text:
    David BAILEY v. JEFFERSON PARISH GOVERNMENT.
    No. 13-CA-905.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.

      Joseph G. Albe, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Michael F. Nolan, Attorney at Law, Me-tairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   FREDERICKA HOMBERG WICKER, Judge.

laDavid Bailey, claimant, appeals the Office of Worker’s Compensation (OWC) judgment dismissing his disputed claim for benefits. Mr. Bailey argues the OWC judge erred both in finding he did not prove that he suffered a disabling accident on January 9, 2013, and in failing to award him attorney’s fees and penalties. For the following reasons, we find Mr. Bailey’s assignments of error to be without merit, and affirm the OWC’s judgment.

PROCEDURAL HISTORY

On February 8, 2013, Mr. Bailey filed a disputed claim for worker’s compensation benefits against his former employer, Jefferson Parish, and moved to compel Jefferson Parish to pay for his initial medical evaluation and diagnostic testing.

On March 4, 2013, Jefferson Parish filed an exception of no cause of action and an opposition to Mr. Bailey’s motion to compel. On March 8, 2013, after a hearing on these matters, the OWC judge denied Jefferson Parish’s exception and ^deferred her ruling on Mr. Bailey’s motion to compel. Jefferson Parish filed its answer to Mr. Bailey’s disputed claim for worker’s compensation benefits on March 13, 2013. In it, Jefferson Parish admitted that it did employ Mr. Bailey and that it did not pay him compensation. On June 13, 2013, Jefferson Parish filed a peremptory exception of prescription. On June 26, 2013, the OWC judge held a hearing on this exception and Mr. Bailey’s motion to compel. After hearing the parties’ arguments and considering the evidence, the OWC judge denied Jefferson Parish’s exception of prescription and again deferred a ruling on Mr. Bailey’s motion to compel. The OWC judge memorialized her ruling in a written judgment issued on June 28, 2013.

A trial on the merits of Mr. Bailey’s claim was held on July 18, 2013. On August 15, 2013, the OWC judge issued a written judgment on the merits, with accompanying reasons, in favor of Jefferson Parish and dismissed Mr. Bailey’s claim. The judgment further ordered each party to bear its own costs.

Mr. Bailey moved for a new trial on August 20, 2013. The OWC judge denied this motion after a hearing on September 18, 2013. Mr. Bailey then moved to appeal the OWC judge’s August 15, 2013 judgment. The OWC judge granted this appeal.

FACTS

The parties do not seriously dispute the following facts: prior to the January 9, 2013 accident now at issue, Mr. Bailey suffered several accidents which caused him lower back pain. On January 9, 2013, Jefferson Parish employed Mr. Bailey as a foreman who was responsible for driving a crew to and from various work sites and supervising that crew. On that day, Mr. Bailey left his work site and drove to get lunch. On his drive back, Mr. Bailey’s right leg went numb. This rendered him unable to apply the vehicle’s breaks and caused him to crash into |4another vehicle. After this accident, Mr. Bailey continued to attend work for about a month without missing any days. After Mr. Bailey pursued his claim for worker’s compensation on February 4, 2013, Jefferson Parish suspended his employment pending a medical clearance to work. Mr. Bailey’s employment with Jefferson Parish was later terminated. In dispute is the essential question of whether Mr. Bailey suffered a compensable injury under worker’s compensation law.

At trial, Mr. Bailey admitted to having three or four prior automobile accidents, including accidents in 2008 and in 2010. Mr. Bailey testified that, since at least his 2008 accident, the primary effect of his prior accidents was pain in his lower back. Mr. Bailey admitted that for several years prior to the January 9, 2013 accident now at issue, he also complained of pain shooting into his lower extremities. To combat this pain, Mr. Bailey took multiple Vicodin pills each day for several years. Additionally, Dr. Tarun Jolly treated Mr. Bailey for conditions arising from Mr. Bailey’s 2010 accident. These treatments occurred during a period of time immediately prior to the January 9, 2013 accident. Mr. Bailey had, before this accident, scheduled a visit to Dr. Jolly on January 10, 2013, for injections to treat his existing diagnosis of “lumbar degenerative disc disease with radiculopathy.” Mr. Bailey testified that, despite these prior accidents, the resulting pain, and treatments, he was able to perform all of his job’s duties.

Teresa Mader Shurley testified that she handled worker’s compensation matters related to Mr. Bailey for Jefferson Parish. Ms. Shurley testified that she was familiar with Mr. Bailey because she handled Jefferson Parish’s subrogation claim arising from Mr. Bailey’s 2010 accident. In connection with that 20101 ¡¡accident, Jefferson Parish paid only for Mr. Bailey’s emergency care. Ms. Shurley testified that, in connection with a tort lawsuit arising from this 2010 accident, Mr. Bailey received $5,000 in reimbursement for medical costs and a total settlement amount of $50,000. After this, Jefferson Parish settled its claim for reimbursement from Mr. Bailey for $4,000. According to Ms. Shurley, Jefferson Parish was not paying for Mr. Bailey’s treatments immediately prior to his January 9, 2013, accident.

On the morning of his accident, Mr. Bailey was on Jefferson Parish’s work site. According to Mr. Bailey, he had not taken a Vicodin pill that day. He left that work site, in a pickup truck owned by Jefferson Parish, to get lunch. This was the pickup truck Mr. Bailey used in his employment by Jefferson Parish to move his crew around between job sites. Mr. Bailey was not paid during his trip to pick up his lunch. Recalling his drive back to his work site, Mr. Bailey testified:

there was a vehicle right in front of me. It stopped at the stop sign and there was a pain leaving my back that shot down my right leg causing my right leg to go numb. Therefore, when I tried to hit the brake, I couldn’t move my right leg and that caused me to run into the back of the vehicle.

After this accident, Mr. Bailey immediately felt pain in his lower back. He immediately reported the accident to his supervisor, Jimmy Fisher, and then finished his drive back to his work site.

Mr. Bailey stated that the level of pain in his lower back increased after this accident. He testified that while he did not have problems with his hips or his knees before his accident, after his accident, he has pain in both his hips when he walks. Mr. Bailey also testified that since this accident, he has a new pain in his thoracic area when he turns his head or lies down.

IfiOn the day after this accident, Mr. Bailey kept his pre-existing appointment with Dr. Jolly for pain treatment. Mr. Bailey testified that, at his visit with Dr. Jolly, he told Dr. Jolly about his accident the previous day, and that Dr. Jolly informed him that his leg went numb because of his pre-existing back condition.

For about a month after his accident, Mr. Bailey continued to report to work. Mr. Bailey testified that during this month, he suffered increased pain when he was driving to his work site. However, he admitted that he continued to be able to drive.

On February 4, 2013, Mr. Bailey called Ms. Shurley, informing her of his January 9, 2013, accident for the first time. After Mr. Bailey’s phone call, Ms. Shurley reviewed Mr. Bailey’s claim and denied it. Ms. Shurley testified that as of her February 4, 2013 conversation with Mr. Bailey, she understood that Mr. Bailey did not miss any work between the date of his accident, January 9, 2013, and that date, February 4, 2013. Ms. Shurley testified that she also reviewed Mr. Bailey’s medical records, from both before and after this accident. These medical records showed that Mr. Bailey underwent treatment for an injury to his back before this accident. Furthermore, Dr. Jolly’s treatment records from January 10, 2013, did not reflect that Mr. Bailey told Dr. Jolly of an accident the previous day. When further pressed for reasons why she denied Mr. Bailey’s claim, Ms. Shurley testified:

He was in pain before he even had the wreck. And there was nothing that caused the initial pain, there was no accident. Now, there was an accident that happened after the pain.... I felt that the pain prior caused the accident, but nothing caused the pain .... he had some kind of onset of pain. I don’t know what brought the onset of pain, there was no accident to cause the initial pain.... There isn’t any documentation supporting a new injury.... And as far as an exacerbation or anything, I didn’t have any medical documentation at the time.

|7Ms. Shurley testified that she originally set up an appointment to get a second medical opinion as to Mr. Bailey’s condition on April 30, 2013, but that neither Mr. Bailey nor his attorney received notice of that appointment. Ms. Shurley testified that Jefferson Parish did not pay any amounts to Mr. Bailey for medical benefits, mileage reimbursement, or medication.

Jefferson Parish sent a letter to Mr. Bailey, dated February 8, 2013, which immediately placed Mr. Bailey on leave until he provided the Parish with medical documentation that he was able to safely perform his job.

On February 11, 2013, Dr. William Alden physically examined Mr. Bailey. Dr. Alden explained to Mr. Bailey that his problems were due to bulging discs at the L5-S1 level in his back. Mr. Bailey admitted on cross-examination that he has had problems with his discs at the L5-S1 since 2008. Medical records revealed that after examining Mr. Bailey, Dr. Alden concluded that, as a result of Mr. Bailey’s motor vehicle accident on January 9, 2013, Mr. Bailey sustained:

1. Lumbar strain with spasm-exacerbation
2. Right-sided sciatica
3. Bilateral knee pain-exacerbation
4. Bilateral hip pain-exacerbation
5. Thoracic strain

Mr. Bailey testified that Dr. Alden ordered him to undergo an MRI because Dr. Alden believed that his back deteriorated. Dr. Alden’s medical records show that he recommended that Mr. Bailey undergo further treatments, including X-rays and physical therapy. Mr. Bailey testified that Dr. Alden cleared him to return to work, but ordered that he do “no lifting, no bending, and no sitting for a long period of time and no walking for a long period of time.” Dr. Alden’s medical records reflect a recommendation that Mr. Bailey could “return to work on light duty restrictions.” Counsel for Mr. Bailey sent a copy of Dr. Alden’s report to counsel for Jefferson Parish on March 7, 2013.

|sMr. Bailey testified that “after I got the ADA paper filled out by the doctor ..., the director stated I couldn’t come back to work until the doctor said something different. So, therefore, I stayed out of work for like two ... or three months without anything coming in.” According to Mr. Bailey, this was the reason he resigned. Mr. Bailey testified that he never received payments for a worker’s compensation disability or a salary continuation.

After leaving his employment with Jefferson Parish, Mr. Bailey continued to suffer pain. At one point, he found work at St. James Stevedoring. However, after working a week and four days, he suffered a great increase in his back pain and was unable to continue that work. Mr. Bailey requested light duty work from that employer, and in response, was fired. Mr. Bailey testified that since being fired from St. James Stevedoring, the level of pain he feels has diminished and returned back to the level it became after his January 9, 2013 accident. Mr. Bailey testified that from January of 2013, through the time of the trial, in July of 2013, he has suffered a constant, heightened level of pain. He also claimed that he continues to suffer from numbness in his leg. Mr. Bailey testified that his pain is worst when he gets out of bed in the morning. He further testified that the medications prescribed to him do not prevent him from driving.

Dr. Robert Steiner was retired, but he examined Mr. Bailey on June 18, 2012, to render a second medical opinion for Jefferson Parish on Mr. Bailey’s condition. He testified at trial, by deposition, both as to his opinion as an orthopedic surgery expert and as to the results of his examination of Mr. Bailey. Dr. Steiner saw Mr. Bailey only on the June 18th occasion. Dr. Steiner also reviewed medical records of Mr. Bailey. As a result of his examination and his | flmedical records review, Dr. Steiner produced a report on Mr. Bailey which was admitted without objection.

Based on his review of the medical records, Dr. Steiner testified he came to know that Mr. Bailey “had a lengthy history of preexisting back and leg pain.” Dr. Steiner determined that Mr. Bailey had low back pain, radiculopathy, and right sciatica that existed before January 9, 2013. Dr. Steiner found that Mr. Bailey was treated by Dr. Jolly for right leg pain before his accident. Dr. Steiner testified that Mr. Bailey required no emergency room care as a result of the January 9, 2013 accident. Mr. Bailey was later treated by Dr. Alden who recommended a lumbar MRI. Dr. Steiner did not see any indication for treatment specifically related to the incident of January 9, 2013.

Dr. Steiner testified that during his examination of Mr. Bailey, Mr. Bailey was:

complaining of low back pain ... a little worse than prior to the accident. He reported occasional shooting pain in his right leg. He reported numbness in his right thigh. No lower extremity weakness. There were no other orthopedic complaints.... Upon palpation of his lower back, there was tenderness in the midline. There was no lumbar spasm. There was no sciatic notch or sacroiliac tenderness. Active motion of his lower back was limited.... The sitting at supine straight leg raise signs caused low back pain but no sciatica. Flexion, abduction, external rotation test of his hips caused back pain bilaterally.

Dr. Steiner opined that Mr. Bailey’s symptoms “were consistent with his pre-injury condition” and that he had “not been provided with any evidence in any of these records to document worsening of his preexisting condition....” Dr. Steiner opined that all of Mr. Bailey’s current treatment, and ongoing treatment, was related to his condition as it existed prior to January 9, 2013. Dr. Steiner found no new injuries, and testified that “[t]here is nothing in the medical record to document that his preexisting condition worsened.” Dr. Steiner concluded that Mr. |inBailey could, after his January 9, 2013 accident, perform the work he was performing prior to that accident.

DISCUSSION

Mr. Bailey appeals the judgment finding that he did not prove his claim and dismissing his suit. Mr. Bailey argues the OWC judge erred when she: (1) failed to find that Mr. Bailey met his burden of proof that he suffered a disability as a result of his January 9, 2013 work accident; and (2) failed to award Mr. Bailey any benefits, penalties, or attorney’s fees for Jefferson Parish’s failure to reasonably controvert his claim for supplemental earnings benefits. For the following reasons, we find Mr. Bailey’s assignments of error to be without merit and affirm the judgment.

Standard of Review

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC judge’s findings of fact is the “manifest error-clearly wrong” standard. Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, citing, Brown v. Coastal Constr. Engg, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10. Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Id. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id., citing, Robinson v. North Am. Salt Co., 02-1869 (La.App. 1 Cir. 6/7/03), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when |n convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Assignment One

In support of his first assignment of error, arguing the OWC judge erred in failing to find that Mr. Bailey proved that he suffered a disability as a result of his January 9, 2013 accident, Mr. Bailey points to Dr. Alden’s medical records which report that he suffered various new or exacerbated symptoms as a result of his accident. Mr. Bailey also points out that Dr. Alden issued him work restrictions after his accident, which he had not had prior to his accident. Mr. Bailey also attacks the testimony of Dr. Steiner by pointing out that Dr. Steiner did not notice Dr. Alden’s diagnosis of Mr. Bailey having new and worsened symptoms.

In opposition, Jefferson Parish argues that Dr. Steiner’s expert testimony, along with the other medical evidence, reasonably established that Mr. Bailey did not suffer new or worsened symptoms as a result of his accident. Jefferson Parish also argues that the OWC judge’s conclusion is supported by Mr. Bailey’s own indication on the accident report which he filled out, that he did not need further treatment and that he did not anticipate that this injury would cause him to miss work.

As this Court has recently explained:

Jurisprudence holds that because an employer takes his employee as he finds him, ‘a preexisting condition does not prevent recovery through workers’ compensation.’ Tate v. Cabot Corp., 01-1652 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, 461, citing, Curtis v. Wet Solutions, Inc., 98-0789 (La.App. 3 Cir. 12/9/98), 722 So.2d 421. Aggravation of a preexisting injury may constitute a disabling injury when, for example, the plaintiff begins to suffer new symptoms after the second workplace accident. Id. [ ... ] The Third Circuit explained in Tate, supra:
[a] pre-existing disease or infirmity does not disqualify the claimant from receiving benefits if the workplace accident 112aggravated, accelerated, or combined with the disease to produce the disability for which compensation is claimed. Thus, the element of causation is satisfied if the employee’s work-related accident was a factor in bringing about the employee’s disabled status. Whether a causal relationship exists between the disability and the employment is a question of fact. The hearing officer’s determination in this regard cannot be reversed unless it is manifestly erroneous based on examination of the record as a whole.
The employee’s workplace accident is presumed to have caused or aggravated her disability when she proves that: (1) before the accident, she had not manifested disabling symptoms; (2) commencing with the accident, the disabling symptoms appeared; and (3) there is medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and activation of the disabling condition. Once an employee establishes the presumption of a casual [sic] relationship, the employer must produce evidence and persuade the trier of fact that it is more probable than not that the injury was not caused by the work accident.
Thus, ‘[t]he presumption of causation may attach to a claimant who exhibited symptoms of her allegedly disabling illness in the distant past provided that she had suffered no such symptoms immediately prior to her workplace accident.’ Id. at 461, citing, Rideaux v. Franklin Nursing Home, 95-0240, p. 5 (La.App. 3 Cir. 11/22/95), 664 So.2d 750, 755.

Hotard v. Murphy, Rogers, Sloss & Gambel, 11-1143, pp. 9-10 (La.App. 5 Cir. 5/31/12), 97 So.3d 407, 412.

Turning to the instant case, Mr. Bailey admits the he suffered pain in his lower back and that he was receiving ongoing treatment for that pain for a period of several years immediately prior to his accident. Wfiiile Mr. Bailey now contends that his pain is at a higher level than before his accident, Mr. Bailey admits that he is currently suffering the same type of pain. After considering Mr. Bailey’s own testimony, the competing testimony of Dr. Steiner, and the medical records, we cannot say that the OWC judge manifestly erred in determining that Mr. Bailey failed to prove that he suffered a compensable injury as the result of his accident on January 9, 2013. Even if Mr. Bailey suffered some additional injury because of 113his January 9, 2013 accident, we cannot say the OWC judge manifestly erred by failing to find any such injury, more probably than not, caused Mr. Bailey to be disabled. Accordingly, we find Mr. Bailey’s first assignment of error to be without merit.

Assignment Two

In his second assignment, Mr. Bailey argues the OWC judge erred by failing to award him any benefits, penalties, or attorney’s fees for Jefferson Parish’s failure to reasonably controvert his claim for supplemental earnings benefits. We disagree.

An employee is entitled to receive supplemental earnings benefits if, inter alia, an injury to that employee results in his or her “inability to earn wages equal to ninety percent or more of wages at the time of injury.” La. R.S. 23:1221(3)(a)(i). An employee who is entitled to receive supplemental earnings benefits becomes entitled to certain penalties and attorney’s fees, under section 1201 of Revised Statute Title 23, if his or her employer fails to pay the supplemental earnings benefits due to the employee in accordance with that section. La. R.S. 23:1201. Here, given our finding above that the OWC judge did not manifestly err in finding that Mr. Bailey did not suffer an injury which caused his inability to earn wages, we find this assignment of error to also be without merit.

¿CONCLUSION

For the foregoing reasons, we find Mr. Bailey’s assignments of error to be without merit and affirm the August 15, 2013 judgment.

AFFIRMED.

      . Mr. Bailey also filed a claim against Jefferson Parish’s third party administrator for worker’s compensation claims, Cannon Cochran Management Services, Inc. CCMS thereafter filed an exception of no cause of action. After the OWC hearing on March 8, 2013, the judge rendered an interlocutory judgment which granted CCMS's exception and dismissed CCMS as a defendant in this matter. Mr. Bailey did not appeal the dismissal of CCMS from this action.

      . Ms. Shurley was a claims representative for CCMS.

      . Ms. Shurley also executed an affidavit in which she stated that she reviewed her corn-pany’s records and found that Mr. Bailey did not receive any temporary total disability benefits or supplemental earnings benefits for either his 2008 or 2010 accidents.

      . Mr. Bailey testified that as a foreman for Jefferson Parish, he was a full-time employee who occasionally did overtime work. Ms. Shurley testified that she calculated Mr. Bailey's average weekly wage to be $1,523.00.

      . At oral argument, Mr. Bailey’s attorney also argued that the OWC judge did not follow the law as prescribed in La. R.S. 23:1121(B)(1) by failing to grant his motion to compel a medical evaluation of Mr. Bailey. This argument was not briefed on appeal and is therefore waived. Uniform Rules, Courts of Appeal, Rule 2-12.4(B)(4). However, even were we to consider this argument, we would find it to be without merit. Here, Jefferson Parish has shown "good cause” for its refusal to authorize treatment; therefore, the OWC judge was not mandated to order Jefferson Parish to authorize a medical evaluation by the claimant’s choice of physician.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    John LADART v. HARAHAN LIVING CENTER, INC. d/b/a St. Joseph Nursing and Rehabilitation Center.
    No. 13-CA-923.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.

      Kathleen D. Lambert, Maria I. O’Byrne Stephenson, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Adrien G. Busekist, Attorney at Law, Baton Rouge, Louisiana, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

lain this medical malpractice case, Plaintiff, John Ladart, appeals the granting of summary judgment in favor of Defendant, Harahan Living Center, Inc. d/b/a St. Joseph Nursing and Rehabilitation Center (“St. Joseph”), dismissing Plaintiffs claims with prejudice. For the reasons that follow, we affirm.

FACTS & PROCEDURAL HISTORY

Plaintiff filed this lawsuit on May 11, 2009, alleging that his mother, Anna Eloise Persich Ladart, was neglected and mistreated while in St. Joseph’s care from May 29, 2008 through August 6, 2008. He asserted that as a result of the neglect and mistreatment, his mother suffered serious and painful injuries that required medical attention. Mr. Ladart indicated that his mother passed away on September 9, 2008 and, thus, he inherited her survival action. Mr. Ladart sought ^damages for past medical and related expenses, past mental anguish and physical pain, and loss of enjoyment of life.

Three years later, on June 29, 2012, St. Joseph filed a motion for summary judgment claiming that Plaintiff could not bear his burden of proof at trial because he had no expert to establish that the nursing care facility breached the required standard of care. In support of its motion, St. Joseph attached the affidavits of Mona Dortch, a registered nurse employed by St. Joseph as the director of clinical services, and Linda Ritchie, a registered nurse certified in wound, ostomy and continence care.

In her affidavit, Ms. Dortch stated that she had direct oversight of the nurses and staff at St. Joseph and had interacted with the nurses and staff providing care to Ms. Ladart. Additionally, she reviewed Ms. Ladart’s records relating to her admission to and stay at St. Joseph. Ms. Dortch outlined a time-line summarizing nurses’ notes and physician’s orders related to Ms. Ladart’s care. Ms. Dortch stated that Ms. Ladart developed two “stage-two” pressure ulcers during her stay at St. Joseph. She noted that Ms. Ladart was on a pressure-reducing mattress and was correctly positioned with the head of her bed elevated at all times. Ms. Dortch further stated that based on her personal recollection and review of Ms. Ladart’s medical chart, St. Joseph’s standard practice of weekly skin assessments was followed during Ms. La-dart’s treatment and care at St. Joseph. She opined that St. Joseph met all required standards of care in treating and caring for Ms. Ladart.

Ms. Ritchie stated in her affidavit that she was retained by St. Joseph to review the nursing care provided to Ms. Ladart while she was a patient at St. Joseph. Ms. Ritchie indicated that she had 27 years of experience as a practicing nurse in a clinical setting, which included monitoring, evaluating and treating patients with pressure ulcers. Ms. Ritchie explained that her certification as a |4wound, ostomy and continence nurse enabled her to express an opinion regarding nursing care provided to patients with pressure ulcer conditions. After reviewing Ms. Ladart’s medical records, Ms. Ritchie opined Ms. Ladart was at an increased risk for developing pressure ulcers. She further opined that St. Joseph complied with all standards of care when Ms. Ladart began to develop pressure ulcers, specifically noting the provision of an air mattress, increasing Ms. Ladart’s nutrients, and use of certain ointments for treatment of the wounds. Ms. Ritchie opined St. Joseph met the required standards of care in treating Ms. Ladart while she was a patient at the facility.

Plaintiff filed an opposition to St. Joseph’s motion for summary judgment claiming that he, as a licensed registered nurse, was qualified to testify as an expert regarding the applicable standard of care, the breach of that standard of care, and the causal connection between the breach of the standard of care and Ms. Ladart’s injuries. Plaintiff attached his own affidavit in which he stated that he has been a licensed registered nurse for over 20 years and has worked in various hospitals and nursing homes. He stated that he visited his mother at St. Joseph daily and was very familiar with the care and treatment she received. Plaintiff opined that St. Joseph breached the standard of care by failing to properly re-position or turn Ms. Ladart. He further stated he witnessed the falsification of St. Joseph’s re-positioning or turning records. Plaintiff opined St. Joseph’s treatment and care of Ms. Ladart fell below the applicable standard of care. He attached handwritten notes to his affidavit that he explained were made contemporaneously with the events surrounding his mother’s care.

The day after Plaintiff filed his opposition, St. Joseph filed a motion to strike Plaintiffs affidavit as untimely, having been filed only five days before the hearing Lon the motion, and irrelevant because Plaintiff was not competent to give expert testimony in the case.

At the hearing on the motion for summary judgment, the trial judge suggested the matter be postponed to give Plaintiff an opportunity to respond to St. Joseph’s motion to strike Plaintiffs affidavit. A second hearing was held two weeks later at which time the trial judge indicated that before he could rule on the merits of the motion for summary judgment, a Daubert hearing was necessary to determine whether Plaintiff qualified as an expert. Thereafter, St. Joseph filed a motion in limine to exclude the testimony of Plaintiff as an expert asserting Plaintiff was unqualified by education, knowledge, training or experience to give medical expert testimony regarding the standard of care applicable to St. Joseph as a health care provider.

A hearing on the motion in limine was held on February 5, 2013. During the hearing, St. Joseph offered the affidavits of Ms. Dortch and Ms. Ritchie, as well as excerpts from Mr. Ladart’s deposition into evidence. The trial court subsequently granted the motion in part, ruling that Plaintiff was not qualified as an expert in wound, ostomy and continence nursing care and would not be allowed to testify as to those areas of nursing; and denied the motion in part, ruling Plaintiff could otherwise testify as to anything admissible under the Louisiana Code of Evidence, including Article 701.

Thereafter, St. Joseph filed a motion re-urging its motion for summary judgment, on which the trial court had never ruled. A hearing on the motion for | summary judgment was held on June 24, 2013. At the conclusion of the hearing, the trial court granted summary judgment in favor of St. Joseph, finding that Plaintiff had failed to produce any expert testimony establishing the standard of care and any causal connection between any breach of the standard of care and Ms. Ladart’s injuries. Plaintiff appeals this ruling.

ISSUES

Plaintiff raises several issues on appeal. He first challenges the trial court’s rulings relating to the need for an expert witness in this case to establish the negligence of the nursing home, its refusal to accept Plaintiff as an expert, and its limiting Plaintiff to those experts identified prior to the first motion for summary judgment hearing. Plaintiff next argues that summary judgment was improper because genuine issues of material fact existed, and that the trial court erroneously made credibility determinations in granting summary judgment.

DISCUSSION

Standard of Review

Appellate courts review the granting or denial of a motion for summary judgment de novo using the same standards applicable to the trial court’s consideration of whether summary judgment is appropriate. Suarez v. Mando, 10-853 (La.App. 5 Cir. 3/29/10); 62 So.3d 131, 133, writ denied, 11-885 (La.6/17/11); 63 So.3d 1036. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).

A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Hines v. Garrett, 04-806 (La.6/25/04); 876 So.2d 764, 765 (per curiam). A genuine issue [ 7is a “triable issue.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94); 639 So.2d 730, 751. If reasonable persons could disagree after considering the evidence, a genuine issue exists. However, if reasonable persons could reach only one conclusion on the state of the evidence, there is no need for a trial on that issue and summary judgment is appropriate. Id.; Suarez, supra. “In determining whether an issue is ‘genuine,’ courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Smith, 639 So.2d at 751.

The initial burden of proof is with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. art. 966(C)(2); Schultz v. Guoth, 10-343 (La.1/19/11); 57 So.3d 1002,1006.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of most civil actions and is favored in the law. La. C.C.P. art. 966(A)(2).

Need for Expert Testimony

Plaintiff first argues that the trial court erred in determining expert testimony was required in this case to establish the negligence of the nursing home that allegedly caused Ms. Ladart’s decubitus ulcers.

A decubitus ulcer that forms as a result of improper care in a health care setting is actionable as malpractice. Miller ex rel. Miller v. Nursing Homes Management, Inc., 38,198 (La.App. 2 Cir. 3/5/04); 867 So.2d 1000, 1004. A plaintiff in a medical malpractice action is required to establish (1) the standard of care applicable to the health care provider; (2) a violation by the health care provider of that standard of care; and (3) a causal connection between the health care provider’s alleged negligence and the patient’s injury. La. R.S. 9:2794(A); Pfiffner v. Correa, 94-924 (La.10/17/94); 643 So.2d 1228,1233.

Expert testimony is generally required to establish the applicable standard of care and whether that standard was breached, except where the negligence is so obvious that a layperson can infer negligence without the guidance of expert testimony. Examples of obvious negligence that could be inferred without expert testimony include fracturing a leg during examination, amputating the wrong limb, dropping a knife or scalpel on a patient, or leaving a sponge in a patient’s body. Schultz, 57 So.3d at 1007, citing Pfijfner, 643 So.2d at 1233-34. The requirement of producing expert medical testimony is especially appropriate when the defendant has filed a motion for summary judgment and supported his motion with expert opinion evidence that the treatment met the applicable standard of care. Vanner v. Lakewood Quarters Retirement Community, 12-1828 (La.App. 1 Cir. 6/7/13); 120 So.3d 752, 756.

We find that Plaintiff was required to present expert testimony in this case to establish the standard of care and breach of that standard of care. This is not a case where the alleged negligence is so obvious that a layperson could infer negligence without expert guidance. Plaintiff claims Ms. Ladart’s injuries were caused by the failure of the nursing staff to provide certain equipment and to regularly re-position or turn her. The connection between these failures and the development of decubitus or pressure ulcers in light of Ms. Ladart’s medical history and condition is beyond the province of a layperson to assess. See Vanner, supra, and Guardia v. Lakeview Regional Medical Center, 08-1369 (La.App. 1 Cir. 5/8/09); 13 So.3d 625, 630. Thus, the trial court did not err in requiring Plaintiff to present expert testimony to overcome St. Joseph’s motion for summary judgment.

Plaintiff as an Expert

Plaintiff next argues that the trial court erred in finding he was not qualified to give expert testimony. He contends that he is a licensed registered nurse and has the education and training to qualify as an expert in this matter. He points out that he has worked in several area hospitals and nursing homes, and provided long-term care for his mother for years.

The admissibility of expert testimony is governed by La. C.E. art. 702, which states:

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

In order to be admissible under La. C.E. art. 702, expert testimony must not only be relevant but also reliable. State v. Foret, 628 So.2d 1116,1123 (La.1993), citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The trial court is required to exercise a gate keeping function to insure an expert’s testimony is reliable. Foret, supra. The trial court has broad discretion in determining who should or should not be permitted to testify as an expert, and a trial court’s decision regarding the qualification of an expert will not be overturned absent an abuse of that discretion. Johnson v. Morehouse General Hospital, 10-387 (La.5/10/11); 63 So.3d 87, 99.

In a medical malpractice case, an expert must satisfy the trial judge that he or she is qualified to give testimony regarding the applicable standard of care. | mWells v. Louisiana Dept. of Public Safety and Corrections, 46,428 (La.App. 2 Cir. 8/24/11); 72 So.3d 910, 917, writ denied, 11-2637 (La.2/10/12); 80 So.3d 474.

Plaintiff did not testify at the motion in limine hearing, but instead relied on his affidavit. In his affidavit, Plaintiff stated that he has been a licensed registered nurse since 1991, and has worked as such in five hospitals and three nursing homes in the greater New Orleans area. He indicated that he visited his mother daily at St. Joseph and was familiar with the care and treatment she received while she was a patient in the facility. Plaintiff stated that based on his personal knowledge as a witness to the care and treatment his mother received at St. Joseph, it was his expert opinion that St. Joseph breached the standard of care by failing to properly re-position or turn Ms. Ladart thereby failing to prevent decubitus ulcers.

St. Joseph offered excerpts from Plaintiffs deposition taken one year earlier. In those excerpts, Plaintiff stated that although his license was current, he had not worked as a nurse since 2004, but rather had been caring for his mother on a full-time basis. He explained that his work in various hospitals included assignment to the medicine floor, the orthopedic floor, “med-surge nursing,” and psychiatric nursing. He also explained that his work in the nursing homes was part-time. When asked if he had any specific training in treating pressure ulcers or decubitus wounds, Plaintiff responded, “I want to tend to say yes, that there was training at least to witnessing to see what was being done, how it was being done. I’d have to definitely say in nursing school we must have. Of course that goes back so many years ago. I don’t recall.” Plaintiff admitted that he had never been given the title “wound care nurse” in any of the jobs he held as a nurse and had no certifications in wound ostomy care.

The trial court ultimately ruled that Plaintiff was not qualified as an expert in wound, ostomy and continence nursing care and, thus, could not testify as to those Inareas of nursing. The trial court specifically ruled that Plaintiff could give his opinion as a lay witness under La. C.E. art. 701.

The trial court may properly exclude the testimony of any witness as an expert where that person is unable to demonstrate sufficient training or experience in the field for which he has sought to qualify as an expert. Hunnicutt v. Kent, 434 So.2d 91, 94 (La.App. 5th Cir.1982), writ denied, 435 So.2d 442- (La.1983). Plaintiff failed to show that he had superi- or knowledge, experience or skill relating to the prevention of pressure ulcers or the monitoring, evaluating and treating of patients with pressure ulcers. He had no special training in wound care and did not work as a wound care nurse. The mere fact a person is a licensed registered nurse does not in and of itself render that person an expert in the prevention and treatment of pressure ulcers. Based on our review of the record, we cannot say the trial court abused its discretion in excluding Plaintiff as an expert witness in this case.

Propriety of Summary Judgment

As noted above, in order to prevail in this medical malpractice case, Plaintiff must prove the standard of care applicable to St. Joseph, a breach of that standard of care, and a causal link between the breach and the injury. Pfiffner, supra. For the reasons previously discussed, we find Plaintiff was required to produce medical expert testimony to establish a breach of the applicable standard of care and whether that breach caused Ms. Ladart’s injuries. Vanner, supra; Guardia, supra.

In its motion for summary judgment, St. Joseph argued that Plaintiff did not have an expert to establish the standard of care and that he had never identified an expert in his discovery responses. Although Plaintiff opposed the motion by submitting his own affidavit as expert testimony, Plaintiff was not qualified, for reasons discussed above, to give expert testimony in this case regarding the 112applicable standard of care relating to the prevention and treatment of pressure ulcers. Without expert testimony, Plaintiff failed to show he would be able to carry his burden of proof at trial. Thus, we find there are no genuine issues of material fact and St. Joseph is entitled to summary judgment as a matter of law.

On appeal, Plaintiff argues the trial court should have allowed him time to name another expert once it ruled Plaintiff was not qualified to give expert testimony. During the motion in limine hearing, Plaintiff indicated that he had consulted an expert. He asked the trial court for additional time to bring in the expert, with whom he had consulted, in the event the trial court ruled Plaintiff was not an expert. The trial court refused Plaintiffs request, explaining that Plaintiff had three years to identify an expert and provide an expert report.

Under La. C.C.P. art. 966, a motion for summary judgment is appropriate after “adequate discovery.” The law requires the parties be given a fair opportunity to present their claims. Pignona v. Farber, 13-192 (La.App. 5 Cir. 10/9/13); 128 So.3d 390, 397-98. There is no absolute right to delay a trial court’s consideration of a motion for summary judgment until discovery is completed; rather, it is within the trial court’s discretion to render summary judgment or require further discovery. Id. The trial court’s decision in this regard should only be reversed upon a showing of an abuse of that discretion. Id.

The motion for summary judgment was filed three years after Plaintiff filed suit. Although Plaintiff indicated he had consulted an expert, he failed to identify any such expert in any of his discovery responses. Additionally, Plaintiff failed to name the expert during the hearing at the time of his request. Further, Plaintiffs main argument at the hearing on the motion for summary judgment was that expert testimony was not required. Based on these circumstances, we do not find the trial 113court abused its discretion in refusing to allow Plaintiff additional time to obtain expert testimony.

DECREE

Upon de novo review of St. Joseph’s motion for summary judgment, the accompanying exhibits, and the applicable law, we find there are no genuine issues of material fact and that St. Joseph is entitled to summary judgment as a matter of law. Accordingly, we affirm the trial court’s granting of summary judgment in favor of St. Joseph, dismissing Mr. La-dart’s claims with prejudice.

AFFIRMED.

      . The record shows that Ms. Ladart developed pressure ulcers, or bed sores, during her stay at St. Joseph.

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . We note that the trial court incorrectly stated a “Daubert hearing” was necessary to determine Plaintiffs qualifications as an expert. The purpose of a Daubert hearing is to determine the reliability of the methodology used by an expert; its purpose is not to determine an expert's qualifications to give an opinion. The Daubert test is only one part of a three-part inquiry in determining whether an expert's testimony is admissible. Cheairs v. State ex rel. Department of Transp. and Development, 03-680 (La. 12/3/03); 861 So.2d 536, 542. Although the trial court incorrectly labeled the necessary hearing, it properly recognized it needed to first determine that "the expert is qualified to testify competently regarding the matters he intends to address" before Plaintiff’s affidavit could be admissible as expert testimony. Id.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Lanson JIMMERSON, III v. JOHNSON STORAGE & MOVING COMPANY, Zurich American Insurance Company.
    No. 13-CA-962.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.

      Leonard A. Washofsky, Attorney at Law, Metairie, Louisiana, for Plaintiff/Ap-pellee.
    Debra T. Parker, Attorney at Law, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this worker’s compensation proceeding defendants, Johnson Storage and Moving Company and its insurer, Zurich Insurance Company, appeal the judgment in favor of claimant, Lanson Jimmerson, awarding him temporary total disability benefits related to a May 15, 2012 work-related injury. The judgment appealed also awarded claimant penalties and attorney fees and further determined that claimant did not forfeit benefits under La. R.S. 23:1208. For the following reasons, we affirm the worker’s compensation judge’s finding that a compensable accident occurred, but amend the time period for which claimant is entitled to temporary total disability benefits, and remand this matter for a calculation of claimant’s supplemental earning benefits. In all other respects, we affirm the judgment appealed.

FACTUAL AND PROCEDURAL BACKGROUND

This matter arises out of an unwitnessed May 15, 2012 accident. Claimant alleges that he injured his back delivering an outdoor spa to a customer’s home 13while employed as a driver with Johnson’s Storage and Moving. Claimant testified that he reported to work at 7:30 a.m. on the morning of May 15, 2012, and was instructed to load items from the company’s warehouse into a truck to be delivered to a customer’s home. The largest item on the truck that day was an outdoor spa or Jacuzzi that was placed in the truck with a forklift. Claimant and a co-worker arrived at the customer’s home and were instructed to bring the spa to the backyard. Claimant testified that he injured his back as he and his co-worker carried the spa through the backyard on uneven ground.

At trial, claimant testified that he did not feel immediate pain but that he felt minor back pain when he returned home that evening. However, claimant attributed the pain to drinking too many “cold drinks” and not drinking enough water throughout that day. Claimant testified that when he awoke the following morning, on May 16, 2012, he experienced increased pain.

Claimant returned to work on May 16th, 17th, and 18th. At trial, claimant testified that his supervisor, Mike Connors, noticed claimant somewhat limping and asked claimant if he was feeling alright. Claimant responded that he thought he was hurt at work but denied any medical treatment, thinking that the pain would dissipate.

Claimant was scheduled to be off of work until Tuesday, May 22, 2012. On that date, however, claimant did not return to work but reported to St. James Parish Hospital emergency room, where he received an injection for his complaints of back pain radiating to his right buttock and leg. Claimant testified that he reported |4the at-work injury to the emergency room staff. However, the medical records from St. James Parish Hospital do not include any reference to an on-the-job injury; further, the hospital’s treating nurse, Ms. Jessica Malbrough, testified at trial that if a patient reports an on-the-job injury, it is immediately notated and additional paperwork is completed.

Claimant’s employment records indicate that he returned to work on May 23rd and May 24th. Mike Connors denied the initial conversation referenced by plaintiff, wherein claimant contends he initially mentioned a possible work-related injury the week of May 16th-18th, and maintained that claimant did not report any injury to him until May 24, 2012. On that date, claimant and Mike Connors completed an accident report concerning the May 15, 2012 injury. On that same date, Johnson Storage and Moving Company arranged for claimant to receive medical treatment at Concentra Medical Center, where he was diagnosed with a lumbosa-cral strain/sprain and instructed to return to work in a light duty capacity with physical restrictions.

Claimant treated with Dr. Timothy La-vin of Concentra Medical Center from May 24, 2012 until July 28, 2012. On October 15, 2012, claimant reported to Southern Brain and Spine Center for a neurosurgical evaluation with Dr. Rand Voorhies. Dr. Voorhies read an MRI image dated July 10, 2012 and noted a “very large, very obvious totally extruded disc herniation with inferior migration that is clearly impinging upon the right SI nerve root.” Dr. Voorhies recommended a minimally invasive procedure, a microdiskectomy, to “get him back into the workforce as expeditiously as possible — but also as safely as possible.” Defendants initially denied this procedure, finding it medically unnecessary. Shortly thereafter, defendants denied all medical treatment and disputed that | .-claimant’s injury was sustained within the course and scope of his employment or that an accident ever occurred.

Claimant filed a disputed claim for compensation. Following a two-day trial, the worker’s compensation judge issued a judgment, finding that claimant sustained a compensable work-related injury on May 15, 2012. The judgment awarded claimant continuing temporary total disability benefits starting from July 4, 2012, and ordered defendants to pay all medical and travel expenses arising from claimant’s May 15, 2012 injury. The worker’s compensation judge further determined that defendants failed to reasonably controvert claimant’s claim and ordered defendants to pay $4,000.00 in penalties and $4,000.00 in attorney fees; additionally, the worker’s compensation judge found that defendants failed to meet their burden to prove that claimant forfeited benefits under La. R.S. 28:1208. This timely appeal follows.

DISCUSSION

Defendants appeal, asserting that the worker’s compensation judge erred in awarding claimant temporary total disability benefits and assessing penalties and attorney fees. Defendants further assign as error the judge’s determination that defendants failed to prove that claimant forfeited benefits pursuant to La. R.S. 23:1208.

Awarding of TTD Benefits

This case concerns an “unwit-nessed accident.” A worker’s compensation claimant has the burden of proof to establish that a work-related accident occurred by a preponderance of the evidence. Bruno v. Harbert International, Inc., 593 |fiSo.2d 357, 361 (La.1992). A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Id. (Citations omitted), In determining whether the worker has discharged his burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent circumstances casting suspicion on the reliability of this testimony. Id. A worker may corroborate his testimony concerning the accident with objective medical evidence or testimony from fellow workers or his spouse. Hamilton v. Compass Grp. USA/Morrison, 07-501 (La.App. 5 Cir. 11/27/07), 973 So.2d 803, 806-07.

The fact-finder’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his burden of proof are factual determinations that should not be disturbed on appellate review unless clearly wrong or manifestly erroneous. Id. If the lower court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse. Consequently, when there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993); Hamilton, supra.

On appeal, defendants assert that the record does not support the worker’s compensation judge’s finding that a work-related accident occurred. Defendants point to claimant’s delayed report of the accident to his employer and to the St. James Parish Hospital emergency room records that do not report a work-related injury. At trial, claimant testified regarding the May 15, 2012 accident and gave a reason for his failure to immediately report it to his supervisor — he initially ^thought the minor pain would simply go away and attributed the pain to drinking too many cold drinks that day. Claimant testified that, despite the lack of corroboration in the St. James Parish Hospital medical records, he did in fact report the accident to the treating physician and staff during his emergency room visit on May 22, 2012. Claimant’s wife further testified that she noticed claimant in pain the morning following the accident and that the pain worsened and changed over the next several days. Claimant testified that he reported the injury to his supervisor, Mike Connors, while at work between May 16, 2012, and May 18, 2012. Further, claimant and Mike Connors completed a formal accident report on May 24, 2012, nine days after claimant alleges the accident occurred. Although defendants argue that claimant injured himself during his family vacation to Disney World at the end of April, there is no medical evidence or testimony in the record to support their argument.

We find the worker’s compensation judge was not manifestly erroneous in her determination that claimant was injured in the course and scope of his employment on May 15, 2012.

The worker’s compensation judge awarded claimant temporary total disability (TTD) benefits from July 4, 2012, through the present. Under La. R.S. 23:1221(1)(c), to establish entitlement to TTD benefits, a claimant must prove by clear and convincing evidence that he is physically unable to engage in any employment or self-employment due to his injury. Veazie v. Gilchrist Const. Co., 04-118 (La.App. 3 Cir. 6/2/04), 878 So.2d 742, writ denied, 04-1692 (La.10/8/04), 883 So.2d 1018. A claimant must introduce objective medical evidence to establish by clear and convincing evidence that he is unable to engage in any type |sof employment. Fassitt v. Jefferson Parish Hosp. Serv., 07-695 (La.App. 5 Cir. 12/27/07), 974 So.2d 757, 760.

The medical records introduced into evidence reflect that Dr. Voorhies, on October 15, 2012, examined claimant and determined that claimant was not capable of any gainful employment due to his May 15, 2012 injury. Prior to his October 15, 2012 treatment with Dr. Voorhies, claimant treated with Concentra Medical Center from May 24, 2012 until July 23, 2012. During his treatment with Concentra Medical Center, claimant was placed on light duty work with physical restrictions. The record further reflects that claimant worked intermittently at Johnson Moving and Storage in a light duty capacity during the time period that he treated with Con-centra Medical Center.

Therefore, we find that claimant failed to prove by clear and convincing evidence that he was temporarily totally disabled and unable to engage in any form of employment prior to his treatment with Dr. Voorhies on October 15, 2012. Accordingly, we find the worker’s compensation judge erred in awarding claimant TTD benefits from July 4, 2012, until October 15, 2012, the date the medical evidence shows he was unable to perform any work whatsoever.

However, the record reflects that claimant was still unable to perform his pre-injury work duties and should be entitled to supplemental earning benefits (SEB) during that time period. The record, however, does not contain sufficient information for this Court to calculate the appropriate SEB award. Accordingly, we remand this matter to the Office of Worker’s Compensation for a hearing to calculate an appropriate SEB award for claimant during that time period.

| ^Penalties and Attorney’s Fees

Defendants also appeal the worker’s compensation judge’s award of penalties and attorney fees for defendants’ failure to pay benefits and approve physical therapy or the procedure recommended by Dr. Voorhies.

Awards of penalties and attorney fees under the Worker’s Compensation Act are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, 98-2271 (La.6/29/99), 737 So.2d 41. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Town of Grand Isle v. Eschette, 02-96 (La.App. 5 Cir. 5/29/02), 820 So.2d 1122, 1129, writ denied, 02-1810 (La.10/4/02), 826 So.2d 1131.

Regarding penalties and attorney fees for failure to pay medical expenses and benefits, this Court has stated:

The employer is obligated to “furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.” Id.; LSA-R.S. 23:1203(A). A failure to authorize treatment can result in the imposition of penalties and attorney fees except when the claim is reasonably controverted. Depending on the circumstances, a failure to authorize treatment is effectively a failure to furnish treatment. Authement [v. Shappert Engineering], 02-1631 at 8, 840 So.2d [1181] at 1187 [ (La.2003) ]. The failure to authorize a medical procedure for an employee otherwise eligible to receive workers’ compensation is deemed to be the failure to furnish compensation benefits, thereby subjecting the employer to an assessment of attorney fees and penalties, unless the claim is reasonably controverted or such nonpayment results from conditions over which the employer had no control. LSA-R.S. 23:1201; Sims v. BFI Waste Services, L.L.C., 06-1319 (La.App. 1 Cir. 5/16/07), 964 So.2d 998, 1005. To determine whether a claim has been reasonably controverted, thereby precluding imposition of penalties and attorney’s fees, a court must ascertain whether the employer or insurer engaged in a nonfrivolous legal dispute or possessed factual or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time the employer/insurer refused to pay all or part of the benefits allegedly owed.

\mLopez v. Marques Food Distributors, 11-424 (La.App. 5 Cir. 12/28/11), 80 So.3d 1248,1254.

The unambiguous language of La. R.S. 23:1201 clearly establishes that penalties and attorney fees for failure to timely pay benefits shall be assessed unless the claim is reasonably controverted or such nonpayment results from conditions over which the employer or insurer had no control. In order to reasonably controvert a claim, a defendant must have some valid reason or evidence upon which to base its denial of benefits. Salazar v. Command Const., LLC, 12-680 (La.App. 5 Cir. 3/27/13), 117 So.3d 118, 128-29, writ denied, 13-0929 (La.5/31/13), 118 So.3d 399.

The record reflects that, on October 22, 2012, defendants denied the medical procedure recommended by Dr. Voorhies. On November 6, 2012, defendants’ counsel forwarded written correspondence to claimant’s counsel indicating that defendants would be “disputing this claim altogether” until claimant could prove that “his injury was sustained within the course and scope of his employment.” On appeal, defendants assign as error the worker’s compensation judge’s assessment of penalties and attorney fees against them, pointing to the St. James Parish Hospital emergency room medical records. Defendants argue that those records, which indicate that claimant denied any injury or trauma and are absent of any report of a work-related injury, are sufficient to reasonably controvert claimant’s |nclaim for benefits. For the following reasons, we find the record is insufficient to allow this Court to find that the worker’s compensation judge was manifestly erroneous in her finding that claimant is entitled to penalties and attorney fees under La. R.S. 23:1201.

The determination of whether an employer or insurer should be cast with penalties and attorney fees in a worker’s compensation action is essentially a question of fact subject to the manifest error or clearly wrong standard of review. Washington v. Shaw Group, 10-568 (La.App. 5 Cir. 5/10/11), 68 So.3d 10, 12-13, writ denied, 11-1211 (La.9/23/11), 69 So.3d 1159. “[T]he crucial inquiry is whether the employer had an articulable and objective reason for denying or discontinuing benefits at the time it took that action.” Williams, 737 So.2d at 46.

The record before us does not show that defendants were in possession of the St. James Parish Hospital emergency room records at the time they denied claimant’s benefits or the recommended medical procedure. Rather, the record reflects that claimant provided said records to defendants in his responses to defendants’ Request for Production of Documents, dated December 6, 2012 — approximately one month after defendants discontinued benefits and denied claimant’s request for the recommended medical procedure. Accordingly, because the record indicates that defendants were not in possession of the St. James Parish Hospital medical records at the time they denied claimant’s benefits, we cannot say that the trial judge was manifestly erroneous in her determination that claimant is entitled to penalties and attorney fees for defendants’ failure to pay.

Violation of23:1208

Defendants contend that claimant has forfeited his right to worker’s compensation benefits under La. R.S. 23:1208. The Workers’ Compensation Act |12imposes penalties for willfully making a false representation in connection with a compensation claim. La. R.S. 23:1208, in pertinent part, provides:

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

Defendants allege that claimant has made willful, false statements or representations throughout this litigation for the purpose of obtaining compensation benefits. Defendants point to claimant’s inconsistent statements regarding the date on which he initially experienced pain related to the accident. Defendants contend that claimant’s written report to his employer is inconsistent with his deposition and trial testimony and that such inconsistencies constitute willful misrepresentations made for the purpose of obtaining worker’s compensation benefits in violation of La. R.S. 23:1208.

In his deposition testimony, when asked regarding his initial onset of pain symptoms, claimant stated that he first felt pain when he awoke on May 16, 2012, the day after the accident. Defendants argue that this testimony conflicts with claimant’s written statement provided to his employer on May 24, 2012. The written report, introduced into evidence, states that “[a]f-ter a week I start feeling pain in my right side buttocks, all the way down my right leg giving my toes a tingling feeling. It’s hard for me [sic] stand sometimes or laying down or bending over.” Defendants contend that this written statement contradicts claimant’s deposition testimony, indicating that he felt back pain the morning of May 16, 2012, and further contradicts claimant’s trial testimony. At trial, claimant testified |13that he initially felt minor back pain the evening of May 15, 2012, but that he did not think much of the pain and attributed the minor pain to simply not drinking enough water and drinking too many “cold drinks” on the date of the accident.

The burden of proving an R.S. 23:1208 violation requires more than a mere showing of inconsistent statements. Faulkner v. Better Services, Inc., 10-867 (La.App. 5 Cir. 5/24/11), 67 So.3d 646, 656. We find claimant sufficiently explained the inconsistencies in his testimony and written statement. We find the written statement, reporting “pain in my right side buttocks, all the way down my right leg” does not contradict claimant’s deposition or trial testimony. Claimant’s written statement does not preclude the possibility that claimant initially felt back pain on the evening of the accident, which he dismissed, that worsened the next morning and developed into a radicular pain down his right side one week later. Accordingly, we cannot say that the worker’s compensation judge was manifestly erroneous in her finding that claimant’s statements do not warrant a forfeiture of benefits under La. R.S. 23:1208.

CONCLUSION

For the foregoing reasons, we affirm the worker’s compensation judgment awarding claimant TTD benefits as a result of the May 15, 2012 accident but amend the judgment to reflect that claimant was not entitled to receive those benefits until October 15, 2012. We remand this matter to the Office of Worker’s Compensation for a hearing to calculate the award of SEBs to which claimant is entitled. In all other respects, the lower court’s judgment is affirmed.

AFFIRMED AS AMENDED; REMANDED.

      . Claimant began employment with Johnson Storage and Moving Company in 2010 as a driver, primarily packing items for customers and delivering items to customers’ homes. Claimant also occasionally worked in the company’s warehouse conducting inventory.

      . Claimant testified that his co-worker’s name is Josh but that he could not recall Josh's last name. Josh did not testify at trial.

      . Claimant testified that he pulled the spa while his co-worker pushed the spa through the backyard, which was uneven grass with "little hills" in it.

      . Claimant could not recall the exact date on which Mike Connors noticed him somewhat limping. He did testify, however, that it was between May 16, 2012, and May 18, 2012.

      . Ms. Malbrough testified, however, that she had no independent recollection of claimant's emergency room visit.

      . La. R.S. 23:1208, in pertinent part, provides:
      (A) It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.

      (E) Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

      . The records indicate that claimant returned to work on April 25, 2012.

      . The parties stipulated to claimant’s weekly wage as $354.25.

      . The judgment awarded $4,000.00 in penalties and $4,000.00 in attorney fees against defendants and in favor of claimant.

      . La. R.S. 23:1201, in pertinent part, provides:
      (F) Except as otherwise provided in this Chapter, failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
      (2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

      . In answer to this appeal, claimant seeks an increase in the penalties and attorney fees assessed. We decline to disturb the worker’s compensation judge’s award of penalties and attorney fees in this case.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    Yvette DeSalvo DAVIS v. U-HAUL COMPANY OF LOUISIANA.
    No. 13-CA-1004.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.

      Ben E. Clayton, Attorney At Law, Sli-dell, Louisiana, for Appellant, Yvette DeS-alvo Davis.
    Glenn B. Adams, Leandro R. Area, Attorneys At Law, New Orleans, Louisiana, Counsel for Appellee, U-Haul Company of Louisiana.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   SUSAN M. CHEHARDY, Chief Judge.

| j>Plaintiff-customer appeals the summary judgment dismissing her action for damages in a slip-and-fall case against defendant-merchant. For the following reasons, we affirm.

Facts and Procedural History

On June 13, 2012, Yvette DeSalvo Davis (“Ms. Davis”) allegedly injured herself when she slipped and fell on a piece of “cooked onion” on the floor of the U-Haul retail rental facility at # 4 Westbank Expressway in Gretna, Louisiana. She filed suit on September 11, 2012 against the store’s operator, U-Haul Company of Louisiana (“U-Haul”), seeking damages for her personal injuries.

On September 9, 2013, U-Haul filed a motion for summary judgment contending that Ms. Davis would not be able to bear her burden of proof under La. R.S. 9:2800.6 that U-Haul had actual or constructive notice of the “slippery” substance prior to the occurrence. In support of its motion for summary judgment, U-Haul offered plaintiffs answers to interrogatories and requests for production, and its responses to plaintiffs requests for admissions.

_JjMs. Davis, in her opposition to U-Haul’s motion for summary judgment, offered affidavits from herself and her brother, Russell DeSalvo.

Ms. Davis, in her affidavit, attested that, on June 13, 2012, she was walking around the retail portion of the U-Haul store when she slipped on “a piece of cooked onion” and fell. She attested that she had not noticed the “onion” before she fell. Ms. Davis further attested that there were two employees in the store when she fell; one of the employees took an incident report. Ms. Davis attested that she received medical treatment at the Ochsner Medical Center in Gretna. Finally, Ms. Davis attested that she was not impaired that day.

Mr. Russell DeSalvo, plaintiffs brother who witnessed the incident, filed an affidavit that corroborated Ms. Davis’ affidavit.

On October 16, 2013, the trial judge heard and granted U-Haul’s summary judgment and dismissed plaintiffs suit. Plaintiff appeals that judgment.

Law and Argument

On appeal, Ms. Davis argues that the trial court erred in granting U-Haul’s motion for summary judgment. Ms. Davis contends that there exist genuine issues of material fact regarding whether U-Haul had “constructive notice” of the hazard in question. Ms. Davis contends that “the testimony of Ms. Davis and Mr. DeSalvo established the close proximity of at least two employees of the defendant at the time of the slip-and-fall accident on the U-Haul premises.”

Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for 14 one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to show that they will be able to meet their evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id.; Babin v. Winn-Dixie Louisiana, Inc., 00-0078 (La.6/30/00), 764 So.2d 37, 38-41; Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606.

On appeal, our review of summary judgments is de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Muller v. Carrier Corp., 07-770 (La.App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

In a slip-and-fall case against a merchant, a plaintiff must prove the essential elements of a standard negligence claim in addition to the requirements under La. R.S. 9:2800.6. White v. Wal-Mart Stores, 97-0393 (La.9/9/97), 699 So.2d 1081. La. R.S. 9:2800.6 declares that a merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage. Lousteau v. K-Mart Corp., 03-1182 (La.App. 5 Cir. 3/30/04), 871 So.2d 618, 623, writ denied, 04-1027 (La.6/25/04), 876 So.2d 835.

Under La. R.S. 9:2800.6, a plaintiff has the burden of proving that the condition presented an unreasonable risk of harm, that the risk of harm was reasonably foreseeable, and that the merchant either created or had actual or constructive notice of the condition, which caused the damage, prior to the ^occurrence. Id. “Constructive notice” means that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. Id.

To carry the burden of proving the temporal element of La. R.S. 9:2800.6(B)(2), a plaintiff must present positive evidence of the existence of the condition prior to the accident. Barrios v. Wal-Mart Stores, Inc., 00-2138 (La.App. 1 Cir. 12/28/01), 804 So.2d 905, 907, writ denied, 02-0285 (La.3/28/02), 812 So.2d 636. Though there is no bright-line time period, a plaintiff must show that “ ‘the condition existed for such a period of time....’” Id. (citing White v. Wal-Mart Stores, Inc., 699 So.2d at 1084). Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily an issue of fact. Id.

In the instant case, we find that U-Haul pointed out that there was an absence of factual support for an essential element of plaintiffs cause of action under La. R.S. 9:2800.6, because plaintiff was unable to satisfy the “constructive notice” requirement of the statute by showing that the “cooked onion” was on the floor for some period of time prior to her alleged fall. Accordingly, the district court properly granted summary judgment in favor of U-Haul.

Decree

Based on the foregoing, the trial court judgment is affirmed. All costs in this court are assessed against plaintiff, Yvette DeSalvo Davis.

AFFIRMED.


text:
    STATE of Louisiana v. Wardell BEAL.
    No. 13-KA-925.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Gail D. Schlosser-Appellate Counsel, Angel G. Varnado-Trial Counsel, Assistant District Attorneys, Gretna, Louisiana, for Appellee, The State Of Louisiana.
    Harold E. Weiser, III, Attorney At Law, New Orleans, Louisiana, for Appellant, Wardell Beal.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Chief Judge.

| ¡.On appeal, defendant challenges the trial court’s denial of his motion to suppress evidence. For the following reasons, we affirm and, due to an error patent, remand for correction of the commitment.

Facts and Procedural History

In this case, defendant’s conviction resulted from a guilty plea so the circumstances surrounding the charged offense were gleaned from the record, including testimony presented at defendant’s suppression hearing. The record reflects that, on December 5, 2011, defendant was arrested for possession of heroin, in violation of La. R.S. 40:966(C).

On January 11, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant, Wardell Beal, with one count of possession of heroin, a violation of La. R.S. 40:966(C). On August 8, 2012, the day that trial was to commence, defendant filed a motion to suppress evidence, which was heard and denied. That same day, defendant withdrew his former plea of not guilty and entered a plea of guilty as charged under State v. Crosby, 338 So.2d 584 (La.1976).3 Thereafter, the trial judge sentenced defendant to six years and eight months at hard labor, with credit for time served.

Additionally on August 8, 2012, the State filed a multiple offender bill of information, and defendant stipulated to being a second felony offender. The trial court then vacated defendant’s underlying sentence and imposed an enhanced sentence, pursuant to La. R.S. 15:529.1, of six years and eight months at hard labor without benefit of probation or suspension of sentence.

On September 6, 2012, defendant filed a motion to withdraw his guilty plea, which the trial court denied on May 10, 2013. On June 7, 2013, defendant filed his notice of appeal, which was granted by the trial court on June 10, 2013.

Law and Argument

On appeal, defendant raises two assignments of error regarding the trial court’s denial of his motion to suppress: first, defendant argues that the confidential informant’s uncorroborated tip lacked sufficient indicia of reliability to give an officer the reasonable suspicion to warrant an investigatory stop; and second, defendant argues that the police lacked reasonable suspicion to detain defendant so the pat-down was illegal and the heroin, which was seized from his person, should have been suppressed.

In his' first assignment, defendant asserts that police officers stopped him without attempting to corroborate any information relative to the alleged heroin activity. Defendant further contends that he “was not known to the officers prior to the stop, and they did not observe him involved in any conversations or exchanges with another person, or carrying any packages which might contain drugs.”

Conversely, the State argues that a reliable and credible informant told Detective David Biondolillo specific information concerning defendant’s car, the | ¿location where defendant would be, as well as the date and time that defendant would arrive, which detectives corroborated through surveillance.

At the hearing on defendant’s motion to suppress evidence, Detective David Bion-dolillo (“Biondolillo”) testified that, since 2009, he had been employed in the Narcotics Division of the Jefferson Parish Sheriff’s Office (“JPSO”). In connection with his employment, Biondolillo had received training in the identification and packaging of narcotics for street level sale, distribution, and use. Further, Biondolillo had participated in numerous narcotics investigations, during which narcotics, including heroin, were seized by the police.

Biondolillo participated in the underlying investigation and arrest of defendant, Wardell Beal. Biondolillo stated that, as a narcotics detective, he occasionally used confidential informants to develop leads regarding narcotics distribution and possession, which he did in this investigation. In this case, a confidential informant (“C.I.”), who had always supplied reliable information, told Biondolillo that a man nicknamed “D” would be delivering heroin to someone at the Discount Store, located at 34 West Bank Expressway in Gretna at about 3:00 p.m. on December 5, 2011. The C.I. indicated that the individual possessing the heroin would be driving an older model, green Pontiac Grand Am. The C.I. provided a physical description of “D” along with information that “D” would hold the heroin in one of two places: a pouch inside of the fly of his pants or in his pants’ pocket.

After receiving the tip, Biondolillo and other members of the Narcotics Task Force established surveillance of the business located at 34 West Bank Expressway on December 5, 2011. During the surveillance, Biondolillo was parked in a location so that he and the C.I., who was riding with him, could view the parking lot of the store. At about 2:53 p.m., an older model, green Pontiac Grand Am Rdriven by an individual who matched the physical description of the suspect pulled into the parking lot of the store. The C.I. identified the driver as Wardell Beal.

Biondolillo notified the Task Force that the suspect was in the store and instructed them to conduct an investigatory stop. Task Force members immediately detained Beal, placed him in handcuffs, then brought him out to the parking lot, where Biondolillo encountered the officers and defendant. For safety reasons, Biondolillo immediately conducted a pat-down of defendant’s exterior clothing for weapons. When Biondolillo touched defendant’s left rear pocket, Biondolillo felt a knot with a bag attached to it that was consistent with packaged narcotics. When he retrieved the bag, he observed tan powder, which, based on Biondolillo’s training and experience, was consistent with heroin. Biondo-lillo also testified that the powder field-tested positive for heroin.

At the conclusion of the hearing, the trial court stated: “The court’s satisfied that the officer articulated the reasons for ... the Terry stop. I think the information he got from the confidential informant corroborates the facts that actually took place. I’m going to deny your motion to suppress.”

The Fourth Amendment to the United States Constitution holds that people shall “be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” Similarly, Article 1, § 5 of the Louisiana Constitution affords even greater protections by providing that “every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.”

Law enforcement officers are, however, authorized by La. C. Cr. P. art. 215.1, as well as state and federal jurisprudence, to conduct investigatory stops to interrogate persons reasonably suspected of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983),6 cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Sam, 05-88 (La.App. 5 Cir. 5/31/05), 905 So.2d 379, 383, writ denied, 05-2100 (La.3/10/06), 925 So.2d 510. An investigatory stop necessarily involves an element of force or duress and the temporary restraint of a person’s freedom. State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284, 1286. There is the complete restriction of movement in an investigatory stop, but for a shorter period of time than an arrest. Id. at 1287.

“Reasonable suspicion” necessary to conduct an investigatory stop is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference. State v. Triehe, 03-149 (La.App. 5 Cir. 5/28/03), 848 So.2d 80, 84, writ denied, 03-1979 (La.1/16/04), 864 So.2d 625. Absent reasonable suspicion, an investigatory stop is illegal and the evidence seized as a result is suppressible. Id.

The sufficiency of an anonymous tip under Terry is determined by the reliability of its assertion of illegality, and not just its tendency to identify a determinate person. Florida v. J. L., 529 U.S. 266, 272, 120 S.Ct. 1375, 1379, 146 L.Ed.2d 254 (2000). The ability to predict the suspect’s future behavior goes toward reliability, as it demonstrates inside information, i.e., a special familiarity with the suspect’s affairs. Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990). An informant’s past record for accuracy and reliability is another factor taken into account when determining the reliability of the tip in question. State v. Austin, 04-993 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, 879, writ denied, 05-0830 (La.l1/28/05), 916 So.2d 143.

17Whether an informant’s tip establishes reasonable suspicion to conduct an investigatory stop is considered under the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 214, 103 S.Ct. 2317, 2320, 76 L.Ed.2d 527 (1983); State v. Nelson, 02-65 (LaApp. 5 Cir.6/26/02), 822 So.2d 796, 801, writ denied, 02-2090 (La.2/21/03), 837 So.2d 627. Independent corroboration of the details of an informant’s tip by police investigation is valuable when applying the totality of the circumstances analysis. Triehe, supra at 85.

In a hearing on a motion to suppress, the State has the burden to establish the admissibility of evidence seized without a warrant. La.C.Cr.P. art. 703(D); State v. Lewis, 12-902 (La.App. 5 Cir. 6/27/13), 121 So.3d 128. The trial court’s denial of a motion to suppress is afforded great weight, and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Bellow, 07-824 (La.App. 5 Cir. 3/11/08), 982 So.2d 826, 829.

In the instant ease, the testimony revealed that, a confidential informant, who had always provided reliable information, gave predictive information to Detective Biondolillo regarding the suspect and his clothing, his vehicle, the date and time that the suspect would arrive at a specific location, and even where the suspect would be carrying narcotics on his person. Detective Biondolillo corroborated each detail. Thus, we find that there was sufficient reasonable suspicion to justify the investigatory stop. See, State v. Nelson, supra.

In his second assignment of error, defendant argues that Detective Biondolil-lo lacked reasonable suspicion to detain defendant, and, therefore, the subsequent pat-down was illegal and the heroin seized from his person should be suppressed. The State argues, however, that the limited frisk in this case was conducted pursuant to a valid stop and that the connection between weapons and drugs justified a reasonable belief by Biondolillo that defendant may be armed.

|RHaving already found that the officers articulated sufficient reasonable suspicion to conduct a brief investigatory stop, the question is now whether the detention and subsequent frisk exceeded the law.

As a general principle, inherent in the right to conduct a Terry stop is the right of law enforcement officers to use reasonable force to effectuate the detention. State v. Turner, 12-855 (La.App. 5 Cir. 5/16/13), 118 So.3d 1186, 1192. The use of handcuffs to effect the detention of a defendant does not necessarily elevate the detention into an arrest. Id.

To show that a detention involving the use of handcuffs did not exceed the limits of a Terry stop, the State must show some fact or circumstance that could have supported a reasonable belief that the use of restraints was necessary to carry out the legitimate purpose of the stop without exposing the law enforcement officers, the public, or the suspect himself to an undue risk of harm. Id. It is long established that drugs, guns and violence often go together, and, thus, this may be a factor tending to support an officer’s claim of reasonableness. State v. Porche, 06-0312 (La.11/29/06), 943 So.2d 335, 340; State v. Thomas, 08-521 (La.App. 5 Cir. 1/27/09), 8 So.3d 646, 653, writ denied, 09-0391 (La.12/18/09), 23 So.3d 928.

An officer’s right to conduct a protective frisk is codified in La.C.Cr.P. art. 215.1(B), which provides that “[w]hen a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon.” The reasonableness of a frisk conducted as part of a lawful investigatory stop is governed by an objective standard. State v. Dumas, 00-0862 (La.5/04/01), 786 So.2d 80, 81.

The relevant question is “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was |3in danger.” Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. 1868; Dumas, 786 So.2d at 82. In determining the lawfulness of an officer’s frisk of a suspect, courts must give due weight, not to an officer’s “inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry, 392 U.S. at 21, 88 S.Ct. 1868.

Under the totality of the circumstances, we find the officer had a reasonable, objective and particularized basis for not only handcuffing, but also conducting a pat-down frisk of defendant. Here, defendant was apprehended at 3:00 p.m. in a public, convenience store on his way to allegedly deliver heroin to a person in the store. Knowing that those people that hold drugs often carry weapons coupled with the risk to the convenience store’s customers, the officers, and defendant, the officers were justified in handcuffing defendant at the outset of the detention and conducting a pat-down for weapons.

Based on the foregoing, we find no error in the trial court’s finding that the State bore its burden to establish the admissibility of evidence seized without a warrant. Finding no error in that denial, we find no merit in defendant’s assigned errors.

Error Patent Discussion

Pursuant to La.C.Cr.P. art. 920, we have reviewed the record for errors patent and note one error that requires correction. The record reveals a discrepancy between the transcript and the minute entry of the multiple offender sentencing. While the transcript indicates that defendant’s enhanced sentence under La. R.S. 15:529.1 contains no restriction on parole, the commitment reflects that the sentence is to be served “without benefit of parole, probation, or suspension of sentence.” The transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Therefore, we remand this matter to the district court to amend the minute | inentry/commitment to delete the reference to parole ineligibility. State v. Froiland, 05-138 (La.App. 5 Cir. 7/26/05), 910 So.2d 956. Further, we order the district court to transmit the original of the corrected commitment to the officer in charge of the institution to which the defendant has been sentenced and the Department of Correction’s Legal Department. See La. C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-244 (La.9/15/06), 937 So.2d 846 (per curiam).

Conclusion

Based on the foregoing, we affirm defendant’s conviction and sentence and, due to an error patent, remand for correction of the commitment.

AFFIRMED; REMANDED FOR CORRECTION OF THE COMMITMENT.