author: GASKINS, J. BROWN, Chief Judge,

text:
    Henry BRANDON, Plaintiff-Appellant v. MOTORS LIQUIDATION COMPANY, Defendant-Appellee.
    No. 46,694-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 9, 2011.
    Rehearing Denied Dec. 8, 2011.

      Fischer & Associates, Shreveport, LA, by Mark K. Manno, for Plaintiff-Appellant Henry Brandon.
    Lunn, Irion, Salley, Carlisle & Gardner, Shreveport, LA, by J. Martin Lattier, Lisa D. Lobrano, for DefendanL-Appellee Motors Liquidation Company.
    Before BROWN, WILLIAMS, GASKINS, JJ.
   GASKINS, J.

liThe plaintiff, Henry Brandon, appeals from a decision by a workers’ compensation judge (WCJ) finding that the plaintiff failed to prove that he had an accident in the course of and arising out of his employment. For the following reasons, we reverse and remand for further proceedings.

FACTS

Mr. Brandon was a supervisor on the final assembly line at the General Motors (GM) Plant in Shreveport. The plaintiff had worked for GM for approximately 32 years at the time of the alleged accident. He had an extensive history of prior injuries and illnesses. In 1999, he was injured in a fall down some stairs. In 2004, he was injured in an automobile accident and began treatment with Dr. Pierce Nunley, an orthopedic surgeon, for neck and back pain. In January 2010, Mr. Brandon had thyroid surgery and in February 2010, he began seeing Dr. Suresh Kumar, a neurologist, for treatment of migraine headaches and neck pain. In April 2010, Mr. Brandon returned to Dr. Nunley complaining of an increase in back pain. He was placed on a physical therapy regimen and a spinal injection was scheduled. Mr. Brandon was off work from January to June 2010, and had only been back at work for a few days when the alleged accident occurred.

According to Mr. Brandon, on June 8, 2010, he was walking along the vehicle line at GM where vehicles are inspected before being shipped out of the plant. He was looking for a particular vehicle that needed to be shipped. As he was walking, he claims that a coworker, Yvonne Baudoin, | gbacked up in a pickup truck and hit him on the right side of his body. He said that he was not knocked to the ground, but was pushed back a little bit. He put his hand inside the tailgate and beat on the truck to alert Ms. Baudoin that she had hit him. She stopped and they had a conversation.

Mr. Brandon’s supervisor, Mike Clemons, came to investigate. Mr. Brandon told Mr. Clemons that he felt all right. Later that day, Hosea Hester, Mr. Clemons’ supervisor, inquired as to whether Mr. Brandon was injured. Mr. Brandon denied any injury. Mr. Hester told Mr. Brandon to go to the company nurse and write a report.

Mr. Brandon went to the company nurse, Cheryl Andrews Morris. He told her that he had pain on the right side and the right rib cage. Mr. Brandon stated that the impact occurred between the pelvis and hip.

According to Mr. Brandon, later in the day, he began to feel stiff and sore. When he reported for work the next morning, Mr. Brandon told Mr. Clemons that he was in pain and needed to go to the doctor. Mr. Brandon went to Dr. Nunley who continued Mr. Brandon’s physical therapy. He already had a nerve root block injection scheduled when the work incident occurred. The spinal injection was given as scheduled on June 11, 2010. According to Mr. Brandon, his pain did not improve and he had back surgery on August 24, 2010. Mr. Brandon had a fusion at the L4-5 and L5-S1 levels.

Mr. Brandon filed a disputed claim for compensation seeking weekly indemnity benefits, reimbursement for medical costs, and attorney fees and [ ¡¡penalties. The plaintiffs claim for workers’ compensation benefits was denied. A hearing on the matter was held on January 3, 2011.

Jacoby Marshall, a 20-year-old intern who worked at GM in the summer of 2010, testified that he witnessed the accident. He stated that he saw Ms. Baudoin put a truck into reverse and accidentally back into Mr. Brandon. He said that Mr. Brandon was pushed back a little, but was not knocked to the ground. Mr. Marshall stated that Mr. Brandon struck the truck with his hand and Ms. Baudoin stopped the vehicle. According to Mr. Marshall, Mr. Brandon rubbed his leg where he was hit by the truck. Mr. Brandon and Ms. Baudoin had a conversation, but Mr. Marshall did not hear what they said. Ms. Baudoin asked Mr. Marshall if she hit Mr. Brandon and Mr. Marshall told her that she did. Mr. Marshall gave a written statement on the day of the accident setting forth what he saw.

Ms. Baudoin, the operator of the truck that allegedly hit Mr. Brandon, testified that part of her job entailed driving vehicles outside the plant for shipment or to a point in the plant where repairs were to be made. She stated that she followed the standard operating procedure required before moving vehicles; she looked in the rear view mirror and sounded the horn. She then backed up in the truck at a speed of approximately one mile per hour. She heard Mr. Brandon bang on the truck. She stopped and talked to Mr. Brandon who asked if she was going to hit him. Ms. Baudoin stated that at first, she thought that Mr. Brandon was joking and “just blew it off.” According to Ms. Bau-doin, the plaintiff did not tell her that she had, in fact, hit him on any part of his body.

|4The unsworn written statement of another witness, Douglas McKithen, was admitted into evidence. That statement, given on July 22, 2010, is as follows:

I was standing in my paint booth polishing a box rail and I saw Henry Brandon walk by. He came back by and saw a truck backing out of the care line fit repair area and he started walking toward the truck. He then stopped for a second to see how fast the truck was backing up and then walked up to it and slapped the back of the truck. I thought he was just playing around until I heard he claimed he got hit.

Mr. McKithen did not testify at trial and his statement was given more than six weeks after the accident occurred. Further, the statement admitted at the hearing was typewritten and was not signed by Mr. McKithen.

Ms. Morris, the nurse at GM, testified that Mr. Brandon came to her on June 8, 2010, after the accident, and told her that the vehicle impacted him on the right side and right rib cage. Mr. Brandon told her that he was just a little sore. He had no apparent symptoms and no discernible injuries. She offered him over-the-counter pain medication, but Mr. Brandon declined, saying that he was having a procedure later in the week and could not take any over-the-counter pain medications.

Mr. Brandon testified, outlining his prior back problems, and explaining how the accident occurred. He claimed that the pain in his back was gone before this accident, but after the accident, the back pain became so severe that he could not sit, stand, or walk for a period of time. He took physical therapy and a spinal injection; however, the pain remained. He had back surgery in August 2010. He stated that he still has problems with |finumbness in his left leg and foot. Mr. Brandon said that the accident made his neck and back problems much worse and he cannot perform his prior duties.

On cross-examination, Mr. Brandon stated that he went to Dr. Nunley in April 2010 and complained of severe low back pain that had increased over time and was significantly affecting his life and disrupting his sleep. For the week of June 1 through 5, 2010, just prior to the work incident, the plaintiffs physical therapy notes show that he complained of pain at a level of eight to nine on a scale of 10, and that walking made his pain hit 10/10 “real quick.”

Mr. Brandon had a nerve block injection on June 11, 2010, three days after this alleged accident. The injections were administered by Dr. Rama Letchuman. The plaintiff told Dr. Letchuman that he had been experiencing back pain since 1999 and his condition was aggravated in June 2010 when a truck backed into him while he was walking. The plaintiff received injections on the right and left side of L5. The injections did not ease Mr. Brandon’s pain.

Dr. Nunley testified by deposition. He stated that he first saw Mr. Brandon on April 11, 2005. The plaintiff had been involved in a car accident in December 2004 and was complaining of neck and low back pain. An MRI done on March 16, 2005, prior to the plaintiffs referral to Dr. Nunley, showed a disc bulge at the L4-5 level. The plaintiff had spondylosis, which is a degenerative change, and stenosis, which is a narrowing of the space around the nerve roots. The plaintiff was treated ^conservatively with physical therapy. Mr. Branson returned to Dr. Nunley on May 25, 2005, and the conservative treatment had helped his symptoms.

Dr. Nunley did not see Mr. Brandon again until April 21, 2010. At that time, the plaintiff complained of increased back pain without additional injury. An EMG was performed on April 28, 2010, and showed no nerve damage. An MRI on April 29, 2010 showed no new findings and a mild increase in the pathology noted five years earlier. The plaintiffs pain was primarily discogenic, that is, caused by injury to the disc itself and not from any impingement on the spinal cord or nerve roots. Mr. Brandon said that he got relief from sitting. There was no indication for surgery at that point and Dr. Nunley began a course of conservative treatment for Mr. Brandon, including physical therapy.

Dr. Nunley’s notes from the plaintiffs office visit on June 18, 2010, show that Mr. Brandon stated that he had been hurt at work on June 8. The notes reflect that the plaintiff was hit by a truck that threw him about six feet and exacerbated his low back pain. The plaintiff also complained of neck pain. Dr. Nunley’s notes reflect that, according to Mr. Brandon, he had not had any previous cervical complaints prior to this accident. Dr. Nunley stated in his deposition that he did not think there was enough change in Mr. Brandon’s condition to have another MRI of the plaintiffs back after the alleged accident.

|7On July 14, 2010, an MRI was done of the plaintiffs neck which showed some bulging discs. When Dr. Nunley saw Mr. Brandon on July 16, 2010, the pain in the plaintiffs neck was not as severe. His pain was primarily in his low back and was radiating into his legs occasionally. The pain had gotten worse with sitting and standing. According to Dr. Nunley, when he saw the plaintiff in July, he had a different presentation. He was sitting in a tripod position in which the patient leans forward and uses the hands to offload the weight of the back. At that point, Dr. Nunley began discussing surgery with Mr. Brandon. Dr. Nunley opined that the work incident seemed to be the inciting event that took Mr. Brandon’s chronic problem, “that was smouldering, over the edge to where surgery was necessary.”

The plaintiff agreed to have back surgery and after it was performed, he experienced nerve sensitivity in his left leg radiating into his foot. He also had a partial foot drop. After the surgery, the plaintiff was placed on a regimen of physical therapy. At his office visit with Dr. Nunley on December 1, 2010, the plaintiff listed his pain as 10 out of 10. The doctor’s notes reflect that the plaintiff was being treated for a problem caused by an on-the-job injury. Dr. Nunley noted that the plaintiff was trying to get workers’ compensation benefits. The doctor’s notes state that the plaintiff marked 10s on all of his pain scales, but appeared very relaxed, moved fairly fluidly with a mild -limp, and did not appear to be at the level of distress that he indicated.

[sThe defendant obtained a second opinion from Dr. Milan Mody, an orthopedic surgeon. Dr. Mody noted that the plaintiff had been suffering from low back pain since 1999. Mr. Brandon’s preoperative x-rays and MRI were consistent with a longstanding chronic degenerative process of L4-5 and L5-S1. According to Dr. Mody, the plaintiff underwent surgery after his work-related injury, most likely as a result of an exacerbation of a chronic condition. Dr. Mody recommended a return to light or sedentary work at six months postoper-atively and then proceeding to work hardening and a return to the plaintiffs previous occupation.

On January 21, 2011, the WCJ issued written reasons for judgment, rejecting Mr. Brandon’s claims. The WCJ determined that Mr. Brandon failed to prove the occurrence of a work-related accident within the meaning of La. R.S. 23:1021(1). According to the WCJ, the evidence, other than the plaintiffs testimony, discredited Mr. Brandon’s version of the incident and indicated that he may have staged the entire event.

The WCJ stated that should its determination that no work-related accident occurred be reversed by this court, then he found that Mr. Brandon also failed to prove that his pre-existing condition was exacerbated by the alleged accident on June 8, 2010. A judgment rejecting Mr. Brandon’s demands was signed and filed on February 25, 2011. Mr. Brandon appealed.

I,.PROOF OF ACCIDENT

Mr. Brandon argues that the WCJ erred in finding that he failed to meet his burden of proving that he had an accident in the course of and arising out of his employment.

Legal Principles

An employee is entitled to workers’ compensation benefits if he received personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031(A). An “accident” is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1). In a workers’ compensation action, the plaintiff must establish the occurrence of a work-related accident by a preponderance of the evidence. Koenig v. Christus Schumpert Health System, 44,244 (La.App.2d Cir.5/13/09), 12 So.3d 1037.

Proof by a preponderance of the evidence is sufficient where the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Lowe v. Skyjacker Suspensions, 45,-058 (La.App.2d Cir.3/3/10), 32 So.3d 340; Player v. International Paper Company, 39,254 (La.App.2d Cir.1/28/05), 892 So.2d 781. He must establish a causal link between the work-related accident and his injury. Player v. International Paper Company, supra. If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves | 10the question open to speculation or conjecture, then the plaintiff fails to carry the burden of proof. Player v. International Paper Company, supra; Millage v. Builder’s Lumber Supply Company, 38,635 (La.App.2d Cir.7/2/04), 877 So.2d 1171, writ denied, 2004-1885 (La.10/29/04), 885 So.2d 594.

The worker’s testimony alone may be sufficient to satisfy this burden, provided that two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992); Authement v. Wal-Mart, 2002-2434 (La.App. 1st Cir.9/26/03), 857 So.2d 564; Davis v. Claiborne Electric Cooperative, Inc., 45,806 (La.App.2d Cir.12/15/10), 56 So.3d 321.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 1996-2840 (La.7/1/97), 696 So.2d 551; Dombrowski v. Patterson-UTI Drilling Company, 46,249 (La.App.2d Cir.4/13/11), 63 So.3d 308. To reverse a factfinder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine that the record establishes that the |, Ending is clearly wrong. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993); Dombrowski v. Patterson-UTI Drilling Company, supra. Ultimately, 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. 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. Stobart v. State through Department of Transportation and Development, supra; Dombrowski v. Patterson-UTI Drilling Company, supra.

When there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own inferences and evaluations are as reasonable. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Koenig v. Christus Schumpert Health System, supra.

La. R.S. 23:1317 provides, in pertinent part:

The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.

The workers’ compensation judge has the discretion to admit hearsay evidence in workers’ compensation proceedings. Such evidence can qualify as “competent evidence” provided that the evidence has some degree of | ^reliability and trustworthiness and is of the type that a reasonable person would rely on. This determination must be made on a case-by-case basis under the particular facts and circumstances. The reviewing court must evaluate the competency of the evidence under the manifest error standard. Chaisson v. Cajun Bag & Supply Co., 1997-1225 (La.3/4/98), 708 So.2d 375; Hooker v. Wal-Mart Stores, Inc., 38,244 (La.App.2d Cir.3/3/04), 867 So.2d 869; Odom v. International Paper Company, 31,826 (La.App.2d Cir.5/5/99), 736 So.2d 290.

Discussion

There is evidence in the record to support both parties’ positions in this matter. It appears that the WCJ based the decision that the plaintiff failed to prove an accident in the course of and arising out of the plaintiffs employment upon a determination that Mr. Brandon was not credible. The main emphasis of the WCJ’s reasoning that Mr. Brandon was not credible is based upon a misreading of the evidence presented at trial. The WCJ based his rejection of the plaintiffs claim on a physical therapy note which the WCJ misconstrued to mean that Mr. Brandon fell down some stairs in May 2010, shortly before the work incident, was injured, and failed to tell his doctors. The written reasons for judgment by the WCJ state:

More troubling still are the statements made by the claimant to his Physical Therapist in D-9-004. On May 28, 2010, ten days before his alleged work accident, he tells his PT that he has “slipped down stairs” and that his pain has increased over the last several days as indicated by the up arrow. He says, literally, “† pain over several days.”
Claimant apparently never reports his stair fall to Dr. Nunley. Instead, the claimant exaggerates the alleged work accident by telling him that the truck “threw him about 6 feet.”

11sLater in the written reasons for judgment, the WCJ concludes:

It is also clear that he had injured himself falling down stairs just prior to the alleged accident at work and that he not only did not report the fall to his treating physician, he exaggerated to him the nature of the work incident.

We note that the WCJ cites exhibit D-9-004 in support of its reasoning. That exhibit is a physical therapy note from 2005. The exhibit quoted by the WCJ is actually D-6-004, a physical therapy note from Specialists Hospital Shreveport. The note is dated May 28, 2010, and reflects a diagnosis of low back pain. The note indicates that pain has increased over several days. On the blank “PRESENT FOR” is written “ '99.” On the blank “COMMENCED AS A RESULT OF” is written, “slipped down stairs.” This exhibit supports other evidence that the plaintiffs initial problem with his back began in 1999, when he fell down some stairs. It does not show that the plaintiffs fall occurred in the days immediately preceding May 28, 2010, as concluded by the WCJ in reasons for judgment.

The correct date of the fall down the stairs is shown throughout the record. At the hearing, the defendant’s attorney asked the plaintiff the following question:

When you were seen for the initial evaluation for PT at Specialist Hospital on May 28, 2010, you reported that you had lower back pain since 1999 after you slipped down some stairs; correct?

Mr. Brandon answered, “That’s correct.”

The plaintiff told Dr. Letchuman, prior to receiving a nerve block injection, that his back pain had been present since 1999. In the second li4opinion given by Dr. Mody, he also notes that the plaintiff has had back pain since 1999.

Findings of fact are not to be reversed by an appellate court unless those findings are manifestly erroneous or clearly wrong. We find that the WCJ was manifestly erroneous and clearly wrong in finding that the plaintiff fell down stairs just prior to the accident in question. The WCJ appeared to stress this fall as a pivotal part of his decision that the plaintiff was not credible. Based upon his finding that the plaintiff was not credible, the WCJ found that Mr. Brandon failed to carry his burden of proving that a work accident occurred. Because the WCJ’s credibility determination was flawed, and because credibility determinations are the province of the finder of fact, we conclude that the interest of justice will be best served by remanding the matter to the WCJ for reconsideration of the evidence and testimony without the errors discussed above. The WCJ is to reevaluate whether an accident in the course of and arising out of the plaintiffs employment occurred and if so, whether the accident aggravated a preexisting condition.

CONCLUSION

We reverse the ruling of the WCJ denying the claims of the plaintiff, Henry Brandon. We remand the matter for a determination of whether an accident in the course of and arising out of the plaintiffs employment occurred and for further proceedings. Costs in this court are assessed one-half to the plaintiff and one-half to the defendant.

REVERSED AND REMANDED.

BROWN, Chief Judge, concurs with written reasons.

BROWN, Chief Judge,

concurring.

1 plaintiffs attorney in brief emphasized that the excerpts used to attack plaintiffs credibility are “really more relevant to the issue of causation.” That is, to the second part of the WCJ’s opinion that “plaintiff has failed to prove that his preexisting condition was exacerbated by the alleged accident of June 8, 2008.” The first part of the opinion is that there was no accident.

This court now finds that one misstatement of fact was manifestly erroneous. If so, we should review the case de novo rather than remand for the trial court to reevaluate its opinion that an accident occurred. In order to move forward on this case, I have concurred.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, GASKINS and MOORE, JJ.

Rehearing denied.

BROWN and STEWART, JJ., would grant rehearing.

      . The defendant in this matter is Motors Liquidation Company, previously General Motors Corporation.

      . The name of this witness is incorrectly stated in the WCJ’s written reasons for judgment as “Sherel Sanders Morris.”

      . There is some inconsistency in the spelling of this witness's name. The document admitted at the hearing uses the spelling, "McKi-then.” This spelling will be used in this opinion.

      . At the hearing, the plaintiff denied that the told Dr. Nunley that he was knocked back six feet. Dr. Nunley testified by deposition and was not available at the hearing for cross-examination on this issue.


source: Caselaw Access Project

author: BROWN, Chief Judge. MOORE, J,

license: Public Domain

text:
    Herman SLADE, Plaintiff-Appellee v. STATE of Louisiana through the UNIVERSITY OF LOUISIANA AT MONROE, Defendant-Appellant.
    No. 46,720-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 9, 2011.
    Rehearing Denied Dec. 8, 2011.

      Watson, McMillin & Harrison, by W. Michael Street, Monroe, LA, for Appellant.

      Street & Street, by C. Daniel Street, Monroe, LA, for Appellee.
    Before BROWN, DREW, and MOORE, JJ.
   BROWN, Chief Judge.

_JjIn this workers’ compensation case, defendant, the State of Louisiana through the University of Louisiana at Monroe (“ULM”), filed this suspensive appeal from a ruling granting summary judgment in favor of claimant, Herman Slade. Slade answered the appeal, claiming error in the denial of attorney fees and penalties. For the following reasons, we AFFIRM.

Facts and Procedural History

There is no dispute that on June 13, 2006, claimant was injured within the course and scope of his employment as director of farm operations at ULM when he stepped in a hole with his right leg and hyperextended his left leg causing damage to his left knee. Thereafter, claimant had three surgeries on the left knee including a total knee replacement. He initially received supplemental earnings benefits (“SEB”) from July 1, 2006, until September 24, 2006. Thereafter, he received temporary total disability benefits which ended on March 24, 2008, when claimant was released by his physician, Dr. Douglas Brown, to return to work.

While he was on workers’ compensation benefits, claimant’s employment was terminated. Claimant found work with Southern Seed Supply, but continued experiencing problems with his knees. It is undisputed that claimant was treated by Dr. Brown on multiple occasions. On January 2, 2009, Dr. Brown limited claimant’s work activities to 12medium-level, which caused him to be unable to perform all of the duties of his employment, which led to a decrease in his income.

Claimant made a claim for SEB from defendant on May 19, 2010, which was denied. On June 15, 2010, claimant initiated the instant proceedings with the Office of Workers’ Compensation for SEB and medical treatment to include his right knee. On September 3, 2010, claimant filed a motion for summary judgment. This motion was supported with his affidavit, employment documents and medical records. Defendant, relying on claimant’s filings, argued that there were genuine issues of material fact as to whether claimant was able to earn 90% of his pre-injury wage. The WCJ ruled from the bench, granting claimant’s request for medical evaluation of his right knee but denying his request for SEB.

On December 14, 2010, claimant filed what was styled as a “Motion for a New Trial” pointing out an error of law concerning the burden of proof in the denial of the SEB portion of his motion for summary judgment. The WCJ granted the new trial motion, reversed its previous ruling denying SEB, and granted summary judgment in favor of the claimant, although the WCJ denied attorney fees and penalties. Thereafter, defendant timely filed the present appeal. Claimant answered the appeal seeking attorney fees and penalties.

Discussion

Three assignments of error are presented in this appeal. First and primarily, defendant argues that the WCJ erred pro-eedurally in reviewing its |sprior ruling denying summary judgment. In addition to the procedural flaw, defendant claims that the WCJ’s ruling granting claimant’s motion for summary judgment was error because there exists a genuine issue of material fact as to whether claimant is able to earn above the statutorily defined level of 90% of his pre-injury average monthly wages. Finally, claimant in his answer to this appeal, contends that the WCJ’s ruling which denied penalties and attorney fees for nonpayment of SEB should be reversed.

Motion for a New Trial

Defendant argues that a motion for a new trial can only be taken from a final judgment and the denial of a motion for summary judgment is not a final judgment. Defendant contends that claimant’s only remedy from a denial of a motion for summary judgment is by supervisory writs to the court of appeal. Defendant cites Allstate Ins. Co. v. Mohamadian, 09-1126 (La.App. 1st Cir.02/17/10), 35 So.3d 1118, which was not a workers’ compensation case.

La. R.S. 23:1310.8(A) provides, in pertinent part:

The power and jurisdiction of the workers’ compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified....

In Falgout v. Dealers Truck Equipment Co., 98-3150 (La.10/19/99), 748 So.2d 399, the supreme court stated:

Usually, once a judgment has become final and definitive, parties are bound by it, regardless of any future change of circumstances. See La. C. Civ. Pro. arts. 1841, 425. Workers’ compensation judgments, however, are treated differently from Lordinary judgments. This is due to the fact that if the rules of finality applied to ordinary civil judgments are applied to workers’ compensation judgments, the flexibility of the workers’ compensation system would be greatly restricted. Landreneau [v. Liberty Mut. Ins. Co.], 309 So.2d [283] at 284 [ (La.1975) ]. This court has recently reaffirmed the validity of this policy in holding that where the legislature has expressly provided that an award or judgment can be subject to a claim of modification res judicata does not apply. Jackson, 98-1810 p. 9, 732 So.2d at 524.

Falgout dealt with prescription but what was written is instructive:

Theoretically, then, under the concept of workers’ compensation, courts ought to exercise perpetual and unlimited jurisdiction to reopen cases as often as necessary to make- benefits meet current conditions. 8 Larson’s Workers’ Compensation Law § 81.10, at 1045 (1998). In Jackson, the court recognized that because the modification statute is to be liberally construed in favor of the claimant the principles of res judicata are at odds with the concept of modification in the workers’ compensation arena. 732 So.2d at 524.

When interpreting provisions of the Workers’ Compensation Act, the history and policy provisions of the workers’ compensation movement must be taken into account. Stelly v. Overhead Door Company of Baton Rouge, 94-0569 (La.12/08/94), 646 So.2d 905. The purpose of the Workers’ Compensation Act is to set up a court-administrated system to aid injured workmen by relatively informal and flexible proceedings that are to be interpreted liberally in favor of the workmen. Falgout, supra.

In this case, the WCJ considered that it made a legal error in denying claimant’s motion for summary judgment. Claimant pointed out this error through a filing captioned “Motion for a New Trial.” Defendant objected to the motion and the WCJ opined:

_[¿[T]he question that’s before me, again, on the motion for summary judgment— and I do find it appropriate to review it under [23:1310.8] and the court’s continuing jurisdiction ... I have to reverse my prior ruling in this case because of the absence of evidence presented by the defendant as to why there was a change in salary ...

Allstate Ins. Co. v. Mohamadian, supra, cited by defendant, was not a workers’ compensation case and is distinguishable from the case at hand. We feel that workers’ compensation cases should be treated differently than cases in district court. We also note that if this court were to reverse the WCJ’s ruling and remand this case, claimant would still be free to re-urge his original motion for summary judgment. Such a reversal by this court would not seem to meet the goals of the Workers’ Compensation Act by merely further delaying benefits to which claimant is entitled.

Motion for Summary Judgment

The purpose of SEB is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.07/01/97), 696 So.2d 551; Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993). To qualify for SEB, a claimant is required to prove by a preponderance of the evidence that a work related injury resulted in the inability to earn 90% or more of the pre-injury wages. La. R.S. 23:1221(3)(a); Albert v. Trans-Met, Inc., 38,261 (La.App.2d Cir.06/23/04), 877 So.2d 183.

| r;In any week where the worker is unable to earn at least 90% of his pre-injury wages, SEB will be payable to him, for a maximum of 520 weeks. La. R.S. 23:1221(3)(d)(ii); Dufrene v. Video Co-Op, 02-1147 (La.04/09/03), 843 So.2d 1066. If the worker is able to earn his pre-injury salary in any given week, the employer will not owe SEB, but these weeks will not be counted toward the 520 week maximum time period. Id.

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. Banks, supra; Caparotti v. Shreveport Pirates Football Club, 33,570 (La.App.2d Cir.08/23/00), 768 So.2d 186, writ denied, 00-2947 (La.12/15/00), 777 So.2d 1230. Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the claim for SEB or establish the employee’s earning capacity, must prove by a preponderance of the evidence that the employee is physically able to perform a certain job and the job was offered to the employee, or was available in his or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Banks, supra. Actual job placement is not required. Caparotti, supra.

Appellate courts review summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783; Mackey v. Jong’s Super Value No. 2, 41,440 (La.App.2d Cir.09/27/06), 940 So.2d 118. The summary judgment procedure |7is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). Summary judgments are favored under Louisiana law and shall be construed to meet these ends. Id.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Hines v. Garrett, 04-0806 (La.06/25/04), 876 So.2d 764. A fact is material when its existence or nonexistence may be essential to claimant’s cause of action under the applicable theory of recovery. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.07/05/94), 639 So.2d 730.

The party moving for summary judgment bears the initial burden of proving that no genuine issue of material fact exists and judgment is warranted as a matter of law. Waste Management of Louisiana, L.L.C. v. Labor Finders Intern., 43,052 (La.App.2d Cir.02/27/08), 978 So.2d 1058. The adverse party to a motion for summary judgment may not rest on the allegations or denials of his or her pleading. La. C.C.P. art. 967(B). Once a 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. Cyprien v. Board of Sup’rs ex rel. University of Louisiana System, 08-1067 (La.01/21/09), 5 So.3d 862; Wright v. Louisiana Power & Light, 06-1181 (La.03/09/07), 951 So.2d 1058.

In the instant case, claimant submitted a supporting affidavit with his motion for summary judgment. He reported that the work restrictions from Dr. Brown caused him to limit his work activities. He further affirmed that his left knee, and now his right knee as well, continues to interfere with his ability to work, and that he is unable to earn 90% of his pre-injury average monthly wages in his current employment due to the work restrictions.

Defendant argues that there exists a genuine issue of material fact as to whether or not claimant is entitled to SEB. Claimant’s pre-injury average monthly wage was $3,433.73, and 90% of this figure is $3,090.36. Claimant was required to submit a 1020 form each month showing his earnings. A review of some twenty 1020 forms reveals only three months where claimant earned more than 90% of his pre-injury wage. In March 2009, claimant earned $3,221.62; in April 2009, he earned, $3,995.55; and he earned $3,294.85 in May 2009. All other months reported, beginning in January 2009, show an income of significantly less than 90% of claimant’s pre-injury average monthly wages. Defendant contends that this fluctuation in wages earned shows that claimant has the ability to earn 90% or more of his pre-injury wages.

This court has held that mere speculation is not sufficient to defeat a motion for summary judgment. Church v. Shrell, 43,-972 (La.App.2d Cir.01/21/09), 8 So.3d 70. Mere conclusory allegations, improbable inferences and unsupported speculation will not support a finding of genuine issue of | <,material fact. Id.; Sears v. Home Depot, USA, Inc., 06-0201 (La.App. 4th Cir.10/18/06), 943 So.2d 1219, writ denied, 06-2747 (La.01/26/07), 948 So.2d 168. Such allegations, inferences and speculation are insufficient to satisfy the opponent’s burden of proof. Id.

The 1020 forms submitted by claimant do not themselves create a fact issue as to whether claimant is entitled to benefits when considering the motion for summary judgment. Claimant explained the loss of wages through his supporting affidavit as being caused by his knee injury and resulting work restrictions. Defendant offered no evidence and relied solely on the 1020 forms submitted by claimant which show that for three months claimant earned more than 90% of his pre-injury wages, and thereafter returned to making well below the 90% threshold. For those weeks where claimant earned above the 90% threshold, defendant does not owe SEB, but those weeks are not counted towards the maximum period of 520 weeks of eligibility. Dufrene, supra. Defendant’s suggestion that the wage fluctuations occurred because of factors other than claimant’s knee injury is too specula-five and unsupported to warrant a denial of summary judgment. Therefore, we find the granting of summary judgment appropriate in this case.

PenaltieslAttorney Fees

Finally, claimant argues that the judgment of the WCJ should be amended to include penalties and attorney fees for nonpayment of SEB. Louisiana law provides that installment benefits payable pursuant to R.S. |1023:1221(3) shall become due on the fourteenth day after the employer or insurer has knowledge of the compensable supplemental earnings benefits on which date all such compensation then due shall be paid. La. R.S. 23:1201(C). Claimant notes that the claim was properly submitted on May 19, 2010, for the period of January 2009 through March 2010. Thereafter, he submitted the appropriate 1020 forms monthly up to the present time. Claimant avers that payment was due fourteen days after May 19, 2010, and payments for succeeding months were due 14 days after the receipt of the 1020 form for that month.

Failure to provide payment of benefits will result in a penalty and attorney fees “unless the claim is reasonably controverted or if such non-payment results from conditions over which the employer or insurer had no control.” La. R.S. 23:1201(F)(2); McCarroll v. Airport Shuttle Inc., 00-1123 (La.11/28/00), 773 So.2d 694; J.P. Morgan Chase v. Louis, 44,309 (La.App.2d Cir.05/13/09), 12 So.3d 440. The phrase “reasonably controverted” means that the defendant must have “some valid reason or evidence on which to base his denial of benefits.” Brown v. Tex.-LA Cartage Inc., 98-1063 (La.12/01/98), 721 So.2d 885, 891; J.P. Morgan Chase, supra.

Statutory provisions permitting the assessment of penalties and attorney fees for nonpayment of workers compensation benefits are penal in nature and must be strictly construed. Taylor v. Hollywood Casino, 41,196 (La.App.2d Cir.06/28/06), 935 So.2d 293; Lewis v. Chateau D'Arbonne Nurse Care Center, 38,394 (La.App. 2d Cir.04/07/04), 870 So.2d 515. Penalties should not be imposed in doubtful cases, where a bona fide dispute exists as to the claimant’s entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative. J.E. Merit Constructors Inc. v. Hickman, 00-0943 (La.01/17/01), 776 So.2d 435; J.P. Morgan Chase, supra.

The WCJ has great discretion in awarding or denying penalties and attorney fees. Taylor, supra; Thomason v. Wal-Mart Stores Inc., 37,520 (La.App.2d Cir.09/04/03), 852 So.2d 1283, writ denied, 03-2774 (La.12/19/03), 861 So.2d 573. The WCJ’s decision concerning whether to assess statutory penalties and attorney fees will not be disturbed absent an abuse of discretion. Taylor, supra.

In this case, the WCJ denied attorney fees and penalties, ruling that defendant had reasonably controverted the claim. Defendant’s basis for denying benefits was the discrepancy in the amount and the timing of the fluctuation in claimant’s income. Specifically, the three consecutive months in which he earned above 90% of his pre-injury monthly average wages occurred after work restrictions were issued in January 2009. The WCJ | ^indicated that these issues created a valid reason to controvert the claim, noting that she originally denied the motion for summary judgment on the same grounds that defendant was controverting the claim. Claimant argues that defendant has not reasonably controverted the claim because it did not present any evidence to counter the factual and medical evidence he submitted. The fact that defendant ultimately lost in summary proceedings is not necessarily determinative as to whether there was a valid reason to initially dispute the claim. We cannot say the WCJ abused her great discretion in denying statutory penalties and attorney fees, and, therefore, we decline to reverse her decision.

Conclusion

For the reasons set forth above, the judgment of the trial court is affirmed. Costs are fully assessed against appellant, ULM, as allowed by law.

AFFIRMED.

MOORE, J., dissents and assigns written reasons.

MOORE, J,

dissents.

| ,The majority correctly states that workers’ compensation judgments “are treated differently from ordinary judgments.” Falgout v. Truck Dealers Equip. Co., 98-3150 (La.10/19/99), 748 So.2d 399, 405. However, Falgout provides no authority for what happened here: the WCJ granted a new trial from an interlocutory ruling that denied Slade’s motion for summary judgment. The proper remedy would have been for Slade to seek supervisory review, even in the Office of Workers’ Compensation. Moreover, Falgout carefully explains that the WCJ’s power to modify a prior ruling “exists for the purpose of modifying awards due to a change in the workers’ condition.” Id., citing Jackson v. Iberia Parish Gov’t, 98-1810, p. 9 (La.4/16/99), 732 So.2d 517, 524. Plainly, no change in Slade’s condition was shown after the WCJ denied his motion for summary judgment. I would not find that the WCJ’s belated change of mind qualifies as a change in the worker’s condition that warrants circumventing the normal appellate process.

More importantly, I would not find on de novo review that Slade’s showing eliminated every genuine issue of material fact. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion for summary judgment and in favor of trial on the merits. Property Ins. Ass’n of La. v. Theriot, 2009-1152 (La.3/16/10), 31 So.3d 1012. To obtain an award of SEB, the claimant must prove an “injury resulting in the employee’s inability to earn wages equal to” 90% of his pre-injury wage. La. R.S. 23:1221(3)(a). The claimant must show what he “is |2earning or is able to earn.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1008 (La.1989). Slade’s own Form 1020s showed that in the 20-month period between January 2009 and August 2010, he earned over 90% of his pre-injury wage three months (March, April and May 2009). This fact undermines the claim that he cannot earn 90% of his pre-injury wage; he obviously can, and has, done so on several occasions. In her initial ruling, the WCJ questioned whether the work-related injury, or some other cause, may have led to this drop in earnings nearly three years post-accident. Far from mere speculation, this is a realistic assessment of the summary judgment evidence.

For these reasons, I would reverse this judgment and remand for further proceedings.

APPLICATION FOR REHEARING

Before BROWN, PEATROSS, DREW, MOORE, and LOLLEY, JJ.

Rehearing denied.

MOORE, J., would grant rehearing.

      . He was paid $454 per week based on an average wage of $792.40.

      . Defendant does not argue on appeal that this partial grant of claimant’s motion for summary judgment was improper.

      .It has long been recognized that a court will look to the import of a pleading, not be bound by the title. Every pleading is to be construed so as to do substantial justice. La. C.C.P art. 865. The articles of the Code of Civil Procedure are to construed liberally and to implement the substantive law and are not an end in themselves. La. C.C.P. art. 5051.

      . We express no opinion on whether the Mo-hamadian opinion is correct.

      . Even in Mohamadian, supra, the court recognized that the claimant could file a new motion for summary judgment with the trial court.

      . This burden usually is carried by presenting supporting documents, such as pleadings, deposition, answers to interrogatories, admissions and affidavits that are sufficient to resolve all material factual issues.

      . Mr. Slade requests the maximum allowable penalty of $8,000 and attorney fees of $15,000.

      . La. R.S. 23:1201(F) provides, in pertinent part:
      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.


author: JUDE G. GRAVOIS, Judge.

text:
    In re INTERDICTION OF James “Jackie” J. GALMICHE.
    No. 11-CA-103.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

      Craig J. Hattier, In Proper Person, Madisonville, LA, Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

| ;>Intervenor/appellant, Craig J. Hattier, appeals a judgment that found his intervention in this interdiction proceeding, for payment of attorney’s fees and costs for legal services he allegedly provided to the interdict, James “Jackie” Galmiche, in 1994 and 1995, to have been abandoned under LSA-C.C.P. art. 561. On appeal, Mr. Hat-tier argues that Article 561 should be liberally construed to maintain his suit. He further argues that discovery that he propounded in 2002, 2005, and 2008, which challenged the qualifications of Jackie’s limited curatrix, were steps in the prosecution of his action for attorney’s fees and costs. He further argues that a 1999 Protective Order prevented his “abandonment time” from commencing to run. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The interdiction proceeding and Mr. Hattier’s intervention therein have a long and complicated procedural history both in the trial court and with this Court, |sthe pertinent parts of which are discussed here. In June of 1994, after noticing that Jackie was spending more money than usual, Mrs. Doris Galmiche Nethery, Jackie’s sister (“Doris”), petitioned the court to interdict her 62-year old brother on the grounds that he had diminished mental capacity that left him unable to care for his financial affairs and that also made him susceptible to influence by others to his detriment, particularly the influence of the Wood family, to whose house Jackie had moved' in 1993 after leaving Doris’ home where he had resided for many years. A judgment granting a limited interdiction with Doris as limited curatrix over Jackie’s property, financial, and business affairs was rendered on September 7, 1995 but was made retroactive to the date of the filing of the petition for interdiction. The judgment of interdiction further stated that “any and all expenses of the estate of the said interdict may be accepted or rejected by the said Curatrix.”

Prior to the petition for interdiction being filed, in February of 1994, Mr. Hattier, a relation of the Woods’, was allegedly engaged by Jackie to perform various legal services, including seeking the return of various funds from Doris and an accounting of his property and income from Doris. Jackie also granted Mr. Hattier a power of attorney, as evidenced by pleadings and exhibits in this record. Mr. Hattier filed various motions in the interdiction proceeding in 1995 and 1998 seeking payment of attorney’s fees and costs incurred for legal services he allegedly performed for Jackie. Mr. Hattier asserted that Doris rejected and refused to pay his claims for attorney’s fees and costs.

Thereafter, Mr. Hattier filed, in the interdiction proceeding, a petition for intervention seeking to collect the attorney’s fees and costs for legal services allegedly performed for Jackie from February 9, 1994 to May 29, 1995. This 14petition was allegedly filed on or about July 30, 1998, though it does not appear in this designated record.

Over the years, Mr. Hattier tried unsuccessfully to remove Doris as limited cura-trix, as evidenced by rules he filed in 1997 and 1998. In September of 1999, Mr. Hat-tier sought various discovery relative to his Rule to Remove Curatrix. Meanwhile, Doris filed a Petition to Expand Limited Interdiction. In response to the discovery requests, Doris in her capacity as curatrix filed an Ex Parte Rule for Protective Order and Motion to Reset. The trial court granted the ex parte Protective Order limiting discovery to the Petition to Expand Limited Interdiction and quashing any and all discovery which related to the Rule to Remove Curatrix. Meanwhile, the trial court rendered a judgment denying the Rule to Remove Curatrix sometime in 1999, which was affirmed on appeal by this Court on April 25, 2000.

Jackie died in Mississippi on August 15, 2007, thus ending the interdiction proceeding. Doris died in January of 2009. On January 8, 2010, Mr. Hattier filed a First Supplemental and Amending Petition for Intervention, which, in addition to claiming entitlement to attorney’s fees and costs as asserted in the original petition, also sought damages against Doris and her estate under 42 U.S.C. § 1983. On March 26, 2010, the executor for the Estate of Doris Galmiche Nethery filed Exceptions of No Cause of Action, No Right of Action, Prescription and Abandonment and/or Laches seeking dismissal of the intervention.

1 f,Following a hearing on June 25, 2010, the trial court ruled from the bench, granting the Exception of Abandonment and dismissing the intervention. A written judgment to that effect was signed on July 6, 2010. Written reasons for judgment were also issued on July 6, 2010. This appeal followed.

ANALYSIS

LSA-C.C.P. art. 561 provides, in pertinent part:

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
* * *
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

In very thorough and articulate reasons for judgment, the trial court found that the discovery that Mr. Hattier propounded in 2002, 2005, and 2008 in the intervention was in violation of the Protective Order entered in this case in 1999 in that the discovery sought information relative to Doris’ qualifications to be curatrix. The trial court further found that the filing of said discovery did not constitute a step in the prosecution of Mr. Hattier’s claims as the discovery was not propounded with the purpose of bringing his action for attorney’s fees and costs to 1 (-judgment. Accordingly, the trial court found the propounded discovery to be without legal effect, and dismissed Mr. Hattier’s action as having been abandoned.

On appeal, Mr. Hattier argues that Article 561 should be liberally construed to maintain his suit. He further argues that his propounded discovery, which went to his argument that Doris was not qualified to be limited curatrix, was a step in his action for attorney’s fees and costs. He further argues that the 1999 Protective Order prevented his “abandonment time” from commencing to run.

No brief was filed by the Estate of Doris Galmiche Nethery or the executor thereof, as attorney therefor, Mr. William Dreher, was discharged prior to this appeal.

This being a designated record, there are matters and proceedings to which the trial court refers in its written reasons for judgment that are not found in this appellate record, though some of the pleadings are found in Mr. Hattier’s exhibits to his Opposition to Doris’ Exceptions that are the subject of this appeal. Thus, we rely on the trial judge’s written reasons to amplify the procedural history of the case as it appears in the designated record.

The trial judge’s reasons reflect, and the parties do not disagree, that on September 20, 1999, the trial court entered an ex parte Protective Order limiting discovery to the Petition to Expand Limited Interdiction and quashing any and all discovery which related to the Rule to Remove Cura-trix. The Rule to Remove Curatrix was denied and that ruling was affirmed on appeal, as noted above.

The trial judge noted that the Protective Order was never appealed, nor did Mr. Hattier ever move to lift it during Jackie and Doris’ lifetimes. This Court notes that the Protective Order did not prohibit Mr. Hattier from prosecuting his action for attorney’s fees and costs in any way. However, the discovery propounded by Mr. Hattier in 2002 and 2005, which is found in his exhibits, |7clearly seeks information regarding Doris’ qualifications to serve as curatrix, and does not seek any information relative to prosecuting his claim, for the payment of legal fees and costs.

Mr. Hattier argues that he chose to prosecute the claim for payment of legal fees and costs by challenging Doris’ qualifications to serve as curatrix (while he admits that the trial court appointed Doris as curatrix, he has argued that she was unqualified in other respects). He argues that because Doris was not qualified to serve as curatrix, she had no lawful authority to oppose his intervention. Thus, he argues, his continued attacks upon her qualifications to serve as curatrix for Jackie were relevant to his claim that he was entitled to be paid attorneys fees and costs for representing Jackie in 1994 and 1995.

The trial court emphatically rejected such reasoning. This Court does likewise. The record fails to show that Mr. Hattier was in any way prevented by the Protective Order from pursuing his claim for attorney’s fees and costs, as he claims in brief, incorrectly characterizing the Protective Order as a “stay order.” Indeed, Mr. Hattier was able to and did propound discovery to Doris in 2002, 2005, and 2008, as evidenced by the exhibits attached to his Opposition to Doris’ Exceptions, for the purpose of prosecuting his claim. The trial court’s lengthy reasons for judgment further state that Mr. Hattier was apparently and repeatedly ordered by the trial court as far back as 1995 to present his claim for attorney’s fees and costs by way of a rule to show cause against the cura-trix, which was never done, Mr. Hattier admitting that he instead opted to pursue removal of Doris as curatrix prior to taking action on his claim for attorney’s fees and costs.

We find no manifest error in the trial court’s conclusions that Mr. Hattier did not seek lifting the Protective Order, nor did the Protective Order by its explicit terms prevent Mr. Hattier from prosecuting his claim for attorney’s fees and costs. |sIt was noted at the hearing that Mr. Hattier propounded this discovery in intervals of almost exactly two years and eleven months apart, apparently in an attempt to toll abandonment of his claims. Mr. Hattier also admitted that when the discovery went unanswered, he did not file motions to compel or seek any other process to actually obtain the requested discovery. We further find no manifest error in the trial court’s conclusion that the discovery actually propounded in 2002, 2005 and 2008 both violated the Protective Order, and further, after reviewing its substance, did not constitute a good faith step in the prosecution of Mr. Hattier’s claim for attorney’s fees and costs. As such, the trial court did not err in dismissing Mr. Hattier’s claims for attorney’s fees and costs as having been abandoned.

CONCLUSION

For the above reasons, we affirm the dismissal of Mr. Hattier’s claims for attorney’s fees and costs as having been abandoned.

AFFIRMED

      . See the procedural history as related in Interdiction of Galmiche, 97-1112 (La.App. 5 Cir. 3/11/98), 708 So.2d 1244.

      . The record shows that Mr. Hattier sought payment of over $38,000 in legal fees and over $4,000 in costs.

      . The petition for intervention is not found in the record, but is attached as Exhibit 7 to Mr. Hattier's Opposition to the Exceptions filed on March 26, 2010, infra. The amending petition added 378 additional paragraphs, totaling 62 pages.

      . In re: Interdiction of Galmiche, 99-1281 (La.App. 5 Cir. 4/25/00), 761 So.2d 833 (unpublished opinion).

      . The amending petition also claims, in paragraph 39, that Mr. Hattier rendered professional services for Jackie for many years after the initial time period sought, such fees now totaling over $100,000, though there is no evidence thereof. The amending petition continues to attack Doris' qualifications as cura-trix, among other things, as now entitling him to damages.

      .Also named as additional defendants-in-intervention are Doris Nethery Galmiche, individually and in her capacity as limited cu-ratrix for Jackie, and the Estate of Doris Galmiche Nethery, deceased.


author: EDWIN A. LOMBARD, Judge.

text:
    Samuel FANTO v. James DANTRO, Alice Dixon Dantro, Publishers Wholesale Associates, Inc.
    No. 2011-CA-1092.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 23, 2011.
    Rehearing Denied Dec. 20, 2011.

      John F. Grimes, Evans and Company, New Orleans, LA, for Plaintiff/Appellant.
    Crawford Allen Rose, III, Attorney at Law, Metairie, LA, for Defendant/Appel-lee.
    (Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

hThe plaintiff, Samuel Fanto, appeals the judgment of the trial court granting an exception of no cause of action. For the reasons stated herein, trial court’s judgment is affirmed.

Relevant Facts and Procedural History

Between the periods of December 2008 and September 2009, the plaintiff issued four checks, all notating “loan,” from his business account, Tri City Body Works, Inc., personally to James Dantro totaling $24,000.00. All four checks were endorsed by Mr. Dantro. On September 29, 2009, Mr. Dantro wrote a check to Tri City Body Works, Inc. for $5,000.00 drawn on Publishers Wholesale Associate, Inc.’s (“Publishers”) business account, which is apparently his business. Mr. Dantro’s check was subsequently returned due to insufficient funds in the account.

On September 15, 2010, the plaintiff filed a petition for damages to recover the unpaid monies owed to him, naming as defendants, Mr. Dantro, his wife, Alice Dixon Dantro, and Publishers. In his petition, the plaintiff alleges that he provided |2Mr. Dantro a total of $24,000.00 in loans for commercial/business purposes and that Mr. Dantro had only made a partial payment of $3,500.00, leaving a balance of $20,500.00. The plaintiff further asserts that Mrs. Dantro, as Mr. Dantro’s wife, is liable for the loans in controversy because Louisiana is a community property state. The plaintiff also alleges that Mr. Dantro secured the funds for the named defendant, Publishers.

In response, Mr. and Mrs. Dantro answered the petition and filed an exception of no cause of action. In their exception, the Dantros alleged that they were not acting in their personal capacities, but were acting in their capacities as agents of Publishers. Thus, the Dantros argued that they could be held liable only upon a piercing of the corporate veil.

At the hearing on the exception, on March 25, 2011, the trial court granted the exception as to Mrs. Dantro and dismissed all claims against her, based on the finding that she was not named on the check and, accordingly, she is not a proper defendant. The trial court denied the exception as to Mr. Dantro.

The plaintiff subsequently filed an application for supervisory writs. This Court granted the writ application for the sole purpose of remanding the matter to the trial court to consider the notice of intent to file an application for supervisory writs as a motion for appeal. Thereafter, the trial court entered an order of appeal.

| ^Discussion

In his sole assignment of error, the plaintiff argues that he stated a cause of action in his petition and accordingly, the trial court erred in granting the exception of no cause of action as to Mrs. Dantro.

The exception of no cause of action tests the legal sufficiency of a petition by examining whether, based upon the facts alleged in the pleading, the law affords the plaintiff a remedy. La.Code Civ. Proc. Art. 927(A)(4). “A peremptory exception of no cause of action is a question of law that requires the appellant court to conduct a de novo review.” R-Plex Enterprises, L.L.C. v. Desvignes, 2010-1337 p. 5 (La.App. 4 Cir. 2/9/11), 61 So.3d 37, 40. (citation omitted). The court is to review the petition and accept all well-pleaded allegations of fact as true, and the issue as the trial of the exception is whether, on the face of the petition, the plaintiff is entitled to the relief sought. Meckstroth v. Louisiana Dept. Of Transp. and Development, 2007-0236, p. 2 (La.App. 4 Cir. 6/27/07), 962 So.2d 490, 492, citing Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235-36 (La.1993); (citation omitted).

In his appeal, the plaintiff relies on paragraph 12 of the petition, which reads, “Louisiana is a community property state. Defendant, Mr. James Dantro, undertook a community obligation when he received said loans from Mr. Fanto. Therefore, defendant, Mrs. Dantro, is liable for the principle sum of $20,500 plus interest.” As such, Mr. Fanto concludes that he stated a cause of action against Mrs. Dantro for the community obligation.

However, upon de novo review, we carefully examined the petition filed by the plaintiff and found that in his petition, the plaintiff states that the loans to Mr. Dan-tro were for “commercial/business purposes.” Further, the plaintiff states that |4Mr. Dantro “requested said loans from Mr. Fanto for the purpose of securing funds for defendant corporation, Publishers Wholesale Associates, Inc.” The petition does not identify Publishers as anything other than a “Louisiana corporation.”

Under Louisiana Civil Code article 2360, “an obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation.” The petition contains no allegation that Mr. Dantro requested said loans for the common interest of the Dantros or for the interest of Mrs. Dantro. Rather, the petition alleges that the loans were incurred for the interest of Publishers. The plaintiffs conclusory statement that Mr. Dantro undertook a community obligation is insufficient to overcome the exception of no cause of action.

Thus, our de novo review reveals that the law does not afford the plaintiff a remedy against Mrs. Dantro based upon the allegations in the petition.

Conclusion

Accordingly, upon de novo review, the judgment granting the exception of no cause of action as to Mrs. Dantro, is affirmed, dismissing Mrs. Dantro from any claims against her.

AFFIRMED

      . The plaintiff executed three checks to Mr. Dantro on or about December 19, 2008 totaling $20,000.00. On or about September 11, 2009, the plaintiff issued another check to Mr. Dantro totaling $4,000.00.

      . In the record before us, there is no documentary evidence of a loan agreement between the parties relating to the checks.

      . The petition does not provide any further detail about Publishers or Mr. Dantro’s connection to Publishers,


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Rene NETTER.
    Nos. 11-KA-202, 11-KA-203.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Shannon K. Swaim, Assistant District Attorneys, Gretna, LA, for PlaintifPAppellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

| ^Defendant, Rene Netter, was charged with one count of simple burglary of an inhabited dwelling, a violation of LSA-R.S. 14:62.2. He pled not guilty at arraignment. On July 9, 2010, the matter proceeded to trial, and a 12-person jury returned a verdict of guilty as charged. On July 26, 2010, the trial court sentenced defendant to eight years at hard labor, with the first year to be without benefit of parole, probation, or suspension of sentence.

That same day, the State filed a multiple offender bill of information, alleging defendant to be a sixth felony offender, to which defendant entered a plea of not guilty. On August 23, 2010, the court conducted a hearing on the multiple bill and took the matter under advisement. On September 1, 2010, the court found defendant to be a fourth felony offender and sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

| ¡¡FACTS

Joshua Veal testified that at the time of the commission of the offense, he and defendant had been acquaintances for about a month. At some point during this time, Veal agreed to purchase a truck from defendant for $500.00. According to Veal, he paid defendant in cash, but never received the truck. Unable to provide Veal with the truck, which he claimed had been stolen, defendant owed Veal the return of the $500.00, but did not have the money to pay him. Late in the evening on June 5, 2009, Veal encountered defendant outside of a Brothers Food Mart on Airline Drive. Here, defendant told Veal that his girlfriend had a check for $500.00 that they could obtain from her. From there, they walked to a nearby trailer park, where defendant claimed his girlfriend lived.

Around 2 a.m. on June 6, 2009, Ms. Ingeborg Tompkins, was awakened in her trailer by the sound of breaking glass, followed by a flashlight in her face and her arms pinned down to her bed with a crowbar in her side. Defendant, whom Ms. Tompkins had described as a heavyset, black person with a black jacket and hood over his bald head, repeatedly yelled at her, “Where is the money?” Ms. Tompkins then noticed another individual behind defendant, whom she described as “a very skinny black gentleman,” “very nice,” “gentle,” “very protective.” Veal, who had been told by defendant to stay outside because his girlfriend did not like visitors, had entered the trailer when he heard the victim screaming, “Help me!” According to Ms. Tompkins, as Veal entered the bedroom, defendant addressed him, “Joe, bring me the knife. I’m going to kill that bitch.” Soon thereafter, when Ms. Tompkins informed defendant that she did not have any money, he released her. Veal helped her up to go to the bathroom, telling her, “I’m coming back ^tomorrow. I’ll straighten it out.” When the victim exited the bathroom, both men were gone, her bedroom was “a shamble,” and about seven dollars in change, a cellular phone, two purses, and two bottles of perfume were missing. Ms. Tompkins then called the police, who arrived shortly thereafter.

Following a broadcast relative to the burglary, Sergeant Russell Moran, who was on patrol in the area, observed two subjects that matched the description of the perpetrators. He saw that the heavyset one had something tucked under his arm and made a throwing motion as the officer passed by. When Sergeant Moran made a U-turn to stop the subjects, he noticed the smaller of the two men walking down the street toward him flailing his arms. It was Veal. He told Sergeant Moran that the person the officer was looking for ran through his backyard.

After other officers arrived on the scene and Veal had been detained, Sergeant Moran began to search for defendant. He found him lying on the ground along the side of a house at 900 Compromise Street, attempting to not be seen. A few feet away, the victim’s purse and perfume bottles were found. Defendant was arrested and a search incident to arrest was conducted, which revealed a flathead screwdriver and a pair of black insulated gloves. As the arresting officer began to read defendant his Miranda rights, defendant cut him off, saying, “I know about all this because, man, I know about all this. This is all I know how to do.” “Take me to jail.”

After both suspects had been apprehended, Ms. Tompkins was transported by police officers to the suspects’ location. The victim had not seen the suspects’ faces, but she was able to identify them based on their body types.

_[¿AWAND DISCUSSION

In his first assignment of error, defendant argues that the trial court erred in denying his request for a jury instruction on the defense of intoxication. He contends that the determination of whether he was sufficiently intoxicated to preclude the presence of specific intent is to be resolved by the trier of fact and that it was an error for the trial court to deprive the jury of making that determination.

Defendant was convicted of simple burglary of an inhabited dwelling. LSA-R.S. 14:62.2 defines that offense as “the unauthorized entry of any inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein.” To convict an accused of simple burglary of an inhabited dwelling, the State must prove: (1) there was an unauthorized entry; (2) the structure was inhabited at the time of entry; and (8) the defendant had the specific intent to commit a felony or theft inside the structure. State v. Davenport, 08-463, p. 7 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 449, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473; State v. Schnyder, 06-29, p. 6 (La.App. 5 Cir. 6/28/06), 937 So.2d 396, 400.

Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1); Davenport, 08-463 at 7, 2 So.3d at 449. Specific intent may be inferred from the circumstances and actions of the accused. Id.; State v. Petty, 99-1307, p. 3 (La.App. 5 Cir. 4/12/00), 759 So.2d 946, 949, writ denied, 00-1718 (La.3/16/01), 787 So.2d 301.

Voluntary intoxication is a defense to a prosecution for simple burglary only if the circumstances indicate that it has precluded the presence of specific criminal Ifiintent. LSA-R.S. 14:15(2); Davenport, 08-463 at 7, 2 So.3d at 449. The defendant has the burden of proving the existence of that condition at the time of the offense. Id. The specific legal question is not when the requisite specific intent was formed, but rather whether, at the time the unauthorized entry occurred, the defendant was so intoxicated as to preclude the existence of any specific intent on his part to commit a theft or felony therein. Id.; State v. Sopczak, 02-235 (La.App. 5 Cir. 6/26/02), 823 So.2d 978, 982-83, writ denied, 02-2471 (La.3/21/03), 840 So.2d 548.

When circumstances exist that intoxication could have precluded specific intent, the burden shifts to the State to show beyond a reasonable doubt that specific intent was present. Davenport, 08-463 at 7-8, 2 So.3d at 449; State v. Dammeron, 98-378, pp. 2-3 (La.App. 5 Cir. 9/29/98), 719 So.2d 1151, 1154, writ denied, 98-2830 (La.2/26/99), 738 So.2d 1067. Whether intoxication is sufficient to negate specific intent is a question for the trier of fact. Davenport, supra; Dammeron, 98-378 at 2-3, 719 So.2d at 1154. Intoxication is an observable condition about which a witness may testify. State v. Taylor, 31,-227, p. 5 (La.App. 2 Cir. 10/28/98), 720 So.2d 447, 450; State v. Allen, 82-1505 (La.10/17/83), 440 So.2d 1330, 1334.

LSA-C.Cr.P. art. 802 mandates that the trial court instruct the jury on the law applicable to each case. State v. Lawson, 08-123, p. 15 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 527. The court is required to charge the jury on the law applicable to any theory of defense, when properly requested, which the jurors could reasonably infer from the evidence. Id. Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Henry, 08-658, pp. 14-15 (La.App. 5 Cir. 10/27/09), 27 So.3d 935, 946, writ denied, 09-2485 (La.4/23/10), 34 So.3d 269; Lawson, supra. The evidence presented at trial must support the requested special charge. State v. Holt, 08-1276, p. 11 (La.App. 5 Cir. 5/26/09), 12 So.3d 502, 508, writ denied, 09-1681 (La.3/26/10), 29 So.3d 1249; Lawson, supra.

In the instant case, the record does not show that any urine or blood tests were performed. The only testimony presented at trial to suggest that defendant could have been intoxicated prior to entering the trailer was that of Veal. He stated that on the night of the offense, he did not see defendant drink alcohol or ingest any drugs, but defendant did seem intoxicated. However, Veal also stated that defendant was not stumbling or staggering and that “you could ... understand what he was talking about.” In Veal’s statement to police, he stated that he told the victim that defendant was “crazy on drugs.” The police report also indicates that the victim informed the police that Veal told her that defendant is “crazy and is on drugs.” However, at trial, Veal testified that this statement was based on his belief that he could not otherwise understand why someone would “hurt an old lady.”

Additionally, the testimony of two police officers belies Veal’s assertions of intoxication. Sergeant Russell Moran testified that although officers helped defendant up off the ground when he was apprehended, he was then able to stand on his own and was not falling down. He also testified that defendant seemed to understand what was going on and was cooperative. Similarly, Officer Brent Donovan testified that defendant was able to stand on his own, that he was not wobbling, that he was speaking clearly, that he did not seem to be drunk, and that he appeared to understand what the officer was saying to him.

Even if the jury could have believed that defendant was intoxicated when he entered the trailer, the State clearly proved beyond a reasonable doubt that defendant still had the requisite specific intent to commit a theft within the trailer.

|sThe intent to commit a theft may be inferred from the circumstances that surround the commission of the offense. Davenport, 08-463 at 9, 2 So.3d at 450; State v. Pike, 426 So.2d 1329, 1333 (La.1983). In this case, defendant’s actions support the inference that he had the specific intent to commit the charged offense. The facts suggest that he deliberately targeted an elderly and handicapped woman who lived alone and collected rent money in cash. He arrived at her trailer clad in all black with tools to commit a burglary: gloves, a screwdriver, a crowbar, and a flashlight. He created a cover story to mislead Veal into thinking the trailer was his girlfriend’s and that she was expecting him. Once inside the trailer, defendant demanded money from the victim, and when she did not comply with his demands, he rummaged through the trailer, leaving the place “a shamble.”

Accordingly, based on the record before us, we find that the trial court did not err in refusing to give the requested jury instruction, because the evidence presented at trial did not show that defendant was sufficiently intoxicated to vitiate specific criminal intent. Thus, this assignment of error is without merit.

In his second assignment of error, defendant contends that his enhanced life sentence was excessive in light of the fact that the crime for which he was sentenced did not involve death or permanent harm to the victim. However, we have noted an error on error patent review that precludes discussion of this assignment of error.

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 that the trial court did not vacate defendant’s original sentence prior to imposing his enhanced sentence. This Court |flhas held that where the original sentence on the underlying offense has not been vacated at the time of defendant’s sentencing as a multiple offender, the original sentence remains in effect and the subsequent sentence as a multiple offender is null and void. State v. Boss, 03-133 (La.App. 5 Cir. 5/28/03), 848 So.2d 75, 78-79, writ denied, 03-1968 (La.5/14/04), 872 So.2d 508; State v. Dyer, 00-1866, (La.App. 5 Cir. 4/24/01), 794 So.2d 1, 13, writ denied, 01-1579 (La.6/27/03), 847 So.2d 1256. In the instant case, neither the transcript nor the commitment indicates that the trial court vacated defendant’s original sentence prior to imposing his enhanced sentence. Therefore, we find that defendant’s multiple offender sentence is null and void. We vacate defendant’s multiple offender sentence and remand the matter to the trial court for resentencing, with instructions to vacate defendant’s original sentence before imposing the multiple offender sentence.

In light of our finding that defendant’s multiple offender sentence is null and void, we cannot address defendant’s argument that his multiple offender sentence was excessive.

On error patent review, we also note that the trial judge failed to advise defendant of the prescriptive period for seeking post-conviction relief, as required by LSA-C.Cr.P. art. 930.8. Thus, we instruct the trial court, at resentencing, to advise defendant of the proper prescriptive period for post-conviction relief.

DECREE

For the foregoing reasons, defendant’s conviction and sentence for simple burglary of an inhabited dwelling, and the finding that defendant is a fourth felony offender, are affirmed. Defendant’s multiple offender sentence is vacated and the matter is remanded to the trial court for resentenc-ing.

CONVICTION AFFIRMED; MULTIPLE OFFENDER SENTENCE VACATED, REMANDED FOR RESENTENC-ING.

      . Defendant was originally charged with one count of home invasion, a violation of LSA-R.S. 14:62.8, but the State later amended the bill of information to charge him with simple burglary of an inhabited dwelling.

      . Ms. Tompkins was 78 years old, lived alone, and used a wheelchair. She was the manager of the trailer park and was responsible for collecting rent, which was paid in cash, checks, or money orders.

      . Joshua Veal testified that defendant stated, "Bobby, bring the knife. I’m going to slit her throat.”

      . Joshua Veal lived at 2114 9th Street, just east of 900 Compromise Street. At Mr. Veal’s residence, a crowbar was found on the side of the house and a flashlight on the porch.

        . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We further note that the defense did not submit the requested jury instruction in writing. When a special jury charge is not reduced to writing for presentation to the court, a trial judge may properly refuse to give such a charge. LSA-C.Cr.P. art. 807; State v. Lawson, 08-123, p. 15 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 527.