text:
    Claude PRINE, et al., Plaintiffs-Appellants v. Donovan W. BAILEY, M.D., Defendant-Appellee.
    No. 45,815-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.
    Nelson & Hammons, Shreveport, LA by John L. Hammons, for Appellants.
    McNew, King Mills, Burch & Landry, Monroe, LA by Brady D. King, II, for Appellee.
    Before BROWN, PEATROSS, and DREW, JJ.
   BROWN, Chief Judge.

| gThis is a medical malpractice case. Plaintiffs are Claude Prine, the surviving spouse of Mary Prine, and the couple’s two adult children, Toni Prine Shumate and David Prine. Plaintiffs allege that defendant, Dr. Donovan W. Bailey, was Mrs. Prine’s primary care physician and that he breached the applicable standard of care by failing to recommend colorectal cancer screening for Mrs. Prine after she reached 50 years of age. Plaintiffs allege that defendant’s medical negligence caused Mrs. Prine’s wrongful death.

In April of 2001, Dr. Bailey gave Mrs. Prine a “Stool Occult Blood Test Kit.” She returned the slides as instructed. The slides tested positive, and Dr. Bailey sent Mrs. Prine to a gastroenterologist who performed a colonoscopy and found a large mass in her ascending colon. Mrs. Prine was diagnosed with colon cancer. On May 21, 2001, the tumor was surgically removed. Mrs. Prine, however, died on June 20, 2001, at the age of 58. The | acause of death was determined to be pulmonary embolus secondary to deep vein thrombosis. Plaintiffs allege that these disease processes were complications of Mrs. Prine’s underlying colon cancer.

The cause of action was submitted to a medical review panel. The panel noted but did not address the question of the physician’s duty to recommend colon cancer screening; instead, it reasoned that Mrs. Prine did not die as the result of colon cancer. Specifically, the panel stated that the cancer was timely diagnosed and addressed by surgical intervention. Implicitly, the panel found that the applicable standard of care was not breached. The panel concluded that: “Mrs. Prine died as a result of a pulmonary embolism. By history, this was most likely as a result of her known peripheral vascular disease.” Following this decision this wrongful death and survival action was filed.

After trial, the court found that “[T]he legal issue is whether Dr. Bailey was Mrs. Prine’s ‘primary health care provider.’” The trial court found that Dr. Bailey was not and thus “did not have a duty to offer Mary Prine colorectal screening.” It is from this judgment that plaintiffs have appealed. We affirm.

Discussion

14A cause of action based on the negligence of a health care provider consists of the following elements: 1) a duty of care owed by the health care provider to the injured party; 2) breach of that duty by failure to abide by the appropriate standard of care; 3) a causal connection between the breach and the patient’s injury or death; and 4) damages. La. R.S. 9:2794; Gibson v. Bossier City General Hosp., 594 So.2d 1332 (La.App. 2d Cir. 1991). In the case under review, the first element of the cause of action that must be established is whether Dr. Bailey owed Mrs. Prine a duty to advise or offer her colon cancer screening. If such a duty of care was not owed then Dr. Bailey cannot be found liable and the other essential elements of a malpractice case — breach of the appropriate standard of care, causation and damages — are not reached.

The relationship at the relevant time between doctor and patient determines the duty owed. There is apparent agreement that since 1997 colorectal screening by he-moccult, flexible sigmoidoscopy or colonos-copy should be recommended to patients starting at age 50. There is likewise agreement that the “primary health care provider” is responsible for recommending such screening. Exactly who is such a primary health care provider is not defined but considered generally as one who manages and monitors a patient’s health. That is, one who practices preventive or wellness 1 ¿medicine, which includes pediatricians, internists, family practitioners, general practitioners, obstetricians, and gynecologists.

At the outset, plaintiffs argue that our review should be de novo. Plaintiffs assert that the trial court disregarded expert evidence adduced at trial and merely substituted its own conclusions and opinions in reaching its final judgment. Although the trial court did not refer to any particular expert in its reasons for judgment, it is clear that the trial court relied upon all of the expert testimonies in determining the definition of a primary health care physician and the standard of care regarding the need for colorectal screening. In addition, the trial court correctly noted that there was no statute, regulation or scholarly writings definitively answering the primary care physician question. There was no written contract between Mrs. Prine and Dr. Bailey. Thus, the court necessarily had to examine the particular facts and circumstances of the case to determine the professional relationship between the doctor and patient. We must review this factual question under the manifest error standard.

Appellate review of the trial court’s findings in a medical malpractice action is limited. Corley v. State, Dept. of Health and Hospitals, 32,613 (La.App.2d Cir.12/30/99), 749 So.2d 926. If the record, when read in its entirety, supports the fact-finder’s conclusions and those conclusions are | (¡reasonable, an appellate court cannot reverse or modify the trial court’s judgment based on those factual conclusions. An appellate court can only reverse a fact-finder’s determinations when: (1) it finds from the record that a reasonable factual basis does not exist for the findings of the trial court, and (2) it further determines that the record establishes that the findings are manifestly erroneous. Lovelace v. Giddens, 31,493 (La.App.2d Cir.02/24/99), 740 So.2d 652, writ denied, 99-2660 (La.11/24/99), 750 So.2d 987. When expert opinions contradict concerning compliance with the applicable standard of care (or, as in this case, who was the primary care physician), the trial court’s conclusions will be granted great deference. It is within the province of the fact-finder to evaluate the credibility of such experts and their testimony. King v. State ex rel. Dept. of Health and Hospitals, 31,651 (La.App.2d Cir.02/24/99), 728 So.2d 1027, writ denied, 99-0895 (La.05/07/99), 741 So.2d 656; Gibson v. Bossier City General Hospital, supra.

As noted above, the determinative issue of this appeal is whether defendant was Mrs. Prine’s primary health care physician. There are differing views on what constitutes a primary health care physician. Both of the parties offered expert testimony in support of their position regarding whether defendant was Mrs. Prine’s primary health care physician. In regard |7to the standard of care, the medical experts agreed that since 1997, some form of colorectal screening was to be administered or offered to patients over the age of 50. This is the standard whether applying the locality or national rule.

Plaintiffs’ expert was Dr. David Dies, who is board certified in internal medicine, gastroenterology, and hepatology and served as a faculty member at LSU Shreveport Health Sciences Center as an instructor of medicine. At the time of his testimony he was a member of Gastrointestinal Specialists, which is the largest gastrointestinal group in north Louisiana.

Dr. Dies characterized defendant’s medical practice as a primary care practice. According to Dr. Dies, primary care physicians are those physicians who provide general medical care to their patients, including pediatricians, internists, family practitioners, general practitioners, and obstetrics and gynecology physicians. Dr. Dies opined that defendant was acting like Mrs. Prine’s primary care physician. Furthermore, Dr. Dies testified that defendant breached the standard of care by not offering Mrs. Prine colorectal screening once she turned 50 years of age and because of this failure to offer screening, defendant increased the risk of Mrs. Prine developing colon cancer, which was a substantial contributing factor to the death of Mrs. Prine.

|sOn cross-examination, Dr. Dies testified as to certain factors that are important when determining whether an individual’s doctor is her primary care physician. An important factor is whether a doctor is making referrals and receiving reports back. Not getting reports back from other doctors is a factor that goes against the finding of a primary health care relationship. Dr. Dies admitted that defendant would refer Mrs. Prine to certain doctors, but would not get reports back from those doctors. In addition, Dr. Dies testified that Mrs. Prine’s visits to defendant were sporadic and at irregular intervals and even went on to state that Mrs. Prine used defendant on an “as needed” basis or for acute issues. The timing and nature of patient visits are also factors in determining a primary health care doctor-patient relationship. Dr. Dies also agreed that one doctor’s office can house both primary care patients and as-needed patients.

We note additional factors in plaintiffs’ favor. Dr. Bailey practiced in the small town of Lake Providence, Louisiana. He had completed a year’s internship in family practice but was not board certified or board eligible. Dr. Bailey treated other members of Mrs. Prine’s family. See Prine v. Bailey, 42,282, (La.App.2d Cir.08/15/07), 964 So.2d 435. Dr. Bailey considered his practice to be a family practice. These factors certainly support a finding that Dr. Bailey was Mrs. Prine’s primary care physician and that during the 1 ^relevant time starting in 1997 he treated Mrs. Prine but did not offer colorectal screening until April 2001. Dr. Bailey also never performed a wellness exam. This, however, is not the end of the story.

Defendant’s experts and the medical review panel members share the same or similar opinion as Dr. Dies in regard to what defines a primary care physician; however, they believed that defendant was not Mrs. Prine’s primary health care physician.

Dr. Kenneth McDonald was accepted by the court as an expert in the field of family practice arid was a member of the medical review panel who found in favor of defendant. He has practiced at the Delhi Clinic, a family practice, for over 31 years. Dr. McDonald defined a family practice physician as one who assumes the overall care of a patient. Dr. McDonald recognized that within one type of practice there can be different types of patients; acute care patients and overall health care management patients. He was of the opinion that defendant saw Mrs. Prine infrequently and irregularly for acute care or for specific aliments. Dr. McDonald noted that Mrs. Prine was seeing other medical persons for her primary or overall health care management and that defendant was not receiving the test results from Mrs. Prine’s other doctors. Dr. McDonald testified that his panel opinion was derived in part from the fact that defendant was not being given 110the results of any of Mrs. Prine’s tests (defendant was not kept appraised of Mrs. Prine’s wellness care); Mrs. Prine was given preventative exams by other medical professionals (Wellness exam by Nurse Liggen, a nurse practitioner, and chest x-rays by Dr. Edny); and defendant was not listed as Mrs. Prine’s doctor on various medical records (Dr. Walker, an OB-GYN, was listed as Mrs. Prine’s physician on the available medical records). Dr. McDonald also observed that in 1998, Mrs. Prine failed to return a hemoccult slide to Nurse Liggen and failed to return to Dr. Edny’s office for a follow-up chest x-ray. In connection with these visits, defendant was neither the referring physician nor did he receive any reports regarding their treatment of Mrs. Prine.

On cross-examination, Dr. McDonald admitted that if defendant testified that he was Mrs. Prine’s family practice physician then the panel opinion may have been wrong and defendant would have had certain duties. In his deposition Dr. McDonald stated that he probably would have offered colorectal screening to Mrs. Prine. Dr. McDonald testified that the standard of care for a physician holding himself out as a family practitioner was to offer his patients over the age of 50 colo-rectal screening. Dr. McDonald would only consider himself a patient’s primary care physician if he, Dr. McDonald, was coordinating the care of the patient, i.e. either sending a | npatient to the gynecologist or receiving the results from the gynecologist. He refused to testify that Mrs. Prine was the subject of substandard medical care.

On redirect, Dr. McDonald maintained that the he and the panel made its decision that-defendant did not fall below the standard of care because Mrs. Prine’s visits were infrequent and the visits were for acute care. He also reiterated the ability to have different groups of patients within one practice regardless of the name of the practice.

Dr. Leonard Paul Neumann, Jr., another panel member who found in favor of defendant, testified as an expert in the specialty of internal medicine. Dr. Neu-mann opined that defendant was not Mrs. Prine’s primary care physician because defendant was treating Mrs. Prine only for acute care, walk-in care, or as-needed care and never undertook Mrs. Prine’s overall health care management. His testimony was similar to that of Dr. McDonald. In addition, Dr. Neumann stated that it is the physician-patient relationship that determines whether a primary care relationship exists, and not the name of the doctor’s practice or the signage of the building housing the doctor’s practice.

Dr. Kermit Lamar Walters, Jr., also testified on behalf of defendant. Dr. Walters graduated from Tulane University Medical School in 1974 and 112has been engaged in the practice of medicine in Louisiana since 1978. Although not board certified, he treats walk-in patients for acute care at the Urban Medical Clinic. Dr. Walters was accepted by the court as an expert in the field of general practice medicine. He described his practice as having three different patient types who are all serviced under one roof. The relevant subpart for our discussion are those patients who come in with acute care needs such as sinusitis, sore throat, earaches, etc. Dr. Walters testified that Mrs. Prine’s visits to defendant were infrequent and sporadic. In his opinion, defendant only saw Mrs. Prine for acute or as-needed care and Mrs. Prine sought wellness care from Nurse Liggen.

Dr. George Wyatt Webb testified as a general practitioner expert. Dr. Webb graduated from LSU Medical School, Shreveport in 1983 and is currently practicing in Mer Rouge at his clinic, The Family Medical Clinic. At his clinic, Dr. Webb deals with both acute care patients as well as patients who require disease management care. Dr. Webb refers to his practice as a general practice. Dr. Webb testified that Mrs. Prine’s visits to defendant were of a problem-focused nature. Dr. Webb testified that defendant was under no obligation to offer colorectal screening to Mrs. Prine. He admits that although the standard of care is for primary physicians to offer colorectal screening, and family physicians are labeled as primary care physicians, it is | iathe nature of the relationship between the patient and the doctor that determines if there is a primary care relationship triggering the duty to offer colorectal screening. In Dr. Webb’s view, Mrs. Prine was not a wellness patient of defendant because of her sporadic visits for acute needs, and her use of other doctors for wellness or overall health needs.

The deposition of Dr. Ricky Garland Davidson, a member of the medical review panel and an expert in the field of family practice, was entered on behalf of defendant. Dr. Davidson is licensed to practice in Louisiana and his practice is named Louisiana Family Practice Associates. Dr. Davidson graduated from LSU Medical School in New Orleans in 1998, did his residency at LSU Shreveport in family practice, and has been board certified in family medicine since 2001. In his view, the scope of family practice is taking care of a family unit and taking care of general needs of patients of all ages. It can encompass anything from acute to primary care to preventative medicine. Consistent with the other panel members, Dr. Davidson’s view was that defendant saw Mrs. Prine irregularly or infrequently for acute care problems, which is a factor that demonstrated that defendant was only providing acute care to Mrs. Prine. Another factor important to Dr. Davidson was that defendant did not refer Mrs. Prine to any doctors until April 2001 when Mrs. Prine came in looking pale. On that | ^particular visit, defendant ordered blood work, which showed that Mrs. Prine was anemic, provoking defendant to order the hemoccult that led to the discovery of colon cancer. Dr. Davidson opined that Nurse Liggens was Mrs. Prine’s primary health care provider. Another factor was defendant’s lack of being kept apprised regarding a back surgery Mrs. Prine underwent. Instead of receiving medical records from other doctors, a typical primary care physician function, defendant sent records to Dr. Walker, Mrs. Prine’s OB-GYN. Dr. Davidson also noted that Dr. Walker was listed as Mrs. Prine’s physician on various medical records.

Dr. Davidson pointed out that in March 1998, Mrs. Prine went to the Family Practice Clinic and saw a nurse practitioner, Elaine Howington Liggen, specifically for a wellness exam. At that time Nurse Lig-gen provided Mrs. Prine with a hemoccult exam kit and testified that Mrs. Prine stated, “I don’t want to know if there is something wrong with me.” Mrs. Prine did not return any slides.

He also observed that Mrs. Prine saw Dr. Gene Walker, an OB-GYN practicing in Vicksburg, Mississippi, for a wellness exam in 1993. Dr. Walker referred Mrs. Prine to an orthopedist who performed a laminectomy. Dr. Walker received reports from this surgery as well as reports from other physicians, including Dr. Bailey.

LsIn this case, there was conflicting testimony presented by both parties. The issue of whether a breach of the standard of care occurred is a factual question over which the trial court has great discretion and the resolution of which turns in large part upon the evaluation of the credibility of the testimony. Based upon the evidence synopsized above, we cannot say that the trial court was manifestly erroneous in finding that defendant was not Mrs. Prine’s primary health care physician and therefore he did not fall below the standard of care by failing to offering her colorectal cancer screening.

Conclusion

For the reasons set forth above, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiffs.

      . In March 1998, Mrs. Prine went to the Family Practice Clinic and saw a nurse practitioner, Elaine Howington Liggen, specifically for a wellness exam. At that time Nurse Liggen provided Mrs. Prine with a hemoccult exam kit and testified that Mrs. Prine stated, "I don’t want to know if there is something wrong with me." Mrs. Prine did not return any slides.
      Mrs. Prine also saw Dr. Gene Walker, an OB-GYN, practicing in Vicksburg, Mississippi, for a wellness exam in 1993. Dr. Walker referred Mrs. Prine to an orthopedist who performed a laminectomy. Dr. Walker received reports from this surgery as well as reports from other physicians, including Dr. Bailey.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Jamie D. MALONE, Appellant.
    No. 45,816-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.

      Louisiana Appellate Project by Annette F. Roach, for Appellant.
    Richard C. Nevils, District Attorney, Cole B. Smith, Assistant District Attorney, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   STEWART, J.

|2The defendant, Jamie D. Malone, was convicted by a jury of possession of marijuana and possession of hydrocdone. On April 19, 2010, she received a sentence of three years’ imprisonment at hard labor for possession of hydrocodone, and on April 26, 2010, she received a concurrent sentence of 180 days for the possession of marijuana conviction. Malone now appeals, urging four assignments of error. For the reasons stated below, we affirm Malone’s conviction, but remand for resen-tencing on the possession of marijuana conviction.

FACTS

On January 19, 2009, Jamie D. Malone was stopped as she was driving in Winn Parish. After she provided written consent for the search of the vehicle, Winn Parish deputies located both marijuana and hydrocodone under the driver’s floor-mat.

On August 19, 2009, Malone was charged by bill of information with possession of marijuana, with intent to distribute, in violation of La. R.S. |340:966(A)(1), and possession of hydrocodone,. with intent to distribute, in violation of 40:968(A)(1). She appeared at arraignment on September 16, 2009, and entered a plea of not guilty. A motion to suppress was heard on December 9, 2009, and was denied by the trial court.

In its case in chief, the state presented the testimony of four Winn Parish Sheriffs Office deputies. Deputy Ryan Etheridge stated that on January 19, 2009, he was on regular patrol in Winn Parish. Etheridge observed a vehicle in front of him cross the fog line of Louisiana Highway 167 three times. He initiated a traffic stop and identified Malone as the driver of the vehicle. At the time of the traffic stop, Deputy Etheridge knew that a “be on the lookout” (BOLO) order had been issued for Malone’s vehicle for suspicion of carrying illegal drugs. While writing the defendant a citation for driving under suspension, and no insurance, Deputy Etheridge observed Deputy Tommy Chandler arrive at the scene.

During his testimony, Deputy Chandler explained that on January 19, 2009, he was K-9 officer, working with a drug detecting dog, Tessa. Deputy Chandler received information that a vehicle heading north through Winn Parish would be carrying narcotics. He was given the make, model, and color of the vehicle, as well as the license plate number. He then issued the BOLO. Upon receiving word from Deputy Etheridge that the vehicle had 14been stopped, Deputy Chandler proceeded to the scene with Tessa. He then met Malone, advised her of her Miranda rights and asked if she would consent to a search of her vehicle. After she agreed to allow the search, he searched underneath the dash and found nothing. Tessa alerted on the driver’s side. He then observed the floormat was pushed out underneath the pedal so he pulled back the mat and saw the baggies of marijuana and hydroeodone.

Deputy Stacy Johnson testified that he assisted in the traffic stop. He saw the K-9 “hit” on the driver’s side of the defendant’s vehicle. He then observed that the driver’s floormat was “pushed out a little bit and I reached and grabbed it and I pulled it back.” Deputy Johnson explained that “[tjhere was a zip lock baggy that was poking up right there and as you — as I pulled it back, it was green vegetable uh-vegetable like substance that was inside the baggy itself.” Deputy Johnson removed the bags containing marijuana and pills from the vehicle, then placed them into evidence.

Deputy Darrell Winder testified that took possession of the suspected drugs and sent them to the crime lab for analysis. He identified the drugs as well as the crime lab report at trial. According to the crime lab report, 19 pills were determined to contain hydroeodone, and the vegetable-like substance observed by Deputy Johnson was determined to be marijuana.

|5Malone testified on her own behalf. In her testimony, she asserted that she did not know that the drugs were present in the vehicle and that they were not her drugs. Malone testified that she was eating a hamburger and not paying attention to her driving at the time she was stopped. She also indicated that she had never used marijuana or hydroeodone, that she lost custody of her children because of her methamphetamine addiction, and that she was using methamphetamine while pregnant. She admitted at trial that two of her children were currently living in foster homes and, in an attempt to get the children back, she was regularly drug tested.

After considering the testimony presented during trial, the jury found Malone guilty of the responsive verdicts of possession of marijuana, a misdemeanor, and possession of hydroeodone, a felony. Malone’s sentencing date was then set for April 19, 2010, and she was allowed to remain on bond until this date. Three weeks prior to her sentencing date, Malone was arrested, and is currently charged by a bill of information for possession of methamphetamine with intent to distribute, possession of hydroeodone with intent to distribute, possession of legend drugs, and creation of or operation of a clandestine lab for the manufacture of methamphetamine.

|fiOn April 19, 2010, Malone received a sentence of three years’ imprisonment at hard labor for possession of hydroeodone. However, the court failed to impose a sentence for the jury’s verdict of possession of marijuana. Apparently realizing this mistake, on April 26, 2010, the trial court, on its own motion and without appearances of either attorney or Malone, sentenced her to 180 days without hard labor for possession of marijuana and ordered this sentence to run concurrent to the three-year hard labor sentence for possession of hy-drocodone. A motion to reconsider sentence was filed. This matter was heard on June 3, 2010, and denied. This timely appealed followed.

LAW AND DISCUSSION

Sufficiency of the Evidence

In her first assignment of error, Malone argues that the evidence introduced at her trial was insufficient to support her convictions. Specifically, she argues that the evidence failed to show that she was in constructive possession of the drugs.

When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing 17sufficiency first is that the accused maybe entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, -viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Hearold; 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2 Cir. 4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833.

The Jackson standard is applicable in eases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence |smust be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497. La. R.S. 15:438 provides that the rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. The statutory test of La. R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.” State v. Neal, 00-0674 (La.9/21/01), 796 So.2d 649.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

| ¡¡To support a conviction for possession of a controlled dangerous substance, the state must prove the defendant was in possession of the illegal drug and that he knowingly possessed the drug. State v. Foster, 43,777 (La.App. 2 Cir. 1/28/99), 3 So.3d 595. The state need not prove that the defendant was in actual physical possession of the drugs found; constructive possession is sufficient to support a conviction. State v. Foster, supra; State v. Matthews, 552 So.2d 590 (La.App. 2 Cir.1989), writ denied,, 559 So.2d 137 (La.1990). In this case, because the drugs were not found on Malone’s person, constructive possession must be shown.

Constructive possession means having a relationship with an object such that it is subject to one’s dominion and control, with knowledge of its presence, even though it is not in one’s physical possession. State v. Foster, supra. Several factors may be considered in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession. They are (1) the defendant’s knowledge the illegal drugs were in the area; (2) his relations with the person found to be in actual possession; (3) the defendant’s access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5)the existence of paraphernalia; and (6) evidence the area is frequented by drug users. State v. Douglas, 30,398 (La. App.2d Cir.2/25/98), 707 So.2d 512.

hp hpGuilty knowledge is essential to the crime of unlawful possession of an illegal drug, and a defendant’s guilty knowledge must be inferred from the known facts considered according to reason and common experience. State v. Jenkins, 41,281 (La.App. 2 Cir. 1/24/07), 949 So.2d 563, writ denied, 2007-0699 (La.11/2/07), 966 So.2d 600; State v. Manning, 38,083 (La.App. 2 Cir. 3/12/04), 868 So.2d 283.

Viewed in the light most favorable to the prosecution, the evidence is sufficient to support Malone’s conviction. It is undisputed that she drove the vehicle and had dominion and free use of the vehicle. The prohibited substances were found under the driver’s floormat, which was readily accessible to Malone. Moreover, the drugs were not heavily concealed, but wei'e instead found under the driver’s floormat, which was within her arm’s reach. The uncontradicted testimony elicited during trial from both Winn Sheriffs Deputies and Malone indicated that she acted nervous during the traffic stop. After hearing Malone’s testimony that the drugs did not belong to her and that she had no idea the drugs were in the vehicle, the jury made a credibility determination that the drugs belonged to her. The jury’s factual and credibility calls will not be disturbed.

In sum, this assignment of error is without merit.

Suppression of the Evidence

| nIn this assignment of error, Malone contends that the trial court erred in failing to suppress the evidence in this case as the stop of the vehicle was illegal and a violation of her Fourth Amendment right against unreasonable searches and seizures. Specifically, she argues that the traffic stop was pretextual because the stop of her vehicle by Deputy Etheridge was based solely upon the BOLO issued by Deputy Chandler.

The right of every person to be secure in his person, house, papers, and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 5 of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. O’Neal, 44,067 (La.App.2d Cir.4/8/09), 7 So.3d 182, writ denied, 2009-1243 (La.2/12/10), 27 So.3d 841; State v. Ledford, 40,318 (La. App.2d Cir.10/28/05), 914 So.2d 1168; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330.

The purpose of limiting warrant-less searches to certain recognized exceptions is to preserve the constitutional safeguards provided by a warrant, while accommodating the necessity of warrant-less searches under special 112circumstances. State v. O’Neal, supra. When the constitutionality of a warrant-less search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D); State v. O’Neal, supra.

The entire record, including the testimony at trial, is reviewable for determining the correctness of a ruling on a pretrial motion to suppress. State v. Collins, 44,248 (La.App.2d Cir.5/27/09), 12 So.3d 1069. This court reviews the trial court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, while applying a de novo review to findings of law. State v. Collins, supra.

The authority and limits of the Fourth Amendment apply to investigative stops of vehicles. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605; United States v. Hensley, 469 U.S. 221,105 S.Ct. 675, 83 L.Ed.2d 604 (1985), 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604. The stopping of a vehicle and the detention of its occupants is a seizure within the meaning of the Fourth Amendment. United States v. Shabazz, 993 F.2d 431 (5th Cir.1993).

| i.qThe standard for evaluating a challenge to a routine warrantless stop for violating traffic laws is the two-step formulation articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed,2d 889 (1968). State v. Pena, 43,321 (La.App.2d Cir.7/30/08), 988 So.2d 841; State v. Sims, 40,300 (La.App.2d Cir.10/26/05), 914 So.2d 594. The court must determine “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” United States v. Shabazz, supra, quoting Terry v. Ohio, supra.

For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred or is about to occur before stopping the vehicle. United States v. Sharpe, supra; State v. Pena, supra; State v. Sims, supra. When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048.

The determination of reasonable suspicion for an investigatory stop, or probable cause for arrest, does not rest on the officer’s subjective beliefs or 114attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of the challenged action. State v. Landry, 98-0188 (La.1/20/99), 729 So.2d 1019; State v. Pena, supra; State v. Arnold, 34,194 (La.App.2d Cir.12/6/00), 779 So.2d 840. If a police officer observes a traffic infraction, the subsequent stop for that offense is clearly legal; the standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer. This objective standard is indifferent to the relatively minor nature of the traffic violation. State v. Stowe, 44,815 (La.App.2d Cir.10/28/09), 25 So.3d 945; State v. Stoutes, 43,181 (La.App.2d Cir.4/2/08), 980 So.2d 230.

In Louisiana, a car which partially leaves its lane of travel and crosses the fog line either at the center of a divided highway or on the right hand shoulder of the road violates La. R.S. 32:79(1) which provides in pertinent part that on a divided roadway, “[a] vehicle shall be driven as nearly as practicable entirely within a single lane ...” (emphasis added). Thus, when this statute is violated for no apparent reason, it provides the police with probable cause to believe that a traffic violation for improper lane usage has occurred. State v. Inzina, 31,439 (La.App.2d Cir.12/9/98), 728 So.2d 458.

11sDeputy Etheridge testified that he observed Malone committing a traffic violation by crossing the fog line three times. Malone did not contradict Deputy Ether-idge’s testimony. Instead, she acknowledged that she was eating a hamburger and not paying attention to her driving. In other words, Malone corroborated Deputy Etheridge’s testimony in providing a reason for her erratic driving. The fact that Deputy Etheridge observed Malone cross the fog line three times provided the necessary reasonable suspicion to believe that a traffic violation had been committed.

Therefore, Deputy Etheridge had grounds to conduct a lawful traffic stop. It is uncontradicted that once Deputy Eth-eridge lawfully stopped Malone, she provided written consent to the search of the vehicle. For these reasons, this assignment of error is without merit.

Objection to Defense Counsel’s Questions about Drug Testing

In this assignment of error, Malone argues that the trial court erred in sustaining the state’s objection to the defense’s questioning with regard to whether she tested positive for the presence of drugs in her system at the time of her arrest, as this limited her constitutional right to present her defense.

|1GA trial judge is vested with wide discretion in determining the relevancy of evidence; his ruling will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. State v. Miles, 402 So.2d 644 (La.1981); State v. Jackson, 30,473 (La.App.2d Cir.5/13/98), 714 So.2d 87, writ denied, 1998-1778 (La.11/6/98), 727 So.2d 444.

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403.

In this case, when defense counsel questioned Malone about the last time she had been tested for drugs, the state objected on the basis of relevance. The trial court sustained the objection and prohibited the defense from exploring this line of questioning, noting that evidence of Malone’s recent drug use or nonuse was not relevant to the issue of whether she was in constructive possession of marijuana and hydrocodone.

117The state’s argument and the trial court’s determination that evidence of Malone’s recent drug use or nonuse lacked any relevance to the issue of whether she was in constructive possession of marijuana and hydrocodone was incorrect. As discussed in the first assignment of error, a factor that may be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession of drugs includes evidence of recent drug use by the defendant. State v. Jenkins, supra; State v. Douglas, supra. Even though we disagree with the trial court’s evidentiary ruling, we find that the record shows that the ruling is harmless error because Malone was allowed to introduce similar, more probative evidence in support of her defense that the drugs were not hers. For example, the defense was permitted to question Malone regarding whether she ever used marijuana or hydrocodone. Malone responded that she had never used either drug.

This assignment is therefore without merit.

Imposition of Sentence

Finally, Malone argues that the trial court erred in imposing sentence for the responsive verdict of possession of marijuana outside of her 118presence. As a result of this sentencing error, Malone argues that remand for resentencing is required so that the sentence can be imposed in her presence.

La. C. Cr. P. art. 835 states, in pertinent part:

In felony cases the defendant shall always be present when sentence is pronounced. In misdemeanor cases the defendant shall be present when sentence is pronounced, unless excused by the court. If a sentence is improperly pronounced in the defendant’s absence, he shall be resentenced when his presence is secured.

Pursuant to this article, the phrase “excused by the court” means that in misdemeanor cases, upon the defendant’s request, the court may in its discretion excuse the defendant from the requirement that he be present when the sentence is pronounced. Greenidge v. Greenidge, 571 So.2d 905 (La.App. 5 Cir.1990); State v. Johnson, 482 So.2d 146 (La.App. 4 Cir.1986); La. Atty. Gen. Op. 97-50 (2/24/97).

Malone’s presence at the pronouncement of the sentencing for the possession of marijuana charge could have been waived only if she requested or waived her right to be present and the court excused her absence from sentencing. Since the record provides no indication that Malone waived her right to be present at the sentencing pronouncement, we conclude that the sentence imposed for the possession of marijuana charge | ,nwas invalid and must be set aside. For this reason, we find that this assignment has merit. Pursuant to La. C. Cr. P. art. 835, Malone must either be resentenced when her presence is secured, or request or waive her right to be present.

CONCLUSION

In closing, we affirm the defendant’s convictions, and remand for resentencing on the possession of marijuana conviction.

AFFIRMED IN PART, REMANDED IN PART.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Jarvis EDWARDS, Appellant.
    No. 45,842-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.

      Washington & Wells, Shreveport, LA by Alex J. Washington, for Appellant.
    Charles R. Scott, II, District Attorney, Tommy J. Johnson, Geya D. Williams, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

|2This criminal appeal by Jarvis Edwards arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. Following a bench trial Edwards was convicted of forcible rape, a violation of La. R.S. 14:42.1. Thereafter, he was charged by bill of information as a third felony offender. Edwards pled guilty to being a second felony offender and was sentenced to 32½ years’ imprisonment at hard labor with the first two years to be served without the benefit of probation, parole, or suspension of sentence. A timely motion for reconsideration of sentence was denied and this appeal ensued. For the following reasons, we affirm Edwards’ conviction and sentence.

Facts

N.O. and the defendant, Edwards, were both Southern University students who met on campus where they spoke on several occasions. At some point, Edwards gave N.O. his telephone number. During their ^conversations, N.O. and Edwards had discussed N.O. helping him with some homework. On October 15, 2007, N.O. went to Edwards’ home, where the incident that led to this crime occurred. When N.O. arrived at his home, he was cooking in the kitchen and invited N.O. to go into his bedroom where his television was located and where they could work on the homework assignments.

N.O. went into the bedroom where she began working on the school assignments. After eating dinner and watching television, the sexual contact between N.O. and Edwards occurred in his bedroom. After-wards, N.O. got up, gathered her clothing and left the house. N.O. called several friends as she was leaving Edwards’ house, and she eventually went to the home of a friend who took her to the hospital. At the hospital, a sexual assault examination was performed on N.O., and she reported the incident to Detective Paula Moreno of the Shreveport Police Department sex crime unit.

After an investigation, Edwards was arrested and charged with forcible rape. Following a bench trial, he was convicted as charged. After a habitual offender adjudication, Edwards was sentenced as a second felony offender to 32½ years’ imprisonment at hard labor with the first two years to be served without the benefit of probation, parole, or suspension of sentence. The instant appeal by Edwards ensued.

RDISCUSSION

In his first assignment of error, Edwards argues that the state presented insufficient evidence to convict him of forcible rape. Specifically, Edwards contends that the state did not prove that force was used during the commission of the offense in that the victim had no visible injuries and was voluntarily at his residence. We disagree.

The standard of appellate review for a sufficiency of the evidence claim 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Murray, 36,137 (La.App.2d Cir.08/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.09/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court | r,accords great deference to the fact finder’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

Louisiana R.S. 14:42.1 provides, in part: A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
(2) When the victim is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind produced by a narcotic or anesthetic agent or other controlled dangerous substance administered by the offender and without the knowledge of the victim.

During the bench trial, N.O. testified she met the defendant in the hall outside one of her classes, and they had two or three brief conversations before he gave her his telephone number. N.O. and Edwards had a few telephone conversations, and one evening while they were talking, Edwards invited N.O. to his home for dinner and to do some homework. She accepted the invitation and on October 15, 2007, went to his home. N.O. stated that the majority of the time, she was in his bedroom working on his homework | fiand talking on the telephone to her best friend while Edwards cooked their dinner.

N.O. testified that once the dinner was prepared, she ate in Edwards’ bedroom while he ate in the living room area. After eating, N.O. moved about the apartment mainly talking on the telephone to her friend before she went to Edwards’ bedroom again and began watching television. According to N.O., it was at that point that Edwards entered the room and tried to kiss her, but she stopped him. She related that Edwards continued to try to kiss her, and he unzipped her pants and tried to pull them down while she was holding onto them telling him to stop. N.O. explained that Edwards merely laughed at her resistance.

N.O. testified that Edwards was able to pull her pants down, and he inserted his fingers into her vagina. She struggled to keep Edwards from removing her panties, but she could not stop him. Edwards kissed N.O. on her ear while she continued to tell him to stop and tried to push him off of her. According to N.O., Edwards again laughed and told her that she was not stronger than him. N.O. explained how she continued to struggle with Edwards-she scratched him on his back and hit him in his chest and face. At some point, Edwards told N.O. that she better stop hitting him, and N.O. 1 testified “that’s when I stopped because I got scared [.] ” N.O. recalled that her “resistance” lasted about 30 minutes.

N.O. described how Edwards penetrated her vagina, against her will, with his penis, which lasted for about one minute. N.O. did not believe that Edwards ejaculated inside her. Once Edwards finally stopped, he asked N.O. what was wrong and if someone had done something to her. N.O. described that Edwards said she was crazy. Once Edwards got off her she jumped up and grabbed her things. N.O. noticed that a bracelet she had worn had broken and fallen from her wrist and there was a scratch across N.O.’s wrist where the bracelet had broken. N.O. picked up the bracelet before she left the house.

After midnight of that same evening, a friend took N.O. to the emergency room at LSUHSC, where she spoke with several officers and reported the attack. At the E.R., she was given a physical examination, including a vaginal examination, swabs of the area on her wrist as well as scrapings from under her fingernails. N.O. testified that she later learned the tests conducted at the hospital for gonorrhea and chlamydia, sexually transmitted diseases (“STDs”), were positive; however, she stated that she did not have any knowledge of having been infected prior to her sexual |Rcontact with Edwards. That same night, N.O. spoke with Detective Moreno, to whom she later gave a recorded interview.

Betty Farmer, a Sexual Assault Nurse Examiner (“SANE”), examined N.O. and also testified at the trial. Farmer described examining N.O. that night at the emergency room. Farmer testified that N.O. provided her some details of the assault, which details were consistent with the victim’s trial testimony. Farmer testified that she took hair samples, oral swabs, fingernail swabs, and conducted a vaginal examination that included obtaining secretions from inside N.O.’s vaginal vault. Farmer noted that there was a scratch on N.O.’s inner right wrist, that there was a large amount of white secretion in the vagina vault and that the cervix was red. Farmer found N.O. to be “a little tense, anxious” and quiet during the examination.

Lauren Airhood, a forensic scientist with the North Louisiana Crime Lab was accepted by the court as an expert in DNA analysis and testing. From the swabs submitted from the rape kit as well as reference samples obtained from N.O. and Edwards, Airhood found that the swab from N.O.’s right breast contained a mixture of two DNA profiles (a major and a minor). She stated that Edwards could not be excluded as a major contributor in the mixture, and the probability of finding the same DNA profile from a randomly selected individual other than Edwards was approximately one in [ fl50.8 quadrillion. The swab from N.O.’s ear (where he had kissed her) showed that Edwards and N.O. could not be excluded as donors, and that the defendant was 388 trillion times more likely than any other person to be a contributor along with N.O. The swab from N.O.’s left breast excluded 99 percent of the population, but Edwards and N.O. could not be excluded as donors to the mixture. The testing on N.O.’s vaginal washings obtained during the rape kit examination were consistent with Edwards’ DNA profile. Finally, Airhood testified that with Y-chromosome testing, Edwards and his paternal lineage could not be excluded as contributors of the DNA samples.

Detective Paula Moreno testified that she was the lead detective in the case. Detective Moreno met with N.O. at the hospital to get basic information about the complaint and later scheduled a formal interview for October 24, 2010. The information provided to Det. Moreno by the victim was essentially the same as her trial testimony. Detective Moreno testified that she attempted to identify a suspect after receiving information from the victim. Detective Moreno prepared a photographic lineup, and the victim positively identified Edwards. Detective Moreno recalled that she previously investigated Edwards for a case in 2001 that led to a conviction for sexual battery. Because of the allegation of the rape and the subsequent discovery that Edwards had not registered as a sex offender, Det. Moreno forwarded 110the case to the district attorney’s office for review. Edwards was interviewed by Det. Moreno after his arrest, during which Edwards denied having sex with N.O. or penetrating her digitally.

Edwards testified on his own behalf. He acknowledged having two previous convictions-possession of stolen things and sexual battery, which had been reduced from a forcible rape charge. Regarding that conviction, Edwards denied that he did anything but have consensual sex with his victim, but that he pled guilty to the reduced charge because he was threatened by the victim’s family and he was scared.

Edwards’ version of events matches pretty closely to the victim’s, until the point of taking her pants off. Whereas N.O. testified that Edwards forcibly removed her pants, Edwards testified that he asked N.O. if she wanted to get comfortable and if he could remove her pants. Edwards described that he removed N.O.’s pants “gently and precisely” before getting into the bed.

Edwards testified that he then took off his robe and jean shorts leaving his boxers on while they sat on the bed and watched television. Edwards claimed to have started kissing N.O. on her neck and chest, and what he characterized as foreplay continued until he reached under his mattress to get a condom. According to Edwards, he pushed against N.O. as he was preaching for the condom, and he was sweating heavily at that time. Edwards recounted that after he got the condom, he tried to kiss N.O. again, but she moved his face away; he asked if everything was all right, and N.O. did not reply. Edwards claimed that he told N.O. he did not want any trouble, because he had just come home from serving his sentence for the sexual battery charge. Edwards testified that he told N.O. that she should get her things and leave.

Edwards went on to explain that his penis may have pressed against N.O.’s vagina during “foreplay,” but he insisted that he did not take his penis out of his boxers. He theorized that he was sweaty and he probably rubbed against N.O., getting his bodily fluid on her. Once N.O. was dressed, Edwards stated he went to the door behind her, told her not to call him again, and not to come back to his house because he felt like she “played him.”

Edwards stated that he did not scratch N.O., and he did not see her with a bracelet on while she was at his house. Edwards also denied threatening N.O., asserting that anything that happened between them was consensual. When asked about the STDs Edwards stated he had contracted chlamydia and gonorrhea from another girl, but he had been treated and could not have infected N.O. Edwards stated that he attempted to get tested but had not been allowed to do so.

|12On cross-examination, Edwards continued to deny that he did anything with N.O. that was not consensual. He was unable to explain how the DNA samples were recovered from the inside of the victim’s vaginal vault because he claimed he did nothing other than kiss and press against her while they were both in their underwear. Edwards denied having intercourse or digitally penetrating N.O.

Considering the evidence presented at trial, the state was able to prove the essential elements of forcible rape. Through the victim’s testimony, the state was able to show that Edwards penetrated the victim’s vagina with his penis against her will while he held her down. As related by N.O., when she attempted to fight him off, Edwards cautioned her not to do so. N.O. further testified that she was scared to continue to resist when he threatened her. The physical evidence showed that the victim had a small scratch on her wrist and the cervix of her vagina was red. She was also infected with chlamydia and gonorrhea, two STDs that also affected Edwards. Additionally, Edwards could not be excluded as a donor of the DNA retrieved from the victim’s body during the rape kit examination.

N.O.’s testimony alone is sufficient to establish the essential elements of the offense. Additionally, her account of the events was corroborated by scientific and physical evidence obtained shortly after N.O. reported to the Inhospital to be examined. Edwards’ attempt to explain that he was sweating profusely and could have transferred his DNA onto the victim during foreplay was apparently not believed by the trier of fact. Notably, Edwards’ attempt to explain away his previous conviction for sexual battery certainly could have worked to call into question his testimony in this case. Whereas this court is not in the position to assess the credibility of witnesses or reweigh evidence, on the face of the record alone, the testimony of the two involved parties is telling. Even on the cold record, Edwards’ version of events is highly suspect. We see no error in the trier of fact’s conclusion that Edwards was guilty of forcible rape. This assignment of error is without merit.

Excessive Sentence

In his second assignment of error, Edwards alleges the trial court failed to consider all of the mitigating circumstances in his case and that there were not enough aggravating circumstances to warrant the imposed sentence. He further contends the sentence is excessive and is grossly out of proportion to the severity of the crime. Edwards specifically argues that the trial court failed to consider the fact that his parents were drug addicts who died when he was nine years old or the fact that he was pursuing a college education at the time of his arrest. Additionally, Edwards contends the trial _J^court failed to consider the fact that there was no physical injury to anyone as a result of his actions. We disagree.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.03/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.08/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.09/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 10491 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.08/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.05/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker; 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.09/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379.

Prior to the sentencing hearing, the state filed a habitual offender bill of information against Edwards charging him as a third felony offender, and he stipulated that he was a second felony offender and would be sentenced as such. Thus, the state agreed not to pursue a third felony offender prosecution. Edwards was sentenced to 32 ½ years’ imprisonment at hard labor with the first two years to be served without the benefit of probation, | inparole, or suspension of sentence. He was also informed of the sex offender registration requirements of the sentence.

The trial court indicated it considered the factors of La. C. Cr. P. art. 894.1 in determining Edwards’ sentence. It found that there would be an undue risk that he would commit another crime during a period of suspended sentence or probation, as well as the fact that Edwards was in need of correctional treatment or a custodial environment that could be provided most effectively by commitment to an institution. As aggravating factors, the trial court found that Edwards had persistently been involved in similar offenses, specifically the prior conviction for sexual battery as well as other unprosecuted allegations of sexual assaults and his arrest for failure to register as a sex offender that was not prosecuted. Additionally, the trial court considered that Edwards had a high number of arrests, approximately 15, with three misdemeanor convictions and two other felony convictions. The trial court found that Edwards did not demonstrate remorse, and he did not believe his behavior in the instant case or his other cases was inappropriate or criminal. The trial court also considered Edwards’ age at the time of his arrest, 33, in determining the sentence.

As mitigating circumstances, the trial court found that Edwards acted under provocation-the victim appeared to willingly and voluntarily go to his | ^residence. The trial court also found that Edwards had a lack of family support or wholesome relationships. The trial court indicated he wished additional mitigating factors had been presented by the defense. The trial court also noted that Edwards had refused several plea agreements from the state.

Here, Edwards has failed to show that the trial court abused its discretion in assigning this sentence. The record shows that the trial court considered Edwards’ family history, his work and educational history and his criminal history. There is no requirement that specific matters be given any particular weight at sentencing. During sentencing, the trial court did acknowledge Edwards’ family history and background, noting that Edwards did not have a wholesome relationship or family support. The trial court was also aware of the other factors Edwards claimed were not considered, because during the trial of the matter it was made clear that he was in college at the time of the offense and his arrest and the victim’s injuries were detailed. So considering, it cannot be said that the trial court failed to identify and consider the appropriate sentencing factors.

Additionally, considering Edwards’ criminal history and propensity for committing sexual offenses without accepting responsibility for his actions, it cannot be said that his sentence is excessive. Considering this | ^multiple sexual offender’s history of preying on women, this sentence does not shock the sense of justice. It is particularly disturbing that Edwards has committed an extremely similar crime twice, and yet both times has denied culpability. Edwards’ apparent lack of remorse is also unsettling. The sentence is not grossly out of proportion to the seriousness of the offense; therefore, we conclude that this assignment of error is without merit.

Conclusion

For the foregoing reasons, the conviction and sentence of Jarvis Edwards are affirmed.

AFFIRMED.

      . In accordance with La. R.S. 46:1844(W)(l)(a), the victim will be referred to by initials.


author: DREW, J.

text:
    Michael Jerred GENTRY, Plaintiff-Appellee v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Ryan L. Poole, Defendant-Appellant.
    No. 45,844-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.
    Zelda W. Tucker, for Appellant.
    Norman R. Gordon & Associates, Shreveport, LA by W. Brett Cain, for Ap-pellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   DREW, J.

12This appeal from Shreveport City Court pertains to the appropriate assessment of liability for a two-car accident.

The judgment below apportioned comparative fault at 75% against the defendants, Ryan L. Poole and State Farm Mutual Automobile Insurance Company, and 25% against Michael Jerred Gentry, plaintiff.

Gentry was injured, and was granted judgment for his special damages, plus $7,500 in general damages, subject to 25% reduction for his comparative fault. Neither party appealed the amount of damages awarded to Gentry by the learned trial court.

Each side requests that we assess the other with 100% of the fault.

FACTS

| .¡Immediately before the accident, Ryan L. Poole was driving west in the right lane of West Bert Kouns, a four-lane highway. Ryan was operating, with permission, a 1997 Jeep owned by his dad, Roger Poole, who was riding in the Jeep with his son. The Poole vehicle was insured by State Farm on the date of the accident.

Gentry was leaving his plumber and pi-pefitter’s school, located on the north side of Bert Kouns at 7109 West Bert Kouns. Due to his injuries, he does not recall anything except stopping before the crash. He never saw the Jeep, the right front of which struck the left front of his Chrysler.

Gentry claims that the Jeep drove off the north side of the road and ran into his Chrysler. Poole alleges that Gentry pulled out in front of him, or was sticking out into the road. The Poole vehicle had the right-of-way. .

TRIAL

The trial court based its causation decision on the following:

• Deposition of Scotty Taylor (G-2);
• Photographs from both sides (G-3, G-4, P-3, and P-4);
• Copy of the police report; and
• Live testimony from the plaintiff, defendant, and defendant’s father.

The accident report assessed Gentry’s inattentiveness as a cause of the accident, although no one was formally cited with a violation. The officer, |4not an accident reconstruction expert, thought the accident occurred in Poole’s outside lane of traffic.

Scotty Taylor, also a student at the school, was queued up behind the Gentry vehicle when the crash happened. He stated that the Poole Jeep, traveling 60 to 65 miles per hour, struck Gentry’s Chrysler. Taylor never saw Gentry’s brake lights go out before the crash. He did not recall, however, whether Gentry was stopped in the roadway, or just stopped near the roadway.

The photographs are not in any way dispositive of this dispute.

Gentry says that Poole’s Jeep left the roadway, resulting in its right front striking the left front of the Chrysler (Gentry).

Defendants testified that Gentry’s Chrysler pulled out in front of Poole’s Jeep, and was in the roadway, causing the accident.

The accident report and both Pooles support Poole’s version of the facts; Taylor’s deposition somewhat supports Gentry’s version.

LAW

An appellate court must give great deference to the allocation of fault as determined by the trier of fact. Fontenot v. Patterson Ins., 2009-0669 (La.10/20/09), 23 So.3d 259; Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607. The allocation of fault is not an exact science, or the search for one | fiprecise ratio, but rather an acceptable range, and any allocation by the factfinder within that range cannot be clearly wrong. Fontenot, supra; Foley v. Entergy Louisiana, Inc., 2006-0983 (La.11/29/06), 946 So.2d 144. Only after making a determination that the trier of fact’s apportionment of fault is clearly wrong can an appellate court disturb the award. Fontenot, supra; Clement, supra.

After an appellate court finds a clearly wrong apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion. Clement, supra; Cyrus v. U.S. Agencies Ins. Co., 41,826 (La.App.2d Cir.3/14/07), 954 So.2d 261.

REASONING

This is a sparse record, but we have enough before us by which to conclude that the trial court erred in assessing liability.

Gentry had no recall of the accident. Taylor’s affidavit helped his case a little, in that he swore that Gentry’s brake lights were never extinguished, which could suggest, at the least, that Gentry’s vehicle was not moving at the moment of the accident. Taylor’s affidavit also acknowledged that Gentry’s vehicle was forced into his, causing minor damage to Taylor’s vehicle. However, Taylor did not know the exact location of the front end of | (¡Gentry’s vehicle at the moment of the crash (whether or not the Chrysler had protruded into the road).

Poole, on the other hand, had the right-of-way, and had more and higher quality evidence:

• Direct and positive testimony from Roger and Ryan Poole that Gentry pulled out onto the highway and struck the Poole vehicle;
• The accident report’s finding that Gentry’s inattentiveness was a cause of the accident, which occurred in the right lane of traffic; and
• Taylor’s admission that he was not sure whether or not Gentry was intruding into the roadway at the time of the crash.

FINDING

We find manifest error in this record, allowing us to reframe the liability findings, but only to the minimum extent to achieve reasonableness.

Accordingly, we amend the percentages of fault, finding Gentry to be 75% at fault, and Poole to be 25% at fault, with costs of court to be assessed on the same basis. No reasonable trier of fact could have found Poole to be any more responsible for this unfortunate collision.

DECREE

With costs assessed at 75% to plaintiff and 25% to defendant, the judgment is AMENDED, and, as amended, AFFIRMED.

      . Gentry based his claims on Taylor’s affidavit and on the post-accident location of the vehicles.

      . Though subpoenaed, the police officer did not show up for court.

      .Curiously, Taylor says in his deposition that the Poole Jeep was heading west before the accident, in the inside lane of traffic. This must have been a misstatement, because this would require a severe swerve to cause this accident in four to six seconds, if Poole was indeed starting from the inner lane.

      . We are aware of the extremely limited, if any, value of a nonexpert officer’s conclusion regarding a crucial issue such as the precise point of impact. See Domingo v. State Farm Mut. Auto. Ins. Co., 10-264 (La.App. 5th Cir. 11/9/10), 2010 WL 4486331. In this case, upon the failure of the police officer to show, the lawyers agreed to allow the accident report into evidence, presumably to get the matter to trial.


author: MOORE, J.

text:
    Willie Mae TAYLOR, Plaintiff-Appellant v. PLASTECH ENGINEERED PRODUCTS, INC., Defendant-Appellee.
    No. 45,846-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.

      Fischer & Associates By William T. Allison, for Appellant.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, LLP, Shreveport, LA By Robert A. Dunkelman, Joshua P. Monteleone, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   MOORE, J.

12WiIlie Mae Taylor appeals a summary judgment that dismissed her workers’ compensation claim. She also appeals an earlier judgment that sustained the compensation carrier’s dilatory exception of vagueness. For the reasons expressed, we affirm the judgment insofar as it dismissed the claim for weekly indemnity benefits. However, finding genuine issues of material fact as to Ms. Taylor’s choice of an orthopedic specialist and as to certain medical expenses, we reverse in part and remand.

Factual Background

Ms. Taylor was employed as an assembly line worker at Plastech Engineered Products, a former GM supplier in southwest Shreveport, at an average weekly wage of $715. On Friday, April 13, 2007, she tripped over an air hose and fell to the floor, landing on her left side. She was taken to Willis-Knighton South Workkare with pain in her left hand; X-rays showed |sshe had dislocated and fractured the PIP (large) joint in her left pinkie. An emergency room doctor set the fracture in a splint, gave her Lortab, sent her home and released her to sedentary work the following Monday.

On April 23, she went to Dr. Don Burt, an orthopedic surgeon whom she later selected as her choice of physician. He approved her for light-duty work, lifting no more than one pound with her left hand.

Two weeks later, on May 7, Ms. Taylor apparently told Dr. Burt that her left hip was also hurting; he X-rayed it and found a nondisplaced linear fracture. He also wrote that her finger was about 50% healed and approved her to “continue in her present work activity only.” On August 3, despite her continued complaints of pain in the pinkie, Dr. Burt found the fracture had healed; he approved her for full work activity.

Over subsequent visits, Dr. Burt found gradual improvement, advised her to continue with therapy (stretching exercises), and reiterated “full work activity” despite some soreness in the finger. In January 2008, Dr. Burt excused her from one day’s work because of soreness and swelling in the left pinkie, and on February 15 he restricted her from “snapping on the Christmas trees, the child tethers or the glue gun.”

Meanwhile, in October 2007, Plastech and its compensation carrier, Travelers, sent Ms. Taylor to their own orthopedist, Dr. Karl Bilderback, for |4an evaluation. He found the fractured pinkie had healed but left her with stiffness “refractory to therapy and serial splinting.” He noted that surgery would be her only option for improved motion, but it came with the risk of no improvement and perhaps making the situation worse. As for her hip pain, he suggested a steroid shot and expected no long-term impairment.

In April 2008, Ms. Taylor returned to Dr. Burt for hip pain; he gave her a cortisone shot. On June 13, he diagnosed trochanteric bursitis, “brought about by sleeping on the left side at night as well as by the amount of standing and walking activity she does at work.” On the history sheet, he also wrote, “It was recommended that she get a memory foam mattress cover”; in a letter addressed “to whom it may concern,” he stated that neither her hand nor her hip was healing as they should “because of her work activity,” and repeated, “She needs a memory foam mattress cover as treatment for bursitis of the left hip.”

Plastech fell victim to the downturn in the auto market; it declared bankruptcy and closed its plant on June 30, 2008. Ms. Taylor received accrued vacation and sick time, and then applied for unemployment (“UI”) benefits which she received and was still drawing at the time of her deposition in February 2009.

| sin October 2008, Ms. Taylor filed the instant disputed claim, checking off the following items on the Form 1008, with typewritten addenda indicated in italics:

1. No wage benefits have been paid
6. Medical treatment (Procedure/Prescription) Foam Mattress, recommended by Dr. Burt for Claimant’s hip problems
⅜ ⅜ ⅝
8. Disability status
12. Other: Medical bills not paid; Mileage Expense not Reimbursed; penalties and attorney’s fees

Travelers answered, admitting that a work-related accident occurred but denying the other allegations and asserting that no indemnity benefits were due because Ms. Taylor never missed any work. It also raised dilatory exceptions of vagueness and prematurity, urging that Ms. Taylor failed to state the time frame for which wage benefits were due. In February 2009, the WCJ sustained the exception of vagueness and gave Ms. Taylor 15 days in which to amend. She filed no amendment.

Meanwhile, in January 2009, Dr. Burt wrote on a history sheet, “I am going to refer her to a hand specialist for evaluation of this continued pain,” and Travelers’ counsel approved this, pending her completion of a choice of physician form. Ms. Taylor chose Dr. Diego Miranda, but in late February Travelers’ counsel retracted its approval, questioning whether Dr. Burt | ((‘truly felt such a referral was medically necessary” and asking her to return to Dr. Bilderbaek for a second opinion.

Dr. Bilderbaek saw Ms. Taylor on March 4 and found a “flexion deformity” of her left little finger; however, because serial splinting had failed, he now felt that surgery would not be of any significant value. He reiterated that her hip would improve over time, and advised her to continue working on a full-time, unrestricted basis.

The Motion for Summary Judgment

Travelers then filed this motion for summary judgment, arguing that Ms. Taylor never missed any work, and since Plastech closed, she was drawing UI, which disqualified her from wage benefits under La. R.S. 23:1225 B. Further, she had failed to produce any evidence that she cannot earn 90% of her pre-injury wage, a prerequisite for temporary, total disability under R.S. 23:1221(3). Still further, Dr. Burt’s referral to a hand specialist was suspect, as he had consistently approved her for regular work for nearly two years, but the issue was premature because Ms. Taylor never filed a motion for choice (or change of choice) of physician. Finally, Ms. Taylor provided no receipt or evidence of purchase of the foam mattress cover, no proof that Travelers failed to pay any medical bill, and no request for mileage reimbursement.

|7Ms. Taylor responded that several issues of material fact remained: (1) Dr. Burt recommended a foam mattress but it was never provided; (2) he also thought her hand and hip were not healing as they should; (3) Travelers has not honored her choice of Dr. Miranda as a hand specialist; (4) Dr. Bilderback first recommended, and then did not recommend, surgery, creating a genuine issue; (5) whether Travelers knew about Dr. Burt’s prescription of a foam mattress was also a genuine issue.

After a hearing in October 2009, the WCJ granted summary judgment, holding that based on Drs. Burt and Bilderback’s reports, there was no genuine issue as to disability; no genuine issue as to whether the mattress pad or other medical expenses were ever submitted; and no proof that Ms. Taylor was entitled to indemnity benefits. The WCJ rendered judgment dismissing her claim, “including, but not limited to, claims for indemnity benefits, unpaid medical or mileage reimbursement, a foam mattress and penalties and attorney’s fees.”

Ms. Taylor now appeals, raising three assignments of error.

Discussion: Exception of Vagueness

By her first assignment of error, Ms. Taylor urges the WCJ erred in sustaining the exception of vagueness. She shows that the form for initiating a disputed claim is “to be provided by the director,” La. R.S. 23:1310 A, and |sis to be called “Form LDOL-WC-1008,” 40 La. Adm. C. § 5507 A. Ms. Taylor argues that she used this form but concedes that “due to an unfortunate confluence of events” after the exception was sustained, she failed to amend it. She urges that in light of the liberal construction of the compensation act, the judgment should be vacated and the case remanded so she can amend and cure the deficiency.

Travelers responds that the interlocutory ruling on an exception of vagueness is subject to review for abuse of discretion. Washington v. Flenniken Const. Co., 188 So.2d 486 (La.App. 3 Cir.1966). Even though the WCJ sustained the exception, it did not dismiss the claim for vagueness, so Ms. Taylor suffered no prejudice.

The claimant is required to allege the “specific compensation benefit which is due” under La. R.S. 23:1311 A(3); Key v. Monroe City School Bd., 45,096 (La.App. 2 Cir. 3/10/10), 32 So.3d 1144. Travelers’ exception of vagueness sought to make Ms. Taylor state the specific workdays she missed because of this accident. Sustaining the exception was within the WCJ’s discretion. Regardless of that ruling, Travelers raised essentially the same issue by its motion for summary judgment: the claimant failed to prove that she missed any work because of this injury, and hence was not entitled to indemnity benefits. Ms. Taylor then had the opportunity to offer contrary | ¡¡evidence. Because the same issue — the loss of workdays — was addressed in the context of the motion for summary judgment, the pretrial ruling on the exception of vagueness is moot. This assignment of error lacks merit.

Denial of Indemnity Benefits

By her second assignment of error, Ms. Taylor urges the WCJ erred in granting the motion for summary judgment when numerous disputed issues were present. She reiterates the five issues she argued to the WCJ, but for purposes of this opinion we will first address the indemnity benefits. She argues primarily that Dr. Bilderback first recommended surgery, and then withdrew his recommendation, creating a genuine issue.

Travelers responds that both Dr. Burt and Dr. Bilderback repeatedly approved her for full-duty work, and Ms. Taylor offered no summary judgment evidence to the contrary. Travelers also urges that although both doctors noted her complaints of ongoing pain, “working in pain” is not a fact that permits a claimant to draw either temporary, total disability or supplemental earnings benefits. La. R.S. 23:1331(1), (3). Finally, Travelers reiterates that after Ms. Taylor began drawing and continues to draw UI benefits, she was disqualified from receiving indemnity benefits. La. R.S. 23:1225 B.

|inA 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 sought by a litigant. Somaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. The party moving for summary judgment need not negate every essential element of the opponent’s claim, action or defense; he need only point out the absence of factual support for one or more essential element. La. C.C.P. art. 966 C(2). If the opponent then 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. Id.; Babin v. Winn-Dixie La., 2000-0078 (La.6/30/00), 764 So.2d 37.

Compensation for temporary, total disability shall be awarded only if the employee proves, by clear and convincing evidence, unaided by any presumption of disability, that she is physically unable to engage in any employment or self-employment, regardless of its nature or character, “including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain[.]” La. R.S. 23:1221|n(l)(c). The statute thus excludes working in pain as a ground for which temporary, total disability benefits may be awarded. Mitchell v. AT & T, 27,290 (La.App. 2 Cir. 8/28/95), 660 So.2d 204, writ denied, 95-2474 (La.12/15/95), 664 So.2d 456. To receive supplemental earnings benefits, the claimant must show that she is unable to earn wages equal to 90% or more of wages at the time of the injury; if she is not working, she may recover these benefits only if she establishes “by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain,” she cannot perform available work. La. R.S. 23:1221(3)(c)(ii); Morrison v. First Baptist Church of West Monroe, 45,277 (La.App. 2 Cir. 5/19/10), 36 So.3d 1201. No indemnity benefits are payable for any week “in which the employee has received or is receiving unemployment compensation benefits.” La. R.S. 23:1225 B; Wills v. Solida Const. Co., 543 So.2d 1365 (La.App. 2 Cir.1989).

Ms. Taylor’s choice of treating physician, Dr. Burt, initially released her to light-duty work because of the broken finger; by August 3, 2007, he released her to full duty. Thereafter, both Dr. Burt and Dr. Bilderback consistently released her to full-duty work despite the continuing complaints of pain and stiffness in her pinkie. Ms. Taylor admitted in deposition that she drew wages until the plant closed and had been drawing UI since she |12applied. This summary judgment evidence pointed out a lack of support for an element or elements essential to Ms. Taylor’s claim— that she was physically unable to engage in any employment, or that solely as a consequence of substantial pain she could no longer earn 90% of her pre-injury wage, or that despite receiving UI benefits, she was somehow entitled to workers’ compensation indemnity benefits. The burden thus shifted to Ms. Taylor to produce factual support sufficient to establish that she could meet her burden of proof at trial; she failed to do so. She showed that Dr. Bilderback wavered in his recommendation of surgery, but we see nothing in his reports to show that he ever retracted his opinion that Ms. Taylor could perform full-duty work. In short, this record does not establish any genuine issue as to indemnity benefits under R.S. 23:1221. This assignment of error lacks merit.

Dismissal of Other Claims

By her third assignment of error, Ms. Taylor urges the WCJ erred in dismissing all claims, including her choice of Dr. Miranda and her request for the foam mattress recommended by Dr. Burt. She shows that she has the absolute right to select one physician in any field without the employer’s approval. La. R.S. 23:1121 B(l); Smith v. Southern Holding Inc., 2002-1071 (La.1/28/03), 839 So.2d 5. She also argues that the summary judgment 11sevidence does not resolve whether Travelers was aware of her requests and refused to act on them.

Travelers concedes that Ms. Taylor was “advised” to buy a mattress pad, but she produced no proof that she asked Plastech to provide this or submitted an invoice for it. Travelers also submits that the choice of physician was not really before the court, as Ms. Taylor never amended her Form 1008 to allege it, but that this claim is now barred by res judicata. La. C.C.P. art. 425 A; R.S. 13:4231(2). It concludes that the WCJ properly dismissed all claims.

The employee has the right to select one treating physician in any field or specialty. La. R.S. 23:1121 B(l). After her initial choice, the employee must obtain prior consent from the employer or its compensation carrier for a change of treating physician within that field or specialty. Id.; Cheatham v. Luberski Inc., 43,603 (La.App. 2 Cir. 9/17/08), 996 So.2d 373. The employee must show that a change of treating physician is medically necessary. Cheatham v. Luberski Inc., supra. In every case of compensable injury, the employer is required to furnish “all necessary drugs, supplies, hospital care and services, medical and surgical treatment!)]” La. R.S. 23:1203 A; Hammock v. Weyerhaeuser, 40,464 (La.App. 2 Cir. 12/14/05), 917 So.2d 733.

| ^Although they released her to work, both of Ms. Taylor’s doctors noted continuing complaints of pain and stiffness in her pinkie, as well as bursitis in the hip. Dr. Burt ultimately wrote that he would refer her to a hand specialist, an action to which Travelers initially agreed. Dr. Bilderback initially stated that surgery might be her only option, but later withdrew that recommendation. These contradictory medical opinions, and Travelers’ retracted approval, leave open the genuine issue whether Ms. Taylor can show that choosing a new orthopedic specialist is medically necessary under R.S. 23:1121. The WCJ erred in granting summary judgment as to this claim.

Similarly, the evidence shows that Dr. Burt recommended a foam mattress cover to alleviate Ms. Taylor’s bursitis, a point which Travelers did not refute. We would be inclined to grant a summary judgment ordering Travelers to provide the mattress, but on close review we do not see evidence that she actually notified them of this claim until she filed her Form 1008. On this record we find a genuine issue as to whether Ms. Taylor is entitled to the mattress and whether Travelers failed to reasonably controvert this claim. The WCJ erred in granting summary judgment on this portion of the case.

Conclusion

|1sFor the reasons expressed, the summary judgment is affirmed insofar as it dismissed Ms. Taylor’s claim for weekly indemnity benefits. However, it is reversed with respect to the choice of an orthopedic specialist and the claim for medical expenses; genuine issues remain to be resolved. The case is affirmed in part, reversed in part and remanded to the WCJ for further proceedings in accordance with this opinion. Trial and appellate costs are to be paid by Travelers Property Casualty Company of America.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

      . Ms. Taylor asserts in brief that counsel for Travelers never tendered a copy of the proposed judgment for approval as to form.