text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Tijuana Hardy) v. LUBA CASUALTY INS. COMPANY et al.
    No. 12-924.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant, Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellees, LUBA Casualty Insurance Company, The Glen Retirement System.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

| iThis matter is one of nineteen consolidated appeals on remand from the supreme court following its decision in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 13-749 (La.10/15/13), — So.3d -. In its remand to this court, the supreme court ordered that we consider the remaining issues raised by the parties which were not resolved by its decision. However, after reviewing the record, we note that this claim was dismissed by Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner at the start of the trial on the merits. Because this matter was dismissed, we reverse the judgment of the workers’ compensation judge and render judgment in favor of The Glen Retirement System and LUBA Casualty Insurance Company. We assess all costs of this appeal to Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: PETERS, J. THIBODEAUX, Chief Judge,

license: Public Domain

text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Roy Jones) v. LUBA et al.
    No. 12-925.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellant: Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant: Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellees: LUBA Casualty Insurance Company Evangeline Construction and Trucking, LLC.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

hFor the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir.4/2/14), 137 So.3d 91, 2014 WL 1317609, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and Evangeline Construction and Trucking, LLC.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons, with the exceptions of No. 12-923 and No. 12-924.

THIBODEAUX, Chief Judge,

dissenting in part.

hThe majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 23:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:1203(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Deshawn Clayborne) v. LUBA, et al.
    No. 12-926.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellant, Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant, Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano Juge, Napolitano, Guilbeau, Ruli & Frieman Metairie, LA for Defendants/Appellees Luba Casualty Insurance Company Shadowlake Management.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

hFor the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir.4/2/14), 137 So.3d 91, 2014 WL 1317609, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and Shadowlake Management.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons, with the exceptions of No. 12-923 and No. 12-924.

THIBODEAUX, Chief Judge,

dissenting in part.

hThe majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 23:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:1203(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Damien Courville) v. LUBA WORKERS’ COMP. et al.
    No. 12-917.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellant Rebel Distributors Corporation, Inc. d/b/a, Physician Partner and Pharmacy Partner.
    W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant: Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellees: LUBA Casualty Insurance Company Acadiana Mack & Volvo Contractors.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

_JjFor the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir. 4/2/14), 137 So.3d 91, 2014 WL 1317609, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and Acadiana Mack & Volvo Contractors.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting in part.

hThe majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 23:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:1203(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


author: KEATY, Judge.

text:
    Corey LAMARTINIERE v. BOISE CASCADE CORPORATION.
    No. 13-1075.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 2014.
    Rehearing Denied May 21, 2014.

      Eugene A. Ledet, Jr., Dalrymple & Le-det, LLC, Alexandria, Louisiana, for Plaintiff/Appellee Corey Lamartiniere.
    Charles W. Farr, Attorney at Law, Mandeville, Louisiana, for Defendant/Appellant Boise Cascade Corporation.
    Court composed of J. DAVID PAINTER, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   KEATY, Judge.

| Employer appeals from a judgment rendered by the workers’ compensation judge (WCJ) denying its fraud defense and reinstating Claimant’s temporary total disability benefits (TTDs) from the date of his termination, awarding him out-of-pocket medical expenses, mileage expenses, continuing medical care, and change of pain management physician. We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Claimant, Corey Lamartiniere, injured his lumbar spine on June 5, 2007, while picking up a twelve-foot long half-inch steel pipe while in the course and scope of his employment with Boise Cascade Corporation. On February 12, 2009, Dr. Troy Vaughn performed a two-level lumbar-disc fusion on Claimant. Boise paid workers’ compensation benefits to Claimant until December 20, 2011, when it discontinued all benefits based upon its belief that Claimant had violated La.R.S. 23:120s.

Trial was held on May 16, 2013. Although two different attorneys had represented Claimant in conjunction with his claim, Claimant was unrepresented at the time of trial. In oral reasons for judgment rendered on July 2, 2013, the WCJ found that Boise failed to prove that Claimant violated the fraud statute. The WCJ determined that Claimant established by clear and convincing evidence that he remained temporarily totally disabled and reinstated his TTDs in the amount of $478.00 per week from December 20, 2011, the date they were terminated. Claimant was awarded $1,753.79 in out-of-pocket medical expenses and $613.44 in mileage expenses. In addition, Boise was ordered to reinstate Claimant’s 12continuing medical care and to allow Claimant to change his pain management physician. Written judgment was signed on July 10, 2013.

Boise now appeals, alleging that the WCJ erred: 1) in allowing the introduction of non-certified medical records into evidence; 2) in awarding Claimant TTD benefits; 3) in finding that Claimant did not violate the fraud statute and forfeit his right to benefits by lying about his use of cocaine; 4) in finding that Claimant did not violate the fraud statute by making false statements concerning his ability to work; and 5) in awarding Claimant a change of pain management physician.

DISCUSSION

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).

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.

Testimony and Evidence Presented at Trial

Before the presentation of evidence, the parties stipulated that Claimant was employed by Boise at the time of his June 5, 2007 accident and his average weekly hwage was $1,267.00, with a corresponding compensation rate of $478.00 per week. They further stipulated that Boise is self-insured and that it terminated Claimant’s benefits on December 20, 2011.

Claimant’s testimony focused on Boise’s failure to authorize and pay for his past medical treatment and its failure to reimburse him for the mileage expenses he incurred in seeking medical treatment and in filling his prescriptions. On cross-examination, Boise’s attorney questioned Claimant about whether he had worked at Strother’s Country Store (Strother’s or the store) in Pitkin, Louisiana, beginning in May or June 2011. Claimant denied working at Strother’s, although he admitted that he had priced and stocked merchandise, served food to customers, taken out the trash, and stocked bags of ice into the cooler in front of the store. He explained that he had been engaged to the store owner’s daughter at the time and that he would often visit the store just “killing time.” Boise’s attorney then questioned Claimant about a drug screen that tested positive for cocaine during his treatment with Dr. Michael Dole, his former pain management physician. Claimant denied using cocaine and surmised that his urine sample may have gotten mixed up with someone else’s as there were five other samples next to his when he turned it in.

Thereafter, Claimant called Lamar Strother, the owner of Strother’s, and Claimant’s step-mother, Linda Lamartini-ere, as witnesses. Mr. Strother stated that when Claimant was engaged to his daughter, he would come by the store several days a week to help and learn more about the business, but he was never paid and there was no set time that he would be there. On cross-examination, Mr. Strother stated that Claimant performed the same duties and had the same responsibilities as his regular employees. Upon questioning by the WCJ, Mr. Strother stated that when Claimant visited the store, he stayed there between one and four hours. |4Ms. Lamartiniere testified that Claimant became depressed and had to depend on his family for help after Boise stopped paying him benefits.

Before resting his case, Claimant offered into evidence records from three of his treating physicians: Dr. Vaughn, the neurosurgeon who performed his back surgery; Dr. Peter Milder, a family medicine physician; and Dr. James Quillin, a clinical psychologist and psychiatrist. He also offered into evidence the results of a private drug test that he took on February 10, 2010, and a December 19, 2011 email from his former attorney’s office to Boise’s attorney inquiring whether Boise had approved a nerve stimulator recommended by Dr. Vaughn. After noting that Boise objected to the medical records not being properly certified, to the relevance of Claimant’s private drug test because of when it was conducted in relation to the test administered by Dr. Dole, and to the admission of Dr. Milder’s records since he was not listed on Claimant’s pre-trial statement, the WCJ admitted Claimant’s exhibits into evidence.

Claimant’s exhibits reveal that he was still treating with Drs. Vaughn, Milder, and Quillin when this matter was tried in May 2013. At Claimant’s April 8, 2013 visit, Dr. Vaughn noted that Claimant had “failed back syndrome with chronic back and bilateral lower extremity radicular pain” but that an updated MRI showed “no significant impingement of the lumbar spine.” Dr. Vaughn continued his earlier recommendation that Claimant be evaluated for a spinal cord stimulator. Claimant’s chief complaints to Dr. Milder at his May 13, 2013 visit were back pain, neuritis, radiculitis, osteoarthritis, and impotence. At Claimant’s April 26, 20131 ^appointment, Dr. Quillin found him to be suffering from major depression, paranoia, and insomnia.

Boise’s first witness was Dr. Richard Bunch, who was accepted as an expert in the fields of physical therapy, neurophysiology, ergonomics, and in conducting Functional Capacity Evaluations (FCEs). Dr. Bunch testified that Claimant completed an FCE at his office on August 2, 2011. The FCE report was admitted into evidence without objection. During the intake interview, Claimant told Dr. Bunch that he was not working at the time and that he did not feel able to return to his prior job. When Dr. Bunch asked if he thought he “was able to return to any type of work at this time,” Claimant replied, “I’m not sure. I haven’t explored.” According to Dr. Bunch, Claimant gave a valid effort and “did not appear to over report the severity of his pain during th[e] FCE.” Dr. Bunch noted that although Claimant reported moderate pain before and during the FCE, Claimant completed a pain diagram after completion of the FCE that showed that his pain was less than before or during the FCE. After comparing Claimant’s “residual functional capacities” to the job demands of a Production Tech 5 Bundle Saw Operator, the job Claimant performed at Boise before he was injured, Dr. Bunch opined that Claimant was capable of returning to his previous position. In other words, the results of the FCE showed that Claimant could safely perform at the light-medium level, which is how Dr. Bunch classified Claimant’s his former job at Boise according to the physical demand levels established by the U.S. Department of Labor. Nevertheless, based on the responses Claimant gave during his intake interview, Dr. Bunch believed that Claimant was not motivated to return to work at Boise.

| fiBoise’s final witness was Craig Latio-lais, a licensed private investigator, who testified that he was hired by Boise to conduct surveillance of Claimant. On August 29, 2011, Mr. Latiolais observed Claimant at Strother’s, wearing a shirt with the store’s insignia on it, sorting and unpacking merchandise, affixing price labels on items, and placing items out for sale on the store’s shelves. Mr. Latiolais next observed Claimant at Strother’s on September 12, 2011, preparing biscuits and loading trash and cardboard into a dumpster behind the store. Finally, Mr. Latio-lais observed Claimant at Strother’s on September 19, 2011, pulling a wagon filled with seventeen bags of ice and loading them into a freezer, a task which he repeated with seventeen more bags of ice. Later that day, Mr. Latiolais saw Claimant standing on a ladder in the kitchen changing light bulbs. In conjunction with Mr. Latiolais’ testimony, Boise played three DVDs containing surveillance that he obtained on the three dates that he observed Claimant at Strother’s. The three DVDs were each admitted into evidence after being shown. Upon questioning by Claimant and the WCJ, Mr. Latiolais explained that he was unsure as to what a FCE was and that he was not given any information by Boise as to what kind of injury Claimant had or what type of restrictions or limitations had been placed on him by his doctors.

At the close of its case, Boise offered into evidence Dr. Dole’s August 24, 2012 deposition and his records concerning Claimant, which were admitted into evidence without opposition. In his deposition, Dr. Dole testified that he began treating Claimant in September 2007. Dr. Dole stated that he requires all of his new patients to sign a Patient Opiod (Narcotic) Treatment Agreement (Agreement) that explains the rules they are expected to follow. Claimant signed five such Agreements while under Dr. Dole’s care. Therein, Claimant agreed to take pain |7medications only as prescribed by Dr. Dole and to not accept any controlled medications from another physician or individual. Dr. Dole explained that Louisiana law required him to perform routine urine drug testing of his patients at least four times per year. Claimant’s first drug test in July 2009 showed the presence of Soma, a muscle relaxer that Dr. Dole had stopped prescribing to him three months prior. At Claimant’s next visit, Dr. Dole told him to discard any of his leftover Soma. Dr. Dole then reviewed the Agreement with Claimant and reiterated that he should not take any controlled substances other than those currently being prescribed by Dr. Dole. Claimant was administered another drug test on December 16, 2009, and the results came back positive for cocaine. Dr. Dole sent the urine sample for a confirmatory test, which confirmed the presence of cocaine in Claimant’s system. When Dr. Dole confronted Claimant with the results, he denied having used cocaine. As a result, Dr. Dole began to wean him off of pain medications and to release him to the care of Dr. Vaughn. On January 13, 2010, Dr. Dole discharged Claimant as a patient for violating the Agreements that he had signed.

The Fraud Statute

We will address Boise’s contention that the WCJ erred in denying its fraud defense before considering its remaining assignments of error as those assignments would become moot if we find merit to Boise’s argument.

Louisiana Revised Statutes 23:1208(A) provides that it is “unlawful for any person, for the purpose of obtaining ... any benefit or payment ... to willfully make a false statement or representation.” “Any employee violating this Section Isshall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.” La.R.S. 23:1208(E).

In order for there to be a forfeiture of workers’ compensation benefits under La.R.S. 23:1208, the employer must prove (1) the claimant made a false statement or representation, (2) that the statement was willfully made, and (3) the statement was made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Constr. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7; Babineaux v. Moss Motors, 06-749 (La.App. 3 Cir. 12/6/06), 944 So.2d 882. However, the mere making of inadvertent or inconsequential false statements will not result in forfeiture.

Rougeou v. St. Francis Cabrini Hosp., 12-854, p. 5 (La.App. 3 Cir. 2/6/13), 107 So.3d 851, 856.

Boise claims that the WCJ erred in finding that Claimant did not violate the fraud statute and forfeit his right to benefits by lying to Dr. Dole about his use of cocaine and by making false statements to Dr. Bunch during the FCE regarding his ability to return to work.

In its oral reasons for judgment, the WCJ found Claimant to be credible and believable. The WCJ then noted that forfeiture of benefits is a harsh penalty, and Boise had failed to prove its fraud defense. With regard to Claimant’s alleged use of cocaine, the WCJ stated that he did not consider the negative results of the private drug test because it was administered too long after the test administered by Dr. Dole. The WCJ further noted that Claimant denied using cocaine when confronted by Dr. Dole and again when testifying at trial, and that whether Claimant had actually used cocaine was inconsequential as his medical records demonstrated that he was still in need of palliative care and pain management. The WCJ determined Claimant’s statements to Dr. Bunch that he was not working were also inconsequential given the fact that Dr. Bunch believed that Claimant had put forth “a full, genuine, valid effort into performing the FCE.” The WCJ believed | flClaimant’s explanation that he was spending time at Strother’s in the hope of seeing his then fiancé and that he never got paid for the tasks he performed while there. Finally, the WCJ stated that the surveillance taken by Mr. Latiolais did not show Claimant “doing anything greatly strenuous.”

Given the aforementioned testimony and the WCJ’s determination that Claimant was a credible witness, we find no manifest error in the WCJ’s finding that Boise failed to meet its burden of proving fraud sufficient to deprive Claimant of further workers’ compensation benefits.

Medical Records

Boise complains that the WC erred in allowing into evidence Claimant’s medical records from his neurosurgeon, Dr. Vaughn, because those records were not certified and, thus, did not comply with the dictates of La. Admin. Code tit. 40, Pt. 1, § 6209. In allowing the records into evidence, the WCJ stated that he “believe[d] that they carry sufficient weight under the lax rules” of evidence applicable to workers’ compensation proceedings.

In Brown v. AM Logging, 10-1440, p. 9 (La.App. 1 Cir. 8/4/11), 76 So.Bd 486, 492, the first circuit held that the WCJ “has the discretion to admit evidence that would otherwise be inadmissible under the Louisiana Code of Evidence.” Under the circumstances present here, we find no abuse of discretion in the WCJ’s decision to admit Dr. Vaughn’s records into evidence.

Temporary Total Disability Benefits

In order to prove his entitlement to TTDs, Claimant had to prove “by clear and convincing evidence, unaided by any presumption of disability, that [he] is physically unable to engage in any employment or self-employment, regardless of|inthe nature or character of the employment or self-employment, including ... employment while working in any pain.” La.R.S. 23:1221(l)(c).

The clear and convincing standard is a heavier burden of proof than the usual civil preponderance of the evidence standard but less burdensome than the beyond a reasonable doubt standard of criminal law. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable; that is, much more probable than its nonexistence.

Johnson v. Temple-Inland, 95-948, pp. 6-7 (La.App. 3 Cir. 1/31/96), 670 So.2d 388, 392 (citation omitted), writ denied, 96-544 (La.4/19/96), 671 So.2d 919.

“An employee is not entitled to collect either temporary total disability or permanent total disability when he is physically able to engage in any employment.” Hilts v. Wal-Mart Stores, Inc., 02-1440, p. 3 (La.App. 3 Cir. 4/2/03), 842 So.2d 465, 468-69, writ denied, 03-1258 (La.9/5/03), 852 So.2d 1036 (quoting Spencer v. Gaylord Container Corp., 96-1230, p. 5 (La.App. 1 Cir. 3/27/97), 693 So.2d 818, 822).

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

“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.

Boise contends that the WCJ erred in awarding Claimant TTDs because he failed to prove that he was not capable of working. Pointing to Dr. Bunch’s testimony and the results of the FCE, Boise contends that it proved that Claimant was capable of returning to his previous job at Boise. Boise further submits that ^Claimant’s ability to work was verified by testimony and surveillance video which showed Claimant “working” at Strother’s during the second half of 2011.

Without citing any jurisprudence, Claimant counters that the FCE results are useless because the FCE was not prescribed by nor were the results thereof confirmed by one of his treating physicians. In addition, Claimant complains that no job descriptions, including that of his previous position at Boise or a store clerk, were submitted to Dr. Vaughn for approval. Finally, Claimant points to a February 14, 2012 medical report of Kevin Murphy, Dr. Vaughn’s physician assistant, which noted that Claimant was “not able to work” at that time. Alternatively, in the event this court finds that Claimant is no longer entitled to TTDs, he asks this court to award him supplemental earnings benefits (SEBs).

In finding that Claimant had met his burden of proving his continued entitlement to TTDs, the WCJ noted that Dr. Vaughn believed that Claimant had failed back syndrome, with ongoing bilateral rad-iculopathy in his lower legs, and that Drs. Vaughn and Milder wanted Claimant to undergo an additional MRI. The WCJ further found that Boise’s effort to terminate Claimant’s benefits was inadequate because it had not provide Claimant with any 1020 income reporting forms or a 1025 certificate of compliance.

After having completed a thorough review of the evidence and exhibits submitted at trial, we conclude that the WCJ committed manifest error in finding that Claimant met his burden of proving his entitlement to TTDs. Claimant failed to offer any testimony regarding his current level of pain or his current ability/inability to work at the May 16, 2013 trial of this matter. On the other hand, | ^through the results of the FCE; the testimonies of Dr. Bunch, Mr. Strother, and Mr. Latiolais; and the surveillance videos, particularly the one showing Claimant loading thirty-four bags of ice into the cooler at Strother’s, Boise rebutted the evidence in the medical records indicating that Claimant was unable to engage in any employment. Thereafter, Claimant failed to offer any additional evidence to show his current inability to work. When confronted with the evidence of his activities at Strother’s, Claimant did not deny participating in those activities. While the February 14, 2012 report from Dr. Vaughn’s office stated that Claimant was unable to work, none of the more recent reports note such inability to work. Instead, the reports simply note that Claimant has not resumed working. More importantly, according to a May 10, 2018 note from Dr. Vaughn, an updated MRI of Claimant’s lumbar spine was performed on April 3, 2013, and showed “no significant impingement” nor “any impingement which would be expected to be causing [the] described radicular symptoms.” Thus, it appears that the need for an additional MRI as noted by the WCJ no longer exists. We find no merit to Claimant’s argument that the FCE had to be ordered or reviewed by one of his physicians to be valid or that Boise had to get his physician’s approval of any jobs to defeat his claim to entitlement of TTDs. To the contrary, the burden on an employer to prove that an employee can perform a certain job only arises when the employee has met his initial burden of proving his entitlement to SEBs due to a disability that prevents him from earning at least ninety percent of his pre-injury wages. See Dubuisson v. Amclyde Engineered Prods., Co., Inc., 12-10 (La.App. 1 Cir. 12/31/12), 112 So.3d 891. Likewise, the WCJ was mistaken in his belief that Boise’s failure to supply Claimant with a 1020 income reporting forms or a 1025 | ^certificate of compliance somehow relieved Claimant of the burden of proving that he was unable to work.

Given the totality of the evidence, we conclude that the WCJ committed manifest error in finding that Claimant proved his current entitlement to TTDs by clear and convincing evidence, a burden which required Claimant to prove by more than a preponderance of the evidence that he was physically unable to engage in any employment. Thus, Boise does not owe Claimant TTDs beyond May 16, 2013, the date this matter was tried. Because Boise has not technically challenged the portion of the judgment reinstating Claimant’s right to recover TTDs between the date they were terminated, December 20, 2011, and the date of trial, that portion of the judgment is not affected by our finding and will be affirmed. Finally, because Claimant did not answer Boise’s appeal, we cannot grant the request in his appellee brief that he be awarded SEBs “because to do so would result in a modification in favor of the non-appealing [party], contrary to Louisiana law. La.CCP art. 2133.” Matthews v. Consol. Cos., Inc., 95-1925, p. 1 (La.12/8/95), 664 So.2d 1191, 1191.

Change of Pain Management Physician

Louisiana Revised Statutes 23:1121(B)(1) provides that an injured employee:

shall have the right to select one treating physician in any field or specialty.... After his initial choice the employee shall obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

Claimant initially selected Dr. Dole as his pain management doctor. In his deposition, Dr. Dole stated that Claimant was at maximum medical improvement from a pain management standpoint when he discharged Claimant as a patient. 114Boise claims that, under the circumstances, the WCJ erred in allowing Claimant to change his pain management physician. In support of its argument, Boise relies on Reed v. St. Francis Medical Center., 44,211, p. 7 (La.App. 2 Cir. 4/8/09), 8 So.3d 824, 829, wherein the second circuit, in interpreting La.R.S. 23:1121(B)(1), noted that “the statute does not invest the claimant with the right to multiple treating physicians.” Moreover, “the claimant must show that a choice of a new treating physician is medically necessary.” Id. Boise submits that Claimant’s “conscious decision to use illegal drugs and otherwise violate his Patient Agreement with Dr. Dole does not equate to medical necessity.” Citing Dubuisson, 112 So.3d 891, Claimant counters that he should be entitled to a second choice of pain management physician because Dr. Dole refuses to treat him, regardless of whether or not he actually used an illegal drug.

Likening this case to Dubuisson, the WCJ awarded Claimant the right to change pain management physicians on the basis that Dr. Dole refused to treat him despite the fact that his medical records show that he is in need of further pain management.

In Dubuisson, the claimant’s initial choice of pain management physician had prescribed Xanax to him but had discontinued the prescription. The evidence showed that sometime thereafter, the claimant had taken some of the leftover Xanax as well as some Valium that a Mend had given him. As a result of his use of non-prescribed pain medication, the physician discharged the claimant as a patient. Soon after that discharge, the physician became seriously ill and was forced to close his practice. On appeal, the first circuit affirmed the WCJ’s decision that the claimant was entitled to choose another pain management |1sphysician on the grounds that “his initial choice in that specialty was no longer available.” Dubuis-son, 112 So.3d at 901.

Here, while Dr. Dole testified that Claimant had reached maximum medical improvement from a pain management standpoint when he was discharged on January 13, 2010, the note informing Claimant of that discharge stated that Claimant’s “condition requires medical treatment” and that he should place himself “under the care of another physician without delay.” Given the contradictory evidence concerning Claimant’s need for continued pain management, the WCJ did not commit manifest error in concluding that Claimant proved that a new choice of pain management physician was medically necessary.

DECREE

For the forgoing reasons, the portion of the judgment reinstating Claimant’s right to receive TTDs beyond the May 16, 2013 date of trial is reversed. The judgment is affirmed in all other respects. Costs of this proceeding are assessed against Boise Cascade Corporation.

REVERSED IN PART AND AFFIRMED IN PART.

      . Hereafter, this opinion will refer to La.R.S. 23:1208 as the fraud statute.

      . Claimant is now represented by counsel who has filed an appellee brief on his behalf.

      . Some of the evidence offered by Claimant and Boise, including documents concerning Claimant's claims for reimbursement of out-of-pocket medical and mileage expenses, is not relevant to this appeal and will not be discussed herein.

      . At trial, Boise objected to all three of those exhibits. On appeal, however, Boise only objects to Dr. Vaughn’s records.

      . Dr. Dole referred to the confirmatory test, liquid chromatography-mass spectrometry (LC-MS), as the “gold standard” in drug testing.

      . The purpose of Form 1025 is to inform an employee that "it is unlawful to work and receive workers’s compensation indemnity disability” and that they "must notify [their] employer or insurer of the earning of any wages.” See La. Admin. Code tit. 40, Pt. 1, § 6659.


author: GARRETT, J.

text:
    Larry HAWKINS, Plaintiff-Appellant v. CITY OF BOSSIER and Bossier, City Municipal Fire and Police Service Board, Defendants-Appellees.
    No. 48,959-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      Breedlove Law Firm by Pamela Breed-love, Shreveport, for Appellant.
    Kean Miller, LLP by Michael D. Lowe, for Appellee City of Bossier City.
    Before CARAWAY, PITMAN and GARRETT, JJ.
   GARRETT, J.

11 Larry Hawkins, a former officer with the Bossier City Police Department (“BCPD”), appeals from a district court judgment upholding his termination for failing to have an abandoned car towed. For the reasons outlined below, we vacate the district court judgment and remand this matter to the district court for further proceedings in order for it to fulfill its function as the reviewing court pursuant to La. R.S. 33:2501.

FACTUAL AND PROCEDURAL BACKGROUND

In order to understand the lengthy and complicated history of this matter, an explanation of the factual and procedural background is necessary.

At about 1:00 p.m. on June 9, 2011, Sergeant Benjamin England was on his way to conduct a shift meeting prior to going on duty at 2:00 p.m. He was driving down Walker Road toward the Arthur Teague Parkway when he observed an elderly man walking east on Walker Road. The man motioned back toward the parkway. England then observed a Dodge sedan stopped in the outside traffic lane of the two eastbound lanes on Walker Road.

Concerned that southbound traffic turning left off the parkway onto Walker Road might hit the car, Sergeant England called dispatch with a report of a stalled vehicle. He asked if there was someone who could be sent to check on it. After he was told that someone would be sent, he proceeded to his shift meeting.

At about 1:05 p.m., the plaintiff responded to a call about a stalled or abandoned vehicle and a report of an elderly man walking away from the |2car. Arriving on the scene at 1:20 p.m., he found a car with a flat tire parked in the outside travel lane of Walker Road. He estimated that it was about 40 to 50 feet from the intersection with the parkway. He ran the license plate and determined the car was owned by an elderly man. The plaintiff then went to the nearest business to see if the owner had gone there to seek assistance. Unsuccessful in locating the owner, he then returned to the car and activated his dashboard camera to document the car and the “extremely light” traffic. Because he did not deem it an immediate traffic hazard for that time of day, the plaintiff decided not to have the car towed.

Corporal Wayne Benjamin, who arrived on the scene after the plaintiff returned from looking for the owner, advised the plaintiff that he would have the car towed. Because Benjamin had a different opinion, the plaintiff contacted his supervisor, Sergeant Jeff Gaydos, and sought his advice. Gaydos later testified that, based on the plaintiffs description, he thought the car was completely off the road. According to Gaydos, he asked the plaintiff if the vehicle was (1) a road hazard, (2) blocking traffic, or (3) a vision obscurement to other traffic. The plaintiff replied no to all three queries. Consequently, Gaydos told the plaintiff to leave the car for the owner to retrieve it. The plaintiff left the area at about 1:80 p.m. At about 2:30 p.m., another officer, Keith Hardin, came across the car and had it towed.

A complaint was filed against the plaintiff, and an investigation was launched by the Internal Affairs (“IA”) department of the BCPD. Before the plaintiff was interviewed by IA, he was advised of his rights under Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). At the conclusion of the investigation, IA sustained the complaint against the |3plaintiff. It found that the plaintiff failed to take appropriate action to remove the abandoned vehicle, which was reasonably deemed a traffic hazard.

Thereafter, a five-member administrative review board, or predisciplinary board, unanimously voted to sustain the complaint against the plaintiff and recommended termination of his employment. By letter dated July 18, 2011, and signed by the mayor and the chief of police, the plaintiff was informed that he was being terminated immediately for violating BCPD General Order 05-10 pertaining to the removal of abandoned vehicles from public property. That order states in relevant part, “The police department shall tow vehicles that have been abandoned on public property. ... Vehicles deemed to be a traffic hazard shall be towed immediately.”

The plaintiff then exercised his rights pursuant to La R.S. 33:2501, which provides, in pertinent part:

A. Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause, may, within fifteen days after the action, demand, in writing, a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.

A lengthy hearing before the Bossier City Municipal Fire and Police Civil Service Board (“the Board”) was held on September 21, 2011. The plaintiff was represented by counsel, as was the City of Bossier City (“the |4City”). The Board had its own legal advisor. A court reporter was present and transcribed the proceedings.

The Board heard testimony from the plaintiff, Benjamin, England, Hardin, Gay-dos, and Police Chief Patrick McWilliams. Additionally, Sergeant Gary Aguirre testified about the manner in which he conducted the IA investigation and Assistant Police Chief Jimmy Stewart testified about the handling of the predisciplinary hearing. Numerous exhibits were introduced. In his testimony, Chief McWilliams stated that the incident took away from the efficient and orderly operation of the police department. Because the department had to respond to the situation twice, manpower was wasted. Additionally, the city potentially faced liability if another motorist ran into the abandoned car after the police failed to tow it. The chief also testified that he reviewed the plaintiffs personnel file and he felt that since 1994, the plaintiff had “a severe history of dereliction of duty complaints that were sustained resulting in ... a wide range of disciplinary actions from letters to 30 days suspension.... So at what point do you continue to deal with dereliction of duty complaints?” The chief admitted that he would not have fired the plaintiff if this had been his first incident of dereliction of duty. However, given the plaintiffs history — including his most recent incident, a January 2011 demotion from sergeant to corporal — the chief felt termination was the appropriate sanction.

At the conclusion of the evidence, a motion was made by a Board member to uphold the chiefs decision to terminate the plaintiff. Without further discussion, the Board members voted to uphold the decision to terminate by a vote of four to one. Later, in a written decision, the Board | sdetermined that the alleged violation occurred and that the disciplinary action taken was made in good faith and for just cause. The finding of fact in this document is virtually identical to that found in the termination letter sent to the plaintiff.

On October 11, 2011, the plaintiff filed a petition for appeal in the 26th Judicial District Court pursuant to La. R.S. 33:2501(E). Named as defendants were the City and the Board. The plaintiff alleged that the actions for which he was terminated did not affect the efficient operations of the BCPD, and that his punishment was more severe than that of the other officer who failed to tow the same car. He also asserted that the termination was done in violation of his rights, including his rights under the Louisiana Police Officers Bill of Rights, La. R.S. 40:2531; Bossier City Ordinance 96 of 1984; and BCPD General Order 00-12. He main-tamed that his termination was arbitrary and capricious and not in good faith and, as a result, he should be reinstated with back pay and benefits.

The plaintiffs appeal also included a request for a declaratory judgment. The City filed exceptions to the pleadings which were sustained, and the plaintiff filed an amended petition for appeal. The City then filed its answer. In order to have the matter set on the court’s docket for hearing, the City filed a request for a scheduling order which contained deadlines for briefing and set a court date.

The matter was argued at length before the district court on August 6, 2012. Much of the argument centered on a recent case that had been decided by this court which dealt with the issue of disproportionate discipline, Atchison v. Monroe Mun. Fire & Police Civil Serv. Bd., 46,178 |6 (La.App.2d Cir.5/4/11), 64 So.3d 874. An unrecorded bench conference was held. The district court then stated on the record:

All right, based on the record, based on the testimony, and looking at everything, this is what I’m going to do. I am remanding this back to the board for further proceedings in order to allow them to put on the record what they considered. I do not believe that the record has the full consideration of that. I am not reinstating Mr. Hawkins at this time based on further proceedings. I will allow [Hawkins’ attorney] to put any argument into the record before the board and any evidence before the board that has not been previously put into the record. I sit as an appellate person in this proceeding. I can either remand it or I can make a decision or I can overturn the board’s decision. I do not have enough evidence to state that it was arbitrary and capricious. I want to make sure that there is evidence in the record where I can make that determination. I believe that the board just stated that they relied upon what was in the record. They did not issue a reasoning behind that and they did not give this Court enough evidence to be able to state whether or not this decision was arbitrary and capricious, therefore, I remand it for further proceedings to the board....

On August 29, 2012, the district court signed a judgment remanding the matter to the Board for further proceedings to allow: (1) a record to be established as to why the Board upheld the termination, and (2) additional evidence to be presented to the Board by the plaintiff. The district court also directed that the Board issue written reasons detailing the reasoning behind its decision to uphold the termination. The City filed a writ application in |7this court seeking review of the judgment; the writ was denied on November 8, 2012.

The matter was brought before the Board again on March 13, 2013. Unfortunately, what transpired is not clear because no transcript of this proceeding was made. Documents subsequently filed in the district court record indicate that the current members of the Board unanimously voted to approve the finding of fact from the previous Board and that England’s personnel file was entered into evidence by the plaintiffs counsel. (Since the original hearing, the composition of the Board had changed and there were two new members.) Written statements from the original five members of the Board explaining their votes were also filed into the record.

On April 1, 2013, the plaintiff filed a “Petition for Appeal after Rehearing” in the district court seeking review of the termination. Among other things, he contended that the Board had refused to allow him to present additional evidence regarding the disproportionate nature of the discipline and that this refusal to hear or consider additional evidence was contrary to what had been ordered by the district court and this showed that the decision was arbitrary and capricious and without just cause. He requested that the entire record of the March 13, 2013, proceedings, including the transcript and/or recording, be filed with the district court.

Although the City had filed responsive pleadings to the initial appeal and a motion to set briefing deadlines and to have a court date set, the record | ^before us does not contain any similar pleadings by the City after the filing of the Petition for Appeal after Rehearing. Further, the court minutes do not reflect that a court date was set. At oral argument before this court, the parties confirmed to the panel that the matter was not taken up in open court.

In a judgment signed July 10, 2013, the district court affirmed the Board’s decision. The judgment stated:

The matter having come before the Court on a Petition for Appeal and Declaratory Judgment filed by Larry Hawkins wherein he seeks review of the decision of the Bossier City Municipal Fire and Police Civil Service Board to uphold the termination of Mr. Hawkins. This Court’s jurisdiction is limited to questions of law only and the facts as found by the Board must be accepted as the basis for this review. This Court having considered a thorough review of the record finds that the Civil Service Board’s findings of fact are supported by sufficient, legal, competent evidence as a matter of law and based on said findings, the Board’s legal conclusions are correct as a matter of law.

The plaintiff sought review of the district court’s decision and the procedure that was followed below. The plaintiff has asserted numerous assignments of error. We find merit in the assignment which questions the manner in which the judgment signed July 10, 2013, without a hearing in open court, was rendered.

LAW

An employee under classified service may appeal from any decision of the civil service board that is prejudicial to him. La. R.S. 38:2501(E)(1). Such an appeal shall be taken to the district court wherein the civil service board is domiciled. Review by the district court does not include a trial de novo. City of Shreveport v. DeBello, 46,891 (La.App.2d Cir.1/25/12), 86 |9So.3d 17, writ denied, 2012-0460 (La.1/25/13), 105 So.3d 62. Rather, the district court sits as a reviewing court and determines from the record of the Board’s proceedings whether its decision was made in good faith for cause. McCoy v. City of Shreveport, 42,662 (La.App.2d Cir.12/5/07), 972 So.2d 1178. The hearing “shall be confined to the determination of whether the decision made by the board was made in good faith for cause” and “[n]o appeal shall be taken except upon these grounds.” La. R.S. 33:2501(E)(3). The Board’s decision will not be overturned unless it is manifestly erroneous or arbitrary and capricious. City of Shreveport v. DeBello, supra. Good faith does not occur if the appointing authority acts arbitrarily or capriciously, or as a result of prejudice or political expediency. Moore v. Ware, 2001-3341 (La.2/25/03), 839 So.2d 940. Arbitrary or capricious means the lack of a rational basis for the action taken. Moore v. Ware, supra.

Disciplinary action against a civil service employee has been deemed arbitrary and capricious absent a real and substantial relationship between the improper conduct and the “efficient operation” of the public service. The appointing authority must demonstrate, by a preponderance of the evidence, that the conduct did in fact impair the efficiency and orderly operation of the public service. Lensey v. City of Shreveport Mun. Fire & Police Civil Serv. Bd., 36,934 (La.App.2d Cir.3/5/03), 839 So.2d 1032, writ denied, 2003-0997 (La.6/6/03), 845 So.2d 1091; Atchison v. Monroe Mun. Fire & Police Civil Sen. Bd., supra.

| inThe district court may not substitute its opinion for that of the Board. City of Shreveport v. DeBello, supra. The district court should accord deference to a civil service board’s factual conclusions and must not overturn them unless they are manifestly erroneous. Moore v. Ware, supra; City of Shreveport v. DeBello, supra. Likewise, the intermediate appellate court’s and supreme court’s review of a civil service board’s findings of fact are limited. Those findings are entitled to the same weight as findings of fact made by a trial court and are not to be overturned in the absence of manifest error. Moore v. Ware, supra; Ouachita Parish Police Jury v. Ouachita Parish Fire Prot. Dist. No. 1 Civil Sen. Bd., 46,480 (La.App.2d Cir.9/21/11), 72 So.3d 987; Beck v. City of Baker, 2011-0803 (La.App. 1st Cir.9/10/12), 102 So.3d 887, writ denied, 2012-2455 (La.1/11/13), 107 So.3d 617.

DISCUSSION

Finding that the initial record before it was inadequate to make a determination of whether the Board’s actions were arbitrary and capricious, the district court first remanded the matter to the Board. After a conscientious review of the law, the district court also expressed concern about the adequacy of the record that had been made below in light of the recent Atchison case from the Second Circuit. The district court may remand a case to the Board when it believes the circumstances warrant such action. See City of Bossier City v. Gauthier, 512 So.2d 623 (La.App. 2d Cir. 1987), writ denied, 514 So.2d 1182 (La. 1987); Laborde v. Alexandria Mun. Fire & Police Civil Sen. Bd., 566 So.2d 426 (La.App. 3d Cir.1990), \uwrit denied, 568 So.2d 1055 (La.1990); Baton Rouge Police Dep’t v. O'Malley, 2010-1386 (La.App. 1st Cir.3/25/11), 64 So.3d 773; and Atchison v. Monroe Mun. Fire & Police Civil Serv. Bd., supra. The district court obviously believed that the instant case was one of those warranting remand.

In his Petition for Appeal after Rehearing, the plaintiff alleged several irregularities about the manner in which the Board conducted the hearing on remand, in addition to re-urging arguments made earlier. Among these was the Board’s alleged failure to comply with the district court’s directive to allow the plaintiff to present additional evidence on the issue of disproportionate punishment. The plaintiff specifically asserted in his Petition for Appeal after Rehearing that the Board should be ordered to file a complete record of the March 13, 2013, proceedings, including “a transcript and/or the recording of the hearing,” and, after the filing of the entire record of the remand proceedings, the matter should be set for briefing and hearing on the district court’s docket.

As noted above, the district court issued a ruling without setting the matter for a hearing in open court. Apparently the court was provided with some written documents pertaining to the Board’s actions on remand, as these were filed in the record by the clerk with a handwritten notation by the clerk that they “came from [judge’s] office.” Admittedly the plaintiff failed to attach an order to set the matter for hearing when he filed the Petition for Appeal after Rehearing although the petition prayed that the matter be set in court. However, we note that when the matter was first argued in court back on August 6, 2012, this was pursuant to a scheduling order generated by the l^City. The law contemplates that a hearing will be held in open court. La. R.S. 33:2501(E)(2) states, in relevant part, that the district court “shall thereupon proceed to hear and determine the appeal in a summary manner.” [Emphasis added.]

On the question of whether the Board’s proceedings must be transcribed, La. R.S. 33:2501(B)(3) provides:

The board shall have complete charge of any such hearing and investigation, and may conduct it in any manner it deems advisable, without prejudice to any person or party thereto. The procedure followed shall be informal and not necessarily bound by the legalistic rules of evidence. The board shall not be required to have the testimony taken and transcribed, but either the employee or the appointing authority may, at their own expense, make the necessary arrangements therefor. In such cases the board may name any competent shorthand reporter as the official reporter. If the testimony is not taken or transcribed, then the board shall make a written finding of fact. [Emphasis added.]

Under this statute, the Board was not required to preserve or prepare a transcript of the proceeding on the plaintiffs behalf. City of Bossier City v. Vernon, 78 So.3d at 158.

As noted above, the plaintiff arranged to have a transcript made of the testimony presented before the Board at its initial hearing. Unfortunately, neither side made any such arrangements for the remand proceedings despite the fact that the district court had ordered that new evidence could be adduced. However, counsel for the plaintiff asserted at oral argument before this court that there is an audio recording of the remand hearing and that she had intended to file it into evidence at the hearing she had expected the district court to convene before ruling on the plaintiffs Petition for Appeal after Rehearing.

1^Review of the jurisprudence demonstrates that a district court which is hearing an appeal may consider an audio recording of the proceedings before the Board. See Baton Rouge Police Dep’t v. Morrison, 2004-0057 (La.App. 1st Cir.2/18/05), 906 So.2d 610, fn. 6 (“The record includes a recording and transcript of the very brief hearing before the Board.”); Baton' Rouge Police Dep’t v. Robinson, 2009-1571 (La.App. 1st Cir.4/30/10), 38 So.3d 993, 999 (“The district court reviewed the record of the hearing before the Board, including listening to the taped testimony and reviewing all documents.”); Baton Rouge Police Dep’t v. O’Malley, supra at 775 (“All of the evidence submitted to the Board was filed with the 19th JDC, along with a copy of the Board’s minutes, which summarized the testimony of the various witnesses before the Board, and an audio recording of the proceedings. After reviewing the evidence and hearing argument from the parties, the court took the matter under advisement.”); and Beck v. City of Baker, supra at 893 (“The Board’s written findings and the audio recording of the eviden-tiary hearing at his appeal before the Board reveals that Beck was fully aware of the reasons for his demotion....”)

Part of the court of appeal’s role in this review process is to determine whether the district court utilized the proper standard of review and the appropriate procedures. In order to fulfill its function as the reviewing court, the district court should have fully reviewed the entirety of the Board’s proceedings on the remand it ordered. This is particularly true given the new allegations in the plaintiffs Petition for Appeal after Rehearing which contend that the Board failed to comply with the district court’s directive to allow the plaintiff to present additional evidence. Presumably the recording [ Mof these proceedings would explain whether evidence was adduced and, if not, the reasons why. A full review by the district court of the remand hearing, including consideration of the audio recording of that proceeding, is called for here. Of course, the City shall have the right to file any pleadings it deems appropriate in the district court in response to the plaintiffs Petition for Appeal after Rehearing.

The remedy on appeal sought by the plaintiff for the procedural deficiencies is reversal of the termination and reinstatement with back pay and benefits. This is not the appropriate remedy at this juncture. Instead, the district court’s judgment affirming the Board must be vacated and the matter remanded to the district court so it can properly perform its function as the reviewing court under La. R.S. 33:2501. As part of its review, the district court will need to address the matters urged by the plaintiff and determine whether the Board complied with the terms of the August 29, 2012, judgment. If the Board satisfied the mandate in the August 29, 2012, judgment, then the district court should undertake its review. If the Board did not satisfy the mandate, then the district court will need to determine the appropriate course of action. All of these matters will need to be addressed in open court with all parties present and represented.

1 ^CONCLUSION

For the reasons assigned above, we vacate the district court judgment and remand the matter to the district court for further proceedings in compliance with this opinion. Costs in the amount of $1,450 are assessed to the City of Bossier City.

DISTRICT COURT JUDGMENT VACATED, AND CASE REMANDED WITH INSTRUCTIONS.

      . The predisciplinary board also considered a complaint against Sergeant England arising out of the same incident. One member voted that the complaint was not sustained; the other four recommended that a letter of documentation be placed in his file, which was done.

      . In the Atchison case, this court held that "the trial court committed a fundamental error that prevented it from making an adjustment to Atchison's penalty (termination) after it found this penalty to be excessive and disproportionate when compared with punishment imposed upon other [Monroe Police Department] officers in somewhat similar situations. The trial court apparently concluded it lacked authority to adjust the penalty and took no corrective action in spite of its negative evaluation of the termination.” While the instant case has been in court, we note that the Louisiana Supreme Court has decided the case of City of Bossier City v. Vernon, 46,517 (La.App.2d Cir. 11/2/11), 78 So.3d 153, writ granted, 2012-0078 (La.3/30/12), 85 So.3d 100, and aff'd, 2012-0078 (La. 10/16/12), 100 So.3d 301, and writ denied, 2012-0101 (La. 10/12/12), 99 So.3d 36. It held that the clear and unambiguous language of La. R.S. 33:2501(C)(1) authorizes the Board to modify the discipline of the appointing authority even if the discipline was imposed in good faith for cause.

      . Logic dictates that since a court reporter was at the first hearing and transcribed that hearing, the same procedure would have been utilized by the parties on remand since the district court expressly ordered a remand for a hearing. This was not done. At oral arguments before this court, the City argued it was the plaintiff's responsibility to arrange for a court reporter. Counsel for the plaintiff advised that the remand proceedings were recorded and that an audio recording could be produced.

      . Because we find merit to this assignment, we pretermit consideration of the plaintiff’s other assignments of error.

      . It appears that the plaintiff wanted to introduce evidence pertaining to the treatment of officers who allegedly violated the towing policy in situations involving DWI arrests, a line of inquiry which was not allowed at the first hearing as being irrelevant. The audio recording should shed light on what the plaintiff endeavored to prove at the second hearing. Again, because the recording has not been considered by the district court, what occurred on remand is unknown.

      . We express no opinion on the merits of the plaintiff's claims or the ultimate outcome of his suit.


author: BROWN, Chief Judge.

text:
    Anthony GUIRLANDO, Plaintiff-Appellant v. RICHLAND PARISH SCHOOL BOARD, et al., Defendants-Appellees.
    No. 48,970-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.
    Rehearing Denied May 8, 2014.

      Crawford & Ogg By: Brian E. Crawford, Monroe, for Appellant.
    Hammonds, Sills, Adkins & Guice, LLP By: Jon K. Guice, Baton Rouge, Neal L. Johnson, Jr., Monroe, Courtney T. Joiner, for Appellee, Richland Parish School Board.
    Hammonds, Sills, Adkins & Guice, LLP By: Neal L. Johnson, Jr., Monroe, Courtney T. Joiner, for Appellees, Cathy Stockton, Harold Gallman, and Regina Meekus.
    Before BROWN, DREW, and GARRETT, JJ.
   BROWN, Chief Judge.

hOn June 12, 2012, plaintiff, Anthony Guirlando, filed suit in the Fifth Judicial District Court, seeking, inter alia, review of an adverse decision in a tenure hearing held by the Richland Parish School Board. Guirlando’s pleading was captioned “Petition for Appeal and Damages” and named as defendants the Richland Parish School Board, Regina Meekus, Harold Gallman, and the board superintendent, Dr. Cathy Stockton. Under the Tenure Law, La. R.S. 17:441 et seq., the trial court serves as the first court of appeal/review. Defendants filed a motion for summary judgment, which the trial court granted. Plaintiff has appealed the trial court’s ruling.

Facts/Procedural History

Plaintiff presently serves as the principal of Rayville Junior High School in Ray-ville, Louisiana. On April 11, 2011, a student, LaQuise Reynolds, had been sent to the principal’s office because of his refusal to do school work. LaQuise, a slightly built 12-year-old, had a history of disruptive and destructive behavior. According to Guirlando, while in the office, LaQuise threatened to “break some stuff,” and Guirlando had to restrain him. After this incident, LaQuise called his mother, wanting to come home. His mother, Helen Reynolds, does not drive and had no one who could pick LaQuise up at that time. Thus, Guirlando drove LaQuise home to his mother. LaQuise reported to Mrs. Reynolds that Guirlando had choked him. Guirlando apologized to LaQuise’s mother and said he had to restrain LaQuise. Mrs. Reynolds claimed that Guirlando said he had to restrain LaQuise and then added that he said he had choked LaQuise. Mrs. 12Reynolds promptly called the superintendent, Dr. Cathy Stockton, who initiated an investigation into the incident.

Dr. Stockton had Harold Gallman interview the parties and take LaQuise to a physician. Dr. David Thompson, who was the Richland Parish Coroner and La-Quise’s family doctor, examined LaQuise that day and found no evidence of choking or any other injuries. Three days later, Mrs. Reynolds took LaQuise back to Dr. Thompson at which time he was diagnosed with sinusitis/bronchitis.

On May 11, 2011, Dr. Stockton presented formal charges against Guirlando to the Richland Parish School Board. The school board approved the charges (five in all, only one arising out of or related to the LaQuise Reynolds incident), and Guirlando was informed of the school board’s decision to hold a tenure hearing at which the charges would be considered.

The tenure hearing was held June 23-25, 2011. A number of witnesses testified, and documentary evidence was introduced. The school board found Guirlando guilty of two of the five charges: charge # 5 by a vote of six to three, the board found Guir-lando guilty of choking LaQuise; and, charge # 3 by a vote of seven to two, the board found the principal guilty of inefficiency in his refusal to submit important documents to the central office despite several requests to do so. Although the superintendent wanted Guirlando’s termination, in a 9-0 vote, the school board decided to impose a 30-day suspension without pay and a one-year probationary period.

On June 13, 2012, Guirlando filed his petition in the district court. In its written reasons, the district court found that the hearing was held in accordance with applicable law, La. R.S. 17:441 et seq., and that there was | sa rational basis supported by substantial evidence for the board’s determination that Guirlando was guilty of the conduct alleged in charges # 3 and # 5. It is from the district court’s judgment that Guirlando has appealed.

Discussion

Plaintiff, Anthony Guirlando, who is presently serving as the principal of Ray-ville Junior High School, is also a tenured classroom teacher. La. R.S. 17:444 B(l), which is applicable to principals, provides:

Whenever a teacher who has acquired tenure, as set forth in R.S. 17:442, in a local public school system or the special school district is promoted by the superintendent by moving such teacher from a position of lower salary to one of higher salary, such teacher shall not be eligible to earn tenure in the position to which he is promoted, but shall retain any tenure acquired as a teacher, pursuant to R.S. 17:442.

Further, La. R.S. 17:444 B(4)(c)(iii) provides:

The employee shall be retained during the term of a contract unless the employee is found incompetent or inefficient or is found to have failed to fulfill the terms and performance objectives of his contract. However, before an employee can be removed during the contract period, he shall have the right to written charges and a fair hearing before the board after reasonable written notice. (Emphasis added).

La. R.S. 17:443 B(l), which is applicable to teachers, provides in part:

A teacher with tenure shall not be removed from office except upon written and signed charges of poor performance, willful neglect of duty, incompetency, dishonesty, immorality ... and then only if furnished with a copy of such written charges and given the opportunity to respond.

This court may not reverse the district court’s decision unless it finds that the school board’s proceedings failed to comply with statutory formalities and/or the board’s findings were not supported by substantial evidence. Wise v. Bossier Parish School Board, 02-1525 (La.06/27/03), 851 So.2d 1090.

|4Guirlando has not complained of any procedural irregularities, nor did the trial court find any. Therefore, the only issue before this court is whether the trial court was manifestly in error/clearly wrong in finding that there was a rational basis supported by substantial evidence for the school board’s decision.

Charge # 3 alleged that:

The Richland Parish Pupil Progression Plan requires regular meetings of each school’s School Building Level Committee (“SBLC”) and the preparation of documentation such as minutes of such meetings. In addition, the superintendent directed each principal to supply the central office with his/her school’s SBLC minutes on a monthly basis. Mr. Guirlando has also received specific directives that he turn in his school’s SBLC minutes. Despite the above-described plan and directives, Mr. Guirlan-do has failed to supply the central office with any SBLC minutes for the'2010-2011 school year. Such conduct on the part of Mr. Guirlando constitutes breach of contract and inefficiency for purposes of Louisiana Revised Statutes 17:444 and/or ineompetency and willful neglect of duty for purposes of Louisiana Revised Statutes 17:443.

The School Board found that Guirlando was guilty of inefficiency by repeatedly failing to provide the central office with Rayville Junior High School’s SBLC minutes for the 2010-2011 school year as required by the Pupil Progression Handbook (which is contained in the Administrators’ Handbook). According to the school board’s witnesses, Guirlando was asked numerous times to turn in the SBLC minutes. Joyce Smith, the supervisor of Pupil Appraisal Services, even offered to help him with the minutes and with the SBLC, but Guirlando would not accept any assistance.

Guirlando does not deny that he was responsible for filing the minutes and that he did not do so. Guirlando claims, however, that this charge alone is not deserving of punishment and would never have been pursued had the LaQuise Reynolds matter not arisen.

| .¡Guirlando discusses the testimony that relates to this charge, and notes several points. First, the letter from the school board placing him on leave mentioned only the LaQuise Reynolds incident and did not bring up any other charges or investigation. Second, while he acknowledges his ultimate responsibility for the SBLC minutes and that Rayville Junior High School did not send in the minutes as it should have, he notes that no specific requests for the minutes “in general” were ever made. Guirlando asserts that he was not suspended or reprimanded because of these SBLC minutes; this charge and the other four were added to the LaQuise Reynolds charge because “someone was out to get Anthony Guirlando.”

The school board found that charge # 3 did not involve incompetency, willful neglect of duty or breach of contract, but found Guirlando guilty of “inefficiency.” According to Guirlando, the inefficiency regarding SBLC minutes is widespread, not just limited to Rayville Junior High School.

Joyce Smith, Supervisor of Pupil Appraisal Services, testified with regard to this issue. She testified that in 2009, she became responsible for keeping the SBLC minutes. She stated that principals were directed to turn in the SBLC minutes. She recalls the principals being told in two separate meetings during the 2010-2011 school year. Additionally, principals were told to turn the SBLC committee minutes in at the administrative workshop held in August 2010.

After not receiving the Rayville Junior High School SBLC minutes, she talked with Guirlando and offered to help him with those minutes. She offered four to five times during the year to help him and told him that she had to have him turn in the SBLC meeting minutes.

|fiMs. Smith testified that as of May 8, 2011, she never received one single SBLC minute or documentation from Rayville Junior High School. She stated that she did receive something from Rayville Junior High School on May 26, 2011, but only two documents were received for the entire school year. Ms. Smith stated that Guir-lando was aware of the need to turn in the minutes to her and that he was aware that she offered him assistance to do so. She stated that she did talk to Guirlando to get his reports in for December and January, but he did not do so.

Dr. Cathy Stockton stated that documentation for the SBLC minutes took on added significance in 2009 as the state monitored the reporting requirements. Each principal was to have his or her school’s SBLC minutes in Joyce Smith’s office. She documented several meetings at which Guirlando was present in which she mentioned that the SBLC minutes were to be provided to Joyce Smith.

The record shows that SBLC deals with failing students and how to help them achieve. The record clearly supports the school board’s determination on this charge, as well as the trial court’s ruling upholding the board’s decision.

Charge # 5 alleged that:

On or about April 11, 2011, LaQuise Reynolds was in the principal’s office of Rayville Junior High School. While La-Quise was in or near the office, Mr. Guirlando grabbed LaQuise at or about his neck, and by LaQuise’s description, choked him. Such conduct on the part of Mr. Guirlando violates board policy and state law and constitutes willful neglect of duty for purposes of Louisiana Revised Statutes 17:443 as well as breach of board contract for purposes of Louisiana Revised Statutes 17:444.

1 yGuirlando recognized that there is no question that an incident occurred between himself and LaQuise Reynolds. What is contested, however, is exactly what occurred. The only evidence that Guirlando choked LaQuise came from the student and his mother.

Guirlando was alone in his office with LaQuise Reynolds. Whether the door was open or closed is not clear. Guirlando placed himself in the position of having to defend his actions without a neutral third party witness present who could have testified to the events that occurred. According to Harold Gallman, there is no school policy that a third person be present. Further, there was a camera in the office; however, the camera was not working.

LaQuise stated to Gallman that he was mad and was wanting to throw something. Guirlando stated that he grabbed LaQuise in a bear hug to prevent damage. La-Quise stated that Guirlando grabbed his throat and choked him. LaQuise has a history at the school of being destructive and lying about incidents that happened at school. His mother even admitted that LaQuise had lied about other teachers at the school. Dr. Thompson examined La-Quise twice and found no evidence of choking or injuries. We note that LaQuise’s mother has filed a civil lawsuit.

The record contains two very different accounts of the incident. In Wise, 851 So.2d at 1095, the supreme court stated:

Even though in the present case the School Board filed numerous charges of willful neglect of duty against Wise, there is no requirement in the applicable statute or the jurisprudence that mandates all charges must be proven before termination may be imposed. To the contrary, it is sufficient to support termination if any one of the charges of willful neglect of duty against the tenured teacher is sufficiently supported by the record. Meyers v. Sabine |8Parish Sch. Bd., 499 So.2d 690, 696 (La.App. 3d Cir.1986), writ denied, 501 So.2d 236 (La.1987); see also Simon v. Jefferson Davis Parish Sch. Bd., 289 So.2d 511, 517 (La.App. 4th Cir.), writ denied, 293 So.2d 178 (La.1974); Johns v. Jefferson Davis Parish Sch. Bd., 154 So.2d 581, 588 (La.App. 3d Cir.1963). Finding merit in the contention that Wise sent students unattended to the principal’s office in direct contravention of her principal’s repeated orders, we need not address the remaining allegations brought against her.

Finding that Guirlando failed to present the minutes of SBLC meetings which was mandated and of significant importance to the evaluation of students as well as the school system, we find it unnecessary to reach the issue of whether the board’s (and the district court’s) conclusion regarding charge # 5 was supported by substantial evidence.

Conclusion

For the reasons stated above, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, DREW, and GARRETT, JJ.

Rehearing denied.

      . In making this statement, we express no opinion as to the other charges against Wise. An expression in an opinion not necessary for the decision is merely "obiter dictum.” DuBell v. Union Central Life Ins. Co., 211 La. 167, 29 So.2d 709 (1947). Cognizant of our duty to decide matters before us on the narrowest grounds, we find it unnecessary to reach the validity of the other charges brought against Wise. See Cat’s Meow, Inc. v. City of New Orleans through Dep't of Finance, 98-0601 (La. 10/20/98), 720 So.2d 1186.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Craig OLIPHANT, Appellant.
    No. 48,998-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      Craig Oliphant, Pro Se.
    Ross S. Owen, Alan J. Golden, Shreveport, for Appellant.
    Jerry L. Jones, District Attorney, Devin Todd Jones, Assistant District Attorney, for Appellee.
    Before MOORE, LOLLEY and BROWN, JJ.
   LOLLEY, J.

| defendant, Craig Oliphant, appeals his sentence by the Fourth Judicial District Court, Parish of Morehouse, State of Louisiana. Following the vacating of his sentence and remand to the trial court by the Louisiana Supreme Court, Oliphant received a new sentence of 18 years at hard labor without benefit of probation, parole, or suspension of sentence and with credit for time served; a fine of $5,000.00 or, in default of payment, one year in jail consecutive to the principal sentence; and, completion of substance abuse and driver improvement programs. For the following reasons, we affirm Oliphant’s conviction and sentence.

Facts

Oliphant pled guilty to vehicular homicide, La. R.S. 14:32.1, on July 19, 2010. The underlying facts of that plea and this instant appeal are stated in detail, both in State v. Oliphant, 46,927 (La.App.2d Cir.03/21/12), 93 So.3d 603 (“Oliphant I”), and in State v. Oliphant, 2012-1176 (La.03/19/13), 113 So.3d 165 (“Oliphant II”). Thus, those facts will not be repeated herein, except to say that Oliphant, while under the influence of alcohol measuring a blood alcohol content of .247g%, ran his vehicle off the road, instantly killing Cravis Scott and injuring Fredrick Matthews. He was charged with vehicular homicide and hit-and-run driving.

Following his guilty plea to vehicular homicide, the trial court initially sentenced him to imprisonment for 25 years without benefit of probation, parole, or suspension of sentence, with credit for time served; to a fine of $10,000.00 or, in default of payment, to one year in jail consecutive to the principal sentence; and, to participation in a substance abuse program and a driver improvement program. Oliphant’s motion to reconsider sentence was granted by the trial court, with the court ordering that only the first 15 years be without benefit of probation, parole, or suspension of sentence; the rest of the sentence remained as previously decided.

|?In Oliphant I this court reversed the trial court’s sentence. After determining that vehicular homicide is not a crime of violence, this court further determined that the trial court’s sentence was constitutionally excessive. The sentence was vacated and remanded to the trial court for resentencing, with instructions to impose a sentence of not more than 15 years at hard labor. Id. at 614.

Oliphant’s writ application was granted by the Louisiana Supreme Court, ultimately leading to its opinion in Oliphant II, which reversed this court’s decision. In Oliphant II, the court, noting a split in the trial and appellate courts, determined that vehicular homicide is indeed a crime of violence. Id. at 173. That being the case, the court recognized that the trial court’s original sentence of 25 years with 15 years of parole ineligibility violated La. R.S. 15:474.4(B)(1), which provides: “Notwithstanding any other provisions of law to the contrary, a person convicted of a crime of violence and not otherwise ineligible for parole shall serve at least eighty-five percent of the sentence imposed before being eligible for parole.” Id. at 174. The Oliphant II court concluded: “Thus, by operation of law, defendant must serve at least twenty-one years and three months of his twenty-five-year sentence before becoming eligible for early release, not fifteen years as the District Court ordered on reconsideration.” Id. In other words, Oliphant II determined that 15 years was less than the required 85% of the sentence imposed, violating La. R.S. 15:474.4(B)(1). Reversing Oliphant I, the Supreme Court vacated the sentence and remanded this matter to the trial court for resentencing.

|sOn remand from the Louisiana Supreme Court, the trial court took up the case again in a hearing on July 9, 2013. At the hearing the trial court stated that it had considered the entire record, the pre-sentence investigation report, the Boykin hearing, the letters written on behalf of Oliphant, testimony from friends and family members, of both the victim and the defendant, everything else which was adduced at the original sentencing hearing, the rulings of this court and of the Louisiana Supreme Court, and the character, attitude, and social and criminal history of the defendant. The trial court noted the La.C.Cr.P. art. 894.1 sentencing factors from Oliphant’s first sentencing hearing and “adopted them by reference.” Oli-phant was sentenced to 18 years at hard labor without benefit of parole, probation, or suspension of sentence, with credit for time served; to pay a fine of $5,000.00 and all court costs or, in default of payment, to serve one more year in jail; and to attend a court-approved substance abuse program and a driver improvement program. The trial court again designated the crime as a crime of violence. After a denial of his motion to reconsider sentence, this appeal by Oliphant ensued.

Discussion

.In Oliphant’s first assignment of error, he argues that the trial court erred by imposing a sentence that exceeded the sentencing limitation set by this court in Oli-phant I. Specifically, he maintains that the trial court wrongly ignored Oliphant I when it resentenced him to 18 years at hard labor without benefits and a fine of $5,000.00. According to the defendant, although the Louisiana Supreme Court reversed the judgment of this court, the Supreme Court did so only to Lclassify the crime as a crime of violence and specify the amount of the sentence that must be served without benefit of probation, parole, or suspension. He argues that Oliphant II did not comment on this court’s determination that 15 years of imprisonment was the maximum constitutional prison sentence for this crime. By only changing the classification of the crime to a crime of violence, argues the defendant, the Supreme Court left standing this court’s finding that the maximum sentence allowable for this offense is 15 years, and that 15-year limitation remains a controlling judgment in this case. We disagree.

Louisiana R.S. 14:32.1, addressing the crime of vehicular homicide, states:

A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle ... whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exist and such condition was a contributing factor to the killing:
(1) The operator is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions of R.S. 32:662.
B. Whoever commits the crime of vehicular homicide shall be fined not less than two thousand dollars nor more than fifteen thousand dollars and shall be imprisoned with or without hard labor for not less than five years nor more than thirty years.... If the operator’s blood alcohol concentration is 0.15 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood, then at least five years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.... The court shall require the offender to participate in a court-approved substance abuse program and may require the offender to participate in a court-approved driver improvement program.

Furthermore, and already noted, notwithstanding any other provisions of law to the contrary, a person convicted of a crime of violence and not otherwise ineligible for parole shall serve at least 85% of the sentence imposed, before being eligible for | ¿parole. La. R.S. 15:574.4(B)(1). Oliphant II conclusively determined that vehicular homicide is a crime of violence; thus, the defendant in this matter -will be required to serve at least 85% of his sentence before being eligible for parole.

There is no doubt that this court’s opinion in Oliphant I was reversed by the Louisiana Supreme Court. In its opinion, the Supreme Court stated in the very beginning that it “reverse[d] the judgment of the Court of Appeal.” Oliphant II at 166. It stated in its conclusion that it “reversed the judgment of the court of appeal holding to the contrary” of the Supreme Court’s classification of the crime as a crime of violence. Id. at 174. The court stated in the decree at the end of its opinion that “the judgment of the Court of Appeal is hereby reversed.” Id. Although the conclusion of Oliphant II declared that the Supreme Court reversed this court’s prior judgment which “[held] to the contrary,” nothing in the Supreme Court’s ruling indicated that it found some parts of this court’s opinion not to be contrary to its own, or that the Supreme Court limited its reversal to only one part of this court’s opinion. Rather, most of the Supreme Court’s statements regarding its ruling simply indicate that this court’s prior ruling is unqualifiedly reversed.

In addition to his argument that the trial court remains bound by Oliphant I, the defendant also argues that the sentence should be reduced so that it has the same total severity after classification as a crime of violence as it did before the classification. This argument fails for two reasons. First, as already stated, the Supreme Court wholly overruled this court, and the trial court is no longer bound by this court’s 15-year limitation in Oliphant I. Second, the denial of parole in La. R.S. 15:574.4(B)(1) demonstrates that the Louisiana legislature considers crimes of violence, along with some other classes of crimes, to be particularly egregious. | (/Therefore, upon the Oliphant II ruling that vehicular homicide is a crime of violence, the trial court did not err in enforcing a sentence which was more severe than the maximum sentence imposed in Oli-phant I when we classified the crime as nonviolent.

In his second assignment of error, Oli-phant argues that the trial court erred by imposing a sentence that is unconstitutionally excessive, especially in view of the holding of the Louisiana Supreme Court designating vehicular homicide as a crime of violence. Specifically, he argues that his sentence is nothing more than a needless infliction of pain and suffering; it shocks the sense of justice relative to the harm done; he does not deserve a very high sentence because he is not one of the worst offenders; and, he has no criminal record.

The trial court has wide discretion in imposing a sentence within minimum and maximum limits allowed by statute; therefore, a sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Young, 46,575 (La.App.2d Cir.09/21/11), 73 So.3d 473, writ denied, 2011-2304 (La.03/09/12), 84 So.3d 550. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Zeigler, 42,661 (La.App.2d Cir.10/24/07), 968 So.2d 875. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque, 46,515 (La.App.2d Cir.09/21/11), 73 So.3d 1021, writ denied, 2011-2347 (La.03/09/12), 84 So.3d 551.

An excessive sentence is reviewed by examining whether the trial court adequately considered the guidelines established in La.C.Cr.P. art. 894.1 and |7whether the sentence is constitutionally excessive. State v. Gardner, 46,688 (La.App.2d Cir.11/02/11), 77 So.3d 1052.

A review of the sentencing guidelines does not require a listing of every aggravating or mitigating circumstance; the trial court need only articulate a factual basis for the sentence. State v. Cunningham, 46,664 (La.App.2d Cir.11/02/11), 77 So.3d 477. The defendant’s personal history and criminal record, as well as the seriousness of the offense, are some of the elements considered, but the trial court is not required to weigh any specific matters over other matters. State v. Moton, 46,607 (La.App.2d Cir.09/21/11), 73 So.3d 503, writ denied, 2011-2288 (La.03/30/12), 85 So.3d 113. All convictions and all prior criminal activity may be considered as well as other evidence normally excluded from the trial. State v. Platt, 43,708 (La.App.2d Cir.12/03/08), 998 So.2d 864, writ denied, 2009-0265 (La.11/06/09), 21 So.3d 305. Maximum sentences are generally reserved for the worst offenses and offenders. State v. Taylor, 41,898 (La.App.2d Cir.04/04/07), 954 So.2d 804.

Under constitutional review, a sentence can be excessive, even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering. State v. Fatheree, 46,686 (La.App.2d Cir.11/02/11), 77 So.3d 1047.

Although this court vacated the trial court’s original sentence for exces-siveness, we determined that the trial court adequately weighed the sentencing factors of La.C.Cr.P. art. 894.1, and that Oliphant’s arguments to the contrary were unfounded. In the trial court’s explanation for the present sentence, it did not explain which of the La.C.Cr.P. art. 894.1 sentencing factors were considered, but reference to the factors was made repeatedly. Considering that the |strial court applied the factors in sufficient detail when the defendant was first sentenced and expressed deference to the factors when Oliphant was resentenced, the trial court did not err in applying La.C.Cr.P. art. 894.1 in calculating the new sentence.

As for constitutional excessiveness, although we previously ruled in Oli-phant I that the prior sentence was excessive, the Louisiana Supreme Court strongly implied in its subsequent opinion that the initial sentence was not excessive. Oliphant II at 174. Near the end of its opinion, the Oliphant II court noted that the trial court had imposed a 25-year sentence, and that upon reconsideration, the trial court ordered only the first 15 years be served before parole eligibility. Applying La. R.S. 15:574.4(B)(1), which requires that an offender convicted of a crime of violence serve at least 85% of his sentence, the court then stated that “by operation of law, defendant must serve at least twenty-one years and three months of his twenty-five-year sentence before becoming eligible for early release, not fifteen years as the District Court ordered on reconsideration.” Id. at 174 (emphasis added). In so stating, Oli-phant II implied that even a 25-year sentence, with 21 years and three months’ parole ineligibility, would be constitutionally acceptable. So considering and in light of Oliphant II, the defendant fails to show that his sentence is grossly disproportionate to his crime, that it is unjust, that it serves no purpose other than infliction of pain and suffering, or that any other reason exists for departure from the sentence which the trial court imposed and the Supreme Court implicitly approved.

lain resentencing Oliphant the trial court noted the following in its “reasons for re-sentencing”:

1. That there is an undue risk that during the period of a suspended sentence or probation that the defendant would commit another crime.
2. That the defendant is in need of correctional treatment or a custodial environment that can best be provided by his commitment to an institution.
3. That any lesser sentence than one that the court imposes in this case will deprecate the seriousness of the defendant’s crime.

Here, Oliphant faced a potential maximum sentence for vehicular homicide of 30 years. He received a midrange sentence of 18 years, 85% of which will be parole ineligible under La. R.S. 15:474.4(B)(1)— amounting to 15.3 years. Considering the severe consequences of his crime, one man was killed and another injured, we cannot say the sentence was excessive. While severely intoxicated, Oliphant hit these two men, and to compound his crime, he fled the scene, claiming that he did not realize he hit them. He only returned to the scene after he was apprehended by police. Photos of his vehicle indicate the forcefulness of the impact. Notably, Oliphant benefitted from a plea bargain — his charge for hit-and-run driving was dismissed. He faced a maximum 10-year sentence on that charge.

Oliphant’s appeal counsel argues that his actions were “not much different from the typical vehicular homicide offense where a person who has had too much to drink, tries to drive home and ends up killing someone.” If Oliphant is the “typical,” run-of-the-mill offender of vehicular homicide, then his midrange sentence is likewise “typical” under the circumstances. So considering, we cannot say that Oli-phant’s punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict hopain and suffering. Thus, the sentence is not unconstitutionally excessive, and we conclude this assignment of error to be meritless.

Conclusion

For the foregoing reasons, the conviction and sentence of Craig Oliphant are affirmed.

AFFIRMED.

      . Initially, Oliphant sought a continuance for the investigation of new evidence, and supported the motion with evidence that the surviving victim of the accident, Fredrick Matthews, stated on video that he had been struck by a long yellow pickup truck driven by a black man. Finding that the defendant already had admitted his guilt, among other factors, the trial court denied the continuance.

      . Unless altered by another provision, a person otherwise eligible for parole and convicted of a first felony offense shall be eligible for parole consideration upon serving 33% of the sentence imposed. La. R.S. 15:574.4(A)(l)(a).