author: AMY, Judge.

text:
    Dustin RUSSELL v. H & H METAL CONTRACTORS, INC., et al.
    No. 11-27.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.

      H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelou-sas, LA, for Defendants/Appellants, H & H Metal Contractors, Inc., Bridgefield Casualty Insurance Company.
    Gregory P. Mareeaux, Lake Charles, LA, for Plaintiff/Appellee, Dustin Russell.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR and MARC T. AMY, Judges.
   AMY, Judge.

|! Finding that the claimant had suffered a work-related compensable injury and that the employer had inappropriately terminated benefits, the workers’ compensation judge awarded indemnity benefits, medical expenses, penalties, and attorney fees. The employer appeals. For the following reasons, we affirm, as amended. We award the claimant attorney fees for work performed on appeal.

Factual and Procedural Background

The employer, H & H Metal Contractors, Inc., is in the business of erecting metal buildings and sheds. The claimant, Dustin Russell, was employed by H & H as a helper. The facts of the accident are not in dispute. Russell and his co-worker, Jay Henry, were at one of H & H’s work sites on May 13, 2009, installing insulation. Russell explained that while standing on the building’s frame, he would drop a length of foil-backed insulation to Henry, who would catch the end of the insulation and “stick” it to the building’s frame. While the two were working in this manner, a gust of wind caught a piece of insulation and blew it into a nearby power line. Russell was shocked, fell from the building, and was unconscious for some time. Henry called emergency services, and Russell was taken to Lake Charles Memorial Hospital. Russell was diagnosed with compression fractures to his T-12 and L-l vertebrae.

A drug screen performed while Russell was at the hospital returned positive results for both marijuana and opiates. Nonetheless, H & H’s workers’ compensation insurer, Bridgefield Casualty Insurance Company, provided indemnity and medical benefits to Russell. During that time, Russell saw three orthopedists. Bridgefield claimed that it allowed Russell to switch doctors, despite the existence of signed “Choice of Physician” forms, due to alleged conflicts between Russell and his first two doctors.

| ¡After almost a year, Bridgefield terminated Russell’s indemnity and medical benefits. Bridgefield attributed the termination to Russell’s “doctor shopping,” “untruthfulness,” and “mental instability.” Bridgefield also argued that the positive result of the drug screen gave it ample reason to terminate Russell’s benefits. Bridgefield contested whether Russell had been re-released to light duty after his third orthopedist, Dr. Clark Gunderson, put him on “no work” status.

After his benefits were terminated, Russell filed this claim, alleging that his indemnity rate was incorrectly calculated; that his indemnity benefits had been inappropriately terminated; that medical treatment was not authorized; that he was denied his choice of physician; and that there was a dispute as to his disability status. He additionally sought penalties, attorney fees, and legal interest.

At the hearing, the parties stipulated that Russell suffered a work-related injury. The workers’ compensation judge found that Russell suffered a compensable injury on May 13, 2009, and that he has been temporarily and totally disabled from that date. The workers’ compensation judge awarded: indemnity benefits in the amount of $333.33 per week from April 15, 2010 forward; pain management as prescribed by Dr. Gunderson; penalties for failure to pay the correct indemnity payments in the amount of $8,000.00; penalties for terminating benefits in the amount of $8,000.00; and attorney fees in the amount of $18,750.00.

H & H and Bridgefield appeal, asserting the following assignments of error:

1. The trial court erred in admitting Dr. Gunderson’s July 9, 2010 letter, which led to a manifestly erroneous finding that he has been disabled since the date of his workplace accident.
2. The trial court erred in awarding penalties and attorney’s fees in light of Mr. Russell’s positive drug test results.
|s3. Alternatively, if penalties were properly awarded despite Mr. Russell’s positive drug test results, the trial court erred in awarding $16,000.00 in penalties.

The claimant filed an answer to the appeal, seeking attorney fees for work done on appeal.

Discussion

First Assignment of Error (Determination of Compensability)

In their first assignment of error, the appellants (hereinafter “H & H”) assert that the workers’ compensation judge erred in admitting into evidence a letter from Dr. Gunderson, dated July 9, 2010, and that, because of that error, erred in finding that Russell was temporarily and totally disabled (TTD) from the date of the accident.

Evidentiary Issues

The hearing related to a workers’ compensation claim is governed by La.R.S. 23:1317, which states, in relevant part:

The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence.... The workers’ compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be.

“A trial judge is vested with wide discretion in conducting trials in a manner which he or she determines to be consistent with the fair administration of justice.” Lemoine v. Hessmer Nursing Home, 94-886, p. 11 (La.App. 3 Cir. 3/1/95), 651 So.2d 444, 451. When there is a “reasonable question” regarding the admissibility of evidence, admission of the evidence is favored. Id. If the reason for seeking the exclusion of the evidence is surprise, the trial court may grant a “constructive continuance,” so that the party seeking exclusion may avoid prejudice by preparing or obtaining rebuttal evidence. Id.

| ^Louisiana Code of Civil Procedure Article 1551 provides for pretrial orders and “gives a court wide discretion to provide for ... pretrial order[s] and to insure that the terms of the pretrial order are enforced.” Vernon v. Wade Correctional Inst., 26,053, p. 5 (La.App. 2 Cir. 8/19/94), 642 So.2d 684, 688. Although the trial court has wide discretion in determining whether to modify a pretrial order, it must be tempered by “the principle that it must be exercised to prevent substantial injustice to the parties who have relied on the pretrial rulings or agreements and structured the preparation and presentation of their cases accordingly.” Id. at 689. Notably, one of the bases for pretrial procedure is the avoidance of surprise. Id.

In Lemoine, 651 So.2d 444, a panel of this court addressed, in the context of a workers’ compensation case, the admissibility of a “Clinic Note” provided to the employer the afternoon before trial. The employer objected to the introduction of the note, arguing that the late notice was prejudicial, that it precluded the employer from deposing the doctor and/or conferring with other medical experts regarding the doctors’ conclusions, and that the late notice did not comport with the notice rules then in effect. The plaintiff contended that the note was listed on an amended pretrial order submitted a week before trial and that the plaintiff also received the report the day before trial. Id.

The note at issue in Lemoine was admitted for the limited purpose of showing that surgery was scheduled. The workers’ compensation judge left the record open for the 'doctor’s deposition and/or other supplemental reports and depositions to be submitted, and allowed the employer an opportunity to obtain an independent medical examination. Lemoine, 651 So.2d 444. The employer unsuccessfully attempted to | ^schedule an independent medical examination and ultimately submitted no additional evidence into the record.

On appeal, this court found that, given the additional safeguards provided by the workers’ compensation judge, that there was no error in the admission of the note for the limited purpose of showing that surgery was scheduled. Lemoine, 651 So.2d 444. However, the court found that, after admitting the note for a limited purpose, the workers’ compensation judge went on to rely on the substantive portions of the note, including medical conclusions, in rendering judgment. The court noted that “the [employer] was unaware the report would be considered so extensively by the hearing officer until after the decision was rendered,” and that this denied the employer “an opportunity to prepare an adequate defense.” Id. at 451.

The hearing in this case began on July 14, 2010. Pretrial statements were filed on June 22, 2010 and June 25, 2010, respectively. The transcript indicates that H & H was provided with a copy of Dr. Gunderson’s July 9, 2010 letter on July 13, 2010. At the hearing, H & H’s counsel objected to the admission of the letter, alleging that:

[i]t changes things that aren’t found in his prior records and basically apparently is what this is. There was something posed to Dr. Gunderson and he responded to it, which is in a deposition that would be the direct examination. Well, I haven’t been provided an opportunity to cross Dr. Gunderson on some of these things; and just for instance, one thing he talks about this guy being disabled the whole time he treated him. His medical records don’t show that. His medical records show that on his first visit, November 5th or 4th of 2009, he has a sheet that says patient is disabled. Okay, he sees him in December, twice in March, never says that he is disabled. And now I get a report the day before trial saying he was disabled the whole time he was treating him, so there’s a change in what his records say, and I haven’t been given the opportunity to cross examine this guy about it....

Russell’s attorney contended that Dr. James Perry and Dr. Gidman were H & H’s choice of physician and argued that, because the depositions of Dr. Perry and Dr. | fiGidman had been taken after the discovery deadline, he requested a report from Dr. Gunderson “to give me his findings and opinions.... ” H & H and Russell disputed whether Dr. Perry and Dr. Gidman were Russell’s choice of physician. The workers’ compensation judge admitted the letter over objection, stating that “the only way to flesh it out is to put it in, flesh it out, so I will let this in. I will note your objection, but I will let it in ... understanding what you just said.”

Russell’s pretrial statement, filed June 22, 2010, lists Dr. Gunderson and “any health care provider” as a potential witness and “[a]ll medical records” as potential exhibits. Dr. Gunderson is not listed as a witness whose deposition needed to be taken. H & H’s pretrial statement, filed June 25, 2010, lists Dr. Gunderson’s medical records as potential exhibits and includes Dr. Gunderson as a potential witness. H & H lists Dr. Perry and Dr. Gidman as witnesses whose deposition needed to be taken. No motions, written or oral, were filed seeking to amend the pretrial statements.

Neither Dr. Perry, Dr. Gidman, nor Dr. Gunderson was called as a witness at the hearing. Copies of Dr. Perry and Dr. Gidman’s depositions were submitted into evidence. There is no evidence that Dr. Gunderson’s deposition was taken.

Dr. Gunderson’s July 9, 2010 letter states in part:

The patient returned on 3-31-10. He continued to have thoracolumbar pain with pain radiating into his right leg. With any activity he developed increased pain. He remained neurologically intact. He was walking normally, and could bend over so that his fingertips were 6 inches from the floor. I discussed with the patient that he would probably need vocational rehabilitation with job modifications. I advised him to increase his activities and return in 2 months. Arrangements were subsequently made for the patient to be seen in pain management with Dr. Dan Hodges in Lafayette. To this point the patient remains totally disabled. I would anticipate that he would need 17a functional capacity evaluation in an effort to return him to some type of gainful employment. He will have an impairment rating of 10% to the body as a whole.

Dr. Gunderson’s medical records were submitted into evidence. A review of those records indicates that Russell’s last visit with Dr. Gunderson was on March 81, 2010. The notes from that visit, which are handwritten and partially illegible, support H & H counsel’s contention that the letter “changes things that aren’t found in his prior records,” as the notes do not indicate that Russell has a 10% impairment rating. Neither do they indicate that he needs a functional capacity evaluation. “No Duty” is circled next to “Current Work Status” on the notes.

From a review of the record, it does not appear that the workers’ compensation judge revisited the issue of whether Dr. Perry and Dr. Gidman were Russell’s choice of physician. The workers’ compensation judge delivered oral reasons for ruling, stating, in relevant part:

The treating physician, the one who had the most frequent and recent contact with the injured worker in this case, Dr. Gunderson, is convinced that Mr. Russell is in fact disabled at this point and needs a functional evaluation exam to help decipher precisely what type of employment he can perform. Dr. Gun-derson suggests an impairment rating of ten percent, as I recall.

The workers’ compensation judge went on to find, in part, that Russell was temporarily and totally disabled from the date of the accident.

We find that it was an abuse of discretion for the workers’ compensation judge to admit the July 9, 2010 letter from Dr. Gunderson. Although Russell’s pretrial statement lists “medical records” as potential evidence, it does not list substan-five | sletter updates, which the employer’s characterization likened to a medical report, nor does it indicate that Dr. Gunder-son’s deposition needed tó be taken. The record does not contain any indication that an amended pretrial statement was filed.

The letter was provided to H & H one day before the hearing and not only transcribes but expounds on the information provided in Dr. Gunderson’s medical records. The letter was not admitted for any limited purpose and was relied upon by the workers’ compensation judge in rendering judgment. Further, although H & H did not request a continuance in order to depose Dr. Gunderson or to prepare appropriate rebuttal evidence, the workers’ compensation judge did not order other palliative measures that would protect H & H’s rights, e.g., holding the record open to allow H & H to submit Dr. Gunderson’s deposition or other rebuttal evidence.

When the trial court makes a consequential but erroneous ruling and the appellate court has a complete record, it is not necessary to remand the case for a new trial. Cangelosi v. Our Lady of the Lake Reg’l Med. Ctr., 564 So.2d 654 (La. 1989) (citing Gonzales v. Xerox Carp., 254 La. 182, 320 So.2d 163 (1975)). Instead, the appellate court can render a judgment based on an independent review of the record without according any weight to the judgment of the trial court. Id.

Under these circumstances, we find that the admission of Dr. Gunderson’s July 9, 2010 letter was an erroneous ruling and, therefore, we do not consider the letter as evidence. However, in order to warrant a de novo review, the error must be also be “serious” and “consequential.” See Cangelosi, 564 So.2d 654. As detailed below, we find that the workers’ compensation judge’s ruling that Russell was disabled since the accident is amply supported by the remainder of the record. We therefore decline to render judgment based on an independent review of the record. See Quinn v. Vidalia Apparel, 10-712 (La. App. 3 Cir. 12/8/10), 54 So.3d 123 (finding a de novo review was not warranted where a workers’ compensation judge applied an incorrect standard with regard to attorney fees and penalties); Boothe v. Roofing Supply, Inc. Of Monroe, 39,122 (La.App. 2 Cir. 1/20/05), 893 So.2d 123 (finding that, even though the workers’ compensation judge referred to an incorrect standard in finding that an insurer did not reasonably controvert the employee’s claim, there was no manifest error or abuse of discretion in the judge’s ruling).

Entitlement to TTD Benefits

H & H’s first assignment also contends that, due to the error in admitting Dr. Gunderson’s July 9, 2010 letter, the workers’ compensation judge erred in finding that Russell was disabled since the date of his accident. As discussed above, the workers’ compensation judge erred in admitting Dr. Gunderson’s letter. However, we find that there is ample other evidence in the record to support the workers’ compensation judge’s ruling that Russell was disabled since the date of his accident. We note that a workers’ compensation judge’s factual findings, including the credibility of the employee’s testimony and whether the employee met his burden of proof, are not to be disturbed on appeal absent manifest error. Rivers v. Bo Ezernack Hauling Contractor, Inc., 09-991 (La.App. 3 Cir. 3/10/10), 32 So.3d 1091, writ denied, 10-807 (La.6/4/10), 38 So.3d 309.

In order to qualify for TTD benefits, Russell was required to meet the burden of proof required in La.R.S. 23:1221(l)(c). It states, in relevant part:

[Cjompensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment[.]

ImThe parties stipulated that Russell suffered a work-related injury. Russell’s medical records and testimony indicate: that, as a result of the fall, he suffered a “mild” compression fracture to his T-12 and L-l vertebrae; that he had electrical burns on his left and right thumbs; that he suffered from spasms and headaches; and that he had heart palpitations as a result of the shock. Dr. Perry and Dr. Gidman’s deposition testimony indicated that, although they both considered Russell’s fractures to be healed, Russell would need physical therapy before he could return to work. Dr. Gidman released Russell to light duty in September 2009, but was unable to reassess Russell because he subsequently discharged Russell from his care.

Russell testified that, when he was released to light duty, he suffered from severe muscle spasms, pain, and headaches. He explained that he attempted to work for two weeks of light duty, but that there was not much light duty available due to the nature of H & H’s business. According to Russell, he swept the floors and “milked the clock.” Russell contended that he was sent home every day after a few hours because there wasn’t enough light duty work. Russell also testified that on at least one occasion, the foreman made him carry heavy objects and told him he would be fired if he didn’t comply. Russell was laid off on October 16, 2009, due to a lack of light duty work.

Russell began treatment with Dr. Gun-derson who, notably, placed Russell on “no work” status. His records do not indicate that he revisited the issue. As Russell’s last treating physician, Dr. Gunderson was most familiar with Russell’s physical condition. The notes from Russell’s last visit with Dr. Gunderson indicate that In Russell’s current work status was “no duty.” Although Dr. Perry and Dr. Gid-man opined that they expected Russell’s injury to resolve within six to nine months from the date of the accident, Dr. Gidman in particular testified that he could not determine when Russell would be fully recovered.

The workers’ compensation judge, in his reasons for ruling, noted that Dr. Gunder-son “had the most frequent and recent contact with the injured worker.” A review of Dr. Gunderson’s records supports the workers’ compensation judge’s conclusion that Russell remained disabled under the provisions of La.R.S. 23:1221(1). Thus, the workers’ compensation judge did not err in finding that Russell was disabled from the time of the accident.

Intoxication

H & H contended at the hearing that, even if Russell was disabled due to the accident, his intoxication at the time of the accident precludes his recovery for workers’ compensation benefits. Louisiana Revised Statutes 23:1081 prohibits compensation for injuries caused by the injured employee’s intoxication at the time of the injury; once the employer meets its burden of proving that the claimant was intoxicated at the time of the injury, the burden of proof shifts to the claimant to prove that the intoxication was not a contributing cause of the accident. See Negri v. Authement Const., Inc., 09-584 (La.App. 4 Cir. 10/14/09), 28 So.3d 1071, writ denied, 10-848 (La.6/18/10), 38 So.3d 327.

On this issue, H & H submitted into evidence its drug testing policy, a release signed by Russell concerning the disclosure of drug test results, a random drug screen performed on March 12, 2009, and a urine drug screen performed on May 13, 2009. The March 12, 2009 drug screen indicated negative results. The May 13, 2009 drug | |2screen was performed at Lake Charles Memorial Hospital after Russell was admitted post-accident. It indicates “positive” results for opiates and marijuana.

Even if, based on this evidence, Russell was intoxicated at the time of the accident, the testimony at trial indicates that the claimant adequately satisfied his burden that the accident was not of the nature that any intoxication was a contributing cause. La.R.S. 23:1081(12). See also Savoy v. Cecil Perry Imp. Co., 96-889 (La. App. 3 Cir. 2/5/97), 691 So.2d 692. Jay Henry, Russell’s supervisor, testified that the accident was a “freak accident” that happened in a “split second.” He further testified that Russell did not appear intoxicated at the time of the accident and that there was no way that Russell could have prevented the accident. The workers’ compensation judge, in his reasons for ruling, stated that he “was not certain that sobriety would have acted as much of an electrical insulator and things would have turned out any differently than they did.”

Based on this evidence, we find that the workers’ compensation judge’s conclusion that Russell’s alleged intoxication was not a contributing cause of his accident is supported by the record. Thus, we find no merit in H & H’s contention that Russell’s alleged intoxication precludes his entitlement to workers’ compensation benefits.

Misrepresentation

H & H also contended at the hearing that Russell’s misrepresentations warrant a denial of benefits. Louisiana Revised Statutes 23:1208 provides for the forfeiture of future workers’ compensation benefits and the restitution of previously paid benefits upon proof of an employee’s willful misrepresentation for the purpose of obtaining workers’ compensation benefits. The employer must show that “(1) there 11sis 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.” Int’l Maint. Corp. v. Stoddard, 05-676, p. 3 (La.App. 3 Cir. 12/30/05), 918 So.2d 1077, 1079 (citing Resweber v. Haroil Const. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7).

The evidence adduced at the hearing indicates that H & H established several inconsistencies in Russell’s testimony. Russell’s statements about the details of the accident were inconsistent — for instance, his accounts of the height of the fall, the surface upon which he fell, and the length of time that he was unconscious all varied. Further, H & H established through medical records and police reports that, despite his representation that he had not been in any car accidents or that he had a substance abuse problem, Russell had previously been involved in a one car accident and was apprehended by the police with a “large” plastic bag full of “medication that did not belong to him” and that he had “taken a bunch of pills.” Russell’s medical records from that incident indicate that he was treated for a “probable” overdose.

Although the record indicates that Russell made several inconsistent statements or omissions about his prior medical history, “not every false statement supports a finding of fraud.” Int’l Maint. Corp., 918 So.2d at 1079. The false statement must be made for the purpose of obtaining benefits. Id. The workers’ compensation judge rejected H & H’s contention that these inconsistencies amount ed to “doctor shopping” or “drug seeking” behavior, noting that H & H authorized all of the changes in treatment. The workers’ compensation judge further stated that the “drug seeking allegation stands on very weak underpinnings. For a man with a broken back to call his own doctor and ask for pain relief does not necessarily paint a picture of 114a ‘drug seeker’ in the pejorative sense that the term is used in workers’ compensation cases.” Notably, H & H stipulated to the existence of a work-related accident.

Based on this evidence, we do not find that H & H met their burden of proving that Russell’s inconsistent statements or omissions were made for the purpose of obtaining benefits. Therefore, the workers’ compensation judge did not err in rejecting that contention.

In sum, we find that the workers’ compensation judge’s ruling regarding the award of TTD benefits was supported by adequate evidence. This assignment of error is without merit.

Second and Third Assignments of Error (Penalties and Attorney Fees)

In its second and third assignments of error, H & H contests the workers’ compensation judge’s imposition of penalties and attorney fees. It asserts both that the award was in error on substantive grounds and that the amount awarded was in error.

Louisiana Revised Statutes 23:1201 provides for the assessment of penalties and attorney fees, in pertinent part, as follows:

F. Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars .... Penalties shall be assessed in the following manner:
hs(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
I. Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

The determination of whether penalties and attorney fees should be awarded is a finding of fact and should not be disturbed on appeal absent manifest error. Rivers, 32 So.3d 1091. “However, when there are errors of law asserted on appeal, the appellate court must make a determination of whether the workers’ compensation judge’s ruling was legally correct.” Ducote v. Louisiana Industries, Inc., 07-1536, p. 3 (La.App. 3 Cir. 4/2/08), 980 So.2d 843, 845 (quoting Trahan v. City of Crowley, 07-266, p. 3 (La.App. 3 Cir. 10/3/07), 967 So.2d 557, 560, writs denied, 07-2462, 07-2471 (La.2/15/08), 976 So.2d 185, 187).

In light of a period of improperly calculated indemnity benefits, the workers’ compensation judge’s ruling awarded “penalties in the amount of $2,000.00 per violation for a failure to pay the correct indemnity benefits from May 21, 2009[,] through November 5, 2009[,]” for a total of $8,000.00. See La.R.S. 23:1201(F). The workers’ compensation judge also awarded $8,000.00 in “penalties for terminating workers’ compensation benefits on April 15, 2010[.]” See La.R.S. 23:1201(1).

We turn to H & H’s separate contentions as to the various elements of the penalties and attorney fees award.

| intoxication Defense

First, H & H contends that the workers’ compensation judge erred in awarding penalties and attorney fees “in light of Mr. Russell’s positive drug test results.” In doing so, H & H relies on Savoy v. Cecil Perry Imp. Co., 691 So.2d 692, and Barker v. Allen Canning Co., 95-252 (La.App. 3 Cir. 10/4/95), 663 So.2d 320, writ denied, 95-2688 (La.1/26/96), 666 So.2d 323, for the proposition that reliance on a positive drug screen precludes a finding that the employer did not reasonably controvert a workers’ compensation claim, even where the claimant overcomes the presumption of intoxication.

As a preliminary matter, we note that this aspect of the penalties does not arise pursuant to La.R.S. 23:1201(F), which uses the “reasonably controverted” standard. Instead, H & H discontinued, indemnity benefits due to its intoxication defense. Pursuant to La.R.S. 23:1201(1), penalties and attorney fees are appropriate for “dis-continu[ation of] payment of claims ... when such discontinuance is found to be arbitrary, capricious, or without probable cause[.]”

Notwithstanding this difference, we find Savoy, 691 So.2d 692, and Barker, 663 So.2d 320, unpersuasive as applied to the facts of this case. In both cases, a panel of this court concluded that the workers’ compensation judge erroneously imposed a heightened burden of proof on the employer. Both the Savoy and the Barker courts concluded that, based on the facts of the case under consideration, the claimant had not met his burden with regard to rebuttal of the presumption of intoxication. Therefore, both the Savoy and the Barker courts found that the workers’ compensation judge erred in finding that the employer did not reasonably controvert the claim and in awarding penalties and attorney fees.

|17Here, H & H submitted evidence that Russell tested positive for opiates and marijuana immediately after the accident. However, as discussed above, we find no error in the workers’ compensation judge’s determination that Russell’s accident was not of the type that any alleged intoxication would contribute to the cause of the accident. Thus, unlike in Savoy, 691 So.2d 692, and Barker, 663 So.2d 320, the claimant in this case met his burden. Further, H & H paid Russell’s medical benefits for almost a year before termination. Phil Moory, the insurance adjuster, testified that H & H did not terminate Russell’s benefits until it received a certified copy of Russell’s drug test results. Notably, Moo-ry also testified that H & H terminated Russell’s benefits before reviewing Dr. Gunderson’s medical records.

Based on these facts, we find no error in the workers’ compensation judge’s conclusion that H & H arbitrarily and capriciously terminated Russell’s benefits.

H & H’s argument in this regard is without merit.

Amount of Penalties

Next, H & H contends that the workers’ compensation judge erred in awarding a total of $16,000.00 in penalties. It points out that such an award would exceed the $8,000.00 limit set forth in La. R.S. 23:1201(F).

However, contrary to H & H’s chief argument, the workers’ compensation judge’s ruling reflects an $8,000.00 penalty for miscalculation of benefits and a separate $8,000.00 penalty for termination of benefits. H & H’s argument that a $16,000.00 penalty was awarded under La. R.S. 23:1201(F) is erroneous. Clearly, [ ÍSSubsection F limits the total award to $8,000.00. However, penalties were awarded under Subsection F and Subsection I. We find this argument unpersuasive.

Accordingly, we consider H & H’s alternative argument that the workers’ compensation judge erred in awarding in excess of $2,000.00 for the period during which it incorrectly calculated Russell’s indemnity benefits. H & H argues that the period of miscalculation should have been considered as a single, collective claim rather than four separate awards of $2,000.00 for each check reflecting a miscalculated indemnity benefit check.

We find merit in this latter argument. As applicable in this case, La.R.S. 23:1201(F) limits penalties to a “maximum of two thousand dollars in the aggregate for any claim.” (Emphasis added). In Ducote, 980 So.2d at 845, a panel of this court reviewed the jurisprudence with regard to whether each instance of miscalculation of indemnity benefits constituted a separate claim for the purposes of penalties and attorney fees. The court concluded that, in a situation where indemnity benefits were miscalculated and, upon receiving notice of the error, the employer or insurance company remedied the error and issued a lump sum payment, the miscalculation was one claim for the purposes of penalties and attorney fees. See also Burnett v. Village of Estherwood, 09-680 (La. App. 3 Cir. 12/9/09), 25 So.3d 997.

Here, the record indicates that H & H miscalculated the amount of indemnity benefits due to Russell because Russell worked a reduced number of hours in the four week period before the accident. This reduction in hours was caused by a stoppage in work due to bad weather. When the miscalculation was brought to H & H’s attention, the problem was remedied.

119Thus, we affirm the workers’ compensation judge’s ruling insofar as it awarded penalties “for failure to pay the correct indemnity benefits from May 21, 2009 through November 5, 2009.” However, we amend the related award for a total penalty of $2,000.00 rather than $8,000.00.

With regard to the remaining $8,000.00 award for termination of benefits, we have, above, found that the record supports this award pursuant to La.R.S. 23:1201(1). Accordingly, we affirm that aspect of the ruling awarding an $8,000.00 penalty for “terminating workers’ compensation benefits on April 12, 2010.”

Finally, we note that the workers’ compensation judge awarded attorney fees in the amount of $18,750.00. In light of our affirmation of the separate penalties under La.R.S. 23:1201(F) and (I), the imposition of attorney fees was not in error. H & H does not contest the amount of attorney fees awarded.

Attorney Fees On Appeal

Russell has filed an answer and seeks additional attorney fees incurred as a result of this appeal. “An increase in attorney’s fees is awarded on appeal when the defendant appeals, obtains no relief, and the appeal has necessitated more work on the part of the plaintiffs attorney, provided that the plaintiff requests such an increase.” McKelvey v. City of Dequincy, 07-604, pp. 11-12 (La.App. 3 Cir. 11/14/07), 970 So.2d 682, 690. A review of the record indicates that the claimant’s counsel requested such attorney fees, filed a brief in support of the workers’ compensation ruling and participated in oral argument. Therefore, an award of $2,000.00 in attorney fees on appeal is warranted.

_[^¡DECREE

For the foregoing reasons, that portion of the Office of Workers’ Compensation’s judgment awarding penalties for the failure to pay the correct indemnity benefits is amended and recast as follows:

IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that penalties in the amount of $2,000.00 per violation for failure to pay the correct indemnity benefits from May 21, 2009 through November 5, 2009 are awarded for a total penalty of $2,000.00.

That portion of the judgment is affirmed as amended. Otherwise, the judgment is affirmed. Attorney fees in the amount of $2,000.00 are awarded to the claimant, Dustin Russell, for work performed on appeal. All costs of this proceeding are assessed to the appellants, H & H Metal Contractors, Inc. and Bridgefield Casualty Company.

AFFIRMED AS AMENDED. ADDITIONAL ATTORNEY FEES AWARDED FOR WORK PERFORMED ON APPEAL.

      . H & H submitted signed "choice of physician” forms for Dr. Perry and Dr. Gidman; Russell contended that H & H misrepresented the purpose of the forms in order to induce him to sign them.

      . At the hearing, H & H’s adjuster testified that, in his previous experience, "No Duty” circled on Dr. Gunderson's notes indicates that the patient is not currently working, not that the patient is unable to work.

      . H & H did not object to the entry of Dr. Gunderson’s medical records.

      . H & H contends that Russell threatened Dr. Gidman after he was released to light duty. Although Russell denies that he made threats, the record indicates that Dr. Gidman was sufficiently concerned that he discharged Russell from his care.

      . A panel of this court has previously found that "Subsection F does not limit penalties under all subsections of La. R.S. 23:1201 to an aggregate of $8,000.00.” Rivers, 32 So.3d at 1096-1097 (emphasis added) (citing Broussard v. Lafayette Parish Sch. Bd., 939 So.2d 662 (La.App. 3 Cir. 9/27/06), writ denied, 06-2591 (La. 1/12/07), 948 So.2d 152).

      . In his answer to this appeal, Russell sought additional penalties for nonpayment of medical costs in the event of an amendment. Russell has failed to brief this issue and it is therefore deemed abandoned. Uniform Rules of Court — Courts of Appeal, Rule 2-12.4.


source: Caselaw Access Project

author: CARLSON, Presiding Justice, DICKINSON, Presiding Justice,

license: Public Domain

text:
    CITY OF JACKSON, Mississippi, City of Jackson Police Department and Adrian May v. Eric LAW and Kristina Law.
    No. 2009-CA-01611-SCT.
    Supreme Court of Mississippi.
    April 21, 2011.
    Rehearing Denied July 28, 2011.

      Pieter John Teeuwissen, Kimberly Celeste Banks, attorneys for appellants.
    Wes W. Peters, attorney for appellees.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. In this Mississippi Tort Claims Act (MTCA) case, the City of Jackson appeals a judgment against it for damages based upon a Jackson police officer’s pursuit of a vehicle that struck the vehicle occupied by Eric and Kristina Law, injuring both. Because the record supports the finding by the trial judge that the Jackson police officer acted in reckless disregard for the public’s safety, we affirm the judgment entered by the Circuit Court for the First Judicial District of Hinds County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On June 11, 2006, Jackson Police Officer Adrian May spotted Carol Dear-man driving a Jeep near the corner of Terry Road and Evergreen Avenue. Dearman was not driving recklessly. But, based on previous encounters with Dear-man, May knew Dearman to be a drug-user and a prostitute. May also knew Dearman did not have a driver’s license, nor did she maintain a permanent residence. On the other hand, May did not consider Dearman to be a physical danger to the public.

¶ 3. May began to follow Dearman in his patrol car down Evergreen Avenue, and May activated his blue lights when he came to the intersection of Walnut Street and Winter Street. Also, May “chirped” his siren in an effort to stop Dearman, but she did not stop. May continued to follow Dearman east down Winter Street. He radioed dispatch that he was following a driver who would not stop. He informed dispatch of the Jeep’s tag number and of the fact that a passenger was in the Jeep. He followed Dearman as she turned off Winter Street and proceeded south on Gal-latin Street. As May continued his pursuit of Dearman, Dearman passed through several intersections controlled by traffic lights. She continued to ignore May’s sirens and blue lights. May could not recall the color of these traffic lights, but he said he slowed down and checked for oncoming traffic as he proceeded through the intersections.

¶ 4. The pursuit continued south on Gal-latin Street until Dearman headed west on McDowell Road. At this point, May learned by radio that Dearman was driving a stolen Jeep. A slower-moving eighteen-wheeler traveling on McDowell Road ahead of Dearman forced her to decrease her speed, thus permitting May to catch up to her. May’s supervisor informed May through radio communications that he should let Dearman go if she was “blowing traffic lights.” Although May testified on direct examination that he had not witnessed Dearman running red lights before his supervisor’s order, on cross-examination, May answered affirmatively when asked whether Dearman already had run red lights by this point in the pursuit.

¶ 5. Dearman turned from McDowell Road onto 1-55 South, where Dearman recklessly switched lanes but had no close encounters with other vehicles. Shortly after entering 1-55, Dearman exited on Daniel Lake Boulevard. According to May’s testimony, Dearman was traveling forty-five-to-fifty miles per hour on Daniel Lake Boulevard, which had a posted speed limit of thirty-five miles per hour. May also exited 1-55 and followed Dearman west on Daniel Lake Boulevard, south on Terry Road, and west on Dona Avenue.

¶ 6. May was not familiar with this area around Terry Road and Daniel Lake Boulevard, as he had crossed into another precinct. On Dona Avenue, May recognized that the area was residential and that people would have been present. At this point, he began to appreciate the dangerousness of the situation as Dearman sped through the residential area. Accordingly, May decreased his speed, allowed Dearman to gain a few car lengths on him, but still attempted to keep sight of Dearman. He followed Dearman off Dona Avenue and north on Meadow Lane. May ran a red light on the corner of Cooper Road and Meadow Lane to keep sight of Dearman.

¶ 7. May continued to follow Dearman down Meadow Lane, which dead-ends into Woody Drive. As May turned west on Woody Drive, he lost sight of Dearman, but a pedestrian pointed him in the direction of Monticello Drive. May’s testimony at trial and the audiotape transcript reveal that, either adjacent to or on Monticello Drive, May substantially decreased his speed and cut off his siren and lights. The audiotape transcript reveals that thirty seconds after May cut off his siren, May radioed for an AMR J-l because Dearman had crashed into the plaintiffs’ vehicle at the intersection of McFadden and McDowell Roads. Testimony at trial established that May eventually reached the accident site around four to five minutes after the accident. He was the second officer on the scene.

¶ 8. May first encountered Dearman at the intersection of Terry Road and Evergreen Avenue, near Peabody Street. After this encounter, Dearman traveled seven miles before crashing at the corner of McFadden and McDowell Roads. May estimated that the pursuit lasted between five and six minutes. The audiotape of the pursuit reflects that five minutes and thirty-three seconds elapsed between the time May noticed Dearman driving the Jeep until May advised “Send AMR J-l.”

¶ 9. Throughout the pursuit, May never considered his knowledge of Dearman’s characteristics or his knowledge of the places she frequented in determining whether to end the pursuit. May did not report to his supervisor his knowledge that Dearman was the driver. At trial, he admitted that the Jackson Police Department’s pursuit policy was “boggy” to him.

¶ 10. The Jackson Police Department has a written pursuit policy embodied in its General Order 600-20 to its officers. This pursuit policy will be discussed in more detail, infra, but suffice it to state here that the policy requires a police officer, inter alia, to perform a balancing test, weighing the immediate danger to the public and the officer by continuing the pursuit as opposed to terminating the pursuit and allowing a potentially dangerous suspect to remain at large.

¶ 11. The procedure for terminating a pursuit includes “the complete withdrawal from and suspension of all following, tracking and attempts to apprehend. The officer(s) will either come to a complete stop in a safe location and await further instructions from the supervisor or travel in the opposite direction of travel from the pursuit.” Furthermore, “A pursuit may be terminated if the suspect’s identity has been determined, immediate apprehension is not necessary to protect the public or officers, and apprehension at a later time is feasible.”

¶ 12. Steven Ashley, a retired law-enforcement officer from Michigan, testified for the plaintiffs. A police-pursuit expert, Ashley opined that May had authorization to attempt to stop Dearman by using his blue lights and siren. However, Ashley testified that May had a duty to reevaluate the pursuit as factors changed. Ashley testified that May had erred by continuing to pursue Dearman because May knew Dearman and because May had no practical way of physically making her stop. Ashley generally applied the Brister factors to the entirety of the pursuit in reaching this conclusion. He also considered the Jackson Police Department’s pursuit policy, which was memorialized in General Order 600-20. Ashley opined that the pursuit should have ended on Daniel Lake Boulevard or McDowell Road and opined that May had disregarded the public’s safety by not terminating the pursuit.

¶ 13. Mark Dunston, a law-enforcement officer since 1984 and the current deputy chief of police for the City of Ocean Springs, testified for the City of Jackson. He testified that May did not recklessly disregard the public’s safety by continuing to pursue Dearman. Dunston supported this by saying that May had acted reasonably by cutting off his lights and siren at some point adjacent to or on Monticello Drive when he had realized that he was not familiar with the residential area. Dunston also opined that May’s actions did not proximately cause the plaintiffs’ injuries.

DISCUSSION

¶ 14. On appeal, the City of Jackson presents four issues: (1) whether the trial judge correctly found that May had acted with reckless disregard for the public’s safety; (2) alternatively, whether the trial judge correctly found that May’s actions had proximately caused the plaintiffs’ damages; (3) whether the trial court erred in holding that Dearman was only sixty percent at fault for the accident; and (4) whether the trial judge erred in failing to find the plaintiff driver, Eric Law, to be contributorily negligent.

¶ 15. The standard of review for a judgment entered following a bench trial is clear. This Court has stated that “[a] circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” City of Ellisville v. Richardson, 913 So.2d 973, 977 (Miss.2005) (citing Brister, 838 So.2d at 277-78) (citations omitted); see also City of Greenville v. Jones, 925 So.2d 106, 109 (Miss.2006), overruled on other grounds by Joel v. Joel, 43 So.3d 424, 437-38 (Miss.2010). “This Court reviews errors of law, which include the proper application of the Mississippi Tort Claims Act, de novo.” Richardson, 913 So.2d at 977.

I. WHETHER THE TRIAL JUDGE ERRED IN FINDING THAT MAY HAD ACTED IN RECKLESS DISREGARD OF THE PUBLIC’S SAFETY BY CONTINUING THE PURSUIT.

¶ 16. The Mississippi Tort Claims Act provides immunity to governmental entities and employees acting within the course and scope of employment duties. Miss.Code Ann. § ll-46-9(l)(c) (Rev. 2002). Under the MTCA, however, a governmental entity may be held liable where the officer acts in “reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury.” Id.

¶ 17. “Reckless disregard is more than mere negligence, but less than an intentional act.” Miss. Dep’t of Pub. Safety v. Durn, 861 So.2d 990, 994 (Miss. 2003) (citing Bñster, 838 So.2d at 281). Reckless disregard occurs “when the ‘conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved.’ ” Durn, 861 So.2d at 995 (quoting Maldonado v. Kelly, 768 So.2d 906, 910-11 (Miss.2000)).

¶ 18. This Court has addressed this particular issue under the MTCA on numerous occasions. In Richardson, an officer spotted a man with outstanding warrants traveling in the opposite direction. Richardson, 913 So.2d at 976. The officer made a u-turn, activated his blue lights and siren, and began chasing the suspect north on Highway 29. Id. The plaintiff also was driving north and had begun making a left turn into a residential driveway when the suspect’s car crashed into the plaintiffs car. Id. The evidence revealed the chase lasted for nine-tenths of a mile and occurred at night in a residential area on a hilly, curvy, two-lane road with medium traffic. Id. at 978. The officer was well-acquainted with the area and continued to pursue the suspect, although the suspect had run oncoming traffic off the road. Id. The suspect traveled at excessive rates of speed, and the officer had chased the suspect to the point of impact. Id. Ultimately, this Court found the officer had violated applicable pursuit policy by failing to weigh the seriousness of the offense against the risk of harm to the public. Id. This Court held that the officer had acted in reckless disregard for the public’s safety. Id. at 979.

¶ 19. In Dum, the plaintiff was driving south on Highway 49 while an officer was driving north on Highway 49 in his patrol car. Dum, 861 So.2d at 993. After the officer and the plaintiff had passed each other, the officer saw a car speeding south. Id. Accordingly, the officer made a u-turn and began his pursuit of this speeding vehicle. Id. Eventually, the officer approached the plaintiff. Id. The officer attempted to pass the plaintiff, but the plaintiff “turned left across the northbound lane to enter the lot leading to the bus garage.” Id. The plaintiff and the officer testified to different versions of the accident. Id. The plaintiff recalled that he had activated his turn signal, and the plaintiffs expert testified that the officer had been traveling eighty-one miles per hour. Id. The officer recalled at trial that he had not exceeded fifty-five miles per hour and had already “overtaken the northbound lane” in an attempt to pass the plaintiff when the plaintiff “crossed over into the northbound lane” and caused the accident. Id.

¶ 20. In its analysis, this Court canvassed relevant opinions, reviewing factual scenarios of officers recklessly disregarding the public’s safety. Dum, 861 So.2d at 995-96 (citing City of Jackson v. Lipsey, 834 So.2d 687, 692-93 (Miss.2003) (affirming a finding of reckless disregard when an officer suddenly turned his vehicle in front of oncoming traffic without having his headlights on or using his blue lights or siren); City of Jackson v. Perry, 764 So.2d 373, 377-78 (Miss.2000) (finding reckless disregard when an officer drove twenty-seven miles per hour over the posted speed limit without using his siren or blue lights while on his way to dinner before colliding with a vehicle exiting a parking lot); Maye v. Pearl River County, 758 So.2d 391, 393-94 (Miss.1999) (finding reckless disregard when an officer backed up an incline entrance to a parking lot, not knowing whether the area was clear)). After reviewing this precedent, the Court in Dum reasoned that the trial court had found that several Brister factors had been satisfied and that the record supported a finding that the officer had acted in deliberate disregard of a known risk by “attempting to overtake a vehicle that indicated it was turning....” Durn, 861 So.2d at 996.

A.

¶ 21. In reaching his conclusion in the present case that May had recklessly disregarded the public’s safety, the trial judge considered several factors previously addressed by this Court (the Brister factors): (1) the length of the chase; (2) the characteristics of the streets; (3) the type of neighborhood; (4) the seriousness of the suspect’s offense; (5) the experience and training of the officer; (6) whether the officer had available alternatives which would lead to the apprehension of the suspect besides the pursuit; and (7) the existence of police policy which prohibits pursuit under the circumstances. See Richardson, 913 So.2d at 977; Durn, 861 So.2d at 995; Johnson v. City of Cleveland, 846 So.2d 1031, 1037 (Miss. 2003); Brister, 838 So.2d at 280.

¶ 22. Applying these factors, the trial judge found, among other things, that the plaintiffs had proven by a preponderance of the evidence that:

Officer May pursued someone he knew and never believed to be a danger to the public, for seven miles through the streets of Jackson; that Officer May continued this pursuit through various types of neighborhoods, including a park on a Sunday afternoon (in which he anticipated children), across intersections of major streets and highways, through multiple traffic controlled intersections and on the Interstate. Officer May admitted that he had not been trained to apprehend a suspect through a pursuit. Officer May was simply pursuing Carol Dearman in the hope that she might, at some unknown and unidentified point, stop voluntarily. Despite the fact that he knew he had no way to stop her and that Ms. Dearman would not stop voluntarily, Officer May never considered the fact that he knew the suspect and had everything he needed to charge her, as the Jackson Police Department’s policy directs. Officer May ignored his supervisor’s directive to terminate the chase if they started going through lights, and then he proceeded to run a red light in an attempt to keep sight of Ms. Dear-man through a neighborhood. Officer May never terminated the pursuit, pursuant to the Jackson Police Department’s directives.
Based upon the foregoing, it [is] the opinion of this Court that the Plaintiffs have shown, by a preponderance of the credible evidence, that the subject pursuit was conducted in reckless disregard of the safety of the public and that the negligent pursuit by JPD Officer May was a proximate contributing cause of the injuries and damages of the Plaintiffs; and, therefore, that the Plaintiffs are entitled to recover under the [MTCA],...” ^

¶ 28. The trial judge further reasoned that May’s actions were similar to the facts in Brister, in which this Court found that substantial evidence existed to support a finding of reckless disregard. Brister, 888 So.2d at 276. In Brister, the suspect allegedly had forged a check, and the pursuit had lasted “less than 60 seconds over a distance of less than a mile in a residential area and resulted in the suspect’s crash with another vehicle.” Richardson, 913 So.2d at 978 (citing Brister, 838 So.2d at 279). The trial court in Brister found the officer had acted recklessly because the pursuit had violated the “police department’s general order, the officers were engaged in active pursuit up until the collision, the pursuit should have been terminated after the officers realized the suspect would not stop, and that the officers did not properly balance the public’s safety versus immediate apprehension of a check forger.” Id.

¶ 24. This Court affirmed the trial court’s findings. Brister, 838 So.2d at 281. We “anchored our decision on the fact that the officers involved in the chase were violating a departmental order that a pursuit may only be initiated when a suspect’s escape is more dangerous to the community than the risk posed by the pursuit.” Dum, 861 So.2d at 995.

B.

¶ 25. Applying the relevant factors, this Court finds that the record supports the trial judge’s findings of fact and conclusions of law.

1. Experience and Training of the Officer

¶ 26. The City argues that, in Brister, this Court found that the officer had acted with reckless disregard because, inter alia, the officer was a rookie. May, however, “had been on the Jackson police force for more than a year and half assigned to Precinct 2, a high crime area with drugs, prostitutes, and gun fights.” He also had attended training at the City of Jackson’s Training Academy.

¶ 27. While not a rookie, May was not familiar with the police department’s pursuit policy. He admitted the policy was “boggy” to him. He never had considered whether knowing the suspect was an important factor in deciding whether to terminate a pursuit. He had not been trained in stopping a vehicle, and his only hope was that Dearman would stop voluntarily.

2. Length of the Chase

¶ 28. Dearman fled for seven miles from the time May first spotted her until the accident occurred. The pursuit lasted five minutes and thirty-three seconds. The length of the chase supports the trial judge’s view that May most likely knew for a large portion of the chase that Dearman was not going to stop voluntarily, increasing the risk of harm to the public.

3. Types of Neighborhoods

¶ 29. The City contends that, in Brister, the pursuit route was through a densely populated area that included schools and parks. And in this case, the City argues that, on Sunday afternoon, little to no traffic was present throughout the entire pursuit, which spanned industrial areas, the interstate, and a small portion of a residential area in which May reasonably ended his pursuit.

¶ 80. The record does reflect that portions of this pursuit spanned sparsely populated industrial areas. The pursuit began on the corners of Walnut and Winter Streets and continued into industrial areas on Gallatin Street and McDowell Road.

¶ 31. After exiting from 1-55 South and approaching the sixth mile of the pursuit, Dearman exited on Daniel Lake Boulevard and headed toward a residential area. May followed Dearman into this residential area, about which he admittedly knew little. This neighborhood contained a park, and May testified that he anticipated people’s presence on a Sunday afternoon. Throughout the entire pursuit, Dearman crossed six traffic-controlled intersections before the wreck occurred.

k. Street Characteristics

¶ 32. The weather was sunny and the streets were dry. The area around Galla-tin Street was not heavily populated. Plaintiffs’ expert, Steven Ashley, testified that portions of McDowell Road were “hilly, bouncy, very rough.” Gallatin Street was in disrepair, with large potholes. But no other testimony at trial revealed that the street conditions in the more populated areas of the pursuit were in great disrepair.

5. Possible Alternate Means of Apprehension

¶ 33. May testified that he knew Dearman was driving the vehicle and knew the areas which Dearman frequented within his precinct. He also testified at trial that he had everything to charge Dearman with every crime for which she ultimately was charged prior to her entry on 1-55 South. This evidence supports a finding that the Jackson Police Department feasibly could have apprehended and charged Dearman at a later time. See Richardson, 913 So.2d at 978 (officer acted in reckless disregard by, inter alia, pursuing known suspect). The Jackson Police Department’s Pursuit Policy specifically stated that a factor in favor of terminating a chase is whether the suspect’s identity is known and apprehension at a later time is feasible.

6. The Seriousness of the Suspect’s Offense

¶ 34. May discovered that Dearman was driving a stolen vehicle midway through the pursuit. This crime is a felony, but not one of violence. This Court has addressed this factor in conjunction with applicable pursuit policies. See Dum, 861 So.2d at 995 (citing Blister, 838 So.2d at 280). We agree with this approach, because the seriousness of the suspect’s offense is an integral consideration in determining whether May acted in accordance with the Jackson Police Department’s pursuit policy found in General Order 600-20.

7. Jackson Police Department’s Pursuit Policy — Balancing Test

¶ 35. The Jackson Police Department’s pursuit policy requires an officer to ascertain whether the danger of the suspect’s remaining at large outweighs the danger posed by the pursuit.

The decision to initiate a pursuit must be based on the pursuing officer’s conclusion that the immediate danger to the officer and the public created by the pursuit is less than the immediate or potential danger to the public should the suspect remain at large....
The primary pursuing unit shall continually reevaluate and assess the pursuit situation, including, all of the initiating factors, and terminate the pursuit whenever he or she reasonably believes the risks associated with the continued pursuit are greater than the public safety benefit of making an immediate apprehension.

(Emphasis added.) If the danger to the public becomes too great, the officer must terminate the pursuit. Both experts at trial agreed that the danger is actual physical danger and not danger that the suspect might commit another property crime. The City argues that May balanced the public’s safety with the apprehension of Dearman and terminated the pursuit when he deemed it unsafe to the public. The City states:

Officer May made a decision after continuing to balance the risks to the public that the increased risks were becoming apparent when the pursuit: (1) entered a residential neighborhood when he turned onto Dona Avenue; (2) Officer May was not familiar with the area; (3) Dearman was beginning to pick up her speed; and (4) the distance between their vehicles began to grow further and further apart.

The City adds that the plaintiffs’ own expert could not provide a specific location at which the pursuit should have been terminated — only that it should have been terminated at some earlier point.

¶ 36. The City distinguishes Brister to show that the risk of a suspect remaining at large in the instant case was weighed correctly against the danger of the pursuit. In Brister, the suspect traveled at speeds as high as seventy to eighty miles per hour in a thirty-five-mile-per-hour zone, and the officers did not know their speeds. Bris-ter, 838 So.2d at 280. Moreover, the City argues that in Brister, expert testimony explicitly stated that the pursuit should have been terminated at a certain point— after the officers had turned onto Ridge-wood Road in the middle of the day during the week in a highly populated area.

¶ 37. In contrast, as the City points out, May constantly communicated his speed to headquarters and did not exceed the speed limit by more than ten to fifteen miles per hour at various points in the pursuit. In Brister, the suspect also drove recklessly at the beginning of the pursuit. Brister, 838 So.2d at 277. But no evidence in this case suggests that Dearman had any close encounters with other vehicles. Accordingly, the City contends the risk inherent in this pursuit was less than the risk depicted in Brister.

¶ 38. Also, the City takes great issue with the testimony of the plaintiffs’ expert, Ashley. The City correctly states that Ashley did not testify that the pursuit should not have been initiated. The City also argues that Ashley should never have been allowed to testify as an expert witness, because Ashley could not testify to a methodology pertaining to his results and conclusions. Therefore, the City argues that Ashley’s conclusion regarding where the pursuit should have been terminated was not proper under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

¶ 39. Finally, the City argues that May was not engaged in active pursuit with Dearman up to the point of the collision. In support of this contention, the City points to two eyewitnesses, as well as Officer Kevin Gnash, who saw May at the intersection of the collision some four to five minutes after the stolen vehicle had entered the intersection of McDowell and McFadden Roads. The City also contends that May stopped his pursuit on Dona Avenue, one mile from the accident, when he lost sight of Dearman and began to decrease his speed.

¶ 40. This Court finds that substantial evidence supports the trial judge’s finding that May did not correctly weigh the dangers of Dearman remaining at large against the risk of harm to the public caused by the pursuit. Though Dearman was committing a felony, May testified that, based on his experiences with Dear-man, he believed that she was not a danger to society. The record is also clear that May was not familiar with the Jackson Police Department’s pursuit policy and continued to pursue a known suspect into a residential area — despite the fact that Dearman had driven recklessly on the highway, was becoming increasingly reckless, and the circumstances indicated that she obviously was not going to yield to Officer May.

¶ 41. Moreover, May’s supervisor told him to stop the pursuit if Dearman started running red lights. And according to May’s testimony, Dearman already had run red lights. Nonetheless, May continued to pursue Dearman, because she was driving a stolen vehicle, knowing he had no way to make her stop. May even subsequently ran a red light to keep Dearman in sight. When May did realize that the pursuit was becoming dangerous, he did not follow protocol for terminating the pursuit. Though he did not chase Dearman to the point of impact as in Richardson, the record reveals that only thirty seconds after he cut off his siren, the accident occurred.

¶ 42. This Court also finds that the City’s opposition to the testimony of Ashley is without merit. Ashley was a qualified expert with years of experience in police pursuits. Ashley clearly stated that he generally applied the Brister factors and the Jackson Police Department pursuit policies in his analysis. While the City makes several arguments questioning Ashley’s methodology, Ashley was thoroughly cross-examined, and the weight of Ashley’s testimony was a credibility determination for the trier of fact. We have stated that “an expert’s testimony is presumptively admissible when relevant and reliable.” Hubbard v. McDonald’s Corp., 41 So.3d 670, 675 (Miss.2010) (quoting Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 39 (Miss.2003)). “The weight and credibility of expert testimony are matters for determination by the trier of fact.” Id. (quoting Univ. Med. Ctr. v. Martin, 994 So.2d 740, 747 (Miss.2008)) (citations omitted). “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Id. (quoting McLemore, 863 So.2d at 36) (citations omitted).

C.

¶ 43. Although May eventually lost sight of Dearman, eventually realized the dangerousness of the situation, decreased his speed, and did not pursue Dearman directly to the crash site, this Court finds that substantial evidence exists to show that May acted in reckless disregard for the public’s safety in light of the relevant circumstances.

¶44. The trial court did not abuse its discretion in finding that, from the credible evidence, May violated several Brister factors. While “reasonable minds might differ on the question of whether or not the officer in question acted in reckless disregard, it is beyond this Court’s power to disturb the findings of the trial judge if supported by substantial evidence.” Richardson, 913 So.2d at 978 (citing Brister, 838 So.2d at 277-78). Because the trial court’s findings are supported by substantial evidence and this Court’s precedent, this Court affirms the trial court’s finding that May recklessly disregarded the public’s safety based on the manner in which he conducted his pursuit of Dearman.

II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT OFFICER MAY’S ACTIONS WERE A PROXIMATE CONTRIBUTING CAUSE OF THE ACCIDENT AND RESULTING INJURIES TO THE PLAINTIFFS.

¶ 45. The City argues that, even if this Court finds that May acted in reckless disregard for the public’s safety in his pursuit of Dearman, the plaintiffs still must show that May’s reckless actions proximately caused the plaintiffs’ damages. The trial judge stated that:

Although Ms. Dearman was out of Officer May’s sight, a short time, immediately prior to the collision, due to the high speed of travel of both May and Dearman and the length of the chase, it is the opinion of this Court that it was foreseeable that Dearman would continue to speed away from Officer May. The undisputed evidence shows that 1) Dear-man sped through the red traffic light facing ... the intersection where the accident occurred at a speed of more than fifty miles per hour; and that 2) it was apparent to an eyewitness that Dearman, immediately after the collision, appeared to be trying to run.

¶ 46. In support of its argument that May’s actions did not proximately cause the plaintiffs’ injuries, the City cites the Mississippi Court of Appeals’ decision in Ogburn v. Wiggins, 919 So.2d 85 (Miss.Ct. App.2005). In Ogburn, an officer was traveling on a frontage road when a drunk driver ran the officer’s patrol car off of the road. Id. at 87. With blue lights ablaze and sirens going, the officer began to pursue the suspect. Id. The suspect ran a stop sign and turned onto an adjacent road. Id. The officer pursued the suspect over a hill on this adjacent road but quickly lost sight of the suspect. Id. The officer slowed and then “saw dust around an intersection” where the suspect had collided with another vehicle. Id. at 87-88.

¶ 47. The Court of Appeals found that the officer had not acted with reckless disregard for the public’s safety and that the officer had not proximately caused the accident. Id. at 92. The Court of Appeals reasoned that:

Before the pursuit commenced, [the suspect] was driving in the wrong lane of traffic at an excessive speed while intoxicated .... There is simply no evidence in the record to establish whether the [suspect] knew he was being pursued. It simply cannot be said that this tragedy would not have occurred had [the officer] not pursued [the suspect].

Id.

¶ 48. The City argues that the instant case is analogous to Ogbum because “there was no evidence placed in the record that the suspect driver had any knowledge of the pursuit.” Specifically, the City argues Dearman did not testify, so no evidence shows whether Dearman knew or thought that May was still behind her in the last mile of the pursuit.

¶49. Moreover, the City argues that, because May had terminated his pursuit of Dearman one mile before the accident after losing sight of Dearman, May’s actions could not be the proximate cause of the accident. May was the second officer who arrived at the accident scene. Specifically, the City contends that May “was not in active pursuit of Dearman and was more than enough mile(s) back from Dearman not to be the proximate cause.” The City points out that the plaintiffs’ expert, Ashley, testified that he did not know what Dearman would have done differently if May had stopped the pursuit at either McDowell Road or Daniel Lake Boulevard. And the City’s expert, Dunston, testified that Officer May’s actions were not the proximate cause of Dearman’s accident with the plaintiffs.

¶ 50. In contrast, the plaintiffs argue that May’s actions did proximately cause the accident and their resulting injuries, and the plaintiffs attempt to distinguish Ogbum from their case. The plaintiffs contend that, in Ogbum, “the proof showed the asserted pursuee ... was driving above the speed limit in the wrong lane of traffic before [the suspect] first encountered the officer” when the suspect first ran the officer off the road. Yet, in this case, the plaintiffs contend that Dearman was driving safely before the pursuit began and was not endangering anyone. She had stopped at a stop sign and had obeyed the rules of the road before the pursuit. Moreover, the plaintiffs contend that “there was never any doubt that Ms. Dearman knew that Officer May was behind her pursuing her.”

¶ 51. And to further support their proximate-cause argument, the plaintiffs contend that Dearman became increasingly reckless throughout the pursuit. Once the pursuit began, Dearman started to speed away from May. She drove recklessly on 1-55 South. She passed through several traffic-controlled intersections. When she exited on Daniel Lake Boulevard, she picked up her speed and pulled away from May.

¶ 52. Meanwhile, May followed Dear-man with his siren and blue lights activated until within one mile of the accident site and stopped his pursuit and turned off his siren and lights only when he lost sight of Dearman, thirty seconds prior to the crash. Simply stated, according to the plaintiffs, “the one and only thing that ever made Carol Dearman in any way dangerous to the public was the chase itself, and the more Officer May continued to pursue Ms. Dearman, the more dangerous she became.”

¶ 53. This Court has addressed proximate cause on numerous occasions. In City of Jackson v. The Estate of Stewart, 908 So.2d 703, 712-13 (Miss.2005), we distinguished between foreseeability (proximate cause) and the question of causation (but/for):

We wish to emphasize that the question of foreseeability is different from the question of causation. The causation question is whether the City’s negligence caused or substantially contributed to [the plaintiffs injury]....
By contrast, forseeability presents the question of whether [the injury] is the type of damage which reasonably should be anticipated (or foreseen before the fact) as a result of [the negligent act].

In Stewart, the issue was whether a bus driver who had delivered an elderly woman to a day-care center and had left her unattended had proximately caused this woman to fall and subsequently to have a stroke. Id. at 712. This Court found that, while the bus driver was a cause-in-fact of the woman’s injury, the bus driver was not the legal or proximate cause, because her injury was not foreseeable. Id. at 715.

¶ 54. On the other hand, in today’s case, May’s actions substantially contributed to the plaintiffs’s injuries — despite the fact that May had stopped pursuing Dearman one mile from the site of the accident. This Court finds that the evidence supports the trial judge’s finding that Dearman knew that May was following her. As the learned trial judge explained, the pursuit lasted for seven miles, and the record confirms that the longer May chased Dearman, the more reckless her driving became. And Dearman likely would not have noticed May slow down or cut his sirens because, while May had decreased his speed, May also had lost sight of Dearman because of the curvy nature of the neighborhood roads. The record supports a finding that Dearman never saw May cut off his siren or lights. May’s losing visual contact with Dearman thus did not constitute a break in the chain of events sufficient to negate May’s contribution to the plaintiffs’ injuries. Only thirty seconds after May had deactivated his siren, Dearman’s vehicle collided with the plaintiffs’ vehicle. The record supports a finding that May’s actions substantially contributed to the plaintiffs’ injuries.

¶ 55. Moreover, Dearman’s collision with the plaintiffs’ vehicle was foreseeable to May, who testified at trial that he had recognized the pursuit was becoming dangerous not only to other drivers but to pedestrians. Hence, we affirm the trial judge’s finding that May had recklessly disregarded the public’s safety by failing to weigh correctly the danger of the pursuit with the risk of Dearman being at large.

¶ 56. For the reasons discussed, we affirm the trial judge’s finding not only that May’s actions substantially contributed to the plaintiffs’ injuries, but that May likewise should have reasonably anticipated the type of harm to the plaintiffs due to his actions.

III. WHETHER THE TRIAL COURT ERRED IN FINDING THAT DEARMAN WAS ONLY SIXTY PERCENT AT FAULT FOR THE ACCIDENT.

¶ 57. Stemming from the City’s substantial-contributing-cause argument, the City contends that the trial court erred by finding that Dearman was only sixty percent at fault for the accident. In support of this contention, the City states that “[bjeeause of the actions of Dearman and her disregard of law enforcement and her voluntary guilty plea to aggravated assault, the City of Jackson respectfully submits that she was the significant proximate cause of the collision.”

¶ 58. This Court finds this issue to be without merit. The trial judge’s finding actually reflects that Dearman was the significant cause of the accident, because he found her to be sixty percent at fault. Moreover, an allocation of forty percent negligence to May is supported by substantial evidence in the record. Again, May recklessly disregarded the public’s safety by the manner in which he conducted his pursuit of Dearman.

IV. WHETHER THE TRIAL COURT ERRED WHEN IT FOUND THAT PLAINTIFF ERIC LAW WAS NOT CON-TRIBUTORILY NEGLIGENT.

¶ 59. The trial judge found by a preponderance of the evidence that the plaintiff driver, Erie Law, “was guilty of no negligence which proximately caused or contributed to the accident.... Officer May concluded that there was no improper driving by Eric Law.”

¶ 60. The City contends that the trial court erred by finding that Law was not contributorily negligent and argues that Law was twenty-five percent responsible for the accident. Based on Officer Kevin Gnash’s testimony, the City states that, as Officer Gnash approached the intersection of McDowell and McFadden Roads with his blue lights engaged, the Law vehicle turned in front of Officer Gnash’s patrol car. Also two witnesses, Jacqueline Johnson and Nicholas Thomas, testified that they saw Gnash’s patrol car with its blue lights engaged, and Johnson “took caution at the intersection” and did not “proceed when the light” became green.

¶ 61. Citing Busick v. St. John, 856 So.2d 804, 307 (Miss.2003), the City states that “Mississippi law holds that a motorist’s right to assume that the driver of a vehicle proceeding toward an intersection will obey the law of the road extinguishes when the motorist knows or in the exercise of care should know the proceeding vehicle will not stop.” And under Mississippi Code Section 63-3-809 Law “should have approached Officer Gnash’s vehicle with due caution, yield[ed] the right of way, and be[en] prepared to stop to his blue lights.”

¶ 62. Essentially, the City contends that Law did not proceed with caution or take any precautionary measures. The City ultimately reasons that Law was a substantial cause of the accident because, if he had kept a proper lookout and had heeded Officer Gnash’s blue lights, the accident would not have happened.

¶63. We believe that the trial judge’s finding that Law was not contribu-torily negligent is supported by substantial evidence. In May’s accident report, when describing Law’s driving, May wrote “No apparent improper driving.” In addition, the record is clear that Law was making a left-hand turn, attempting to head north, and proceeding via a green light from McDowell Road onto McFadden Road. Although very close to the intersection, Officer Gnash’s patrol car was not in the intersection, and his sirens were not activated. Gnash’s supervisor had instructed him not to become involved in the pursuit. Gnash testified that he was attempting to “slow traffic” and was not planning to enter the intersection. He was at the intersection for less than a minute before the accident occurred. Neither Law nor his wife testified that they had heard police sirens or had seen Gnash’s patrol car approaching the intersection before they turned. This Court finds the record contains insufficient evidence to indicate that Law acted negligently in light of all the relevant facts.

¶ 64. The trial judge’s finding that Law did not act negligently is based on “substantial, credible, and reasonable evidence.” Perry, 764 So.2d at 376 (Miss. 2000). Accordingly, the trial judge did not err by concluding that Law was not con-tributorily negligent.

CONCLUSION

¶ 65. Based on today’s discussion, the judgment against the City of Jackson in favor of Eric Law in the sum of $250,000, and in favor of Kristina Law in the sum of $250,000, plus post-judgment interest, as entered by the Circuit Court for the First Judicial District of Hinds County, is affirmed.

¶ 66. AFFIRMED.

WALLER, C.J., RANDOLPH, LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PIERCE, J. KING, J., NOT PARTICIPATING.

DICKINSON, Presiding Justice,

dissenting:

¶ 67. My disagreement with the majority should come as no surprise, since today’s case is not my first disagreement with this Court’s willingness to both ignore decades of precedent and substantially dilute the plain meaning of the phrase “reckless disregard.” And under similar facts, I shall continue to dissent until the Legislature changes the statute, this Court changes direction, or Webster redefines “reckless disregard” to mean what the majority claims it means.

¶ 68. The Mississippi Tort Claims Act (MTCA) — with one exception — provides immunity to police officers acting within the scope of their duties. That exception is where the officer acted “in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury.”

¶ 69. Our precedent holds that “reckless disregard is a higher standard than gross negligence and ‘embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.’ ” This Court has held that “ ‘wanton’ and ‘reckless disregard’ are just a step below specific intent.” Indeed, reckless disregard requires that “conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved.”

¶ 70. Officer May began pursuing Dear-man in sparsely populated industrial areas. He never traveled more than fifty miles per hour on city streets, or seventy miles per hour on a short span of Interstate 55 South. The uncontradicted evidence shows that, as soon as Officer May approached a residential area, he decreased his speed and pulled back from Dearman while unsuccessfully attempting to keep her in sight. A pedestrian pointed him in the direction of Monticello Road. Officer May proceeded to Monticello Road, substantially decreasing his speed and deactivating his blue lights. These are the facts upon which the majority finds Officer May acted in reckless disregard of the public’s safety.

¶ 71. It can be argued that Officer May was negligent under the circumstances-perhaps even grossly negligent. But these facts are not even close to the MTCA’s requirement of reckless disregard. And because the record does not support the trial judge’s finding that Officer May acted in “reckless disregard for the safety of the public,” I respectfully dissent.

PIERCE, J., joins this opinion.

      . Dearman’s speed on 1-55 South was seventy to seventy-five miles per hour.

      . May testified that Dearman had driven recklessly on 1-55 South.

      . The speed limit in the residential area was twenty-five miles per hour. May testified that he estimated Dearman’s speed through this residential area to be "anywhere from 40, 50 miles an hour.”

      . May testified that he had lost sight of Dear-man on Woody Drive, approximately one mile from the accident, which occurred at the corner of McFadden and McDowell Roads. However, May also later testified that he had written in his narrative report after the accident that he had lost sight of Dearman on Monticello Drive.

      . May testified affirmatively when asked whether his siren was still activated on Monticello Drive. However, later, May recanted this statement, saying that he was actually at the comer of Woody Drive and Meadow Lane, just close enough to see the street sign for Monticello Drive, when he still had his siren activated, thirty seconds before his radio transmission for an ambulance.

      . The audiotape was received into evidence.

      . "AMR J-l” means to send an ambulance immediately.

      . City of Jackson v. Brister, 838 So.2d 274, 277-78 (Miss.2003).

      . While this Court in Richardson, 913 So.2d at 977, and in Johnson, 846 So.2d 1031, applied ten factors in its respective analyses, this Court has not specifically adopted these ten factors; rather as stated in Brister, 838 So.2d at 280, this Court has found them to be "instructive.” In Richardson, we stated that “[i]t is appropriate for trial courts to consider all ten factors, and to look at the totality of the circumstances when analyzing whether someone acted in reckless disregard.” Richardson, 913 So.2d at 978. Since this Court has not held that all ten factors must be considered, this Court addresses only those factors that the trial court and parties addressed.

      . According to May's testimony, the only point at which Dearman traveled more than sixty miles per hour was on the interstate. The average speed of the pursuit exceeded sixty miles per hour.

      . The procedure for terminating a pursuit includes "the complete withdrawal from and suspension of all following, tracking and attempts to apprehend. The officer(s) will either come to a complete stop in a safe location and await further instructions from the supervisor or travel in the opposite direction of travel from the pursuit.” May did not withdraw. When he exited on Daniel Lake Boulevard and began to realize the situation’s dangerousness, he allowed Dearman to move ahead only a few car lengths. On or near Monticello Drive, he cut off his lights and siren.

      . Officer Gnash witnessed the accident. He had heard via radio communications that the pursuit was entering his precinct and he thus had begun traveling west on McDowell Road between two and five miles per hour, with his blue lights engaged, to caution the public.

      . Mississippi Code Section 63-3-809 states, in part: “(d) upon approaching a stationary authorized emergency vehicle, when such vehicle is giving a signal by use of flashing, blinking, oscillating, or rotating lights, a person who drives an approaching vehicle shall: i. Proceed with due caution, yield the right of way...." Miss.Code Ann § 63-3-809 (Rev. 2004).

      . City of Ellisville v. Richardson, 913 So.2d 973 (Miss.2005).

      . Miss.Code Ann. § 11 — 46—9(l)(c) (Rev. 2002).

      . Collins v. Tallahatchie County, 876 So.2d 284, 287 (Miss.2004) (quoting Turner v. City of Ruleville, 735 So.2d 226, 230 (Miss. 1999)).

      . Turner v. City of Ruleville, 735 So.2d at 230; see also Evans v. Trader, 614 So.2d 955, 958 (Miss. 1993).

      . Miss. Dep't of Pub. Safety v. Dum, 861 So.2d 990, 995 (Miss.2003) (quoting Maldonado v. Kelly, 768 So.2d 906, 910-11 (Miss. 2000)).