author: DENNIS R. BAGNERIS, SR., Judge.

text:
    TULANE UNIVERSITY HOSPITAL & CLINIC (Roynell Williams) v. LOCKHEED MARTIN CORPORATION.
    No. 2011-CA-0179.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 29, 2011.
    Helen Hsu, Hollaway <& Gumbert, Houston, TX, for Appellant Tulane University Hospital and Clinic.
    Mark L. Clark, Matthew L. Stedman, Brown Sims, P.C., New Orleans, LA, for Defendants/Appellees Lockheed Martin Corporation and Ace Property and Casualty Insurance Company.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, and Judge DENNIS R. BAGNERIS, SR.).
   DENNIS R. BAGNERIS, SR., Judge.

11 Plaintiff, Tulane University Hospital and Clinic, appeals the judgment of the Office of Workers’ Compensation (“OWC”) granting an exception of prescription in favor of defendants, Lockheed Martin Corporation and its workers’ compensation insurer, Ace Property and Casualty Insurance Company. For the reasons set forth below, we reverse and remand.

FACTS AND PROCEDURAL HISTORY:

On May 8, 2006, Roynell Williams (“Mr. Williams”) fractured his right foot while working for Lockheed Martin Corporation. Mr. Williams was hospitalized at Tulane University Hospital and Clinic from March 7, 2007 through March 9, 2007, where he underwent surgery on his foot.

On March 21, 2007, plaintiff billed defendants $48,705.52 for Mr. Williams’ medical expenses, which included two charges for implant materials. On April 4, 2007, defendants issued an adjusted payment of $4,085.64, which defendants considered to be in full satisfaction of the bill, except for the implant charges. Defendants maintain that no payment was made on the implant charges at that time because the implant invoices were not submitted with the initial bill and the corresponding implant charges could not be adjusted at that time.

12Plaintiff produced the requisite implant invoices on April 29, 2007. On June 12, 2007, defendants paid $4,199.23 in connection with the implant charges.

On June 3, 2010, plaintiff filed a Disputed Claim for Compensation with the OWC alleging defendants’ underpayment of medical expenses. Plaintiff also asserted a claim for penalties and attorneys’ fees associated with defendants’ alleged failure to properly pay the claim.

On August 18, 2011, defendants answered the complaint and filed an exception of prescription, asserting that plaintiffs claim for underpayment had prescribed. On August 19, 2010, plaintiff amended its original complaint, asserting that the June 12, 2007 payment, issued in connection with the implant charges, was insufficient.

The exception of prescription was brought before the OWC on October 8, 2010. Defendants argued that plaintiffs claim is subject to the three-year liberative prescriptive period set forth for open accounts under La. C.C. art. 3494(4), which commences to run from the day payment is exigible. La. C.C. art. 3495. On that basis, the case would have prescribed in March 2010.

Plaintiff countered that the applicable prescriptive period in this case is set forth in La. R.S. 23:1209(C) of the Louisiana Workers’ Compensation Act (“LWCA”), as follows:

All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits. (Emphasis added).

| .^Plaintiff submits that pursuant to La. R.S. 23:1209(C), the June 3, 2010 complaint was timely filed within three years of the last payment, which occurred on June 12, 2007.

Judgment was rendered October 11, 2010, granting defendants’ exception of prescription as to plaintiffs claim for underpayment of medical expenses and corresponding claim for penalties and attorneys’ fees. This timely appeal followed.

LAW AND ANALYSIS:

“In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the manifest error-clearly wrong’ standard.” Dean v. Southmark Construction, 2003-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. When legal error interdicts the fact-finding process in a workers compensation proceeding, the de novo, rather than the manifest error, standard of review applies. MacFarlane v. Schneider Nat’l Bulk Carriers, Inc., 2007-1386, p. 3 (La.App. 4 Cir. 4/30/08), 984 So.2d 185, 188. Likewise, interpretation of statutes pertaining to workers’ compensation is a question of law and warrants a de novo review to determine if the ruling was legally correct. Id. Because we find that the trial court committed legal error in failing to properly apply the prescriptive period set forth in La. R.S. 23:1209(C), we review the matter de novo.

Defendants argue that La. R.S. 23:1209(C) is not applicable to plaintiffs claim because the right to recover benefits under the LWCA is personal to the injured employee. Defendants submit that a medical provider’s claim for underpayment is a contractual claim, i.e., a claim on open account, as opposed to a statutory right of recovery.

]4In support of the assertion that the prescriptive period for open accounts applies here, defendants rely on Touro Infirmary v. Amerihealth, 2009-0696 (La.App. 4 Cir. 1/07/10), 34 So.3d 878, where this Court classified plaintiffs medical bill as an open account. However, Touro Infirmary v. Amerihealth is distinguishable from the case sub judice as it did not involve medical services rendered to an injured worker in a workers’ compensation case.

Defendant also cites to the reasons for judgment provided by the OWC in an unrelated matter (Lafayette General Medical Center v. ACI Louisiana, Inc., Docket No. 08-21101, District 04), wherein OWC Judge Shelly Dick considered a medical provider’s claim for underpayment the equivalent of a suit on open account. That ruling from the lower court is not controlling here, nor do we find there to be jurisprudential support for the holding.

Plaintiff argues that Touro Infirmary v. Wm. B. Reily & Co., Inc., 2010-0074 (La. App. 4 Cir. 7/28/10), 44 So.3d 867 supports its position that the prescriptive period set forth in La. R.S. 23:1209(0 applies here. We agree. In Touro Infirmary v. Wm. B. Reily & Co., Inc., the medical provider’s claim for underpayment of medical expenses was undisputedly timely (filed less than two years after the last payment was made). The issue raised in defendant’s exception of prescription was the timeliness of the medical provider’s claim for penalties and attorneys’ fees under La. R.S. 23:1201(F)(4) , In that respect, the case is distinguishable. However, in addressing the medical provider’s claim for penalties and attorneys’ fees, this Court unequivocally stated that the medical provider’s |aclaim for underpayment “does not prescribe until three years after the last payment.” Id. at p. 2, 44 So.3d at 869.

In the present case, plaintiffs claim for underpayment of medical services provided in connection with Mr. Williams’ work-related injuries clearly arises out of the LWCA. See Baton Rouge General Medical Center v. Liberty Mut. Ins. Co., 2009-0316, p. 4 (La.App. 1 Cir. 9/11/09), 21 So.3d 990, 992, (where the court recognized that a medical provider’s claim against the employer for underpayment of compensation benefits falls within the jurisdiction of the OWC). Moreover, based on our holding in Touro Infirmary v. Wm. B. Reily & Co., Inc., plaintiffs action is controlled by the three-year prescriptive period set forth in La. R.S. 23:1209(C). Because plaintiff filed the claim for underpayment of medicals within three years of the last payment, the action is timely. Consequently, plaintiffs claim for penalties and attorneys’ fees is also timely. This Court has stated that pursuant to La. R.S. 23:1201(F)(4), “[w]hen claims for penalties and attorney fees accompany the claims for benefits, if the underlying claims have not prescribed, neither have the claims for attorney fees and penalties.” Touro Infirmary v. Wm. B. Reily & Co., Inc., 2010-0074, p. 2, 44 So.3d at 869.

For the foregoing reasons, we find the OWC erred in granting the exception of prescription in favor of defendants. Accordingly, we reverse and remand.

REVERSED AND REMANDED

      . Under La. R.S. 23:1201(F)(4), a medical provider can bring a claim for penalties and attorneys’ fees if the provider prevailed on the underlying claim for underpayment.

      . See also Touro Infirmary v. Silocaf of New Orleans, 2010-0072 (La.App. 4 Cir. 7/28/10), 44 So.3d 862 and Touro Infirmary v. Lowes New Orleans Hotel Corporation and the Phoenix Insurance Company, 2010-0103 (La.App. 4 Cir. 7/28/10), 44 So.3d 869, where this Court rendered virtually identical holdings.


source: Caselaw Access Project

author: CHARLES R. JONES, Judge.

license: Public Domain

text:
    Carrie Burse MERRILL v. GREYHOUND LINES, INC.
    No. 2010-CA-0834.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 29, 2011.

      Carrie Burse Merrill, New Orleans, LA, in Proper Person, Plaintiff/Appellant.
    Jeffrey C. Napolitano, Juge Napolitano Guilbeau Ruli Frieman & Whiteley, Me-tairie, LA, for Defendant/Appellee.

      (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge DENNIS R. BAGNERIS, SR.).
   CHARLES R. JONES, Judge.

1 ,This matter is on remand from the Louisiana Supreme Court for additional briefing on the question of whether the medical evidence demonstrates that Ms. Merrill’s work-related accident caused an aggravation of a pre-existing condition in her back which necessitated surgery. The parties have been given the opportunity to file additional briefs, and we now render an opinion. For the reasons set forth below, we again reverse the judgment of the OWC and remand.

In December 2006, Ms. Merrill, a Greyhound bus driver, injured her back in a fall down some stairs. Greyhound paid temporary total disability benefits to Ms. Merrill from December 2006 until March 4, 2007, at a rate of $282.91 per week. Greyhound discontinued paying disability benefits on the basis that Ms. Merrill was released to return to sedentary work. Ms. Merrill was offered sedentary employment with Greyhound in March 2006, but she declined the offer.

Ms. Merrill filed a disputed claim for compensation in June 2007. The matter was brought for trial before the OWC on March 9, 2010.

laThe facts of this case were first report in Merrill v. Greyhound Lines, Inc., 2010-0834 (La.App. 4 Cir. 11/24/10), 52 So.3d 280, vacated, 2010-2827 (La.4/29/11), 60 So.3d 600. None of the doctors who treated or examined Ms. Merrill testified at trial. The medical records of Dr. R. Douglas Bostick, Dr. Bradley Bartholomew, Dr. Morteza Shamsnia, Dr. Michael Puente, and Dr. Robert Applebaum were introduced into evidence. Dr. Applebaum’s deposition was also introduced. The medical opinions presented by the parties were conflicting as to whether Ms. Merrill was able to return to work. The medical opinions were also conflicting as to whether Ms. Merrill’s continued complaints of pain and a need for back surgery were related to the accident or to degenerative changes in her back. Ms. Merrill argued that the work-related accident aggravated the preexisting condition in her back.

Ms. Merrill testified that on the day of the accident, in connection with her job as a Greyhound bus driver, she was leaving a hotel in Houston on her way back to New Orleans. She testified that she “came down a flight of steps, hit the second step on the second flight of steps, and just fell down the rest of them.” She further testified that she landed on her back and immediately experienced back pain. On the bus ride back to New Orleans, Ms. Merrill was able to sit on a cushion, but stated that within an hour and fifteen minutes into the trip, she began to have pain all over her body.

Upon her return to New Orleans, Ms. Merrill reported the incident to her supervisor, Oscar Washington, and notified the hotel of the incident. She subsequently sought medical treatment at the University Medical Center emergency room. In January 2007, she began treating with Dr. Bostick, an |3orthopedist. Thereafter, Ms. Merrill treated with neurologist Dr. Shamsnia, and neurosurgeon Dr. Bartholomew. Throughout her treatment, Ms. Merrill complained of pain in her back, neck, and shoulders, radiating to both arms. At Greyhound’s request, Ms. Merrill was examined by neurologist Dr. Puente and neurosurgeon Dr. Applebaum, wherein she related the same complaints of pain.

Ms. Merrill denied any prior injury to her neck. She testified as to two previous minor traffic accidents that caused her to experience low back pain, but specific details were not elicited. No evidence of prior medical treatment for back or neck injuries was presented.

Ms. Merrill also testified that before the December 24, 2006 accident, she experienced only regular backaches if she lifted unusually heavy pieces of luggage. On those occasions, she stated she would take an over-the-counter medication and would always return to work.

At the time of the accident, Ms. Merrill worked as a bus driver for Greyhound for seven years without any documented neck or back problems. She explained that her daily duties included loading the bus with luggage that could weigh up to seventy pounds. Her eight hour days also included driving the bus sometimes as far as Atlanta or Houston.

Finally, Ms. Merrill testified that she could not go back to picking up fifty to sixty pound luggage as she did when driving for Greyhound. She stated that she believed she could work at a desk job if she was permitted to get up and walk around. When asked why she did not accept the sedentary position offered by Greyhound in March 2006, Ms. Merrill explained that at the time (three months after the accident) nobody knew what was wrong with her.

|4The OWC rendered judgment on March 24, 2010, dismissing Ms. Merrill’s claim against Greyhound with prejudice, finding that Ms. Merrill was no longer entitled to indemnity benefits beyond that which had been paid. The OWC further determined that Ms. Merrill’s need for surgery was related solely to degenerative changes in her back and were not related to her soft tissue job injury.

Ms. Merrill filed her pro se appeal with this Court. Ms. Merrill generally briefed her argument, but failed to make specific assignments of error as required by Rule 2-12.4, Uniform Rules-Courts of Appeal. However, because Ms. Merrill was representing herself, we reviewed the record under the manifest error standard to determine whether the OWC erred.

Finding that the medical evidence clearly demonstrated that Ms. Merrill’s work-related accident caused an aggravation of a pre-existing condition, we reversed the OWC’s judgment. Merrill v. Greyhound Lines, Inc., 2010-0834 (La.App. 4 Cir. 11/24/10), 52 So.3d 280. Greyhound sought review with the Louisiana Supreme Court, arguing prejudice because it was not allowed to respond to the errors identified by this Court.

The Louisiana Supreme Court found no error in this Court’s decision to review issues not raised by the parties, but determined that additional briefing from the parties should have been allowed prior to rendering judgment. Our judgment was vacated, and the matter was remanded to this Court to allow the parties an opportunity to brief the question of whether Ms. Merrill’s work-related accident caused an aggravation of a pre-existing condition in her back, which necessitated surgery. Merrill v. Greyhound Lines, Inc., 2010-2827 (La|4/29/11),5 60 So.3d 600. After careful review of the briefs submitted on remand, and for the reasons that follow, we find the OWC erred in dismissing Ms. Merrill’s claim.

It is a well-settled principle that the provisions of the workers’ compensation scheme should be liberally interpreted in favor of the worker. Dellavalle v. Dynegy Midstream Services, 2002-2479, p. 3 (La.App. 4 Cir. 5/28/03), 848 So.2d 716, 718, citing Bynum v. Capital City Press, Inc., 95-1395 p. 5-6 (La.7/2/96), 676 So.2d 582, 586.

The appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Dean v. Southmark Construction, 2003-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706. If the factfin-der’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the fact-finder, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556.

Deference is due to the factfin-der’s determinations regarding the credibility of witnesses “for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there is a conflict in the testimony, reasonable evaluations of credibility Rand reasonable inferences of fact should not be disturbed upon review even though the appellate court may feel that its own evaluations and inferences are more reasonable. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993).

An employee is entitled to compensation benefits if he suffers a personal injury by an accident arising out of and in the course of employment. La. R.S. 23:1031. The Supreme Court has stated that under this statute a successful claimant’s proof must show personal injury which is the result of an accident, which accident arises out of and in the course of employment. Buxton v. Iowa Police Department, 2009-0520, pp. 11-12 (La.10/20/09), 23 So.3d 275, 283. The chain of causation required by the statutory scheme as adopted by the legislature in La. R.S. 23:1031 is that the employment causes the accident, the accident causes injury, and the injury causes disability. The employee has the burden of proving, by a preponderance of the evidence, that the resulting disability is related to an on-the-job injury. Id. at p. 12, 23 So.3d at 283; See also Feingerts v. American Cas. Co. of Reading, 2009-1209 (La.App. 4 Cir. 3/10/10), 34 So.3d 358.

Even if the claimant suffered from a pre-existing medical condition, he may still meet his burden of proof of causation if he proves that the accident aggravated, accelerated, or combined with the pre-existing condition to produce an injury resulting in a compensable disability. Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689, 691. The claimant may be aided in meeting the foregoing burden by a presumption of causa tion, if he can prove that before the accident he had not manifested disabling symptoms, that such symptoms commenced with the accident and manifested themselves thereafter, |7and that either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and the onset of the disabling symptoms. Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320, 324-25 (La.1985). Once the claimant has established the presumption of causation, the opposing party bears the burden of producing evidence and persuading the trier of fact that it is more probable than not that the work injury did not accelerate, aggravate or combine with the pre-existing condition to produce the employee’s disability. Peveto, 93-1402 at pp. 2-3, 630 So.2d at 691.

Ms. Merrill was seen by five (5) physicians during the course of her treatment: Dr. R. Douglas Bostick (orthopedist), Dr. Morteza Shamsnia (neurologist), Dr. Bradley Bartholomew (neurosurgeon), Dr. Michael Puente (neurologist), and Dr. Robert Applebaum (neurosurgeon). While Ms. Merrill presented herself for treatment with Doctors Bostick, Bartholomew and Shamsnia, Dr. Puente and Dr. Applebaum were doctors hired by a workers compensation insurer to examine Ms. Merrill.

Dr. Bostick, an orthopedist, treated Ms. Merrill from January 2007 to May 2007. Dr. Bostick suspected that degenerative disc changes had occurred. An MRI revealed that there were changes from cervical spondylosis with focal disc herniations causing ventral cord deformity at the C3-C4 and C4-C5 level, but there was no canal stenosis and multilevel neural fora-minal stenosis. He determined that the MRI results were “consistent with cervical disc disease at C4-5 and 5-6.” Throughout the course of her treatment, she complained of pain radiating down her right arm — especially in her shoulder — coming from the | sneck, and her pain did not subside. He discussed cervical epidural steroid injections as a possible treatment, but Ms. Merrill was not interested in this type of treatment. He informed her that she could perform sedentary work.

Dr. Shamsnia, a neurologist, treated Ms. Merrill from April 2007 to late January 2010. Ms. Merrill complained of suffering from pain consistently in her neck and lower back as well as shoulder pain radiating to her right arm. She suffered with muscle spasms in her right shoulder and tingling in her arms down to her fingertips. He found that her neck pain and right upper arm parasthesis was the result of her fall at work. She also complained of cervical pain radiating to both shoulders. He found that she was in severe pain and that she was unable to work. She was prescribed pain medication throughout the time she treated with Dr. Shamsnia. As a result of a myelogram performed on October 21, 2009, he found evidence of a disc protrusion at C2-3, C3-4, and C4-5 level, involvement of the nerve root at C5-6 and C6-7 bilaterally. He also found evidence of some degenerative changes in the spine.

Dr. Bartholomew treated Ms. Merrill three times in a time period ranging from September 2008 to November 2009. She presented for treatment with Dr. Bartholomew complaining of continuing neck pain, and shooting pain to both her upper extremities and her fingers. She also suffered from constant posterior cervical pain going to the right shoulder area, with pain occasionally going to the left side. She consistently complained of neck pain, and pain in her upper extremities. She denied any past medical issues regarding her neck. As a result of some diagnostic tests, Dr. Bartholomew reached the following conclusions:

|aMRI report from 1/31/07 of the cervical spine shows a C2-3 focal protrusion, a C3-4 central herniation, C5-6 focal herniation to the left with deformity of the left cord, C5-6 loss of height and disc osteophyte complex, and a C6-7 mild bulge. I reviewed these films and agree with the findings. EMGs and nerve conduction on 3/4/07 showed right cervical radiculopathy. MRI scan report with flexion and extension of the cervical spine from 4/14/08 described C2-3 contained subligamentous herniation, a C3-4 prominent herniation, a C4-5 herniation, and C5-6 herniation to the left and C6-7 changes. There were also maybe some occipital cervical changes. I reviewed these films and agree with the findings.

Additionally, a discogram indicated that the C5-6 level was causing her symptoms and he recommended a C5-6 artificial disc surgery. He also reviewed a myelogram performed on October 21, 2009, and indicated in his reports that the myelograms results showed protrusion at C2-3 through C5-6 with a C5-6 disco/osteophyte complex with slightly less extreme findings of the same at C6-7. Dr. Bartholomew opined that degenerative changes were most noticeable at C5-6 and C6-7 levels.

Dr. Puente examined Ms. Merrill three times, once in 2007 and twice in 2008. She complained to him of pain in her shoulders, arms and hands, and more specifically complained of pain in both her right shoulder and hand. Dr. Puente determined that Ms. Merrill did have diffuse degenerative changes of the cervical spine that were of “chronic origin” and were not attributable to her work related injury. He noted no tenderness to the neck area, normal strength in both upper extremities, and no atrophy. He also concluded that Ms. Merrill did have occasional neck pain.

| inLastly, Dr. Applebaum examined Ms. Merrill one time in September of 2009. She complained of pain in her neck, right shoulder and both hands. She also stated that she experienced tingling around her right elbow. She explained that she did not experience these problems prior to her December 2006 accident. Dr. Applebaum noted that she had minimal limitation of motion present in the neck, and some rigidity present in the cervical spine mainly in the left trapezius muscle. He also found compression of the cervical spine reproduced some pain at the base of the neck. He testified that he later reviewed the results of Ms. Merrill’s myelogram of October 21, 2009, and opined that she had a degenerative disease, the worst level being C5-6. He further testified that this disease possibly warranted a fusion instead of an artificial disc replacement that Dr. Bartholomew recommended. He testified that the need for surgery was related to her degenerative condition, not the December accident.

In his testimony, Dr. Applebaum acknowledged that the work-related injury could have certainly aggravated or accelerated the degenerative changes in Ms. Merrill’s back, but that it would have resolved in three to six months since it was generally a “soft tissue injury”. In sum, Dr. Applebaum testified that the work-related accident caused a “temporary” aggravation of her pre-existing condition.

The medical evidence does not indicate, as stated by Dr. Applebaum, that Ms. Merrill suffered a “soft tissue injury” in the December 24, 2006 accident, which would have resolved in three to six months. In fact, none of the physicians involved in this case made a diagnosis of “soft tissue injury”. The In only reference to a “soft tissue injury” in this record is found in Dr. Applebaum’s deposition.

Contrary to Dr. Applebaum’s statements concerning “soft tissue injury”, the January 31, 2007 MRI (conducted approximately one month after the accident) showed objective findings of disc bulging and her-niations in Ms. Merrill’s cervical spine. Similar objective findings were noted in subsequent diagnostic tests. The record also documents that on September 25, 2008 (ten months after the accident), Dr. Bartholomew expressed his opinion that Ms. Merrill’s work-related accident aggravated her pre-existing degenerative changes and caused herniation.

It is undisputed that Ms. Merrill suffers from a degenerative spinal disease. However, the record reveals that she was asymptomatic before the accident. Ms. Merrill’s symptoms of back, neck and shoulder pain — radiating into both arms and hands — began almost immediately after the accident, and were consistently expressed and documented in the report of every doctor for more than three years. Additionally, there is no medical evidence in the record to establish that Ms. Merrill’s work-related injury has resolved, or that an aggravation of her preexisting degenerative condition was limited in duration. Ms. Merrill’s testimony that she was in good health prior to the accident was clearly supported by the fact that she performed her job, which included a certain amount of heavy lifting and long periods of driving, without any problems. The record reflects no contradictions or inconsistencies in Ms. Merrill’s testimony to indicate that her credibility was called into question.

112Based on the totality of evidence, we once again conclude that Ms. Merrill met her burden of proving by a preponderance of the evidence that her work-related accident, caused an aggravation of her preexisting back condition. Having met that burden, it then became Greyhound’s burden to rebut the legal presumption afforded Ms. Merrill, by producing evidence that it is more probable than not that the work-related injury did not accelerate, aggravate or combine with the preexisting disease or infirmity to produce the claimant’s disability. See Peveto, 93-1402, pp. 2-3, 630 So.2d at 691; Walton, 475 So.2d at 325. Greyhound presented no such evidence.

On remand to this Court for additional briefing, Greyhound argues that Ms. Merrill’s job injury caused symptoms to the right side of her body, which resolved shortly after the accident. Greyhound further argues that the degenerative changes identified to the left side of Ms. Merrill’s body (for which surgery was suggested) were not caused by the job accident. The record does not support Greyhound’s argument. As we previously concluded, the medical evidence clearly establishes that Ms. Merrill’s work-related accident caused an aggravation of a pre-existing condition. Additionally, the evidence does not demonstrate that Ms. Merrill’s work-related injury had resolved, nor that an aggravation of her pre-existing degenerative condition was of limited duration.

DECREE

For the foregoing reasons, we reverse the judgment of the Office of Workers’ Compensation and remand for further proceedings.

REVERSED AND REMANDED.


text:
    STATE of Louisiana v. Ricky RAY.
    No. 2010-KA-1126.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 29, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.

      (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

I,The appellant, Ricky Ray, seeks review of his conviction and sentence of manslaughter and obstruction of justice relating to the stabbing death of Benjamin Munn (Mr. Munn). Finding that the district court did not err in its judgment, we affirm the judgment and amend the sentence.

The State of Louisiana filed a bill of information, charging Ray with one count each of manslaughter (La. R.S. 14:31) and obstruction of justice (La. R.S. 14:130.1) relating to the stabbing death of Mr. Munn. Ray was arraigned and entered a plea of not guilty. Subsequently, the district court conducted a competency hearing, after which it found Ray incompetent to stand trial and ordered him remanded to the Louisiana Department of Health and Hospitals, Feliciana Forensic Unit. However, within six months Ray was found competent to stand trial after receiving medication.

After the district court denied a motion to suppress the statements given by Ray, the matter proceeded to trial where the prosecution offered various witnesses. Following the trial, the jury unanimously found him guilty of manslaughter. Following his conviction of manslaughter, Ray appeared for trial on the obstruction charge and entered a nolo contendere plea on the obstruction charge.

The district court sentenced Ray on the manslaughter count to a term of 30 years at hard labor, stating “without benefit of parole, probation, or suspension of sentence,” which was later removed from the official minutes but not the transcript. | ¡.The district court also sentenced Ray to a term of 20 years at hard labor to run concurrently with the manslaughter sentence for the obstruction charge. Ray requested reconsideration of the manslaughter sentence, but the district court denied the request. However, the district court specified a condition that if the appeal is successful, then Ray could withdraw his nolo contendere plea for the obstruction charge. This timely appeal followed.

New Orleans Police Department (NOPD) Homicide Detective Robert Long (Det. Long) was the lead investigator in the homicide of Mr. Munn on May 28, 2008. NOPD Homicide Detective Anthony Pardo (Det. Pardo) conducted a canvass of the neighborhood for potential witnesses and encountered Richard West (Mr. West) who lived adjacent to where the body of Mr. Munn had been found. Det. Pardo noticed that there was blood on the front porch and a screwdriver on the floor inside the residence. Det. Pardo confiscated the screwdriver from the home of Mr. West, who gave a statement that led investigators to interview Ray at his residence across the street. Ray told detectives that he had just awakened and knew nothing about the murder or Mr. Munn. Ray later gave a formal, recorded statement at the Homicide Office.

In the recorded statement, Ray acknowledged that he had been involved in an argument with two other men named “West” and “Jeff’ on the night of May 27th. The argument started when “Jeff’ asked Ray for a cigarette, which Ray did not have. “Jeff’ and ‘West” then proceeded to strike Ray, after which an altercation ensued in the street. West” was bleeding from his mouth and returned to his residence. Ray stated that the fight was a result of “stupidity,” and that he and “West” were drunk when it occurred. He further stated that he went to sleep around 2:30 a.m., and did not hear anything further about the altercation or struggle outside his residence until he |swas awakened by the police later that morning.

Dr. Paul McGary (Dr. McGary), a forensic pathologist with the Orleans Parish Coroner’s Office, was qualified as an expert in forensic pathology and toxicology. When he performed the autopsy of Mr. Munn on May 28, 2008, he found the presence of both alcohol and cocaine in his system, and that the levels were neither high nor low but would have affected his behavior while alive. Dr. McGary observed ten (10) stab wounds on the chest, shoulder, and left back area. He also identified a deep stab wound to the base of the neck and collar bone, and a large stab wound in the same vicinity. There was also a large laceration on the forehead of Mr. Munn, and another on the back of the head that Dr. McGary determined was caused by a blunt object such as a rode, stick, or axe handle, but concluded those lacerations were not the cause of death. Dr. McGary also observed that none of the wounds of Mr. Munn were defensive, but were inflicted where he was found on the ground, and that Mr. Munn was not able to retreat because he was crippled. Dr. McGary also determined that the first wound was the stab wound to Mr. Munn’s back.

Dr. McGary also opined that Mr. Munn was not running when he was stabbed, and that he was limited in his ability to run because of a deformed left ankle and crippled right ankle. Dr. McGary determined that the murder weapon was a knife at least five and seven eighths inches (“5 and 7/8th”) long, with a blunt side and sharp, serrated side. The weapon was not recovered.

Subsequently, Det. Long received a tip from Crime Stoppers in June of 2008 that Ray knew more about the incident than he originally acknowledged. Det. Long left a message with the mother of Ray for him to provide a second statement. Ray agreed to cooperate, and subsequently gave a second statement at the Homicide Office.

In his second statement, Ray acknowledged that he had witnessed an altercation between a man named John Sparrow (Mr. Sparrow) and Mr. Munn at around 2:30 a.m. or 3:00 a.m. on the morning of May 2, 2008. Ray also admitted that he had initially lied to investigators out of fear of retaliation. He stated that Mr. Sparrow and Mr. Munn worked together for a man named Calvin Stewart (Mr. Stewart), and often argued because Mr. Munn did not like white people, and the two men had gotten into a verbal altercation that morning after drinking heavily on Ray’s porch. After the altercation, Ray advised Mr. Munn to leave the area, at which point Mr. Munn went around the corner of the block. Mr. Munn returned five minutes later with a shovel and told Mr. Sparrow he was going “to get him.” Mr. Munn stuck the shovel in a catch basin and popped the wooden handle off, then struck Mr. Sparrow in the forehead with the shovel, causing him to bleed. At that point, Ray stated, Mr. Sparrow retrieved a knife from his pocket and began stabbing Mr. Munn as Mr. Munn continued to strike him with the shovel handle. Mr. Sparrow then left the scene, and Ray had not seen him since. Ray also stated that Mr. West had been present during the altercation. Ray identified Mr. Sparrow from a six-person photographic lineup complied by Det. Long, who testified that at that point, Ray was not a suspect in the murder.

Five months later in November of 2008, Det. Long learned that Mr. Sparrow and his father, “Big John”, were staying in a hotel in New Orleans East. In early December, Det. Long met with Ray in the Lower Ninth Ward and asked him when he had last seen Mr. Sparrow. In response, Ray told Det. Long that “he had to get something off his chest,” and confessed that it was he who had stabbed Mr. Munn. Det. Long gave Ray his Miranda warnings and transported him back to the Homicide office where he signed a written waiver of rights and gave a third recorded statement.

|sIn his third statement, Ray told Det. Long that he had run into Mr. Munn while walking down the street after work, and asked Mr. Munn if he wanted to purchase some crack cocaine with him. Mr. Munn and Ray went to Ray’s residence where they met Mr. Sparrow, “Big John” and a few other people. Mr. Munn, Mr. Sparrow and Ray smoked crack inside Ray’s residence, and when none was left, Mr. Munn became upset and left the house. “Big John” also left and Ray remained outside on his porch with Mr. Sparrow. Eventually, Mr. Munn returned with a shovel and threatened to harm Mr. Sparrow and Ray, who stated that he feared for his life. Mr. Munn backed off and Ray told him to mind his own business, and that he and Mr. Sparrow did not want to hurt him. Mr. Munn broke the handle of the shovel off in a catch basin and “hit Johnny in the head,” according to Ray.

Ray stated that he saw that Mr. Munn could not get to him and Mr. Sparrow again, and told Mr. Sparrow to attack Mr. Munn from opposite directions so that Mr. Munn could not attack a second time. He and Mr. Sparrow then charged at Mr. Munn and caught him running away. As Mr. Munn ran, he dropped the shovel. Mr. Sparrow positioned himself behind Mr. Munn and Ray, who already had a knife in his hand, and told Mr. Munn to leave them alone because they did not want to hurt him. The two men threw Mr. Munn to the ground and Ray stabbed Mr. Munn five times, and Mr. Sparrow hit Mr. Munn in the head with the shovel handle. Both men then claimed to have killed Mr. Munn, and agreed that Mr. Munn had been trying to kill them. Ray reaffirmed to Mr. Sparrow that he had killed Mr. Munn.

Ray told Det. Long that he killed Mr. Munn because he was afraid Mr. Munn would wait and try to kill him sometime later, stating “I know [ Mr. Munn]. I know Ifihow he did time in the jail house and stuff. I know how he act [sic].” Ray also relayed that the murder weapon was a kitchen knife, and he threw it in the dumpster somewhere in New Orleans East after the murder. He described it as a serrated steak knife. Ray stated that he had retrieved the knife after Mr. Munn left out of fear that Mr. Munn would return and do something violent. Ray confirmed that he and Mr. Sparrow chased Mr. Munn after Mr. Munn initially struck Mr. Sparrow in the head with the shovel, and that Mr. Munn had run away from them. Ray also contradicted his initial statement that he knew Mr. Munn was dangerous when he stated “[m]e and [Mr. Munn] ain’t never had a confrontation before. Never ... Now I ain’t know he was gonna act like that.” He acknowledged that he had initially lied to the police about this involvement because he did not want to go to jail for an act he felt was justified. Det. Long placed Ray under arrest for the second-degree murder of Mr. Munn based upon his statement.

In the instant appeal, Ray asserts three assignments of error: 1) he was denied due process when the state failed to negate that his admitted action was a reasonable response to the attack by Mr. Munn; 2) the district court imposed a sentence that did not take account of the factors mitigating against a near-maximum sentence, making the sentence unconstitutionally excessive under the circumstances of the case; and 3) the sentence, as articulated by the district court, is an illegal one.

In his first assignment of error, Ray argues that he was denied due process when the state failed to negate that his admitted action was a reasonable response to the attack by Mr. Munn.

In State v. Gibson, 99-0946, p. 2-3 (La.App. 4 Cir. 5/3/2000) 761 So.2d 670, 675, this Court set forth the standard of review for evaluating the sufficiency of the evidence to support a defendant’s conviction when it stated:

|7The standard for reviewing a claim of insufficient evidence is whether, after viewing the evidence in the light most favorable to the prosecutor, a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. at 2789[, 61 L.Ed.2d 560 (1979) ]; State v. Rosiere, 488 So.2d 965 (La.1986). The reviewing court is to consider the record as a whole and not just the evidence most favorable to the prosecution; and, if rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Mussall, 523 So.2d 1305 (1988).

Ray argues that he was in fear for his life which justified the murder of Mr. Munn, and his actions were pursuant to La. R.S. 14:20, which provides that “a homicide is justifiable when committed in self-defense by one who reasonably believes he is in imminent danger of losing his life or receiving great bodily harm, and killing his necessary to save himself from that danger.”

Ray also does not dispute that he killed Mr. Munn, but he argues that he acted in self-defense for fear for his life because Mr. Munn had initiated an attack with a shovel, striking Mr. Sparrow and then attempted to strike again.

Ray further argues that Mr. Munn was known to have a temper, was easily enraged and capable of killing someone. Ray also argues that he was in fear of his life when Mr. Munn returned and attacked him and Mr. Sparrow with a shovel, and furthermore, he feared that after Mr. Munn left he would attack him at an unforeseen time. For these reasons, he argues that the state did not establish beyond a reasonable doubt that he did not act in self-defense.

The state argues that the conviction of Ray should not be overturned based on Ray’s theory that he killed Mr. Munn to prevent Mr. Munn from killing him or committing a violent or forcible felony against him. The state contends that Ray did not refute the notion that the fatal stabbing of Mr. Munn was not justified by the |sevidence adduced at trial. While Mr. Munn, after an initial confrontation with Mr. Sparrow, did return with a shovel, utter threats, and strike Mr. Sparrow in the head, the state argues that there was no evidence that Mr. Munn attacked Ray or that Ray had any reason to fear that Mr. Munn would do so. Ray had conveyed to Det. Long in his third statement that he and Mr. Munn had not had a confrontation before. Ray also relayed that Mr. Sparrow and Mr. Munn had been in arguments before, but never had any physical altercations.

The state also contends that Ray’s claim of self-defense is also undermined by his statement that, after initially attacking Mr. Sparrow, Mr. Munn turned and ran away from Mr. Sparrow and Ray, and that they then proceeded to overtake Mr. Munn, throw him to the ground, and stab him until he was dead. The State further argues that Dr. McGary testified that Mr. Munn suffered a single stab wound to the back, which he concluded was inflicted first. The State argues that the facts reasonably indicate that Ray likely first stabbed Mr. Munn as he attempted to flee. And, the State supports their argument by noting that Dr. McGary testified that Mr. Munn could not ambulate well due to his crippled ankles, and by observing that Dr. McGary testified that Mr. Munn did not have any defensive wounds, and that he was likely unable to move or escape while he was being stabbed repeatedly. The State notes that Ray stated that Mr. Munn was likely no longer armed by the time both he and Mr. Sparrow tackled and stabbed him, that Ray’s assertion that Mr. Munn posed a future threat is questionable because the threat was not imminent. Finally, the State also argues that the amount of force used to subdue Mr. Munn was not justified considering the two-to-one manpower advantage over Mr. Munn.

In the matter sub judice, although Ray was charged with second degree murder, the jury convicted him of the responsive verdict of manslaughter, which is defined in LSA-R.S. 14:31(1) as:

liA- homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.

We note that “Sudden passion” and “heat of blood” are not separate elements of the offense, but are mitigating factors which Ray must establish by a preponderance of the evidence. See State v. McClain, 95-2546 p. 8 (La.App. 4 Cir. 12/11/96), 685 So.2d 590; State v. Camp, 571 So.2d 195 (La.App. 4 Cir.1990).

As noted by this Court in State v. McClain, 95-2546 at pp. 8-9, 685 So.2d at 594:

A homicide is justifiable if committed by one in defense of himself when he reasonably believes that he is in imminent danger of being killed or receiving great bodily harm and that the homicide is necessary to save himself from that danger. La. R.S. 14:20(1). When a defendant claims self-defense, the State has the burden of proving beyond a reasonable doubt that Ray did not act in self-defense. State v. Lynch, 436 So.2d 567 (La.1983); State v. Brumfield, 93-2404 (La.App. 4 Cir. 6/15/94); 639 So.2d 312. Regarding self-defense, it is necessary to consider whether Ray had a reasonable belief that he was in imminent danger of losing his life or receiving great bodily harm and whether the killing was necessary, under the circumstances, to save Ray from that danger. State v. Dozier, 553 So.2d 911 (La.App. 4 Cir. 1989), writ denied 558 So.2d 568 (La.1990). Although there is no unqualified duty to retreat, the possibility of escape is a factor in determining whether or not Ray had a reasonable belief that deadly force was necessary to avoid the danger. Id. However, a defendant who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that Ray desires to withdraw and discontinue the conflict.

I min this case, the jury did not believe that Ray acted in self-defense and rejected this claim when they found him guilty of manslaughter. Based upon our review of the record, the jury did not err when it rejected the plea of self-defense based upon the testimony of Dr. McGary, stating there were no defensive wounds on Mr. Munn; and, based upon Dr. McGary’s findings that Mr. Munn was also crippled. The jury also took into consideration that Ray disposed of the murder weapon and gave two false statements to the police before finally confessing to the murder when the police were searching for Mr. Sparrow. Based upon the statement given by Ray, he did not confess to the murder initially out of fear of going to prison, having been in prison before for a previous offense.

Therefore, based upon our review of the record in this matter, the district court did not err in convicting Ray of manslaughter. The assignment of error has no merit.

In his second assignment of error, Ray argues that the district court imposed a sentence that did not take into account the mitigating factors against a near-maximum sentence of imprisonment, making the sentence unconstitutionally excessive under the circumstances of this case.

In State v. Landry, 2003-1671 pp. 4-5 (La.App. 4th Cir.3/31/04) 871 So.2d 1235, 1239, the Court set forth a standard of review for excessive sentencing claims:

La. Const. art. I, § 20 explicitly prohibit excessive sentences. State v. Baxley, 94-2982, p. 4 (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Francis, 96-2389, pp. 6-7 (La.App. 4th Cir.4/15/98), 715 So.2d 457, 461. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, supra. A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d[11672, 676. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 10, 656 So.2d at 979.

As articulated in State v. Stanfield, 10-0854, p. 6-7 (La.App. 4th Cir.1/19/11) 56 So.3d 428, 430, in reviewing a claim that a sentence is excessive the appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La.C. Cr. Proc. art. 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189. If adequate compliance with La.C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circum stances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Bonicard, 98-0665, p. 3 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, 185.

Ray argues that his sentence violates the Eighth Amendment of the United States Constitution, which prohibits cruel and unusual punishment. He first argues that the district court did not consider the mitigating circumstances surrounding the crime when determining his sentence, such as the provocation by Mr. Munn and the minimal criminal background of Ray. He argues that the district court failed to mention that Mr. Munn initiated the attack which is a mitigating circumstance under C. Cr. P. Art. 894.1. Ray also argues that his confession was out of guilt for the offense, and that Mr. Sparrow was not charged as a co-defendant by the State.

The State argues that the district court did not find it credible that Ray acted in self-defense because the stab wounds to Mr. Munn’s back clearly refutes this allegation. Also, the jury unanimously found that the actions of Ray were not justified. The state also argues that Ray attempted to conceal evidence by disposing of the knife |1⅞⅛ a dumpster and lying to the police on two occasions about the incident, even going so far as to frame Mr. Sparrow for the murder. The state also argues that the district court observed that the actions of Ray manifested deliberate cruelty to Mr. Munn, and again, that Ray also admitted in his statement to police that it was not remorse for the death of Mr. Munn, but rather his own concern of going to jail that prompted him to confess.

The sentencing range for manslaughter under LSA-R.S. 14:31 is zero (0) to forty (40) years. The district court sentenced Ray to 30 years which does not exceed maximum sentence. Therefore, the sentence was clearly within the sentencing range.

Ray was convicted of manslaughter by a jury, and the district court sentenced him to 30 years at hard labor, and 15 years at hard labor for an obstruction, to run concurrently. In this instance, the court reviewed all the circumstances regarding the murder of Mr. Munn in using its discretion to impose a proper sentence. Ray argues that the district court did not consider the mitigating circumstances of the murder, giving that Mr. Munn was the initial aggressor, and that Ray had a long history of mental disorders and substance abuse, and that Ray was fearful for his life.

However, again the district court also considered Dr. McGary’s testimony regarding the nature of'the murder, and the testimony. of Det. Long regarding the statements given by Ray, and the fact that he did not confess to the murder for seven months. The court also took into consideration that Ray gave two false statements and disposed of the murder weapon.

Although on appeal Ray referenced case law on excessive sentencing, none supported his argument. Even though Ray had a minimal criminal history, courts have determined that sentencing is not excessive even when an accused has no prior felony convictions and had expressed remorse. State v. Goins, 920 So.2d 375 (La.App. 2 |13Cir. 1/25/06). Thus, we determine that this assignment of error has no merit, as the sentence imposed was not excessive.

In his third assignment of error, Ray argues that the sentence articulated by the district court was an illegal one. Ray argues that under the provision of LA-R.S. 14:31, there is no prohibition of the possibility of probation, parole, or suspension of the sentence.

According to the record, the district court stated, “I’m sentencing you to 30 years in the custody of the Department of Corrections without benefit of probation, parole, or suspension of sentence.” [Emphasis added] However, the minute entry does not reflect the transcript. “Where there is discrepancy between the minutes and the transcript, the transcript will prevail.” State v. Lynch, 441 So.2d 732, 734 (La.1983).

Therefore, because of the discrepancy between the transcript and the minute entry, we agree that the district court erred in sentencing Ray by adding “without benefit of probation, parole, or suspension of sentence.” While we have earlier found his 30 year sentence is legal, the prohibition of probation, parole, or suspension of sentence is an error on the part of the district court.

Thus, we therefore amend the sentence to reflect that the 30 years in the custody of the Department of Corrections is to be served with benefit of probation, parole, or suspension of sentence.

DECREE

For the above reasons, we affirm the conviction of Ricky Ray for the offense of manslaughter; however, we amend his sentence of 30 years at hard labor to delete the provision of the sentence “without benefit of parole or suspension of sentence.”

AMENDED AND AFFIRMED AS AMENDED.

      . Ray is referring to Richard West who was interviewed by Det. Pardo.

      . Coincidentally, Mr. Munn was nicknamed "Sparrow.” Ray refers to Mr. Munn as "Sparrow” in his final statement to the detectives. However, Mr. Munn and "Mr. Sparrow,” who is referred to in this opinion, are separate individuals.

      . A review of the record revealed that this assignment of error was patent error.


author: ROLAND L. BELSOME, Judge.

text:
    Kirk JANNECK v. LWCC and Chalmette Electric Company.
    No. 2011-CA-0027.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 29, 2011.

      Richard A. Tonry, Michael C. Ginart, Jr., Cullen A. Tonry, Kim C. Jones, Joyce D. Young, Law Office of Tonry & Ginart, LLC, Chalmette, LA, for Plaintiff/Appel-lee.
    Renee C. Willis, Johnson Stiltner & Rahman, Baton Rouge, LA, for Defendants/Appellants.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11 This appeal challenges the Office of Workers’ Compensation’s ruling in favor of Kirk Janneck. The appellants, Chalmette Electric Company and Louisiana Workers’ Compensation Corporation (collectively referred to as “defendants”), seek to reverse the OWC’s finding that Mr. Janneck’s current mental condition is causally related to a motor vehicle accident which occurred during the course and scope of his employment.

On October 23, 2001, Mr. Janneck was operating a Chalmette Electric work van in route to pick up materials for a job. While stopped at a traffic light, Mr. Jan-neck was rear-ended by a sports utility vehicle that was exiting the Interstate. The sports utility vehicle collided with the rear of the van twice. Mr. Janneck suffered physical injuries to his head, neck, shoulder, arms, and upper body. The driver of the sports utility vehicle was uninsured.

By all accounts, Mr. Janneck was a loyal and reliable employee of Chalmette Electric for nearly twenty (20) years. However, subsequent to his work-related accident he not only suffered from his physical injuries but also began to experience major depression with an element of psychosis relating to fear, paranoia and delusion. Mr. Janneck’s physical and mental injuries prevent him from | ¿returning to work. The appellants have disputed that his psychological condition was causally related to the accident and withheld benefits for treatment for his mental illness. After a trial on the merits, the OWC found that there was clear and convincing evidence that Mr. Janneck’s mental illness was causally related to the accident. This appeal followed.

The judge’s findings of facts in a worker’s compensation case are reviewed under a manifest error standard. Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. Thus, we will not set aside those findings unless they are clearly wrong in light of the record as a whole. Id. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed upon review. Id. “Where there are two permissible views of the evidence, a fact-finder’s choice between them can never be manifestly erroneous or clearly wrong.” Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556.

In the sole assignment of error presented on appeal the defendants contend that the workers’ compensation judge committed manifest error in finding that Mr. Janneck proved by clear and convincing evidence that his mental condition is related to the accident. For the reasons that follow, we disagree.

| c,Louisiana law provides that when “a mental injury or illness develops secondary to a physical injury sustained in a work-related accident, a claimant is entitled to workers’ compensation benefits for any disability resulting from the mental injury or illness and to reimbursement for medical expenses for treatment of the mental injury.” Our Lady of Lake Regional Medical Center v. Matthews, 2006-1584, p. 4 (La.App. 1 Cir. 9/26/07) 971 So.2d 354, 357 (citing Charles v. South Central Industries, 96-0883 (La.11/25/96), 683 So.2d 706, 708). “[I]n order to obtain compensation benefits for a mental injury caused by a physical injury, (1) the claimant must prove by clear and convincing evidence that the physical injury caused the mental injury, (2) the mental injury must be diagnosed by a licensed psychiatrist or psychologist, and (3) the diagnosis must meet the American Psychiatric Associations’ diagnostic and Statistical Manual of Mental Disorders.” Jackson v. Sysco Food Services, 05-1304, p. 3(La.App. 4 Cir. 6/7/06), 934 So.2d 191, 194 (citing La. R.S. 23:2021(7)(d); Traweek v. City of West Monroe, 30,571 (La.App. 2d Cir. 5/13/98), 713 So.2d 655).

Following the October 2001 accident, Mr. Janneck was treated for his physical injuries. Soon thereafter, the pain and physical limitation triggered depression which escalated into Mr. Janneck’s current debilitating mental condition. Prior to the accident, Mr. Janneck had never exhibited signs of mental illness. In the years since the accident, Mr. Janneck has been evaluated by numerous mental health professionals. The evaluations were presented to the OWC at trial and are a part of the record on review.

The following are summaries of the evaluations presented to the OWC as evidence:

\4Pr. Balminder Mangat, a psychiatrist, provided a report in 2003 that diagnosed Mr. Janneck with “major depression with questionable element of psychosis relating to severe paranoia and delusions” and a “pain disorder.” He further stated that depression is an element that can induce psychosis. He related the psychosis to the work injury since prior to the accident there was no history of symptoms.
Dr. Rennie Culver, a psychiatrist, found that Mr. Janneck suffered from delusional disorder, but did not relate the illness to the accident. The doctor further opined that Mr. Janneck’s delusional disorder is a pre-existing condition that manifested itself in the same general time frame as the accident.
Dr. Harold Ginzburg, a psychiatrist and independent medical examiner for this case, concluded from his evaluation of Mr. Janneck that there was a temporal relationship between the accident and its “sequelae”; ... but for the accident, the resulting medical events would not have occurred. He also stated that there is no means or manner in which to evaluate the nature and extent, if any, of any pre-existing delusional disorder without conducting interviews with his family and co-workers.
Dr. Richard Wakeman, psychologist, rendered an opinion on April 9, 2007 in which he stated that it is more probable than not that Mr. Janneck has had major psychological difficulties prior to the accident and the accident had no effect upon his mental state. However, on June 27, 2007, the doctor stated that “I have changed my opinion regarding both his diagnosis and its etiology. It is now my opinion, with the highest degree of psychological certainty that Mr. Janneck is suffering from major depressive Disorder, _LaSingle Episode, Severe, with (DSM_IV 296.24) Mood Congruent Psychotic Features. In addition he suffers from a significant pain disorder. It is my opinion that these pain and psychiatric disorders did not pre-exist his accident on 10/23/01, but are a direct result of that accident.”
Dr. Kevin Bianchini, a psychologist, evaluated Mr. Janneck in 2008 and concurred in Dr. Wakeman’s first evaluation, stating that the delusional disorder was not related to the work accident.
Dr. Paul Dammers, a psychologist and neuropsychologist, was appointed by the court as an independent medical examiner. In 2009, Dr. Dammers’ opinion was that the delusional disorder was not related to the work accident and was not caused by trauma. He also opined that causation relates more to Janneck’s personal constitution rather than any type of environmental occurrence.

In addition to the opinions rendered by licensed psychologists and psychiatrists, in accordance with La. R.S. 23:1021, Dr. John Olsen, a neurologist and Mr. Janneck’s treating physician since 2002, opined that the accident and subsequent injuries were a direct cause of his mental illness.

The workers’ compensation judge also heard testimony from Mr. Janneck’s family. Mrs. Janneck testified about their thirty (30) years of marriage and the drastic physical and mental changes in her husband since the accident. She described her husband before the accident as a loving family man who had a twenty year work history with Chalmette Electric. Mrs. Janneck also explained that since the accident he is a different man. She testified that he is regularly depressed and often angry, traits that he did not exhibit prior to the accident. The same sentiments were expressed in their daughter’s testimony.

IfiMr. Janneck also took the stand and described his life before and after the accident. He spoke of his desire to work and how he tried to continue working for approximately eleven (11) months. Ultimately, his physical pain and mental condition prevented him from performing his duties.

For Mr. Janneck to meet the “clear and convincing” evidence standard he must demonstrate that the causal relationship between his physical injury and his psychological injury is highly probable, or, much more probable than the injuries having no causal connection. See, Bethley v. Keller Const., 01-1085 (La.App. 1 Cir. 12/20/02), 836 So.2d 397; Traweek, supra; Morris v. Reve, Inc., 95-310 (La.App. 5 Cir. 10/18/95), 662 So.2d 525. The OWC concluded that “[t]he evidence overwhelmingly confirmed that the claimant’s mental illness is causally related to the accident ...” That finding is sufficiently supported by the record and we will not disturb it on appeal.

AFFIRMED

      . La. R.S. 23:1021 (8)(c) and (d) establishes the employee’s burden in cases where mental injury or illness develops subsequent to a physical work related injury. Those provisions read as follows:
      (c) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.
      (d) No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.


author:
BROWN, Chief Judge.
      STEWART, J.,

text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES, OFFICE OF FAMILY SUPPORT in the Interest of K.B.D., minor child of Lasheka Marie Drew, Plaintiffs-Appellees v. Marion Thomas DREW, Jr., Defendant-Appellant.
    No. 46,337-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 29, 2011.
    Pamela Anita Blankenship, for Appellant.
    Eugene W. Bryson, III, Assistant District Attorney, for Appellee, State of Louisiana DOSS.
    Kelly Lorraine Long, for Appellee, K.B.D. (Minor).
    Lasheka Marie Drew, In Proper Person, Appellee.
    Before BROWN, STEWART, and GASKINS, JJ.
   BROWN, Chief Judge.

LK.D. was born on June 14, 2004. In 2008, Lasheka Drew, the mother of the child, applied for and accepted public assistance from Medicaid. On April 18, 2008, the State of Louisiana, Department of Social Services, Offices of Family Support (“the State”), filed a rule against Marion Thomas Drew, Jr., to establish support on behalf of the minor child. When Lasheka gave birth to the child, she was married to Drew. La. C.C. art. 185 provides that the husband of the mother is presumed to be the father of a child born during the marriage or within 300 days from the date of the termination of the marriage. Marion and Lasheka were divorced on November 7, 2007. Thus, paternity was established by operation of law. On June 6, 2008, Drew was ordered to pay support for the child in the amount of $489.30 monthly to the Department of Social Services. At this time Drew requested DNA testing. The test results showed that Drew was not the biological father of the child.

On July 15, 2009, Drew filed a petition to annul his acknowledgment of paternity and for damages (from Lasheka Drew), and on October 27, 2009, he filed an amended petition to disavow paternity. These actions were filed under the same suit number as the petition by the Department of Social Services. On January 13, 2010, the court appointed Attorney Kelly Long to represent the minor child. On July 7, 2010, the court heard |2testimony and arguments. The court entered judgment against Drew finding that his action to disavow had prescribed. As to the initial action to annul the acknowledgment of paternity, the court noted that only a birth certificate was introduced into evidence and because the child was legitimate there was no necessity for an authenticated act of acknowledgment, none of which was shown.

Facts

In the summer of 2003, Marion Drew, Jr., and Lasheka Drew began a relationship. After Lasheka became pregnant, she and Marion married on December 13, 2003. Six months later, on June 14, 2004, K.D. was born; Marion signed the certificate of live birth as the father of the child. Over three years later, on November 7, 2007, Marion and Lasheka Drew were divorced. The petition for divorce was filed by Marion and in it he alleged that one child was born of the marriage, namely K.D. Nothing was said concerning custody or support. The record shows that the child lived with his mother.

At the hearing to disavow paternity, Drew testified that he did not question his biological relationship with the child until the child support rule was filed in April 2008. At that time, Drew testified that he began to hear that Lasheka may have been sleeping with other men and that K.D. was not his child. Lasheka testified that she genuinely believed Marion was KJD.’s biological father. She testified that she had “protected” sexual contact around the time of conception with a former boyfriend. Lasheka also testified that during the time of conception she had “unprotected” | .¡sexual relations with Drew. They both testified that K.D.’s conception was a major factor in their decision to get married.

Discussion

The husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the date of the termination of the marriage. La. C.C. art. 185. (Emphasis added). The husband may disavow paternity of the child by clear and convincing evidence that he is not the father. The testimony of the husband shall be corroborated by other evidence. La. C.C. art. 187. The time limit for a disavowal by the husband can be found in La. C.C. art. 189, which provides that the action for disavowal of paternity is subject to the liberative prescription of one year. This prescription commences to run from the day the husband learns or should have learned of the birth of the child. (Emphasis added).

Marion and Lasheka were married on December 13, 2008. The minor child, K.D., was born during that marriage on June 14, 2004. The parties were divorced on November 7, 2007. Since Marion was the husband of KJD.’s mother, Lasheka Drew, when K.D. was born, Marion is clearly the presumed father. The only way to disestablish paternity when paternity is presumed is through the disavowal action.

In the past, it was difficult to prove by clear and convincing evidence that the husband was not the father. Today, it is easily shown through DNA testing. Drew has shown by clear and convincing evidence through his Ltestimony, Lasheka Drew’s testimony, and the DNA evidence, that he is not K.D.’s biological father. The record shows that Drew was at the hospital when K.D. was born. He signed KD.’s certificate of live birth and is listed as his father. Therefore, Drew knew of KD.’s birth when he was born on June 14, 2004. Over three years after KD.’s birth, well past the one-year prescriptive period, Marion and Lasheka Drew divorced. Marion Drew never during that time instituted an action to disavow paternity; however, the record shows that he never believed that K.D. was not his child. Only when the state filed a rule for child support in April 2008, did Marion begin to question his biological relationship to the minor child. Marion asked for DNA testing when he agreed to an order for payment of support on June 6, 2008. The petition to annul acknowledgment of paternity and amended petition to disavow paternity were not filed until July 15, 2009, and October 27, 2009, respectively, each over four years after KD.’s birth and more than one year after Drew first questioned filiation. We note that the DNA test results were rendered on October 31, 2008, and thereafter mailed to both Lasheka and Drew.

In Modisette v. Phillips, 31,905 (La.App.2d Cir.05/05/99), 736 So.2d 983, 987, this court said:

The legal tie of paternity will not be affected by subsequent proof of the child’s actual biological tie ... If the presumed father fails to bring a timely disavowal action, disavowal is barred by prescription, and the presumption of paternity is irrebuttable. In the case sub judiee, Mr. Smith failed to file a timely disavowal action and he is, therefore, the legal father of the child. Furthermore, the fact that (another man) has been proven to be the child’s biological father does not affect Mr. Smith’s status. (Citations omitted).

I5Modisette was decided in 1999. A complete revision of the law concerning filiation was enacted in 2005. The Chair and Reporter of the Persons committee of the La. Law Institute, LSU Law School Professor Katherine Shaw Spaht, commenting on the revision in 2005 and 2006 of articles governing proof of filiation wrote:

... [o]ne clearly stated objective of the revision of the law of filiation: to more closely align biological and legal paternity. Yet, the series of articles devoted to the mother’s contestation action recognizes that this alignment must pose the least possibility of potential harm to the child and the family. The objective of aligning biological and legal paternity principally reflects dissatisfaction with the historical application of the presumption that the husband of the mother is the father of the child conceived or born during marriage. The presumption had become virtually irrebuttable. Even before the Law Institute revision passed in 2005, legislative changes to the time period for instituting a disavowal action markedly liberalized the rebuttal of the presumption of the husband’s paternity. The liberalizing legislative change that suspended the time period if the child was born more than three hundred days after a continuous physical separation of the mother and her husband was incorporated into the Law Institute’s revision. In addition, the revision took an additional liberalizing step by converting what was arguably a peremptive time period for instituting the action into an explicitly prescriptive period, subject to both suspension and interruption. Thus, the potential for more closely aligning legal and biological paternity exists by virtue of the continued liberalization of the rules regulating the disavowal action by the husband and, for the first time, extending an action of contestation to the mother of the child. (Emphasis added).
Who’s Your Momma, Who Are Your Daddies ? Louisiana’s New Law of Affiliation, 67 La. Law Rev. 307 at 314 (2007).

The comments to La. C.C art. 189 also state that the time period is prescriptive subject as a general rule to both suspension and interruption. This raises the question of the discovery rule of the equitable doctrine of contra non valentem. Article 189 provides that a disavowal action must beJjjfiled within one year after the husband learned or should have learned of the birth of the child. In the present case, the husband clearly knew when the child was born. He believed at birth that the child was his biological child. Almost four years later he received information to question that belief. Thereafter, DNA test results proved that there was zero probability that he was the father.

Drew cites La. R.S. 9:392(A)(7)(b), which states that acknowledgment of paternity may be voided only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, material mistake of fact or error, or that the alleged father ... is not the biological father. The acknowledgment referred to in this article involves an authentic act of acknowledgment and not the signing of a birth certificate. The trial court correctly found that there was no authentic act of acknowledgment shown.

Drew further relies upon Faucheux v. Faucheux, 00-20 (La.App. 5th Cir.10/31/00), 772 So.2d 237. However, in Faucheux, the child was born before the parties were married, and the acknowledgment was after marriage and by authentic act. Faucheux is clearly distinguishable from the present case. Drew was the husband of K.D.’s mother when K.D. was born. Therefore, he is the presumed father, and as a result, there was never a need for an acknowledgment. A certificate of live birth, however, is only a record of birth. It is not an acknowledgment; an acknowledgment is a separate act with its own specific requirements, see La. R.S. 9:392, or it is a subsequent signing of a birth certificate acknowledging paternity of a child 17born illegitimately, see La. C.C. art. 196. An acknowledgment is used when a man marries a woman who has already given birth to an illegitimate child prior to the marriage for the purpose of legitimating that child. Id. Since there was no acknowledgment and Drew is the presumed father, the prescriptive period for null acknowledgments does not apply.

The Louisiana legislature has decided through La. C.C. art. 189 that prescription runs from the date the presumed father learned of or should have learned of the “birth” of the child. The statute is clear and unambiguous.

In Gallo v. Gallo, 03-0794 (La.12/03/03), 861 So.2d 168, 173-74, the Louisiana Supreme Court elaborated on the purpose of the presumption of paternity and the applicable time period for bringing the action found in La. C.C. arts. 185, 187, and 189. The Louisiana Supreme Court stated:

The policy embodied in the restrictive provisions of the Louisiana Civil Code dealing with the action to disavow is to protect innocent children, born during marriage, against scandalous attacks upon their paternity by the husband of the mother, who may be seeking to avoid paternal obligations to the child. Thus, the traditional and historical position of Louisiana jurisprudence was to zealously guard and enforce the presumption created by Article 18[5], The fundamental ends achieved by such court action were preservation of the family unit, avoidance of the stigma of illegitimacy, and aversion to the disinheritance that resulted from a successful disavowal action. There is a public interest in dispelling doubts as to legitimacy which demands the establishment of a relatively short time for bringing challenges. (Citations omitted).

Further evidence of the legislature’s continued intent to protect children over the husband’s interest is the repeal of La. R.S. 9:305. Former La. R.S. 9:305(1) provided:

| SN otwithstanding the provisions of Civil Code Art. 189 and for the sole purpose of determining the proper payor in child support cases, if the husband, or the legal father who is presumed to be the father of the child, erroneously believed, because of misrepresentation, fraud, or deception by the mother, that he was the father of the child, then the time for filing suit for disavowal of paternity shall be suspended during the period of such erroneous belief or for ten years, whichever ends first.

Fontenot v. Fontenot, 00-1057 (La.App. 3d Cir.12/06/00), 774 So.2d 330. La. R.S. 9:305(1) was repealed by the legislature by Acts 2006, No. 344, § 7, effective June 13, 2006.

Under former La. R.S. 9:305(1), if Marion Drew could prove misrepresentation, fraud, or deception, prescription would have been suspended during the time that he did not know K.D. was not his child. However, it is clear that the legislature had conceived of situations such as Drew’s, and the legislature repealed the statute. Further, as ruled by the trial court, we agree that the evidence did not support a finding of misrepresentation, fraud or deception.

Conclusion

For the foregoing reasons, the judgment of the trial court granting the exception of prescription concerning the disavowal action is affirmed. Costs are assessed to appellant, Marion Thomas Drew, Jr.

STEWART, J., concurs with reasons.

STEWART, J.,

concurs.

|,In July or August of 2003, the appellant and Lasheka Drew began dating. The appellant testified that he believed that they were committed to one another and that no one else was involved in their relationship at that time. Lasheka never informed the appellant that she was still involved in a sexual relationship with her ex-boyfriend, William Cartwright. She never informed the appellant that there existed a possibility that the baby could have been fathered by another man. Based on the record, Lasheka believed the appellant to be the biological father because “she had protected sex” with her ex-boyfriend and had “unprotected sex” with the appellant within the same course of time.

In September or October of 2003, Lasheka discovered that she was pregnant. For this reason, the appellant married Lasheka in December of 2003. The appellant attended prenatal appointments and was present at the birth of the child. Six months later, on June 14, 2004, the minor child was born. On November 7, 2007, the appellant and Lasheka were divorced. In April of 2008, Lasheka petitioned the court for child support. At the request of the appellant, a DNA test was performed. The results showed that the appellant was not the biological father of the minor child. Lasheka now admits that the ex-boyfriend is the child’s biological father. Based on the record, she has no idea where William Cartwright is.

The relevant section of Louisiana Civil Code article 189 states, “The action for disavowal of paternity is subject to a liber-ative prescription of one year. This prescription commences to run from the day the husband learns Lor should have learned of the birth of the child.” Referred to as one of the strongest presumptions known in law, the husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the date of the termination of the marriage. La. C.C. art. 185.

Here, the appellant was the husband of the mother and is presumed to be father of the minor child, who was born during the marriage. Therefore, prescription would have commenced from the birth of the child, namely on June 14, 2005. Under our law, the appellant is now barred from filing an action for disavowal of paternity and is presumed to be the putative or legal father. Thus, the appellant must pay child support for a non-biological child until his 18th birthday.

This existing anomaly unfairly forces a putative father to support a non-biological child, while the biological father escapes financial responsibility. In commenting on this injustice, Louisiana scholar Robert Pascal stated,

‘We must shut our eyes to the obvious immorality of life in our times to such an extent as both to impose injustly on a man the status and obligations of legitimate paternity, with all they imply in terms of support and succession, and to add insult to injury by stamping him officially with the mark of the cuckold. This cannot but produce a feeling of contempt for both legislation and the administration of justice.” Rachel L. Kovach, Comment, Sorry Daddy — Your Time Is Up: Rebutting the Presumption of Paternity in Louisiana, 56 Loy. L.Rev. 651, 653 (2010).

Louisiana Civil Code article 3467 provides that prescription runs against all persons unless exception is established by legislation. In addition, Louisiana has recognized the ancient civilian, equitable doctrine of | .¡contra non valentem agere nulla currit praescriptio (contra non valentem), to prevent the running of liberative prescription in certain cases. The doctrine of contra non valentem stands for the proposition that prescription does not run against those who cannot act. Louisiana jurisprudence establishes that contra non valentem applies to prevent the running of liberative prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (8) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. Corsey v. State ex rel. Dep’t of Corrections, 375 So.2d 1319, 1321-22 (La. 1979).

Contra non valentem should be applied in matters like this one, where the mother withheld information that would have led the appellant to believe he was the biological father of the child and thereby prevented him from availing himself of the disavowal action. Alternatively, in light of the reliable and common use of DNA testing to determine paternity, we can urge the legislature to consider whether to extend the prescriptive period to when the putative father learns or has reason to suspect that he is not the biological father. For these reasons, I respectfully concur.

      . Recipients of AFDC under Title IV-D of the Social Security Act assign their child support rights to the state and are required to cooperate (unless good cause for refusing to do so is determined to exist) in whatever legal action the state undertakes. By assigning their child support rights in return for AFDC aid, they give the states the opportunity to recoup the financial drain imposed by the welfare system on the state and federal treasuries. 42 U.S.C. §§ 651 and 608.

      . The parties lived together for more than a year after the child was born and then separated.