author: CHARLES R. JONES, Chief Judge. TOBIAS, J., SANDRA CABRINA JENKINS, Judge. DYSART, J.,

text:
    Patrick O’HERN v. DEPARTMENT OF POLICE.
    No. 2012-CA-0600.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 2012.
    Opinion on Rehearing April 24, 2013.
    Rehearing Denied May 15, 2013.
    C. Theodore Alpaugh, III, Claude A. Schlesinger, Kristie D. Holm, Guste Barnett Schlesinger Henderson & Alpaugh, L.L.P., New Orleans, LA, for Plaintiff/Appellant Patrick O’Hern.
    Victor L. Papai, Jr., Deputy City Attorney, Richard F. Cortizas, City Attorney, Elizabeth Robins, Assistant City Attorney, Brandon A. Brisco, Law Clerk, City Attorney’s Office, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., and Judge DANIEL L. DYSART).
   CHARLES R. JONES, Chief Judge.

hThe Appellant, Officer Patrick O’Hern, seeks review of the judgment of the Civil Service Commission of the City of New Orleans affirming his termination from his position as an officer for the New Orleans Police Department, the Appellee. Finding that the Civil Service Commission did not err, we affirm the judgment of the Civil Service Commission.

The facts are undisputed. Officer O’Hern was a classified Police Officer II on duty on December 12, 2009 with the New Orleans Police Department (“NOPD”). During his tour of duty, Officer O’Hern left his patrol assignment and went to his private vehicle. He drove his vehicle to the top floor of a parking garage where he consumed a substantial portion of a fifth of whiskey, and ingested ten to twelve prescription Clonazepam tablets. Officer O’Hern then discharged his police assigned firearm more than twenty times, shooting through his vehicle’s roof and windshield.

Reports of the incident were made to the NOPD and units rushed to the scene of the incident. Initially, the NOPD believed that Officer O’Hern had been |2engaged in a gun battle with unknown perpetrators. However, at the scene, the responding officers found Officer O’Hern incapacitated, and unable to control his bodily actions. He was evacuated to a medical facility where he subsequently informed medical personnel that he attempted to commit suicide. His medical records revealed that his blood alcohol level at the medical facility was 0.105%.

On December 12, 2009, the day of the incident, the NOPD issued a Form DI-1: “Initiation of a Formal Disciplinary Investigation,” which was signed by Sergeant Lawrence Jones (“Sgt. Jones”), who was assigned to the Public Integrity Bureau of the NOPD. The complaint placed Officer O’Hern on notice that his actions on that day gave rise to a possible violation of “Rule 2: Moral Conduct; Paragraph 1: Adherence to Law, to wit, R.S. 14:94 Relative to the illegal use of weapons or dangerous instrumentalities.” Pursuant to this notice, NOPD began a criminal investigation of Officer O’Hern’s actions on that day. Based on the results of the investigation, Officer O’Hern was arrested for a violation of La. R.S. 14:94, and placed on emergency suspension by the NOPD. Thereafter, on January 26, 2010, Sgt. Jones turned his criminal investigation over to the Orleans Parish District Attorney’s Office (D.A.) for a determination of whether criminal charges would be filed. Officer O’Hern subsequently pled guilty to two counts of “Criminal Mischief’ in the Orleans Parish Criminal District Court.

On March 5, 2010, pursuant to the administrative investigation, the NOPD issued a notice to Officer O’Hern, compelling an administrative statement, a statement which signifies the beginning of the NOPD’s administrative investigation. Officer O’Hern subsequently gave his statement on March 11, 2010, with his counsel present. On April 27, 2010, Sgt. Jones provided Officer O’Hern a | ¡¡written notice of completion of the internal administrative investigation, and the sustained charges of misconduct. The parties do not dispute that the investigation was formally completed on May 6, 2010. Officer O’Hern was terminated from the NOPD on October 27, 2010. Officer O’Hern appealed his termination with the Civil Service Commission (“CSC”), which affirmed the discipline imposed by the NOPD against Officer O’Hern.

Officer O’Hern filed this timely appeal with our Court, asserting four (4) assignments of error:

1) The CSC erred in affirming the discipline imposed by the NOPD because the investigation took over sixty days to complete in violation of La. R.S. 40:2531 B(7);
2) The CSC erred in affirming the discipline because the NOPD failed to provide him with a recording of his statement in violation of La. R.S. 40:2531 B(3);
3) The CSC erred in affirming the discipline because the NOPD failed to apprise him of the charges against him at the commencement of his statement in violation of La. R.S. 40:2531 B(l);
4) The CSC erred in affirming his discipline because his attorney was “muzzled” during Officer O’Hern’s statement in violation of La. R.S. 40:2531 B(4)(c).

In civil service disciplinary cases, an appellate court is presented with a multifaceted review function. Stevens v. Dept of Police, 2000-1682, p. 5 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, 625, citing, Walters v. Department of Police of the City of New Orleans, 454 So.2d 106 (La.1984).

First, as in other civil matters, deference will be given to the factual conclusions of the Commission. Hence, in deciding whether to affirm the Commission’s factual findings, a reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. Second, in evaluating the Commission’s determination as to whether the disciplinary action is |4both based on legal cause and commensurate with the infraction, the court should not modify the Commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. La. R.S. 49:964. Citations Omitted.

Stevens, p. 5, 789 So.2d at 625.

An employer cannot subject an employee who has gained permanent status in the classified city civil service to disciplinary action except for cause expressed in writing. Cornelius v. Department of Police, 2009-1459, p. 4 (La.App. 4 Cir. 6/9/10), 41 So.3d 617, 620, writ denied, 2010-1835 (La.10/29/10), 48 So.3d 1092. See also La. Const., Art. X, § 8(A). Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service. Stevens, pp. 5-6, 789 So.2d at 625, citing, Newman v. Department of Fire, 425 So.2d 753 (La.1983).

Legal cause exists whenever an employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cornelius, p. 4, 41 So.3d at 620, citing Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir.1990). The appointing authority has the burden of proving the impairment. La. Const., Art. X, § 8(A). The appointing authority must prove its case by a preponderance of the evidence. The appointing authority has the burden of proving by a preponderance of the evidence the occurrence of the complained of activity and that the conduct complained' of impaired the efficiency of the public service. Cornelius, pp. 4-5, 41 So.3d at 620. The appointing authority must also prove the actions complained of bear a real and substantial relationship to the efficient operation of the public service. Id. While these facts must be clearly established, they need not be established beyond a reasonable doubt. Id.

IfiThe Civil Service Commissions (“CSC”) has the exclusive authority to hear and decide all removal and disciplinary cases. The Commission’s decision is subject to review on any question of law or fact upon appeal to the court of appeal. La. Const, art. X, § 12(B). A review by appellate courts of the factual findings in a civil service case is governed by the manifest error or clearly wrong standard. Russell v. Mosquito Control Bd., 2006-0346, pp. 7-8 (La.App. 4 Cir. 9/27/06), 941 So.2d 634, 639-40. On legal issues, appellate courts give no special weight to the findings of the trial court, but exercise their constitutional duty to review questions of law and render judgment on the record. Id. However, a mixed question of fact and law should be accorded great deference by appellate courts under the manifest error standard of review. Id.

In the first assignment of error raised by Officer O’Hern, he argues that the CSC erred in affirming his termination because the administrative investigation conducted by the NOPD exceeded the sixty day limit provided by La. R.S. 40:2531 B(7). He asserts that the administrative investigation of his conduct began on December 12, 2009, the day of the incident, but it did not conclude until May 6, 2010. He argues that the DI-1 disciplinary investigation began on December 12, 2009, rather than on March 5, 2010, because he was issued the NOPD’s form referencing the beginning of the investigation on December 12, 2009. He further argues that he was not presented a “Notice to Accused Law Enforcement Officer,” which signaled the end of the administrative investigation in accordance with La. R.S. 40:2531 B(7), until May 2010. Thus, he concludes that the length of the investigation violated the sixty-day limit specified in La. R.S. 40:2531 B(7) because the NOPD took 136 days to complete the investigation. He further argues that this was a violation of his Bill of Rights.

|ñLa. R.S. 40:2531 B(7), reads in pertinent part:

(7) When a formal and written complaint is made against any police employee or law enforcement officer, the superintendent of state police or the chief of police or his authorized representative shall initiate an investigation within fourteen days of the date the complaint is made. Except as otherwise provided in this Paragraph, each investigation of a police employee or law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days. However, in each municipality which is subject to a Municipal Fire and Police Civil Service law, the municipal police department may petition the Municipal Fire and Police Civil Service Board for an extension of the time within which to complete the investigation. The board shall set the matter for hearing and shall provide notice of the hearing to the police employee or law enforcement officer who is under investigation. The police employee or law enforcement officer who is under investigation shall have the right to attend the hearing and to present evidence and arguments against the extension. If the board finds that the municipal police department has shown good cause for the granting of an extension of time within which to complete the investigation, the board shall grant an extension of up to sixty days. Nothing contained in this Paragraph shall be construed to prohibit the police employee or law enforcement officer under investigation and the appointing authority from entering into a written agreement extending the investigation for up to an additional sixty days. The investigation shall be considered complete upon notice to the police employee or law enforcement officer under investigation of a pre-disci-plinary hearing or a determination of an unfounded or unsustained complaint. Further, nothing in this Paragraph shall limit any investigation of alleged criminal activity. (Emphasis Added).

Officer O’Hern asserts that the manner in which the administrative investigation took place was a violation of his Bill of Rights because he was an officer under investigation facing possible disciplinary action, demotion, or dismissal. Thus, the sixty-day rule applied to him. He asserts that the NOPD’s argument that the initial investigation was one of a criminal investigation, thus | polling the sixty-day rule is inapplicable to this matter because a criminal investigation does not have a possible result of disciplinary actions, and an administrative investigation does, which was the result of his investigation.

The NOPD contends that the initial investigation which began on December 12, 2009, the date of the occurrence, was a criminal investigation. The NOPD maintains that it conducts two types of investigations with every incident: criminal and administrative. Administrative investigations deal with those stemming from complaints which originate from within the police department; whereas criminal investigations pertain to incidents and conduct which are criminal in nature.

The NOPD asserts that in the matter sub judice, a “rank” initiated investigation began on December 12, 2009, when, Sgt. Jones prepared the criminal investigation for review by the D.A.’s office. It asserts that Sgt. Jones investigated the incident, assisted in the preparation of subpoenas for Officer O’Hern’s medical records, procured copies of crime scene pictures, and interviewed witnesses. It contends that this criminal investigation led to the arrest of Officer O’Hern in January 2010. The NOPD further argues that Sgt. Jones submitted his criminal investigation report to the D.A.’s office on January 26, 2010, and the administrative investigation did not begin until March 5, 2010, when the criminal investigation was converted into an administration investigation. The NOPD avers that at this juncture, when the administrative investigation began, Officer O’Hern was provided notice that an administrative statement was to be rendered. The investigation was officially completed on May 6, 2010. The NOPD avers that the sixty-day rule on which Officer O’Hern relies is not applicable to this matter because of his criminal conduct on the day of the incident. The discharge of a weapon was a criminal act that required an initial investigation. The NOPD | ^contends that though an investigation began on December 12, 2009, and was not completed until May 6, 2010, the initial investigation was criminal in nature and the administrative investigation did not begin until March 5, 2010, thus, the sixty-day rule relied on by Officer O’Hern is inapplicable.

Our Court has held that administrative investigations are subject to the general sixty-day rule as per La. R.S. 40:2531 B(7). However, the statute also states in part: “[njothing in this paragraph shall limit an investigation of alleged criminal activity.” This language suggests that a criminal investigation is distinct from a civil administrative investigation.

In the matter sub judice, the record does not indicate that the CSC incorrectly applied the statute at issue. The CSC was presented with evidence showing: 1) that on December 12, 2009, Officer O’Hern discharged his service revolver while on duty; 2) that at the scene of the incident, the NOPD believed that Officer O’Hern was engaged in a gun battle with an unknown perpetrator; 3) that the NOPD came to the realization that Officer O’Hern was under the influence of several prescription pills and a large quantity of alcohol while on duty, when he discharged his weapon into his vehicle in a public location of the city. Further, the NOPD records presented to the CSC indicate that due to the circumstances surrounding the incident, Sgt. Jones was placed on notice to investigate the matter beginning on December 12, 2009, and he collected evidence to present to the D.A.’s office, to determine whether the matter was to be prosecuted or handled internally by the NOPD. Based on the criminal investigations conducted by Sgt. Jones, Officer O’Hern was arrested in January 2010. Upon his release, he was placed on desk duty by the NOPD so that the NOPD could then conduct its administrative investigation.

19Here, it is clear that the administrative investigation did not begin until March 5, 2010, when the NOPD informed Officer O’Hern that his statement was required to initiate the administrative investigation. Sgt. Jones, at the CSC hearing, testified that because of the incriminating circumstances of the incident, a criminal investigation was required prior to an administrative investigation to determine whether Officer O’Hern was to be prosecuted by the D.A.’s office. As stated above, La. R.S. 40:2531 B(7) provides that all administrative investigations must abide by the sixty-day rule. However, the statute also provides that nothing must interfere with a criminal investigation. Furthermore, the jurisprudence of Louisiana Courts establishes that nothing must interfere with a criminal investigation, and that a criminal investigation tolls the time limit for the administrative investigation.

For instance, in Wyatt v. Harahan Municipal Fire and Police Civil Service Board, 2006-0081, pp. 4-5 (La.App. 5 Cir. 7/25/06), 935 So.2d 849, 852, an officer was terminated from the Harahan Police Department because of three disciplinary actions for his failure to report an incident timely, his misuse of sick time, and for his submission of a false police report concerning the alleged vandalism of his police unit vehicle. The Officer appealed his termination arguing that the disciplinary investigation took more than sixty days as required by La. R.S. 40:2531 B(7), and therefore the disciplinary proceeding should be set aside. The Fifth Circuit sustained the officer’s termination, finding no violation of La. R.S. 40:2531 B(7) because the preliminary investigation of the officer that led to his criminal prosecution by the district attorney was an inquiry into criminal activity, and was not governed by the sixty-day rule, and the subsequent investigation was completed within sixty days. Id. The Court found that the disciplinary action did not begin until the completion of the criminal investigation by the D.A.’s office, |1ftand that the subsequent investigation was completed within sixty days. Id., p. 6, 935 So.2d at 853.

The matter sub judice is comparable to that of Wyatt. Here, the start of the administrative investigation did not begin until the completion of the criminal investigation by the NOPD. The record reflects that a criminal investigation was conducted by the NOPD, which was then referred to the D.A.’s office. The record indicates that the criminal investigation conducted by the NOPD began on December 12, 2009, and ended on or before March 5, 2010. Officer O’Hern subsequently pled guilty to the charge of “Criminal Mischief’ based on the investigation by the NOPD. The record further indicated that the administrative investigation leading to the termination of Officer O’Hern began on March 5, 2010, ending on April 26, 2010, with the official end date unopposed by either party being May 6, 2010. The dates provided reveal that the administrative investigation was within the sixty-day time period because as in Wyatt, the initial investigation conducted was an inquiry into criminal activity. Accordingly, Officer O’Hern’s assertion that the investigation violated his Bill of Rights, and that he was not afforded the due process outlined in La. R.S. 40:2531 B(7), is without merit.

Furthermore, as the Supreme Court recognized in Bannister v. Dep’t of Streets, 95-0404, p. 7 (La.1/6/96), 666 So.2d 641, 646, the appointing authority is charged with the responsibility of taking disciplinary action against an employee for impairing the efficiency of public service. To concentrate solely on the possible prejudice to the employee for any delayed decision ignores the rights and duties of the appointing authority to protect the public. Additionally, “the public puts its trust in the police department as a guardian of its safety, and it is essential that the | nappointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust.... ” Stevens, p. 8, 789 So.2d at 627.

Here, Officer O’Hern ingested several pills that clouded his judgment and interfered with his abilities to perform his job duties. He ingested two pills shortly after he reported to work. Officer O’Hern stated that within that same hour, while at work, he ingested at least ten more pills, in addition to a large quantity of whiskey. He then left his assigned post, went to his personal vehicle and drove it while he was under the influence of pills and alcohol, above the legal intoxication limit. Officer O’Hern drove his vehicle to the top of a parking garage and discharged his service issued weapon sixteen times into the body and windows of the vehicle.

It is undisputed that Officer O’Hern impaired the efficiency of public service, and was unable to perform his job as a police officer to protect and serve the community. Officer O’Hern disregarded his safety and the safety of the community when he decided to ingest numerous pills and alcohol shortly after he report to work. He placed the lives of the community at stake when while at work and in the public eye, ingested several pills and alcohol, and then drove his vehicle. Officer O’Hern posed a threat to public safety while he was driving under the influence of pills and alcohol, severely above the legal intoxication limit. Furthermore, due to his impaired mental state, Officer O’Hern then decided to discharge his gun into his vehicle sixteen times.

Based on Officer O’Hern’s actions on the night of December 12, 2009, the NOPD had the responsibility to discipline him in conformity with his actions. Any possible delays or prejudice that might have arisen in the investigative process is |12miniscule compared to the actions of the Officer on the night of the incidents. We find that this assignment of error is without merit.

In his second assignment of error, Officer O’Hern argues that the NOPD failed to provide him with a recording of his statement, a violation of La. R.S. 40:2531 B(3). He asserts that the CSC erred in holding that the appointing authority had the option of providing the officer with either a copy of the recording or a transcript of the officers statement, and that since a transcript was provided, there was no violation of La. R.S. 40:2531 B(3). He asserts that this is an error because the statute provides that the officer has the choice of the two, not the appointing authority. He further asserts that he made several requests from the ranking officers of the NOPD for a copy of the recording of the statement, but was refused several times since he had been provided with the transcript. He alleges that this refusal was a violation of his Bill of Rights.

The NOPD avers that they provided a copy of the transcript to Officer O’Hern, which he received, made several notes on the transcribed statement, and returned it to Sgt. Jones. The NOPD further avers that besides Officer O’Hern being provided a copy of the transcript, his counsel who was present at the hearing made a recording of the statement while it was being conducted.

La. R.S. 40:2531 B(3) provides in pertinent part:

(3) All interrogations of any police employee or law enforcement officer in connection with the investigation shall be recorded in full. The police employee or law enforcement officer shall not be prohibited from obtaining a copy of the recording or transcript of the recording of his statements upon his written request.

In the matter sub judice, Officer O’Hern was provided a transcript of the statement upon request. Though he requested a recorded copy .of the statement, a 11stranscript was provided to him, which was in accordance of the statute. The statute provides that either a copy of the recording of the statement or a transcript should be provided. (Emphasis added). Furthermore, his counsel had a copy of the recording of the statement at his disposal. Because the statute provides that either a recorded copy or a transcript has to be provided to the officer, the NOPD provided Officer O’Hern with a transcript in accordance with the statute. (Emphasis added). Therefore, Officer O’Hern’s assignment of error is without merit.

In his third assignment of error, Officer O’Hern avers that the NOPD failed to apprise him of all of the charges against him prior to his statement. He argues that this is a violation of La. R.S. 40:2531 B(l) because at the outset of the statement, he was only informed of one charge. However, at the conclusion of the investigations, and when Sgt. Jones presented him with his termination notice, the NOPD had listed as many as seven charges against him. He avers that at the beginning of the statement, he was only aware of the charge of Rule 2, Moral Conduct, Paragraph 1. However, when he was presented with the Notice of Termination, there was a list of additional charges of which he did not have any prior knowledge.

The NOPD avers that it provided Officer O’Hern a notice of the main charge against him because at the outset of his statement, that was all that the NOPD was 1 , ¿aware of and, according to the statute, providing the accused with at least the main charge was sufficient. The NOPD avers that Officer O’Hern was advised that he was being investigated for misconduct that occurred on December 12, 2009, and the notice provided Officer O’Hern with the information that he was being investigated for the charge of “Rule 2; Moral Conduct, Paragraph 1: Adherence to Law, to wit, R.S. 14:94 Relative to Illegal Use of Weapon or dangerous instrumentalities.” The NOPD further asserts that of the seven final charges against Officer O’Hern, six were related to Officer O’Hern’s improper use of his service revolver, and the seventh charge related to his consumption of alcohol on duty, which also occurred on the day of the incident.

Knight v. Dep’t of Police, 619 So.2d 1116, 1118 (La.App. 4 Cir.1993) states that “[njotice and an opportunity to respond are the basic requirements of due process, and before a tenured employee is discharged, he is entitled to oral or written notice of the charges against him, an explanation of his employer’s evidence, and an opportunity to present his side of the story.” Id, citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

In Knight, the Superintendent of Police ordered Captain Lorenza Knight to involuntarily retire from the New Orleans Police Department for racist remarks the officer made about another officer. Knight appealed his termination, arguing that the investigation violated his Bill of Rights because he was not informed of the charges against him before his statement was officially taken. Id. This Court, on appeal, held that “while it is true Major Salles did not specify the exact formal charge, he told Knight: ‘The nature of this investigation is your alleged conversation with Officer John Reilly of the command desk when you used the h-yvord “n — r” several times during that conversation.’ ” Id. at 1118. The Court went on to opine that “R.S. 40:2531 does not require that the law enforcement officer know the exact charges that may be brought against him. All that is required is that the investigating agency inform the police officer ‘of the nature of the investigation.’ ” Id.

Here, Sgt. Jones advised Officer O’Hern of the formal charge prior to the statement. He was advised that he was being investigated for misconduct that occurred on December 12, 2009; specifically he was informed that he was being investigated for his misuse of his service revolver while on duty. This advisement of the formal charge against him is sufficient under La. R.S. 40:2531. As stated in Knight, the statute does not require that an officer be informed of all charges against him at the outset of the statement. Thus, the requirements of the statute were fulfilled when Officer O’Hern was informed that he was being investigated for the misconduct which occurred on December 12, 2009. Therefore, this assignment of error is without merit.

In his final assignment of error, Officer O’Hern contends that his counsel was “muzzled” at his statement, and hence was a violation of La. R.S. 40:2531 B(4). He argues that his counsel was denied the right to offer objections and comments on the record. Therefore, the CSC erred in contending that his counsel was allowed to actively participate in the statement, and that there was no violation of the Bill of Rights. Officer O’Hern asserts that La. R.S. 40:2531 B(4)(c) provides that the law officer facing the investigation has the right to counsel, and further the counsel is allowed to offer advice to the officer and make statements on the record regarding any questions asked of the officer at any juncture in the course of the investigation. However, at the statement hearing, his counsel was informed |1fion two occasions that she could not interrupt the statements being asked of or made by Officer O’Hern. He further avers that the NOPD instructed his counsel that she had to wait until the end of the statement to interrupt, offer any advice, or counsel his client on any matter. Officer O’Hern asserts that this was a violation of the statute because the statute did not provide that the counsel is to wait until the end of the statement to offer any advice to her client.

The NOPD argues that Officer O’Hern’s counsel was not prevented from offering advice to his client as provided by La. R.S. 40:2531 B(4)(c). It asserts that Officer O’Hern’s counsel made several comments on the record and also advised Officer O’Hern as necessary before the statement, during, and afterwards. The NOPD asserts that because the statement is a compelled statement from the officer, his counsel’s attempts to impede the process by interjecting at inappropriate times was a violation of the purpose of obtaining the compelled statement. They assert that notwithstanding any “muzzling” of Officer O’Hern’s counsel, counsel was able to fully participate in the process, and able to advise her client.

La. R.S. 40:2531 B(4)(a) and (c) provides that:

(4)(a) The police employee or law enforcement officer being questioned, whether as a target or as a witness in an administrative investigation, shall have the right to be represented by counsel, other representative, or both, of the police employee or law enforcement officer’s choice.
(c) The police employee or law enforce- ■ merit officer’s representative or counsel shall be allowed to offer advice to the employee or officer and make statement on the record regarding any question asked of the employee or officer at any interrogation, interview, or hearing in the course of the investigation.

In the matter sub judice, a review of the record reveals that Officer O’Hern had adequate time to obtain counsel and be advised by counsel prior to his 117statement being taken, or prior to being questioned. The record further reveals that Officer O’Hern was present with counsel when he made his statements, and his counsel was able to counsel and offer advice on all aspects. As stated by the CSC and the NOPD, the statements are compelled statements to aid in the investigation of the misconduct; counsel could be present and offer advice. The officer’s counsel could not hinder the statement/interrogation process by objecting to the questions asked or the manner in which the questions were answered by Officer O’Hern. Here, the record reflects that Officer O’Hern’s counsel attempted to hinder the statements on several occasions, hence the instructions by Sgt. Jones for counsel to wait until the end of the compelled statement to ask questions or make any objections, were reasonable. Contrary to the arguments made by Officer O’Hern, the statute was not violated because Officer O’Hern was permitted to be present with counsel, who had adequate time to consult with him, on and off the record. Thus, this assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the judgment of the Civil Service Commission terminating Officer Patrick O’Hern.

AFFIRMED

TOBIAS, J., dissents and assigns reasons.

TOBIAS, J.,

dissents and assigns reasons.

_jjl respectfully dissent. The error of the majority: a misunderstanding of the difference between an informal DI-3 investigation and a formal DI-1 investigation (“Initiation of a Formal Disciplinary Investigation”) conducted by the appointing authority. I would reverse the judgment of the Civil Service Commission (“CSC”) and order that Officer O’Hern be restored to his position with all the emoluments and benefits due him together with an award of attorney’s fees for this appeal.

I agree with the majority that the facts are undisputed. They are stated substantially as I would. I do, however, note additional facts that I find pertinent to a proper resolution of this case; I therefore restate the facts as I view them based upon the record before us.

Officer O’Hern was a classified Police Officer II on duty on 12 December 2009. During his tour of duty, Officer O’Hern left his patrol assignment, and went to his private vehicle. He drove his vehicle to the top floor of a parking garage where he consumed a substantial portion of a fifth of Johnny Walker Black Label |2whiskey, and ingested ten to twelve prescription Clona-zepam tablets. Officer O’Hern then discharged his firearm more than twenty times, shooting through the vehicle’s roof and windshield. Reports were called into the NOPD and units rushed to the scene. Initially, the NOPD believed that Officer O’Hern had been engaged in a gun battle with unknown perpetrators.

At the scene, the responding officers found Officer O’Hern incapacitated and unable to control his bodily actions. He was evacuated to medical facilities, and subsequently told medical personnel that he put his service revolver to his head. His medical records reveal that his blood alcohol level at the hospital was 0.105%.

On 12 December 2009, the day of the incident, the NOPD issued a formal Form DI-1: “Initiation of a Formal Disciplinary Investigation,” which was signed by Sergeant Lawrence Jones, who was assigned to the Public Integrity Bureau. The gist of the complaint was that Officer O’Hern’s actions on that day gave rise to possible violations of “Rule 2: Moral Conduct; Paragraph 1: Adherence to Law, to wit, R.S. 14:94 Relative to the illegal use of weapons or dangerous instrumentalities.” Four days later, Officer O’Hern was given written notice of a formal NOPD internal disciplinary investigation, as well as his rights and responsibilities as a civil servant. The notice was from Sergeant Jones and was signed by both Officer O’Hern and Sergeant Jones on 16 December 2009 at 12:44 p.m.

|sThe city argues that the NOPD began its criminal investigation of Officer O’Hern’s actions on 12 December 2009. On 14 January 2010, Officer O’Hern was arrested for a violation of La. R.S. 14:94 and placed on emergency suspension. Thereafter, on 26 January 2010, Sergeant Jones turned his criminal investigation over to the District Attorney’s Office for a determination of whether criminal charges would be filed. On 5 March 2010, the NOPD issued a notice to Officer O’Hern, compelling an administrative statement, which took place on 11 March 2010 with his attorney present.

On 27 April 2010, Sergeant Jones provided Officer O’Hern written notice of the completion of the internal investigation and the sustained charges of misconduct. The parties agree that the investigation was formally completed on 6 May 2010. Officer O’Hern was terminated from the NOPD on 27 October 2010.

Officer O’Hern timely appealed the 27 October 2010 disciplinary letter to the CSC. A hearing was held before a hearing officer on 4 August 2011. The CSC issued its ruling on 20 February 2012 upholding the termination imposed by the NOPD.

Although Officer O’Hern has assigned four errors for our review, his first assigned error is dispositive: he claims that the CSC erred in affirming the discipline because the investigation took over sixty days to complete in violation of La. R.S. 40:2531 B(7).

La. R.S. 40:2581 sets forth the minimum standards that shall apply to the investigations of law enforcement officers. Pursuant to La. R.S. 40:2531 B(7), the | ¿investigation of a law enforcement officer shall be completed within sixty days. However, prior to the 2007 amendments to La. R.S. 40:2531, the statute contained no penalty provision for non-compliance within that sixty-day time frame.

In Marks v. New Orleans Police Department, 06-0575 (La.11/29/06), 943 So.2d 1028, the Louisiana Supreme Court considered the issue of whether, under the pre-amendment version of La. R.S. 40:2531, the failure to comply with the statutory “minimum standards,” by failing to complete the investigation within sixty days, required summary dismissal of the charges against an officer. Noting that the statute contained no penalty provision for noncompliance, the Court held that the failure to comply with the sixty-day time period did not require summary dismissal of a disciplinary action. Rather, the Court concluded that failure to comply with the sixty-day time period may impact whether discipline should be imposed or the type of discipline imposed if prejudice to the officer was demonstrated due to the delay. Id. at pp. 11-12, 943 So.2d at 1036.

The following year, the Legislature amended La. R.S. 40:2531 by 2007 Acts, Nos. 91 and 258. In 2007 Acts, No. 91, the Legislature amended subsection B(7) of La. R.S. 40:2581 to add language providing that the chief of police or his authorized representative shall initiate an investigation within fourteen days of the date that a formal and written complaint is made against a law enforcement officer. Act No. 91 also added the following language to subsection B(7):

The investigation shall be considered complete upon notice to the police employee or law enforcement officer under investigation of a pre-disciplinary hearing or a determination of an unfounded or un-sustained | r,complaint. Further, nothing in this Paragraph shall limit any investigation of alleged criminal activity.

[Emphasis supplied.]

Additionally, by 2007 Acts, No. 258, the Legislature added subsection C to La. R.S. 40:2531, providing as follows:

C. There shall be no discipline, demotion, dismissal or adverse action of any sort taken against a law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section. Any discipline, demotion, dismissal or adverse action of any sort whatsoever taken against a law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity. [Emphasis supplied]

The effective date of these amendments was 15 August 2007.

The NOPD contends that the administrative investigation of Officer O’Hern did not exceed the sixty-day limit because there was first an investigation of Officer O’Hern’s alleged criminal activity, which is not governed by the sixty-day rule, quoted above. In support of this argument, the NOPD relies on Wyatt v. Harahan Municipal Fire and Police Civil Service Board, 06-0081 (La.App. 5 Cir 7/25/06), 935 So.2d 849. However, Wyatt was decided before the amendments to La. R.S. 40:2531 in 2007 and is, therefore, inapplicable to the matter before us.

Instead, I rely on Cornelius v. Department of Police, 09-1459 (La.App. 4 Cir. 6/9/10), 41 So.3d 617, wherein a similar issue was raised. Instead of a criminal investigation, an “informal ” DI-3 investigation was opened immediately after the complaint was made. That informal investigation was completed and closed. It was then that the formal investigation began, which Officer Cornelius argued violated the sixty-day rule. Therein we stated:

| (iln his second assignment of error, Officer Cornelius argues that the investigation terminated when he received notice that the informal DI-3 investigation was completed, and therefore, reopening the case constituted a violation of his bill of rights as a police officer. However, this assignment of error is without merit. Once it was determined that this case needed to be formally investigated, there was a timely request for an extension of time to conduct a formal investigation on January 23, 2008, and a letter was sent to Officer Cornelius on January 29, 2008, giving him notice. Thereafter, on January 25, 2008, the case became a DI-1 and was assigned to Sgt. LaRoache. When Sgt. LaRoache received the DI-1 investigation, he sent Officer Cornelius a notice to appear and render a formal statement. Officer Cornelius appeared and made a recorded and transcribed statement on March 25, 2008. Accordingly, the discipline imposed resulted from a timely DI-1 formal investigation in compliance with the sixty day rule. Therefore, there was no bill of rights violation and the discipline is not an absolute nullity.

Id. at pp. 5-6, 41 So.3d at 621.

In the instant case, the formal investigation, evidenced by the DI-1, was opened on the day of the event, 12 December 2009. Therefore, without a timely request for an extension of time in which to complete the formal investigation, the sixty days ran on or about 10 February 2010. The criminal investigation was |7completed on 26 January 2010, the date the matter was turned over to the District Attorney’s office. All that remained was the taking of Officer O’Hern’s administrative statement, which could have easily been compelled within the sixty-day mandatory time period. In fact, Sergeant Jones stated during the hearing that no new information was obtained during its administrative investigation with the exception of obtaining Officer O’Hern’s statement. While I agree that La. R.S. 40:2531 B(7) does not affect the time period in which a criminal proceeding must |8be brought, I do not read the statute as creating a “tolling” period for the administrative investigation to begin or end. The language of La. R.S. 40:2581 B(7) is clear and unambiguous. Therefore, I find merit to Officer O’Hern’s first assignment of error and agree that the discipline imposed on him by the NOPD is an absolute nullity. The remainder of the majority opinion is thus dicta.

(Court composed of Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).

(ON APPLICATION FOR REHEARING)

SANDRA CABRINA JENKINS, Judge.

12Patrick O’Hern, the plaintiff/appellant, seeks a rehearing of our earlier decision herein that affirmed the decision of the New Orleans Civil Service Commission (“CSC”). For the reasons that follow, we grant a rehearing, vacate our earlier decision, and reverse the decision of the CSC.

On rehearing, Officer O’Hern asserts that we erred in our original opinion because, inter alia, the record on appeal does not support several facts that we originally found and the NOPD violated Officer O’Hern’s rights under La. R.S. 40:2531 (the so-called “Police Officer’s Bill of Rights”). Our current review, coupled with the recent decision of the Louisiana Supreme Court refusing to grant the City of New Orleans’ Police Department’s writ application in Robinson v. Dept. of Police, 2012-1039 (La.App. 4 Cir. 1/16/13), 106 So.3d 1272, writ denied, 2013-0528 (La.4/12/13), 110 So.3d 1081, a case that is substantially identical to this case wherein the opposite conclusion from the one that we originally reached herein, satisfies us that our earlier decision is legally wrong because we failed to differentiate an informal DI-3 investigation from a formal [SDI-1 investigation.

We adopt the finding of facts as set forth in the dissent of Judge Tobias in this case for purpose of this rehearing, noting differences exist between the facts he found and those facts earlier found by the majority.

Although Officer O’Hern assigned four errors for our review, his first assigned error is dispositive of this appeal: he claims that the CSC erred in affirming the discipline because the investigation took over sixty days to complete in violation of La. R.S. 40:2531 B(7). We agree.

La. R.S. 40:2531 sets forth the minimum standards that shall apply to the investigations of law enforcement officers. Pursuant to La. R.S. 40:2531 B(7), the investigation of a law enforcement officer shall be completed within sixty days. However, prior to the 2007 amendments to La. R.S. 40:2531, the statute contained no penalty provision for non-compliance within that sixty-day time frame.

In Marks v. New Orleans Police Department, 2006-0575 (La.11/29/06), 943 So.2d 1028, the Supreme Court considered the issue of whether, under the pre-amended version of La. R.S. 40:2531, the failure to comply with the statutory “minimum standards,” by failing to complete the investigation within sixty days, required summary dismissal of the charges against an officer. Noting that the statute contained no penalty provision for non-compliance, the Court held that the failure to comply with the sixty-day time period did not require summary dismissal of a disciplinary action. Rather, the Court concluded that failure to comply with the sixty-day time period may impact whether discipline should be imposed or the type of discipline imposed if prejudice to the officer was demonstrated due to the delay. Id. at pp. 11-12, 943 So.2d at 1036.

1/The following year, La. R.S. 40:2531 was amended by 2007 Acts, Nos. 91 and 258, both effective August 15, 2007. In 2007 Acts, No. 91, the Legislature amended subsection B(7) of La. R.S. 40:2531 to add language providing that the chief of police or his authorized representative shall initiate an investigation within fourteen days of the date that a formal and written complaint is made against a law enforcement officer. Act No. 91 also added the following language to subsection B(7):

The investigation shall be considered complete upon notice to the police employee or law enforcement officer under investigation of a pre-disciplinary hearing or a determination of an unfounded or un-sustained complaint. Further, nothing in this Paragraph shall limit any investigation of alleged criminal activity. [Emphasis supplied.]

By 2007 Acts, No. 258, the Legislature added subsection C to La. R.S. 40:2531, providing as follows:

C. There shall be no discipline, demotion, dismissal or adverse action of any sort taken against a law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section. Any discipline, demotion, dismissal or adverse action of any sort whatsoever taken against a law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity. [Emphasis supplied.]

The NOPD contends that the administrative investigation of Officer O’Hern did not exceed the sixty-day limit because there was first an investigation of Officer O’Hern’s alleged criminal activity, which is not governed by the sixty-day rule, quoted above. In support of this argument, the NOPD relies on Wyatt v. Harahan Municipal Fire and Police Civil Service Board, 2006-0081 (La.App. 5 Cir. 7/25/06), 935 So.2d 849. However, Wyatt was decided before the 2007 amendments to La. R.S. 40:2531 and is thus inapplicable.

We find Cornelius v. Department of Police, 2009-1459 (La.App. 4 Cir. 6/9/10), 41 So.3d 617, wherein a similar issue was raised, applicable. Instead of a criminal investigation, an “informal ” DI-3 investigation was opened immediately after a-complaint was made. That informal investigation was completed and closed. It was then that the formal investigation began, which Officer Cornelius argued violated the sixty-day rule. Therein we stated:

In his second assignment of error, Officer Cornelius argues that the investigation terminated when he received notice that the informal DI-3 investigation was completed, and therefore, reopening the case constituted a violation of his bill of rights as a police officer. However, this assignment of error is without merit. Once it was determined that this case needed to be formally investigated, there was a timely request for an extension of time to conduct a formal investigation on January 23, 2008, and a letter was sent to Officer Cornelius on January 29, 2008, giving him notice. Thereafter, on January 25, 2008, the case became a DI-1 and was assigned to Sgt. LaRoache. When Sgt. LaRoaehe received the DI-1 investigation, he sent Officer Cornelius a notice to appear and render a formal statement. Officer Cornelius appeared and made a recorded and transcribed statement on March 25, 2008. Accordingly, the discipline imposed resulted from a timely DI-1 formal investigation in compliance with the sixty day rule. Therefore, there was no bill of rights violation and the discipline is not an absolute nullity.

Id. at pp. 5-6, 41 So.3d at 621.

In the instant case, the formal investigation, evidenced by the DI-1, was opened on the day of the event, December 12, 2009. Therefore, without a timely request for an extension of time in which to complete the formal investigation, the sixty days ran out on February 10, 2010. The criminal investigation was |ficompleted on January 26, 2010, the date the matter was turned over to the Orleans Parish District Attorney’s office. All that remained was the taking of Officer O’Hern’s administrative statement, which could have been compelled within the sixty-day mandatory time period. In fact, Sergeant Jones stated during the hearing that no new information was obtained during its administrative investigation with the exception of obtaining Officer O’Hern’s statement. See footnote 2 at p. 1049 of Judge Tobias’ dissent in our original opinion herein.

La. R.S. 40:2581 B(7) does not affect the time period in which a criminal proceeding must be brought; we do not read the statute as creating a “tolling” period for the administrative investigation to begin or end. The language of La. R.S. 40:2531 B(7) is clear and unambiguous.

For the foregoing reasons, a rehearing is granted, our earlier decision herein is vacated, the decision of the CSC is reversed, and the discipline imposed against O’Hern is dismissed.

REHEARING GRANTED; JUDGMENT REVERSED.

DYSART, J., dissents, with reasons.

DYSART, J.,

dissents, with reasons.

hAs the Supreme Court recognized in Bannister v. Dep’t of Streets, 95-0404, p. 7 (La. 1/16/96), 666 So.2d 641, 646, the appointing authority is charged with the responsibility of taking disciplinary action against an employee for impairing the efficiency of public service. To concentrate solely on the possible prejudice to the employee for any delayed decision ignores the rights and duties of the appointing authority to protect the public.

Weighing the possible prejudice to the employee with the rights and duties of the appointing authority is particularly important with regard to the police department as the public expects the police to act as guardians of its safety. See Stevens v. Dep’t of Police, 2000-1682, p. 8 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, 627.

Further, La. R.S. 40:2531 B(7) states in part: “[n]othing in this Paragraph shall limit an investigation of alleged criminal activity.” This language suggests that a criminal investigation is separate and apart from a civil administrative investigation. The record indicates that the administrative investigation did not begin until March 5, 2010, and the investigation was completed on April 27, 2010, within the sixty-day time period.

Lin this case it is undisputed that Officer O’Hern’s action impaired the efficiency of public service. Officer O’Hern stipulated to the facts of the incident, which was in fact a criminal offense, and that his actions impaired the efficient operation of the public service.

To find that the administrative investigation was not completed within the sixty-day time period leads to a nonsensical result. Therefore, I respectfully dissent.

      . Clonazepam is a benzodiazepine drug having anxiolytic, anticonvulsant, muscle relaxant, and hypnotic properties, which was approved by the Food and Drug Administration for treatment of epilepsy. http://en.wikipedia. org/wiki/Clonipin#Formulations.

      . The legal limit for intoxication is 0.08% while driving a vehicle. See La. R.S. 14:98.

      . La. R.S. 40:2531 B(l) provides in pertinent part:
      B. Whenever a police employee or law enforcement officer is under investigation, the following minimum standards shall apply:
      (1) The police employee or law enforcement officer being investigated shall be informed, at the commencement of interrogation, of the nature of the investigation and the identity and authority of the person conducting such investigation, and at the commencement of any interrogation, such officer shall be informed as to the identity of all persons present during such interrogation. The police employee or law enforcement officer shall be allowed to make notes.

      . La. R.S. 40:2531 B(7) provides for a sixty-day extension of the investigation period, as was done in Cornelius, supra, provided certain procedures are followed and good cause is shown:
      However, in each municipality which is subject to a Municipal Fire and Police Civil Service law, the municipal police department may petition the Municipal Fire and Police Civil Service Board for an extension of the time within which to complete the investigation. The board shall set the matter for hearing and shall provide notice of the hearing to the police employee or law enforcement officer who is under investigation. The police employee or law enforcement officer who is under investigation shall have the right to attend the hearing and to present evidence and arguments against the extension. If the board finds that the municipal police department has shown good cause for the granting of an extension of time within which to complete the investigation, the board shall grant an extension of up to sixty days. Nothing contained in this Paragraph shall be construed to prohibit the police employee or law enforcement officer under investigation and the appointing authority from entering into a written agreement extending the investigation for up to an additional sixty days.

      . Sergeant Jones stated that they could not compel Officer O’Hern’s administrative statement because of the pending criminal investigation. However, the CSC stated in its judgment in footnote one:
      Appellant is constitutionally protected against self-incrimination and the Appointing Authority cannot compel a statement if the statement is used for or is admissible in a criminal proceeding. Hence, in the vernacular of the department, such a statement is referenced as a “criminal statement”. Conversely, a "compelled” or "administrative statement” is not admissible in a criminal proceeding. The Appointing Authority has the option of ordering or compelling an employee to provide a statement in an internal investigation for administrative purposes/intemal discipline. However, by compelling a statement, the Appointing Authority loses its ability to use the statement for purposes of criminal prosecution.
      This statement by the CSC is in accordance with other provisions in the law, such as La.C.Cr.P. art. 439.1, which addresses compelled testimony before grand juries:
      C. The witness may not refuse to comply with the order on the basis of his privilege against self incrimination, but no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement or otherwise failing to comply with the order.

        See also and cf., e.g., La. R.S. 51:711 D(2); State v. Delcambre, 97-1447 (La.App. 3 Cir. 4/29/98), 710 So.2d 846; Evans v. DeRidder Mun. Fire, 01-2466 (La.4/3/02), 815 So.2d 61. Thus, Sergeant Jones could not compel Officer O’Hern to provide a "criminal statement,” which he requested and was refused. However, he could have compelled an "administrative statement” from Officer O’Hem but could not have turned same over to the District Attorney’s office for use in the criminal proceeding.


source: Caselaw Access Project

author: WHIPPLE, J. McCLENDON, J.,

license: Public Domain

text:
    Marshall PRICE v. CITY OF PONCHATOULA POLICE DEPARTMENT.
    Nos. 2012 CA 0727, 2012 CA 0728.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.

      William Ken Hawkins, Ponchatoula, LA, for Plaintiff/Appellant, Marshall Price.
    Christopher M. Moody, Hammond, LA, for Defendant/Appellee, City of Ponchatou-la Police Department.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   WHIPPLE, J.

[¡¡In this consolidated workers’ compensation matter, claimant, Marshall Price, appeals from a judgment of the Office of Workers’ Compensation (“OWC”). For the following reasons, we affirm the December 2, 2011 judgment.

FACTS AND PROCEDURAL HISTORY

Claimant filed two disputed forms for compensation alleging three separate work-related incidents that occurred while he was employed as a police officer with the City of Ponchatoula for which he allegedly sustained injuries. The matters were consolidated pursuant to agreement by the parties and ultimately tried before the OWC on September 7 and 20, 2011.

After hearing the matter, the OWC rendered judgment: (1) finding that claimant violated the fraud provisions set forth in LSA-R.S. 23:1208(A); (2) assessing a civil penalty in the amount of $1,000.00 payable to the Kids Chance Scholarship Fund, Louisiana Bar Foundation, pursuant to LSA-R.S. 23:1208(D); (3) finding that claimant forfeited his right to any benefits under the Louisiana Workers’ Compensation Act pursuant to LSA-R.S. 23:1208(E); and (4) assessing claimant with all costs of the proceedings pursuant to LSA-R.S. 23:1310.9. A written judgment was signed on September 20, 2011.

On October 10, 2011, a subsequent hearing was held to determine the specific amount of costs. On December 2, 2011, the OWC signed a “Judgment on Motion to Assess Costs” ordering that claimant reimburse the Ponchatoula Police Department, through Risk Management, Inc., costs in the amounts of $5,088.35 for deposition costs and court reporter fees; $19.00 for subpoena fees; and $2,630.76 for medical records expenses.

On December 9, 2011, claimant filed a motion for new trial, challenging the December 2, 2011 judgment assessing costs. The matter was heard before the |3OWC on December 29, 2011, and on January 2, 2012, the OWC signed a judgment denying claimant’s motion for new trial.

After his motion for new trial was denied, on February 28, 2012, claimant filed a petition and order for devolutive appeal from the December 2, 2011 costs judgment, which was granted by the OWC. In his brief to this court on appeal, however, claimant assigns error to the OWC’s underlying findings rendered in its September 20, 2011 judgment on the merits. Specifically, claimant contends that the OWC erred: (1) in finding claimant committed fraud pursuant to LSA-R.S. 28:1208; (2) in finding that claimant brought a frivolous claim and was responsible for retribution to the Louisiana Workforce Commission pursuant to LSA-R.S. 28:1810.9; (3) in failing to award claimant costs, penalties, and attorney’s fees for non-payment and late payment of benefits associated with the April 11, 2010 accident; and (4) in failing to address benefits owed for the July 8, 2010 accident and the August 24, 2010 accident.

DISCUSSION

At the outset, we note that the question of timeliness of an appeal is jurisdictional and must be considered. Jim & Lu Enterprises, Inc. v. Alcoholic Beverage Control Board for the City of Baton Rouge, 99-2907 (La.App. 1st Cir.12/22/00), 778 So.2d 75, 78. An appellant’s failure to file a devolutive appeal timely is a jurisdictional defect, in that neither the court of appeal nor any other court has the jurisdictional power and authority to reverse, revise or modify a final judgment after the time for filing a devolutive appeal has elapsed. Baton Rouge Bank & Trust Company v. Coleman, 582 So.2d 191, 192 (La.1991). When an appellant fails to file a devolutive appeal from a final judgment timely, the judgment acquires the authority of the thing adjudged, and the court of appeal has |4no jurisdiction to alter that judgment. Held v. Aubert, 2002-1486 (La. App. 1st Cir.5/9/03), 845 So.2d 625, 636.

In this instant case, claimant filed an appeal of a judgment assessing and fixing the amounts due for various costs. A judgment for costs rendered after the final judgment on the merits is a separate and appealable judgment. Hoyt v. State Farm Mutual Automobile Insurance Company, 623 So.2d 651, 664 (La. App. 1st Cir.), writ denied, 629 So.2d 1179 (La.1993); Little v. Pou, 42,872 (La.App. 2nd Cir.1/30/08), 975 So.2d 666, 681, writ denied, 2008-0806 (La.6/6/08), 983 So.2d 920. Under the provisions set forth in LSA-C.C.P. art. 2088(A)(10), a trial court retains jurisdiction to set and tax costs and expert witness fees even after the jurisdiction of the trial court over all matters reviewable under the appeal is divested and the jurisdiction of the appellate court attaches. Because the trial court retains jurisdiction over matters concerning the setting and taxing of costs and expert witness fees, they do not affect the running of appellate delays with respect to a judgment on the merits. Chamberlain v. Burcham, 624 So.2d 20, 22 (La.App. 2nd Cir.), writ denied, 629 So.2d 1175 (La. 1993). A judgment taxing is a matter separate and distinct from the interlocutory judgment on a motion for JNOV/new trial, and a judgment taxing costs that is rendered after a final judgment on the merits does not affect the running of appellate delays with respect to the judgment on the merits. Chamberlain v. Burcham, 624 So.2d at 22.

|BThe September 20, 2011 judgment of the OWC on the merits has not been appealed herein. Claimant’s failure to timely file a devolutive appeal of the September 20, 2011 judgment is a jurisdictional defect, and this court has no jurisdictional power and authority to reverse, revise or modify that judgment after the time for filing a devolutive appeal has elapsed. See Baton Rouge Bank & Trust Company v. Coleman, 582 So.2d at 192; Jim & Lu Enterprises, Inc. v. Alcoholic Beverage Control Board for the City of Baton Rouge, 778 So.2d at 78; Held v. Aubert, 845 So.2d at 636.

Thus, to the extent that claimant challenges the findings rendered by the OWC in the September 20, 2011 judgment in his brief in this appeal, we note that the September 20, 2011 judgment of the OWC on the merits is a final judgment and that the findings and provisions therein have acquired the authority of a thing adjudged. Thus, in the instant appeal, we have no authority to alter same. Accordingly, we pretermit consideration of claimant’s challenges to the merits of the earlier judgment.

We recognize that even though claimant’s challenges to the judgment on the merits are not viable, the December 2, 2011 judgment setting the amount of costs has been timely appealed. See Louisiana Resources Company v. Roberts, 343 So.2d 1219, 1221 (La.App. 3rd Cir.1977). However, because claimant does not assign error to the methodology or calculations used to establish the amounts awarded therein, this appeal presents nothing for review.

CONCLUSION

For the above and foregoing reasons, the December 2, 2011 judgment of the OWC is affirmed. The remainder of the relief sought is denied. All costs of this appeal are assessed to the claimant/appellant, Marshall Price.

JUDGMENT OF DECEMBER 2, 2011 AFFIRMED.

HIGGINBOTHAM, J., concurs.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurs and assigns reasons.

|,I am concerned that the comments made by the OWC that the September 20, 2011 judgment was not final, may have lulled the attorneys into complacency. However, while I acknowledge that appeals are favored, based on the specific facts presented herein, and the provisions of LSA-C.C.P. arts 1841 and 2083, I am constrained to concur with the result reached by the majority.

      . Claimant had initially filed a petition and order for a devolutive appeal from the "December 15, 2011” judgment of the OWC, which was subsequently denied by the OWC, because there was "no judgment signed on December 15, 2011.”

      . Louisiana Code of Civil Procedure article 2088 provides in part:
      A. The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
      (10) Set and tax costs and expert witness fees.


author: McDonald, j.

text:
    Rose KINCHEN v. WAL-MART STORES, INC.
    No. 2012 CA 0729.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.

      Brian D. Calvit, Baton Rouge, LA, for Plaintiff/Appellant Rose Kinchen.
    Scott F. Davis, Dax C. Foster, Metairie, LA, for Defendant/Appellee Wal-Mart Stores, Inc.
    Before KUHN, PETTIGREW, and McDonald, jj.
   McDonald, j.

12This is an appeal in a workers’ compensation ruling wherein the Office of Workers’ Compensation (OWC) found that the plaintiffs claims for medical benefits related to her hip and back and her claim for supplemental earnings benefits were not related to her accident at work, and her case was dismissed with prejudice.

The plaintiff, Rose Kinchen, was injured in the course and scope of her employment at Wal-Mart Stores, Inc. (Wal-Mart) on September 11, 2008, when she was walking across the parking lot at the Wal-Mart in Denham Springs where she worked. She was hit by a forklift, injuring her left knee and elbow. Ms. Kinchen was treated for a nondisplaced lateral tibea fracture of the left leg and workers’ compensation benefits were paid in connection with that injury. Wal-Mart paid total disability benefits through October 20, 2008, and then paid supplemental earnings benefits through January 9, 2009.

Ms. Kinchen filed a disputed claim for compensation against Wal-Mart on December 10, 2010, asserting that in addition to fracturing her right tibia and injuring her right knee and elbow, she sustained injuries to her hip and lower back. Wal-Mart filed an answer and denied that her claims were related to the accident. Ms. Kinchen retired from Wal-Mart effective on May 5, 2011.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. As an appellate court, we cannot set aside the factual findings of the OWC unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate |3court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel its own evaluations and inferences are as reasonable. Crawford v. Pontchartrain Materials, 2006-1780 (La. App. 1 Cir. 3/28/07), 960 So.2d 946, 950.

In this case, OWC issued sixteen pages of written reasons for judgment which articulate the facts of the case in great detail, along with the determinations that led to the finding that Ms. Kinchen failed to prove that her hip and back complaints were related to the Wal-Mart accident. In pertinent part, the OWC found:

In the instant case, Ms. Kinchen’s testimony was contradicted in several respects. Ms. Kinchen testified that after working as a telephone operator, she asked Mr. Spurrier if she could return to the floor as a sales associate in electronics, but that after several days, she could not continue because of hip pain. This testimony was directly contradicted by Ms. Fleming, who stated that Ms. Kinchen never returned to the floor as a sales associate.
Additionally, Ms. Kinchen testified that it was Dr. Parmar’s idea for her to retire. This was directly contradicted by Dr. Parmar’s testimony and his report dated November 23, 2010, wherein he noted that Ms. Kinchen stated that she was planning to retire at the end of the year.
Ms. Kinchen also testified that the phone operator position was not available at the time she stopped working. This was also contradicted by Ms. Fleming, who testified that the phone operator job was available to Ms. Kinchen at all times pertinent to the litigation, including when Ms. Kinchen retired, although it was not available at the time of trial.
Ms. Kinchen testified that she never told anyone at work she was retiring because of hip and back problems because “it was none of their business,” and that she did not tell Dr. Parmar about her accident at Wal-Mart because he wasn’t really her doctor. She also | ¿admitted that she never sought approval from Wal-Mart for treatment of her hip and back. These comments are troubling in light of the fact that Ms. Kinchen now seeks benefits from Wal-Mart because she now alleges that her hip and back complaints are related to her September 11, 2008 accident.
Ms. Kinchen also aggressively pursued and succeeded in her claim for short term disability benefits through The Hartford, all the while submitting paperwork alleging specifically that her condition was not work-related, just as she did with her leave of absence requests for Wal-Mart.

After a thorough review of the record, we find no manifest error in the workers’ compensation judge’s determination that Ms. Kinchen failed to prove that her hip and back pain were related to the Wal-Mart accident. Thus, the judgment of the OWC, denying Ms. Kinchen’s claims for medical benefits for her hip and back and her claim for supplemental earnings benefits, and dismissing her case with prejudice, is affirmed. Costs are assessed against Ms. Kinchen.

AFFIRMED.

KUHN, J., concurs.


author: HIGGINBOTHAM, J.

text:
    Deshawn BRANCH v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2012 CA 0749.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.
    Deshawn Branch, Farmerville, LA, Plaintiff-Appellee, In Proper Person.
    Jonathan R. Vining, Debra A. Rutledge, Baton Rouge, LA, for Defendant-Appellant, Louisiana Department of Public Safety and Corrections.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

[2Peshawn Branch is an inmate in the custody of the Louisiana Department of Public Safety and Corrections (the Department). Branch initially filed this matter in the Nineteenth Judicial District Court seeking judicial review of the Department’s denial of his request for administrative relief regarding the calculation of good time credits after his good time parole was revoked. Relying on an amendment to La. R.S. 15:571.S(B)(l)(a), by 2010 La. Acts, No. 649, effective October 15, 2010, Branch sought thirty-five days credit for every thirty days actually served on the period of time from his initial arrest/custody for possession of cocaine on November 19, 1996, to his release on good time parole supervision on May 4, 2008. Branch maintained that the Department had improperly computed his good time credits by only allowing the thirty-five-for-thirty rate on the period of time following his return to actual custody when his good time parole was revoked on September 10, 2009.

At first, the action was referred to a commissioner for review pursuant to La. R.S. 15:1188, who found merit to Branch’s claims. The district court then conducted a de novo review of the record and adopted the commissioner’s | ..¡recommendation, agreeing with Branch, and finding that the only reasonable interpretation of Act 649 was to apply it to all portions of an inmate’s sentence — even those time periods served before release on good time parole supervision. Consequently, on February 14, 2012, the district court signed a judgment reversing the Department’s decision. Additionally, the district court ordered the Department to recalculate Branch’s sen-fence after crediting him with five additional days of good time credit for every thirty days served in actual physical custody prior to Branch’s release on good time parole.

The Department filed a suspensive appeal, maintaining that the district court’s interpretation of Act 649 is manifestly erroneous. The Department specifically asserts that any good time earned by Branch prior to his release on good time parole supervision was utilized to gain his release and that once Branch’s parole was revoked, he was returned to actual custody to serve the remainder of his sentence as of his release date. The Department argues that it has consistently considered any remaining sentence balance upon revocation of an inmate’s parole to essentially be a new and separate sentence with regard to newly enacted good time provisions.

On review of the district court’s judgment in a suit for judicial review pursuant to CARP, La. R.S. 15:1177, no deference is owed by the appellate court to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Goodin v. Secretary, Dept of Cor rections, 2011-0673 (La.App. 1st Cir.11/9/11), 79 So.3d 1076, 1079. Our de novo review of the record reveals that the district court erred in its interpretation of La. R.S. 15:571.3 as it applies to this particular inmate. We make this conclusion based on our finding |4that in addition to the initial sentence for possession of cocaine (sentenced on July 10, 1997), Branch was also serving one consecutive and one concurrent sentence for two counts of battery of a correctional facility officer (sentenced on December 10, 2002), which is considered a crime of violence and was specifically designated as a crime of violence by the sentencing judge. See La. R.S. 15:571.3(B)(l)(b)(iii) and La. R.S. 14:2(B)(41). See also La. R.S. 14:34.2(A)(2).

The applicable version of La. R.S. 15:571.3(B)(1) and (2), as amended and reenacted by Act 649, provides in pertinent part:

B. (l)(a) Except as provided in Paragraph (B)(2) of this Section, every inmate in the custody of the department who has been convicted of a felony, except an inmate convicted a second time of a crime of violence as defined by R.S. 14:2(B), ... may earn, in lieu of incentive wages, a diminution of sentence by good behavior and performance of work or self-improvement activities, or both, to be known as “good time.” ... The amount of diminution of sentence allowed under the provisions of this Section shall be at the rate of thirty-five days for every thirty days in actual custody.
(b) The provisions of Subparagraph (a) of this Paragraph shall be applicable to persons convicted of offenses on or after January 1, 1992 and who are not serving a sentence for the following offenses:
(1) A sex offense as defined in R.S. 15:541.
(ii) A crime of violence as defined in R.S. 14:2(B).
(iii) Any offense which would constitute a crime of violence as defined in R.S. 14:2(B) or a sex offense as defined in R.S. 15:541, regardless of the date of conviction.
(2) An inmate convicted a first time of a crime of violence as defined in R.S. 14:2(B), shall earn diminution of sentence at a rate of three days for every seventeen days in actual custody, including time spent in custody with good behavior prior to sentence for which defendant is given credit as authorized by Code of Criminal Procedure Article 880. [Emphasis added.]

The record on appeal shows that Branch was convicted of possession of cocaine for an offense he committed on November 19, 1996, and that while serving Lthe sentence on that particular conviction, he was convicted and sentenced on two counts of a crime of violence for battery of a correctional officer. Therefore, pursuant to clear exclusions in the applicable diminution-of-sentenee-for-good-behavior statute, Branch was ineligible to receive the good time rate of thirty-five days for every thirty days in actual custody. We conclude that the district court’s reversal of the Department’s administrative decision constituted legal error, because it does not comply with the statutory provisions of 2010 La. Acts, No. 649, and therefore, must be reversed.

DECREE

For these reasons, the February-14, 2012 judgment of the district court is hereby reversed. Additionally, we order that this matter be remanded to the Department to amend the records of Desh-awn Branch, including his master prison record, to accurately reflect good time earned and/or the forfeiture of diminution of sentence, if any, in accordance with the applicable versions of La. R.S. 15:571.3(B)(l)(a). Total costs of this appeal are assessed to Deshawn Branch.

REVERSED AND REMANDED.

      . An inmate alleging an error in time computation must pursue his claim through a Corrections Administrative Remedy Procedure (CARP), with appellate review first at the district court and then with this court. Owens v. Stalder, 2006-1120 (La.App. 1st Cir.6/8/07), 965 So.2d 886, 888 n. 5. Branch’s petition for judicial review was styled as a "Writ of Habeas Corpus.” Louisiana Revised Statute 15:1171(B) grants authority to the Department to adopt administrative remedy procedures in compliance with federal law to receive, hear, and dispose of all inmate complaints and grievances. The statute further provides that such complaints and grievances include actions pertaining to time computations, "even though urged as a writ of habeas corpus,” and that such administrative remedy procedures are to provide the exclusive remedy to the inmate for those complaints. Owens, 965 So.2d at 888 n. 4.

      .We note that La. R.S. 15:571.3(B)(l)(a) was amended again by 2011 La. Acts, No. 186, § 2, and 2012 La. Acts, No. 110, § 1; however, Act 186 is only applicable to those persons sentenced on or after August 15, 2011, and Act 110 is only applicable to those persons sentenced on or after August 1, 2012. Thus, neither of these additional amendments is relevant to this appeal.

      . The office of commissioner of the Nineteenth Judicial District Court was created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state inmates. Owens, 965 So.2d at 888 n. 6. The commissioner’s written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5).

      . Louisiana Revised Statute 15:1177(A)(10) provides that an aggrieved party may appeal a final judgment of the district court to the appropriate court of appeal.

      . Louisiana Revised Statute 14:2(B) provides in pertinent part: "In this Code, ... [t]he following enumerated offenses ... are included as 'crimes of violence’: (41) Battery of a police officer[J” And in the statute covering the offense of battery of a police officer, a “police officer” includes correctional officers. See La. R.S. 14:34.2(A)(2). Further, La. R.S. 14:34.5(B)(2) provides that the sentence shall be consecutive to any other sentence imposed.

      . It is well settled that the matter of good time credits are directed to the Department exclusively. State v. Coleman, 2009-1388 (La. App. 1st Cir.2/12/10), 35 So.3d 1096, 1099, writ denied, 2010-0894 (La.4/29/11), 62 So.3d 103. Therefore, this court declines to calculate Branch's good time credits or a release date.


author: McCLENDON, J.

text:
    Dorothy IDUSUYI v. EARL K. LONG MEDICAL CENTER.
    No. 2012 CA 0751.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.

      Mark Plaisance, Thibodaux, LA, Denise Vinet, Baton Rouge, LA, for Plaintiff/Appellant Dorothy Idusuyi.
    Brian E. Blackwood, Baton Rouge, LA, for DefendanVAppellee Earl K. Long Medical Center.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   McCLENDON, J.

|2In this workers’ compensation dispute, the claimant, Dorothy Idusuyi, appeals a judgment of the Office of Workers’ Compensation (OWC) that denied her claim for additional disability benefits.

Ms. Idusuyi was involved in a work accident on October 12, 2006, while employed by Earl K. Long Medical Center (EKL). While EKL accepted her left knee injury as a compensable workers’ compensation claim resulting from the work accident, it disputed the relatedness of Ms. Idusuyi’s “back, shoulder, neck, left hip, hands/carpal tunnel syndrome, and right knee” complaints to the on-the-job accident. Following the presentation of her case at trial, which included her testimony and various medical records, EKL moved for an involuntary dismissal, which was granted. Judgment was signed on December 19, 2011, and this appeal by Ms. Idusuyi followed. After a full review of the record before us, we affirm the OWC ruling in this memorandum .opinion pursuant to the Uniform Rules, Louisiana Courts of Appeal, Rule 2-16.1B.

On October 12, 2006, Ms. Idusuyi, an Administrative Coordinator II at EKL, was working at her computer when she stood up and heard her left knee pop. As a result of the injury, Ms. Idusuyi underwent three surgeries on her left knee, including a partial knee replacement in 2008. She contends that she later developed symptoms in her hands, shoulder, right knee, neck, and lower back, which she alleges are all related to her work accident. Ms. Idusuyi argues that the weakness in her left knee caused her to fall and injure her back, neck, left hip, and shoulder. She also believes that by favoring her left knee she |sdeveloped problems with her right knee and that the problem with her hands resulted from the use of crutches and a cane for her left knee.

In its oral reasons for granting the motion for involuntary dismissal, the OWC stated, in pertinent part:

Considering the law, the evidence and the argument of counsel, the Court has thoroughly reviewed the exhibits submitted with the case and carefully listened to the testimony of the claimant, and considering the totality of the evidence, including but not limited to the IME report of Dr. Thad Broussard, wherein he does not relate these conditions, asserted by the claimant, as being part of her injuries from the accident of October 12, 2006, the Court finds the claimant has failed in her burden of proof in proving that these conditions are related to the case. Therefore, these claims are denied, and the case is dismissed with prejudice.

In her appeal, Ms. Idusuyi contends that the OWC erred in granting the involuntary dismissal based on an independent medical examination (IME). She asserts that the OWC gave improper weight to the medical report of the IME doctor, who saw Ms. Idusuyi on only one occasion, rather than to the medical evidence from her ongoing treating physician.

The same standard of review applicable to factual findings of district courts, the “manifest error-clearly wrong” standard, is also applicable to factual findings in workers’ compensation cases. Ary v. Personal Care, 10-2291 (La.App. 1 Cir. 6/10/11), 68 So.3d 1192, 1195, writ denied, 11-1519 (La.10/7/11), 71 So.3d 317. Whether a claimant has carried her burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. Scott v. Wal-Mart Stores, Inc., 03-0858 (La.App. 1 Cir. 2/23/04), 873 So.2d 664, 669.

For an appellate court to reverse a factual finding in a workers’ compensation case, it must find from the record that a reasonable factual basis does not exist for the finding or that the record establishes that the finding is clearly wrong. See Stobart v. State, through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Even though an appellate Lcourt may feel its own evaluations and inferences are more reasonable than the fact-finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.; Ary, 68 So.3d at 1195.

Further, as a general rule, the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. Scott, 873 So.2d at 669. However, the treating physician’s testimony is not irrebuttable, and the trier of fact is required to weigh the testimony of all medical witnesses. An IME’s medical conclusions should be given significant weight because the IME is an objective party. Nevertheless, the opinion of the IME is not conclusive, and the OWC must evaluate all of the evidence presented in making a decision as to a claimant’s medical condition. Id.

In this matter, the OWC clearly stated that it considered the totality of the evidence. Because we find that the OWC’s factual conclusions are reasonably supported by the record, we find that they are not manifestly erroneous. Likewise, based on these factual conclusions, we find no error in the OWC’s judgment that dismissed Ms. Idusuyi’s claim for additional workers’ compensation benefits. Thus, we affirm the December 19, 2011 judgment of the OWC. Costs of this appeal are assessed against Ms. Idusuyi.

AFFIRMED.

      . Louisiana Code of Civil Procedure article 1672 B provides:
      In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.
      In determining whether involuntary dismissal should be granted, the appropriate standard is whether the plaintiff has presented sufficient evidence on his case-in-chief to establish his claim by a preponderance of the evidence. Robinson v. Dunn, 96-0341 (La.App. 1 Cir. 11/8/96), 683 So.2d 894, 896, writ denied, 96-2965 (La. 1/31/97), 687 So.2d 410. An involuntary dismissal should not be reversed by an appellate court in the absence of manifest error. Id.


author: PETTIGREW, J.

text:
    Sheila VICKNAIR v. WAL-MART STORES, INC.
    No. 2012 CA 0011.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.

      Laurie W. Maschek, Slidell, LA, for Plaintiff-Appellant Sheila Vicknair.
    Scott F. Davis, Dax C. Foster, Metairie, LA, for DefendanL-Appellee Wal-Mart Stores, Inc.
    C. Ray Murry, Slidell, LA, Intervenor, Pro se.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

12This is an appeal from a workers’ compensation dispute wherein the workers’ compensation judge (“WCJ”) found that claimant failed to carry her burden of proof that her work-related accident aggravated a preexisting lumbar condition, caused injury to her knee, or aggravated her mental condition. From a dismissal of her claim with prejudice, claimant has appealed. We affirm.

Claimant, Sheila Vicknair, was employed as a cashier at Wal-Mart Stores, Inc. (“Wal-Mart”) when she tripped and fell in the parking tot on August 23, 2007. The accident was witnessed by a co-worker and is not in dispute.

Following this accident, Ms. Vicknair, then a 50-year old obese female with a history of lower back complaints, sought treatment from her general practice physician, Dr. Adrian Talbot. Dr. Talbot later referred her to an orthopedist, Dr. Paul M. Doty. On her initial visit to Dr. Doty, on September 21, 2007, Ms. Vicknair expressed complaints referable to her back, her right wrist, and her right knee. Ms. Vicknair also expressed complaints, following the accident, about her inability to always extend the long finger of her left hand. Dr. Doty’s impression, based upon his physical examination, was that Ms. Vicknair suffered from a triggering of her left long finger, back pain subsequent to falling, and a sprain of her right wrist from catching herself as she fell.

Dr. Doty treated her conservatively with a steroid injection and medications. According to Dr. Doty, Ms. Vicknair’s wrist, knee, and back complaints improved; but on November 21, 2007, Dr. Doty performed an outpatient procedure known as a trigger finger release at Lakeview Regional Medical Center. In a follow-up visit on February 1, 2008, Ms. Vicknair expressed complaints of back pain, as well as a new complaint of pain in her left knee.

Ms. Vicknair fell again, at her home, on May 10, 2008, and sustained a lateral fracture of her right tibia. Ms. Vicknair claims that this subsequent fall was caused by the |sinjuries she sustained at Wal-Mart on August 23, 2007; i.e., that her right knee could no longer sustain her weight. Ms. Vicknair underwent emergency surgery performed by Dr. John L. Fambrough, an orthopedist, to repair her broken right tibia. Ms. Vicknair later underwent total knee replacement surgery, also performed by Dr. Fambrough, the following year. Ms. Vicknair admitted that she did not advise anyone affiliated with Wal-Mart about her knee replacement surgery.

Ms. Vicknair filed the instant claim for compensation with the Office of Workers’ Compensation on November 13, 2008, alleging injury to her knee, wrists, breast, and lower back. In connection with her claim for compensation, Ms. Vicknair alleged that as a result of her fall on August 23, 2007, Wal-Mart failed to provide medical treatment or pay her medical bills, for which she sought penalties, interest, and attorney fees. Wal-Mart responded by filing an answer, claiming that it reasonably and properly handled Ms. Vicknair’s workers’ compensation case, and further that Ms. Vicknair’s present complaints of injury were not sufficiently related to her earlier alleged accident at work.

On April 30, 2009, Ms. Vicknair filed an Amended and Supplemented Disputed Claim 1008 wherein she alleged that Wal-Mart unreasonably denied her medical treatment with a neurosurgeon, Dr. Dietze; a neurologist, Dr. Shamsnia; a psychologist, Dr. Boutte; and pain management treatment from her general practice physician, Dr. Talbot. Ms. Vicknair further asserted that Wal-Mart refused to approve steroid injections prescribed by her orthopedist, Dr. Doty, and sought penalties, interest, and attorney fees for Wal-Mart’s arbitrary and capricious termination of all medical treatment from ail of her treating physicians as of October 30, 2008.

Ms. Vicknair filed a Second Amended and Supplemented Disputed Claim 1008 on January 20, 2010, wherein she further alleged that Wal-Mart failed to authorize medical weight loss therapy recommended by the court-appointed independent medical examiner, Dr. Eric Oberlander. Ms. Vicknair also sought penalties, interest, and attorney fees for Wal-Mart’s failure to authorize medical treatment. In answering Ms. Vicknair’s second amended claim, Wal-Mart stated that it would not authorize treatment for weight loss as same was not causally related to Ms. Vicknair’s accident at work.

|4On August 24, 2010, Ms. Vicknair’s former attorney, C. Ray Murry, filed a Petition of Intervention in this matter, seeking to recover attorney fees for legal services rendered in the event this matter was settled or Ms. Vicknair obtained a favorable judgment.

The matter proceeded to trial on June 27, 2011, on the following issues:

1.) Whether Wal-Mart was reasonable in its failure to approve lumbar surgery as recommended by Dr. Dietze;
2.) Whether Wal-Mart was reasonable in its failure to pay outstanding medical expenses incurred as a result of leg and knee surgeries performed by Dr. Fambrough;
3.) Whether Wal-Mart was reasonable in its failure to timely authorize treatment with Ms. Vicknair’s choice of neurosurgeon, Dr. Donald Dietze;
4.) Whether Wal-Mart was reasonable in its failure to timely authorize mental health treatment;
5.) Whether Wal-Mart was reasonable in its failure to timely authorize an MRI and ESIs as recommended by Dr. Doty;
6.) Whether Wal-Mart was reasonable in its failure to timely authorize pain management;
7.) Whether Wal-Mart was reasonable in its failure to timely authorize weight loss/weight management treatment;
8.) Whether Wal-Mart was reasonable when it temporarily suspended Ms. Vicknair’s workers’ compensation benefits in October of 2008; and
9.) Whether Ms. Vicknair is entitled to penalties and attorney fees on all above-listed issues.

At the conclusion of the evidence, the matter was submitted to the workers’ compensation judge (“WCJ”) with post-trial briefs from the respective parties, due fifteen working days from the date of trial. An extension for briefs was granted, and the matter was taken under advisement on August 1, 2011. A judgment was due within 45 days.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882-83 (La. 1993).

In order for a claimant to be entitled to recover workers’ compensation benefits, he must prove, by a preponderance of the evidence, that a work-related accident occurred | sand that an injury was sustained. In certain events a worker’s testimony is sufficient to discharge the burden of proving an “accident,” provided that two elements are first satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the workers testimony is corroborated by the circumstances surrounding the alleged incident, Carter v. Lake view Regional Medical Center, 04-1794, p. 4 (La.App. 1 Cir. 9/23/05), 923 So.2d 686, 688. See also Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La. 1992).

Ms. Vicknair’s testimony at trial was not credible; and the overwhelming evidence presented by Wal-Mart, including numerous medical records, directly contradicted her trial testimony. Ms. Vicknair’s medical history documented lower back complaints prior to the accident, dating back at least to January 27, 2005. In this rare instance, the WCJ had the benefit of reviewing lumbar MRI scans obtained on June 20, 2006, prior to the accident, with those taken on August 31, 2007, shortly after the accident. It was the consensus of opinion from all three neurosurgical experts that these scans did not reveal any significant changes in the lumbar discs at issue.

In addition, Ms. Vicknair testified that she had a subsequent fall in May 2008, in which her right leg gave out. At trial, Ms. Vicknair denied any earlier falls in which her right leg gave out prior to the August 23, 2007 accident at Wal-Mart. On cross-examination, Ms. Vicknair was confronted with a January 27, 2005 record from Lallie Kemp Medical Center that gave a history of a fail in which her “Right leg gave out today.”

The medical record most damaging to Ms. Vicknair’s credibility was perhaps the “Medical Psychology Consulting Pain Questionnaire” contained in the records of Dr. John Boutte, Ms. Vicknair’s treating psychiatrist. This document, completed in connection with a pre-accident visit on April 18, 2006, noted that Ms. Vicknair had complaints of pain in her lower back and right leg that began about four years earlier. At the time, Ms. Vicknair attributed her complaints of pain to having fallen many times while earning a living stripping and buffing floors.

lfiIn addition to her complaints of chronic lower back pain, Ms. Vicknair also complained to her general practitioner, Dr. Talbot, of depression and the need for weight loss prior to the accident between September 5, 2005 and July 31, 2005.

Accordingly, the WCJ concluded in her judgment that “[claimant Sheila Vicknair did not carry her burden of proof that she suffered a work-related accident that aggravated a pre-existing lumbar condition, caused injury to her knee or aggravated her mental condition.”

After a thorough review of the record, we find no error in the findings of the WCJ. Accordingly, we affirm the decision of the WCJ and assess all costs associated with this appeal against the claimant, Sheila Vicknair.

AFFIRMED.

      . In his deposition testimony, Ms. Vicknair’s treating physician Dr. Adrian Talbot noted that Ms Vicknair 5' 1" tall and weighed between 239 and 248 pounds.