text:
    Christopher GREEN v. NATIONAL OILWELL VARCO.
    No. 10-1041.
    Court of Appeal of Louisiana, Third Circuit.
    April 27, 2011.

      Thomas J. DeJean, DeJean & Leger, Opelousas, Louisiana, for Plaintiff/Appel-lee, Christopher Green.
    Charles A. Mouton, J. Keith Gates, Mahtook & LaFleur, L.L.C., Lafayette, Louisiana, for Defendant/Appellant, National Oilwell Vareo.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

|, The defendant, National Oilwell Vareo (Vareo), appeals a judgment rendered by the workers’ compensation judge (WCJ) in favor of its former employee, Christopher Green (Green), finding that he was injured in a work-related accident and awarding him workers’ compensation benefits, along with penalties and attorney fees. Green answers the appeal seeking additional attorney fees for work done on appeal and an order that Vareo be cast with legal interest and all costs incurred in the trial and appellate court. For the following reasons, we amend in part, affirm, and award Green additional attorney fees on appeal.

FACTS AND PROCEDURAL HISTORY

On March 3, 2009, Green filed a 1008 Disputed Claim for Compensation (1008) against Vareo, seeking benefits and medical treatment pursuant to the Louisiana Workers’ Compensation Act (LWCA), La. R.S. 23:1021-1415, for injuries that he sustained in a workplace accident on January 27, 2009. He alleged that he suffered an injury to his groin area as he and his helper were breaking down a mud motor and pressure in the motor released, pushing an impact wrench into his groin. Green further sought an award of statutory penalties and attorney fees, characterizing Varco’s actions as arbitrary and capricious and alleging that Vareo had failed to reasonably controvert his claim. In its answer to Green’s 1008, Vareo asserted that its denial of benefits was reasonable and proper, and it disputed Green’s allegation that its actions were arbitrary, capricious, or unreasonable.

The matter was originally set for trial on November 16, 2009; however, several continuances were granted and the matter was eventually tried on May 5, 2010. At | ¡¡the close of trial, the WCJ orally ruled in favor of Green and ordered Green’s counsel of record to prepare a written judgment in conformity with his oral ruling.

The WCJ signed a "written judgment on May 28, 2010, against Vareo and in favor of Green that provided as follows: (1) Green was awarded all back due temporary total disability benefits (TTDs) at a rate of $348.40 per week commencing on January 27, 2009 through the date of judgment and continuing; (2) Vareo was ordered to pay all work-related medical expenses incurred by Green pursuant to the LWCA reimbursement schedule; (3) Vareo was ordered to authorize the treatment of Green for his work-related injury by his choice of physician; (4) Vareo was ordered to pay Green a penalty of $2,000.00 for failing to pay indemnity benefits; (5) Var-eo was ordered to pay Green a penalty of $2,000.00 for failing to pay and authorize medical benefits; and (6) Vareo was ordered to pay Green attorney fees of $12,500.00. All of the amounts found to be owed by Vareo were ordered to be paid with legal interest. In addition, Vareo was cast with all costs.

Vareo is now before this court asserting that the trial court erred in: (1) awarding past and future medical care; (2) awarding indemnity benefits; (3) miscalculating the amount of indemnity benefits owed; (4) awarding penalties and attorney fees for the failure to provide medical care; and (5) awarding penalties and attorney fees for the failure to pay indemnity benefits.

DISCUSSION

Personal Injury by Accident

A worker bringing a compensation action against his employer bears the burden of proving, as a threshold requirement, that he suffered “personal injury by |saccident arising out of and in the course of his employment.” La.R.S. 23:1031(A); Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). The word “accident” as used in La.R.S. 23:1031 is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).

This court discussed the standard of review to be employed in workers’ compensation cases in Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.2/28/94); 633 So.2d 129. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, “if the [fact-finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

Green testified that he was thirty-nine years old and had completed the twelfth grade. He had been an employee of Vareo for approximately three months when the accident occurred. Green was the lead service technician over his crew of four. His job was to tear down and service mud motors used in the oilfield industry; that involved pulling and tugging parts weighing between forty to fifty pounds.

On the afternoon of Tuesday, January 27, 2009, he and Michael Shane Beard had just begun breaking down a motor. As he “went to back off the rotor catch,” it pressured up, struck him in the groin, and he flew backwards, landing on his back. He had never seen a tool pressure up like that before. He immediately felt pain all the way down his leg, and he urinated on himself. Beard and Thaddeus Lee, another co-worker, helped him get off the floor and to the bathroom. He told everyone that he was in pain and unable to continue working. Varco’s “safety guy,” Irv Arcen-eaux had left for the day, but he came back and transported Green to the MedX-cel walk-in clinic.

Green drove himself home that evening and soaked in the bathtub. He was unable to get out of bed the next day, and when Arceneaux called to check on him, Green expressed that he was in “so much pain.” Green missed work Thursday. He went to work on Friday, but his groin started to swell. He told his supervisor, “Little John,” and Kerry Bertrand, Varco’s Facility Manager, that he could not work. He also told Bertrand that he was going back to the doctor because he was having pain | .-¡down his leg and “using the bathroom on myself.” On cross-examination, he denied telling Bertrand that he was seeing his doctor to be able “to perform better in bed.”

Green was examined by Nurse Practitioner Leon Gallow with the Metoyer Family Clinic on Friday, January 30, 2009. While waiting to be seen, he received a call from Tammy Forrest, a registered nurse and employee of Vareo whose duty was to medically manage the workers’ compensation claims filed against Vareo. Green told her that he was seeking treatment from Dr. Metoyer’s office for his work injury. He was in extreme pain at the time, however, and told Forrest that he would get back to her with the correct spelling of his doctor’s name and his office phone number. Green stated that he may have been rude to Forrest due to the pain he was experiencing. On cross-examination, Green stated that he never provided Forrest with his doctor’s phone number.

Green and his wife brought work release slips signed by Dr. Metoyer on January 30 and February 2-3, 2009, to John Aubrey at Vareo to give to Bertrand. Sometime afterward, Green received a call from Bertrand telling him that “higher up” had decided to terminate him. At the time, Green had not been worried about losing his job because he had been injured at work while performing his duties. He contacted an attorney after he was fired.

Green continued treating with Dr. Me-toyer until he could no longer afford to do so. At that time, Green believed that Dr. Metoyer had taken him completely off work until further notice. Thereafter, he sought treatment at United Medical Center (UMC), a member of the Louisiana charity hospital system. According to Green, Vareo never paid any of Dr. Metoyer’s bills, nor did it give him authorization to see | fihis own physician for his injuries. Green could not recall ever speaking with or receiving a letter from Billy Holman, the insurance adjuster, after his injury.

Green went to UMC about four times, with his last visit occurring approximately two months before trial. During a November 27, 2009 visit to UMC, Dr. Thad Bourque found blood in his urine. He is still under the care of his UMC doctor, which he interprets to mean that he cannot work because he never continued to work while he was under the care of a doctor in the past.

He also saw two family medicine physicians, Dr. John Tassin and Dr. Calvin' White, at his wife’s expense. At trial, Green stated that he was still experiencing pain in his testicles, his groin, and down his left leg, and that his pain worsens with activity. He began having back pain one year after the accident and still suffers with it on occasion. Green explained that if he strains or lifts anything weighing forty to fifty pounds, like he often did at Vareo, he wets himself and passes blood. He no longer has sex because of his pain and his inability to produce an erection. He stated that he is unable to take Viagra because of his high blood pressure. At the time of trial, Green’s was taking Lortab for pain, along with medications for his high blood pressure and for depression.

Green’s wife, Angela, testified that on the night of Green’s accident, his groin was swollen and she had to help him get out of bed. She stated that Green tried to work Friday after the accident, but he was unable to stay and has not worked since. Angela was present when Green spoke with Forrest on the phone outside of the doctor’s office. She never heard Green say anything about not wanting to receive workers’ compensation for his injury or that he was only there for Viagra or to get better in bed. She heard him describe to Dr. Metoyer the mechanics of being hit with |7a pipe and having pain in his left testicle and problems with dribbling urine. Angela described her husband as a proud man who did not like to talk about his injury.

Angela stated that Green was not seeing a doctor for any ongoing problem before he was injured at Vareo. She described Green as a good worker who also helped to maintain their house and yard before being injured. In her opinion, Green’s injuries have gotten worse with time. His back and legs hurt, and he has difficulty getting out of bed. Green also suffers with scrotal and testicular pain.

Michael Beard, a co-worker who was helping Green break down the mud motor, witnessed the accident. Beard testified that when the motor released pressure, Green was hit in the groin with a two-foot long, solid-metal tool and thrown approximately ten feet and into a wall. According to Beard, Green immediately stated that he “hurt real bad,” and Beard noticed that Green had urinated on himself.

Kerry Bertrand, Varco’s Facility Manager, testified that he performed an investigation and that he believed that an accident involving Green did occur. He brought Green to the MedXcel clinic where, after being examined, Green was told to ice his groin for twenty-four hours and that he was released to “regular duties as tolerated.” Bertrand stated that Vareo gave Green the next two days off, and he returned to work on Friday. Green left at noon, explaining to Bertrand that he was going to the doctor because “he was a man and he wanted to perform in bed.” According to Bertrand, Green specifically denied that he was seeking treatment for his work injury at that time. Green did not appear to be in any pain that day.

After Green did not show up at work or call in the next Monday, Tuesday, or Wednesday, he was fired. Bertrand stated that Vareo had a policy that if an employee did not “show” for three days, he was terminated. Bertrand was not privy to any | Scorrespondence between Forrest and Holman. Although Bertrand characterized Green as not being a reliable worker, he admitted that Green worked for Vareo for “two tours of duty.”

Tammy Forrest testified that she works in Tennessee and, along with another person, medically manages the workers’ compensation claims filed against Vareo in any of its approximately sixty facilities. Forrest explained that when she receives an email notifying her that an injury has occurred, she contacts the facility to get details of the accident and injury, and any medical treatment provided.

Forrest contacted Green on February 3, 2009. According to an email she sent on that date to Holman, the insurance adjuster, Green explained the accident to her and reported that he was still having trouble controlling his urine. When she asked questions about the name and phone number of Green’s doctor, he got upset and wanted to know “what the 50 questions was about.” According to the email, when Forrest told Green that she was the nurse case manager who handled Varco’s workers’ compensation injuries, “he immediately said he is not under work comp.” She explained to him that because he was injured at work and seeking medical treatment for his injuries, he did have a workers’ compensation case. She relayed that Vareo had contacted her to say that he was not reporting to work and it did not have any documentation from a physician restricting him from work. Green replied that he would contact his doctor and have him call her. At that time, she had no doubt but that Green had been injured in an accident at Vareo. Nevertheless, she closed Green’s file because “he would not give [her] any information.” Forrest clarified, however, that no one at Vareo decides whether to deny a workers’ compensation claim. Instead, that decision is left to the independent adjusters, such as Holman.

|/The deposition of Billy Holman, an insurance adjuster employed by Specialty Risk Services and assigned to handle Green’s claim, was submitted as an exhibit by Vareo. Therein, Holman explained that he was assigned Green’s claim on February 3, 2009, and spoke with him the next day. His file contained a copy of the accident report completed by Vareo, a copy of the MedXcel report, and the February 3, 2009 email from Forrest. At that time, he had no doubt in his mind that Green had injured his groin area in an accident at Vareo on January 27, 2009.

Although normal protocol was to take a recorded statement from an injured worker, Green would not allow Holman to record them conversation, “stating that he was not pursuing this current medical treatment under his work comp claim.” When Holman asked Green what doctor he was treating with and what he was being treated for, Green would not elaborate other than to say he was being treated for something unrelated to his workers’ compensation injury and under his own insurance coverage. Holman verbally confirmed with Green that the current medical treatment he was pursuing was not related to his workers’ compensation claim and told Green that he would be confirming again by letter. Holman mailed a letter to that effect to Green that day.

Upon questioning from Green’s attorney, Holman confirmed that he never received any work release forms regarding Green and that after Green filed his 1008, he gave Green’s file to defense counsel.

In making its ruling, the WCJ noted that there was no real argument as to whether an accident involving Green occurred. It further noted that, because there was conflicting opinions from the doctors, it had to decide which side to believe. The ImWCJ explained his appreciation of the accident and Vareo’s handling of Green’s claims as follows:

[T]hey were working on this motor and this bolt of a thing, which is about a foot and a half long, with a big head on it, unexpectedly, out of nowhere, because it wasn’t supposed to be pressurized, came flying out of this little cannon like affair, hit the man in the groin and they said, knocked him about ten feet....
But, there’s something sensitive about this matter. There just is. I know you know that.... [I]t’s hard to handle....
Now, I think the company’s response to this is a tad out — no, it’s not a tad. It’s way out of whack, with what Louisiana law requires....
You just can’t have somebody that has some good evidence that they get hurt and not turn in necessary paperwork and from that, deduce, or induce, deduce, that nothing happened. The law requires that there be an investigation. Seems to me, most of the investigation here occurred when that adjuster investigated the top of his desk to find out if he could find anything to disprove what the man said. Apparently didn’t.... I don’t have any confidence that [Green] told [Ms. Forrest] that this — that I want you to be sure, be absolutely sure that none of these people at the insurance company get the idea that I should be on workers’ compensation. I just do not believe that’s what he said, based on what everybody else said.
... Either he’s completely malingering, making up all of this information out of thin air or he got hurt. And there’s no middle ground here. I think the medical evidence read carefully or even glanced at, or explained any way you want to look at it, shows the man got hurt. It also shows a paucity of concern on behalf of the insurance company. In Louisiana, as you know, arbitrary and capricious behavior can cost you. I think the insurance company here, would almost have to work to get up to the level of arbitrary and capricious. When an employee gets hurt, you almost have to be able to look at them and make some evaluation of what you’re going to do as opposed to getting ready to prepare for a defense. And I think that’s exactly what happened here.

As a preliminary matter, we agree with the finding implicit in the judgment entered by the WCJ that Green suffered personal injuries as the result of an accident that occurred during the course and scope of his employment with Vareo. Moreover, | ^Vareo in its brief to this court “does not dispute that [Green] was struck in the groin on January 27, 2009.”

Medical Benefits

Vareo asserts that the WCJ erred in finding that Green proved that his past medical expenses, as well as his need for future medical care, were related to the injury that he suffered at work. Vareo further claims that the WCJ erred in not delineating in the judgment which particular medical bills it was being ordered to pay.

Green counters that he presented ample proof that the treatment he received from his family physician, Dr. Metoyer, Dr. White, and Dr. Tassin, as well as his treatment at U.M.C., was related to the groin injury he suffered on January 27, 2009. Thus, Green submits that the judgment which speaks in terms of “all work-related medical expenses incurred” requires that the bills generated by Drs. Metoyer, White, and Tassin, and by U.M.C. are to be paid by Vareo. Next, Green disputes Varco’s contention that the judgment requires it to pay for future medical bills yet to be incurred. Instead, he posits, the judgment requires Vareo to authorize treatment by his choice of physician.

Green treated with Dr. Metoyer’s office until April 3, 2009, at which time he could no longer afford to do so. During his treatment, Dr. Metoyer ordered a scrotal ultrasound and recommended that Green consult with a urologist. Green was thereafter treated at U.M.C. until February of 2010. In the interim, Green had office visits with Drs. Tassin and White, respectively.

Varco’s arguments rely heavily on the opinion of Dr. Edward Breaux, the urologist it hired to render a second opinion. Dr. Breaux examined Green on September 24, 2009. At that time, Green complained of pain in his left hip and thigh | ^regions, trouble with erections and ejaculation, and urinary leakage/incontinence. While Dr. Breaux found no objective signs of any urological injury to account for Green’s continued complaints of significant pain, he admitted that he did not perform any blood tests to check Green’s hormone levels or any advanced tests of the nerve/muscle functioning of Green’s bladder. Further, when asked point blank whether Green was forthright in his complaints of pain in response to his physical examination by Dr. Breaux, the doctor admitted that Green:

appeared to be in a whole lot more discomfort than I could objectively find things wrong, and realizing it was nine months after the accident, so, obviously, he had something going on. It just was hard for me to tell exactly what that was, you know, what was causing his significant complaints of pain.

Although Dr. Breaux found no blood in Green’s urine when he looked at it under a microscope, he stated that if Green had blood tests results of “RBC greater than one hundred,” as was noted in a U.M.C. record dated November 23, 2009, he would have ordered a cystoscopy in order to discover the cause of the blood.

In ruling that Green was entitled to recover his past medical expenses and to receive care in the future from his choice of physician, the WCJ clearly found Green, his wife, and Beard more credible than Forrest, Bertrand, or Holman with regard to whether Green ever said that he was not seeking any workers’ compensation benefits as a result of his January 27, 2009 injury. We find no error in the WCJ’s credibility determination. After Green was injured at the workplace, Vareo simply turned its back on him despite the fact that he steadily and consistently sought medical |13treatment for the, injuries he suffered as a result of that injury. Green was fired on February 9, 2009, less than two weeks after his injury, thus limiting his ability to afford adequate medical care. He filed his 1008 just over a month after his injury. Even Varco’s doctor admitted that Green was forthright and that he continued to suffer from significant pain in the area where he was injured. The WCJ did not err in finding that Green proved that his past medical expenses, reflected in the bills generated by Drs. Metoyer, White, and Tassin, and by U.M.C., were related to treatment for his January 27, 2009 injury. Likewise, the WCJ did not err in requiring Vareo to authorize future treatment of Green by his choice of physician.

Indemnity Benefits

Vareo contends that the WCJ erred in awarding Green indemnity benefits because he failed to offer medical testimony to establish that he was disabled and/or to relate any such disability to his accident at work. Green counters that he proved by lay and medical testimony that he was unable to work due to his work injury.

In Odom v. Kinder Nursing Home, 06-1442, p. 5 (La.App. 3 Cir. 4/25/07), 956 So.2d 128, 132, we directed that:

“The issue of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. LeBlanc [v. Grand Isle Shipyard, Inc., 95-2452 (La.App. 1 Cir. 6/28/96)], 676 So.2d [1157,] 1161. The issue of disability is determined with reference to the totality of the evidence, including both lay and medical testimony. LeBlanc, 676 So.2d at 1161.” Walker v. High Tech Refractory Servs., Inc., 03-1621, p. 4 (La.App. 1 Cir. 6/25/04), 885 So.2d 1185, 1188.

Both Green and his wife testified that his injuries have not only persisted since his injury, but that they have worsened, and that he continues to suffer from substantial pain. In addition, the medical records that Green submitted show that he continues to be plagued with symptoms related to his January 27, 2009 work injury. |, 4 Given the totality of the evidence and testimony, we cannot say that the WCJ erred in making the legal determination that Green is unable to engage in any type of employment. We are convinced that the WCJ did not err in awarding Green indemnity benefits.

Applicable Indemnity Rate

Vareo contends that the WCJ erred in calculating the appropriate TTD rate. It insists that the rate should be $346.84 per week, instead of the $348.40 per week awarded in the judgment. Green did not address this issue in its appellee brief. We note, however, that in its oral reasons for judgment, the WCJ awarded Green indemnity “set at the appropriate rate.” We have reviewed the calculation contained in Varco’s appellant brief and agree that it represents the amount that should have been awarded. The judgment will be amended to correct the rate of TTDs owed by Vareo to the rate of $346.84 per week.

Penalties and Attorney Fees

Vareo submits that the WCJ erred in awarding Green any penalties and attorney fees because it “reasonably controverted” Green’s claim. Vareo claims that it denied Green’s claim and closed his compensation file because Green told three people that he was not pursuing his treatment under workers’ compensation. As such, Vareo claims that its reliance on the information provided by those people was reasonable and its having declined to award Green benefits was “properly controverted.” Vareo further contends that the WCJ improperly applied the “arbitrary and capricious” standard in determining whether Green was entitled to an award of penalties and attorney fees.

| lsIn opposition, Green contends that under either the “arbitrary and capricious” or the “reasonably controverted” standard, the WCJ was well within its discretion in awarding him penalties and attorneys fees pursuant to La.R.S. 23:1201(F).

Louisiana Revised Statutes 23:1201 is the relevant statute in determining whether an employer should be assessed penalties and attorney fees for failure to timely pay indemnity or medical benefits. The statute provides that no penalties or attorney fees shall be assessed “if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer ... had no control La.R.S. 23:1201(F)(2). Further, “[t]o avoid the imposition of penalties and attorney fees for the nonpayment of benefits, the employer has a continuing obligation to investigate, to assemble, and to assess factual information before denying benefits.” Romero v. Northrop-Grumman, 01-24, pp. 10-11 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, 1156, writ denied, 01-1937 (La.10/26/01), 799 So.2d 1144.

An employer avoids the imposition of penalties and attorney’s fees by satisfying its continuing obligation to investigate, assemble, and assess factual information prior to it denying benefits. Furthermore, the decision to award penalties and attorney’s fees is factual in nature and will not be reversed on appeal absent manifest error.

Odom, 956 So.2d at 141-42 (citations omitted). “The purpose of imposition of penalties and attorney fees is to discourage indifference and undesirable conduct by employers and insurers.” Burns v. Interstate Brands Corp., 09-705, p. 7 (La.App. 3 Cir. 2/3/10), 30 So.3d 271, 277.

Green filed his 1008 on March 3, 2009, a mere twenty-nine days after Holman confirmed in a letter dated February 4, 2009, “that [Green was] seeking medical treatment from [his] family Dr. that is unrelated to [his] workers’ compensation claim for the above referenced date.” The date referenced in the letter was January 27, | ifi2009, the date of Green’s accident. The filing of Green’s claim should have prompted Vareo to further investigate Green’s claim and to reevaluate its belief that Green was not seeking workers’ compensation benefits, despite what he may or may not have indicated prior to that time.

Although the WCJ used the words “arbitrary and capricious,” we are not convinced that it applied the wrong standard in determining whether Green was entitled to recover penalties and attorney fees. In McClain v. Pinecrest Development Center, 00-1622, p. 4 (La.App. 3 Cir. 2/28/01), 779 So.2d 1112, 1115, n. 1, this court stated:

We recognize that the workers’ compensation judge made a finding that Pi-necrest’s failure to pay the invoices was “arbitrary and capricious” while the standard provided in La.R.S. 23:1201 is the reasonably controverted standard. However, considering that “[u]nreason-ably controverting a claim ... requires action of a less egregious nature than that required for arbitrary and capricious behavior,” Brown v. Texas-La Cartage, Inc., 98-1063, p. 8 (La.12/1/98), 721 So.2d 885, 890, we find no error under the facts of this case.

After reviewing the testimony and evidence in this matter, we are similarly convinced that Vareo did not “reasonably controvert” Green’s claim. Accordingly, the WCJ did not err in awarding penalties and attorney fees to Green.

Gree?Ts Answer to Appeal

Green answered Varco’s appeal seeking additional attorney fees for work done on appeal and an order that Vareo be cast with legal interest and all costs incurred in the trial and appellate court.

In Nash v. Aecom Technology Corp., 07-990, p. 8 (La.App. 3 Cir. 2/6/08), 976 So.2d 263, 268, this court held that “[a] workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an | )7employer/insurer’s unsuccessful appeal.” Green is awarded an additional attorney fee of $2,000.00 for the work done on appeal.

The WCJ cast Vareo with all costs. An appellate court reviews a WCJ’s assessment of court costs under an abuse of discretion standard. Lambert v. Brookshire Grocery Co., 06-1001 (La.App. 3 Cir. 12/20/06), 945 So.2d 918. Given that Green prevailed on all of his claims before the WCJ, we find no error in costs having been assessed against Vareo. Moreover, because Green was successful in defending the judgment in his favor, Vareo is cast with all costs of this appeal. See La.Code Civ.P. art. 1920.

DECREE

The judgment rendered by the workers’ compensation judge in favor of Christopher Green and against National Oilwell Vareo is amended to provide that the rate of TTDs owed by Vareo is $346.84 per week. The judgment is affirmed in all other respects. Green is awarded additional attorney fees of $2,000.00 for work performed on this appeal. All costs of this appeal are assessed against National Oil-well Vareo.

AMENDED IN PART AND AFFIRMED. ADDITIONAL ATTORNEY FEES AWARDED TO APPELLEE.

      . Vareo does not challenge the amounts of penalties and attorney fees awarded to Green by the WCJ.

      . Green testified that he had previously been employed with Vareo for a three-year period, but he had gone to work for another company for four years before being rehired by Vareo.

      . During his trial deposition, Dr. Breaux failed to note on direct examination that Green was suffering with urinary leakage/incontinence. Nevertheless, he admitted on cross-examination by Green's attorney that Green did relate those problems to him.

      . According to Dr. Breaux, a cystoscopy involves using a fiberoptic light to look inside the bladder.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    David BURKETT v. LFI FORT PIERCE, INC.
    No. 10-1478.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 2011.

      Kirk L. Landry, Baton Rouge, LA, for Defendants/Appellants, L.F.I. Fort Pierce, Inc. and ESIS, Inc.
    Mark L. Riley, Lafayette, LA, for Plaintiff/Appellee, David Burkett.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendants, LFI Fort Pierce, Inc. d/b/a Labor Finders (Labor Finders) and ESIS, Inc., appeal the judgment of the Office of Workers’ Compensation finding that Plaintiff, David Burkett, proved both accident and disability and was temporarily totally disabled from the time of accident, finding that he was entitled to the forty hour presumption for calculation of his average weekly wage, setting his TTD rate at $266.67, and awarding penalties and attorney’s fees. For the following reasons, we amend the award of penalties and affirm.

FACTS

On November 8, 2006, Claimant, David Burkett, was employed by Labor Finders doing construction work. That day, he was sent to work as an electrician’s helper at a hotel project in Lafayette, Louisiana. He and Kenny, another employee of Labor Finders, were running outside lights. Kenny was on the exterior side of the wall and, Burkett was on the inside. Burkett alleges that he slipped off the ladder and landed on his left side on the concrete floor. He asserts that his toolbelt injured his left knee. He reported the injury to the secretary at Labor Finders who told him that the manager would take care of it the next Monday. Upon leaving for the day, he, as well as the other employees on the job that day, signed a standardized “Sign Out Sheet & Disclaimer of Work Related Injuries.” The sheet contained a verification that no accident had happened under which there was space for a number of people to sign out at the end of the day. He stated that he could not receive his check without doing so. Labor Finders paid benefits and sent Burkett for treatment but later failed to authorize treatment and stopped payment of benefits. Burkett then filed a disputed claim for compensation.

12After a hearing, the worker’s compensation judge (WCJ) gave oral reasons for judgment and rendered judgment in favor of Claimant. Defendants appeal.

DISCUSSION

Accident

Defendants contend that the trial court erred in finding that Claimant carried his burden of proving the occurrence of the unwitnessed on-the-job accident which resulted in his injury. Defendants note that Claimant signed the “Sign Out Sheet & Disclaimer of Work Related Injuries” at the end of his work day and did not receive treatment until three days later.

In Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556 (citations omitted) (alteration in original), the supreme court set forth the standard of review in workers’ compensation cases as follows:
Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a factfin-der’s choice between them can never be manifestly erroneous or clearly wrong. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”
To recover workers’ compensation benefits, a claimant must establish a “personal injury by accident arising out of and in the course of his employment.” La.R.S. 23:1031(A). An “accident” is defined in La.R.S. 23:1021(1) as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” In Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992) (citations omitted), the supreme court explained the claimant’s burden of establishing an accident as follows:
13[T]he plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence.
Additionally, in Bryan v. Allstate Timber Co., 98-840, pp. 3-4 (La.App. 3 Cir. 12/16/98), 724 So.2d 853, 855, this court recognized: “When there is proof of an accident and attendant disability, without an intervening cause, it is presumed that the accident caused the disability.”

Istre v. International Maintenance Co., L.L.C., 03-1003, pp. 5-6 (La.App. 3 Cir. 2/4/04), 865 So.2d 963, 966-67, writ denied, 04-0584 (La.4/23/04), 870 So.2d 305.

The WCJ in oral reasons for judgment found as follows:

Mr. Burkett was a credible witness. He did not, during the course of his testimony, either on direct or cross-examination, attempt to avoid any question. He did not appear disingenuous .... He did give a good effort to respond directly to the questions asked and appeared worthy of belief in the manner that he answered the questions.
The mechanism of the injury makes sense. He fell, he’s not exaggerating. He apparently fell three steps, tool belt hit the knee causing the greater injury to the knee. From a common sense standpoint, it fits. And, the injuries for which he has treated are consistent with is description of the accident.
So, I do find that he did meet his burden of proving the unwitnessed accident by a preponderance of the evidence.

Claimant testified that he reported the accident then signed the sheet because if he did not do so, he would not have been paid. No evidence was offered to contradict Claimant’s testimony in this regard. Further, as noted by the WCJ, the medical evidence corroborated Claimant’s version of events. There was no evidence of an intervening cause for the injury. Accordingly, we find no error in the trial court’s conclusion that Claimant incurred a work-related injury.

| ¿Failure to Disclose Pre-Existing Injury

Defendants further assert that the WCJ committed legal error in failing to find that Claimant forfeited his right to benefits by failing to disclose a pre-exist-ing permanent partial disability to his back.

Louisiana Revised Statutes 23:1208.1 provides that:

Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

In Dupuis v. Picard Steel Erectors, Inc., 04-172, pp. 4-5 (La.App. 3 Cir. 9/29/04), 883 So.2d 1092, 1096 (citing Nabors Drilling USA v. Davis, 03-0136 (La.10/21/03), 857 So.2d 407), this court described the requirements of La.R.S. 23:1208.1:

The court stated, “La.R.S. 23:1208.1 provides for forfeiture under three circumstances. There must be (1) an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute.” Id. at 414. The court did not focus on the claimant’s untrue statement but on whether it prejudiced the employer. “Thus, it is not every untruthful statement on a medical history questionnaire that will result in the forfeiture of workers’ compensation benefits for a subsequent work-related injury. It is only those statements that rise to the level of meeting the statutory proviso of La.R.S. 23:1208.1 that will subject the employee to forfeiture.” Id. at 414-15.
For there to be prejudice to the employer, “the untruthful statement must “directly relate ‘[ ]’ to the medical condition for which a claim for benefits is made”, or it must affect the employer’s ability to receive reimbursement from the second injury fund.” Id. at 415.

|fiThe record reveals no previous injury to the left knee. The WCJ with regard to the hip injury, noted that:

I don’t think the records contain any evidence to establish what 1378 requires in the way of a pre-existing permanent/partial disability. And there is nothing from the doctors to say that a current injury to the hip was inevitable or very likely to occur.... And so for that reason, I don’t find that 1208.1 prohibits any recovery for the hip injury.

Claimant testified that a manager told him not to include his previous injuries when filling out the form. No testimony was introduced to contradict this statement. Additionally, Defendants have not shown prejudice from the failure to inform them of the previous injuries or that they would have been able to make a claim from the Second Injury Fund if they had been informed of the previous injuries. After reviewing the record, we agree with the WCJ that Defendants failed to show the merger of the pre-existing and new injuries which is required to recover under La.R.S. 28:1378. Accordingly, we find no error in the WCJ’s refusal to order the forfeiture of benefits.

Temporary Total Disability

Defendants assert that the WCJ erred in awarding temporary total disability benefits based, they argue, solely on Claimant’s continued medical treatment. The WCJ made the following oral findings in this regard.

Mr. Burkett was post surgery on the knee, still receiving regular treatment, medications and has not been released to work yet. And, I realize this goes beyond and talks more toward his ability to work, but clearly he is engaged in somewhat heavy, manual labor in the past. Having had the knee surgery, continuing to have complaints and being on medication, rehab is going to be a little bit difficult. But, because his medical expenses haven’t been paid, I think it’s difficult for me to do anything but find temporary total disability status at this point in time. I think the medical treatment needs to get up to date, assess where we are; and it may be that it is time to start the vocational process. But at this point, I am going to say temporary total disability and that finding | f!may be modified at the appropriate time; which maybe soon, it may not be.

This court in Funderburk v. Nabors Drilling USA, Inc., 05-1119, pp. 6-7 (La.App. 3 Cir. 4/26/06), 930 So.2d 1058, 1062, writ denied, 06-1252 (La.9/15/06), 936 So.2d 1275, explained the burden of proof for temporary total disability:

In order to receive temporary total disability benefits, an employee must prove that he is unable to physically engage in any employment or self-employment as a result of his work-related injury. La.R.S. 23:1221(l)(c). The employee’s burden of proof is by clear and convincing evidence; thus, [claimant] must prove that his disability is highly probable or much more probable than not. Carrier v. Debarge’s Coll. Junction, 95-18 (La.App. 3 Cir. 9/27/95), 673 So.2d 1043, writ denied, 96-0472 (La.4/8/96), 671 So.2d 337.

However, “[wjhether the claimant has carried her burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ.” City of Shreveport v. Casciola, 43,132, p. 8 (La.App. 2 Cir. 3/26/08), 980 So.2d 203, 209. The WCJ’s findings of fact are subject to the manifest error standard of review. Id.

At the time of trial, Claimant had not been released to work, he had not undergone any rehab, and Defendants were refusing to authorize needed medical treatment. See Haws v. Prof. Sewer Rehab., Inc., 98-2846 (La.App. 1 Cir. 2/18/00) 763 So.2d 683. Under the circumstances, we find no error in the WCJ’s determination that Claimant was temporarily totally disabled.

Calculation of Average Weekly Wage

Defendants argue that Claimant is a day laborer, paid by the day, and that as a result, the WCJ’s calculation of the average weekly wage was erroneous.

The WCJ found that although Claimant is a day laborer, he is paid by the hour. After reviewing the record, we agree. The evidence that Claimant was paid by the hour rather than by the day is uncontra-dicted. Defendants’ own pay records show that [7he was paid by the hour. We further find that the WCJ correctly found that Claimant was entitled to be paid based on a forty hour week. The evidence shows that in most weeks during the year prior to the accident, Claimant worked a forty hour week. See Sowell v. Process Equip., 06-1198 (La.App. 3 Cir. 2/7/07), 948 So.2d 1214, (citing Dabney v. Boh Bros. Constr. Co., 97-1041 (La.App. 4 Cir. 3/11/98), 710 So.2d 1106). Accordingly, we find no error in the average weekly wage calculation.

Penalties and Attorney’s Fees

Defendant’s next assert that the trial court erred in assessing penalties and attorney’s fees in excess of those allowed by statute where the WCJ used an incorrect average weekly wage calculation and where the claim was reasonably controverted at trial.

We note that the determination as to whether an employer should be cast with attorney’s fees and penalties is a question of fact that will not be reversed on appeal absent manifest error. Lambert v. Brookshire Grocery Co., 06-1001 (La.App. 3 Cir. 12/20/06), 945 So.2d 918. After reviewing the record, we cannot say that the WCJ erred manifestly in awarding penalties and attorney’s fees. The WCJ gave the following reasons for her decision:

So, penalties and attorney’s fees, I think the average weekly wage penalty and attorney’s fee is owed since the Brown decision, I think, where the Supreme Court basically indicated if you miscalculate, you’re entitled, or the employee is entitled to a penalty and attorney’s fee.
With respect to the termination of benefits, I do find that penalties and attorney’s fees are owed; and that is based, in large part, on Claimant’s Exhibit # 3 which is the answer to Interrogatory # 15 which clearly states, “Claimant’s indemnity benefits were terminated upon learning from claimant he had falsified his pre-employment questionnaire that he had significant prior problems with the same knee to which he had not advised his employer, claim’s handler or his physicians combined with the fact of an unwitnessed accident that was not timely reported.”
Is At the time the benefits were terminated, the employer did not have the skilled counsel that it got once this suit was filed. The termination was made by the adjuster and the reason for the termination is stated in Interrogatory # 15. It was the knee combined with the un-witnessed accident. I know that payment of a claim is not an admission of liability, but the fact that the accident was unwitnessed had not prevented payment previously The main reason for the termination of benefits was the knee, not the hip, not the unwitnessed accident and it was a mistake. And, that’s 1201(1) discontinuation of payment of claims due.
I do find that it was arbitrary and capricious and without probable cause. I am going to assess the Eight Thousand Dollar ($8,000.00) penalty under “I”, as well as a Two Thousand Dollar ($2,000.00) penalty for the average weekly wage calculation for Twelve Thousand Dollars ($12,000.00) (sic) in penalties.

Defendants first argue that the WCJ erred in granting a penalty for miscalculation of the average weekly wage. This argument is based on this court finding that the WCJ erred in ruling that Claimant was an hourly employee. Since this court found no error in this ruling, this argument also fails.

Defendants further argue that they reasonably controverted the claims.

In determining the factual issue of whether an employer’s actions are arbitrary and capricious, the manifest error standard of review is applied, and the crucial inquiry is “whether the employer can articulate an objective reason for discontinuing benefits at the time it took the action.” Frith v. Riverwood, 04-1086, p. 12 (La.1/19/05), 892 So.2d 7, 15.

Irving v. Transit Mgmt. of SE La., Inc., 10-0360 (La.App. 4 Cir. 7/20/10), 44 So.3d 796, 799-800.

After reviewing the record, we find no error in the trial court’s conclusion that Defendants did not have an actual objective reason for discontinuing benefits at the time they did so. Accordingly, we find no error in the trial court’s decision to award penalties in this regard.

| pHowever, Defendant’s correctly argue that the award of penalties violates the penalty cap of La.R.S. 23:1201(F) which provides that “[t]he 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.”

Because the combined penalties exceed the maximum amount allowed under the statute, we amend the total penalty award to eight thousand dollars ($8,000.00). Mouton v. Walgreen Co., 07-1403 (La.App. 3 Cir. 4/2/08), 981 So.2d 75.

Judgment against ESIS

Defendants assert that the trial court erred in rendering judgment against ESIS, who they allege is the third-party administrator for Labor Finder’s workers’ compensation insurance.

First, we note that ESIS is not named in the judgment. Further, Defendants cite no evidence establishing ESIS’s role and cite no law supporting the conclusion that judgment against a third-party administrator is inappropriate in this matter. Accordingly, we find no merit in this assignment of error.

Answer to Appeal

Claimant has answered the appeal asking for additional attorney’s fees on appeal. We find that an additional award of two thousand dollars ($2,000.00) is appropriate in this matter.

CONCLUSION

For these reasons, the judgment of the Office of Workers’ Compensation is affirmed. The award of penalties is amended to eight thousand dollars ($8,000.00) to comply with the penalty cap of La. R.S. 23:1201(F), and we award an additional 110two thousand dollars ($2,000.00) in attorney’s fees on appeal. Costs of this appeal are assessed to Defendants.

AFFIRMED AS AMENDED.


author: AMY, Judge.

text:
    STATE of Louisiana v. Darrell W. WESTMORELAND.
    No. 10-1408.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 2011.
    Rehearing Denied June 22, 2011.

      Asa Allen Skinner, District Attorney, Terry W. Lambright, Assistant District Attorney, Leesville, LA, for Appellee State of Louisiana.
    Dmitrc I. Burnes, Burnes & Burnes, Alexandria, LA, for Defendant/Appellant Darrell W. Westmoreland.
    Darrell W. Westmoreland, Leesville, LA.
    Court composed of JIMMIE C. PETERS, MARC T. AMY and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

hThe defendant was convicted of one count of simple arson over $500.00. The defendant was sentenced to six years at hard labor. He was also ordered to pay a fíne of $1,000.00, plus costs. The trial court suspended the defendant’s sentence and placed him on supervised probation for a period of three years. The trial court also ordered the defendant to make restitution to the victims, plus, as a condition of probation, the defendant was ordered to serve twelve months imprisonment in the parish jail. The defendant appeals his conviction and sentence. For the following reasons, we affirm and remand to the trial court with instructions.

Factual and Procedural Background

The defendant, Darrell W. Westmore-land, was charged in Vernon Parish with one count of simple arson over $500.00, a violation of La.R.S. 14:52(B). The defendant allegedly set a series of fires that resulted in damage to a substantial amount of timber. On February 11, 2010, a jury found the defendant guilty of the sole charge of simple arson over $500.00. The defendant filed a motion for post-verdict judgment of acquittal. After a hearing, the trial court took the motion under advisement. The trial court subsequently denied the motion for post-verdict judgment of acquittal and, on the same date, imposed sentence. The defendant was sentenced to six years at hard labor, suspended, a fine of $1,000.00 plus court costs, supervised probation for three years, restitution to the victims, and as a condition of probation, twelve months imprisonment in the Vernon Parish jail.

After sentencing, the defendant filed a motion to reconsider sentence. The motion was denied by the trial court without a hearing. The defendant appeals, asserting the following as error:

1. The state failed to present sufficient evidence at trial to support the verdict of guilty of the felony charge in the 12amended Bill of Information of violation of La. R.S. 14:52, simple arson with damages amounting to over $500.00.
2. The trial court erred by improperly denying defendant’s Motion for Post-Verdict Judgment of Acquittal Pursuant to Code of Criminal Procedure Article 821.
3. The trial court erred by imposing a sentence which violates United States Constitution’s prohibition against cruel and unusual punishment as stated in the 8th Amendment and violates Louisiana Constitution’s similar prohibition against cruel and unusual punishment as stated in Article 1, Section 20, when, as a condition of probation, defendant was ordered to serve twelve months in the Vernon Parish jail.
4. The trial court erred by sentencing defendant unnecessarily harshly in order to send a message to others.
5. The trial court erred in denying defendant’s Motion to Reconsider Sentence Pursuant to C.Cr.P. Art. 881.1.
6. Defendant’s sentence does not comply with Louisiana Code of Criminal Procedure Article 872 which requires that the sentence must rest upon a valid and sufficient indictment.

Additionally, the defendant filed a pro se brief, alleging that the State committed prosecutorial misconduct, that there was insufficient evidence to support the conviction, and that the restitution was excessive.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are two errors patent.

The defendant’s motion for post-verdict judgment of acquittal was heard on August 6, 2010; however, the matter was taken under advisement. On August 13, |s2010, the trial court denied the motion for post-verdict judgment of acquittal and immediately sentenced the defendant.

Louisiana Code of Criminal Procedure Article 873 requires a delay of twenty-four hours before sentencing after the denial of a motion for new trial or in arrest of judgment. Although a post-verdict judgment of acquittal is not mentioned in Article 873, jurisprudence indicates that it has been applied to denials of a post-verdict judgment of acquittal.

However, there is no violation of Article 873 where there is an express or implied waiver of the delay. State v. C.S.D., 08-877 (La.App. 3 Cir. 2/4/09), 4 So.3d 204. A defendant can expressly waive the delay when he announces his readiness for sentencing or responds affirmatively when the trial court asks if he wants to be sentenced on that date. State v. Schmidt, 99-1412 (La.App. 3 Cir. 7/26/00), 771 So.2d 131, writ denied, 00-2950 (La.9/28/01), 798 So.2d 105, cert. denied, 535 U.S. 905, 122 S.Ct. 1205, 152 L.Ed.2d 143 (2002). A panel of this court has previously found that a defendant may impliedly waive the delay where there is evidence in the record that the defendant was aware of the sentencing date, did not object to the delay, and participated in the sentencing hearing and where the trial court thoroughly set forth its reasons for sentencing. Id

Lin this case, sentencing was rescheduled twice. The trial court held a hearing on the defendant’s motion for post-verdict judgment of acquittal one week before the sentencing hearing. When the trial court took the motion for post-verdict judgment of acquittal under advisement, it informed the defendant and trial counsel “[I]’m ordering that this matter be set again for Friday week at nine o’clock for the court to rule on these motions and, if necessary, to impose sentence.”

At the sentencing hearing, after denying the defendant’s motion for post-verdict judgment of acquittal, the trial court stated that it had reviewed the pre-sentence investigation and a statement submitted by the Defendant attached thereto and inquired whether the defendant wished to offer anything else at that time. The defendant’s attorney stated that he had read the pre-sentence investigation, noted that the defendant was a first offender, requested that the defendant be sentenced under the provisions of La.Code Crim.P. art. 893, and requested that the defendant be allowed to retain a gun for hunting purposes.

We note that the defendant did not request a continuance of sentencing, nor did he object to being sentenced at that time. The record does not indicate that the defendant was unaware that he was to be sentenced on that date. In late May 2010, the defendant requested that the hearings for post-judgment verdict of acquittal, sentencing, and restitution be scheduled for the same date. At the hearing on the motion for post-verdict judgment of acquittal, the trial court took the matter under advisement and rescheduled the hearing date. The trial court stated that, if it denied the motion, it intended to sentence the defendant that same date. The trial court gave lengthy reasons for imposing sentence. Additionally, the defendant does not allege that he suffered any prejudice as a result of the failure to- delay the imposition of [^sentence. Therefore, we find that the defendant impliedly waived the twenty-four hour delay.

The transcript of the re-sentencing hearing held on August 13, 2010 reflects that the trial court imposed restitution as follows:

I’m suspending the execution of the six years and placing him on supervised probation for a period of three years, subject to all the general and mandatory conditions of Article 895A and the following special conditions. First, that he can pay the fines and costs through a probation officer pay plan with a minimum monthly payment of fifty dollars. Next, he’s to make restitution to the victims as follows: Campbell Timberland, the sum of eight thousand two hundred and thirty-nine dollars. Hancock Forest Management, the sum of twelve thousand nineteen dollar[s]. Forest Capital, the sum of five hundred and sixty seven dollars. I’m not ordering this to be paid through a pay plan. I’m just ordering it as a condition of probation.... You’re required to make that payment as a condition of probation. You can make it in multiple payments. You can make it in one lump sum payment, but before your probation ends it has to be paid.

(Emphasis added.)

Louisiana Code of Criminal Procedure Article 895.1 requires that, when restitution is imposed as a condition of probation, “[t]he restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.” (Emphasis added.) The trial court’s ruling does not comply with this requirement.

Because we are affirming the defendant’s conviction and sentence, as discussed below, we remand the matter to the trial court solely for a determination of the manner of restitution payment — either in a lump sum or in installments, based on the defendant’s earning capacity and assets.

| ^Sufficiency of the Evidence

In his first and second assignments of error, and in his first pro se assignment of error, the defendant contends that the evidence in this case is legally insufficient to convict him.

In State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La.6/25/10), 38 So.3d 352, a panel of this court reiterated the law with regard to review of sufficiency of the evidence claims:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson [v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)] standard of review.
Furthermore:
In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. The question of the credibility of the witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. The credibility of the witnesses will not be re-weighed on appeal.

Id. at 344. (Citations omitted.)

Circumstantial evidence is “proof of collateral facts and circumstances.” State v. Harris, 03-1297, p. 15 (La.App. 5 Cir. 3/30/04), 871 So.2d 599, 610, writs denied, 04-1287, 04-1289 (La.10/29/04), 885 So.2d 583. Using reason and common sense, the existence of the main fact may be inferred from such circumstantial evidence. Id. The reviewing court’s role is not to determine whether a defendant’s suggested hypothesis creates an exculpatory explanation of the events, but is to “evaluate the 17evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.” State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83. (Emphasis in original).

Simple arson, as applicable to this case, is defined in La.R.S. 14:52 as:

A. Simple arson is the intentional damaging by any explosive substance or the setting fire to any property of another, without the consent of the owner and except as provided in R.S. 14:51.
B. Whoever commits the crime of simple arson, where the damage done amounts to five hundred dollars or more, shall be fined not more than fifteen thousand dollars and imprisoned at hard labor for not less than two years nor more than fifteen years.

Motive is not one of the elements of the crime of simple arson. State v. Interest of W.T.B., 34,269 (La.App. 2 Cir. 10/20/00), 771 So.2d 807.

In State v. Martin, 04-924 (La.App. 5 Cir. 1/25/05), 895 So.2d 55, the defendant was accused of setting fire to his ex-girlfriend’s car and was charged with simple arson. One of the victim’s neighbors testified that he saw a car matching the description of the defendant’s vehicle leave the parking lot almost immediately after the victim’s car “burst into flames.” Id. at 56. Soon after, a police officer pulled the defendant over and discovered a container of flammable liquid in the defendant’s vehicle. The victim testified that the defendant had been unstable after their breakup and that someone had let the air out of her tires prior to the fire. The fifth circuit found there was sufficient evidence to support the defendant’s conviction. Although no witness actually saw the defendant set the fire, the fifth circuit held that “[t]here |swas, nonetheless, strong circumstantial evidence from which rational jurors could have concluded that defendant was the perpetrator.” Id. at 59.

Similarly, in State v. Combs, 600 So.2d 751 (La.App. 2 Cir.), writ denied, 604 So.2d 973 (La.1992), the defendant was charged with simple arson after allegedly setting fire to a guesthouse. Several witnesses testified that, shortly before the fire started, they saw a man walking near the guesthouse carrying a container with a rag at its top. Although they could not make an in-court identification, two of the witnesses gave a description that generally matched the defendant. Another witness 'identified the defendant as the man he saw with the container. Further, the defendant had previously been ordered permanently off the premises by the victim and had made statements about having the victim’s house burned. On appeal, the second circuit found that there was sufficient evidence to support the conviction.

In this case, Charles Earl, a criminal investigator with the Louisiana Department of Agriculture and Forestry, testified that, after the fires were extinguished, crews determined that there were three main areas of fire. The damaged parcels contained 2, 6, and 117 acres of timber, respectively, for a total of 125 acres. The State entered into evidence a aerial photograph that showed the locations of the fires.

Claude Moses, an employee of one of the victim-timber companies, testified that on the day of the fires he saw a black, extended cab Toyota Tacoma with a dog hunters’ association sticker on the tailgate and a Sandy Creek Hunting Club sticker in the back window. Mr. Moses testified that the truck was stopped on the side of the road near one of the fires marked on the aerial photo. He testified that a tall, slender white man wearing glasses was standing in the grass. The man was “bent over a little |3bit,” but then turned and got in his truck. Mr. Moses testified that there was “no fire there” until the man got back in his truck. At that point, he said that the grass “just went up like a blow torch.” When he drove by, the fire was about the size of a hat.

Mr. Moses followed the man for a few miles and got his license plate number. Mr. Moses was unable to identify the defendant in a photo lineup. However, he did identify the defendant’s photo and another photo in the line-up as possibilities. He testified that he only saw the man’s face in the side-view mirror of his truck.

Another employee of one of the victim-timber companies, Richard Leeper, testified that he was driving in the area in an attempt to locate the fires. He testified that he and another employee were driving towards the smoke on a private timber company road. They encountered a truck that matched the defendant’s vehicle description driving in the opposite direction. He testified that the driver was an elderly white man with glasses. Mr. Leeper also testified that after they passed the truck, they came upon a series of four or five fires that got progressively larger. Later, when presented with a photo line-up, Mr. Leeper identified the defendant as the driver of the vehicle.

Although he did not mention the defendant specifically, Mr. Leeper testified that hunting lessees were not given permission to burn their property. At least one employee of the victim-timber companies specifically testified that the defendant did not have permission to set fire to their property.

Two officers with the Vernon Parish Sheriffs Office testified about their investigation into the fires. The officers testified that, after speaking to Mr. Moses, they ran the license plate number he had taken down and learned that it was registered to the defendant. Detective Noel Yates testified that, after viewing the fires, he | indecided that any physical evidence would be destroyed by the firefighter’s efforts to extinguish the blaze.

The officers further testified that, when they went to the defendant’s house, a truck matching the description given by Mr. Moses and Mr. Leeper was parked in the driveway. Although the defendant contended that he had just woken up from a nap, both officers testified that the defendant was fully dressed and smelled of alcohol. The officers testified that the defendant told them that he had not gone in the direction of the fires that day. Further, they testified that, when questioned, the defendant told the officers that he had not seen anything suspicious that day and that he had gone into town that morning. Detective Yates testified that, when asked, the defendant indicated that he had taken a route to town that was in the opposite direction of the fires. According to the officers, when asked why someone saw his license plate number in the area of the fires, the defendant became agitated and started cursing.

The defendant was arrested the next day. Detective Yates testified that the defendant’s story changed when he was questioned at the station. According to the detective, the defendant stated that he had been in the area of the fires and that he had broken off a pine limb in order to try to extinguish one of the fires. He also stated that he had not called the fire department to report any of the fires. A tape of the defendant’s interview was played for the jury.

Mr. Leeper, Mark Williams, and Danny Harkreader testified about the value of the damages to their employer’s property. All three identified the property as being located in one of the three burned areas on the aerial photo. Further, all three were accepted by the trial court as experts in timber valuation. Mr. Leeper testified that the damages to Campbell Timberland were $8,239.00. Mr. Harkreader testified Inthat the damages to Hancock Forest Management were $12,019.00. Mr. Williams testified that the damages to Forest Capital were $567.00.

The defendant’s attorney vigorously cross-examined the State’s witnesses, especially regarding the valuation of damages. The defendant did not call any rebuttal witnesses.

No witness actually saw the defendant light the fires. However, the evidence submitted, viewed in the light most favorable to the prosecution, is sufficient to support a conviction for simple arson over $500.00. The jury was free to accept or reject, in whole or in part, the testimony of the State’s witnesses and was in the best position to weigh their testimony and evaluate their credibility.

Based on the evidence submitted at trial, the jury could have reached the conclusion that the defendant was seen in the location of more than one the fires, including one that was about “the size of a hat.” Using reason and common sense, the jury could have concluded that the defendant had recently set that fire. The jury could have rejected the defendant’s assertion that he was attempting to put the fire out when he was seen. Although the defendant contends that there was no evidence of any guilty conduct on his part, there was testimony that the defendant lied about his whereabouts on the day of the fire and subsequently changed his story. Further, the evidence presented at trial was sufficient for the jury to find that the defendant set fire to the property of the victim-timber companies’ without permission and that the value of the damages was over $500.00.

The defendant additionally argues that the State did not prove that the offenses occurred in Vernon Parish, and thus, because venue is one of the elements of the crime, did not meet its burden of proof.

| ^Louisiana Code of Criminal Procedure Article 615 addresses the venue requirement of an offense. It states:

Improper venue shall be raised in advance of trial by motion to quash, and shall be tried by the judge alone. Venue shall not be considered an essential element to be proven by the state at trial, rather it shall be a jurisdictional matter to be proven by the state by a preponderance of the evidence and decided by the court in advance of trial.

(Emphasis added.) If the defendant fails to raise the issue prior to trial, the issue of venue is considered waived. State v. Johnson, 43,843 (La.App. 2 Cir. 1/28/09), 2 So.3d 606, writ denied, 09-464 (La.11/6/09), 21 So.2d 300.

The defendant did not raise this issue prior to trial and, therefore, it is considered waived.

The defendant additionally argues that the trial court erred in denying his motion for post-verdict judgment of acquittal. Louisiana Code of Criminal Procedure Article 821 addresses motions for post-verdict judgment of acquittal. It states, in relevant part, that “[a] post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.” La.Code Crim.P. art. 821(B). Thus, a motion for post verdict judgment of acquittal tests the sufficiency of the evidence. State v. Washington, 41,182 (La.App. 2 Cir. 9/1/06), 939 So.2d 557, writs denied, 06-2320, 06-2468 (La.5/18/07), 957 So.2d 148, 149. Because we have already determined that there is sufficient evidence to support the conviction, this argument is without merit.

11sThe defendant’s assignments regarding the insufficiency of the evidence are without merit.

Excessiveness of Sentence

In his third and fourth assignments of error, the defendant asserts that his sentence is unconstitutionally excessive. Specifically, the defendant argues that the trial court unconstitutionally ordered him to spend twelve months in the parish jail as a condition of his probation and that the trial court inappropriately imposed a harsh sentence as a deterrent to other potential offenders.

The standard for review of excessive sentence claims is well-settled. The sentence must not be “so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering.” State v. Gilmore, 10-709, p. 4 (La.App. 3 Cir. 12/8/10), 54 So.3d 146, 149 (quoting State v. Williams, 07-490 (La.App. 3 Cir. 10/30/07), 969 So.2d 744). The reviewing court should not set aside a sentence that is within the statutory limits, absent an abuse of the trial court’s wide discretion in sentencing matters. Id. However, a sentence that falls within the statutory limits may be excessive given the circumstances. State v. Williams, 96-37 (La.App. 3 Cir. 6/26/96), 677 So.2d 692.

A panel of this court recently reiterated the considerations used in deciding whether a sentence is unconstitutionally excessive, stating:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, it is well settled that sentences must be individualized to the particular offender and to the particular offense committed. | ^Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge remains in the best position to assess the aggravating and mitigating circumstances presented by each case.

State v. Archield, 09-1116, p. 9 (La.App. 3 Cir. 4/7/10), 34 So.3d 434, 441 (quoting State v. Smith, 02-719 (La.App. 3 Cir. 2/12/03), 846 So.2d 786) (citations omitted).

In this case, the trial court was privy to a pre-sentence investigation, which it filed into the record, and gave lengthy reasons for the sentence at the sentencing hearing. The trial court considered the defendant’s age, marital status, health, prior military service, employment history, education, and lack of drug or alcohol abuse. The trial court also considered that the defendant had previously been convicted of a DWI, but that he had completed his probation. Additionally, the trial court noted that there was economic harm to the victims in this case. Although the trial court stated that many of these factors weighed in favor of the defendant, the trial court concluded that this was not a minor offense. The trial court sentenced the defendant to six years at hard labor, suspended, a fíne of $1,000.00, plus court costs, supervised probation for three years and, as a condition of probation, twelve months imprisonment in the parish jail. He was also ordered to make restitution to Campbell Timberland in the amount of $8,239.00, to Hancock Forest Management in the amount of $12,019.00, and to Forest Capital in the amount of $567.00.

Imposition of Imprisonment as a Condition of Probation

The crime of simple arson with damages over $500.00 is punishable by a fine of “not more than fifteen thousand dollars and imprison[ment] at hard labor for not less than two years nor more than fifteen years.” La.R.S. 14:52(B). Additionally, Louisiana Code of Criminal Procedure Article 895(B)(1) permits the trial court to _|_ijimpose, as a condition of probation, a term of imprisonment not at hard labor of up to two years.

In the case of State v. Roy, 606 So.2d 77 (La.App. 3 Cir.1992), the defendant was convicted of simple arson with damages of less than $500.00. The maximum term of imprisonment for that charge is five years. La.R.S. 14:52(C). The trial court sentenced the defendant, a first time offender, to three years imprisonment, suspended, six months in the parish jail, five years supervised probation and ordered that the defendant make restitution. Although a panel of this court vacated the sentence because the trial court had failed to state the amount of restitution, it found that the suspended sentence and the imposition of jail time as a condition of probation was not excessive.

The defendant in this case was sentenced to six years at hard labor, suspended, with three years of supervised probation and, as a condition of probation, twelve months imprisonment, not at hard labor, in the parish jail. The maximum sentence for simple arson with damages over $500.00 is fifteen years at hard labor. The defendant was ordered to pay a fine of $1,000.00 plus court costs. The maximum fine for simple arson with damages over $500.00 is $15,000.00.

The offense in this case indicates more egregious facts than the offense in Roy, 606 So.2d 77. Although the defendant herein is also a first offender, he was convicted of simple arson with damages over $500.00 and ordered to pay restitution totaling $20,825.00. There were multiple victims in this case and the defendant could have been charged individually with each offense, thus increasing his sentencing exposure. Further, he could have been sentenced to a maximum term of fifteen years at hard labor.

| ^Therefore, we find that the defendant’s sentence is not constitutionally excessive.

Deterrence

The defendant argues that the trial court erred in “sentencing defendant unnecessarily harshly in order to send a message to others.” He contends that deterrence to others has never been a basis for sentence in Louisiana jurisprudence.

We find the defendant’s contention unpersuasive. Deterrence, for a particular defendant and others, has long been recognized as a legitimate sentencing object. State v. Howard, 262 La. 270, 263 So.2d 32 (1972); State v. Lloyd, 42,793 (La.App. 2 Cir. 12/5/07), 973 So.2d 141. We note that the supreme court recently reiterated the appropriateness of both general and specific deterrence as a sentencing consideration in State v. Strother, 09-2357 (La.10/22/10), 49 So.3d 372.

Here, the trial court specifically stated that it was imposing sentence “[n]ot only [as] deterrence to you not to do this again but [as a] deterrence to other[s] who might consider or think about setting fire to the forests in Vernon Parish[.]” It was permissible for the trial court to consider deterrence to others in imposing sentence, so long as it adequately particularized the sentence to the defendant. As discussed above, the trial court gave lengthy reasons for imposing sentence and noted many factors which it considered in fashioning the defendant’s sentence. In particular, after discussing deterrence with regard to not only the defendant, but others, the trial court reiterated that it had considered the severity of the offense, the defendant’s age and lack of a prior criminal record in determining sentence. We find that the trial court did not err in considering deterrence to others as a factor in imposing sentence.

117Therefore, the defendant’s assignments of error regarding the alleged ex-cessiveness of the sentence are without merit.

Denial of the Motion for Reconsideration of Sentence

In his fifth assignment of error, the defendant contends that the trial court erred in denying his motion for reconsideration of sentence without a contradictory hearing.

Louisiana Code of Criminal Procedure Article 881.1 addresses motions for reconsideration of sentence. It states, in relevant part:

B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.
D. The trial court may deny a motion to reconsider sentence without a hearing, but may not grant a motion to reconsider without a contradictory hearing. If the court denies the motion without a hearing, the party who made or filed the motion may proffer the evidence it would have offered in support of the motion.
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

The defendant’s motion for reconsideration alleges that his sentence was excessive “as a result of no prior criminal record and his age in addition to other facts.” The trial court denied the motion without a hearing, stating, “[t]he Court specifically and clearly stated the factors it considered in sentencing the defendant. Among those stated factors were the age and lack of criminal record of the defendant. Therefore, there is no need for another hearing.” On appeal, the defendant argues that the trial court only addressed the defendant’s age and lack of criminal record in 1 ^denying the motion and failed to consider the “other factors” alleged in the motion for reconsideration.

Article 881.1 clearly permits the trial court to deny the motion for reconsideration without a hearing. Further, Article 881.1 requires the motion to set forth “specific grounds on which the motion is based.” Failure to raise specific grounds precludes the defendant from urging any additional ground on appeal. Id. The trial court addressed the specific grounds alleged by the defendant in denying the motion. The defendant did not allege any other specific grounds in his motion for reconsideration; therefore, the trial court did not err in denying the motion without a hearing.

This assignment of error is without merit.

Validity of the Indictment

In his sixth assignment of error, the defendant asserts that the sentence does not rest upon a valid indictment. The defendant argues that, because the original bill of information was amended and a written amended bill of information was never placed into the record, the indictment is invalid.

The original bill of information, filed on June 16, 2008, alleges that the defendant “did unlawfully commit the offense of simple arson” in violation of La.R.S. 14:52 and does not mention the amount of damages. The original bill of information lists Campbell Timberland and Forest Capital as the victims. The defendant filed a Motion for Bill of Particulars, which was satisfied by the State on July 1, 2008.

On February 5, 2010, the State filed a “Motion to Amend Bill of Information.” Therein, the State alleged damages of more than five hundred dollars and listed Hancock Forest Management as an additional victim. On February 8, 2010, after the |1fljury venire was qualified, the defendant was arraigned on the new bill, pled not guilty, and specifically stated that there was no objection to going forward with the trial on that date. Additionally, the defendant did not object to the Motion for Amended Bill of Information.

Louisiana Code of Criminal Procedure Article 384 addresses information(s). It states:

An information is a written accusation of crime made by the district attorney or the city prosecutor and signed by him. It must be filed in open court in a court having jurisdiction to try the offense, or in the office of the clerk thereof.

The purpose of the bill of information is to inform the defendant of the charges against him; further details are provided in the bill of particulars. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367. Thus, the technical insufficiency of a bill of information may not be asserted after conviction where the defendant (1) was fairly informed of the charge against him by the bill; (2) did not raise an objection to the bill prior to the verdict; and (3) may not be further prosecuted, as determined by examination of the pleadings and the evidence for the present conviction. State v. Butler, 41,985 (La.App. 2 Cir. 6/20/07), 960 So.2d 1208, writ denied, 07-1678 (La.5/9/08), 980 So.2d 685.

In this case, a written bill of information was filed into the record at the institution of prosecution in this case. Approximately eighteen months prior to trial, the defendant filed a “Motion for Bill of Particulars, Discovery, and Production,” and was provided with discovery by the State. The discovery included damage estimates from the victims, which put the defendant on notice of the number of alleged victims and the amount of the alleged damages.

12f|The State thereafter filed a Motion to Amend Bill of Information. The Motion to Amend contained all of the information required in a bill of information and was filed into the record. Notably, the State, the defendant and the trial court referred to the “Amended Bill of Information” several times when the defendant was re-arraigned. The defendant not only did not object to the amendment, but stated on the record that he had no objection to proceeding with trial on that date. Therefore, the defendant has not shown that he was prejudiced by any error in the bill of information.

This assignment of error is without merit.

Accuracy of Restitution Values

In his seventh assignment of error, and his third pro se assignment of error, the defendant contends that the amount of restitution is not accurate. The defendant bases this contention, in part, upon an assertion that the experts that provided the damage valuations were not qualified.

Louisiana Code of Evidence Article 702 permits expert opinion testimony in certain circumstances. It states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The trial court’s determination with regard to an expert’s qualifications and whether the expert is competent to offer opinion testimony in a specific area is subject to an abuse of discretion standard of review. Hinchee v. Soloco, L.L.C., 07-770 (La.App. 3 Cir. 12/5/07), 971 So.2d 478, writ denied, 08-65 (La.3/7/08), 977 So.2d 911.

12i Three witnesses testified about the damages to their employer’s property. Mr. Leeper was accepted as an expert on timber valuation by the court and testified that his employer, Campbell Timberland, sustained damages due to the fire in the amount of $8,239.00. Mr. Leeper’s qualifications as an expert in timber valuation include over thirty-five years of experience in forestry management and over one thousand timber valuations. Mr. Leeper’s qualifications were subject to cross-examination, and he was accepted as an expert without objection by the defendant.

The defendant subjected Mr. Leeper’s valuation to vigorous cross-examination, pointing out that he had initially valued the damages at $160,000.00 and subsequently revised them to $8,239.00. Mr. Leeper attributed this discrepancy to a second inspection of the property, which substantially lowered the amount of damaged acreage and that many of the trees that he had feared were completely dead had regenerated. The defendant also questioned Mr. Leeper thoroughly about his method of valuation. Mr. Leeper noted that, even assuming that the timber completely recovered, there was a lost opportunity cost suffered by Campbell Timberland.

Mr. Harkreader testified regarding the damages to Hancock Forest Management. He placed the value at $12,019.00. Mr. Harkreader had worked in the forestry industry for thirty-two years and had performed “well over five hundred” timber valuations. His qualifications were similarly cross-examined by the defendant and, over objection, he was accepted as an expert in the field of timber valuation by the trial court. The defendant cross-examined Mr. Harkreader’s valuation, questioning his methods and pointing out that his initial valuation of the damages was approximately $29,000.00. Mr. Harkreader stated that the time that the company had put into growing the timber had value. Further, he testified that eighty acres of 122Hancock’s timber was burned. He estimated that, out of that eighty acres, thirty percent of the timber was lost.

Mr. Williams testified regarding the damages to Forest Capital, which he valued at $567.00. Mr. Williams testified that he had been in the forestry industry for approximately fourteen years and had performed timber valuations over one hundred times. Like Mr. Leeper and Mr. Harkreader, his qualifications were subjected to cross-examination by the defendant. Over the defendant’s objection, Mr. Williams was accepted as an expert in timber valuation by the trial court.

Mr. Williams testified that the damaged acreage owned by Forest Capital was comparatively low. Further, he testified that most of the trees on Forest Capital’s property had recovered somewhat. He specifically stated that, even if the trees recovered completely, they would take an extra three or so years to grow because they were repairing the damage caused by the fire. Mr. Williams’ methodology and valuation was similarly cross-examined by the defendant.

The defendant makes a conclusory assertion that all three experts were not qualified. Each had long experience in the timber industry and substantial experience in timber valuation. The defendant had an opportunity to cross-examine each about their methodology and conclusions. When he did so, the experts spoke at length about the methodology they used and why it was preferable to other methods. They all stated that, contrary to the defendant’s contention, even if the timber recovered completely, there was a “lost opportunity cost” that their employers suffered because of the time it would take for the timber to recover. Additionally, there was testimony that some of the trees were completely dead and therefore, a total loss. Thus, the trial [^court did not abuse its discretion in accepting these three witnesses as experts and in accepting their valuations as the appropriate amount of damages for restitution.

This assignment of error is without merit.

Prosecutorial Misconduct

The defendant, in his second pro se assignment of error, asserts that the tape of his in-custody interview was edited to exclude beneficial information. He argues:

They asked if it was ok to tape my statement. I told them I did not mind as I had nothing to hide. This questioning and taping lasted just over two hours. Detective Yates, Charles Earl and myself were present. When they played this tape in Court, it lasted right at 12 minutes. They had taken anything that benefitted me out of the tape that they played in Court to the jury. I asked Mr. Fontenot [the defendant’s trial attorney] why this should not be considered fraud since they did not play all that was said on the tape. He told me that they do it all the time. I told him that I think they should have to play the whole tape because most of it benefitted me. Again he told me they do it all the time and my first mistake was making the statement without a lawyer present. I informed him I was not a career criminal so I did - not know anything about that.

Detective Yates testified that he interviewed the defendant and recorded the interview. He testified that he read the defendant his Miranda rights and that the defendant signed and acknowledged the “YOUR RIGHTS” form. The form, dated February 26, 2008 at 1357 (1:57 p.m.), was admitted into evidence. The taped interview was transcribed, and a copy of the transcription was provided to the defendant on July 1, 2008. The transcript is dated February 26, 2008. In the transcript, before questioning the defendant, Detective Yates notes that “[t]he time is now 1414 [2:14 p.m.]” and that he, Mr. Greer from Louisiana Forestry, and the defendant are present. At the close of the interview, Detective Yates notes that “[t]he time is 1425 [2:25 p.m.]” These remarks are a contemporaneous notation that the [^interview was approximately eleven minutes long. This is substantially similar to the length of the tape that the defendant alleges was played for the jury.

The record does not reveal obvious inconsistencies between the length of the interview and the length of the tape. The defendant had the opportunity to cross-examine Detective Yates regarding any “missing” tape at trial. Further, he does not allege what “beneficial information” was edited from the tape or how he was prejudiced by its omission.

Therefore, this assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the defendant’s . conviction and sentence. However, the matter is remanded to the trial court to specify the manner in which restitution is to be paid in accordance with La.Code Crim.P. art. 895.1.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . State v. Youngblood, 41,976 (La.App. 2 Cir. 5/9/07), 957 So.2d 305, writ denied, 07-1226 (La.12/14/07), 970 So.2d 530; State v. Boyance, 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d 437, writ denied, 06-1285 (La.11/22/06), 942 So.2d 553; State v. Agee, 08-203 (La.App. 4 Cir. 7/23/08), 990 So.2d 95, writ denied, 08-2190 (La.5/1/09), 6 So.3d 810; State v. Davis, 09-1109 (La.App. 5 Cir. 9/14/10), 45 So.3d 203. Compare State v. Banks, 503 So.2d 529 (La.App. 3 Cir.), remanded on other grounds, 503 So.2d 1007 (La.1987); State v. Scott, 98-2642 (La.App. 4 Cir. 2/16/00), 754 So.2d 1108, writ denied, 00-723 (La.9/29/00), 769 So.2d 1219.

      . See also State v. Brannon, 07-431 (La.App. 3 Cir. 12/5/07), 971 So.2d 511, writ denied, 07-2465 (La.5/9/08), 980 So.2d 689; State v. Giles, 04-359 (La.App. 3 Cir. 10/6/04), 884 So.2d 1233, writ denied, 04-2756 (La.3/11/05), 896 So.2d 62.

      . The legislature amended La.R.S. 14:52 in 2010. The pre-2010 version of the statute is used herein.

      . Louisiana Revised Statutes 14:51 defines the crime of aggravated arson.

      . We note, however, that several witnesses testified as to the general location of the fires, including both street names as well as township and range numbers, that the offense was investigated by the Vernon Parish Sheriff’s Office, that one of the damage estimates prepared by Hancock Forest Management—and submitted into evidence by the defense—identifies the property as in "Vernon County, LA,” and that the aerial photograph entered into evidence is titled "Vernon Wildfires 2-25-2008."

      . In response to the defendant’s discovery request, the State filed a copy of the transcript of the defendant’s in-custody interview into the record. That transcript is referenced for purposes of the discussion herein.