author: MOORE, J.

text:
    Ron JOHNSON, Plaintiff-Appellant v. PINNERGY, LTD., Defendant-Appellee.
    No. 46,188-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.
    W. James Singleton, Christopher L. Sices, The Singleton Law Firm, Shreveport, LA, for Appellant.
    Robert A. Dunkleman, Joshua P. Mon-teleone, Pettiette, Armand, Dunkelman, Woodley, Byrd & Crowell, LLP, Shreveport, LA, for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   MOORE, J.

| ,This is an appeal from the Office of Worker’s Compensation, District 1-West, Claiborne Parish, the Honorable Carey Holliday presiding. The court granted Pinnergy’s motion for summary judgment dismissing the plaintiffs claim for compensation benefits on grounds that the claimant made false statements for the purpose of obtaining benefits. La. R.S. 23:1208. The plaintiff filed this appeal. For the following reasons, we affirm.

FACTS

Plaintiff, Ronald Johnson, received a minor abrasion to the cornea of his right eye when drilling mud splashed under his goggles on January 29, 2009. He was working for the defendant, Pinnergy, Ltd., as a truck driver at the time of the accident, which occurred while the drilling mud was being filled in his truck. Johnson was treated that day by Work Fit and examined the next by an optometrist, Dr. Spur-lock, who treated and released Johnson to restricted duty for two days. The claimant worked two days, but continued to complain. Over the next few weeks, despite receiving treatment and successive medical releases to return to full duty from several physicians, including ophthalmologists, Johnson failed to return to work for over one month. He was subsequently terminated from his employment for absenteeism.

Mr. Johnson filed for unemployment benefits, but was denied per ruling by an Administrative Law Judge, who found that Johnson was correctly fired for cause. Johnson then filed a disputed claim for Worker’s Compensation benefits (Form 1008), alleging that no wage benefits had | abeen paid, and he was entitled to penalties and attorney fees.

After deposing Johnson, Pinnergy moved for summary judgment on grounds that (1) Johnson forfeited his rights to benefits for making false statements for the purpose of obtaining benefits; (2) Johnson was not entitled to benefits because he was not disabled from work for more than 7 days before receiving a medical release to return to full duty; and, (3) Johnson had no proof that his eye problems were causally related to the accident. Following a contradictory hearing on the motion for summary judgment, the court granted the motion and dismissed the claim under La. R.S. 23:1208, i.e., finding that Johnson made false statements for the purpose of obtaining worker’s compensation benefits. The court also noted that it would deny the claim on the merits, commenting that one ophthalmologist who treated Johnson flatly stated that Johnson was malingering.

The false statements were made while Johnson was being deposed. Johnson had seen an eye doctor, Dr. Gilcrease, four times in the weeks immediately prior to the alleged accident with similar eye complaints (blurred vision, eye pain and throbbing), the last time being just two days prior to the accident on January 29, 2009. However, when he was deposed under oath, Johnson unequivocally stated that he had only been to an eye doctor once since he was hired by Pinnergy on October 12, 2008, and that visit was for a routine eye examination. He stated that he did not know when he had seen the eye doctor, but indicated that the visit was not recent or near the time of the accident. Johnson also denied that he had any | ¡¡previous eye problems other than occasional allergies. On the contrary, he had actually sought and obtained medical treatment since 2007 complaining of essentially the same problems he now alleges were caused by the accident.

Johnson now appeals alleging that the trial court erred in finding that Johnson forfeited his rights to compensation benefits under La. R.S. 23:1208. Specifically, he argues that he did not understand the deposition question due to his alleged diminished mental capacity. Additionally, Johnson contends that the court erred in allegedly finding that his medical condition had resolved and erred in failing to consider alleged medical evidence that shows he is now blind in his right eye.

DISCUSSION

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Jones v. Airport Systems Int’l, 28,278 (La.App. 2 Cir. 4/3/96), 671 So.2d 1176. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21. The motion should be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 |4B. Since the 1996 and 1997 amendments to Art. 966, the courts are to assess the proof submitted by the parties equally, without any presumption in favor of trial on the merits. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002; Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606. Appellate review of a grant or denial of a motion for summary judgment is de novo. Jones v. Estate of Santiago, supra. Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice, yet it may be granted on a subjective issue when no issue of material fact exists concerning that issue. Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730; Brown v. International Paper Co., 38,892 (La.App. 2 Cir. 9/22/04), 882 So.2d 1228.

The Workers’ Compensation Act imposes penalties for willfully making a false representation in connection with a compensation claim. La. R.S. 23:1208 provides, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The requirements for forfeiture of benefits are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Brown v. International Paper Co., supra; Smalley v. Integrity Inc., 31,247 (La.App. 2 Cir. 12/9/98), 722 So.2d 332, writ denied, 99-0072 (La.3/19/99), 739 So.2d 782. The employer is not required to show that it was prejudiced by the false statement or misrepresentation. Id.; Varnado v. Winn-Dixie La. Inc., 98-0301 (La.App. 1 Cir. 9/25/98), 720 So.2d 66.

The question presented is whether the summary judgment evidence is sufficient to show that Johnson willfully made a misrepresentation or false statement in his deposition for the purpose of obtaining compensation benefits. Pinnergy does not contest that Johnson sustained a work-related abrasion to his eye on January 29, 2009. It contends that the medical evidence shows that this abrasion quickly healed and Johnson’s complaints, if real, are related to a preexisting eye condition for which Johnson made false statements in order to obtain worker’s compensation benefits. Accordingly, Pinnergy contests the allegation that the January 29, 2009 accident caused the injuries for which Johnson now seeks compensation benefits.

Johnson’s primary argument is that it would be unfair to hold him responsible for making false statements because he did not understand the questions regarding his doctor visits due to diminished mental capacity. Therefore, he argues, he did not intend to make false statements. The submitted proof of his alleged diminished capacity is that he did not receive a high school diploma, but instead received a diploma for completion of an alternative program of study. Johnson’s counsel repeatedly referred to this diploma as a certificate for completion of a program in “special education.” However, there is actually no evidence that Johnson’s diploma indicates that | fihe was a special education student. Nor is there any evidence that Johnson suffers from diminished mental capacity.

After review of the deposition testimony in question, we conclude that Johnson intentionally tried to conceal his preexisting eye problems and the prior medical treatment he received for it for the purpose of establishing a causal link between the accident and his eye problems in order to obtain compensation benefits. Regarding his eye problems prior to the accident, Johnson testified as follows:

Q: Before January 29 of 2009, were you having any problems with your eyes?
A: No other than the common, you know, allergies, you know. No injury, no — nothing else of that nature.
Q: Were you ever having problems with either of your eyes where you felt like there was pain either in or behind your eye like you’re talking about now?
A: No.
Q: Were you having any problems with seeing spots or what the eye doctor sometimes calls floaters? Were you having any of that before this accident?
A: Not that I can recall, no.
Q: You didn’t have any?
A: No.
Q: Did you ever have any occasion where you felt like your eyes had a lot of pressure on them like a buildup of pressure either in or behind the eye?
A: No.
Q: Did you ever have any problem with seeing — we talked about floaters— either brown or black spots with either eye?
A: No, no problems.
|7Q: Were you having any problems with either eye, with either pain or throbbing in the year prior to the accident?
A: No.
Q: Did you ever have any problem where you had either a pulling or twitching sensation in either eye before this accident?
A: I don’t recall, no.

Johnson therefore unequivocally testified that he was not having eye problems before the accident and specifically denied having any of the same problems of pain, throbbing, floaters, spots, etc. prior to the accident. Johnson further testified:

Q: You told me previously that you were seeing Dr. Gilcrease annually for just routine checkups on your eyes.
A: Uh-huh. (Affirmative)
Q: I think my doctor tells me every 18 months, but it may be different for me than you. When was the last time that you saw Dr. Gilcrease before this accident?
A: Probably — I’m going to say when I was having the allergies I want to say. I’m not really quite sure, but I want to say that was around that time.
Q: Around about that time?
A: Yeah, when I was having, you know, just common allergies. That’s my doctor. That’s the one that I would-
Q: Okay. So you would have seen Dr. — you were hired you said in October, 2008. Would you have seen an eye doctor between October of 2008 and January 29th of 2009 when you got hurt, an eye doctor?
A. Would I have seen one?
Q: Did you in fact see any eye doctors — I guess it’s Dr. Gilcrease, but it may be somebody else. Did you see any eye doctors between October of 2008 when you got hired by Pinnergy and the accident?
Is A: Oh, yes.
Q: Okay. How many times did you see an eye doctor for eye problems between when you got hired by Pin-nergy and the date of your on-the-job accident?
A:- Run that by me again?
Q: I think you told me — if I’m going back to my notes and got this written down correctly, you told me that you got hired on October 12th of 2008 and the date you got hurt, January 29th of 2009, how many times would you have seen an eye doctor in this three and a half months that you worked for Pinner-gy?
A: For the accident or—
Q: Well, you wouldn’t have seen him for the accident because the accident hadn’t happened yet. The accident hadn’t happened. I’m talking about after you got hired by Pinnergy—
A: Oh, one.
Q: —but before the accident how many times would you have seen an eye doctor?
A: One
Q: Okay. Do you know when you saw that eye doctor?
A: I don’t. I sure don’t, no.
Q: Okay. But you’re sure it’s only one time that you saw an eye doctor?
A: Yes.
Q: All right. It would have been Dr. Gilcrease?
A: I believe so. Well, I’m going to say eye associates because sometimes you may go—
Q: But you only — but you went to Dr. Gilcrease’s office? It may have been another doctor on call that day or what have you?
A: Yeah, yeah.
Q: I understand that, but you went to Dr. Gilcrease’s office?
A: Yes.
|aQ: How soon before the accident was that you went to Dr. Gilcrease’s office? Are we talking like in October or November, December, are we talking about 20 minutes before the accident? What are we talking about?
A: Oh, no, I don’t remember the time, but it wasn’t — no, it wasn’t close. It wasn’t no—
Q: It wasn’t just a matter of days before?
A: No.

In conflict with Johnson’s testimony, our review of Dr. Gilcrease’s medical records reveal that Mr. Johnson went to see Dr. Gilcrease four times between December 23, 2008 and January 27, 2009, complaining his eyes were burning, throbbing, tearing, blurring, itching, and pulling. Prior to those visits, Johnson saw Dr. Gilcrease several times in 2007 complaining of jumping, pressure, seeing black and brown spots, dryness, glare and that his glasses were too strong. We note that post-accident, Johnson’s complaints are much the same: glare, floaters, itching and burning, with the only difference is that Johnson now complains that the symptoms are the result of the January 29, 2009 accident.

The medical evidence does not support this conclusion. After the accident, Johnson was sent to Dr. Spurlock, a doctor of optometry. Johnson complained of pain, throbbing, and pressure. In a follow-up shortly thereafter, Dr. Spurlock prescribed Tobramycin, which is used to treat conjunctivitis. Johnson then complained of seeing spots on February 9, 2009. Dr. Spurlock then referred Johnson to Dr. Lyon, an ophthalmologist and a specialist in trauma to the eye without any return appointment. Dr. Lyon examined Johnson twice. On February 9, 2009, Dr. Lyon concluded |inthat the corneal abrasion had healed nicely. Johnson has some slight swelling of his right eye lid, but he did not see any problems that would account for Johnson’s complaints. He noted that Johnson’s conjunctivitis was responding nicely to the treatment of Tobramycin. On February 12, Johnson went back to Dr. Gilcrease.

Ultimately, Dr. Gilcrease referred Johnson to Dr. Thomas Parker, a medical doctor, who then referred Johnson to Dr. Garrett, a neuro-ophthalmologist. Dr. Garrett examined Johnson and concluded that Johnson was malingering. Johnson then went to the emergency room complaining that the eye drops Dr. Garrett put in his eyes irritated them. When personnel in the emergency room called Dr. Garrett, he told them that Johnson was a total fake and malingering.

Johnson then went to see Dr. Thomas Dansby, a family practice physician, complaining that his eyes were irritated. Dr. Dansby treated Johnson for acute conjunctivitis and released him to return to work on February 26, 2009.

The record shows several visits to the Minden Medical Center, where Johnson has made similar complaints, but also reported that he was blind in his right eye. These records show that Johnson was treated for conjunctivitis.

CONCLUSION

The record in this case supports the conclusion that Johnson had pre-existing medical problems, including recurring eye infections, which are not causally connected to the accident of January 29, 2009. Moreover, Johnson |, attempted to conceal this fact by intentionally making false statements regarding these prior symptoms and prior medical treatment at his trial deposition. We conclude that the worker’s compensation judge correctly granted Pinnerg/s motion for summary judgment.

Accordingly, the judgment is affirmed at appellant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Robert DOMBROWSKI, Plaintiff-Appellee v. PATTERSON-UTI DRILLING COMPANY, L.L.C., and Liberty Mutual Insurance Company, Defendant-Appellant.
    No. 46,249-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      Patrick A. Johnson, Allen & Gooch, Lafayette, LA, for Appellant.
    C. Daniel Street, Street & Street, Monroe, LA, for Appellee.
    Before GASKINS, DREW and MOORE, JJ.
   DREW, J.

11 Patter son-UTI Drilling Company (“Patterson”) and Liberty Mutual Insurance Company appeal a judgment awarding workers’ compensation benefits, assessing $4,000 in penalties, and awarding $10,000 in attorney fees. We modify the judgment to increase the award of attorney fees, and affirm.

PACTS

Robert Dombrowski, who has a history of low back pain and right leg pain, was hired by Patterson in April of 2008 after not working for several years. Dombrow-ski, who has had at least five lumbar spine surgeries, began treatment with Dr. Yin-cent Forte of Louisiana Pain Care in July of 2007 for his lower back and right leg pain. When Dombrowski was interviewed for the job, he made Patterson aware of his history of back problems and was even asked if he could perform the heavy-duty job responsibilities.

Dombrowski began working for Patterson in the position of floor hand on a drilling rig. After several months, he was promoted to the position of motorman on the rig. He was promoted to the position of driller following three months of working as a motorman.

Dombrowski testified that his back problems did not interfere with his job or keep him from being promoted. Although he had been prescribed medications to alleviate the symptoms of his back condition, he would wait until after he stopped working to take his medications.

| ¡.Dombrowski and the rest of his crew were laid off when the rig on which they were working was shut down. In December of 2008, Dombrowski accepted an offer to work as a motorman on another Patterson rig instead of receiving unemployment compensation. He worked a 12-hour shift on a seven-days-on/seven-days-off basis.

On May 25, 2009, Dombrowski went to the emergency room (“ER”) at Citizens Medical Center with complaints of back pain that had started three days earlier when he lifted a board. The ER report reflects that he rated his pain as 6/10 or 7/10, arrived on a stretcher, and was in the “urgent” category for triage classification. Two Vicodin pills had not helped his pain. Dombrowski, who was not in a work-period at that time, returned to work as scheduled on May 27.

Dombrowski alleged that he injured his back at work on May 28, 2009, when he lifted the end of a double-pin sub (the “accident”), which he estimated weighed-around 100 pounds, in order to slide a strap underneath it. Dombrowski recalled feeling a pop in his lower back which took his breath away. He also felt as if his right leg was on fire, and his right foot was numb.

The rig’s tool pusher, James Browning, was standing about 10 feet away at the time of the accident. Dombrowski immediately let Browning know what had happened, and Browning told him to go to the office. Dombrowski testified that he also called the rig floor and told the driller that he was hurt. The rig’s safety representative was notified of the accident.

Is An accident report was completed, which stated that Dombrowski felt a pop in his lower back when he bent over to tilt back a double-pin sub so he could place a strap under it. A post-accident drug screen taken 10 minutes after the accident was negative.

The safety representative arrived at the rig office, and Dombrowski was then taken to Willis-Knighton Work Kare, which Dombrowski asserted was chosen by the safety representative. Dombrowski gave a history at Work Kare of bending over to lift up the end of a piece of equipment when he felt a pop in his low back, right side more than the left, and radiation down his right leg. Dombrowski was diagnosed with a low back strain and right radicular symptoms. He was restricted to light duties at work, given pain medications, told to use ice and heat as needed for discomfort, and instructed to do daily back stretches.

Dombrowski claimed that after he left Work Kare, he was told by Patterson to return to the rig for the remainder of his shift. He also worked the next day doing light-duty work. Dombrowski was off work as normal the following week.

Dombrowski returned to Work Kare for a followup visit on June 2, and he was released to work on that date. It was recorded on his chart at Work Kare that he had improvement in his back pain symptoms and intermittent persistent numbness in his right foot. He had also stopped taking his pain medications for two to three days. The diagnosis was low back strain with right radicular symptoms, improved.

|4Dombrowski, who normally went to Dr. Forte’s office once a month, had been last seen at Dr. Forte’s office on May 20, 2009, for a medication review. He scheduled an appointment with Dr. Forte on June 4 because of the accident.

Patterson fired Dombrowski on June 16, 2009. The reason given for his termination was that he was off work because of a previous injury.

Dombrowski filed a disputed claim for compensation against Patterson and its insurer, Liberty Mutual Insurance Company. He also sought penalties and attorney fees.

In its supplemental and amended answer, Patterson pointed out that Dom-browski failed to tell Dr. Forte about going to the ER on May 25, 2009. Patterson contended that Dombrowski withheld mentioning this to Dr. Forte in order to obtain a favorable determination from him that his current complaints were related to his alleged accident at work. Patterson argued that this was a material misrepresentation sufficient under La. R.S. 23:1208 to warrant a forfeiture of all benefits.

The matter proceeded to trial, and the WCJ ruled that Dombrowski was temporarily and totally disabled from a work-related accident; was entitled to all reasonable and necessary medical treatment for his work-related back injury, including epidural steroid injections recommended by Dr. Forte; and was entitled to weekly benefits of $546 dating back to May 28, 2009. The WCJ also assessed penalties of $4,000 against Patterson and ordered it to pay attorney fees of $10,000. Patterson appealed. Dombrowski answered the appeal seeking additional attorney fees.

^DISCUSSION

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., 96-2840 (La.7/1/97), 696 So.2d 551. 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 the record establishes the finding is clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880 (La.1993). 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. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Forfeiture of benefits

Patterson first argues on appeal that the WCJ was manifestly erroneous in not finding that Dombrowski had committed fraud under La. R.S. 23:1208, which states, in part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

| fiLa. R.S. 23:1208 authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. All of these requirements must be present before a claimant can be penalized. Baker v. Stanley Evans Logging, 42,156 (La.App.2d Cir.6/20/07), 960 So.2d 351, writ denied, 2007-1817 (La.12/14/07), 970 So.2d 533; Slater v. Mid-South Extrusion, 43,343 (La.App.2d Cir.8/13/08), 989 So.2d 252. Because statutory forfeiture of benefits under La. R.S. 23:1208 is a harsh remedy, it must be strictly construed. Risk Management Services v. Ashley, 38,431 (La.App.2d Cir.5/14/04), 873 So.2d 942, writ denied, 2004-1481 (La.9/24/04), 882 So.2d 1138. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. An inadvertent and inconsequential false statement will not result in the forfeiture of benefits. Baker v. Stanley Evans Logging, supra; Slater v. Mid-South Extrusion, supra.

Patterson contends on appeal that Dom-browski’s misrepresentations were not limited to Dr. Forte, but also included what he disclosed or failed to disclose at Work Kare to support his claim. Patterson points out that in the medical history form at Work Kare, Dombrowski checked a “No” box for prior back injury. Although Patterson admits that Dombrowski acknowledged having a ruptured disc and a prior back injury on the next 17page of the medical history form, Patterson adds that Dombrowski did not list which doctor was treating him. Finally, Patterson points out that in the May 28 treatment memo from Work Kare, it is written that Dom-browski had similar injuries in the past that had resolved after surgeries.

We disagree with Patterson’s contentions. Nowhere in the Work Kare records is there any indication that Dombrowski was attempting to conceal or misrepresent his prior back problems. While he may have checked the “No” box when asked about prior back injuries on the medical history form, it is unclear why, if he intended to conceal his past back injuries, he would have acknowledged the prior back surgery and treatment for ruptured disc, as well as written on a subsequent page that he had missed work in the past because of a back injury. In addition, while Dombrowski did not name the doctor who performed the 2002 surgery, he listed the hospital in Thibodaux where it was performed.

Dombrowski was questioned at trial why the doctor at Work Kare wrote that similar symptoms experienced by Dombrowski in the past had resolved after his surgeries. Dombrowski replied that the doctor had asked him about his prior back surgeries, but Dombrowski did not know why the doctor wrote that his back complaints had resolved. Patterson contends this note in the Work Kare records is contradicted by Dombrowski’s medical history since Dr. Forte treated him on a monthly basis for his back condition after his last surgery in 2007. Dombrowski believed that his condition was improving prior to the accident, but that he was never completely well. His medical history showed that he sometimes exhibited significant but | stemporarv improvement after surgeries. For instance, he told Dr. Thomas Donner in December of 2002 that he had minimal leg symptoms and his back was considerably better following a lumbar laminectomy. However, he was again exhibiting pain in 2007.

The main thrust of Patterson’s fraud allegation is that Dombrowski’s failure to inform Dr. Forte of his May 25 ER treatment allowed Dr. Forte to relate the accident to his injury complaints. Patterson also contends that Dombrowski misled the doctor at Work Kare by not telling him about this ER visit.

Dombrowski testified that the reason he went to the ER was to be treated for back spasms. He received a Toradol injection and his condition improved. He was able to return to work as scheduled on May 27 to begin a seven-day shift. He testified that he had no trouble doing his job on May 27, even though, as he remarked, the first day of a shift is usually the hardest. He also had no trouble doing his job on May 28; he had worked about four hours before the accident.

Despite what the medical record from the ER shows, Dombrowski denied that he had had back complaints since May 22. He testified that he went to the ER as soon as the spasms started.

Dombrowski stated that he never told Dr. Forte about the ER visit because Dr. Forte did not ask him about it. He also never mentioned it because it involved only low back spasms, not symptoms related to his prior back and leg ailments such as numbness and burning sensation. He never 1 ¡¡associated the pain after the accident with the muscle spasms that prompted him to go to the ER. He also felt fine when he returned to work on May 27.

The WCJ’s decision to impose or deny forfeiture under La. R.S. 23:1208 is a factual finding which will not be disturbed on appeal absent manifest error. Brooks v. Madison Parish Service District Hospital, 41,957 (La.App.2d Cir.3/7/07), 954 So.2d 207, writ denied, 2007-0720 (La.5/18/07), 957 So.2d 155.

The WCJ found Dombrowski to be very credible and felt that Patterson failed to present the court with a false statement made by Dombrowski. The WCJ stated that the allegation of fraud had the “characteristics of a sham” and was not acceptable as the basis for a forfeiture of benefits.

We agree with the WCJ. The record does not show that Dombrowski ever made a false statement or representation in order to obtain benefits. His explanation for his failure to tell his physicians about the ER visit was reasonable. The WCJ was not clearly wrong in rejecting Patterson’s claim that Dombrowski committed fraud that necessitated a forfeiture of benefits.

Accident & Causation

Patterson further contends on appeal that the WCJ was manifestly erroneous in determining that Dombrowski had satisfied his burden of establishing the occurrence of a compensable accident and that his medical complaints were causally related to the accident.

A claimant in a workers’ compensation action must establish “personal injury by accident arising out of and in the course of his | inemployment.” La. R.S. 23:1081(A). An accident is “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). An employee may prove by his or her testimony alone that an unwitnessed accident occurred arising out of and in the course of employment if the employee can satisfy two elements: (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 accident. Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992).

A preexisting medical condition will not bar an employee from recovery if the employee establishes that the work-related accident aggravated, accelerated or combined with the condition to cause the disability for which compensation is claimed. Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689; Hatfield v. Amethyst Const., Inc., 43,588 (La.App.2d Cir.12/3/08), 999 So.2d 133, writ denied, 2008-2996 (La.2/13/09), 999 So.2d 1150. The preexisting condition is presumed to have been aggravated by the accident if the employee proves: (1) the disabling symptoms did not exist before the accident, (2) commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and (3) either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and the activation of the disabling condition. Peveto, supra.

| ] iDombrowski was examined by Dr. Thomas Donner on November 19, 2002, on a referral for lumbar disc surgery. Dom-browski’s chief complaint at the time was right lower extremity pain. He told Dr. Donner that he had a laminectomy in 1995 for right lower extremity pain that was identical to the pain he was experiencing in 2002. He also told Dr. Donner that he had recovered after the 1995 surgery to the point where he could return to work in a heavy-duty capacity, but had re-injured his back in 2002 while working in Indonesia. An MRI of the lumbar spine showed an acute disc herniation at L4-5 to the right of midline resulting in nerve root compression. Dr. Donner’s impression was right L5 radiculopathy.

Dr. Donner examined Dombrowski following a lumbar laminectomy the next month. Dombrowski reported that his leg symptoms were minimal, and that his back was considerably better.

Dr. Donner performed a surgical re-exploration of the prior laminectomy site on March 14, 2007. It was noted at the time of admission that Dombrowski was complaining only of right lower extremity pain. When Dr. Donner examined Dom-browski later that month, Dombrowski reported having a little bit of numbness in his leg and some very mild intermittent sciatica, but otherwise his leg felt markedly improved.

When Dr. Donner examined Dombrow-ski on April 23, 2007, he was without complaints, and stated that he felt quite well other than having a minimal ache in his back. Two months later, Dombrowski told Dr. Donner that he was doing well and had a little bit of achiness, but nothing that was | ^particularly severe. He reported that one pain pill a day kept his pain under control.

Dombrowski was examined by Dr. Michael Haydel on June 25, 2007. Dr. Hay-del is board certified in pain management. Dombrowski’s chief complaint was right hip pain with numbness. Dombrowski gave a history of a work-related accident in 2002 that caused burning and stabbing pain to the mid lower back that extended to the right lower extremity and right hip with associated numbness. Dr. Haydel noted that Dombrowski said he had nearly complete relief following surgery in August of 2004.

On July 31, 2007, Dombrowski was examined by Dr. Forte for the first time on a referral from Dr. Haydel. Dombrowski’s chief complaints were low back pain and right leg pain extending down the leg and into his foot. He said the leg pain was worse than the back pain. He also said the pain was constant, and he characterized it as numbness in the foot and burning pain. Dombrowski rated his pain as 6/10.

On that first visit, Dombrowski gave a lengthy history of back pain, right leg pain, and five prior lumbar surgeries. The surgeries occurred in 1992, twice in 2002, 2003, and in March of 2007. Dr. Forte’s impressions included low back pain with right lumbosacral radiculopathy.

After that first visit, Dombrowski was usually either examined by Dr. Forte or had a medication review at Louisiana Pain Care once a month. Initially, Dombrowski rated his pain in the range of 6/10 to 7/10. He was 1 lsalso taking Vicodin three to four times a day. In November of 2007, he began reporting that his leg pain was worse than his back pain.

For the medication review conducted on February 13, 2008, Dombrowski reported that his pain always interfered with general activity and sleep, and frequently interfered with his mood, walking ability, normal work routine, relationships, enjoyment of life, and appetite.

Dombrowski told Dr. Forte in April of 2008 that he felt his pain was under good control and that he was able to maintain an active lifestyle. Dombrowski rated his pain as 5/10. He rated his pain as 3/10 at a medication review the next month.

Dr. Forte was told by Dombrowski in July of 2008 that he had been doing better since his last visit. He was taking Vicodin less frequently, two to three times a day instead of three to four times, so Dr. Forte reduced his Vicodin dosage to twice a day with an occasional extra one for days when his pain was more severe. Dombrowski continued to complain of back pain and right leg pain, which were worse when he was active, but his medications allowed him to function at a higher level.

Dr. Forte noted in December of 2008 that the reduction in the Vicodin dosage appeared to be working for Dombrowski, who reported that he had good and bad days regarding his pain. Dombrowski rated his pain as 4/10.

Dombrowski told Dr. Forte in March of 2009 that Vicodin two to three times per day had significantly reduced his pain. Dombrowski presented at that time with a primary complaint of low back pain greater than leg pain. He rated his pain as 4/10. Dombrowski continued to __[i¡complain of low back and right lower extremity pain when he saw Dr. Forte the following month. He had ceased taking Neurotonin because he felt it did not significantly reduce his pain, but he was still taking one to three Vicodin pills per day. He rated his pain as 3/10.

Dombrowski had a medication review at Louisiana Pain Care on May 20, 2009, eight days before the accident. He rated his pain as 5/10. It was noted that his pain rarely interfered with his walking ability, normal work routine, and appetite. It was also noted that his pain frequently interfered with his general activity, mood, relationships, sleep, and enjoyment of life.

Dombrowski described his condition to the Work Kare doctor on May 28 as being similar to symptoms he had piior to a 2002 laminectomy around L4-5, as at that time he had some pain radiating down his right leg to his foot with some numbness and tingling that resolved after the laminecto-my.

Dr. Forte examined Dombrowski for the first time after the accident on June 4, 2009. Dombrowski gave Dr. Forte a history of the accident, stating that he was picking up something heavy when he felt a sharp pop in his back with sharp pain radiating into both buttocks and posterior thighs as well as worsening numbness and tingling that radiated down his right leg into the entire right foot. He also had some occasional tingling in the left posteii- or thigh. The pain had been fairly constant since its onset. Dombrowski reported that a shot of Toradol at Work Kai'e had not helped, and he had to take moi'e Vicodin pills than usual. He rated his current pain as 6/10. Dombrowski received a Toradol injection, and Dr. Forte changed his pain medication from Vicodin to the slightly stronger Lorcet. Dx*. | ^Forte’s impression was recent exacerbation of low back pain with light lumbo-sacral radiculopathy. He recommended a new lumbar MRI and possibly right L5 epidural steroid injections. Dr. Forte wrote a note that Dombrowski would be able to return to work on June 22.

An MRI of the lumbar spine taken on June 10 showed, among other findings, disc herniation at L4-5 toward the right, evidence of a laminectomy at L5 on the light, and postoperative changes to the right lateral spinal canal at L5-S1.

Dr. Foi'te next examined Dombrowski on June 17, 2009. He continued to complain of back pain and right leg pain with numbness extending into the right foot. Dombrowski reported that the pain was worse when he bent forward and picked up any object, and he rated his pain as 7/10. Dr. Forte’s impression was low back pain with lower extremity radiculopathy with MRI evidence of disc herniation at L4-5 on the right. Dr. Forte wanted to schedule Dombrowski for right L4 and L5 epidural steroid injections, and depending on his response, possibly doing a series of them. Dr. Forte wrote a note that Dom-browski was unable to return to work in his present condition, and that he would be evaluated again after the completion of his injections in a month. The procedure was cancelled when Patterson’s insurer would not authorize the treatment.

Dombrowski continued with basically the same complaints of back pain radiating down his right leg and numbness in his right foot in subsequent examinations by Dr. Forte. He consistently rated his pain in the range of 6/10 to 7/10. He reported that his pain not only worsened when he 1 ifibent forward and picked up any type of object, but also when he walked, stood in any one position for an extended period of time, or first arose from a seated position.

Although Dombrowski told Dr. Forte in January of 2010 that his low back and right leg pain was constant and he rated his pain as 6/10, he also thought his pain was slowly resolving back to normal. He told Dr. Forte that he recently exacerbated his pain while walking 2.5 miles.

When asked to describe the difference in his condition before and after the accident, Dombrowski replied that he had mild pain from time to time, but it was not constant, as severe, or with the numbness that he was experiencing at the time of trial. Although he was not completely well before the accident, he thought his condition was improving. He also felt his condition has been worse since the accident.

Dombrowski’s pain medication had been reduced prior to the accident. After the accident, he was prescribed the stronger Lorcet for his pain. Dr. Forte also recommended epidural steroid injections after the accident. It was hoped the injections would reduce his need for pain medications.

Dr. Forte performed musculoskeletal physical exams when he treated Dombrow-ski. For the exam on the last visit before the accident, Dr. Forte noted that flexion and extension were mildly positive for low back pain. The seated straight leg test was positive on the right for radicular complaints. Dombrowski had positive quadrant loading with rotation to the right. When the exam was performed on June 4, the seated straight leg test |17was again positive on the right. However, Dr. Forte also noted there was quite a bit of guarding with flexion and extension, and there was some lumbar paraspinous tenderness. Dr. Forte stated this guarding indicated that Dombrowski may have been in increased pain. Dr. Forte also noted that Dombrowski’s gait was stiff, and he stood slightly forward flexed.

The June 2009 MRI showed disc herniation at L4-5 to the right. Dr. Forte stated that it was possible that the disc had healed because of treatment, then had become reherniated, but there was no way for him to tell whether it was the original herniation or a reherniation.

Dr. Forte testified that because Dom-browski appeared to have some neurological changes, and certainly had a worsening of complaints, it was prudent to take him at his word that some sort of event had occurred to cause the changes in his condition.

Dombrowski provided a consistent description of the accident to his employer as well as to those providing medical treatment to him. Although he was suffering from a back condition prior to the accident, it obviously did not affect his ability to perform his heavy-duty job as he was given two promotions within a short period. He also agreed to work in a lower position on another rig instead of receiving unemployment compensation when his rig shut down. After the accident, he was unable to perform his job. The WCJ thought that Dombrowski gave very persuasive testimony regarding the occurrence of his injury. The WCJ also found Dombrowski to be very credible, and concluded that the medical evidence following the accident supported his contention of a disabling injury.

| lsBased upon our review of this record we cannot conclude that the WCJ was clearly wrong in finding that Dombrowski established the occurrence of a compensa-ble accident and that his medical complaints were causally related to the accident.

Penalties and attorney fees

Finally, Patterson argues on appeal that the WCJ was manifestly erroneous in assessing penalties and attorney fees against it. Dombrowski has answered the appeal seeking additional attorney fees for work performed on this appeal.

La. R.S. 28:1201(F) provides for the assessment of penalties and attorney fees based on an employer’s failure to provide payment of benefits unless the claim is reasonably controverted or the failure to pay results from conditions over which the employer had no control.

In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base the denial of benefits. Koenig v. Christus Schumpert Health System, 44,244 (La.App.2d Cir.5/13/09), 12 So.3d 1037; Howard v. Holyfield Construction, Inc., 38,728 (La.App.2d Cir.7/14/04), 878 So.2d 875, writ denied, 2004-2303 (La.1/7/05), 891 So.2d 684.

Penalties are stricti juris and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay. Young v. Christus Schumpert Medical Center, 39,593 (La.App.2d Cir.5/11/05), 902 So.2d 1180; Lee v. Schumpert, 36,733 (La.App.2d Cir.1/29/03), 836 So.2d 1214. Nevertheless, a WCJ has great discretion in 1 ^awarding or denying penalties and attorney fees. Nowlin v. Breck Const. Co., 30,622 (La.App.2d Cir.6/24/98), 715 So.2d 112.

At trial, Patterson’s counsel was asked whether Patterson was relying on Dom-browski’s failure to tell his doctors about the ER visit as the basis for its denial of his claim. Counsel replied that when the claim was originally denied, it was because the adjuster thought there could not have been an accident if Dombrowski was being treated as normal by Dr. Forte. It was not until later that Patterson and its insurer became aware of the controversial ER visit. However, regardless of the asserted basis for the denial, Patterson lacked a valid reason to deny the claim in light of Dombrowski’s work history with Patterson, his treatment history, and Dr. Forte’s deposition testimony. The WCJ did not abuse her discretion in assessing penalties totaling $4,000 or in awarding attorney fees of $10,000. We increase the award of attorney fees by $3,000 for defending this appeal.

CONCLUSION

At appellant’s costs, the judgment is modified to increase the award of attorney fees to $13,000. As modified, the judgment is AFFIRMED.

      . Dombrowski’s earliest medical records introduced in this proceeding relate back to 2002 and refer to a back surgery in 1995.

      . We recognize that Dombrowski told Dr. Haydel about a 2004 surgery.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Carlos Dewayne DRAYTON, Appellant.
    No. 46,191-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      Louisiana Appellate Project By James E. Beal, for Appellant.
    Carlos Dewayne Drayton, Pro se.
    Jerry L. Jones, District Attorney, Fred R. McGaha, Assistant District Attorney, for Appellee.
    Before STEWART, PEATROSS and DREW, JJ.
   STEWART, J.

_JjThe defendant, Carlos Dewayne Dray-ton, was convicted of possession of a firearm by a convicted felon and sentenced to 13 years’ imprisonment at hard labor, without benefits, and fined $1,000 plus court costs. The defendant now appeals. One attorney-filed assignment of error concerns his sentence, and four pro se assignments of error concern his initial detention by officers, double jeopardy, ineffective assistance of counsel, and sufficiency of the evidence. Finding no merit to these assignments of error, we affirm.

FACTS

On the evening of May 31, 2008, residents of Jason Drive in Monroe saw the defendant walking in the neighborhood while brandishing a pistol, talking loudly, cursing, and crying. A resident called 911, and five police officers were dispatched to the scene. Three of the officers approached the defendant with guns drawn and ordered him to the ground. After some hesitation, the defendant complied. The officers then cuffed and searched the defendant. They found a Glock handgun in the right rear pocket of the defendant’s pants. The gun was not loaded. After being read his rights, the defendant admitted that he was a convicted felon and knew he was not supposed to have a firearm.

By a bill of information filed on July 28, 2008, the state charged the defendant with terrorizing, a violation of La. R.S. 14:40.1, and possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. At a preliminary examination on October 6, 2008, the trial court found probable cause to hold the defendant for the firearm charge, but not for the terrorizing 12charge. However, the state maintained the terrorizing charge, and it was included in an amended bill of information filed on April 26, 2010, the day jury selection commenced for the trial.

Donna Jackson, the resident who called 911, testified that she was sitting outside of her kitchen door watching her grandchildren play when she saw the defendant, whom she knew as Carlos, walking by with a “big, black gun” while crying and cursing. Because she was afraid that someone would get shot, Jackson called 911 after making sure that her grandchildren were hiding out of the defendant’s sight. Her call was put through to the Monroe Police Department. Jackson related to the operator that the defendant was wearing shorts that were pulled down low and that he was not wearing a shirt. Jackson’s phone call to 911 and conversation with the police department operator were played for the jury.

Evonne Marie Colemen, another resident of Jason Drive, was also outside with Jackson when the defendant walked by with a gun while talking loudly and cursing. She said that he sat on the sidewalk and that she walked up to him to ask what was wrong with him. Coleman explained that the defendant was her kin. According to Coleman, the defendant put the gun on the ground beside him and said that he was tired of people messing with him. She described the defendant as talking “crazy” and “out of his head.” Coleman then took her grandchildren inside and went to get the defendant’s sister. Coleman testified that the defendant’s sister talked to him then went back across the street. The defendant, who still had the gun, got up and began walking again at which point the police arrived. Coleman | ¡¡testified that the defendant was wearing blue jeans and did not have on a shirt.

Jarod Desadier, Scott Martinez, Todd Vinson, Tim Antley, and Dean Baugh, the police officers dispatched to Jason Drive in response to Jackson’s 911 call, all testified. According to their testimony, Desadier, Martinez, and Vinson approached the defendant while Antley kept watch around the perimeter. Baugh arrived last and was the arresting officer. The officers had slightly different recollections of their encounter, particularly as to which officer retrieved the weapon from the defendant and what the defendant was wearing. The jury was made well aware of these inconsistencies through cross-examination.

Desadier testified that the defendant was wearing dark blue jean shorts and a shirt and that he sat on a chair when he saw the police approaching. When they ordered the defendant to get on the ground with his hands spread out in front of him, he gave them a “thousand-yard stare” but eventually complied. Desadier said the defendant was cuffed and then Vinson Mirandized him. They asked if they could search him and if he had a gun. He consented to be searched but did not respond to the gun query. Desadier testified that he found the gun in the defendant’s right back pocket. He stated that the shorts were big and baggy so that the gun could not be seen in the pocket. De-sadier said that he handed the gun to Vinson, who then gave it to Baugh.

Martinez’s testimony was substantially the same as Desadier’s. He testified that the defendant did not immediately get on the ground as ordered [4but instead stared at them and looked confused. He further testified that he and Desadier conducted the pat down and that Desadier retrieved the gun from the defendant’s pocket and handed it to Vinson. Differing from Desa-dier’s testimony, Martinez testified that the defendant was not wearing a shirt and that only Baugh Mirandized the defendant.

Vinson initially testified that he found the gun in the defendant’s pocket, but he later admitted that he did not specifically recall getting it out of the pocket. He knew that he did have his hands on the gun and that he handed it to Baugh and told him where it was found. He stated that Desadier could have retrieved the gun from the defendant’s pocket and handed it off to him. Vinson admitted he had some doubt as to how exactly the events played out but that he had no doubt that the gun was found on the defendant.

Antley described the situation as dynamic and stated that it was common for police officers to have different recollections of the details. He recalled that Desadier was holding the defendant on the ground and retrieved the gun from the defendant’s back pocket. Desadier then handed the gun off to Vinson so as not to break contact with the defendant.

Finally, Baugh testified that he arrived last at the scene. Antley was guarding the perimeter and the other three officers were ordering the defendant to get on the ground. Baugh only saw Vinson with the gun. His narrative report states that Vinson retrieved the gun from the defendant’s right rear pocket. Baugh testified that Vinson cleared the gun and then gave it to him. After locking the gun in the trunk of his patrol car, Baugh | ^Mirandized the defendant, who said he understood his rights. Though the defendant’s behavior had led the officers to suspect he might be under the influence of a drug such as “PCP,” Baugh did not find him to be impaired when speaking to him, and the defendant said he was not on “PCP.” The defendant admitted to Baugh that he was a convicted felon and that he knew he was not supposed to have a gun. He admitted that he had the gun but stated that he did not own it. Lastly, Baugh recalled that the defendant was wearing dark, baggy shorts and that he was not wearing a shirt.

The defense stipulated to the defendant’s prior felony conviction on March 13, 2003, for aggravated assault on a peace officer with a firearm.

After the state rested, the defendant’s sister, Latonya Drayton, testified. She stated that she had found the gun in a ditch and kept it at her house because she did not know what to do. On the day of her brother’s arrest, she had wrapped the gun in a pair of pants and put it on top of some laundry in a basket. She carried the basket with her outside to show the gun to some friends and ask them what she should do. While outside, she realized that she had left some food cooking so she hurried home. The pants with the gun fell out of the basket as she was running home. She claimed that the police got the gun from the pants on the ground, not from her brother.

The state then recalled Baugh on rebuttal. He testified that he spoke to Latonya and that she told him that the defendant likely got the gun from someone named Sam, whom he had been with earlier that day. She told him that the defendant had been crying and walking around with the gun and | fithat she had tried to get him to give it to her. She also thought that he might be on “PCP.” Desadier was also recalled to affirm that he retrieved the gun from the defendant’s back pocket.

The jury returned a verdict of guilty as charged for possession of a firearm by a convicted felon and not guilty for the terrorizing charge.

At the sentencing hearing, the trial court observed that this was the defendant’s second felony conviction; his first was the March 2003 conviction for aggravated assault on a peace officer with a firearm. The trial court then reviewed the defendant’s extensive criminal history, which included a litany of offenses in several jurisdictions. The trial court noted that the defendant had been convicted for offenses that could be considered felonies but were pled down to misdemeanors. These included possession of cocaine in 1994, aggravated battery with a gun in 1995, cruelty to a juvenile and child neglect in 1998, and aggravated battery in 2006. Additionally, the trial court reviewed the defendant’s social history set forth in the presentence investigation report and noted that he had been expelled from high school, had not obtained a GED, had four children, and had not married any of their mothers. The trial court also reviewed the La. C. Cr. P. art. 894.1 factors, and found neither the aggravating factors nor the mitigating factors applicable. However, the trial court did find an undue risk that the defendant would commit another crime if given a suspended sentence or probation, that he is in need of correctional treatment in a custodial environment, and that a lesser sentence would deprecate the seriousness of the crime. Considering all the information before it, ^particularly the defendant’s extensive criminal history, the trial court sentenced the defendant to 13 years at hard labor without benefit of probation, parole, or suspension of sentence, but with credit for time served. The defendant was also fined $1,000 and ordered to pay court costs. No motion to reconsider was filed. This appeal followed.

DISCUSSION

Sufficiency of the Evidence

In a pro se assignment of error, the defendant argues that the officers were not credible in their testimony. He asserts that there were inconsistencies in their testimony and between their testimony and the narrative report prepared by Baugh. This assignment of error challenges the sufficiency of the evidence.

In reviewing a conviction for sufficiency of the evidence, an appellate court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This standard is legislatively embodied in La. C. Cr. P. art. 821, and it does not allow the appellate court to substitute its own appreciation of the evidence for that of the fact-finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. |s Instead, we accord great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753.

To convict of possession of a firearm by a convicted felon, the state must prove: (1) the possession of the firearm; (2) a previous felony conviction; (3) absence of the ten-year statutory period of limitation; and (4) general intent to commit the offense. La. R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983); State v. Robert, 42,036 (La.App.2d Cir.5/9/07), 956 So.2d 750. The general intent to commit the offense may be proved through the actual or constructive possession of the firearm. State v. Johnson, 2003-1228 (La.4/14/04), 870 So.2d 995. Whether the proof is sufficient to establish possession of the firearm turns on the facts of each case. Further, guilty knowledge may be inferred from the circumstances of the transaction and proved by direct or circumstantial evidence. Id.

The state, through the testimony presented and the defendant’s stipulation to his prior felony conviction, proved the requisite elements for possession of a firearm by a convicted felon. Though the testimony of the five officers differed somewhat as to the details of the defendant’s clothing, or lack thereof, and as to which officer took what action during the stop and arrest, they were all consistent in testifying that the firearm was found on lathe defendant and removed from his back pocket. Further, defense counsel did a thorough job of probing the inconsistencies and making the jury aware that the officers’ recollection of the events was imperfect. Additionally, two independent witnesses, Jackson and Colemen, testified that the defendant had a firearm as he walked through the neighborhood while cursing and at times crying. Their testimony placing the gun in the defendant’s possession contradicted the implausible story told by the defendant’s sister in her testimony. The evidence against the defendant was overwhelming, and the jury was within its province to conclude that the defendant was actually in possession of a firearm.

it. This assignment of error is without mer-

Fourth Amendment Violation

In this pro se assignment of error, the defendant argues that the arresting officers violated his rights under the Fourth Amendment to the United States Constitution when they arrested him without any reasonable belief that he was engaged in criminal activity. His specific complaint is that the caller never stated that a crime was taking place, thus the police had no probable cause to enter private property with their guns drawn and without confirming his identity or conducting a field interview.

Because the defendant did not file a motion to suppress the evidence seized from him, he is precluded from raising this issue for the first time on appeal. La. C. Cr. P. arts. 703(F) and 841(A). Moreover, there is no merit to his motion. The officers’ actions were warranted pursuant to La. C. Cr. P. art. 215.1, which provides, in part:

ImA. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.
C. If the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.

The record shows that the responding officers had been told that the defendant was walking through the neighborhood while talking loudly, cursing, and brandishing a pistol. His behavior alarmed residents who observed him, caused them to fear for the safety of the children who were playing outside, and prompted a 911 call. Under these facts, the officers acted well within their authority when they stopped the defendant and searched him for a weapon. After finding the firearm in the defendant’s back pocket, the officers learned from the defendant that he was a convicted felon who was not legally entitled to possess a firearm. Accordingly, the defendant’s detention and subsequent arrest was conducted in accordance with law.

This assignment of error lacks merit.

Double Jeopardy

In this pro se assignment of error, the defendant argues that he was subjected to double jeopardy by the state’s decision to maintain the terrorizing charge against him after the trial court found no probable cause | nto hold him on that charge. He also argues that he could not be convicted for being a felon in possession of a firearm because he received a first-offender pardon for the felony underlying his conviction.

Though the preliminary examination resulted in the trial court finding no probable cause to hold the defendant on the terrorizing charge, the trial court’s finding is not an acquittal for purposes of double jeopardy. As explained in State v. Sterling, 376 So.2d 103 (La.1979), the finding of no probable cause after a preliminary examination merely releases the defendant from custody or bail for that charge but does not determine the validity of the charge or preclude the filing of an indictment or bill of information against him for the same offense. Because the trial court’s finding at the preliminary examination had no implications for a double jeopardy analysis, the defendant was not wrongly tried for the terrorizing charge, of which he was acquitted.

As to the defendant’s argument regarding his first-offender pardon, the law is clear that such a pardon does not serve as a defense to prosecution for a violation of La. R.S. 14:95.1. See State v. Wiggins, 432 So.2d 234 (La.1983); State v. West, 33,133 (La.App.2d cir.3/1/00), 754 So.2d 408.

This assignment lacks merit.

Ineffective Assistance of Counsel

In this last pro se assignment of error, the defendant complains that his attorneys did not conduct a full investigation. This raises the issue of ineffective assistance of counsel. Such claims are better raised in an application for post-conviction relief in the trial court where there is an | ^opportunity for a full eviden-tiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied, 2007-2190 (La.4/4/08), 978 So.2d 325. Because we cannot address the issue presented on the record before us, this assignment is deferred to post-conviction proceedings, if any.

Sentencing

Appellate counsel argues that the trial court improperly considered, as an aggravating factor, the defendant’s prior felony conviction for aggravated assault on a peace officer. Counsel asserts that the prior felony was an element of the crime for which the defendant was being sentenced and so should not have been considered as a separate factor in sentencing. Excessiveness of the sentence is also argued.

Because the record does not show that the defendant filed a motion to reconsider the sentence, La. C. Cr. P. art. 881.1, appellate review is limited to the bare claim that the sentence is constitutionally excessive. State v. Martorana, 44,863 (La.App.2d Cir.10/28/09), 27 So.3d 949, writ denied 2009-2656 (La.5/28/10), 36 So.3d 246. A sentence is constitutionally excessive if it is illegal, grossly disproportionate to the severity of the offense, shocking to the sense of justice, and nothing more than a purposeless and needless infliction of pain and suffering. See State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Lobato, 603 So.2d 739 (La.1992); and State v. Livingston, 39,390 (La.App.2d Cir.4/6/05), 899 So.2d 733.

| iSThe trial court has broad discretion to sentence within the statutory guidelines. Absent a showing of a manifest abuse of that discretion, a sentence will not be found excessive on appeal. State v. Guzman, 1999-1753 (La.05/16/00), 769 So.2d 1158; Livingston, supra.

Possession of a firearm by a convicted felon is punishable by imprisonment at hard labor for not less than 10 years nor more than 20 years without benefit of probation, parole, or suspension of sentence. La. R.S. 14:95.1(B). The defendant’s 13-year sentence is slightly above the statutory minimum. Given his remarkably extensive criminal history, that has spanned his adult years, the sentence cannot be deemed excessive. Moreover, the defendant’s failure to file a motion to reconsider the sentence precludes consideration of his claim that the trial court should not have considered the underlying felony conviction as an aggravating factor. Nevertheless, we observe that the trial court considered all of the defendant’s extensive criminal history and did not appear to consider the underlying felony to be an aggravating factor for sentencing. Even if this claim had been properly presented, it would lack merit.

CONCLUSION

For the reasons stated, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: WILLIAMS, J. BROWN, Chief Judge,

text:
    Claudine Mason McCoy DELANEY, Plaintiff-Appellant v. Mack Allen McCOY, Sr., Defendant-Appellee.
    No. 46,103-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      Sean D. Miller, Charles T. Phillips, II, Shreveport, LA, for Appellant.
    James L. Fortson, Jr., Shreveport, LA, for Appellee.
    Before BROWN, WILLIAMS and LOLLEY, JJ.
   WILLIAMS, J.

liThe plaintiff, Claudine McCoy Delaney, appeals a judgment in favor of the defendant, Mack McCoy. The district court sustained the defendant’s exception of res judicata, finding that the court in the prior proceedings had determined that the retirement benefits were not a community asset, and that the parties’ community property settlement agreement was a compromise of all claims against the former community regime. For the following reasons, we reverse and remand for further proceedings.

FACTS

The parties were married in November 1973. During the marriage, Mack McCoy (“Mack”) was employed by the Shreveport Fire Department. In June 1979, Mack filed a petition for separation. A judgment of separation was rendered terminating the parties’ community property regime as of June 27, 1979. In September 1979, Claudine McCoy Delaney (“Claudine”) filed a petition for settlement of community property. After a trial, the court rendered judgment in open court in December 1979 listing the community assets and ordering partition by licitation. On January 16, 1980, the parties signed a “Community Property Settlement,” which divided the community assets among the parties. Neither the court’s judgment nor the parties’ settlement referred to any retirement benefits. The settlement agreement apparently was not filed in the suit record of docket #24,395. On January 29, 1980, upon joint motion of the parties, the trial court signed an order dismissing the case with prejudice.

In January 2008, 28 years later, Mack retired and began receiving his pension benefits. In February 2009, the plaintiff, Claudine, filed a petition | ato partition community property, along with a Detailed Descriptive List. The defendant, Mack, filed exceptions of res judicata, no cause and no right of action. The district court denied the exception of res judicata, finding that the thing demanded in 1979 was not the same as that of the present action, because the defendant’s retirement benefits could not have been litigated before his retirement. The defendant filed a motion for rehearing on the exception and attached a copy of the 1980 community property settlement to his memorandum.

In December 2009, the district court rendered judgment sustaining the defendant’s exception of res judicata. The court issued written reasons for judgment, finding that the court in the prior proceedings had determined that the retirement benefits were not a community asset, because the prior judgment did not list the defendant’s retirement benefits as community property. In addition, the court found that the parties’ written community property agreement was a settlement of all of their claims against the former community. The court denied defendant’s exceptions of no right and no cause of action. The plaintiff appeals the judgment.

DISCUSSION

The plaintiff contends the district court erred in granting the exception of res judi-cata. In several assignments of error, the plaintiff argues that ±he district court incorrectly found that the issue of retirement benefits had been previously adjudicated, based upon the omission of such benefits from the list of community assets in the prior judgment and the community property settlement signed by the parties.

|3The burden of proof is on the party pleading the exception to establish the essential facts to sustain the plea of res judicata. Bond v. Bond, 35,971 (La.App.2d Cir.4/3/02), 813 So.2d 1148. When a litigant interposes a plea of res judicata, the court must examine not only the pleadings, but the entire record in the first suit to determine whether the particular form of the relief sought in the second suit was actually ruled upon. Louisiana Business College v. Crump, 474 So.2d 1366 (La.App. 2d Cir.1985).

In the present case, the district court mentioned the record of the previous proceedings in granting the exception of res judicata. However, neither the record of the first lawsuit nor the resulting judgment was introduced into evidence at the hearings held in April and October 2009. After the appeal was filed, this court issued an order giving the parties an opportunity to comment on this omission. Delaney v. McCoy, 46,103 (La.App.2d Cir.10/28/10). In response, neither party could specify a place in this record where the prior suit record or judgment had been actually introduced into evidence. Additionally, the record pages that would have listed any exhibits filed into evidence contained the notation “(NONE)” for each of the hearings in the district court.

Nor does this record show that either party introduced into evidence the community property settlement, which the parties purportedly signed in 1980. There was no discussion of this settlement at the April 2009 hearing. Subsequently, at the hearing on defendant’s motion for rehearing of the exception, before listening to any argument, the court immediately stated it Rwould “upset the hearing without refixing” and instructed the parties’ counsel to submit written memoranda summarizing their arguments, after which the court would take the matter under advisement. Although the defendant had attached a copy of the community property settlement to his memorandum filed in support of his motion for rehearing, this court cannot consider an exhibit filed in the record as an attachment to a memorandum in determining the issues on appeal; exhibits which were not filed into evidence in the trial court are not properly part of the record on appeal. Reed v. Peoples State Bank of Many, 36,531 (La.App.2d Cir.3/5/03), 839 So.2d 955; Union Planters Bank v. Commercial Capital Holding Corporation, 04-0871 (La.App. 1st Cir.3/24/05), 907 So.2d 129.

Moreover, there is no provision in the law for this court to take judicial notice of a suit record from another court. Bond, supra; Louisiana Business College, supra; Union Planters Bank, supra. To the contrary, U.R.C.A. Rule 2-1.7 expressly provides that no record of another case (or prior record in the same titled and numbered case) shall be included in the record, unless such other record has been introduced in evidence at trial in the case on appeal. Consequently, it was incumbent upon the defendant, as the party pleading the exception, to introduce into evidence at the hearing in district court the suit record for docket # 24,395, the prior judgment and the community property settlement. By failing to introduce the requisite documentary evidence, the defendant did not meet his burden of proof on the exception.

|sBased upon the evidence presented, the record before this court contains no proof demonstrating that this matter has been previously adjudicated. Accordingly, we must reverse the judgment sustaining the exception of res judicata and remand this matter for further proceedings. The appellee filed a motion to supplement the appellate record with copies of a motion to dismiss and an order of dismissal. Because the documents offered were not introduced into evidence in the district court, the appellee’s motion to supplement the appellate record is denied.

CONCLUSION

For the foregoing reasons, the district court’s judgment sustaining the exception of res judicata is reversed and this matter is remanded for further proceedings consistent with this opinion. The appellee’s motion to supplement the appellate record is hereby denied. Costs of this appeal are assessed to the appellee, Mack McCoy.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS; MOTION DENIED.

BROWN, Chief Judge, concurs with written reasons.

BROWN, Chief Judge,

concurs.

|, Both parties as well as the trial court explicitly referred to the prior record. Obviously that record was used and at least tacitly introduced into evidence. This court should allow the motion to supplement the appellate record with the record of the prior district court case.