terminix defended its decision to terminate benefits on the basis of the second FCE report, submitting that Mr. Chauvin is capable of performing all aspects of his job, and is not entitled to SEBs because any reduction in his income is not related to the job injury.

l/The four-day trial commenced on October 26, 2010, recessed, and concluded on January 19, 2011. At the outset, the parties stipulated that from January 2010 through the end of September 2010, during seven of the nine months in question, Mr. Chauvin earned less than 90 percent of his pre-injury wage and would be entitled to SEBs for those months in the amount of $5,716.97 if the court determined that such were due. The Workers’ Compensation Judge (“WCJ”) was presented with conflicting medical opinions, testimony from the two physical therapists that performed the FCEs, and medical records. The WCJ determined that Mr. Chauvin was entitled to SEBs from the date of the termination of benefits through the trial, but did not set forth an amount of the award in the judgment. The WCJ further determined that Terminix was not arbitrary and capricious in its decision to terminate SEBs. However, the WCJ found that Terminix was arbitrary and capricious in discontinuing Mr. Chauvin’s Cialis prescription and awarded $2,000.00 in penalties and $10,000.00 in attorney fees. A judgment was signed in accordance with these findings on February 7, 2011.

Terminix appealed, contesting the SEBs award, the award of Cialis, and the award of penalties and attorney fees. Observing that the judgment did not set forth an amount of SEBs, this court issued an interim order directing the WCJ to determine the amount of SEBs owed by Terminix. On January 9, 2012, following a stipulation by the parties, the WCJ entered an award of SEBs in the amount of $8,475.00 with legal interest through the date of the trial.

SUPPLEMENTAL EARNINGS BENEFITS

Terminix contends on appeal that the WCJ applied the incorrect burden of proof on Mr. Chauvin’s SEBs claim. Terminix stresses that Mr. Chauvin’s entire case was based on his claim that he cannot perform outside jobs requiring the use of the hose and submits that the WCJ’s decision to award Mr. Chauvin SEBs based on Mr. Chauvin’s inability to perform one aspect of his pre-injury job is erroneous as a matter of law. In support of its position that the WCJ applied the wrong burden of proof, Terminix relies on Poissenot v. St. Bernard Parish Sheriffs Office, 2009-2793, pp. 4-5 (La.1/09/11), 56 So.3d 170, 174, wherein the supreme court set out the burdens of proof |sin a SEB case as follows:

An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage. 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. [Citations omitted.]

In Poissenot,' the supreme court reversed a WCJ’s award of SEBs to the claimant upon finding that the claimant demonstrated that he could not perform the same type of work he was performing at the time of the accident. In so doing, the court stressed that the workers’ compensation 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. Thus, the claimant had to prove by a preponderance of the evidence that he was unable to earn at least 90 percent of his average monthly wage because of his injury. The court held that the WCJ and appellate court erred in finding that the claimant met his initial burden of proof because they focused on whether the claimant could return to the same type of work he was performing before the accident, rather than whether the claimant could earn 90 percent of his pre-injury wages. Because the claimant did not meet his initial burden, the court concluded, the burden of proof never shifted to the employer. Pois-senot, 2009-2793 at 4-13, 56 So.3d at 174-179.

This case is clearly distinguishable from Poissenot. In Poissenot, a deputy sheriff employed at a juvenile center injured his finger and returned to work following the injury with accommodations, but was furloughed along with every other juvenile center employee as a result of Hurricane Katrina nearly a year later. He filed a claim with OWC seeking SEBs but offered very limited evidence on his ability to earn 90 percent of his pre-injury wage that focused on whether he could do the same type of | fiwork or the same level of work he was doing before the injury. The trial court found that the employee met his burden of proving he could not earn more than 90 percent of his pre-injury wage because his former employer had made accommodations that no other sheriffs office would make. The supreme court found, however, that there was no medical evidence supporting the employee’s claim that he could not earn 90 percent of his pre-injury wage. Poissenot, 2009-2793 at 6-12, 56 So.3d at 175-178.

Here, Mr. Chauvin continued to work for the same employer following his work injury and continued to perform all aspects of his job as a pest control technician with the exception of those jobs requiring that he pull a hose from the reel in the back of his truck. Mr. Chauvin offered medical evidence supporting his claim that he is not capable of performing this aspect of his job. Moreover, the parties stipulated that for seven of the nine months in question, Mr. Chauvin earned less than 90 percent of his pre-injury wage. On the earnings issue, the evidence established that Terminix employees are paid commissions on the jobs they work and on new sales accounts they bring in, regardless of whether they perform the services, and earn cash awards for bringing in the most sales for a quarter. Mr. Chauvin testified that he is given approximately 200 account tickets for the routes he services and that during the period in question, he returned between 20 to 25 tickets each month requiring that he perform outside services. Mr. Chauvin testified that outside services generated more commissions and were among the highest paying jobs he performed prior to his injury.

Terminix’s general manager, Daniel Foster, testified that the economy did not affect the commissions earned by pest control technicians, stating that in general, the commission employees were doing at least as well or better than they had the previous year. According to Mr. Foster, each month over the nine-month period in question, Mr. Chauvin turned in 25 to 30 tickets, which he estimated to have a gross revenue of $1,200.00, on which Mr. Chau-vin could have earned $300.00 per month in commissions. Although there was no documentary evidence establishing the value of the outside jobs, the parties stipulated that for seven months Mr. Chauvin did not earn 90 percent of his pre-injury commissions, and the evidence showed that Mr. Chauvin | continued to service his inside accounts, worked a 40-hour work week, continued to earn commissions on accounts he sold, and continued to win awards for bringing in the most new accounts. The only difference in Mr. Chau-vin’s job performance was that he no longer serviced accounts requiring that he pull a hose. Under these circumstances, we find that Mr. Chauvin demonstrated that he was no longer earning 90 percent or more of his pre-injury commissions because he no longer performed outside services. Consequently, in order to determine whether Mr. Chauvin’s diminished earning capacity resulted from his on-the-job injury, the WCJ necessarily had to make a factual determination as to whether Mr. Chauvin is capable of performing the outside service jobs that Mr. Chauvin turned down and for which he would have earned income. Accordingly, we find no error in the WCJ’s focus on Mr. Chauvin’s capability to perform outside services in determining whether he met his burden of proving that he could not earn more than 90 percent of his pre-injury wages as a result of his work accident.

In reviewing the WCJ’s factual determinations, including whether the employee has discharged his burden of proof, this court is bound by the manifest error stan-

dard of review. Polkey v. Landworks, Inc., 2010-0718, p. 3 (La.App. 1 Cir. 10/29/10), 68 So.3d 540, 544. Under that standard, this court may only reverse a WCJ’s factual determination if we find from the record that a reasonable factual basis for the finding does not exist and the finding is manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883. Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the factfinder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review where conflict exists in the testimony. Polkey, 2010-0718 at 4, 68 So.3d at 545. In reviewing the factual findings of the court, we do not retry the case, we do not make credibility decisions, we do not make conclusions and draw inferences from the factual and credibility determinations. That is the role of the trial court.

IsTerminix contends that the evidence showed that Mr. Chauvin is capable of performing jobs requiring the use of the hose, relying principally on the two FCE reports it insists demonstrates that Mr. Chauvin could perform the jobs he was voluntarily refusing to do. Terminix urges that the only evidence offered to support Mr. Chauvin’s contention that he could not pull the hose was the testimony of Dr. Gervais, which Terminix claims was questionable because the doctor formed his opinion on the basis of Mr. Chauvin’s subjective claims of pain. Mr. Chauvin counters that Dr. Gervais unequivocally stated that Mr. Chauvin put himself at risk of further injury if he pulled on a hose with more than 15 to 20 pounds of pressure and that the WCJ simply chose to accept Dr. Gervais’ testimony in awarding Mr. Chau-vin SEBs.

We agree that the evidence on the issue of Mr. Chauvin’s ability to perform outside services requiring that he pull a hose from the reel of the truck was conflicting. Dr. Gervais, who treated Mr. Chauvin from July 2008 through the date of the trial, imposed pulling restrictions of 10 to 15 pounds on Mr. Chauvin. Dr. Gervais was asked on two occasions whether his opinion regarding Mr. Chauvin’s abilities changed as a result of the two FCE tests commissioned by Terminix. Dr. Gervais remained steadfast in his opinion regarding Mr. Chauvin’s pulling limitations and discounted the conclusions by the physical therapist conducting the second FCE. Terminix offered the testimony of the two physical therapists who performed the FCEs, both of whom concluded that pulling the hose is within Mr. Chauvin’s capabilities with the recommendations they suggested. Terminix also offered the deposition testimony of a physician who changed his original opinion regarding Mr. Chauvin’s limitations after reading the results of the second FCE.

The record reflects that Mr. Bardarson, who conducted the first FCE on August 7, 2008, concluded that Mr. Chauvin could return to his job as a pest control technician with a 10 to 15-pound lifting limitation and an occasional limitation on pulling and pushing. On March 20, 2009, at Ter-minix’s request, Mr. Bardarson prepared an ergonomic analysis to test the pull force of the hose under different circumstances, such as the force needed to pull it from the reel, around the yard, and the force | ¡¡generated if the hose encountered an obstacle. Mr. Bardarson used a force gauge to measure the pull force required to move a large section of the 3/8-inch hose and pulled the rope around a pole to simulate the resistance of moving the hose around a house. The force to pull the hose averaged 20 pounds with a peak of 30 pounds of pull force. If the hose became jammed, a peak force of 50 pounds of pull force was measured. Mr. Bardarson stated that when pushing or pulling, a person is able to use body weight to their advantage; thus, when a person leans on an object, he will exert 20 percent of his body weight, making pushing a pulling a much easier activity than lifting when comparing forces. He observed that a person weighing 200 pounds could exert 40 pounds of force simply by leaning on the object.

Mr. Bardarson measured a peak force of 20 pounds to turn the reel and suggested the use of an electric reel to retrieve the hose, which Terminix did install on Mr. Chauvin’s truck. Mr. Bardarson opined that in light of the FCE he conducted earlier, Mr. Chauvin should be able to perform job duties requiring that he pull the hose with the ergonomic modifications he recommended.

On June 12, 2009, Dr. Gervais was asked by Mr. Chauvin’s attorney to review Mr. Bardarson’s ergonomic analysis- and respond to a number of questions. Dr. Ger-vais stated that pulling a hose requiring 30 pounds of pull exceeded Mr. Chauvin’s restrictions of 10 to 15 pounds set by him. He also answered “yes” when questioned whether, if the hose became jammed while Mr. Chauvin was pulling it, causing 50 pounds of force, Mr. Chauvin could be injured and should avoid this situation. Dr. Gervais further opined that even if Mr. Chauvin used his body weight to pull a hose requiring 30 pounds of pull force, such activity would cause forces to be exerted in Mr. Chauvin’s spine that are in excess of what he recommended.

During his August 4, 2009 deposition, Dr. Gervais reiterated that he restricted Mr. Chauvin to a 10 to 15-pound pull force and that the use of the hose above those pull forces presents a danger of exacerbating Mr. Chauvin’s condition, particularly if the hose became jammed, causing Mr. Chauvin to encounter 50 pounds of pull force. Dr. Gervais stated that Mr. Chau-vin could occasionally use a hose on Termi-nix jobs if such |inuse resulted in less than 10 to 15 pounds of force. Dr. Gervais stated that it was the combination of force and movement that presented problems for Mr. Chauvin, which accounted for the low pulling weight restrictions he placed on Mr. Chauvin. He also took issue with Mr. Bardarson’s conclusion that Mr. Chau-vin could use his weight to his advantage in generating greater pull force. He testified that the mechanical advantage Mr. Bardarson used to get the extra 40 pounds of pull force based on Mr. Chauvin’s weight would only apply to an uninjured person with a good back. In Mr. Chau-vin’s case, Dr. Gervais stated, the use of his back to obtain such mechanical leverage would only exacerbate Mr. Chauvin’s present condition.

Terminix’s workers’ compensation carrier sent Mr. Chauvin to obtain independent medical evaluations. Mr. Chauvin saw Dr. Todd Cowen, a specialist in physical medicine rehabilitation, on October 1, 2009. Dr. Cowen reviewed Mr. Chauvin’s medical records and diagnosed Mr. Chauvin as having right leg pain and low back pain. He noted that there was no objective evidence in any of the tests as to the cause of Mr. Chauvin’s symptoms and also noted that there were no objective findings on examination. Dr. Cowen admitted that Mr. Chauvin’s work status was very difficult to predict and stated that unless there was some fundamental improvement of Mr. Chauvin’s symptoms or another FCE were to be performed in the future, he would have to fall back on the restrictions set forth in the first FCE.

On October 26, 2009, Mr. Chauvin was evaluated by Dr. Michael A. Puente, who reviewed Mr. Chauvin’s medical history and test results and conducted a complete neurologic examination. Dr. Puente noted and agreed with the FCE report imposing a 10 to 15-pound lifting restriction on Mr. Chauvin. Dr. Puente concluded that if the force needed to pull the hose is greater than 15 pounds, that would be outside of Mr. Chauvin’s physical capabilities and that Mr. Chauvin could return to his full duty as a pest control technician with the only exception being no pulling on the hose.

On January 19, 2010, Dr. Richard Bunch, a physical therapist who has a doctorate in physiology, performed a second FCE on Mr. Chauvin. Dr. Bunch performed a test to determine Mr. Chauvin’s material handling and functional strength capabilities, |nrecording a maximum isometric pull force of 72.5 pounds and an isometric push force of 74.7 pounds. The test noted a “5/10” pain rating while performing the push/pull section of the test. Dr. Bunch concluded that Mr. Chauvin has the physical capacity to perform all aspects of the job of a pest control technician and can safely pull out the 100-foot spray hose using the simple technique to advance the hose in order to avoid turn point restrictions. Dr. Bunch further stated that he was unable to estimate Mr. Chauvin’s physical demand capacity because Mr. Chauvin exhibited pain-limiting behaviors during the test that were not physiological in nature.

By letter dated February 12, 2010, Mr. Chauvin was informed that his SEBs were being terminated beginning January 2010 based on Dr. Bunch’s FCE determination that Mr. Chauvin has sufficient muscle strength to pull a 100-foot spray hose from the reel of his truck and is physically able to return to the current physical demands of his job as a pest control technician.

In March 2010, Terminix’s medical case manager sent Dr. Gervais a series of questions and had a conference with Dr. Ger-vais to discuss Dr. Gervais’ restrictions in light of Dr. Bunch’s FCE report. Dr. Gervais expressed his disagreement with Dr. Bunch’s FCE, believing that Mr. Chauvin could not give full effort due to pain and finding the conclusions in the report to have questionable significance. Dr. Gervais continued to restrict Mr. Chauvin from pulling forces greater than 15 to 20 pounds and expressed his opinion that Mr. Chauvin could not do his job if the use of the hose is critical.

Shortly before the start of trial, on October 22, 2010, Terminix took the deposition of Dr. Cowen. Therein, Dr. Cowen testified that based on his review of Dr. Bunch’s FCE, he believes that pulling the 3/8-inch hose is within Mr. Chauvin’s physical capabilities and that Mr. Chauvin did not put himself at greater physical risk by engaging in this activity. He disagreed with Dr. Gervais’ opinion that Mr. Chauvin should not pull or exert any force greater than 10 to 15 pounds, stating that such opinion was contradicted by the most recent FCE measuring Mr. Chauvin’s pull force of 72 pounds.

| i2Having thoroughly reviewed the record, we find that the WCJ’s determination that Mr. Chauvin is entitled to SEBs is reasonably supported therein. The WCJ obviously chose to accept Mr. Chauvin’s long-term treating physician’s opinion over that of two physical therapists and a doctor who examined Mr. Chauvin on one occasion and changed his opinion shortly before the trial. The WCJ’s decision to credit Dr. Gervais’ testimony over Terminix’s witnesses is not manifestly erroneous. Therefore, we may not disturb the award of SEBs.

AWARD OF CIALIS, PENALTIES, AND ATTORNEY FEES

In its next two assignments of error, Terminix contends that the WCJ erred in requiring it to pay for Mr. Chauvin’s Cialis medication, prescribed for ED, and in awarding penalties and attorney fees for Terminix’s refusal to continue to pay for Mr. Chauvin’s Cialis prescription. Both of these assignments are based on the factual findings of the trial court.

A workers’ compensation claimant must prove the chain of causation required by the workers’ compensation statutory scheme. Champagne v. Roclan Systems, Inc., 2006-1928, p. 4 (La.App. 1 Cir. 2/20/08), 984 So.2d 808, 814, writ denied, 2008-1356 (La.9/26/08), 992 So.2d 989. A worker who suffers from a pre-existing medical injury may meet his burden of proof of causation if he proves that the accident aggravated, accelerated, or combined with the pre-existing injury to produce an injury resulting in a compensable disability. Id. 2006-1928 at 5, 984 So.2d at 814. Whether a claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Harrison v. Baldwin Motors, 2003-2682, p. 5 (La.App. 1 Cir. 11/3/04), 889 So.2d 313, 316, writ denied, 2005-0249 (La.4/1/05), 897 So.2d 609.

Dr. Gervais was consistent in his testimony both at trial and in his deposition that he attributed the exacerbation of Mr. Chauvin’s ED to medications that he (Dr. Gervais) was giving to Mr. Chauvin for his injury. In his deposition, Dr. Ger-vais stated, “I’m not saying his injury at work or his current back problems was causing his [ED] but its presence because of the medications I was using made it more prominent, made it more severe.” Based on our review of the record before us, we are satisfied that Mr, | ,aChauvin met his burden of proof on causation with regard to the Cialis prescription and find no manifest error in the WCJ’s award concerning same.

Louisiana Revised Statutes 23:1201(1) authorizes the assessment of penalties and reasonable attorney fees when the employer or insurer discontinues payment of claims, when such discontinuance is found to be arbitrary, capricious, or without probable cause. This statute provides for the imposition of penalties and attorney fees to discourage indifference and undesirable conduct by employers and insurers and is essentially penal in nature. Although the workers’ compensation law is to be liberally construed with regard to benefits, penal statutes are to be strictly construed. Cooper v. St. Tammany Parish School Bd., 2002-2433, pp. 9-10 (La.App. 1 Cir. 11/7/03), 862 So.2d 1001, 1009, writ denied, 2004-0434 (La.4/23/04), 870 So.2d 300. The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact, and the WCJ’s findings shall not be disturbed absent manifest error. Sharp v. St. Tammany Marine & Powersports, 2008-1992, pp. 3-4 (La.App. 1 Cir. 9/10/09), 23 So.3d 347, 351. Following a thorough review of the record before us, we find no manifest error in either the WCJ’s determination that Terminix was arbitrary and capricious in discontinuing Mr. Chauvin’s Cialis prescription or in its award of penalties and attorney fees to Mr. Chauvin.

CONCLUSION

For the above and foregoing reasons, we affirm the February 7, 2011 judgment of the OWC, as amended January 9, 2012, by the WCJ. All costs associated with this appeal are assessed against defendant-appellant, Terminix Pest Control, Inc.

AFFIRMED.

KUHN, J., concurs & assigns reasons.

WELCH, J., agrees in part and dissents in part and assigns reasons.

McCLENDON, J., agrees in part and dissents in part for the reasons assigned by Judge WELCH.

HIGGINBOTHAM, J., concurs for reasons assigned by Judge KUHN.

KUHN, J., concurring.

|,In setting forth the applicable standard of review, the majority opinion clearly states that this Court, in reviewing the factual findings of the lower court, should not retry the case, make credibility determinations, or make factual conclusions or draw inferences from factual and credibility determination because to do so is the role of the trial court — here the Office of Workers’ Compensation (OWC).

Notwithstanding this legally correct statement of the standard of review, the dissenters would have this Court retry this case on appeal and substitute their own conclusion as to whether Mr. Chauvin’s work injury aggravated his pre-existing ED condition for that of the factfinder. Courts of appeal review but do not retry cases. I concur for the express purpose of rejecting the dissenters’ approach, which ignores the respective role of the trial court (here the OWC) versus that of the court of appeal.

WELCH, J.,

agreeing and dissenting in part.

|,I agree with the majority opinion on the issue of Mr. Chauvin’s entitlement to SEBs. However, I believe that the WCJ erred in finding that Mr. Chauvin, who had a prior history of ED, demonstrated that his need for Cialis was caused by the work accident.

According to Dr. Gervais, Mr. Chauvin first complained to him of ED symptoms during a May 15, 2009 visit, for which he wrote Mr. Chauvin a prescription for Cial-is. On May 27, 2009, Dr. Gervais signed a “Statement of Medical Necessity for Medication” in which he related the need for the medication to the work accident due to Mr. Chauvin’s extreme lower back pain. In a letter from Mr. Chauvin’s attorney dated June 12, 2009, Dr. Gervais answered “yes” when asked if the need for Cialis is more likely than not related to his injury. During his August 2009 deposition, Dr. Gervais testified that some of the medications Mr. Chauvin was taking for his back problem could cause ED, but Mr. Chauvin was not taking those frequently enough or at high enough doses to explain his persistent problem. At the time Dr. Gervais gave his deposition, he was not aware of Mr. Chauvin’s pre-existing ED problem. He testified that he did not recall Mr. Chauvin having detailed a prior history of ED and that his treatment notes did not indicate a prior history of ED. When asked whether he would relate his diagnosis of ED to a prior ED diagnosis, Dr. Gervais answered, “Probably.” |2He added that some of the medicines he was prescribing for Mr. Chauvin would exacerbate ED that was pre-existing. Dr. Ger-vais admitted that he was not saying that the work injury or Mr. Chauvin’s current back problem caused Mr. Chauvin’s ED, but that the medication Dr. Gervais prescribed made it more prominent, more severe.

At trial, Dr. Gervais testified that Mr. Chauvin had some degree of ED before the work accident and that Mr. Chauvin had a prior diagnosis of ED. However, when questioned by the WCJ regarding Mr. Chauvin’s prior ED, Dr. Gervais admitted he did not know the cause thereof because he did not investigate it. He testified that regardless of the cause of the ED, he knew that some of the medications he was giving Mr. Chauvin would cause an exacerbation or worsening of the symptoms. The WCJ then questioned Dr. Ger-vais as to what difference it would make if Mr. Chauvin was taking medication for ED prior to the accident and was taking it after the accident. Dr. Gervais admitted that he did not know, and stated: “He complained about it to me so I presumed it was more of a problem now for him. I presumed. I don’t know. I didn’t really look at his prior history as far as Erectile Dysfunction goes because I knew the medicines I was giving him would cause it to stop. I wasn’t that surprised about it.”

Mr. Chauvin was required to establish by a preponderance of the evidence that his work injury aggravated his pre-existing ED condition. Mr. Chauvin failed to do so. He did not offer any evidence to establish the extent of his ED prior to and after the accident. Moreover, in rendering his opinion that the work injury exacerbated Mr. Chauvin’s pre-existing ED, Dr. Gervais admitted that he did not look at Mr. Chauvin’s prior ED history. Mr. Chauvin did not prove that his preexisting ED condition actually became worse as a result of the medications he was taking for the work accident. Therefore, I find that the WCJ committed manifest error in awarding Mr. Chauvin the cost of the Cial-is medication. Accordingly, I 653would reverse that portion of the judgment awarding Mr. Chauvin the cost of the Cial-is medication and the award of penalties and attorney’s fees based solely on Termi-nix’s refusal to pay for that medication.

      . The record reflects that Terminix approved of Mr. Chauvin’s Cialis prescription on a short-term basis after receiving a letter of medical necessity from Dr. Gervais. However, on August 10, 2010, Terminix declined to pay the cost of the Cialis prescription and refused to cover the cost thereafter.

      . Although Mr. Chauvin has requested an additional award of attorney fees for efforts performed in relation to this appeal, Mr. Chauvin has neither appealed nor answered the appeal in this matter. Accordingly, this relief may not be granted. La.Code Civ. P. art. 2133; Brown v. Kwok Wong, 2001-2525, p. 11 n.5 (La.App. 1 Cir. 12/20/02), 836 So.2d 315, 322 n. 5.

      . The record reflects that Terminix approved of the prescription medication on a short-term basis after receiving a letter of medical necessity from Dr. Gervais. However, on August 10, 2010, Terminix declined to pay the cost of Mr. Chauvin's Cialis prescription and refused to cover the cost thereafter.


author: CLARENCE E. McMANUS, Judge.

text:
    Kyle RICHERT v. SCHINDLER ELEVATOR CORP.
    No. 11-CA-1099.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2012.

      Murphy, Rogers, Sloss & Gambel, John H. Musser, V, Emily Stevens Hardin, Attorneys at Law, New Orleans, LA, for PlaintiffiAppellee.

      Taylor, Wellons, Politz & Duhe, Paul J. Politz, Daryl J. Daigle, Tanner D. Magee, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

lain this worker’s compensation matter the employer, Schindler Elevator Co. (hereinafter “Schindler”), appeals from a judgment finding it to be liable for supplemental earning benefits and medical expenses, and finding that it was arbitrary and capricious in its failure to pay same and therefore liable for penalties, attorney’s fees and costs. For the reasons that follow, we amend the judgment to award costs for this appeal, and as amended, affirm the judgment of the worker’s compensation court.

Claimant, Kyle Richert, was injured on January 29, 2009, while during the course and scope of his employment, when his knee was crushed between two large spools of chain. At the time of the accident, he was an apprentice for the elevator union. He would assist elevator mechanics in the performance of their duties. In performing his duties, he was required to lift heavy objects. The job required a lot of kneeling, bending and climbing. Balance was also an important element. On the day of the accident, he was unloading a flatbed truck carrying heavy spools of chain, each weighing 450 to 500 pounds. His leg got caught between a moving spool and a stationary spool. He stated that the moving spool hit him with sufficient velocity that it bent a knife that was in his pocket.

At the time of injury, he heard a loud pop, and felt pain. He sat on the sidelines while others finished unloading the truck.

He stated that he thought it[swas a sprain, and that he hoped the knee would get better on its own, so he spent the weekend resting. (The accident occurred on a Friday.) However, his knee became swollen and by Sunday, his whole leg was hurting. He went to work on Monday, but was unable to work. At that time, he filled out an accident report and was sent for medical attention.

Mr. Richert was sent to Concentra Medical Center for treatment, where he was treated by an internist and received physical therapy. After failing to show improvement, Concentra referred Mr. Ric-hert to Dr. Robert Steiner, an orthopedist. Mr. Richert first saw Dr. Steiner on March 11, 2009, and Dr. Steiner diagnosed a soft tissue injury and prescribed anti-inflammatories, pain medication and more physical therapy. Dr. Steiner’s review of the MRI showed no abnormalities. Mr. Richert was seen several more times, culminating in his last visit to Dr. Steiner in early June of 2009. At that time, Dr. Steiner released him to return to work with no restrictions. Mr. Richert testified that he told Dr. Steiner that he was still having pain and swelling in his knee and that Dr. Steiner told him at that point that is would take approximately nine months for his knee to “feel better.”

During the time from the date of his injury, Schindler placed Mr. Richert on light duty work in the office; however they continued to pay his full salary. After a few months Mr. Richert was moved to the warehouse, where he was placed on light to medium work, and where Schindler still continued to pay him his full salary. He continued at the warehouse until July of 2009 when he was laid off.

Thereafter Mr. Richert performed two temporary jobs for the elevator union, one for Travertine Elevator Interiors and one for American Crescent Elevator Company.

The first was light work; however the second required the usual apprentice duties. He stated that his knee hurt the entire time he worked, and that he would take Ibuprofen while on the job and ice his knee to reduce swelling every 14night. The second job lasted two weeks and, at its end, he realized that he would not be able to return to being an apprentice at that time because of the pain and swelling to his knee. Mr. Richert testified that he did not return to Dr. Steiner because Steiner had told him that it would take time for his knee to totally heal.

Mr. Richert testified that he did not receive any more temporary jobs through the elevator union, so he filed for unemployment and began to look for work. During this time period, he was not performing heavy labor so his knee did not swell, however he still continued to feel pain and tenderness.

Because the knee had not healed as Dr. Steiner said it would, on May 21, 2010 Mr. Richert requested that he be allowed to see a physician of his choice. He consulted Dr. Charles Haddad, an orthopedic surgeon with the Pontchartrain Bone and Joint Clinic. Mr. Richert was examined by Dr. Haddad on May 31, 2010. Dr. Haddad requested a second MRI, and this one also showed no abnormality. However, by this time Mr. Richert had experienced one and one-half years of knee pain. Dr. Haddad concluded that claimant might have sustained an injury to a superficial nerve, such as saphenous nerve. Dr. Had-dad recommended an evaluation by Dr. Martinez, a pain management therapist, and also indicated the possibility of a nerve block. Finally, Dr. Haddad indicated that orthoscopic surgery might be necessary to determine whether there was scar tissue causing nerve damage. At this time Mr. Richert was not working, and Dr. Haddad was not asked to assign any work restrictions.

Schindler did not authorize treatment and instead sent Mr. Richert to Dr. Steiner for a second opinion. Dr. Steiner examined Mr. Richert on October 4, 2010, and concurred with Dr. Haddad, stating that he believed that there might be a neuroma and agreeing with Dr. Haddad’s recommendation that Mr. Richert be evaluated. Dr. Steiner further stated that “It is too soon to predict MMI [maximum [ fimedical improvement] or when he [Mr. Richert] could be discharged from a medical standpoint.”

On September 7, 2010, Mr. Richert filed his disputed claim for compensation. At this point, Schindler had not approved treatment with Dr. Haddad or Dr. Martinez.

In November of 2010, Mr. Richert obtained employment with Doggett Machinery as a warehouse man, making considerably less than he made as an elevator apprentice. He was able to perform the duties, with assistance from other warehouse personnel if heavy lifting was required.

Thereafter, Mr. Richert was seen by Dr. Haddad on April 13, 2011, at which time Dr. Haddad restricted him to light duty work. Dr. Haddad repeated his recommendation that Mr. Richert receive a diagnostic and therapeutic injection, or exploratory surgery of the nerve.

Mr. Richert filed a rule to show cause regarding the authorization of treatment with Dr. Martinez, and on May 24, 2011, the trial court rendered judgment finding that “the pain management ‘initial evaluation’ with Dr. Martinez, is reasonable and necessary and approved.” (Emphasis in original.)

Shortly before trial, on May 20, 2011 Schindler filed an exception of prescription. The hearing on the merits of Mr. Richert’s disputed claim for compensation was held on May 23, 2011. Via post-trail memorandums, the parties stipulated that claimant’s total, temporary disability rate would be $546.00 per week and that his SEB benefits while employed at Doggett Machinery would be $226.14 per week.

After the hearing on the merits, the worker’s compensation court rendered judgment on August 10, 2011, finding that the disputed claim for compensation was not prescribed. The court ruled that Mr. Richert was entitled to supplemental | earning benefits from January 29, 2009 through July 25, 2009, and from July 25, 2010 to November 7, 2010 in the amount of $546.00 per week, subject to a credit for any overpayment as a result of being paid full wages in lieu of compensation during the time period of January 29, 2009 through July 25, 2009. The court found that Mr. Richert was not entitled to supplemental earning benefits from July 26, 2009 to July 24, 2010 when he was receiving unemployment benefits. The court also found that Mr. Richert was entitled to supplemental earning benefits from November 8, 2010 through the present and continuing in the amount of $226.14 per week and that Mr. Richert was entitled to medical expenses, medication expenses and transportation expense. Finally, the worker’s compensation court found that the employer did not reasonably controvert claimant’s entitlement to supplemental earning benefits, medicals and diagnostic tests, and he assessed penalties of $8,000.00 and attorney’s fees of $8,000.00.

Defendant, Schindler Elevator Company appeals from the worker’s compensation court’s ruling, alleging that the court erred in awarding supplemental earning benefits for time periods prior to April 13, 2010 (the date the Dr. Haddad restricted Mr. Richert to light duty work), and alleging that the trial court erred in awarding penalties and attorney’s fees. Schindler does not challenge the court’s ruling that the claim is not prescribed. Mr. Richert answered the appeal, seeking an increase in attorney fees for defense of the appeal.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of review. Clay v. Our Lady of Lourdes Regional Medical Center, Inc., 11-1797 (La.5/8/12), 93 So.3d 536.

It is well-settled in our jurisprudence that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Ardoin v. Firestone Polymers, L.L.C., 10-0245 at p. 6 (La.1/19/11), 56 So.3d 215, 219. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s | conclusion was a reasonable one. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883. However, where documents or objective evidence so contradict the witness’ story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’ story, the court of appeal may find manifest error or clear wrongness, even in a finding purportedly based upon a credibility determination. Id. at 882; Rosell v. ESCO, 549 So.2d 840 (La.1989).

Zito v. Advanced Emergency Medical Services, Inc., 11-2382 (La.5/8/12), 89 So.3d 372.

In its first allegation of error, employer contends that the worker’s compensation judge was manifestly erroneous in finding claimant was entitled to SEBs from June 3, 2009 through July 25, 2009, as well as from July 10, 2010 through November 7, 2010 and November 8, 2010 through to April 13, 2011. Schindler alleges that, since Dr. Haddad did not restrict claimant to light duty until April 13, 2011, he failed to meet his burden of proof that he had any type of disability whatsoever during those time periods.

An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). “The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2793 (La.1/9/11), 56 So.3d 170, 174, citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556.

Initially, the employee bears the burden of proving, by a preponderance of the evidence, that his injury resulted in his inability to earn that amount under the facts and circumstances of his individual case. Poissenot, supra at 174. Once the employee meets his burden of proof, the burden then shifts to the employer to IsProve by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was either offered to the employee or was available to the employee in his or the employer’s community or reasonable geographic area. LSA-R.S. 23:1221(3)(c)(I); Poissenot, supra at 174.

In this case, Schindler does not argue that Mr. Richert is not injured, or that he is not currently entitled to SEB payments. Instead, Schindler contends that Mr. Ric-hert did not meet his burden of proving that he was not able to earn 90% of his pre-injury wages from the time of the accident until the time he was restricted to light duty work by Dr. Haddad.

Mr. Richert testified that from the time of the injury until the date of trial, he was physically unable to perform his pre-injury employment. Immediately after the accident, Mr. Richert was placed on light duty employment, while making his former wage in lieu of worker’s compensation benefits. He has not returned to his former employment, with the exception of a two week attempt which showed him that he was unable to continue in that employment, since the accident. There has been no evidence to suggest that Mr. Richert could and did return to his pre-injury employment, and then became re-injured or had some other event so as to disqualify him from SEB benefits until his April 13, 2011 visit to Dr. Haddad. In addition, Mr. Richert testified that, after Schindler laid him off and he was unable to obtain work through the Elevator’s Union, he continued to unsuccessfully look for employment while collecting unemployment benefits, and that he eventually found a job paying less than 90% of his pre-injury wages. Mr. Richert proved, by a preponderance of the evidence, that he was unable to earn 90% of his average pre-injury. The burden then shifted to Schindler to show that Mr. Richert could perform the duties of an elevator apprentice, and that the job was offered or was available. Schindler presented no evidence to meet its burden of proof. Thus, the |3worker’s compensation court did not commit manifest error in determining that plaintiff was entitled to supplemental earning benefits. This allegation of error is without merit.

In his second allegation, the employer alleges that the trial court erred in awarding penalties and attorney’s fees for failure to pay SEBs during the time periods listed.

LSA-R.S. 23:1201 provides 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.
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.
J. Notwithstanding the fact that more than one violation in this Section which provides for an award of attorney fees may be applicable, only one reasonable attorney fee may be awarded against the employer or insurer in connection with any hearing on the merits of any disputed claim filed pursuant to this Section, and an award of such single attorney fee shall be res judicata as to any and all conduct for which penalties may be imposed under this Section which precedes the date of the hearing.

In Washington v. Shaw Group, 10-568 (La.App. 5 Cir. 5/10/11), 68 So.3d 10, 12-13, writ denied, 11-1211 (La.9/23/11), 69 So.3d 1159, this court said

The purpose of imposition of penalties and attorney’s fees is to discourage indifference and undesirable conduct by employers and insurers. Redler v. | inGiorlando’s Restaurant Corporation, 07-658 (La.App. 5 Cir. 2/6/08), 979 So.2d 512. Awards of penalties and attorney’s fees in worker’s compensation cases are essentially penal in nature. Id. The crucial inquiry in determining whether to impose penalties and attorney’s fees on an employer is whether the employer had an articulate and objective reason to deny benefits at the time it took action. Id. The determination of whether an employer or insurer should be cast with penalties and attorney’s fees in a workers’ compensation action is essentially a question of fact subject to the manifest error or clearly wrong standard of review. Id. The fact that an employer is subjectively motivated to avoid paying compensation is not determinative. Id. Neither is the fact that an employer loses a disputed claim. Id. The crucial inquiry is whether the employer had an articulable and objective reason for denying or discontinuing benefits at the time it took that action. Id. Whether the employer’s act is arbitrary, capricious or without probable cause depends upon the facts existing and known to the employer at the time its decision as to benefits was made. Id.

In this case, Schindler failed to pay any indemnity benefits. Instead, it first assigned him to work at a job normally commanding a lesser pay grade while continuing to pay his salary, and then it laid Mr. Richert off, citing lack of work. Approximately one year later, when Mr. Ric-hert sought treatment with the physician of his choice, Schindler did not pay for treatment and instead referred him for a second opinion. Even after Schindler’s physician concurred in the need for additional testing and treatment, Schindler did not authorize same, instead requiring Mr. Richert to file a rule to order the authorization of additional testing. In addition, throughout this time period, Schindler failed to pay SEB benefits, although Mr. Richert was not employed from July 10, 2010 through November 10, 2010, and was employed but not able to earning 90% of his pre-employment wages from November 10, 2010 through the date of trial. Schindler does not explain its failure to authorize the medical expenses for pain management testing recommended by both Dr. Haddad and by Dr. Steiner on reevaluation, as well as any continued treatment by Dr. Haddad to determine the necessity for surgery and/or other medical treatment, which it certainly knew about as early as May 2010, and certainly by June 2010 when Dr. Steiner concurred with Dr. Had-dad’s Infindings. Schindler also does not present any evidence to show why it failed to pay SEB benefits from July 10, 2010 until the date of trial, and failed to engage in any steps to provide vocational training or job location. It finally does not explain why, after Mr. Richert himself secured a job at less than 90% of his pre-injury wages, it failed to pay SEB benefits. Instead, Schindler argues that it was entitled to rely on Dr. Steiner’s original report, even after Dr. Steiner himself agreed with the findings of Dr. Haddad. Under these circumstances, we cannot find that the worker’s compensation court was manifestly erroneous in assessing penalties of $8,000.00 and attorney’s fees of $8,000.00. We find this allegation of error to be without merit.

Mr. Richert has filed an answer and seeks additional attorney fees incurred as a result of this appeal. “An increase in attorney’s fees is awarded on appeal when the defendant appeals, obtains no relief, and the appeal has necessitated more work on the part of the plaintiffs attorney, provided that the plaintiff requests such an increase.” Russell v. H & H Metal Contractors, Inc., 11-27 (La.App. 3 Cir. 6/1/11), 65 So.3d 806, 819. A review of the record indicates that the claimant’s counsel requested such attorney fees and filed a brief in support of the workers’ compensation ruling. Therefore, we amended the judgment of the worker’s compensation court to award an additional $1,500.00 in attorney fees for this appeal.

For the above discussed reasons, the judgment of the worker’s compensation court is amended in part to award an additional $1,500.00 for costs of this appeal, and as amended, is affirmed. All costs are assessed against appellants.

AMENDED IN PART AND AS AMENDED, AFFIRMED


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Calvin MITCHELL.
    No. 11-KA-1018.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2012.

      Sherry A. Watters, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

12Pefendant, Calvin Mitchell, was charged by grand jury indictment with one count of second degree murder, in violation of LSA-R.S. 14:30.1, and one count of attempted second degree murder, in violation of LSA-R.S. 14:27 and R.S. 14:3o.!. He was arraigned and pled not guilty to the charges. The matter proceeded to trial on February 15, 2011. On February 18, 2011, the jury returned a verdict of guilty as charged.

On April 18, 2011, the trial court imposed sentence. On the second degree murder conviction, the trial court sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On the attempted second degree murder conviction, the trial court sentenced defendant to 25 years without benefit of parole, probation, or suspension of sentence. The sentences were ordered to run concurrently. Defendant appeals.

FACTS

On December 29, 2008, at approximately 11:00 a.m., defendant and Jules Robertson went to the house of their cousins, Craig and Kyron Cain, in LaPlace, |SL ouisiana. Also present was a friend of the Cain family, Lacohen Watson. The five men played basketball before heading to Rusty’s pool hall around 8:00 p.m. that night. A few hours later, around 10:30 or 11:00 p.m., the group left Rusty’s and proceeded to Jules’ house. When they arrived, defendant and Jules proceeded inside, while Craig, Kyron, and Lacohen waited in the vehicle.

Craig Cain testified that after defendant and Jules returned to the vehicle, the five men drove around Reserve and passed down 24th Street where they observed a green vehicle with a man in it. They turned off of 24th Street and made their way up a parallel street. According to Craig, defendant and Jules then told Craig, who was driving, to stop the vehicle and let them out so that they could get some marijuana. Defendant and Jules exited the vehicle and proceeded toward 24th Street. Craig parked the vehicle, turned off the lights and engine, and waited for defendant and Jules to return. Moments later Craig, Kyron, and Lacohen heard multiple gunshots. According to Craig, when defendant and Jules returned to the car, Jules said, “I think that was a girl,” and they told Craig to bring them home.

According to Craig, when they arrived at Jules’ house, everybody exited the vehicle and proceeded inside to his bedroom. Once inside, Jules put a .45 caliber handgun on the bed and defendant put a 9 mm handgun on the bed. Craig, Kyron, and Lacohen then went home.

Ron James testified that on the night of December 30, 2008, he was seated in the driver’s seat of his parked vehicle conversing with his friend, Nekeshia Joseph, in the passenger seat. While they talked, two hooded men walked by the vehicle and then turned around to come back to the vehicle. This prompted Ms. Joseph to ask Mr. James, “You know those guys? They coming back.” When Mr. James |4looked up, defendant was standing at his window with a gun and told Mr. James, “Give it up.” Mr. James testified that he recognized the gunman as defendant because he knew him “like family,” since defendant’s brother was Mr. James’ cousin. The other individual was on the passenger side and Mr. James was able to see that he had dreadlocks. Defendant then said, “Duty, that’s Chill.” At this moment, the gunman on the passenger side started shooting. This prompted Mr. James to attempt to drive away. As he pulled away from the curb, the gunman followed the vehicle and continued to shoot. Once the vehicle was out in the middle of the street, defendant started shooting. As a result of the shooting, Mr. James sustained a gunshot wound to his leg and abrasions to his face from broken glass. Ms. Joseph sustained twelve gunshot wounds and died as a result.

Nearly a week later, on January 5, 2009, Mr. James identified defendant from a photographic lineup as the person who shot him from the driver’s side. He testified that when he was shown the lineup, he was able to immediately identify defendant and indicated, “Calvin’s the one that shot me.”

On August 12, 2009, defendant, who was incarcerated in Georgia on an unrelated armed robbery charge, met with St. John the Baptist parish detectives. According to Detective Walter Stevens, defendant was advised of his rights, indicated he understood them, executed a waiver thereof, and agreed to give a statement. At first he denied any involvement in the shooting, but he later admitted that Mr. James’ version of events was accurate. He stated that he used a 9 mm weapon and that he got off two shots before it jammed.

LAW AND DISCUSSION

In his first assignment of error, defendant argues that his convictions violate his right to due process of law because they were obtained by non-unanimous jury | ¿verdicts. He contends that LSA-C.Cr.P. art. 782, which permits non-unanimous jury verdicts, is unconstitutional. He acknowledges the precedent of Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), in which the United States Supreme Court held that non-unanimous jury verdicts in state felony trials are constitutional. However, he argues that subsequent developments in the Supreme Court’s jurisprudence calls that holding into serious question, citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and McDonald v. City of Chicago, — U.S. —, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Defendant further acknowledges that the Louisiana Supreme Court has rejected the argument that a non-unanimous verdict violates the Fifth, Sixth or Fourteenth Amendments of the U.S. Constitution. See State v. Bertrand, 08-2215 (La.3/17/09), 6 So.3d 738. However, he still maintains that the non-unanimous verdicts violated his right to due process of law.

LSA-C.Cr.P. art. 782(A) provides in pertinent part: “Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.”

The Louisiana Supreme Court has previously discussed and affirmed the constitutionality of LSA-C.Cr.P. art. 782. In State v. Jones, 381 So.2d 416, 418 (La.1980), the Court ruled that LSA-C.Cr.P. art. 782 did not violate the Sixth and Fourteenth Amendments. Later, in State v. Simmons, 414 So.2d 705, 707 (La.1982), the Court found that LSA-C.Cr.P. art. 782 did not violate either the Fifth or Fourteenth Amendments. In Bertrand, OS-2215 at 5-8, 6 So.3d at 741-43, the Court again affirmed the statute’s constitutionality-

As an intermediate appellate court, this Court is obliged to follow the precedent established by the Louisiana Supreme Court. State v. Thomas, 10-220, pp. 12-13 (La.App. 5 Cir. 11/9/10), 54 So.3d 678, 686, writs denied, 10-2758 (Laj4/25/11),fi 62 So.3d 89 and 10-2752 (La.5/20/11), 63 So.3d 974. This Court has consistently followed the Louisiana Supreme Court’s jurisprudence on this issue. See, e.g., State v. Carter, 10-973 (La.App. 5 Cir. 8/30/11), 75 So.3d 1, writ denied, 11-2060 (La.2/10/12), 80 So.3d 469; State v. Wade, 10-997 (La.App. 5 Cir. 8/30/11), 77 So.3d 275; State v. Jacobs, 07-887, pp. 81-83 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 591-92, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468.

Defendant nonetheless argues that this issue should be reconsidered in light of recent United States Supreme Court decisions that call Apodaca into question. Specifically, he cites McDonald v. City of Chicago, — U.S. —, 130 S.Ct. 3020, 3021, 177 L.Ed.2d 894 (2010) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). However, the United States Supreme Court did not overturn Apodaca in either of these decisions. In fact, the McDonald Court stated: “The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials.” McDonald, 130 S.Ct. at 3035 n. 14 (Emphasis supplied).

Accordingly, considering that the United States Supreme Court and the Louisiana Supreme Court have held that a unanimous jury verdict is not required in state criminal trials, we find that this assignment of error is without merit.

In defendant’s second assignment of error, he argues that the trial court erred by admitting evidence of other crimes or bad acts, in violation of LSA-C.E. art. 404(B) and State v. Prieur, 277 So.2d 126 (La.1973). Specifically, he contends that testimony regarding defendant’s involvement with the drug trade, testimony regarding a pending armed robbery charge, and testimony regarding claims that defendant was intimidating or threatening witnesses were all impermissible references to evidence of other crimes or bad acts, and were inadmissible as such.

|7Pefendant first points out that testimony was solicited from Terrel Hutchinson that defendant bought drugs from Ron James. On cross-examination by the co-defendant’s attorney regarding a statement given by Mr. Hutchinson, the following occurred:

Q: Okay. And then you said that, “Calvin told me he dealt, he dealt with Ron [James] as buying drugs from him.”
A: Right.
Q: Correct?
A: That’s, if that’s what it says, yes.
Q: Okay. And then you said, “He knew him like that, you know what I’m saying, like buying drugs from him.”
A: Right.

In addition, on redirect examination by the prosecutor, the prosecutor stated: “When you were talking to the detectives and they were questioning you — Talking about the dealing of, the purported dealing of drugs by Ron James. Did Calvin, in your conversation, provide you with information about Ron James?”

Defendant also points out that testimony was solicited from Detective Walter Stevens regarding defendant’s incarceration in Georgia on an armed robbery charge. On direct examination by the State, the detective stated: “[S]omebody called us and said that they believed Calvin was incarcerated in DeKalb County jail on an armed robbery charge, or whatever. So I called down there and, in fact, it was true.”

Defendant did not lodge a contemporaneous objection to the testimony of Mr. Hutchinson or Detective Stevens, nor did he request an admonition or a mistrial pursuant to LSA-C.Cr.P. arts. 770 and 771. LSA-C.Cr.P. art. 841(A) provides: “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” To preserve the right to appellate review of an alleged trial court error, a party must state a contemporaneous objection with |sthe occurrence of the alleged error as well as the grounds for the objection. State v. Enclard, 03-288 (La.App. 5 Cir. 6/19/03), 850 So.2d 845, 853.

In the instant case, because defendant did not contemporaneously object to the testimony of Mr. Hutchinson or Detective Stevens, we find that these issues were not properly preserved for this Court’s consideration.

Defendant also alleges that various impermissible references were made in regard to defendant intimidating or threatening witnesses. During the State’s redirect examination of Terrel Hutchinson, the following colloquy occurred:

Q: How do you, I mean, how do you feel about testifying today and telling, and telling your story today? I mean, is this easy for you?
A: No, it’s not easy. And I very well could be killed for this. But I don’t care because it wasn’t my fault. I didn’t do it. I didn’t have nothing to do with it. And people been trying to kill me for the past two years.”

The co-defendant’s counsel then objected on the grounds of relevance. During the State’s direct examination of Craig Cain, the following occurred:

Q: —it is hard for you. Do you feel under threat from anyone?
A: Not from no one in here but from the, you know, outside world, whatever. You know, I feel I’m putting my life in jeopardy being up here.
Q: Okay.
A: I mean, they stopping me from saying what need to be said.
Q: So with your life being in jeopardy you’re not going to get — You’re telling— It’s because you’re telling the truth, right?
A: Excuse me, sir?
Q: You feel jeopardized because you’re telling the truth or because you’re telling a lie?
A: Because I’m telling the truth.
Q: Because you’re telling the truth. Because of the truth you’re being threatened, right?
A: Yes.

The prosecutor later stated: “I understand these are your cousins and this is hard for you to testify.”

During the State’s direct examination of Kyron Cain, the following occurred:

|9Q: Okay. Kyron, you, you recently received a phone call, didn’t you, let’s say Tuesday, Tuesday night?
A: Yes, sir.
Q: I see. And you received a phone call. And who was on the other end of that phone conversation Tuesday night?
(No response)
Q: You don’t remember who was on the phone conversation that Tuesday night?
A: I don’t remember.
Q: You don’t recall receiving a three-way call where Mr. Jules Robertson and his sister was on the phone with you Tuesday night?
THE COURT: What’s your answer, sir?
A: Yes, sir.
Q: You do recall receiving a phone conversation Tuesday night?

At this point counsel for co-defendant objected and moved for a mistrial on the basis that the prosecutor insinuated that Jules Robertson was engaged in witness intimidation. Defendant’s counsel then joined in the motion for mistrial. The trial court denied the motion.

The prosecutor continued his direct examination of Kyron Cain as follows:

Q: Were you ever threatened by Jules Robertson?
A: No, sir.
Q: Were you threatened by his sister? A: No, sir.
Q: Have you ever been or have they ever threatened you?
A: No, sir.

The record before us reveals that the alleged references to witness intimidation complained of by defendant pertained to co-defendant, Jules Robertson. In the various foregoing excerpts, there is not one reference to defendant.

In State v. Carter, 07-270 (La.App. 5 Cir. 12/27/07), 976 So.2d 196, this Court confronted a situation in which it was alleged that impermissible references | j(|were made to other crimes evidence. The alleged references occurred while the co-defendant was on the stand. This Court determined that “none of the prosecutor’s questions or the codefendant’s answers unmistakably pointed to evidence of another crime committed by the defendant.” State v. Carter, 07-270, p. 8 (La.App. 5 Cir. 12/27/07), 976 So.2d 196, 201. Thus, the court concluded that the trial court did not err in denying the defendant’s motion for mistrial. Id., 07-270 at 9, 976 So.2d at 202.

In the instant case, neither the prosecutor’s questions nor the witnesses’ responses unmistakably pointed to evidence of another crime committed by defendant. Accordingly, we find that the trial court did not err in denying defendant’s motion for a mistrial.

Even if impermissible references were made to other crimes, any such error is subject to a harmless error analysis. State v. Santos, 09-789, p. 14 (La.App. 5 Cir. 4/13/10), 40 So.3d 167, 175, writ denied, 10-1080 (La.11/24/10), 50 So.3d 828. An error is harmless when the verdict is surely unattributable to the error. Id.

In the instant case, considering the other incriminating evidence against defendant, the verdict was surely unattributable to the alleged other crimes evidence. Defendant confessed to his involvement in the shooting, was identified by the victim as one of the gunmen, and was placed at the scene by the testimony of three witnesses. Accordingly, even if impermissible other crimes evidence was permitted, the admission was harmless. Accordingly, we find that this assignment of error has no merit.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors requiring corrective action.

11 ¡DECREE

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

AFFIRMED

      . On April 6, 2009, a St. John the Baptist parish grand jury issued an indictment charging defendant with first degree murder in violation of LSA-R.S. 14:30. On October 5, 2009, the State amended the indictment, reducing the charge to second degree murder in violation of LSA-R.S. 14:30.1. On February 7, 2011, the State again amended the indictment, adding a charge of attempted second degree murder in violation of LSA-R.S. 14:27:30.1.

      . Co-defendant, Jules Robertson, was also convicted of both charges.

      . In his statement to police during an interrogation on January 15, 2009, Craig Cain stated that as they passed the vehicle, defendant said, "Look at that n* * * *r in that car right there.” Jules said, "I gotta shoot 'em to stop f* * * * *g with me 'cause I don't like nobody from Reserve.”

      .The record reflects that "Chill” is Mr. James’ nickname and "Duty” is Jules' nickname.

      . Counsel filed an emergency writ with this Court seeking review of the trial court’s denial of the motion for mistrial. However, this court denied relief with the following disposition:
      In this writ application, defendant alleges that the trial court erred in denying his motion for mistrial, made after questioning by the district attorney which defendant alleges was an impermissible reference to other crimes. The trial court, in denying the motion, found that the testimony in question was not an impermissible reference to other crimes. On the showing made, we find no error in the trial court's ruling. Relator may re-urge this allegation on appeal in the event of conviction. State v. Robertson, 11-174 (La.2/18/11) (unpublished writ disposition).