author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. A.D.L.
    No. 11-1142.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      Earl B. Taylor, 27th JDC District Attorney, Jennifer Ardoin, Assistant District Attorney, Opelousas, LA, for Appellee, State of Louisiana.
    Annette Fuller Roach, Lake Charles, LA, for Defendant Appellant, A.D.L.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

| ¶Following a judge trial, Defendant was convicted of one count of indecent behavior with a juvenile, a violation of La.R.S. 14:81. He was sentenced to five years’ imprisonment. Defendant appealed the conviction and sentence. While this court conditionally affirmed the conviction and sentence, it remanded the matter to the trial court to conduct an evidentiary hearing on the question of whether Defendant validly waived his right to a jury trial. This court further instructed the trial court that if a valid waiver was not made, the conviction and sentence must be set aside and a new trial granted. Defendant’s right to appeal any adverse ruling was reserved. State v. A.D.L., 10-1218 (La.App. 3 Cir. 5/11/11), 64 So.3d 448.

An evidentiary hearing was held on August 24, 2011. Thereafter, the hearing judge ruled that Defendant knowingly and intelligently waived his right to a jury trial.

Defendant now appeals the hearing judge’s ruling. He asserts that the hearing judge erred when he required Defendant’s trial counsel to testify at the hearing without a valid waiver of the attorney-client privilege and when the hearing judge found that Defendant made a knowing and voluntary waiver of his right to a jury trial. For the following reasons, we affirm the hearing judge’s ruling that Defendant validly waived his right to a jury trial.

FACTS:

The facts of this case are found in Defendant’s first appeal. State v. A.D.L., 64 So.3d 448.

ASSIGNMENTS OF ERROR:

Initially, Defendant argues that his constitutional right to invoke the attorney-client privilege was violated when the hearing judge required trial counsel, | gAttorney Edward Lopez, to testify regarding the issue of whether Defendant intelligently and knowingly waived the right to a jury trial.

Although the right to a jury trial may be waived in non-capital cases, it must be “knowingly and intelligently” waived. LSA-C.Cr.P. art. 780 A. Waiver of this right is never presumed. State v. McCarroll, 337 So.2d 475, 480 (La.1976); State v. Zeringue, 03-697 (La.App. 5 Cir. 11/25/03), 862 So.2d 186, 193, writ denied, 03-3523 (La.4/23/04), 870 So.2d 298. Although it remains the preferred method for the district court to advise a defendant of the right to a jury trial in open court before obtaining a waiver, that practice is not statutorily required. State v. Pierre, 02-2665 (La.3/28/03), 842 So.2d 321 (per curiam); State v. Lokey, 04-616 (La.App. 5 Cir. 11/30/04), 889 So.2d 1151, 1154, writ denied, 04-3195 (La.5/6/05), 901 So.2d 1093. It is likewise preferred, but not necessary, for the defendant to waive the right to a jury trial personally. Id. Counsel may waive the right on the defendant’s behalf, provided the defendant’s decision to do so was made knowingly and intelligently. Id.

State v. Howard, 10-869, pp. 6-7 (La.App. 5 Cir. 5/24/11), 66 So.3d 1160, 1165.

On May 18, 2011, the State filed a “Motion for La. Code Evid. Art. 507 hearing to Establish Validity of State’s Subpoenas,” wherein it sought to establish the validity of the subpoenas issued to Judge Donald Hebert, who was the trier of fact at Defendant’s trial, and to trial counsel, Attorney Edward Lopez. A hearing was scheduled for July 21, 2011. On May 11, 2011, Judge Hebert, in a PER CURIAM, recused himself for the purpose of the evidentiary hearing, and on June 15, 2011, Attorney Lopez moved to withdraw as counsel of record, which was granted by Judge Alonzo Harris. On July 21, 2011, Attorney David Balfour enrolled as Defendant’s counsel for the purpose of the evidentiary hearing only.

At the evidentiary hearing, Attorney Balfour stated that Defendant would not testify as to whether he had waived his right to a jury trial nor was he waiving his attorney-client privilege. Attorney Balfour appeared to argue that the evidentiary hearing should address only the question of whether there was a waiver, not whether it was intelligently or knowingly made. Accordingly, if there was nothing in the record to establish that Defendant waived the right, he would be entitled to | shave the conviction set aside and, therefore, La. Code Evid. art. 507 was not applicable. Defendant’s appellate counsel agrees.

In a memorandum filed on August 22, 2011, citing State v. Dominguez, 10-1868 (La.App. 1 Cir. 12/8/10), 52 So.3d 1117, writ denied, 10-2781 (La.1/28/11), 56 So.3d 956, the State argued that the question of attorney-client privilege was not an issue in the case of whether Defendant validly waived the jury trial. In Dominguez, during pretrial proceedings, defense counsel advised the trial court that the defendant waived a jury trial. After the defendant was found guilty, he filed a motion to arrest judgment and claimed that he did not knowingly and intelligently waive his right to a jury trial. When the State attempted to call his attorney to testify regarding his decision to waive jury trial, the defendant then raised the attorney-client privilege. The first circuit stated:

When the record does not clearly indicate a valid waiver of the right to a jury trial, the recent trend has not been to reverse but to remand the case to the trial court for an evidentiary hearing on the issue of whether a valid jury waiver was obtained. See State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963. In State v. Cappel, 525 So.2d 335, 337 n. 3 (La.App. 1st Cir.), writ denied, 531 So.2d 468 (La.1988), this Court noted that when the record is insufficient to determine whether the defendant knowingly and intelligently waived his right to a jury trial, the testimony by defendant and defense counsel at an eviden-tiary hearing would certainly be relevant, if not dispositive of the issue. We conclude that defense counsel’s testimony regarding the decision to waive the right to a jury trial is not barred by the attorney-client privilege because relator antieipatorily waived the privilege by alleging in his motion in arrest of judgment that his election of a bench trial was not knowingly and intelligently made.
The Louisiana Supreme Court adopted the “anticipatory waiver theory” in Smith v. Kavanaugh, Pierson & Talley, 513 So.2d 1138 (La.1987). Under the anticipatory waiver theory of the attorney-client privilege, the court must concern itself solely with whether the privilege holder has committed himself to a course of action that will require the disclosure of a privileged communication.
In Smith, the plaintiff filed a legal malpractice action, and the Supreme Court was faced with the issue of whether the plaintiff had waived her attorney-client privilege regarding communications with her present attorney by pleading contra non-valentem or by testifying Rin her deposition about those communications. The Supreme Court determined that a waiver of the attorney-client privilege could occur under certain circumstances when certain pleadings are filed:
Furthermore, by electing or committing himself to introduce his attorney-client communications at trial and thereby waiving his privilege to such communications, a party creates a special unfairness to his adversary which qualifies as an extraordinary circumstance warranting a court order that his attorney submit to a deposition by his adversary as to these communications.
513 So.2d at 1141. Because the plaintiff in Smith testified in her deposition that her current attorney had told her for the first time that the defendants had ma-ladministered her husband’s succession, the Court concluded the plaintiff had indicated an intention to use the disclosed communication with her attorney at the trial of the exception of prescription to explain her failure to file suit within the prescriptive period. Under these circumstances, “her deposition testimony may constitute a pretrial partial disclosure of a privileged communication amounting to a waiver of her privilege as to relevant communications with her attorney on the same subject.” 513 So.2d at 1146.
In the instant case, relator and his counsel presumably discussed the consequences of waiving a trial by jury, since counsel notified the court well before trial that the defendant intended to waive his right to a jury trial. That conversation contains evidence that the court can use to evaluate whether relator knowingly and intelligently waived his right to a jury trial. By claiming his waiver was invalid, relator has committed himself to a course of action that requires disclosure of conversations he had with counsel about the waiver issue; such disclosure is not barred by the attorney-client privilege. '

Id. at 1119-20 (footnote omitted).

In the current case, in brief, Defendant encourages this court to decline to follow Dominguez and points to State v. James, 99-1047 (La.App. 5 Cir. 1/25/00), 751 So.2d 419 (James II), which Defendant “suggests that specific inquiry of the trial attorney would be improper” in the case of determining whether the defendant had waived his right to a jury trial. Our reading of James II is that the fifth circuit did not suggest a trial counsel’s testimony regarding whether a client validly waived his right to a jury trial was a breach of the attorney-client privilege. State v. James, 94-720 (La.App. 5 Cir. 5/30/95), 656 So.2d 746 (James I), was very similar |fito the current case. There, the defendant was tried by the trial court and found guilty of the charged offenses. However, there was nothing in the record to indicate that he waived his right to a jury trial. On appeal, the fifth circuit remanded for an evidentia-ry hearing, stating:

The record, as it now stands, does not show that James executed a jury waiver; however, James was represented by able counsel at trial and the record does not contain any defense objection because the charges were being tried by a judge not a jury. These were serious felony charges.
Nonetheless, if a defendant is tried and convicted by a judge when clearly entitled to a jury, the record must show that a jury was knowingly and intelligently waived. A legal waiver cannot be presumed, no matter how strong presumption evidence may be. Here, the state argues that James effectively waived a jury at a pretrial proceeding.
This Court has authority under State v. Williams, 404 So.2d 954 (La.1981), and other cases to reverse the convictions and remand for a new trial. This Court also has authority, under State v. Cappel, 525 So.2d 335 (La.App. 1 Cir. 1988), writ denied at 531 So.2d 468 (La.1988), and other cases to remand for an evidentiary hearing regarding the jury waiver. Under the present circumstances, wherein James had competent counsel and was tried without objection by a judge, we believe that the interests of justice are better served by a remand instead of reversals [sic].
Accordingly, we remand for an evi-dentiary hearing to determine whether James knowingly and intelligently waived his right to a jury trial. If the evidence shows that James did not execute such a waiver, the district judge is instructed to set aside the convictions and grant a new trial. If the waiver was properly made, the appeal should be transferred back to this Court for review of this determination and for review of several errors patent concerning the sentences.

Id. at 746-47 (footnotes omitted).

On remand, the trial court in James I found that there was sufficient evidence to find that the defendant had made a valid waiver of a jury trial. When the case came back on appeal, asserting that the trial court erred, the fifth circuit agreed, stating:

On remand, the State concedes that the original appellate record is devoid of a waiver by the defendant of his right to trial by jury. At | nthe evidentiary hearing, the State introduced the transcript of the defendant’s arraignment, wherein the trial judge (not the one who presided at the bench trial) advised the defendant of his right to a trial by jury and his right to waive a jury trial. This transcript does not contain a response by the defendant to the judge’s recitation of his rights. The State also called Walter Amstutz, defendant’s former counsel who now works for the District Attorney’s Office as a prosecutor, to testify regarding his representation of defendant. James himself did not testify on remand.
On appeal, James argues that the arraignment transcript does not establish an affirmative, knowing waiver of his right to a jury trial. He argues that although the judge advised him of his right to a jury trial at his arraignment, he made no response or other indication, such as through counsel, that he understood and waived his right to a jury trial. He also argues that Amstutz’s testimony at the evidentiary hearing presents a conflict of interest, since Am-stutz represented him at the arraignment through the Indigent Defender Board but now works for the Jefferson Parish District Attorney’s Office, the body who is prosecuting him.
The insufficiency of the arraignment transcript highlights the importance of the next assignment of error. Defendant next argue[s] that allowing his former counsel to testify at the evidentiary hearing was an impermissible conflict of interest because he now works for the District Attorney’s office. Further, defendant argues that his former attorney’s testimony violates attorney/client privilege, since James does not allege ineffective assistance of counsel.
This court, on original appeal, cited State v. Cappel, 525 So.2d 335 (La.App. 1 Cir.1988) as authority for remanding the case for an evidentiary hearing. The court in State v. Cappel specifically stated that, at such hearing, testimony by the defendant and his defense counsel would be relevant, if not dispositive, whether the defendant knowingly and intelligently waived his right to a jury trial. However, Cappel did not address the specific issue here, whether testimony by the attorney would waive the attorney-client privilege, or the conflict of interest presented by Mr. Amstutz’s new employment.
Mr. Amstutz testified that he was a contract attorney with the Parish of Jefferson’s Indigent Defender Board from approximately November, 1991, until sometime in 1997. He testified that his general procedure with all clients was to advise them of their rights, including their right to a jury trial and that they could waive that right. Amstutz testified that he remembered Mr. James, although he did not have access to his IDB files on this case. At this point there was an objection by defense counsel. In a side bar, the court stated that since the defendant raised the issue as to whether or not he was properly 17advised of his constitutional right to trial by jury, he had waived any attorney/client privilege with respect to that particular issue.
Mr. Amstutz testified that he always advised his clients of this right, and that it was his understanding that the defendant, not counsel, was the one who must make the decision to whether or not to waive trial by jury. He said that he was not singling out any of his former cases. He testified that if a bench trial took place, then the defendant must have waived trial by jury, and that the record spoke for itself.
As we stated above, a waiver of a jury trial is never presumed. The evidence adduced at the evidentiary hearing shows no affirmative waiver of this right by the defendant. His former defense counsel presumed that James must have waived his right to trial, since a bench trial took place, and said that the record “speaks for itself.” But it is this presumption that the law does not allow. The evidence, at best, shows that Am-stutz probably advised the defendant of his right to trial by jury. The evidence does not show that James waived this right, either knowingly, intentionally, or otherwise. Therefore, James’s conviction must be reversed, and the matter remanded for a new trial.
We do not find that Amstutz’s testimony breached attorney/client privilege. The fact, by itself, that Amstutz testified, did not breach the attorney/client privilege. While he testified that he did recall a conversation with this defendant, Amstutz kept the scope of his testimony to his general practice in all of his cases, specifically saying that he was not singling out any one case. He did not testify to the substance of any specific conversation with the defendant.

James II, 751 So.2d at 420-21, 422-23.

Our reading of James II is that the fifth circuit found only that there was no breach of the attorney-client privilege because the trial counsel did not testify to any specifics of James’ case and not that, if he had, it would have been improper.

In the current case, Defendant essentially argues that he did not raise the issue of whether he validly waived his right to a trial by jury and he did not waive the attorney-client privilege. He argues the only issue is whether there was an actual waiver, not whether the waiver was intelligent or knowing; therefore, it was error to have compelled trial counsel to testify. He states that “[i]f in fact a valid waiver had been made, the State could have proven this by other means, such as producing a transcript of another hearing where a waiver was made or calling 18others present when the waiver was alleged to have been made at docket sounding to determine what was said and whether Appellant was present at this stage.”

In the current case, the issue before this court was whether the waiver was knowingly and intelligently made. This court already established that the record did not memorialize the waiver, as we required the district court clerk’s office to produce any minute entry and/or the pertinent portion of any transcript concerning a discussion of Defendant’s waiver of jury trial-of which there was none. It would have been irrational for this court to have remanded the matter to determine if there were transcripts or minute entries regarding the waiver when it had already made that determination. Therefore, as Defendant points out, the resolution would be to call “others present when the waiver was alleged to have been made at docket sounding to determine what was said and whether Appellant was present at this stage.” The only others in this case would be the attorney, the judge, and Defendant himself.

As noted in James II, in Cappel, 525 So.2d 335, although the issue of the attorney-client privilege was not before the court while deciding if there was adequate evidence of a valid waiver of a jury trial, in a footnote, the court stated “[a]t such hearing, testimony by defendant and defense counsel would certainly be relevant, if not dispositive of the issue.” Id. at 337, n. 3.

Louisiana Code of Evidence Article 507, in pertinent part, provides:

A. General rule. Neither a subpoena nor a court order shall be issued to a lawyer or’ his representative to appear or testify in any criminal investigation or proceeding where the purpose of the subpoena or order is to ask the lawyer or his representative to reveal information about a client or former client obtained in the course of representing the client unless the court after a contradictory hearing has determined that the information sought is not protected from disclosure by any applicable privilege or work product rule; and all of the following:
|9(1) The information sought is essential to the successful completion of an ongoing investigation, prosecution, or defense.
(2) The purpose of seeking the information is not to harass to the attorney or his client.
(3) With respect to a subpoena, the subpoena lists the information sought with particularity, is reasonably limited as to subject matter and period of time, and gives timely notice.
(4) There is no practicable alternative means of obtaining the information.

We find that considering the above jurisprudence and La.Code Evid. Art. 507, the trial court did not err when it allowed trial counsel to be subpoenaed and questioned concerning whether Defendant knowingly and intelligently waived his right to a trial by jury. All of the prerequisites of article were satisfied. The information sought was essential to the completion of the current appeal. The State’s purpose for issuing the subpoenas was not to harass either the client or the attorney but to resolve a question ordered to be resolved by this court. The subpoenas listed the specific information sought and gave timely notice. Finally, there was no alternative means of obtaining the information. The only indication in the record that a jury trial was waived was the fact that a judge trial occurred without objection and the question was not raised on appeal — it was this court that noticed and raised the error patent.

At the evidentiary hearing, the hearing judge ruled:

Well, look, I read both of your briefs, and this Court finds that under the rules of professional conduct a lawyer may reveal information related to the representation of the client to the extent that the lawyer reasonably believes necessary to respond to allegations in any proceedings concerning the lawyer’s representation of a client.
So, this Court finds that the attorney-client privilege does not exist on the issue of whether the defendant knowingly and intelligently waived his right to trial by jury. So, that’s the issue here, whether the defendant fully was informed of his rights regarding waiving his rights to trial by jury. So, the subpoenas are necessary.

[^According to Attorney Lopez, at the time of the trial, he was a District Defender for St. Landry Parish. He had been District Defender for approximately fifteen years and had tried “over a hundred” criminal cases during that time. He stated that of those cases perhaps fifteen or twenty were tried in front of a judge rather than a jury. He testified that it was his practice to look at a case, the evidence, the nature of the charge, and then he would make an independent decision as to whether the client should consider waiving the jury. He stated that in the current case, particularly after a La.Code Evid. art. 404(B) hearing, where it was determined that evidence of other incidents of inappropriate sexual contact with minors would be admitted, he decided that the case was better off being tried in front of a judge.

Attorney Lopez testified that he recalled discussing the matter with Defendant sometime in March 2010. He asserted that at the time, he had numerous contacts with Defendant, and he was of the belief that Defendant was intelligent and comprehended the “general nature of the matters that he was facing.” He explained that Defendant had copies of all of the discovery he had in his file, except for DVD’s and videotapes of the alleged previous victims, which they viewed together in Attorney Lopez’s office. Attorney Lopez stated while it is very rare that he “instructs” a client, he will “strongly suggest [in] some situations.”

A. Mr. Richard, and I’m going to be very honest. I would have felt very uncomfortable trying this case before a jury. I just don’t think I would have. I mean, I would have if I was forced to, but I didn’t feel comfortable with it under the circumstances. So, I would have probably strongly suggested that he listen to what my thoughts were.
Q. Did he indicate, well let me ask you. If he’d said no I want a jury trial, what would you’ve done?
A. You mean if he said no I want a jury trial?
Q. Yeah, yeah.
|1TA. I would have had to — I would have had to do what he wanted.
Q. Did he indicate he wanted a jury trial, at any point in time?
A. No.

Attorney Lopez stated that he believed Defendant had made a “knowing and intelligent decision to follow” his advice to elect a judge trial. He stated that he “surely” told him he had a right to a trial by jury.

A. That he had a right to a trial by jury. Did I elaborate on that in great, great detail, probably not, but I did inform him that it was obviously two ways to go with this matter.
Q. Do you remember how many conversations you had regarding the jury trial waiver, or was there just one where you — go ahead?
A. I — there was [sic] surely, surely two. There was surely one in my office, and that’s the one I can sort of recall how we were sitting and where we were sitting. I remember that discussion. The second one was before I informed the Judge that we were going to waive the jury, and I believe it was at maybe a docket sounding or the morning of a jury selection, in any case, when I informed Judge Hebert, when Mr. [L.]’s name was called, sort of what are we going to do. I said, we’re waiving the jury, Your Honor. And I believed that I would have talked to him prior to that, me saying that to a Judge again.

Although he was not in the room when Attorney Lopez advised the judge of the decision, Defendant was in the courthouse at the time he advised the trial court of the decision. Attorney Lopez stated he remembered this because a date was set for the trial and he had to make certain Defendant knew of the date. He further explained that following these sessions with the judge and other attorneys, which included the district attorneys, regarding trial priority list, the usual practice was to then go into to the courtroom and put in to the minutes certain decisions made while in the judge’s “backroom.” However, after waiving the jury trial and leaving the session, he told Defendant he was free to leave for the day because they had the trial date.

112Judge Donald W. Hebert testified that he had no conversation with Defendant regarding waiving a jury trial. He recalled that “as we were going through the Simpson list priority list, [Attorney Lopez] indicated that the matter would be going to trial, and that it would be a bench trial, and that the defendant was waiving the jury.” He testified that the fact a contemporaneous record was not made of the waiver was “a short coming on my part.” He stated that at the time of trial, he had no concerns about it being a judge trial because “of the caliber of defense counsel that was involved.”

The hearing judge then ruled:

Here’s how I see it. From Attorney Ed Lopez’s testimony here on the stand today. You know, he said, basically I independently made a determination that the case should be tried by a Judge. He went [sic] to say that the 404(B) evidence convinced me that the case should be tried by a Judge. Yes, I have an independent recollection of discussing waiving the jury with the defendant, probably, initially at my office. He, the defendant, was able to answer my questions and to make comments as to the defense. I had no reason to believe that the defendant was not able to assist me. We discussed the 404(B) evidence with him. The defendant he was talking about. I delivered a copy of the tapes and the discovery to the defendant. We may have reviewed them together, probably at my office. We had numerous personal contact, or I had numerous personal contacts with the defendant. I probably talk [sic] to him more than any other clients. I made it known to the defendant that they have to suffer the consequences, and I would have felt very uncomfortable trying this case before a jury. And I probably strongly suggested to the defendant the jury be waived. He did not indicate, talking about the defendant, that he wanted a jury trial after me advising him. I believed that he understood that he had a right to trial by jury, on at least two occasions. One, at my office and for sure, the second one before I informed the Judge that we were going to waive the jury at docket sounding in the backroom, which is in the Judge’s chambers.
Mr. Lopez went on to say, on cross examination, that he always believed that this case would be tried by the Judge. Mr. Lopez said he had an independent recollection of telling Judge Hebert that they were going to waive the jury-
So, this Court, after hearing all of the evidence and arguments of counsel, rules that the defendant in this case, [A.D.L.] made a knowingly [sic] and intelligent waiver of his rights to trial by jury and elected to be tried by a bench trial before Judge Hebert.

|,(¡Defendant argues there is nothing in the record to indicate that he believed and, “more importantly, desired the case be tried by a judge instead of before a jury.” He asserts that the “hearing judge’s summary of the facts is not fully supported by the record[.]”

In State v. Singleton, 05-622 (La.App. 5 Cir. 1/31/06), 922 So.2d 647 (Singleton I), the defendant was tried by the trial court and found guilty of aggravated rape. Pri- or to trial, defense counsel filed a motion to waive the jury trial and the trial court signed the motion the same day in chambers without a hearing. Although defense counsel had signed the motion, defendant had not. On appeal, the defendant alleged that he had left the decision to waive his right to a jury to his attorney but then asserted that he had not been advised of the options and benefits of a jury trial. Because the record was devoid of any testimonial evidence of the validity of the waiver, the fifth circuit remanded the matter to the trial court for an evidentiary hearing on whether the defendant had knowingly and intelligently waived the right and reserved his right to appeal an adverse decision by the trial court.

When the matter came back to the fifth circuit in State v. Singleton, 07-321, pp. 3-6 (La.App. 5 Cir. 10/30/07), 971 So.2d 396, 397-99, writ denied, 09-2021 (La.8/18/10), 42 So.3d 391 (footnote omitted) (Singleton II), on whether the trial court erred when it determined that the defendant had knowingly and intelligently waived a jury trial, the fifth circuit, while affirming the trial court’s ruling, discussed the trial court’s findings:

On remand at the evidentiary hearing, defendant testified that he did not tell his attorney to submit a document waiving his right to a jury trial and that he did not sign any document to that effect. He testified that his counsel told him a bench trial would be best because he would get less time than he would with a jury trial. Specifically, defendant stated the following:
114WeIl, when he explained it to me over the phone, and the way he told it to me, he said, if you go with a jury trial and the victim goes to boo-hooing and this and that and get the people to believe and the judge will believe her, you can get — you’ll get lesser time if you go with a judge trial. He said I’ll get 60 to 70 years. That’s what he told me.
After the trial court asked about his opinion at that point, defendant responded, “When he told me that, I said, well, I said, well, you the lawyer, you know what you’re talking about. He said yes, and he hung up the phone. And that was it.”
Defendant claimed he did not speak to his counsel thereafter. He admitted that he did not present objections at the bench trial and stated he did not raise his objection sooner because he did not understand. He explained to the judge that he found out after trial that it was better to have a jury trial because ten out of twelve people render a verdict instead of the one judge.
Nathan Folse, defendant’s former trial attorney, testified at the hearing as well. He testified that when defendant turned down the plea offer made by the State, they discussed in depth his choice between a bench trial or a trial by a jury of twelve. Mr. Folse testified that because of the sensitivity of the case involving defendant’s minor niece, they discussed that it may be in defendant’s best interest to be judged by the judge alone, rather than a twelve-person jury. He explained that prior to trial and during the case they had discussions of whether the case would be best heard by a judge instead of a jury. They discussed counsel’s experience with juries in St. James Parish and their conviction rates, the nature of the case involving the alleged rape of a minor child and the involvement of defendant’s family. Mr. Folse testified explicitly that he discussed this with defendant numerous times, with many discussions being in person. Mr. Folse testified that defendant was aware that he would file a Motion to Waive a Jury Trial and was in agreement. Mr. Folse stated that defendant never expressed reservations about having a bench trial and that he first became aware of defendant’s objection to the bench trial when he received a call about being a witness in this matter. Mr. Folse could not recall why defendant’s signature was not obtained on the motion.
Also at the hearing, the trial court asked Mr. Folse if prior to trial Mr. Folse had talked to the court about defendant wanting to waive his jury trial. Mr. Folse responded that there was a discussion at the bench that defendant wanted to waive his right to a trial by jury and the court tried to advise that he might want a jury trial. According to Mr. Folse, defendant was advised of what the trial court thought might be in his best interest, but defendant decided he wanted to waive his right to a jury trial and have a bench trial.
|1BOn remand, at the evidentiary hearing, the trial court stated the following:
Okay. Based on the testimony and based on the court’s knowledge of this particular — the intricacies of this particular case, there’s no doubt in this court’s mind that this defendant did, in fact, waive his right to a jury trial. At no time did he express to this court that he wanted to have a jury trial.
As a matter of fact, the court remembers, and it’s not on the record, but the court remembers this defendant specifically telling his counsel that he wanted to have a bench trial. And the court told his counsel that he should have a jury trial, or advised him he might want to have a jury trial, but he insisted on having a bench trial.
Therefore, based on this particular hearing, the court finds no merit whatsoever in the defendant’s contention that he did not knowingly and intelligently waive his right to a jury trial, and let the record so reflect.
In the present case, a Motion to Waive Trial by Jury was filed by defense counsel. Although this Court, in defendant’s first appeal, found the attorney-filed motion was insufficient to show a knowing and intelligent waiver, we find that the testimonies elicited at the evidentiary hearing show a valid waiver.

In the current case, only the trial counsel’s testimony evidenced the validity of the waiver. The trial judge never spoke with Defendant and could only verify that he was told Defendant had waived jury trial. Unlike the situation in the Singleton case, where a motion to waive jury trial was filed several months prior to trial, in the current case, there was no indication of a waiver other than the fact the judge trial took place without objection.

In James I, 656 So.2d 746, the matter was raised on appeal when the defendant asserted that the trial court erred by not placing nor having included in the record proof that he waived a jury trial. In James II, 751 So.2d 419, a transcript of the arraignment was submitted which showed that while the trial court [ ^advised James that he had a right to a jury trial or a judge trial if he should so choose but there was no election or response in the record. Then, while trial counsel testified as to his general practice regarding whether his clients received a jury trial or a judge trial, he did not testify to the substance of any specific conversation with James. Accordingly, the fifth circuit found the record insufficient, reversed James’ conviction, and remanded for a new trial.

In the current case, as previously noted, there was no testimonial evidence or minute entry indicating Defendant was advised of his right to a jury trial. He was arraigned on August 21, 2008. According to the minute entry, he waived formal arraignment. “Defendant’s Written Plea of Not Guilty in Lieu of Formal Arraignment with Notice of Trial Date and Other Appearance Dates” was filed on August 21, 2008, wherein Defendant was notified of his felony jury selection date. Otherwise, there was no indication he was advised of his right to elect a jury trial or a judge trial. However, unlike in James II, defense counsel testified to the substance of at least one specific conversation with Defendant regarding whether he should elect a judge trial over a jury trial and stated there was a second conversation at the courthouse just prior to advising the trial court that Defendant waived a jury trial.

Defendant argues this court should find that the record now before this court is insufficient to establish whether Defendant validly waived the right to a jury trial. In Singleton I, 971 So.2d 396, there was some indicia of evidence in the record prior to trial that the defendant may have waived his right to a jury trial — the motion to waive jury trial. The written motion together with trial counsel’s testimony at the evidentiary hearing and the defendant’s admission he had a conversation with his attorney about the election were found to be sufficient evidence of a knowing and intelligent waiver. The same was found in State v. Fuslier, 07-572 (La.App. 3 Cir. 10/81/07), 970 So.2d 83, wherein the only evidence of a waiver was an unsigned motion to waive filed prior to trial by defense counsel. At the evidentiary hearing, defense counsel testified regarding extensive conversations he had with Fuslier regarding the benefits of waiving a jury trial. Furthermore, Fuslier also testified he understood the strategy of a judge trial in his case.

However, we find that the testimony given at the evidentiary hearing was sufficient to support the hearing judge’s ruling. Defendant refused to testify at the eviden-tiary hearing. Initially, the State asked Defendant his position on the issue of whether he knowingly and voluntarily waived the right to a jury trial. However, as noted above, Attorney Balfour advised the hearing judge that Defendant wished to remain silent and asserted the attorney-client privilege. The State argued it was not a matter of the Fifth Amendment right against self-incrimination. The State argued:

There’s nothing in any jurisprudence that says that you have the right to remain silent whether or not you intended something. You come in. You take a plea. He came in. He sat through a trial. He has taken a position, and I think that, that’s why we have to determine whether or not he intends to — let’s say we do this. Let’s say we go through this hearing, and you determine that he is going to be given a second bite at the apple. And — I don’t think he’s entitled to it, but then he waives the jury again. What’s the point of that? I mean, I think the Court has a right to hear him, but to hear from him at this point say do you intend to continue with your waiver. Because you made knowingly and intelligently on the front end, or do you contend that you were not, because that’s the issue. You were not knowingly and intelligently properly informed so that you could knowingly and intelligent waiver, and that’s all he’s got to take a position.

At the evidentiary hearing, there was nothing before the hearing judge to refute Defendant’s trial counsel’s testimony that Defendant knowingly and intelligently waived a jury trial. The hearing judge had Attorney Lopez’s testimony to consider, and, as pointed out by the State, Defendant made nonobjection during trial, nor raised the issue on appeal. The trier of fact can accept or reject, in whole or in part, the testimony of any witness. Furthermore, it is not the function of the appellate court to second-guess the credibility of a witness as determined by the trier of fact or to reweigh evidence absent impingement on the fundamental due process of law. State v. Frith, 08-52 (La.App. 5 Cir. 4/29/08), 985 So.2d 792. Finally, whereas the issue of whether Defendant waived the right to a jury trial was an issue of fact and not of law, we cannot say that the hearing judge abused his considerable discretion.

DECREE:

We affirm the hearing judge’s ruling that found Defendant validly waived his right to a jury trial.

AFFIRMED.


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    Stephanie NITCHER v. NORTHSHORE REGIONAL MEDICAL CENTER.
    No. 2011 CA 1761.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2012.

      D. Steven Wanko, Jr., Mark R. Ladd, Covington, LA, for Plaintiff-Appellant Stephanie Nitcher.
    Foster P. Nash, III, Emily R. Adler, Travis L. Bourgeois, New Orleans, LA, for Defendant-Appellee Northshore Regional Medical Center.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   KUHN, J.

| ¡Appellant-claimant, Stephanie Nitcher, appeals from a judgment of the Office of Workers’ Compensation (OWC) denying her claim for temporary or permanent total disability benefits, as well as her claims for penalties and attorney fees. For the reasons assigned, we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL BACKGROUND

In 2005, Nitcher filed a disputed claim for compensation claiming entitlement to temporary or permanent total disability benefits, continued medical treatment,penalties and attorney’s fees. On November 13, 1995, Nitcher was employed as a respiratory therapist by appellee-employer, Northshore Regional Medical Center (NRMC), when she injured her lower back in a work accident that occurred as she attempted to open the drawer of a file cabinet and it fell forward on her. Subsequently, Nitcher underwent a percutaneous discectomy at L5-S1 in 1996, and a lumbar laminectomy with a cage fusion at L5-S1 in 1998. She has not returned to work since the accident.

Nitcher was paid a combination of temporary total disability benefits and supplemental earning benefits for a period in excess of 520 weeks, after which indemnity benefits were terminated in October of 2007. Thereafter, Nitcher amended her disputed claim for compensation to seek indemnity back pay, authorization for medical treatment, and additional penalties and attorneys fees for termination of benefits.

Following a trial on March 24, 2011, the OWC issued a judgment denying Nitcher’s claim for temporary or permanent total disability benefits on the grounds that she failed to prove by clear and convincing evidence that she was unable to|aengage in any employment, because the medical evidence indicated she was capable of at least sedentary work. However, the OWC rendered judgment in favor of Nitcher on the issue of NRMC’s failure to authorize medical treatment, finding that a lumbar disco-gram recommended by her treating physician was necessary. In addition to paying the cost of that procedure, NRMC was ordered to pay a penalty of $2,000.00 and attorney fees of $3,000.00 for failing to authorize the procedure. NRMC was further ordered to pay unpaid mileage related to Nitcher’s medical treatment, as well as $2,000.00 in penalties and $3,000.00 in attorney fees for that nonpayment. Nitcher has now appealed, raising the following assignments of error:

1. The OWC erred in failing to strike and disregard the testimony of Kathleen Falgoust as to vocational rehabilitation services she provided to Nitcher.
2. The OWC committed manifest error in failing to award Nitcher indemnity benefits for permanent total disability or temporary total benefits.
3. The OWC erred in failing to award Nitcher penalties and attorney fees for NRMC’s termination of indemnity benefits.
4. The OWC erred in excluding “Exhibit F,” as well as Nitcher’s testimony, regarding the lack of authorization for medical appointments.
5. The OWC erred in failing to award penalties and attorney fees for NRMC’s denial of authorizations for medical appointments.
6. The OWC erred in determining that Nitcher’s average weekly wage was $459.93 at the time of her accident.
7. The OWC erred in not assessing all litigation costs to NRMC.
8. The OWC erred in the amount of attorney fees awarded, which should be increased.

\ ¿TESTIMONY OF VOCATIONAL REHABILITATION COUNSELOR

In her first assignment of error, Nitcher contends this Court should disregard the entirety of Kathleen Falgoust’s testimony as to the vocational rehabilitation services she provided to Nitcher, because the OWC erred in denying the motion to strike made at trial regarding this testimony. Specifically, she alleges this testimony should have been excluded because: 1) Falgoust did not provide meaningful rehabilitation to Nitcher; 2) Fal-goust did not provide Nitcher with a list of suitable jobs; and 3) Falgoust was not neutral in rendering her opinion.

Initially, we observe that Nitcher did not actually file a motion to strike at trial, but did object to Falgoust’s testimony. In fact, Nitcher’s objection was somewhat unusual because, after calling Falgoust as a witness, Nitcher then objected to the testimony as a vocational rehabilitation expert. The stated basis of the objection was the fact that, although counsel subpoenaed her entire file, Falgoust did not bring all the medical records contained in her file to trial. Falgoust explained that she produced everything from her file that she had done from a vocational point of view.

We find no error in the OWC overruling Nitcher’s objection. First, the arguments made by Nitcher actually go to the weight of Falgoust’s testimony, and not to its admissibility. Second, even if the issue was one of the testimony’s admissibility, the decision to admit or exclude expert testimony is within the sound discretion of the trial court, and its judgment will not be disturbed by an appellate court unless it is clearly erroneous. See La. C.E. art. 702, comment (d); Devall v. Baton Rouge Fire Department, 07-0156 (La.App. 1st Cir.11/2/07), 979 So.2d 500, 503. At trial, Nitcher did not object to Fal-goust’s qualification as a vocational rehabilitation counselor, but merely complained that she had not produced all of the medical records contained in her file. However, the issue of which medical records Fal-goust reviewed in reaching her conclusions was a matter that Nitcher could explore through questioning. Further, in overruling the objection, the OWC indicated it was probably unreasonable to expect the witness to produce all of the medical records in the context of a “voc file,” and her failure to do so did not disqualify her from testifying. We find no error or abuse of discretion in this determination.

This assignment of error lacks merit.

DISABILITY DETERMINATION

In her second assignment of error, Nitcher contends the OWC committed manifest error in finding that she did not meet her burden of proving entitlement to permanent total disability benefits, or alternatively temporary total benefits.

A workers’ compensation claimant who seeks temporary total or permanent total disability benefits must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of the nature or character of the work. La. R.S. 23:1221(l)(c) and (2)(c). In the absence of such evidence, the claimant’s demand for temporary total or permanent total disability benefits fails. See Walker v. High Tech Refractory Services, Inc., 03-1621 (La.App. 1st Cir.6/25/04), 885 So.2d 1185, 1188. The issue of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the issue of disability is determined with reference to | fithe totality of the evidence, including both lay and medical testimony. Walker, 885 So.2d at 1188. While the workers’ compensation laws are to be construed liberally in favor of the claimant, that interpretation cannot lessen the claimant’s burden. Isaac v. Lathan, 01-2639 (La.App. 1st Cir. 11/8/02), 836 So.2d 191, 199. Ultimately the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. Tillery v. State, Department of Public Safety and Corrections, 07-1228 (La.App. 1st Cir.2/8/08), 984 So.2d 742, 744.

It is undisputed that Nitcher cannot return to her former employment as a respiratory therapist. However, the reasons for judgment reflect that the OWC relied on the opinions of Doctors Logan, Moss and Laborde that Nitcher could perform at least sedentary work, combined with a list of jobs Falgoust identified as suitable for Nitcher, in concluding that she was not either temporarily or permanently totally disabled. Upon a thorough review of the record, we conclude this factual determination was manifestly erroneous for the following reasons.

It is true that Dr. John Logan, an orthopedic surgeon and Nitcher’s treating physician since 2002, did indicate in his 2006 deposition that she was capable of performing part-time sedentary work, with restrictions. Yet, despite this statement, when the entirety of his deposition and his medical records are considered as a whole, it is abundantly clear that he was of the opinion that she was incapable of returning to work as a practical matter. Almost immediately after saying in his deposition that she could do sedentary work, he stated: “The problem with that is I don’t know ... I don’t know if there’s true sedentary work in the community available to somebody who is in pain, who has to change positions frequently and may have an [sic] excessive absenteeism due to their pain.” |7[Emphasis added.] Further, when questioned as to whether Nitcher could perform light duty work, he responded that:

Intuitively, yes, but with the constraints I said before. You know, you’re asking me light duty. What I immediately focus on is the federal guidelines as I know them, lifting no more than, what is it, five to eight pounds, ... changing positions frequently. The problem is do we have a light duty position in reality. And I’m not sure we do. Again because of absenteeism due to pain, narcotic medications. I mean to do the actual physical demands of light duty, I would answer yes. To do the demands of full-time employment, I would probably say no. And those are two separate things that we never put into account when I’m asked if a patient can do light duty. [Emphasis added.]

Additionally, Falgoust, the vocational counselor hired by NRMC, sent Dr. Logan a list of jobs to review in December 2007, for possible approval as being suitable for Nitcher. He responded emphatically that Nitcher was “unable to return to work in any capacity.” Further, shortly before trial, Dr. Logan indicated in a January 2011 “rehab report” that “she remains unfit for duty....” The bottom line is that, despite statements in his 2006 deposition that Nitcher could perform sedentary work and possibly some light-duty work, Dr. Logan never released her as being fit for duty. His deposition testimony and medical records as a whole reflect that he did not believe Nitcher was capable of returning to work in any capacity due to her continued pain, as well as the effects of the narcotic medications she was required to take to control that pain.

At trial, evidence was also presented that Dr. John Steck, a neurosurgeon, examined Nitcher in November 2006, and opined that she could return to work in a sedentary to light-duty position. She was also examined by Dr. J. Lee Moss, an orthopedist, in August 2006, and he likewise was of the opinion that she was capable of sedentary work. Dr. Moss approved several jobs submitted to him by LFalgoust as being within Nitcher’s capacities. However, when she submitted additional jobs for his approval, he indicated that the approval or denial of jobs was a matter better handled by Nitcher’s treating physician. Both Dr. Steck and Dr. Moss were selected by NRMC for the purpose of obtaining second opinions, and saw Nitcher on only one occasion in 2006.

Dr. J. Monroe Laborde, an orthopedic surgeon who conducted an independent medical examination for the OWC in 2007, concluded that Nitcher had a forty percent whole body impairment. Nevertheless, he opined in his August 2008 deposition that she was not totally disabled and could return to sedentary work with a restriction of ten pounds maximum lifting. Dr. La-borde also reviewed and approved several jobs Falgoust sent to him as being suitable for petitioner.

However, in his deposition testimony, Dr. Laborde significantly qualified his disability determination by candidly explaining that his opinion was based strictly on Nitcher’s physical orthopedic condition, and that he did not consider other relevant factors that he would have taken into account if he had been her treating physician. He acknowledged that, in rendering his opinion, he did not possess additional information that was available to her treating physician, who was familiar with Nitcher, her overall treatment, and her response thereto. He explained that:

In other words, based on strictly her physical condition, there are three doctors who agree she’s physically capable of sedentary work. If you add into that psychological factors, lack of response to treatment, and inability to get patient back to work of any type for over a period of many years, then that could combine to cause me or Dr. Logan to say she’s totally disabled.

|flFor that reason, he indicated he had no reason to disagree if Nitcher’s treating physician believed she was totally disabled.

At trial, Nitcher testified that she was receiving ongoing treatment with a pain management physician who had treated her for over a decade due to pain she continued to experience in her back and legs. In order to manage the pain, she received injections on occasion and took numerous pain medications, including narcotic drugs that affected her ability to think clearly and caused fatigue and drowsiness. As a result, she generally napped two to three times a day, for a total of two to three hours. Additionally, Nitcher testified that she had to frequently change positions by standing up, sitting down, lying down, or generally moving about. Depending on her level of pain, she could sometimes sit for thirty to sixty minutes at a time, although at other times she could sit a little less or a little more than that.

As previously noted, based on the totality of the evidence presented, both medical and lay, we conclude the OWC was manifestly erroneous and clearly wrong in finding that Nitcher was not permanently totally disabled. First, by focusing exclusively on only select portions of Dr. Logan’s deposition testimony, the OWC appears to have erroneously concluded that he agreed with Doctors Moss and La-borde that she could return to work performing sedentary duties. By thus limiting its focus, the OWC apparently either ignored or misconstrued the fact that his disposition as a whole, as well as his medical records and emphatic responses to Falgoust’s inquires about suitable jobs, reveal that he did not believe Nitcher was capable of working as a practical matter, due to her pain, medications, and applicable restrictions, including excessive absenteeism.

| ^Second, Dr. Logan’s opinion that Nitcher was unfit for duty was the only current medical opinion presented at the time of the 2011 trial, since the other physicians had not seen her since either 2006 or 2007. Additionally, although Drs. Steck, Moss, and Laborde each opined that Nitcher was capable of performing sedentary work, each of these doctors saw Nitcher on only one occasion for evaluation, as opposed to Dr. Logan, who had been her treating physician for almost a decade at the time of trial. The general jurisprudential rule is that a treating physician’s opinion is entitled to more weight than that of a non-treating physician. McCray v. Delta Industries, Inc., 00-1694 (La.App. 1st Cir.9/28/01), 809 So.2d 265, 272.

In accordance with this principle, Dr. Moss, after initially approving several job descriptions sent to him by Falgoust, indicated that Nitcher’s treating physician was better suited for determining whether or not she was capable of performing specific jobs. Moreover, Dr. Laborde also implicitly acknowledged the correctness of giving greater weight to a treating physician’s opinion when he explained that a treating physician had more relevant information available to him in making a disability determination. It was for this reason that he testified he had no basis to disagree if Dr. Logan concluded Nitcher was totally disabled.

Third, in its reasons for judgment, the OWC also appeared to give great weight to Falgoust’s testimony regarding the list of purportedly suitable jobs she located for Nitcher that were approved by either Drs. Moss or Laborde, but for which Nitcher failed to apply. In doing so, the OWC apparently ignored the fact that Dr. Logan refused to approve the jobs, even though Drs. Moss and Laborde both indicated that, as her treating physician, Dr. Logan was in a better position to |nmake that determination. The jobs identified by Fal-goust failed to meet the restrictions imposed by Dr. Logan of being part-time employment that permitted frequent absenteeism. All of the jobs were for full-time positions. Further, although Fal-goust spoke to two recruiters who indicated they would consider a candidate requiring a job where they could frequently change physical positions, she did not verify that frequent absences would be acceptable in those positions. Given these circumstances, the OWC manifestly erred in finding that Falgoust identified suitable jobs for Nitcher.

Finally, we note that, in finding that Nitcher was not totally disabled, the OWC also considered it significant that no evidence was offered of any attempts by her pain management physician to wean her off of her medications, even though she testified that she could not work because of the effects of those medications. However, we believe it was improper for the OWC to consider this factor as mitigating against Nitcher’s claim of disability. At trial, there was absolutely no evidence presented, medical or lay, to suggest that the medications were not medically necessary to control her pain. Nitcher was under no obligation to discontinue medically necessary medications prescribed by her doctors.

Thus, considering the totality of the evidence, including Dr. Logan’s opinion that Nitcher was incapable of returning to work, together with her testimony regarding her pain and the detrimental effects of her medications, we find that the OWC erred in finding that Nitcher failed to prove by clear and convincing evidence that she is permanently totally disabled from any employment. Having met that burden of proof, Nitcher is entitled to benefits for | ^permanent total disability. The judgment of the OWC must be reversed to the extent that it denied her claim for such benefits.

This assignment of error has merit.

PENALTIES AND ATTORNEY FEES

In her third assignment of error, Nitcher argues the OWC erred in denying her claim for penalties and attorney fees for NRMC’s arbitrary discontinuance of indemnity benefits. In her fifth assignment of error, she contends the OWC further erred in denying her claim for penalties and attorney fees for NRMC’s arbitrary and capacious refusal to authorize medical appointments.

Awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Further, while the Worker’s Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Iberia Medical Center v. Ward, 09-2705 (La.11/30/10), 53 So.3d 421, 433-434.

At the time of claimant’s injury, two statutory provisions provided the authority for assessing attorney fees and/or penalties. Louisiana Revised Statute 23:1201(F) covered situations in which the employer failed to commence, or recommence, payment of benefits timely, to pay continued installments timely, or to pay medical benefits timely. Under this statutory provision, both penalties and attorney’s fees were recoverable unless the claims were reasonably controverted. Additionally, pursuant to La. R.S. 23:1201.2, the employer could be liable for the | ¶¡¡payment of attorney fees, but not penalties, if the employer arbitrarily and capriciously discontinued the payment of benefits due. A determination of whether an employer has been arbitrary or capricious or has failed to reasonably controvert a claim is a question of fact and is subject to the manifest error standard of review. Atwell v. First General Services, 06-0392 (La.App. 1st Cir.12/28/06), 951 So.2d 348, 357, writ denied, 07-0126 (La.3/16/07), 952 So.2d 699. The Louisiana Supreme Court has stated that “[ajrbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation.” Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 890.

In the instant case, NRMC terminated Nitcher’s indemnity benefits after receiving opinions from several physicians that she was capable of performing sedentary work. Moreover, at the time of the termination, Nitcher had exhausted her SEB benefits. Under these circumstances, although we have concluded herein that Nitcher met her burden of establishing that she is permanently totally disabled, we find no manifest error in the OWC’s denial of penalties and attorney fees for the termination. Based on information NRMC possessed, while the termination ultimately was erroneous, it was not a willful and unreasoning action taken without consideration of the facts.

Additionally, we also find no error in the denial of penalties and attorney fees for NRMC’s alleged failure to authorize medical appointments. An employer’s refusal to authorize reasonable and necessary medical treatment for an | ]4injured employee may justify an award of penalties and attorney fees. See La. R.S. 23:1201(F); Nelson v. Windmill Nursery of Louisiana, L.L.C., 04-1941 (La.App. 1st Cir.9/23/05), 923 So.2d 709, 712, writ denied, 05-2294 (La.3/10/06), 925 So.2d 516. Yet, in this case, the OWC obviously rejected Nitcher’s broad testimony that she had difficulty getting authorization for medical appointments on multiple occasions as being insufficient to carry her burden of proof on this claim.

Initially, we note that Nitcher testified at trial primarily as to alleged difficulties in obtaining authorizations for medical appointments, rather than as to actual denials of authorization. While she did testify that she had to reschedule several appointments because they were not timely authorized, she provided no information as to how or when the requests for authorization were made. Further, although she also testified that she personally paid for an appointment with Dr. Logan on one occasion, she gave no details as to the circumstances involved. While she asserts that her claims are corroborated by notations in Dr. Logan’s records, she failed to correlate those notations with any specific instances of authorization for medical appointments being denied or unreasonably delayed. Accordingly, based on our review of the record, and especially considering that penalties and attorney fees are penal in nature, we are unable to say the OWC was manifestly erroneous in rejecting this claim.

This assignment of error lacks merit.

EXCLUSION OF EVIDENCE

In her fourth assignment of error, Nitcher claims that the OWC erred in excluding from evidence an exhibit and her related testimony as to the denial of | ^authorization for medical appointments as a sanction for her failure to timely answer interrogatories.

The record reveals that NRMC served Nitcher’s attorney on February 8, 2011, with interrogatories requesting that he identify the specific dates of the medical appointments Nitcher claimed were unauthorized and for each of those appointments to describe in detail each communication she had with the medical provider’s staff regarding authorization of the appointment. When Nitcher did not respond, NRMC filed a motion to compel on March 17, 2011, which was set for hearing on March 24, the scheduled trial date.

Upon hearing the motion, the OWC concluded that, although Nitcher responded to NRMC’s interrogatories after the motion to compel was filed, the responses were inadequate. In granting the motion to compel, the OWC stated:

These — the responses don’t give any— they don’t give anybody, especially me, any specifics about what you’re alleging for delayed medical treatment, payment of medical treatment, denial of medical treatment that she was requesting wasn’t made.
... It’s not their job to go digging around to guesstimate which bill might have been paid late or might have not been paid at all such that it would give you a claim for that.

In reaching its ruling, the OWC rejected Nitcher’s argument that she was prevented from answering the interrogatories properly by NRMC’s own delay in producing the claim adjuster’s file on her case. According to her attorney, he needed the file to adequately answer NRMC’s interrogatories, but was only able to obtain the file from NRMC on March 17 after filing a motion to compel. Thus, he claims he had insufficient time to prepare responses to the interrogatories. Like the OWC, we find this argument unpersuasive. Nitcher had one week after | ^receiving the file to prepare responses to the interrogatories. Moreover, it appears the necessary information should have been available to her from other sources, including her own records or those of her medical providers.

As a sanction for failing to properly answer NRMC’s interrogatories, the OWC granted NRMC’s request to exclude an exhibit (“Claimant’s Exhibit F”) offered by Nitcher pertaining to an allegedly unpaid medical bill. Pursuant to La. C.C.P. art. 1473, if a party fails to answer interrogatories, the court in which the action is pending may, on motion, make such orders in regard to the failure as are just, and may impose certain sanctions authorized under La. C.C.P. art. 1471, including prohibiting a party from introducing designated matters into evidence. However, the trial court’s discretionary authority to disallow evidence at trial, based on a party’s failure to answer interrogatories, should be exercised only when the ends of justice dictate exclusion of the evidence. See Varnell v. Louisiana Tech University, 28,266 (La.App. 2d Cir.4/3/96), 671 So.2d 1238, 1240. Among the factors to be considered in imposing sanctions for a party’s failure to comply with a discovery request are the prejudice to the other party and the wilfulness of the noncomplying party. Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199, 204.

In the instant case, the OWC indicated it was excluding Exhibit F as a matter of fairness. It observed, in particular, that despite the fact that the outstanding discovery was discussed at an earlier hearing on March 11, Nitcher’s attorney had still failed to adequately respond at the time of trial on March 24. Furthermore, the attorney offered no valid explanation for that failure. Consequently, we find no abuse of discretion in the OWC’s exclusion of Exhibit |17F. Nitcher further claims that the OWC improperly limited her testimony related to unauthorized medical appointments. However, we note that, while the OWC initially refused to allow her to testify on direct examination as to difficulties she had in obtaining authorizations for appointments, it allowed her to testify on this issue on redirect examination.

This assignment of error lacks merit.

AVERAGE WEEKLY WAGE

In her sixth assignment of error, Nitcher asserts the OWC erred in determining that her average weekly wage was $493.59 at the time of her injury. At trial, Nitcher testified that she was working full-time and earning approximately $20.00 per hour at that time. Based on that testimony, her average weekly wage would have been $800.00. Since no evidence was offered to rebut her testimony, she contends the OWC erred in rejecting her testimony.

In its reasons for judgment, the OWC stated that:

As noted above, counsel stipulated to Ms. Nitcher’s compensation rate of $329.06 per week. While Ms. Nitcher testified that she usually made around $20.00 per hour at NRMC, she offered no credible documentary evidence to support this assertion. Given the pen-dency of her claim for almost six years, there was ample opportunity to obtain wage records through discovery. For these reasons, the court concludes that Ms. Nitcher’s average weekly wage at the time of her injury was $493.59 ($329.06 compensation rate X 1.5).

Based on our review, we find no error by the OWC. As noted, counsel stipulated to Nitcher’s weekly compensation rate and the OWC extrapolated her average weekly wage from that amount. The calculation of a claimant’s average weekly wage is a factual finding subject to the manifest error-clearly wrong standard of review. Tucker v. St. Tammany Parish School Board, 03-2401 (La.App. 1st Cir.9/17/04), 888 So.2d 235, 236. Given the stipulation of counsel, as well as the fact that Nitcher raised no serious objection to her compensation rate for over ten years, we cannot say the OWC manifestly erred in rejecting Nitcher’s testimony concerning her purported earnings at the time of her injury. Moreover, as noted by the OWC, Nitcher had ample opportunity during the pendency of this matter to obtain documentary evidence in support of her claim, but failed to do so.

This assignment of error lacks merit.

LITIGATION COSTS

In her seventh assignment of error, Nitcher contends the OWC erred in failing to assess all costs against NRMC. Specifically, she argues she is entitled to recover the litigation costs she incurred, including the cost of Dr, Logan and Dr. Laborde’s depositions.

In workers’ compensation cases, the awarding of costs is governed by La. R.S. 23:1317(B), pursuant to which the matter lies within the sound discretion of the OWC. See Boleware v. City of Bogalusa, 01-1014 (La.App. 1st Cir.12/20/02), 837 So.2d 71, 75. In this case, rather than assessing all costs against one party, the OWC ordered each party to bear their own costs. We conclude this order was within the OWC’s sound discretion, particularly since neither party | ^prevailed completely on all of their claims in this matter.

This assignment of error lacks merit.

ATTORNEY FEES

In her eighth assignment of error, Nitcher contends the amount of attorney fees awarded by the OWC was erroneous and should be increased by $5,000.00 due to the additional work her attorney performed on appeal.

The amount of attorney fees awarded by the OWC pursuant to La. R.S. 23:1201 is reviewed under an abuse of discretion standard. Adams v. Dependable Source Corporation, 06-1331 (La.App. 1st Cir.5/4/07), 961 So.2d 1183, 1189. In this case, the OWC awarded Nitcher a total of $6,000.00 in attorney fees. To the extent that she is complaining that this amount is inadequate, we find no abuse of discretion by the OWC, which had the opportunity to observe the nature and extent of the work performed by counsel below and to set the awards in accordance therewith.

Additionally, an increase in attorney fees generally should be granted when a party who was awarded attorney fees in the trial court is forced to and successfully defends against an appeal. Bergeron v. Watkins, 98-0717 (La.App. 1st Cir.3/2/99), 731 So.2d 399, 405. Conversely, in this case, rather than being forced to defend against an employer’s unsuccessful appeal, Nitcher was the party who brought this appeal. Moreover, she has been only partially successful on appeal. Consequently, we do not believe Nitcher is entitled to additional attorney fees.

This assignment of error lacks merit.

^CONCLUSION

For the reasons assigned, that portion of the May 19, 2011 judgment of the Office of Workers’ Compensation denying the claim of Stephanie Nitcher for temporary or permanent total disability benefits is reversed, and judgment is hereby entered ordering that she is entitled to permanent total disability benefits. This matter is remanded to the OWC for further proceedings consistent with our rulings herein. Specifically, on remand, the OWC is to calculate the specific amount due and to render judgment in favor of Nitcher accordingly. The judgment on appeal is affirmed in all other respects. The costs of this appeal are to be shared equally by the parties.

AFFIRMED IN PART, REVERSED IN PART, RENDERED IN PART, AND REMANDED.

      . We note that a classification of permanent, total disability can always be modified should circumstances change. Severio v. J.E. Merit Constructors, Inc., 02-0359 (La.App. 1st Cir.2/14/03), 845 So.2d 465, 471.

      . Louisiana Revised Statutes 23:1201.2 was repealed by La. Acts 2003, No. 1204, § 2. Section 1 of Act 1204 added La. R.S. 23:1201(1), which authorizes the imposition of penalties, as well as attorney fees, if an employer arbitrarily, capriciously, or without probable cause discontinues the payment of benefits due.

      . In her disputed claim for compensation, Nitcher did allege that her compensation rate was incorrect, and should be increased to $330.00 per week, a difference of 940 from what she was receiving.

      . Additionally, La. R.S. 23:1310.9 provides that, if the OWC determines that the proceedings have not been brought on a reasonable ground or that the denial of benefits was not based on a reasonable ground, then all costs should be assessed against the party responsible for bringing the proceedings or the party who unreasonably denied the payment of benefits. However, an award of the total costs of the proceedings is mandatory under this statute only upon a finding that a compensation proceeding was not brought on a reasonable ground or that denial of benefits was not based on a reasonable ground. Since the OWC made no such finding in this case, La. R.S. 23:1310.9 is not applicable herein. Boleware, 837 So.2d at 74-75.


author: PETTIGREW, J.

text:
    GULFCO OF LOUISIANA, INC. v. ROUSSE LAND DEVELOPMENT, INC.
    No. 2011 CA 1802.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2012.

      Alan J. Berteau, Baton Rouge, LA, for Plaintiff-Appellant Gulfco of Louisiana, Inc.
    Ray A. Collins, Larose, LA, for Defendant-Appellee Rousse Land Development, Inc.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   PETTIGREW, J.

|;>On October 27, 2008, plaintiff, Gulfco of Louisiana, Inc. (“Gulfco”), filed suit seeking damages and injunctive relief following a lease dispute with defendant, Rousse Land Development, Inc. (“Rousse”). Shortly thereafter, on November 20, 2008, the parties jointly presented the trial court with a consent judgment, which among other things, recognized the validity of the arbitration provisions in the original lease between the parties. Gulfco and Rousse subsequently submitted all issues for resolution to the Honorable Brady Fitzsim-mons, retired, an arbitrator with MAPS Professional Systems, Inc. (“MAPS”).

According to the record, Judge Fitzsim-mons conducted an arbitration hearing on September 30, 2010, and sent his decision to Jill Dunn with MAPS on October 2, 2010. However, for some unknown reason, the decision was not sent to the parties until January 21, 2011, along with a letter from Ms. Dunn dated January 21, 2011, containing the following language: “Enclosed please find a copy of the Decision of the Arbitrator. I apologize for the delay, the error is on my part. The decision was sent to me by Judge Fitzsimmons in October. The decision has been dated for today as to not interfere with any time lines.”

Thereafter, Gulfco filed a motion to vacate the arbitration, arguing that the ruling was null because it was untimely and because the arbitrator manifestly disregarded the law. The trial court heard arguments on June 2, 2011, and rendered judgment December 28, 2011, denying the motion to vacate for reasons assigned in open court.

13This appeal by Gulfco followed, wherein Gulfco assigned the following specification of error: “The Trial Court erred in concluding that [Judge Fitzsimmons’] ruling was issued in a timely manner, such that [he] retained the authority to issue that ruling under [La. Civ.Code art.] 3132, and in finding that [Judge Fitzsimmons’] ruling should not be nullified under [La. R.S.] 9:4210(D).”

Arbitration is a mode of resolving differences through the investigation and determination by one or more individuals appointed for that purpose. The object of arbitration is the speedy disposition of differences through informal procedures without resort to court action. Firmin v. Garber, 353 So.2d 975, 977 (La.1977). Because of the strong public policy favoring arbitration, arbitration awards are presumed to be valid. Judges are not entitled to substitute their judgment for that of the arbitrators chosen by the parties. National Tea Co. v. Richmond, 548 So.2d 930, 932-933 (La.1989). It is well-settled in both state and federal courts that an award may be challenged only on the grounds specified in the applicable arbitration statute. A court does not ordinarily sit in an appellate capacity to an arbitration panel, but confines its determination to whether there exists one or more of the specific grounds for impeachment as provided for under the applicable statute. Woodrow Wilson Const. Co., Inc. v. MMR-Radon Constructors, Inc., 96-0618, p. 3 (La.App. 1 Cir. 12/20/96), 684 So.2d 1125, 1127, writ denied, 97-0152 (La.3/7/97), 689 So.2d 1879. The burden of proof rests upon the party attacking the award. Firmin, 353 So.2d at 978.

In denying Gulfco’s motion to vacate the arbitration ruling, the trial court gave the following oral reasons for judgment:

The first issue I’m going to address is the manifest error rule. Clearly, the First Circuit, as pointed out by all counsel, has ruled that the exclusive grounds to vacate award based on arbitration is listed under Title 9:4210. The First Circuit does not recognize extra judicial exceptions that have been carved out by some of the other circuits and I’m going to choose to follow the well-written decisions of the First Circuit and find that manifest error is not a grounds for reversal of an arbitration rule.
The second issue deals with the 90-day requirement. That is to say that an arbitrator has jurisdiction or is deemed to have jurisdiction for 90 days from the completion of an arbitration hearing.[] After that point the arbitrator is divested of jurisdiction.
Counsel properly cited the East Baton Rouge case wherein there was a seven-month delay.[] The instant matter is somewhat different. The instant matter, Judge Fitzsimmons and there are accompanying exhibits to the motion, prepared and signed a ruling and submitted it to MAPS. MAPS is charged with the distribution of that decision.
It is this Court’s opinion that a judgment is rendered upon signing by a court or in this case by an arbitrator. Rendition is not dependent upon circulation by the Clerk of Court or in this case by the office personnel at MAPS. A judgment is rendered upon signing of a court.
Certainly, there are issues when you’re talking about a court setting where delays regarding appeal rights and things of that nature do not attach until notice has been issued. But those are by specific rules.
The Court of Appeal and Supreme Court rules are clear. Calculation of delays for appeals, writs, things of that nature are from date of issuance. But that’s by stated article. That’s not some inherent or interpreted fact created by a court or some other entity. It is in the statute.
So I find that Judge Fitzsimmons signed a judgment within the 90-day period and that constituted a rendition of judgment. For those reasons, [sthe Court denies the motion of Gulfco and I would ask Mr. Collins prepare my ruling, submit it to counsel and when I sign it, it will be rendered.

Having thoroughly reviewed the record and applicable law, we find no error in the trial court’s ruling on this motion. During oral argument before the trial court on the motion to vacate, counsel for Rousse indicated that he and counsel for Gulfco had a couple of discussions about the fact that they had not yet received the judgment but that they both decided not to “push the issue or push the Judge.” The e-mails in the record indicate that on January 20, 2011, counsel for Gulfco contacted Judge Fitzsimmons to see if there was anything he or counsel for Rousse could do to assist the Judge in his determination of the liability phase of the arbitration proceeding. Judge Fitzsimmons promptly replied, “I sent a decision in this matter on 10/02/10. I have no idea why you have not received it. I will be happy to re-send it.” Thus, unlike in the East Baton Rouge Sewerage Com’n case, the evidence before us clearly supports a finding that Judge Fitzsim-mons’ arbitration ruling was rendered timely. Accordingly, we affirm the trial court’s December 28, 2011 judgment and issue this memorandum opinion in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.1 B. All costs associated with this appeal are assessed against plaintiff-appellant, Gulfeo of Louisiana, Inc.

AFFIRMED.

      . The original judgment was signed by the trial court on June 13, 2011. However, on December 1, 2011, this court issued a show cause order regarding the finality of the judgment and granting the parties leave to supplement the record accordingly. The record was supplemented with the December 28, 2011 judgment of the trial court, denying Gulfco’s motion to vacate, dismissing Gulfco’s suit with prejudice, and designating the judgment as final pursuant to La.Code Civ. P. art. 1915(B). Although a duty panel made a preliminary determination to maintain the appeal, the propriety of the trial court's designation of finality was reserved to this panel in connection with our duty to review the merits of the appeal. Considering the criteria set forth by the Louisiana Supreme Court in RJ. Messinger, Inc. v. Rosenblum, 2004-1664, p. 14 (La.3/2/05), 894 So.2d 1113, 1122, we have conducted a de novo review of the propriety of the trial court's designation of finality and find that the trial court’s designation of its December 28, 2011 judgment as final was proper.

      . Louisiana Civil Code article 3132 provides for termination of arbitration, in pertinent part, as follows:
      The submission and power given to the arbitrators are put at an end by one of the following causes:
      1. By the expiration of the time limited, either by the submission or by law, though the award should not be yet rendered.
      Louisiana Revised Statutes 9:4210 provides, in pertinent part, the grounds for vacating an award of arbitration as follows:
      In any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration.
      D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

      . Pursuant to La. Civ.Code art. 3105(A), "If the submission does not limit any time, the power of the arbitrators may continue in force during three months from the date of the submission, unless the parties agree to revoke it."

      . In East Baton Rouge Sewerage Com’n v. Mostafa and Donna Khosravanipour Children's Trust No. 1, 2008-0994 (La.App. 1 Cir. 2/13/09) (unpublished), writ denied, 2009-0597 (La.5/1/09), 6 So.3d 812, plaintiffs sought to confirm an arbitration award that had been issued over six months after the final submission of the case. The trial court denied plaintiffs’ motion to confirm the award and granted the defendant’s reconventional demand to vacate the award. This court affirmed, finding the arbitrator had exceeded his authority in making the award after his power had terminated pursuant to Article 3132.