author: WELCH, J.

text:
    STATE of Louisiana v. Albert L. HUEY.
    No. 2013 KA 1227.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 18, 2014.

      Hillar C. Moore, III, D.A., Dylan C. Alge, Asst. D.A., Baton Rouge, LA, for Appellee, Plaintiff-State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Appellant, Defendant-Albert Huey.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   WELCH, J.

|j>The defendant, Abert L. Huey, was charged by bill of information with armed robbery, a violation of La. R.S. 14:64. The defendant pled not guilty and, following a jury trial, was found guilty as charged. The defendant filed a motion for postverdict judgment of acquittal, which was denied. He was sentenced to thirty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating three assignments of error. We affirm the conviction and sentence.

FACTS

On the evening of November 20, 2010, Jennifer Moore went to Maeknell Christopher’s trailer on 68th Avenue in Scotland-ville (Baton Rouge). Moore, who knew Christopher, asked if he could loan her some money. Christopher gave her $5.00. Moore said she was going to the store, then left the trailer. About fifteen minutes later, Moore returned to the trailer with the defendant, whom Christopher did not know. Moore asked Christopher for more money. Christopher surmised that when Moore left with the $5.00, she would soon return asking for more money. Thus, he hid his money in his sock and told Moore he had no more money when she returned asking for more. Apparently not believing Christopher, Moore began searching his pockets for money. As Christopher began struggling to keep Moore’s hands off of him, the defendant approached and told Christopher that if he had something to give it to Moore. The defendant then lifted his shirt to reveal a knife handle protruding from his waistband. Christopher gave Moore $155.00 from his sock. Moore and the defendant began arguing over the money, and the defendant took the money from her. The defendant and Moore left the trailer. Moore had also taken Christopher’s cell phone. Thereafter, Christopher drove to Rthe fourth district police station to file a complaint. During the course of their investigation, the police interviewed Moore, who directed them to the defendant’s house. Both the defendant and Moore lived only a few blocks from Christopher.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues the evidence was insufficient to support the conviction for armed robbery. Specifically, the defendant contends that he did not take Christopher’s money by force or intimidation, and that he was not a principal to Moore’s taking of the money.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La.C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La.11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La.App. 1st Cir.6/21/02), 822 So.2d 141,144.

Louisiana Revised Statute 14:64 provides in pertinent part:

A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

The parties to crimes are classified as principals and accessories after the 4fact. La. R.S. 14:23. Principals are all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime. La. R.S. 14:24. Only those persons who knowingly participate in the planning or execution of a crime are principals. An individual may be convicted as a principal only for those crimes for which he personally has the requisite mental state. See State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427, 428 (per curiam ). The State may prove a defendant guilty by showing that he served as a principal to the crime by aiding and abetting another. Under this theory, the defendant need not have actually performed the taking to be found guilty of a robbery. State v. Smith, 513 So.2d 438, 444-45 (La.App. 2nd Cir.1987). Further, a defendant convicted as a principal need not have personally held a weapon to be found guilty of armed robbery. State v. Dominick, 354 So.2d 1316, 1320 (La.1978). One who aids and abets in the commission of a crime may be charged and convicted with a higher or lower degree of the crime, depending upon the mental element proved at trial. State v. Holmes, 388 So.2d 722, 726 (La.1980).

Armed robbery is a general intent crime. In general intent crimes, the criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal. State v. Payne, 540 So.2d 520, 523-24 (La.App. 1st Cir.), writ denied, 546 So.2d 169 (La.1989). To convict a defendant of armed robbery, the State is required to prove: (1) a taking; (2) of anything of value; (3) from a person or in the immediate control of another; (4) by the use of force or intimidation; (5) while armed with a dangerous weapon. State v. Jeselink, 35,189 (La.App. 2nd Cir.10/31/01), 799 So.2d 684, 690.

While the defendant does not dispute he was present during the “giving” of the money by Christopher to Moore, he asserts that no taking occurred and that he |fiwas not a principal because the State failed to prove Moore had a plan to rob Christopher. According to the defendant, Christopher provided Moore with money and she provided him with “sex, drugs, or whatever.” Thus, since there was a giving of money to Moore and she failed “to follow through on her part of the bargain,” no taking occurred. The defendant further asserts that “the giving of the money” [taking] was not the result of force or intimidation.” According to the defendant, Christopher gave Moore the money in the bedroom while the defendant waited in the living room. The defendant acknowledges that Christopher testified that the defendant told him, “If you got something, give it to her,” then lifted his shirt to reveal “a black handle sticking from his waistband,” but maintains that he took nothing from Christopher and made no demands for money. According to the defendant, Christopher was not intimidated or threatened, and he did not react to his alleged observation of a handle. Regarding the principal issue, the defendant asserts the State did not prove he was a principal to Moore’s “dispute with” Christopher, and that its case rested on “guilt by association” based on the defendant’s merely being with Moore.

Testimony at trial established that Moore and the defendant went to Christopher’s trailer, after Moore had earlier gone by the trailer and gotten $5.00 from Christopher. Christopher, knowing that Moore was probably coming back for more money, hid his money in his sock. When Moore asked for money, Christopher told her he did not have any. At this point, Moore began frisking Christopher, looking for money. While Christopher was trying to stave off Moore, the defendant approached them and told Christopher that if he had any money on him to give it to Moore. Christopher and Moore went into the bedroom, where Christopher gave Moore the money. Detective Ira Roberts, with the Baton Rouge Police Department, who interviewed Christopher after the robbery, testified that Christopher told him that the defendant raised his shirt, showed him a knife he had | ñstuck in his waistband, and told him not to give Moore any trouble and give her the money. Christopher testified that when the defendant revealed the knife, he feared for his life, thought it was of no use to get “hurt over nothing,” and gave Moore the $155.00 that he had. When Christopher and Moore moved back into the living room, Christopher observed the defendant and Moore argue over the money. After several minutes of squabbling, the defendant took control of the money. The defendant and Moore then left the trailer. Moore had also taken Christopher’s cell phone. Christopher testified that he did not have a sexual relationship with Moore; however, Detective Roberts testified that he and Corporal Donald Johnson spoke to Christopher after the robbery. Detective Roberts’s report indicated that Christopher advised Corporal Johnson that “he has a sexual relationship with the suspect, Jennifer Moore.”

The foregoing facts, as accepted by the trier of fact, clearly indicated that an armed robbery took place and, specifically, that acting in concert with Moore, the defendant, through intimidation, took Christopher’s money. The defendant was not merely “present” in the house, as suggested by him in his brief. Rather, he was an active participant in the robbery. In revealing a weapon and telling the victim to give Moore the money, the defendant aided and abetted Moore in taking from Christopher money that was in his immediate control. We note, as well, that despite the defendant’s assertion that Christopher merely gave the money to Moore, there was clearly a taking as contemplated under La. R.S. 14:64(A). After refusing, both verbally and physically, to give Moore the money, Christopher finally relinquished his money only after the defendant made known to him that he was armed with a knife and told him to give the money to Moore. The defendant (and Moore) clearly created an atmosphere of fear and intimidation. See State v. Quac Tran, 2008-1103 (La.App. 4th Cir.8/13/09), 18 So.3d 165, 171-72, writ denied, 2009-2247 (La.4/16/10), 31 So.3d 1053. When a defendant creates an |7atmosphere of intimidation, prompting the victim to reasonably react with fear for his life, an armed robbery conviction is justified. See State v. Boyance, 2005-1068 (La.App. 3rd Cir.3/1/06), 924 So.2d 437, 440-42, writ denied, 2006-1285 (La.11/22/06), 942 So.2d 553.

The jury heard all of the testimony and found the defendant guilty as charged. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder’s determination of guilt. State v. Taylor, 97-2261 (La.App. 1st Cir.9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La.App. 1st Cir.1985). The testimony of the victim alone is sufficient to prove the elements of the offense. State v. Orgeron, 512 So.2d 467, 469 (La.App. 1st Cir.1987), writ denied, 519 So.2d 113 (La.1988).

When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La.1987). In finding the defendant guilty, the jury clearly rejected the defense’s theory of innocence of non-participation in the armed robbery and reasonably concluded that he was a willing, active participant |Rin the armed robbery. See Moten, 510 So.2d at 61. See also La. R.S. 14:24; Smith, 513 So.2d at 444-45.

After a thorough review of the record, we find that the evidence supports the jury’s verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of armed robbery. See State v. Calloway, 2007-2306 (La.1/21/09), 1 So.3d 417, 418 (per curiam).

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the defendant argues that the 11-1 non-unanimous verdict violates the United States Constitution. Specifically, the defendant contends that La.C.Cr.P. art. 782(A), as applied to this case, violates his right to due process.

Whoever commits the crime of armed robbery shall be imprisoned at hard labor. La. R.S. 14:64(B). Louisiana Constitution article I, § 17(A) and Louisiana Code of Criminal Procedure article 782(A) provide that in cases where punishment is necessarily confinement at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate a defendant’s right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726 (La.1982); State v. Shanks, 97-1885 (La.App. 1st Cir.6/29/98), 715 So.2d 157, 164-65.

The defendant suggests that subsequent legal developments call Apodaca into serious question and allow this court to find that Article 782 is | ¡¡unconstitutional. In support of this assertion, the defendant cites the decisions of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). The defendant’s reliance on this jurisprudence is misplaced. Blakely addressed the issue of sentence enhancement made by a trial court, and had no bearing on the unconstitutionality of non-unanimous verdicts. See State v. Smith, 2009-100 (La.App. 5th Cir.8/25/09), 20 So.3d 501, 507-08, writ denied, 2009-2102 (La.4/5/10), 31 So.3d 357. The McDonald Court, while holding that the Second Amendment right to keep and bear arms is fully applicable to the States through the Fourteenth Amendment, did nothing to alter the well-established jurisprudence holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials. See McDonald, 130 S.Ct. at 3035 n. 14. The McDonald Court specifically stated that, although the Sixth Amendment requires unanimous jury verdicts in federal criminal trials, it does not require unanimous jury verdicts in state criminal trials. See McDonald, 130 S.Ct. at 3035 n. 14; State v. Bishop, 2010-1840 (La.App. 1st Cir.6/10/11), 68 So.3d 1197, 1205, writ denied, 2011-1530 (La.12/16/11), 76 So.3d 1203. The defendant’s argument has been repeatedly rejected by this court. See State v. Smith, 2006-0820 (La.App. 1st Cir.12/28/06), 952 So.2d 1, 23-24, writ denied, 2007-0211 (La.9/28/07), 964 So.2d 352; State v. Caples, 2005-2517 (La.App. 1st Cir.6/9/06), 938 So.2d 147, 156-57, writ denied, 2006-2466 (La.4/27/07), 955 So.2d 684.

The defendant also asserts in his brief that the unanimity requirement serves as a vital protection against insidious influences, noting that Louisiana adopted its non-unanimous jury verdict rule in its 1898 constitutional convention, whose mission it was “to establish the supremacy of the white race in this state.” (Defendant’s brief, pp. 15-16). Our supreme court in State v. Bertrand, 2008-2215 (La.3/17/09), 6 So.3d 738, addressed this issue over four years ago: “Finally, 110defendants argue that the use of non-unanimous verdicts have an insidious racial component, allow minority viewpoints to be ignored, and is likely to chill participation by the precise groups whose exclusion the Constitution has proscribed.” Id. at 742. The Bertrand Court found that a non-unanimous twelve-person jury verdict is constitutional and that Article 782 does not violate the Fifth, Sixth, and Fourteenth Amendments. Id. at 743. Regarding the equal protection argument that such verdicts have an insidious racial component, the Bertrand Court noted that the issue had already been decided as meritless by a majority of the United States Supreme Court in Apodaca. Id.

Thus, while Apodaca was a plurality rather than a majority decision, the United States Supreme Court, as well as other courts, has cited or discussed the opinion various times since its issuance and, on each of these occasions, it is apparent that its holding as to non-unanimous jury verdicts represents well-settled law. Bertrand, 6 So.3d at 742-43. Thus, La. C.Cr.P. art. 782(A) is not unconstitutional and, therefore, not in violation of the defendant’s constitutional rights. See State v. Hammond, 2012-1559 (La.App. 1st Cir.3/25/18), 115 So.3d 513, 515, writ denied, 2013-0887 (La.11/8/13), 125 So.3d 442.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, the defendant argues his sentence is unconstitutionally excessive. Specifically, the defendant contends that the trial court failed to consider several mitigating factors.

The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the |n offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La.App. 1st Cir.5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion, See State v. Holts, 525 So.2d 1241, 1245 (La.App. 1st Cir.1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. C.Cr.P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002-2231 (La.App. 1st Cir.5/9/03), 849 So.2d 566, 569.

The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La.1982). The trial judge should review the defendant’s personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d. 1049, 1051-52 (La.1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49, 50 (per curiam).

In the instant matter, the defendant, facing a maximum sentence of ninety-nine years at hard labor, was sentenced to thirty years at hard labor. See La. R.S. 14:64(B). The defendant argues in his brief that the trial court overemphasized his | ^criminal past, that he played an insignificant role in the robbery, and that no injuries were sustained by Christopher. Moreover, the defendant suggests that Christopher bears some responsibility for the situation based on his activities and relationship with Moore.

It is clear in its reasons for sentence that the trial court thoroughly considered La.C.Cr.P. art. 894.1, including any mitigating factors, in arriving at an appropriate sentence. The trial court noted that the presentence investigation report recommended the maximum sentence. The defendant refused to admit guilt and asked that the trial court not throw his life away because he has friends and family who care for him, and he is not a menace to society. Regarding the defendant’s criminal history, the trial court stated in pertinent part:

The defendant has the following juvenile record. He was arrested on February 9, 1974, and charged with theft. He was counseled and warned at intake. The defendant has an extensive criminal record as an adult which includes the following: On or about May 16, 1985, he was charged with simple robbery. Those charges were nolle prossed on October of 1986. On or about June 15, 1985, the defendant was arrested for illegal carrying of a weapon. He got 180 days in parish prison for that.
On or about May 5, 1988, the defendant was arrested and charged with possession of cocaine. He pled guilty and was sentenced to four years D.O.C. His parole was revoked on February 24, 1994.
On or about July 22,1997, the defendant was arrested and charged with possession with intent to distribute cocaine. On December 8, 1997, the defendant pled guilty to possession of cocaine in docket number 9-97-565. He received a three year suspended sentence and was placed on probation. His probation was revoked. On or about February 12, 1999, the defendant was arrested and charged with possession of schedule II. Those charges were dismissed.
On or about November 10, 2001, the defendant was arrested and charged with possession of a firearm by a convicted felon. The defendant pled guilty on July 8, 2002, to attempted felon in possession of a firearm and was sentenced to three years D.O.C. His parole was revoked on March 24, 2005, and February 27, 2007. On or about September 14, 2006, the defendant was arrested and charged with simple burglary. On November 13, 2007, the defendant pled guilty to illegal possession of stolen things greater than $500 and was sentenced to three years D.O.C. His parole was terminated satisfactorily on September 14, 2009. On or about November 24, 2010, he was [ ] arrested for the instant offense. Despite all that in his | isstatement, he said he was not a menace to society.
Well, it’s amazing to me anybody with that kind of a criminal history and a 5th felony offender can say you’re not a menace to society. I don’t know whether your neighbors consider you, but everybody else must, because that just took me ten minutes to read it into the record.
The Office of Probation and Parole notes the defendant’s criminal record reveals a lengthy criminal history with many arrests for crimes against the person. The defendant’s record reveals he has failed to adjust to probation and parole. Furthermore, the defendant has not taken responsibility for his action. He blames the court for faulty jury instruction which resulted in his guilty conviction. Their office recommends that the defendant be sentenced to 99 years, without benefit of probation, parole, or suspension of sentence. I agree with the Office of Probation and Parole that he’s got a lengthy criminal history that I just read, and in a lot of those we see crimes of robbery arrests, felon in possession, illegal carrying of weapons, in addition to the drugs, and you may be well liked and all that in your neighborhood, but I can tell you one person that we know of that would think that you’re a menace to the society and that’s the victim in this case.
For the above reasons the court finds the defendant is in need of correctional treatment in a custodial environment.

Considering the trial court’s review of the circumstances, the nature of the crime, the defendant’s extensive criminal history, and the fact he was sentenced to less than one-third the maximum sentence, we find no abuse of discretion by the trial court. Accordingly, the sentence imposed by the trial court is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

WHIPPLE, J. concurs.

      . It appears from the record that the case of codefendant, Jennifer Moore, was severed from the instant case.


source: Caselaw Access Project

author: McClendon, J.

license: Public Domain

text:
    Patricia A. ANDREWS & Darin D. Andrews v. OUR LADY OF THE LAKE ASCENSION COMMUNITY HOSPITAL, INC. d/b/a St. Elizabeth Hospital & XYZ Insurance Company.
    No. 2013 CA 1237.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 18, 2014.

      Allen V. Davis, Gordon Dallon Bush, II, Gonzales, Louisiana, for Plaintiffs/Appellants Patricia A. Andrews and Darin D. Andrews.
    Thomas R. Temple, Jr., Saul R. New-some, Baton Rouge, Louisiana, for Defendant/Appellee Our Lady of the Lake Ascension Community Hospital, Inc. d/b/a St. Elizabeth Hospital.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McClendon, J.

12Plaintiffs/appellants, Patricia Andrews and Darin Andrews, appeal the trial court’s grant of an exception raising the objection of prematurity filed by the defendant/appellee, Our Lady of the Lake Ascension Community Hospital, Inc. d/b/a St. Elizabeth Hospital (“St. Elizabeth Hospital”). The trial court concluded that plaintiffs’ suit was premature because they had not submitted their claims to a medical review panel as required by the Medical Malpractice Act (“MMA”), LSA-R.S. 40:1299.41 et seq. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 16, 2012, Patricia Andrews and Darin Andrews filed a Petition for Damages, naming St. Elizabeth Hospital as a defendant. Plaintiffs allege that on November 26, 2011, Mrs. Andrews was admitted to St. Elizabeth Hospital for an apparent seizure she suffered earlier that day. Following treatment and at the time of her discharge from St. Elizabeth Hospital, plaintiffs allege that Mrs. Andrews “was unconscious and/or asleep, and unable to ambulate on her own.” Plaintiffs also allege that hospital staff attempted to move Mrs. Andrews from her bed to a hospital wheelchair, but the “hospital staff dropped [Mrs. Andrews] on the ground, causing [Mrs. Andrews] to shatter her foot and ankle.”

In response to plaintiffs’ petition, St. Elizabeth Hospital filed an “Exception of Prematurity” wherein it asserted that the plaintiffs’ action was premature because the plaintiffs had not submitted then-claims to a medical review panel as required by the MMA, prior to instituting their action in the district court.

Plaintiffs subsequently filed a “First Amending and Supplemental Petition for Damages,” alleging that the “bed and/ or wheelchair which caused [Mrs. Andrews’] injuries was/were unreasonably dangerous in its normal use, and therefore defective.” Plaintiffs further alleged, as previously alleged in their original petition, that their claims arose under “general negligence” rather than “medical malpractice.”

| .(¡Following a hearing, the trial court granted St. Elizabeth Hospital’s exception raising the objection of prematurity and dismissed plaintiffs’ claims without prejudice. Plaintiffs have appealed, asserting that because their allegations of liability and theories of negligence fall outside of the purview of the MMA, the trial court erred in concluding that their action was premature.

DISCUSSION

A medical malpractice claim against a qualified health care provider is subject to dismissal if the claim has not been first presented to a medical review panel. LSA-R.S. 40:1299.47(A)(1)(a). The dilatory exception of prematurity is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for an opinion by a medical review panel before filing suit against the provider. Rivera v. Bolden’s Transp. Serv., Inc., 11-1669 (La.App. 1 Cir. 6/28/12), 97 So.3d 1096, 1099. If a lawsuit against a health care provider covered by the MMA has been commenced in a court and the complaint has not been first presented to a medical review panel, the exception of prematurity must be sustained, and the claimant’s suit must be dismissed. Id.

The burden is on the defendant to prove prematurity and initial immunity from suit as a qualified health care provider under the Act. Id. The defendant must also show that it is entitled to a medical review panel, because the allegations fall within the MMA. Id. Where no evidence is presented at the trial of the dilatory exception of prematurity, the court must base its decision on the exception on the facts alleged in the petition, and all allegations therein must be accepted as true. Rivera v. Bolden’s Transp. Serv., Inc., 97 So.3d at 1100.

The MMA applies only to “malpractice,” and all other tort liability on the part of a qualified health care provider is governed by general tort law. Id. However, the fact that the plaintiff may have made allegations sounding in both Rmedical malpractice and general tort law does not remove her petition from the penumbra of the MMA, if a claim for medical malpractice is stated. Id.

The MMA defines “malpractice,” in pertinent part, as:

[A]ny unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient.... (Emphasis added.)

Louisiana Revised Statutes 40:1299.41(A)(13).

Plaintiffs allege that hospital staff dropped Mrs. Andrews when they attempted to move her from her bed to a wheelchair. This clearly falls within “malpractice” as defined in LSA-R.S. 40:1299.41(A)(13). Plaintiffs contend, however, that the alleged acts do not satisfy the six-factor test for determining whether an act is “malpractice” for purposes of the MMA as set forth by the Louisiana Supreme Court in Coleman v. Deno, 01-1517, 01-1519, 01-1521 (La.1/25/02), 813 So.2d 303.

The Third Circuit addressed this same argument in McMillian v. Westwood Manor Nursing Home, Inc., 12-54 (La.App. 3 Cir. 5/30/12), 92 So.3d 623, writ denied, 12-1857 (La.11/9/12), 100 So.3d 839. In McMillian, two hospital attendants attempted to transfer a patient following his surgery, but one of the attendants lost his balance and the patient’s head struck a wall. The patient and his wife filed suit in district court, alleging that the patient, as a ^result of the accident, had to undergo immediate surgery and' sustained severe and permanent injuries. The defendant/qualified health care provider filed an exception raising the objection of prematurity, urging that the plaintiffs’ claims had not first been submitted to a medical review panel in accordance with the MMA. The plaintiffs contended that the alleged acts of the health care provider do not satisfy the “malpractice” test set forth in Coleman v. Deno. The Third Circuit, finding the test inapplicable, reasoned:

We note that the allegations in the petition assert facts that fall squarely within the definition of “malpractice” in La.R.S. 40:1299.41(A)(13). As a civilian jurisdiction, we look first to the plain language of the statute, and only resort to interpretive analysis when there is some ambiguity. La. Civ. Code art. 9. We find no ambiguity in La. R.S. 40:1299.41(A)(13). Claims involving the handling of a patient, including loading and unloading, are covered by the MMA and must be submitted to a medical review panel.

McMillian, 92 So.3d at 625.

We likewise find no ambiguity in LSA-R.S. 40:1299.41(A)(13) and any- claims involving “handling of a patient, including loading and unloading,” are covered by the MMA and must be submitted to a medical review panel. It is immaterial that Mrs. Andrews may have been discharged at the time hospital staff attempted to move her. Further, plaintiffs’ allegations that the bed and/or wheelchair were defective do not remove her petition from the penumbra of the MMA, given that a claim for medical malpractice is stated. Rivera v. Bolden’s Tramp. Serv., Inc., 97 So.3d at 1100.

CONCLUSION

We conclude that the trial court did not err in granting the exception raising the objection of prematurity. Accordingly, we affirm the March 18, 2018 judgment. Costs of this appeal are assessed to plaintiffs, Patricia Andrews and Darin Andrews.

AFFIRMED.

      . The parties do not dispute that St. Elizabeth Hospital is a qualified health care provider under the MMA.

      . In Coleman v. Deno, the Louisiana Supreme Court adopted the following six-factor test for determining whether a negligent act by a qualified health care provider constitutes "malpractice” and is covered by the MMA:
      [1] whether the particular wrong is 'treatment related' or caused by a dereliction of professional skill,
      [2] whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached,
      [3] whether the pertinent act or omission involved assessment of the patient's condition,
      [4] whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
      [5] whether the injury would have occurred if the patient had not sought treatment, and
      [6] whether the tort alleged was intentional.
      813 So.2d at 315-16.

      . Further, even if we were to apply the factors set forth in Coleman, 813 So.2d at 315-16, the result would remain the same.


author: CRAIN, J. WELCH, J.,

text:
    Shantell WASHINGTON and Alex Ducre, Individually and on behalf of Alex Ducre, Jr. (Decedent) v. Dr. Phyllis D. WARING and Slidell Memorial Hospital and Medical Center.
    No. 2013 CA 0078.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 18, 2014.

      Delbert G. Talley, David L. Thornhill, Covington, Louisiana, for Plaintiffs/Appel-lees, Shantell Washington and Alex Ducre, Sr.
    C. William Bradley, Jr., Natalie J. De-karis, New Orleans, Louisiana, for Defendant/Appellant, Phyllis D. Waring, M.D.
    Thomas H. Wartelle, Randall L. Champagne, Baton Rouge, Louisiana, for Defendant/Appellant, Slidell Memorial Hospital and Medical Center.
    Before PARRO, McDONALD, WELCH, CRAIN, & THERIOT, JJ.
   CRAIN, J.

12This is the appeal of a judgment in a medical malpractice action arising out of the death of an infant. We reverse in part, vacate in part, amend, and as amended, affirm.

FACTS AND PROCEDURAL HISTORY

Alex Ducre, Jr. was born at Slidell Memorial Hospital and Medical Center on Wednesday, October 11, 2000, at 8:41 a.m. Shantell Washington went into premature labor and gave birth to Alex at a gestational age of 35 weeks and 6 days. Dr. Phyllis D. Waring was the attending pediatrician, providing coverage for Washington’s chosen pediatrician, Dr. Helen Stevenson.

Washington’s membrane ruptured approximately 37 hours before Alex was born, placing Alex at risk for infection. While Dr. Waring’s initial examination of Alex did not reveal any significant abnormalities, Dr. Judith Zatarain, a neonatologist, was consulted due to the infection risk. Dr. Zatarain’s examination shortly after Alex’s birth revealed a well “near-term” baby. She recommended serial CBC blood work to monitor for any infection. No infection developed, and Dr. Zatarain was not further involved in Alex’s care during this hospitalization.

Dr. Waring examined Alex Thursday morning and he appeared to be doing well. On Thursday night at 9:00 p.m., an attending nurse noted that Alex, for the first time, was jaundiced, a condition causing a yellowing of the skin. The medical testimony established that jaundice is a manifestation of excessive bilirubin in the bloodstream, or “hyperbilirubinemia,” and often occurs in newborn infants until the liver develops sufficiently to filter the bilirubin from the infant’s system. Although jaundice is not uncommon in newborn infants, the timing of its onset is important, particularly with a premature infant, because unresolved hyperbilirubinemia can lead to a serious condition called “kemic-terus,” a form of brain damage.

|sThe nurse did not notify Dr. Waring of the jaundice. However, Dr. Waring testified that nurses normally would not immediately report such a finding unless it was accompanied by other symptoms such as sleepiness, not eating, not drinking, or not voiding, none of which was identified by the nurse. Dr. Waring saw no need for the nurse to notify her that night since she would be examining Alex the following morning.

Dr. Waring examined Alex on Friday, October 13, 2000, at 9:00 a.m., the day he was discharged from the hospital. She conducted a “head to toe” examination and found no abnormalities, but noted “mild jaundice.” Alex and Washington were discharged with instructions to make a followup appointment with Dr. Stevenson and to contact Dr. Stevenson if Alex’s condition changed. Washington was also instructed to place Alex in indirect sunlight periodically for no more than thirty minutes, which, according to the medical evidence, helps remove excessive bilirubin from the body. According to Washington, there were no particular concerns expressed about Alex when he was discharged from the hospital.

After discharge, Alex was placed in indirect sunlight as the nurse instructed, and his physical condition appeared fine until Monday afternoon, October 16, 2000. At that time, Washington noticed that Alex was more sleepy, was not nursing as long, and had developed yellow spots in his eyes. Concerned, she called the hospital nursery and spoke to a nurse who asked if Alex was eating and voiding. Washington confirmed that he was, and the nurse advised her to keep a previously scheduled appointment the following morning with the lactation nurse and to call if anything changed.

The next morning Washington noticed Alex’s skin was more yellow, almost orange, and the whites of his eyes were mostly yellow. She presented Alex at the scheduled appointment with the lactation nurse, who noted that Alex was [Jaundiced all over, lethargic, and had poor muscle tone. Washington was told to bring Alex immediately to Dr. Stevenson’s office. Dr. Stevenson then performed a lumbar puncture and admitted Alex to a pediatric intensive care unit with an extremely high bilirubin level of 44.8.

An exchange transfusion was attempted but did not work, and the next day Alex was transferred to Children’s Hospital in New Orleans, where he underwent an exploratory laparotomy and other procedures. One of his lungs collapsed, his kidneys began to fail, and he was placed on life support. His condition became terminal, and the decision was made to remove the life support. Alex died on October 20, 2000, nine days after his birth. The cause of death was kernicterus, secondary to hyperbilirubinemia.

On October 2, 2001, Washington and Alex’s father, Alex Ducre, Sr., filed a request for a medical review panel to review the care provided by one of the physicians at Children’s Hospital. The claim was amended on May 15, 2002, to request review of the care provided by Dr. Waring and Slidell Memorial Hospital. This medical review panel rendered a decision on May 29, 2003, with two members finding no breach of the standard of care by Slidell Memorial Hospital or Dr. Waring, and one member, Dr. Harold R. York, finding a breach of the standard of care by both providers that was a factor in the resultant damage. Although Dr. York found three deviations from the standard of care by Dr. Waring, he ultimately conceded that, in his opinion, only one of those deviations contributed to Alex’s death, specifically, Dr. Waring’s failure to obtain a “bilirubin on a clinically jaundiced premature infant, 48 hours old.” Dr. York also found that Slidell Memorial Hospital deviated from the standard of care because the attending nurses should have notified Dr. Waring of Alex’s “abnormal respiratory rate of 68 at the time of discharge.”

DAfter the parties learned that one of the original panel members had a prior employment relationship with Dr. Waring, another panel was formed to review the claims. On January 16, 2007, the new panel found no deviations from the standard of care by either Dr. Waring or the hospital. The reasoning as to Dr. Waring was “[i]t was not the standard of care in 2000 to order a baseline bilirubin in a 48-hour-old infant with minimal jaundice.”

Washington and Ducre then sued Dr. Waring and Slidell Memorial Hospital asserting breaches of the standard of care in the treatment of Alex that caused or contributed to his death. Both defendants requested a trial by jury, however, Washington and Ducre filed into the record the following stipulation signed by them and their attorney:

Now Into Court, through undersigned counsel, come Shantell Washington and Alex Ducre Sr., Individually and on behalf of Alex Ducre, Jr., who hereby stipulate that the cause of action of each plaintiff does not exceed $50,000.00 exclusive of interest and costs.

The matter proceeded to a two-day trial by a judge. The plaintiffs relied upon the testimony of Dr. York, who opined that Dr. Waring deviated from the standard of care by not determining Alex’s bilirubin level through a blood test prior to his discharge and that Washington should have been instructed at discharge to follow up with her pediatrician the next day. According to Dr. York, Dr. Waring’s deviations from the standard of care caused or contributed to Alex’s death. Regarding the hospital, Dr. York testified that the nursing staff breached the standard of care by failing to notify Dr. Waring of the first observation of jaundice at approximately 37 hours of age and of the rise in Alex’s respiratory rates above 60 breaths per minute.

The defendants countered with the opinion of the second medical review panel and the testimony of Dr. Waring, Dr. Nicholas Danna, III, and Dr. Zatarain. |fiThese doctors testified that the standard of care in 2000 did not require a bilirubin test prior to Alex’s discharge.

After taking the matter under advisement, the trial court rendered judgment against both defendants and in favor of: (1) Washington in the amount of $50,000.00, (2) Alex Ducre, Sr. in the amount of $50,000.00, and (3) the “Estate of Alex Ducre, Jr.” in the amount of $50,000.00, The awards included interest from the date of judicial demand. In written reasons, the trial court found that Dr. York’s testimony was the most credible and agreed that Dr. Waring breached the standard of care by not ordering a biliru-bin test for a “jaundiced, high-risk, premature infant,” and by failing to instruct Washington to have Alex examined by a pediatrician within two to three days of his hospital discharge. The trial court found that Slidell Memorial Hospital breached the standard of care when its nurses failed to mention to Dr. Waring the first observation of jaundice and failed to report that Alex’s “temperature had not stabilized,” both of which “delayed treatment of Alex and contributed substantially to his death.”

Dr. Waring appealed the judgment and assigned the following as errors: (1) the award of $50,000.00 to “the Estate of Alex Ducre, Jr.,” (2) the failure to allocate fault among the defendants, (3) the finding that the standard of care required Dr. Waring to order a bilirubin test, (4) the finding that Dr. Waring’s discharge instructions were inadequate, and (5) the failure to impose comparative fault on Washington. Slidell Memorial Hospital appealed and assigned the following as errors: (1) the finding that Alex had “temperature instability” and that the hospital breached the standard of. care by not reporting it to the treating physician, (2) the finding that Sli-dell Memorial Hospital breached the standard of care in failing to notify Dr. Waring of the appearance of jaundice, and (3) the finding that the nursing staffs failure to notify Dr. Waring of the jaundice ^contributed substantially to the infant’s death. The hospital also assigned as error the award to the “Estate of Alex Ducre, Jr.”

Washington and Ducre answered the appeal and asserted that the trial court erred in awarding legal interest from the date of judicial demand instead of the date of the filing of the medical review panel.

LAW AND ANALYSIS

A. Fault and Causation

We first consider the assignments of error concerning the trial court’s findings of fault and causation. In a medical malpractice action, the plaintiff must prove by a preponderance of the evidence the applicable standard of care, a violation of that standard of care, and a causal connection between the violation of the standard of care and the claimed injuries. Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228, 1233; see also La. R.S. 9:2794.A. Resolution of each of these inquiries are determinations of fact which should not be reversed on appeal absent manifest error. Martin v. E. Jefferson Gen. Hosp., 582 So.2d 1272,1276 (La.1991).

Expert testimony is generally required to establish the applicable standard of care and whether that standard of care was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Pfiffner, 643 So.2d at 1233-34. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Adams v. Rhodia, Inc., 07-2110 (La.5/21/08), 983 So.2d 798, 806. Further, where the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact. Adams, 983 So.2d at 806-807. Indeed, where the fact-finder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. Adams, 983 So.2d at 807. 18This rule applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony. Adams, 983 So.2d at 807. Where expert witnesses present differing testimony, it is the responsibility of the trier-of-fact to determine which evidence is the most credible. Graf v. Jim Walter Homes, Inc., 97-1143, (La.App. 1 Cir. 5/15/98), 713 So.2d 682, 691.

The defendants argue that the trial court should have given greater weight to the testimony of the defense experts because they were more qualified and two were treating physicians. In its reasons for judgment, the trial court stated, “WZhile Defendants’ expert witnesses make good points, this Court finds Dr. York’s testimony to be the most credible.” We find no abuse of discretion in this determination.

Neither defendant objected to the tender and acceptance of Dr. York as an expert in the field of pediatric care. He practiced in the field of pediatrics in the greater New Orleans area since 1973 and is an associate clinical professor of pediatrics at the LSU School of Medicine. He served as the chief of the pediatric departments for Methodist Hospital and Humana/Lakeland Medical Center. In support of his opinions, he cited excerpts from Nelsons Textbook of Pediatrics, which suggested that a bilirubin test should be performed for a premature infant who developed jaundice within 36 hours of birth. Dr. Danna described Nelsons as an “excellent reference,” and Dr. Zatarain said she would defer to Nelsons “as a standard.”

The plaintiffs also presented a document to Dr. Zatarain bearing her name and captioned “NICU Goals and Objectives 2nd years” that was used for training medical students. Dr. Zatarain acknowledged the document indicated a jaundiced, premature infant should undergo a bilirubin test. One particular area of disagreement among the experts was whether Alex was a higher-risk “premature infant,” or a lesser-risk “near-term” infant. The plaintiffs presented a practice |aguideline from the American Academy of Pediatrics that supported Dr. York’s opinion that an infant born under 37 weeks of gestation was a premature infant.

The expert testimony concerning the standard of care applicable to Dr. Waring was conflicting. The trial court’s responsibility was to determine which evidence was the most credible. Graf, 713 So.2d at 691. The trial court expressly found Dr. York’s testimony more credible, and we must give great deference to that finding. Presented with two permissible views of the evidence, the trial court’s choice between them cannot be manifestly erroneous. Adams, 983 So.2d at 806. Accordingly, we find the trial court did not commit manifest error in accepting Dr. York’s testimony that Dr. Waring’s care deviated from the standard of care and those deviations caused or contributed to Alex’s death.

Dr. York’s testimony concerning Slidell Memorial Hospital was limited to two criticisms: (1) the failure of the attending nurse to notify Dr. Waring of the finding of jaundice at 9:00 p.m. on October 12, 2000, the night before Alex’s discharge; and (2) the failure to notify Dr. Waring when Alex’s respiration rate rose above 60 breaths per minute during the last 23 hours of the hospitalization. In the written reasons for judgment, the trial court found that the hospital staff breached the standard of care by failing to report the jaundice and failing to report that Alex’s “temperature had not stabilized,” but made no findings regarding the respirations.

In reviewing the correctness of the trial court’s judgment against the hospital, we are not limited to the written reasons for judgment. It is well settled that appeals are taken from judgments, not written reasons, and if the trial court reached the proper result, the judgment should be affirmed. Elliott v. Elliott, 10-0755 (La.App. 1 Cir. 9/10/10), 49 So.3d 407, 416 n. 3, writ denied, 10-2260 (La.10/27/10), 48 So.3d 1088. Therefore, we -will examine each of the theories of | ^recovery against the hospital to determine whether the trial court erred in finding the hospital liable.

In a medical malpractice action against a hospital the plaintiff must prove that the defendant owed the plaintiff a duty to protect against the risk involved, that the defendant breached that duty, that the plaintiff suffered an injury, and that the defendant’s actions were a substantial cause-in-fact of the injury Smith v. State through Department of Health & Human Resources Administration, 523 So.2d 815, 819 (La.1988).

First, we find no manifest error in the trial court’s finding that the failure to report the jaundice was a breach of the standard of care. That finding is supported by direct testimony of Dr. York that the attending nurse should have immediately reported this information to Dr. Waring.

Second, there is no basis in the record to support the finding that the nursing staff breached the standard of care by not reporting that Alex’s “temperature had not stabilized.” No testimony was provided by any expert, including Dr. York, that Alex actually experienced temperature instability or that any instability should have been reported to Dr. Waring, The medical record does reflect some fluctuations in Alex’s temperature, but no expert testified that those changes amounted to temperature instability. To the contrary, both Dr. Danna and Dr. Zatarain testified that the changes did not indicate temperature instability. Therefore, we find no basis in the record to support the trial court’s finding that the hospital staff breached the standard of care by not reporting temperature instability.

Third, the record contains evidence that the failure to report the increase in Alex’s respirations was also a breach of the standard of care. Although a point of disagreement among the experts, Dr. York testified that the attending nurses should have informed Dr. Waring of the increased respirations. Consequently, the record contains sufficient evidence to establish two deviations from the standard of care Inby nursing staff at Slidell Memorial Hospital, specifically, the failure to report to Dr. Waring the onset of jaundice and the increased respirations.

In addition to proving a breach of the standard of care, a plaintiff must also establish with adequate evidence a causal connection between the substandard care and the plaintiffs injuries. Pfiffner, 643 So.2d at 1230, Louisiana Revised Statute 9:2794A(3) requires the plaintiff to prove that as a “proximate result” of the defendant’s failure to exercise the required degree of care, “the plaintiff suffered injuries that would not otherwise have been incurred.” Smith, 523 So.2d at 820. Normally, in cases involving patients with complicated medical histories and complex medical conditions, causation is simply beyond the province of lay persons to assess. Pfiffner, 643 So.2d at 1234.

The hospital argues that the trial court erred in finding causation because the record contains no evidence that the nursing staffs failure to report the jaundice and increased respirations to Dr. Waring caused or contributed to Alex’s death. According to the hospital, the plaintiffs failed to offer any proof that such notifications to Dr. Waring “would have changed anything in the course of the infant’s treatment.” We agree.

Dr. York offered no testimony explaining how the nursing staffs deviations from the standard of care caused or contributed to Alex’s death, and no evidence was presented that Dr. Waring would have pursued a different course of treatment if she had been immediately notified of the jaundice or respiratory rates the night before Alex’s discharge. To the contrary, Dr. Waring testified that she examined Alex from “head to toe” the next morning, October 13, 2000, noted the jaundice, and nevertheless considered him a “healthy newborn” because Alex’s vital signs were normal, including his respiratory rate, and he was eating, voiding, and active. Dr. Waring also testified that the prior respiratory rates were documented in the record and were available for her to review when she examined Alex. She 112considered his documented respiratory rates to be within the normal limits, and described the highest rate of 68 as a “one-time change” that “wouldn’t concern me too much unless I examined the baby and saw the baby was having respiratory distress,” which Alex was not experiencing. Aware of this information, Dr. Waring testified that she saw “no reason” to keep Alex in the hospital nor any need to order a bilirubin test,

Given the absence of evidence establishing a causal link between the nursing staffs deviations from the standard of care and Alex’s death, we find that the trial court erred in entering a judgment against Slidell Memorial Hospital. See Harris v. St. Tammany Parish Hosp. Serv. Dist. No. 1, 11-0941 (La.App. 1 Cir. 12/29/11), 2011 WL 6916523 (unpublished), writs denied, 12-0585 and 12-0678 (La.4/20/12), 85 So.3d 1275, 1277 (plaintiff failed to prove cause-in-fact where nurse’s failure to chart medication did not cause patient’s death). Accordingly, we reverse that portion of the judgment in favor of Washington, Ducre, and the Estate of Alex Ducre, Jr. against Slidell Memorial Hospital.

Dr. Waring also assigned as error the trial court’s failure to assign any comparative fault to Washington, arguing that she should have contacted her pediatrician when Alex’s condition appeared to change. Washington testified that she noticed an increase in the yellow coloring on Monday afternoon and that Alex was sleeping more and not nursing as much. She called the nursery at Slidell Memorial Hospital and spoke to a nurse about his condition. After confirming that Alex was still eating and having urine and stool output. Washington was instructed to keep her appointment the next morning with the lactation nurse and to call again if anything changed. Washington followed those instructions and presented Alex | lsto the lactation nurse the next day, who immediately referred them to Dr. Stevenson, who then admitted Alex into the hospital.

We find no abuse of discretion in the trial court’s allocation of no fault to Washington. The fact that she first contacted the hospital as opposed to her pediatrician does not give rise to any fault on her part. When she perceived that Alex’s condition may have changed, she promptly contacted the hospital-the last healthcare provider to treat Alex only a few days earlier. As directed, she reported for her appointment the following morning with Alex. The record establishes that Washington complied with the healthcare provider’s instructions, and acted in a reasonably prudent manner in monitoring her child’s condition and reporting that condition to the providers. This assignment of error has no merit.

B. Award to the Estate of Alex Ducre, Jr.

The trial court awarded $50,000.00 each to Washington, Alex Ducre, Sr., and the “Estate of Alex Ducre, Jr.” No party disputes that the Estate of Alex Ducre, Jr. was not a plaintiff in the proceeding and could not be a plaintiff pursuant to Louisiana Civil Code article 2315.1A(2), which vests the right to pursue a survival action exclusively in Washington and Alex Ducre, Sr.

Counsel for Washington and Ducre acknowledges that the survival action “award should have been [granted] to the parents as [Alex’s] beneficiaries,” but contends that the “award was proper” because the survival action is a separate and distinct cause of action from the wrongful death action. While that distinction is correct, it offers no support for an award to an estate which is neither a party to the proceeding nor capable of enforcing the right to pursue the claim. See La. Civ.Code art. 2315.1A; La.Code of Civ. Pro. art. 685.

To the extent Washington and Ducre suggest that the award to the estate should be re-allocated to them, we note that their answer to the defendants’ appeal was confined to a request to modify the trial court’s award of legal interest and did 1 ]4not include any reference to the trial court’s failure to allocate the estate’s award to them. Louisiana Code of Civil Procedure article 2133A provides that an appellee must state the relief demanded in the answer to the appeal. We have interpreted this article to mean that an answer to an appeal operates as an appeal only from those aspects of the judgment about which the answer complains. Samuel v. Baton Rouge General Medical Center, 98-1669 (La.App. 1 Cir. 2/18/00), 757 So.2d 43, 46, writs denied, 00-1314, 00-1329 (La.6/23/00), 765 So, 2d 1044, 1046. Given the absence in the answer of any demand for relief concerning the damage awards, the appellees’ argument that the trial court’s judgment should be modified to increase their awards is not properly before this court. See Samuel, 757 So.2d at 46.

Accordingly, we vacate that portion of the judgment awarding the “Estate of Alex Ducre, Jr.” the sum of $50,000.00 plus interest.

C. Answer to Appeal (Award of Legal Interest)

In answering the appeal, Washington and Ducre assert that the trial court erred in awarding legal interest from the date of judicial demand rather than the date of filing of their complaint with the Patient’s Compensation Fund Oversight Board. We agree. Louisiana Revised Statute 40:1299.47M provides that legal interest shall “accrue from the date of filing of the complaint with the board on a judgment rendered by a court in a suit for medical malpractice brought after compliance with this Part.” The filing of the complaint with the board is not considered a “judicial demand,” so the trial court’s award of interest from the date of “judicial demand” was erroneous. See La.Code of Civ. Pro. art. 421; Melancon v. Insurance Corp. of America, 633 So.2d 231, 233 (La.App. 1 Cir.1993) 11B(recognizing that a complaint filed with a medical review panel is not a “judicial demand” since it is not a “suit” filed in a court).

However, our review of the issue is not complete because we must determine which of the following constitutes the “date of filing of the complaint” under Section 1299.47M: the filing of the original complaint on October 2, 2001, or the filing of the amended complaint on May 15, 2002. The original complaint was filed against only one party, Dr. Charles Hill, but it was amended later to add claims against Dr. Waring and Slidell Memorial Hospital. The claims against Dr. Hill were voluntarily dismissed on or about August 5, 2002, prior to the convening of the first medical review panel, and neither medical review panel rendered an opinion concerning the care provided by Dr. Hill. Dr. Hill was never named as a defendant in this litigation, and no party asserted at trial that Dr. Hill was negligent in his care of Alex. The judgment rendered by the trial court did not name Dr. Hill or otherwise suggest that he was at fault for Alex’s death.

Section 1299.47M refers only to “the complaint” and does not expressly address the present situation wherein multiple complaints were filed in the same proceeding: an original complaint against a defendant who was subsequently dismissed from the medical review panel proceeding, and an amended complaint that added new defendants, one of whom has been found on appeal to be solely at fault and liable for the plaintiffs’ claims.

Our supreme court has addressed the issue in an analogous context under Louisiana Revised Statute 13:4203 for purposes of determining legal interest in a tort suit when an original petition was amended to include claims against additional defendants. In Burton v. Foret, 498 So.2d 706 (La.1986), the court considered two consolidated tort suits that arose out of automobile accidents, and both proceedings involved amendments of the original petitions to add new parties. The petition in one suit (the “Burton” claim) was amended to assert claims against |1fithe plaintiffs uninsured motorist carrier, while the petition in the other suit (the “Keith” claim) was amended to include claims against a police jury and its insurer based on allegations that the police jury was responsible for causing the accident at issue in that claim. Burton, 498 So.2d at 707-708. Both proceedings resulted in judgments against the defendants added by the amendments, and the common issue before the supreme court was when legal interest should begin to accrue on the judgments against those defendants, Burton, 498 So.2d at 710.

The court held that legal interest should accrue from the date of the filing of the original petitions in each case, but based its holding on the fact that the parties cast in judgment were solidary obligors with the parties named as defendants in the original petitions. Citing Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982), the court explained:

Under Hoefly, suit against one solidary obligor interrupts prescription as to other solidary obligors. Where defendants are solidarity liable, they are jointly and severally liable for the entire debt, which would include interest from the date on which plaintiff made judicial demand on the first of those parties. Under LSA — R.S. 13:4203, legal interest runs from the date of plaintiffs first judicial claim against all parties responsible for a single tortious occurrence. LSA — C.C.P. art. 1153.

Burton, 498 So.2d at 712 (emphasis added). See also LeBouef v. Gross, 506 So.2d 879, 881 (La.App. 1 Cir.1987).

In the present case, the only party ultimately found “responsible” for causing Alex’s death is Dr. Waring. Dr. Waring was not named as a defendant in the original medical review panel complaint, and she is not a solidary obligor or joint-tortfeasor with Dr. Hill, the party named in the original complaint. Although Dr. Waring and Dr. Hill were both defendants for a period of time in the medical review panel proceeding, all claims against Dr. Hill were voluntarily dismissed, and no fault in connection with Alex’s death has since been asserted or assessed to Dr. Hill. Consequently, the complaint against Dr. Hill was not one against a responsible party and cannot serve as the start date for the accrual of legal interest |17on the judgment rendered against Dr. Waring. See Burton, 498 So.2d at 712; LeBouef v. Gross, 506 So.2d 879, 881 (La.App. 1 Cir.1987). Accordingly, we amend the trial court’s award of interest and revise the judgment to grant legal interest on the judgment against Dr. Waring from the date of the filing of the complaint against her on May 15, 2002.

CONCLUSION

For these reasons, we affirm the trial court judgment against Dr. Waring and in favor of Washington and Ducre in the amounts of $50,000.00 to each. We reverse the judgment against Slidell Memorial Hospital, and we vacate the judgment in favor of the Estate of Alex Ducre, Jr. We further amend the award of legal interest in the judgment against Dr. Waring and revise the judgment to grant legal interest from May 15, 2002. We assess one-half of the costs of this appeal to Dr. Waring and one-half to Washington and Ducre.

MOTION TO REMAND DENIED; JUDGMENT REVERSED IN PART, VACATED IN PART, AMENDED, AND AS AMENDED, AFFIRMED.

WELCH, J., concurring in part, and dissenting in part with reasons assigned.

WELCH, J.,

concurring in part, dissenting in part.

Iil respectfully concur in part and dissent in part with the majority opinion in this matter. While I agree with the result reached by the majority concerning fault and causation of damages with regard to Dr. Waring and Slidell Memorial Hospital and the award of damages to the estate of Alex Ducre, Jr., I disagree with regard to the award of legal interest to the date of the filing of the amended complaint. In my opinion, the award of legal interest should be awarded to the date that the plaintiffs filed their original complaint with the board.

Louisiana Revise Statutes 40:1299.47(M) mandates that “[ljegal interest shall accrue from the date of filing of the complaint with the board on a judgment rendered by a court in a suit for medical malpractice brought after compliance with this [p]art.” (Emphasis added). Although the plaintiffs original medical review panel complaint was filed against Dr. Charles Hill, who was not a defendant in this lawsuit and not cast in judgment, the object of the original complaint and the amended complaint concerned the death of Alex and cause thereof. Reading both complaints together, the plaintiffs essentially claimed that the negligence of Dr. Hill, Dr. Waring, and Slidell Memorial Hospital was the cause of death of Alex Ducre. Thus, at that time, the plaintiffs were asserting that Dr. Hill, Dr. Waring, and Slidell Memorial hospital were joint tortfeasors, even though Dr. Hill was ultimately dismissed from the medical review board proceedings. See La. C.C. art. 2324(B). Thus, as noted by the majority, under the jurisprudence, legal interest for pall parties responsible for a single tortious occurrence runs from the date of first judicial demand against any one of the responsible parties. See Burton v. Foret, 498 So.2d 706, 712 (La.1986), LeBouef v. Gross, 506 So.2d 879, 881 (La.App. 1st Cir.1987).

Accordingly, I would amend the judgment to award legal interest from the date of the filing of the original complaint with the board. Thus, I respectfully concur in part and dissent in part.

      . In light of our decision regarding the judgment against Slidell Memorial Hospital, we need not consider the assignment of error related to the trial court’s failure to allocate fault between Dr. Waring and the hospital. For this same reason, we deny the Joint Motion for Remand For the Limited Purpose of Determining Percentages of Fault filed on behalf of Dr. Waring and the hospital.

      . Additionally, we note that to allow these two plaintiffs to recover the $50,000 damages awarded to the "Estate of Alex Ducre, Jr.” would appear to violate the stipulation which provides that the “cause of action for each plaintiff” does not exceed $50,000.


text:
    OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER v. Richard MIRE.
    No. 2013 CA 1051.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 18, 2014.

      Phillip E. Foco, Scott P. Ledet, Baton Rouge, LA, for Appellant Plaintiff — Our Lady of the Lake Regional Medical Center.
    Robin L. Krumholt, Baton Rouge, LA, for Appellee Defendant — Richard Mire.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   WELCH, J.

12Plaintiff, Our Lady of the Lake Regional Medical Center (OLOL), appeals a judgment of the Office of Workers’ Compensation (OWC) finding that defendant, Richard Mire, did not commit fraud in violation of La. R.S. 23:1208. Mr. Mire appeals that portion of the judgment finding that he was able to work within the confines of the functional capacity evaluation (FCE) and seeks attorney’s fees for additional work performed on both appeals. We vacate a portion of the judgment and affirm in part.

BACKGROUND

The record reflects that on May 17, 2006, Mr. Mire sustained an injury in a work-related accident while employed by OLOL. OLOL paid Mr. Mire compensation for temporary total disability or supplemental earnings benefits commencing on May 29, 2006. On January 10, 2012, OLOL and its insurer filed this disputed claim in the OWC, asserting that Mr. Mire violated La. R.S. 23:1208 by intentionally misrepresenting the nature and extent of his injuries in order to obtain workers’ compensation benefits. OLOL contended that Mr. Mire forfeited his right to benefits as a result of the violation and that Mr. Mire’s current symptoms were related to intervening events and not related to the alleged work-related accident. OLOL also claimed that Mr. Mire made intentional misrepresentations with respect to his post-accident earnings in violation of La. R.S. 23:1208, resulting in Mr. Mire’s forfeiture of any right to additional benefits.

OLOL’s case in chief consisted of the testimony of Mr. Mire and documentary evidence. OLOL sought to establish that Mr. Mire failed to disclose that he had earned income from Corrosion Test Supplies, Inc, (CTS), a company owned by his father, Donnell Mire. Essentially, OLOL relied on the fact that CTS, through Donnell Mire, paid electric, water, and gas bills for Mr. Mire’s home, which was located adjacent to the log cabin housing CTS, and also paid for gas for |aMr. Mire’s vehicle. OLOL also focused on three checks written from CTS to Mr. Mire: (1) a My 9, 2009 check in the amount of $190.03; (2) an August 6, 2009 check in the amount of $3,000.00; and (3) a September 21, 2011 check in the amount of $100.00, which was coded in the CTS general ledger as “contract labor.”

At the hearing, Mr. Mire and his father testified. Mr. Mire explained that he essentially ran CTS from 1982 to 1994, when he returned to school and turned the business over to his father. According to the Mires, CTS is Donnell’s business and Mr. Mire does not own any part of it and does not work for CTS. Both men acknowledged that Mr. Mire drives his father around on company business, helps his father with the computer, and sometimes stamps numbers on coupons produced by the business. However, both stated that Mr. Mire is not paid any income for these activities. Mr. Mire denied having worked for or having received any income from CTS since 2006. Mr. Mire and his father testified that money paid to Mr. Mire from CTS was treated by the company as a loan. Donnell Mire explained that when he pays bills on behalf of his son from the company, he records the amount in the company ledger as money owed to the company by Mr. Mire. Donnell Mire also explained that the reference to “contract labor” in connection with the September 11, 2011 $100.00 check written to his son was simply a mistake on his part in entering the payment in “QuickBooks,” the computer software he used to record the company’s finances. Mr. Mire admitted that he altered an entry in CTS’s general ledger regarding the $100.00 check to him that was categorized as “contract labor.” The record reflects that CTS’s general ledger, attached to its CPA’s deposition, contained a notation that the $100.00 check in question had been paid to Mr. Mire for contract labor and the check appeared in another portion of the ledger under the heading “Contract Labor.” However, in a computer printout of CTS’s general ledger supplied by Mr. Mire to |4OLOL’s attorney, the term “contract labor” was replaced with “Richard J. Mire,” and the $100.00 check does not appear under the listing of checks written for contract labor during the same time period. Mr. Mire testified that he removed the reference to contract labor on that printout because it was a mistake and he moved the amount in the ledger to the loan he owed to his father.

Following the conclusion of the hearing, the Workers’ Compensation Judge (WCJ) ruled that OLOL failed to prove by a preponderance of the evidence that Mr. Mire committed fraud as defined by La. R.S. 23:1208. In written reasons for judgment, the WCJ found that Mr. Mire did not make any false statements, specifically finding Mr. Mire and his father, Donnell Mire, to be credible witnesses. In finding that Mr. Mire was not guilty of fraud, the WCJ made the following determinations:

There was no evidence to prove Mr. Mire earned any income for providing driving assistance to his elderly father, the sole proprietor of [Corrosion] Testing Services, CTS. CTS is Mr. Donnell Mire’s small home-based business, worked from a shed behind his home and the property next to the defendant, Mr. Richard Mire. Mr. Mire was provided with a home next to his father, gas funds, utilities and phone service by his father because he was his father. All of these facts were revealed to the employer through deposition and documentary evidence; nothing was hidden. The evidence was clear Mr. Mire[’s] livelihood depended on workers’ compensation income, social security income and monies provided to him by his elderly father who needed Mr. Mire’s assistance for daily living.
Mr. Donnell Mire ... provided some of these expenses to his son through his company, CTS, for tax purposes and that could prove to be a tax problem for him. However, that fact doesn’t equate to the employee, Mr. Mire, committing fraud. Mr. Donnell Mire could have a problem with the IRS in terms of how he is supplying a benefit to his son, but it is not workers’ comp fraud. The Court found Mr. Donnell Mire mistakenly typed in “contract labor” on one check in many years of them made to his son; that mistake did not equate to fraud. The Court found both Mr. Donnell Mire and Mr. Richard Mire to be credible witnesses. These gentlemen were forthcoming with many more facts than found in the documentary or surveillance evidence; indicating to the Court they were not hiding anything. There was absolutely no other evidence to conflict with the testimony of all family members and the deposition of the CTS accountant; Mr. Richard Mire had not been an employee of CTS for many years. Richard Mire borrowed funds from his father and records were kept on these funds for repayment purposes even to the extent he’d | .¡mortgaged his property in favor of his father, should something happen to him.

Additionally, the WCJ concluded that Mr. Mire did not deliberately misrepresent his condition to his physicians, Mr. Mire sustained no intervening accident or permanent aggravation to his work-related injury, Mr. Mire’s present condition is related to the May 17, 2006 work accident, and Mr. Mire could return to work within the confines of the FCE that was submitted into evidence. Lastly, the WCJ determined that no attorney’s fees were owed and ordered the parties to bear their own costs.

On April 24, 2013, the WCJ signed a judgment in accordance with these rulings. In its appeal, OLOL contests the WCJ’s determination that Mr. Mire did not commit fraud in violation of La. R.S. 23:1208. In his appeal, Mr. Mire contends that the WCJ’s ruling that he could return to work within the confines of the FCE is premature and seeks an award of attorney’s fees for additional work performed on appeal.

FORFEITURE OF BENEFITS

OLOL contends that the trial court committed reversible error in finding that Mr. Mire did not commit fraud in violation of La. R.S. 23:1208 in light of evidence at trial showing that Mr. Mire altered the CTS general ledger in response to its subpoena by deleting the reference to “contract labor” associated with a payment made by CTS to Mr. Mire and because Mr. Mire knew that he could not earn income and receive workers’ compensation indemnity benefits at the same time. It insists that the WCJ’s credibility determinations were clearly wrong.

Louisiana Revised Statutes 23:1208A provides in part that “It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” An employee violating La. R.S. 23:1208 shall forfeit any right to workers’ compensation | (¡benefits. La. R.S. 1208E. The three requirements for forfeiture of the right to workers’ compensation benefits under Section 1208 are: (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Fontenot v. State, Department of Health and Hospitals, 2012-1265 (La.App. 1st Cir. 4/2/13), 116 So.3d 695, 697-698. Forfeiture of workers’ compensation is a harsh remedy, and statutory forfeiture must be strictly construed. An employer has the burden of proving each element within the statute, and the lack of any one of the elements is fatal to an employer’s avoidance of liability. Id. at 698.

The issue of whether an allegedly false statement or misrepresentation by the employee requires forfeiture of workers’ compensation benefits pursuant to Section 1208 is one of fact, which may not be reversed on appeal absent manifest error. Dominic v. BREC, 2004-0485 (La.App. 1st Cir. 3/24/05), 907 So.2d 73, 76. Under that standard of review, in order to reverse the WCJ’s factual determination that Mr. Mire did not commit fraud, this court must find that a reasonable factual basis does not exist for the finding and that the finding is clearly wrong (manifestly erroneous). Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). On appeal, the issue to be resolved by this court is not whether the WCJ was right or wrong, but whether the WCJ’s conclusion was a reasonable one. Id.

In finding that OLOL failed to prove that Mr. Mire made false statements for the purpose of obtaining benefits in violation of Section 1208, the WCJ made a credibility determination, choosing to believe Mr. Mire and his father’s testimony that the reference to contract labor for a $100.00 check written by CTS to Mr. Mire was simply a mistake and that Mr. Mire corrected the mistake, Further, the WCJ found their testimony to be credible in concluding that Mr. Mire did not work for CTS following his injury, did not receive income from CTS, and the funds he did 17receive from that company were treated as a loan he was obligated to repay. Upon reviewing the evidence, we find no manifest error in the WCJ’s factual determination that Mr. Mire did not commit fraud in violation of Section 1208. Therefore, we may not disturb that ruling.

RETURN TO WORK

Mr. Mire contends that the WCJ’s ruling that he was able to return to work within the confínes of the FCE was premature as this issue was not listed on either party’s pre-trial statements. Pursuant to Section 6007 of Title 40 of the Louisiana Administrative Code, governing pretrial procedure in the OWC, a pre-trial statement shall include the issues to be litigated by the parties. Section 6007(B) further provides that amendments to the pretrial statement shall only be by written motion and permitted only for good cause shown. No new issues shall be raised except by written order of the judge for good cause or upon mutual agreement of the parties. Mr. Mire also contends that the WCJ’s ruling was premature because his pain management physician, Dr. Braswell, had not released him to return to work at the time of the trial. He asks this court to reverse the ruling of the WCJ regarding his return to work status.

In its Form 1008 disputed claim for compensation, OLOL asserted that Mr. Mire violated La. R.S. 23:1208 by intentionally misrepresenting the nature and extent of his injuries in order to obtain benefits. It further asserted that Mr. Mire’s current symptoms were related to interceding events and not related to the alleged work-related accident. It asked for “all relief available to it for said violations, including forfeiture of benefits.” In its pretrial statement, OLOL claimed that the symptoms for which Mr. Mire received and continued to receive compensation benefits are related to intervening and/or superseding events that were caused by Mr. Mire’s failure to adhere to restrictions placed upon him by his treating physicians. It further alleged that Mr. Mire made intentional misrepresentations | ¿with respect to his post-accident earnings in violation of La. R.S. 23:1208 and for that reason forfeited his right to any additional benefits.

Regarding the issues to be litigated at the hearing, OLOL listed two issues in its pre-trial statement: (1) whether Mr. Mire’s current symptoms were related to the work accident or to intervening and superseding events; and (2) whether Mr. Mire violated La. R.S. 23:1208. In his pretrial statement, Mr. Mire stated that all facts and issues in dispute include that he had not made any false statements for the purpose of receiving workers’ compensation benefits.

Neither OLOL’s pleadings nor the parties’ pre-trial statements listed Mr. Mire’s ability to return to work as an issue to be litigated at the hearing, and neither issue set forth in OLOL’s pre-trial statement put Mr. Mire on notice that such could be contemplated at the hearing. Cf. Atwell v. First General Services, 2006-0392 (La.App. 1st Cir.12/28/06), 951 So.2d 348, 355, writ denied, 2007-0126 (La.3/16/07), 952 So.2d 699. OLOL contends that the issues to be litigated were expanded by mutual agreement of the parties. It insists that the issue of whether Mr. Mire could return to work was clear because both parties introduced exhibits pertaining to the issue and Mr. Mire’s attorney participated in the deposition of Mr. Mire’s treating physician in which he offered an opinion regarding Mr. Mire’s ability to return to work. It further notes that Mr. Mire introduced the records of Dr. Braswell at the hearing, the same records which he relies on as to the merits of his claimed inability to return to work. Finally, OLOL notes that Mr. Mire did not object at trial to any evidence offered by OLOL regarding his ability to return to work.

At the hearing, both parties introduced Mr. Mire’s medical records and depositions of Mr. Mire’s treating physicians. OLOL introduced a FCE prepared in 2011. The only witness called by OLOL was Mr. Mire. OLOL questioned him at length regarding CTS, his post-accident involvement in CTS, and his receipt of | gmoney from that company. OLOL also questioned Mr. Mire regarding work he had performed around his home in 2006 despite the fact that his doctors restricted him to sedentary work such as grass cutting, doing some brick work, and cutting wood. The WCJ prohibited OLOL from further inquiring as to Mr. Mire’s activities prior to June 2009 in light of the fact that there was a consent judgment between the parties on all issues prior to that date. Thereafter, OLOL brought out the fact that Mr. Mire had surgery in July 2009, reported to his doctor that his leg pain was better shortly after the surgery, but in December 2009 and March 2010, reported to his doctor that his back pain was getting worse. OLOL questioned Mr. Mire regarding September 29, 2009 and November 10, 2009 notations in the records of Baton Rouge Lake Physical Therapy indicating that Mr. Mire reported straining his back after lifting a golf cart battery. This evidence was clearly relevant to OLOL’s assertion that Mr. Mire’s back pain was caused by superseding/intervening events. The WCJ made a specific finding that Mr. Mire sustained only a short-lived aggravation to his back while lifting the battery and found as a fact that Mr. Mire’s present back condition was related only to his work accident at OLOL.

The WCJ further found that Mr. Mire was at maximum medical improvement and based on all of the evidence, could return to work, within the confines of the FCE, at sedentary duty. The WCJ observed that Mr. Mire could continue to treat with Dr. Braswell under the medical treatment guidelines. However, after examining the record in its entirety, we conclude that the issue of whether Mr. Mire had reached maximum medical improvement and was able to return to work was not before the WCJ. The only issues raised by OLOL in this proceeding are whether Mr. Mire forfeited his right to workers’ compensation by making false statements concerning the receipt of post-accident “income” from CTS and whether Mr. Mire’s current back symptoms were caused by events | lf)unrelated to his work-accident. The WCJ found that OLOL failed to sustain its burden of proof on either issue, Should OLOL wish to litigate the issue of Mr. Mire’s disability status and his ability to return to work in order to justify terminating his compensation benefits, it may file a disputed claim in the OWC addressing these issues. Accordingly, we vacate that portion of the judgment decreeing that Mr. Mire is able to return to work within the confines of the FCE submitted into evidence.

ATTORNEY’S FEES

In his appellate brief, Mr. Mire requested an award of attorney’s fees for the work performed by his attorney in connection with both appeals of the WCJ’s rulings. However, in its judgment, the WCJ did not assess attorney’s fees, and Mr. Mire does not appeal that determination.

It is well settled that attorney’s fees are not allowed unless authorized by statute or contract. Stutts v. Melton, 2013-0557 (La.10/15/13), 130 So.3d 808, 814. The workers’ compensation law authorizes an award of attorney’s fees in certain instances, including where the employer fails to provide payment, fails to consent to the employee’s request to select a treating physician or change physicians when such consent is required, and discontinues benefits when such discontinuance is arbitrary and capricious or without probable cause. La. R.S. 23:1201(F) and (I). None of these instances are present in this case. Thus, because Mr. Mire has not demonstrated that the attorney’s fees he seeks are authorized by statute in the first instance, he is not entitled to an award for additional work performed on appeal.

JuCONCLUSION

For the foregoing reasons, that portion of the judgment finding that Mr. Mire is able to work is vacated; in all other respects, the judgment is affirmed. All costs of this appeal are assessed to Our Lady of the Lake Regional Hospital.

AFFIRMED IN PART; VACATED IN PART.

      . Mr. Mire did not assert in this disputed compensation proceeding that OLOL did not timely pay any type of benefit to him or on his behalf, nor did he claim that OLOL ever discontinued paying benefits prior to the hearing on this matter.


text:
    STATE of Louisiana, Respondent v. Rickey Lynn McBROOM, Applicant.
    No. 49,166-KH.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2014.
    Rickey Wayne McBroom, pro se.
    Robert W. Levy, District Attorney, for State of Louisiana.
    Before MOORE, PITMAN and GARRETT, JJ.
   I,WRIT DENIED.

Applicant, Rickey L. McBroom, seeks review of a judgment denying his application for post-conviction relief as untimely. In arguing that his application is timely, McBroom relies on the United States Supreme Court’s decisions in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler, — U.S. —, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). McBroom’s reliance on these cases is misplaced.

Martinez held that “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” This Court is not a federal habeas court. Thus, Martinez has no application in this Court and does not lift the Louisiana procedural bar on untimely-filed post-conviction relief applications; it does not provide a “theretofore unknown interpretation of constitutional law” under La. C. Cr. P. art. 930.8(A)(2) that would give McBroom a right to proceed under Louisiana law despite filing outside the statutory time limitation for post-conviction relief.

| -/Trevino, supra, does . not expand the application of Martinez beyond federal habeas courts to Louisiana state courts. While Martinez arose under Arizona law which did not allow a defendant to raise an ineffective assistance claim on direct appeal, Trevino arose under Texas law which permitted such a claim to be raised on direct appeal. However, because the Trevino court found that the Texas procedural framework made it highly unlikely that a defendant would have a meaningful opportunity to raise an ineffective assistance claim on direct appeal, the court applied the exception recognized in Martinez. Thus, Trevino expanded the application of the Martinez exception in federal habeas courts, but it did not create an exception under Louisiana law that would excuse the untimeliness of McBroom’s post-conviction relief application filed in a Louisiana state court. Accordingly, the instant application is untimely and is hereby denied.