author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Thomas COX.
    No. 13-KA-700.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 31, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Gwendolyn K. Brown, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Thomas Cox, Cottonport, LA, Defendant/Appellant, In Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and HANS J. LILJEBERG.
   MARC E. JOHNSON, Judge.

| gDefendant, Thomas Cox, appeals his conviction and sentence for simple burglary. For the reasons that follow, we affirm his conviction and sentence.

Defendant was charged in a bill of information on February 6, 2013 with simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2. He initially pled not guilty, but later withdrew his not guilty plea and pled guilty to simple burglary on April 18, 2013. On the same day, the trial court sentenced Defendant to eight years imprisonment. Defendant was subsequently granted this out-of-time appeal.

Defendant’s appointed appellate counsel has filed an Anders brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. As such, she seeks to withdraw as counsel of record.

IsWhen an Anders brief has been filed, an appellate court must conduct an independent review of the record to determine whether the' appeal is wholly frivolous. State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96); 676 So.2d 1108,1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. Id.

In Defendant’s appellate brief, counsel sets forth the procedural history of the case and a statement of facts. She asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal and could find no ruling of the trial court that arguably supports the appeal. Counsel explains that before changing his plea to guilty, Defendant was fully informed of the legal consequences of changing his plea by both his trial counsel and the trial judge. She further explains that the plea colloquy reveals that the trial judge explained to Defendant each of the rights necessary to ensure a knowing and intelligent waiver of rights; specifically, that Defendant had a constitutional right to a trial by jury, to remain silent, to confront witnesses, and to the presumption of innocence. Counsel recognizes that Defendant was advised of the sentence he would receive after pleading guilty and that Defendant was sentenced in accordance with his plea agreement; thus, counsel concludes that Defendant is now restricted by law from appealing his sentence. Counsel requests that any and all errors patent be listed as assignments of error for purposes of this appeal.

Defendant was advised by counsel and by this Court that an Anders brief had been filed and of his right to file a pro se supplemental brief. Defendant subsequently filed a pro se supplemental brief claiming he was denied review of his sentence by his trial counsel’s failure to file a motion to reconsider sentence.

14After an independent review of the record, we agree with appellate counsel that there are no non-frivolous issues to be raised on appeal.

The bill of information in this case properly charged Defendant. See generally La.C.Cr.P. arts. 464-66. We note, however, that while the bill of information charged Defendant with simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2, the waiver of rights form and the plea colloquy show that Defendant actually pled guilty to simple burglary, a violation of La. R.S. 14:62, which is nonre-sponsive to the charge of simple burglary of an inhabited dwelling. See La.C.Cr.P. art. 814(A)(44.1); State v. Narcisse, 01-49 (La.App. 5 Cir. 6/27/01); 791 So.2d 149, 154-55, writ denied, 01-2231 (La.6/14/02); 817 So.2d 1152.

A defendant is not prohibited from pleading guilty to a crime that is nonre-sponsive to the original indictment. See La.C.Cr.P. art. 487; Narcisse, supra. In State v. Jackson, 04-2863 (La.11/29/05); 916 So.2d 1015, 1023, the Louisiana Supreme Court specifically found that a trial judge has jurisdiction to accept a defendant’s informed and voluntary guilty plea to a crime that is not responsive to the crime charged in the bill of information regardless of whether the district attorney amends the bill of information to conform to the plea agreement. However, the supreme court explained that its ruling did not alter the fundamental requirement that prosecution be properly instituted by a bill of information that informs the accused of the nature of the accusations against him or the requirement that a defendant’s guilty plea be voluntarily and intelligently made. The court noted that “[a] nonresponsive guilty plea made without an amended bill might raise a concern that a defendant did not understand the nature of the charges against |shim,” but explained that such a fact is only one of the totality of circumstances to consider in evaluating the Boykin colloquy. Jackson, 916 So.2d at 1023.

In the instant case, prosecution was properly instituted by a bill of information that informed Defendant of the nature of the charge against him. Although the bill of information was not amended to charge Defendant with simple burglary, there is nothing in the record that suggests Defendant did not understand the nature of the charges against him. The waiver of rights form reflects that defendant was pleading guilty to simple burglary, and the colloquy mentions the simple burglary offense several times. Thus, we find Defendant’s guilty plea to a nonresponsive charge does not present an issue for appeal.

Additionally, Defendant’s presence does not present any issue for appeal. As reflected by the minute entries and commitment, Defendant appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea, and his sentencing.

Further, Defendant pled guilty. A guilty plea normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06); 926 So.2d 662, 664. No rulings were preserved for appeal pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06); 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by Ra plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. McCoil, supra.

As previously noted, the record shows that Defendant was aware he was pleading guilty to simple burglary and understood the nature of the offense. The waiver of rights form, which was signed by Defendant, defense counsel, and the trial judge, reflects that Defendant was 28 years old, could read, write, and understand the English language, and that he was not under the influence of alcohol, drugs, or any medication at the time he pled guilty. At the beginning of the plea colloquy, defendant indicated that he had gone over the waiver of rights form with his counsel and understood it.

The waiver of rights form and the plea colloquy transcript show that Defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, supra. Defendant indicated that he understood he was waiving these rights by pleading guilty. He further indicated that he was satisfied with the representation of his attorney and had not been forced or promised anything to enter his guilty plea.

The record shows Defendant was advised of the sentencing range he faced and of the eight-year sentence he would receive if his plea was accepted by the court. Defendant received the agreed upon eight-year sentence, which falls within the sentencing range prescribed by statute. See La. R.S. 14:62. Because Defendant received a sentence in conformity with a plea agreement that was set forth in the record at the time of his plea, he cannot seek review of his sentence on appeal. See La.C.Cr.P. art. 881.2(A)(2); State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05); 916 So.2d 1171, 1173.

Considering the foregoing, we find there are no non-frivolous issues for appeal. Because appellant counsel’s brief adequately demonstrates by full [7discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and our independent review of the record supports counsel’s assertion, we grant appellate counsel’s motion to withdraw as attorney of record.

In his pro se supplemental brief, Defendant’s sole assignment of error is that he . was denied review of his sentence because his counsel did not inform him of his right to file a motion to reconsider and failed to file such a motion on his behalf. It appears Defendant is asserting an ineffective assistance of counsel claim.

Under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of counsel. State v. Casimer, 12-678 (La.App. 5 Cir. 3/13/13); 113 So.3d 1129, 1141. To prove ineffective assistance of counsel, a defendant must show: (1) that counsel’s performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An error is considered prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To prove prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Generally, a claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than on direct appeal. Casimer, 113 So.3d at 1141. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of | ^judicial economy. Id. In this case, we find the appellate record is sufficient for us to address the merits of Defendant’s ineffective assistance of counsel claim.

The mere failure to file a motion to reconsider sentence does not in and of itself constitute ineffective assistance of counsel. A defendant must also “show a reasonable probability that, but for counsel’s error, his sentence would have been different.” Casimer, 113 So.3d at 1142.

In this case, Defendant was sentenced in conformity with a plea agreement. As previously stated, a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea. La.C.Cr.P. art. 881.2(A)(2). Therefore, trial counsel’s failure to move for reconsideration of the sentence does not constitute deficient performance. Accordingly, we find no merit in Defendant’s claim.

ERRORS PATENT REVIEW

We have reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990), and have identified two errors that require corrective action. First, the commitment reflects Defendant pled guilty to burglary of a residence in violation of La. R.S. 14:62.2, while the transcript shows Defendant pled guilty to simple burglary, which is a violation of La. R.S. 14:62. The transcript generally prevails where there is an inconsistency between the minute entry and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). Second, the Uniform Commitment Order also incorrectly reflects that Defendant pled guilty to a violation of La. R.S. 14:62.2. It further incorrectly shows the date 19of the offense as September 14, 2012, when the actual date of the offense, as agreed to in the waiver of rights form, was October 22, 2011.

Accordingly, we remand this case for correction of the commitment minute entry and the Uniform Commitment Order to accurately reflect that Defendant pled guilty to simple burglary, a violation of La. R.S. 14:62, and that the date of the offense was October 22, 2011. After correction, the Clerk of Court is ordered to transmit the original of the commitment minute entry and the Uniform Commitment Order to the officer in charge of the institution to which Defendant has been sentenced and the Department of Correction’s Legal Department. See La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-244 (La.9/15/06); 937 So.2d 846 (per curiam); State v. Long, 12-184 (La.App. 5 Cir. 12/11/12); 106 So.3d 1136,1142.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence are affirmed. This case is remanded for correction of the commitment minute entry and Uniform Commitment Order as noted. Additionally, appellate counsel’s motion to withdraw is granted.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR THE CORRECTION OF THE COMMIT MENT; MOTION TO WITHDRAW GRANTED.

      .The trial court ordered Defendant’s sentence to run concurrently with his sentence for aggravated burglary imposed in district court case number 12-5049. Defendant pled guilty in district court case number 12-5049 at the same time he pled guilty in the present case. Defendant appealed his aggravated burglary conviction in a separate appeal with this Court, bearing case number 13-KA-699.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . See State v. Jyles, 96-2669 (La. 12/12/97); 704 So.2d 241, 242; State v. Mouton, 95-981 (La.4/28/95); 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . The record shows September 14, 2012 was the date of Defendant's arrest.


source: Caselaw Access Project

author: WICKER, Judge.

license: Public Domain

text:
    Michelle SHEFFIE v. WAL-MART LOUISIANA LLC, Wal-Mart Real Estate Business Trust.
    No. 13-CA-792.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.
    Rehearing Denied April 4, 2014.

      H. Edward Sherman, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Sidney J. Hardy, Lynda A. Tafaro, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   WICKER, Judge.

[^Plaintiff, Michelle Sheffle, appeals the granting of summary judgment in favor of defendants, Wal-Mart Louisiana, LLC and Wal-Mart Real Estate Business Trust. Because we find that a genuine issue of material fact exists, precluding summary judgment in this case, we reverse the trial court’s judgment and remand this matter to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Michelle Sheffle, filed suit in the Twenty-Fourth Judicial District Court against Wal-Mart Louisiana, LLC and Wal-Mart Real Estate Business Trust (hereinafter collectively referred to as “Wal-Mart”) alleging that she sustained personal injuries when she slipped on a clear substance while shopping at Wal-Mart’s Harahan location store on December 27, 2005. After the parties conducted preliminary discovery, Wal-Mart filed a motion for summary judgment asserting that plaintiff cannot satisfy her burden of proof under La. R.S. 9:2800.6. IsSpecifícalIy, Wal-Mart argued that plaintiff could not prove that it had constructive or actual notice of the substance she alleges caused her to slip; further, Wal-Mart asserted that plaintiff could not show that the liquid remained in the store aisle for a specific period of time prior to the accident to satisfy the temporal element under La. R.S. 9:2800.6.

Plaintiff filed an opposition to Wal-Mart’s motion for summary judgment. In opposition, plaintiff attached numerous exhibits, including Wal-Mart’s discovery responses. Through their discovery responses, Wal-Mart admitted that there was water on the floor in the area where plaintiffs accident occurred and that Wal-Mart associates are trained to continuously inspect and zone them departments for hazardous conditions. Plaintiff also attached her deposition testimony describing the events leading up to the slip and the La. C.C.P. art. 1442 deposition testimony of Wal-Mart representative James Thomas Raines. Mr. Raines testified that the site of plaintiffs slip would be considered a main aisle of the store, located between the jewelry counter and a line of cash registers, and that employees are trained to continuously conduct “safety sweeps” of their assigned departments or areas. Plaintiff further produced the deposition testimony of Jess Robinson, Jr., the assistant manager on duty at the time of the accident. Mr. Robinson responded to the scene after the accident and completed an accident report, verifying the |4presence of a twelve-inch puddle of water on the floor where the accident occurred.

Additionally, plaintiff produced a surveillance video recording of the accident, obtained through discovery. Plaintiff attached the affidavit of private investigator Darrell Mittelstaedt, who reviewed and analyzed the surveillance video. Mr. Mittel-staedt attested that, in the twenty-two minute video, he observed five Wal-Mart employees walk by the area where plaintiff slipped and that, after the accident was reported, it took a Wal-Mart employee approximately two minutes to remove the water from the area where plaintiff slipped. The twenty-two minute video shows plaintiffs awkward body movement as she slipped and shows the traffic passing near the accident site.

Plaintiff also attached the affidavit of Kortney Rodgers, an asset protection coordinator for Wal-Mart at the time of the accident. Mr. Rodgers attested that he was the custodian of the store’s surveillance recordings at the time of plaintiffs accident and that he in fact preserved the twenty-two minute surveillance video produced in connection with this litigation. He further attested that Wal-Mart never provided to him any instructions to preserve any particular length of surveillance recording following a reported accident. In his affidavit, Mr. Rodgers attested that he viewed the surveillance video in connection with this litigation; that he observed five Wal-Mart employees pass near the accident area before plaintiff slipped; and that “[njone of the five Wal-Mart employees appeared to be looking for anything on the floor as they were supposed to, as part of Wal-Mart’s safety and accident prevention employee instructions.”

IsAfter the hearing on Wal-Mart’s motion for summary judgment, the trial judge granted the motion for summary judgment, dismissing plaintiffs suit. Plaintiff appeals.

DISCUSSION

The jurisprudence is clear that an appellate court reviews the district court’s granting or denial of a motion for summary judgment de novo. This Court has stated:

Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764, 765. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.
A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. An issue is a genuine issue if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate as there is no need for trial on that issue. Id.

Sharpless v. Louisiana Dep’t of Transp., 12-457 (La.App. 5 Cir. 2/21/13), 110 So.3d 1117, 1119-20.

In a slip or fall case against a merchant, a plaintiff must prove the essential elements of a standard negligence claim in addition to the requirements under La. R.S. 9:2800.6. Melancon v. Popeye’s Famous Fried Chicken, 10-1109 (La.App. 3 Cir. 3/16/11), 59 So.3d 513, 515. La. R.S. 9:2800.6 declares that a merchant owes 16a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage. Lousteau v. K-Mart Corp., 03-1182 (La.App. 5 Cir. 3/30/04), 871 So.2d 618, 623, writ denied, 04-1027 (La.6/25/04), 876 So.2d 835. Under the statute, a plaintiff has the burden of proving that the condition presented an unreasonable risk of harm, that the risk of harm was reasonably foreseeable, and that the merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence. Id. “Constructive notice” means that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. Id. A plaintiff may rely on circumstantial evidence to meet her burden of constructive notice. Davenport v. Albertson’s, Inc., 00-00685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, 343, writ denied, 01-0073 (La.3/23/01), 788 So.2d 427.

To carry her burden of proving the temporal element of La. R.S. 9:2800.6(B)(2), a plaintiff must present positive evidence of the existence of the condition prior to the accident. Barrios v. Wal-Mart Stores, Inc., 00-2138 (La.App. 1 Cir. 12/28/01), 804 So.2d 905, 907, writ denied, 02-0285 (La.3/28/02), 812 So.2d 636. Though there is no bright-line time period, a plaintiff must show that “ ‘the condition existed for such a period of time....’” Id. citing White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081, 1084. Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily an issue of fact. Id.

In the motion for summary judgment and on appeal, Wal-Mart contends that plaintiff has failed to meet her burden of proof as to the “temporal element” of her 17claim. Wal-Mart asserts that plaintiff has not put forth any positive evidence to prove that the water was present on the store’s floor for any specific period of time prior to her slip or that Wal-Mart had actual or constructive notice of the water before plaintiff slipped.

In opposition to the motion for summary judgment, plaintiff produced the surveillance video recording and other circumstantial evidence to show that the accident occurred in the main aisle of Wal-Mart’s Harahan location store between a large jewelry counter and an aisle of cash registers. The twenty-two minute surveillance video does not show that the water, admittedly present on the floor where plaintiff slipped, was spilled during that twenty-two minute time frame. Further, the surveillance video and other circumstantial evidence presented show that, prior to the accident, five Wal-Mart employees walked by the area where plaintiff slipped and did not appear to look for any hazardous conditions as trained.

We find that a reasonable fact finder could find, from the circumstantial evidence plaintiff produced in opposition to the motion for summary judgment, that the water on which plaintiff slipped was present for a period of time prior to plaintiffs accident. We further find that a genuine issue of material fact remains as to whether the nearby employees stationed at the jewelry counter and/or cash registers should have known that the water was present before plaintiff slipped. Thus, we find the evidence is sufficient to create a genuine issue of material fact as to Wal-Mart’s constructive notice of the hazardous condition. Accordingly, we reverse the trial court’s judgment and remand this matter for further proceedings.

REVERSED AND REMANDED.

      . La. R.S. 9:2800.6 provides:
      A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
      B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
      (1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
      (2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
      (3)The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
      C.Definitions:
      (1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
      (2) "Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
      D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

      . Plaintiff also produced the deposition of Latoya Conaler, the Wal-Mart employee stationed at the jewelry counter near the area of the accident. The only document, however, produced in connection with that deposition was Ms. Conaler’s drawing depicting the accident scene.

      . In her petition for damages and in opposition to the motion for summary judgment, plaintiff asserts a spoliation of the evidence claim against Wal-Mart for failing to have a policy in effect to preserve a certain period of time leading up to and following a reported slip or fall accident in its stores. However, at the summary judgment hearing, plaintiff failed to introduce any evidence to support her spoliation claim.

      . This is plaintiff's second appeal. On March 30, 2011, the trial judge granted Wal-Mart’s motion and plaintiff appealed. However, this Court did not reach the merits of plaintiff's appeal because the record reflected that the parties failed to introduce any evidence in connection with the motion for summary judgment. This Court vacated the March 30, 2011 granting of summary judgment, finding the trial judge improperly considered the surveillance video recording not properly introduced into evidence, and remanded to the trial court. Wal-Mart subsequently filed a motion to reset its motion for summary judgment. On January 9, 2013, the trial judge conducted a hearing. All evidence was properly introduced at the hearing without objection from defense counsel. The trial judge subsequently granted Wal-Mart’s motion for summary judgment. This appeal follows.


author: ROLAND L. BELSOME, Judge.

text:
    CRESCENT PROPERTY PARTNERS, LLC v. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Bison Building Materials of Texas, Inc., et al. Greystar Development and Construction, LP v. Crescent Property Partners, LLC, Bison Building Materials of Texas, Inc., et al. Bison Building Materials of Texas, Inc., Bristol Fiberlite Industries, Inc., Champion Window, Inc., et al. v. Greystar Development and Construction, LP.
    Nos. 2013-CA-0661, 2013-CA-0662, 2013-CA-0663.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 28, 2014.

      Richard C. Stanley, W. Raley Alford, III, Nicholas R. Pitre, Stanley Reuter Ross Thornton & Alford, L.L.C., Lloyd N. Shields, Daniel Lund, III, Ashley B. Robinson, Shields Mott Lund L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Kevin R. Tully, H.C. Marshall, Joseph W. Gardner, Jr., Christovich & Kearney, L.L.P., Karl H. Schmid, New Orleans, LA, Michael E. Parker, Allen & Gooch, Diog-enis C. Panagiotis, Attorney at Law, Lafayette, LA, Shannon Ramirez, Kent Pa-gel, Houston, TX, Thomas G. Buck, Brett W. Tweedel, Blue Williams, L.L.C., Alan A. Zaunbrecher, Zaunbreeher Treadaway, L.L.C., Gregory C. Fahrenholt, Attorney at Law, Barbara M. Weller, Metairie, LA, Scott E. Frazier, Gerald Asay, Daniel R. Atkinson, Jr., Baton Rouge, LA, for Defendants/Appellees.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

Ijn this appeal, the plaintiff challenges the Civil District Court’s judgment, which confirmed an arbitration award in favor of the defendants. For the following reasons, the trial court’s judgment is reversed and the arbitrator’s award is vacated.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In March of 2002, the plaintiff, Crescent City Property Partners, LLC (Crescent) and the defendant, Greystar Development and Construction, LP (Greystar), entered into a contract for the construction of “The Crescent at River Ranch,” a development to be located in Lafayette, Louisiana. In particular, Greystar, the general eontractor, agreed to erect, for Crescent, a complex composed of multiple structures, which would house apartment units as well as commercial businesses. In accordance with its construction contract, Greystar entered into a number of subcontracts and supply agreements with various third parties.

The project was completed in phases, and each building was issued a Certificate of Occupancy upon its completion. The Certificates of Occupancy were issued as follows:

• Building 5 — February 28, 2003
12* Building 4 — April 25, 2003
• Building 3 — May 28, 2003
• Building 4 — June 26, 2003
• Building 5 — July 24, 2003

Finally, a Certificate of Substantial Completion was executed on July 31, 2003, but was not recorded into the mortgage records in Lafayette Parish. On that date, La. R.S. 9:2772 provided a seven year per-emptive period for construction claims. Shortly thereafter, on August 15, 2003, La. R.S. 9:2772 was amended to shorten the peremptive period from seven years to five years.

On July 28, 2008, the plaintiff filed an arbitration claim against Greystar for performance issues arising from the contract. In response, Greystar filed a third party demand against various subcontractors and suppliers involved in the construction. Approximately three years later, just before the matter was to be arbitrated, the Louisiana Supreme Court decided Ebinger v. Venus Construction Corp., 10-2516 (La.7/1/11), 65 So.3d 1279. Relying on EbingePs suggestion that the 2003 amendment could be applied retroactively, Greystar and the subcontractors filed separate motions for summary judgments with the arbitration panel on the premise that Crescent’s claims were perempted. After a hearing, the arbitration panel granted the motions and dismissed all of the claims.

IsCrescent timely filed an application to vacate the arbitrators’ award in Civil District Court, as the arbitration proceedings took place in New Orleans. Although Crescent only named Greystar (along with its bonding company American Manufacturer’s Mutual Insurance Company) in its original arbitration claim, it included the subcontractors as defendants in its application to vacate the award. After removal and remand from federal court, Greystar and the subcontractors filed separate applications for an order to confirm the arbitrators’ award in Civil District Court. In addition, the subcontractors jointly filed an exception of no cause of action, asserting that Crescent had no claim against the subcontractors because there was no arbitration claim or ruling between Crescent and the subcontractors. All of the parties’ applications were consolidated in the trial court.

After a hearing, the trial court issued a judgment granting Greystar and the subcontractors’ applications to confirm the arbitrators’ award, denying Crescent’s application to vacate the award, and denying as moot the subcontractors’ exception of no cause of action. Additionally, the trial court granted American Manufacturers’ motion to recognize a foreign judgment and dismiss or stay the claims against them. Crescent timely filed this devolu-tive appeal. On appeal, the subcontractors filed a motion for partial dismissal with this Court.

| ¿ASSIGNMENTS OF ERROR

Crescent asserts three assignments of error that primarily complain of two legal errors committed by the trial court: 1) the trial court erred in confirming the arbitrator’s award, and 2) the trial court erred in granting American Manufacturer’s (Greys-tar’s surety) motion to recognize a foreign judgment.

In its first two assignments of error, Crescent asserts that the arbitration panel violated its due process rights; thus, the trial court committed legal error in confirming rather than vacating the arbitrator’s award.

STANDARD OF REVIEW

An appellate court reviews a district court judgment confirming an arbitration award de novo. NCO Portfolio Management, Inc. v. Walker, 08-1011 (La.App. 3 Cir. 2/4/09), 3 So.3d 628; FIA Card Servs., N.A. v. Smith, 44,923, p. 7 (La.App. 2 Cir. 12/22/09), 27 So.3d 1100, 1106, writ denied, 10-385 (La.4/23/10), 34 So.3d 265. Arbitration is favored, and an arbitration award is res judicata. Montelepre v. Waring Architects, 00-671, 00-672, p. 4, (La.App. 4 Cir. 5/16/01), 787 So.2d 1127, 1130 (citations omitted). Unless grounds for vacating, modifying or correcting the award are established, the award must be confirmed. Id. The burden of proof is on the party attacking the award. It can be challenged only on statutory grounds. Id.

La. R.S. 9:4210 sets out the only grounds to vacate an arbitration award:

In any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration.
IsA. Where the award was procured by corruption, fraud, or undue means.
B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

Where an award is vacated and the time within which the agreement required-the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators. Montelepre, 00-671, 00-672, p. 5, 787 So.2d at 1130.

In the absence of statutory or agreed to procedures, the arbitrator has broad discretion in conducting arbitration proceedings. Southern Tire v. Virtual Point Development, 00-2301, p. 6 (La.App. 4 Cir. 9/26/01), 798 So.2d 303, 307. The appellate court’s function is to determine if the arbitration proceedings have been fundamentally fair. Id. Arbitration awards may not be overturned for errors of fact or law. Tower Hill Trading Co., Ltd. v. Howard, Weil, Labouisse, Friedrichs, Inc., 96-463, p. 5 (La.App, 4 Cir. 1/22/97); 687 So.2d 1096, 1099. However, this Court has made it clear that due process violations require a reviewing court to vacate the award. Johnson v. 1425 Dawphine, L.L.C., 10-793 (La.App. 4 Cir. 12/1/10), 52 So.3d 962, 968-69, writ denied, 11-01 (La.2/18/11), 57 So.3d 334. See also Hennecke v. Canepa, 96-772, p. 3 (La.App. 4 Cir. 5/21/97), 700 So.2d 521, 522, writ denied, 97-1686 (La.10/3/97), 701 So.2d 210. “An arbitrator should be constantly vigilant of basic due process requirements, the first and foremost of | ¿which is the opportunity to present evidence and to be heard.” Pittman Construction Co. Inc. v. Charles Pittman, 96-1498, 96-1079, p. 13 (La.App. 4 Cir. 3/12/97), 691 So.2d 268, 274. The four grounds which require a reviewing court to vacate an arbitrator’s award are broad in scope and provide sufficient leeway to correct fundamental due process violations. Id.

DISCUSSION

In granting Crescent’s motion for- summary judgment, the arbitration panel, primarily relying on Ebinger v. Verms Const. Corp., 10-2516 (La.7/1/11), 65 So.3d 1279, retroactively applied the five-year amended peremptive period set forth in La. R.S. 9:2772. The panel found that the peremp-tive period began no later than July 24, 2003, and since the arbitration claim was filed on July 28, 2008, five years and four days after the cause of action arose, Crescent’s claim was perempted.

Here, the question presented is whether the five-year peremptive period set forth by the 2003 amendment to La. R.S. 9:2772 may be retroactively applied to Crescent’s claim. Crescent contends that such application would contravene due process guarantees and divest them of vested property rights in their cause of action, which accrued prior to the effective date of the amendment. We agree.

Statutory interpretation and construction to be given to legislative acts is a matter of law and rests with the judicial branch of government. Bourgeois v. A.P. Green Indus., Inc., 00-1528, p. 11 (La.4/3/01), 783 So.2d 1251,1260. Generally, statutes of limitation are remedial in nature and as such are generally accorded retroactive application. Ebinger, 10-2516, p. 7, 65 So.3d at 1285 (citing Lott v. Haley, 370 So.2d 521, 523 (La.1979)).

|7The Legislature did not expressly state that the 2003 amendment to La. R.S. 9:2772 was to be applied retroactively. However, since it is a procedural law, the Ebinger Court found that it could be applied retroactively provided that it does not operate to disturb a vested right. Id. A vested property right exists once a party’s cause of action accrues, and it may not be divested without violating constitutional due process guarantees. Cole v. Celotex, 599 So.2d 1058, 1064 (La.1992) (citations omitted).

In finding that Crescent’s claim was per-empted, the arbitration panel found that its cause of action accrued on July 24, 2003, at the latest. Since the amendment which shortened the peremptive period became effective on August 15, 2003, Crescent’s vested property right accrued before its enactment.

However, it is well settled that an amendment that shortens existing periods of limitation will not violate the constitutional prohibition against divesting a vested right if it allows a reasonable time for those affected by the act to assert their rights. Lott, 370 So.2d at 524; Falgout v. Dealers Truck Equipment Co., 98-3150, p. 12 (La.10/19/99), 748 So.2d 399, 407-08; Marsh Engineering, Inc. v. Parker, 94-1129 (La.App. 3 Cir. 5/8/96), 688 So.2d 1042, writ denied, 96-1434 (La.9/27/96), 680 So.2d 637. Thus, Greystar argues that the shortened peremptive period did not violate Crescent’s vested property rights because it had four years and eleven months to file its claim, which is more than reasonable.

Critically, the Legislature did not provide for this period. The Supreme Court, in Maltby v. Gauthier, 506 So.2d 1190, 1193 (La.1987), found that the Legislature’s failure to provide for a reasonable “grace” period can be construed as an indication that no effect on vested causes of action was intended. It further | ^advised that courts should refrain from independently supplying such a period absent evidence, either expressed or implied, of such an intent. Id. Likewise, we decline to do so.

In support of the arbitration panel’s ruling that retroactive application of the amendment was permissible without a legislative “grace” period, it primarily relied on Ebinger. In particular, it noted that the Ebinger Court indicated that the “grace” period requisite, previously set forth in Maltby and Lott, was not necessary. It further distinguished the latter cases, reasoning that in those cases the plaintiffs’ rights were completely extinguished upon the effective date of the amendments, whereas in this case, the plaintiffs had a reasonable time period to assert its vested rights.

Although Ebinger involved the 2003 amendment at issue in this case, it is not controlling, as the case involved an indemnity claim which had not accrued or vested. Id., 10-2516, p. 12, 65 So.Sd at 1288. The Court found that since the claim had not vested before the effective date of the 2003 amendment, it was unnecessary to apply the amendment retroactively, as a nonexistent claim could not be adversely affected by a change in the law. Id., 10-2516, p. 12, 65 So.3d at 1287-88. Consequently, any suggestion in Ebinger regarding whether a “grace” period requirement exists is dictum.

Additionally, the Maltby Court made no distinction between vested claims that were immediately extinguished versus those that were not. In fact, the Court rejected an argument similar to the one made by the defendants and adopted by the | apanel regarding reasonable time periods. Id. at 1192-93. In particular, the Maltby defendants argued that the statute provided a three-year outer limit which was a reasonable time limitation for asserting claims vested at the time of the statute’s enactment. Id. The Court refused to retroactively apply the statute when there was “no indication of any legislative intent, either expressed in the statute or implied from analysis of the overall language and purpose of the statute,” to affect claims vested before the effective date of the statute. Id. Thus, the distinction made by the panel is irrelevant, because Crescent falls within the class of litigants discussed in Maltby: those with vested claims before the amendment or enactment became effective.

Further, making a subjective judicial determination of what is reasonable on a case-by-case basis can lead to a disparity in rulings involving vested claimants. Interestingly, the panel acknowledged that “up until Ebinger, it had been assumed by some courts [Lott and Maltby ] that a per-emptive statute which shortened the time period for filing suit could not be applied retroactively unless it provided in the statute itself a specific grace period for filing suit.” However, it failed to consider that Ebinger was handed down nearly three years after Crescent’s arbitration proceedings began. Thus, when Crescent was scheduling its time delays within which it could file suit, it was operating under the holdings set forth in Lott and Maltby. At this point in time, it was impossible for Crescent to predict the implications made in Ebinger. Nevertheless, the panel burdened Crescent with this foresight. Imposing such a burden is fundamentally unfair and solidifies the importance of the holdings in Lott and Maltby.

| ^Considering that there is no indication that the legislature intended the 2003 amendment to affect those with vested rights, we find that the arbitration panel violated Crescent’s due process rights when it retroactively applied the five-year peremptive period to its claim, which vested before the amendment became effective. Accordingly, the trial court erred in confirming the arbitration panel’s award.

In its third and final assignment of error, Crescent claims that the trial court erred when it granted American Manufacturers’ motion to recognize a foreign judgment and stayed or dismissed claims against it, because the motion and summary rule was procedurally defective. We agree.

La. R.S. 13:4241 et seq. (Enforcement of Foreign Judgments Act) provides the procedure for enforcing of a foreign judgment. In particular, La. R.S. 13:4242 provides for the filing of an ex parte petition. Since American Manufacturers’ motion pleading did not comport with the procedure set forth above, the issue was not properly before the trial court. Thus, it erred in granting its motion.

DECREE

For the reasons discussed, the trial court’s judgment is reversed; the arbitrator’s award is vacated. Accordingly, the subcontractor’s motion to dismiss is hereby moot.

JUDGEMENT REVERSED; ARBITRATION AWARD VACATED.

      . The construction contract required the parties to submit their disputes to arbitration.

      . In response, Greystar filed an action in the Fifteenth Judicial District Court, seeking to have the court decide the effect of peremption issued raised by Ebinger. Crescent filed exceptions of lack of subject matter jurisdiction, arguing that the arbitration panel was the only entity that could rule on the peremption issue as it was a decision on the merits of the claim in arbitration. The trial court granted Crescent's exceptions and dismissed Greys-tar’s action.

      . H. Bruce Shreves, James H. Gill, Jr., and Stephen K. Yungblut.

      . The subcontractors named as defendants in the application included: SLI Framing Company, Southern Stucco, Inc., Floor Crete Enterprises, Inc., Delta Construction Co., Champion Windows, Inc., Bison Building Materials of Texas, Inc., Nationwide Gutter, Panel Truss of Texas (Longview), Inc., and Bristol Fiber-lite Industries, Inc. Bristol Fiberlite was later voluntarily dismissed from the lawsuit by the plaintiff.

      . This was the date that Building 1, the final building, was issued a Certificate of Occupancy.

      . Though the Maltby Court initially discussed the enactment of prescriptive statutes potentially affecting existing causes of action, it is clear that its holding equally applies to per-emptive statutes, as a vested right may be disturbed by either of the two limitation periods. Notably, the Court highlighted that restraining from supplying the legislative lapse was especially significant because the enactment at issue partially substituted a peremp-tive period for a prescriptive period.

      . The panel also cited to two appellate cases that pre-dated Maltby.


author: AMY, Judge.

text:
    Doris DOYLE v. Liwliwa RAMOS, M.D., et al.
    No. 13-1143.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      John L. Hammons, Nelson & Hammons, Shreveport, LA, for Plaintiff/Appellant, Doris Doyle.
    James R. Shelton, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Defendant/Appellee, Liwliwa Ramos, M.D.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

liThe plaintiff alleged that the defendant internal medicine physician had undertaken management of her breast health care and that the defendant deviated from the applicable standard of care by an alleged failure to follow a radiologist’s recommendation for a surgical biopsy following a mammogram. The plaintiff alleged that this breach, along with other alleged deviations, resulted in a delayed diagnosis of breast cancer and a lost chance of survival. The plaintiff filed suit seeking damages allegedly stemming from that delayed diagnosis. After a jury found in favor of the defendant, the trial court denied the plaintiffs motion for judgment notwithstanding the verdict. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The record establishes that the plaintiff, Doris Doyle, became a primary care patient of the defendant, Dr. Liwliwa Ramos, an internal medicine physician, in 1999. During that course of treatment in 2003, Dr. Ramos recommended, and Ms. Doyle underwent, a screening mammogram. The report of that 2003 mammogram resulted in the radiologist’s impression of “negative examination.” Ms. Doyle returned to Dr. Ramos’s office for several, unrelated appointments. During a March 9, 2005 visit, Dr. Ramos again referred Ms. Doyle for a mammogram. Although the mammogram appointment was scheduled or rescheduled, Ms. Doyle did not undergo the test during that time period.

The instant dispute stems from a July 31, 2006 visit during which Dr. Ramos again recommended a mammogram. As a result, a mammogram was scheduled for August 7, 2006, at West Calcasieu-Camer-on Hospital. However, Ms. Doyle did not have the mammogram performed at that time. Instead, the mammogram was | aperformed on September 11, 2006. The radiologist’s report from the September 2006 report indicated, in pertinent part, that:

Comparison is made of the previous examination of 3 June 2003. Since that time the patient has developed two areas of architectural distortion present in the left breast. One appears to be located in the upper outer quadrant and one in the medial one-half of the breast. Both of these are new when compared to the previous examination. They appear to be of increased density with spiculated borders and would be highly suspicious for malignancy. I would recommend obtaining a surgical consultation for biopsy of these areas.
IMPRESSION:
TWO AREAS OF ARCHITECTURAL DISTORTION HAVE DEVELOPED IN THE LEFT BREAST WHICH ARE FELT TO BE HIGHLY SUSPICIOUS FOR MALIGNANCY. I WOULD RECOMMEND OBTAINING A SURGICAL CONSULTATION FOR BIOPSY OF THESE AREAS.

According to the West Cal-Cam Hospital’s Director of Radiology and Nuclear Medicine, hospital procedure dictated that the report would be delivered via facsimile to the referring physician and a letter sent to the patient. However, Dr. Ramos denied having received such a report, and Ms. Doyle denied receiving a letter regarding the suspicious September 2006 mammogram.

Without apparent knowledge of the radiologist’s report by either the plaintiff or the defendant, Ms. Doyle returned to Dr. Ramos’s office several times during the first months of 2007. Subsequently, during a July 2007 visit, Dr. Ramos learned that Ms. Doyle had undergone the September 2006 mammogram. After obtaining the radiologist’s report from the mammogram, in August 2007, Dr. Ramos ordered subsequent testing. Ultimately, in September 2007, Ms. Doyle underwent a biopsy and modified radical mastectomy of the left breast. Testing | Ralso revealed a metastatic lymph node. Ms. Doyle underwent subsequent radiation and chemotherapy treatment.

Thereafter, Ms. Doyle instituted a proceeding before a Medical Review Panel regarding the treatment provided by Dr. Ramos, the radiologist interpreting the September 2006 mammogram, and the West Cal-Cam Hospital. The Medical Review Panel concluded that the evidence did not support Ms. Doyle’s claim that the health care providers failed to comply with the appropriate standards of care. In turn, Ms. Doyle filed the petition instituting this matter, again naming Dr. Ramos, the radiologist, and the hospital as defendants and alleging that the delay in treatment following the September 2006 mammogram resulted in a lost chance of survival. The latter two defendants were subsequently dismissed, however.

As the matter proceeded to a jury trial, Ms. Doyle alleged that Dr. Ramos breached the standard of care by failing to timely act upon the September 2006 radiologist’s report recommending surgical consultation for biopsy following the abnormal mammogram. Ms. Doyle contended that, even if Dr. Ramos’s office did not receive the September 2006 report, Dr. Ramos’s staff failed to satisfy office protocol for following up on test results. Additionally, Ms. Doyle suggested that Dr. Ramos failed to perform breast examinations during her visit and further failed to instruct her on self-breast examination. Such deviations, Ms. Doyle alleged, led to an eleven-month delay in diagnosis and progression of the breast cancer to the point of metastasis. Dr. Ramos noted at trial, however, that Ms. Doyle failed to have the mammogram completed at the time it was originally scheduled. Dr. Ramos contends that she had no notice that the mammogram was thereafter re-scheduled or that it had been completed.

|/The jury returned a verdict in favor of Dr. Ramos. Thereafter, Ms. Doyle filed a motion for judgment notwithstanding the verdict, which the trial court denied, finding that the evidence could have supported a verdict in favor of either party.

Ms. Doyle appeals, assigning the following as error:

I. The jury was manifestly erroneous in concluding that appellant had failed to prove by a preponderance of the evidence that Dr. Ramos breached the applicable standard of care which was a proximate cause of Ms. Doyle’s injuries.
II. The trial court erred in failing to grant appellant’s Motion for Judgment Notwithstanding the Verdict.

Discussion

Trial on the Merits

Burden of Proof

Louisiana Revised Statutes 9:2794 sets forth the burden of proof for medical malpractice actions, stating, in part, that:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., ... the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
| -(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

A fact finder’s determinations regarding whether a plaintiff proved the elements of the burden of proof of La.R.S. 9:2794 are findings of fact. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646. As such, an appellate court reviews the entirety of the record and will only reverse a fact finder’s determination of fact upon determining that a reasonable basis does not exist for the finding and that the fact finder was clearly wrong or manifestly erroneous. Id. In the event there are “two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id. at 650.

Verdict Form

The jury verdict sheet used in the present matter inquired:

1. Do you find, by a preponderance of the evidence, that Dr. Liwliwa Ramos breached the applicable standard of care owed to Doris Doyle, and if so, was this breach a proximate cause of injuries, if any, to Doris Doyle?

(Capitalization omitted). The jury indicated “NO” in answer to the question. Ms. Doyle recognizes that this interrogatory combined the breach of the standard of care element with that of causation, but that it omitted the question of whether the plaintiff proved the applicable standard of care. She contends that such an omission precludes a determination on review as to the jury’s actual conclusions. Ms. Doyle suggests that such confusion warrants a de novo review. We find no merit in that assertion.

While a misleading or confusing jury interrogatory may constitute reversible error, an appellate court uses the manifest error standard of review unless the interrogatories are sufficiently inadequate or incorrect so as to prevent the jury | fifrom reaching a verdict based on the law and the facts. Ardoin v. McKay, 06-171, (La.App. 3 Cir. 9/27/06), 939 So.2d 698, writ denied, 06-2606 (La.1/8/07), 948 So.2d 126. In this case, we find no such deficiency indicating that the jury was unable to return a verdict based on the law and facts. Although the interrogatory combined the applicable elements, and otherwise referred to an “applicable” standard of care rather than inquiring whether Ms. Doyle specifically demonstrated the standard of care, it is clear that, in total, the jury concluded that Ms. Doyle failed to sustain her burden of proof. See Bourque v. Essex Ins. Co., 12-810 (La.6/15/12), 90 So.3d 1031. As reviewed below, the record permitted such a verdict. Additionally, we point out that the record contains no indication that Ms. Doyle objected to the jury verdict sheet as submitted to the jury. See Rose v. Cablevision of Shreveport, 32,-855 (La.App. 2 Cir. 4/5/00), 755 So.2d 1039, writ denied, 00-1177 (La.6/16/00), 764 So.2d 964, writ denied, 00-1289 (La.6/16/00), 765 So.2d 340. Rather, the transcript indicates that Ms. Doyle’s counsel had “no objections to the Verdict Form[.]

Accordingly, we turn to review of Ms. Doyle’s central contention on appeal.

Merits

In questioning the jury’s verdict, Ms. Doyle returns to the assertion that the evidence demonstrated that Dr. Ramos breached the applicable standard of care in various respects. She notes that Dr. Sheldon Kottle, her expert in the field of internal medicine, nephrology, public health, and hypertension found that Dr. Ramos failed to apply the applicable standard in: 1) failing to perform periodic breast examinations of Ms. Doyle; 2) failing to teach Ms. Doyle how to conduct her own regular self-breast exams; and 3) failing to follow up on the ordered mammogram. Ms. Doyle asserts that, at trial, Dr. Ramos judicially confessed that |7she breached these standards. In light of that confession, Ms. Doyle argues, the evidence regarding causation is clear. Here, Ms. Doyle points to her expert in the fields of obstetrics and gynecology, Dr. William K. Hardin, Sr., who explained that the eleven-month period between the September 2006 mammogram and the eventual diagnosis and treatment contributed to the tripling of the mass and the metastasis to the lymph node.

Notwithstanding the jury’s prerogative to reject Ms. Doyle’s experts’ opinions in their entirety, we turn to consideration of the various alleged breaches of the standard of care. First, Ms. Doyle testified that Dr. Ramos never performed a breast exam during her various office visits. Dr. Ramos admitted at trial that she had not, in fact, performed such an exam during the period of concern. However, Dr. Ramos further explained that: “I usually offer breast exams. I usually actually do breast exams not only on those who come in for wellness exams, but also especially for those who are refusing mammogram. Unfortunately, most, if not all of these patients refusing — refusing for mammogram, usually also refuses [sic] breast exam.” Dr. Ramos acknowledged that she had not documented Ms. Doyle’s refusal of such an exam.

In addition to the fact that the jury could have credited Dr. Ramos’s account of the offer and refusal of breast examinations, the jury further heard from Dr. Lowell Anthony, Dr. Ramos’s expert in the fields of internal medicine and medical oncology. When asked whether he would consider such breast examinations to be part of the standard of care for a clinician undertaking a patient’s breast care, Dr. Anthony explained that he “would not consider it to be.” Certainly, evaluation of expert opinion is a matter left to the fact finder. See Fontenot v. Patterson Ins., 09-669 (La.10/20/09), 23 So.3d 259. Additionally, however, the jury could have rejected an argument that such a breach caused the delay in diagnosis.

Similarly, with regard to Ms. Doyle’s assertion that Dr. Ramos failed to teach her how to perform a self-breast exam, we note that, when asked if she had taught Ms. Doyle how to perform such a test, Dr. Ramos explained: “I can’t teach someone breast exam [sic] if they don’t allow me to do breast exam. I usually teach them how to do it when I’m doing it.” Further, when Dr. Anthony was asked whether he was of the opinion that “teaching a woman how to do self breast exams is not part of the standard of care for the clinician undertaking breast care

management^]” he responded: “Correct. Correct.” Additionally, and as with the physician-performed breast exams, there was no evidence requiring a finding that a failure to instruct as to self-breast exams again contributed to the delay in diagnosis.

Finally, we turn to Ms. Doyle’s central argument at trial, i.e., that Dr. Ramos’s failure to follow up on her July 31, 2006 order for a mammogram breached the applicable standard of care and, ultimately, caused the progression of the breast cancer. On this point, the jury heard evidence indicating that upon the order of the mammogram, Dr. Ramos scheduled Ms. Doyle’s mammogram for August 7, 2006. Yet, Ms. Doyle did not attend that appointment and, instead, rescheduled that appointment for the September 2006 date to better comport with her work schedule. This pattern was consistent with Ms. Doyle’s previous pattern of not obtaining a mammogram as recommended by Dr. Ramos. In this particular instance, Dr. Ramos explained that her staff will follow up on an order of a |3mammogram within one week of its scheduled date. While Dr. Ramos explained that her staff did not recall whether this particular test was followed up on within that period in light of the period of time up to trial, it is clear that the jury was aware that such a follow up would have indicated only that Ms. Doyle did not attend the appointment. There is no indication, otherwise, that Dr. Ramos became aware that the appointment was re-scheduled or that a September 2006 report was generated. No documentation indicated that Dr. Ramos’s office received that report from the hospital. Instead, the evidence reflected uncertainty regarding whether the radiologist’s report and the corresponding letter to Ms. Doyle were delivered.

Additionally, Dr. Ramos expressed to the jury that Ms. Doyle had a history of not timely complying with her recommendations regarding mammogram screening. On this point, Dr. Peter Warren Karam, Dr. Ramos’s expert in internal medicine, explained the process of an ordering physician’s tracking of the results of an ordered test and stated that “if you did not receive the results and you |10repetitively tracked it, ... it would lead you to believe that it probably just wasn’t done again[.]” In light of Ms. Doyle’s history of irregular mammogram compliance and the confusion surrounding the delivery of the radiologist’s report from the September 11, 2006 mammogram, we conclude that the jury was not required to find that the plaintiff demonstrated a breach of standard of care regarding the follow up to the mammogram. Instead, the jury could have found the evidence on this point unpersuasive. We do not disturb any such credibility determination.

Further, and although Ms. Doyle’s expert testified regarding the progression of the breast cancer during the subject eleven-month period, it is noteworthy that Dr. Ramos presented evidence regarding causation as well. Dr. Anthony explained to the jury that, in his opinion, even if the point of diagnosis had been made at the time of the radiologist’s report, in September 2006, Ms. Doyle’s diagnosis would have been the same. He suggested that, even with an earlier diagnosis, Ms. Doyle would have required a mastectomy and would have been treated with both radiation and chemotherapy. Again, to the extent the jury may have relied on this expert opinion, we leave that determination undisturbed.

For these reasons, we find that the jury’s verdict is supported by the record. Accordingly, this assignment of error lacks merit.

Motion for Judgment Notwithstanding the Verdict

Finally, we note here that Ms. Doyle specified the trial court’s denial of her motion for JNOV as error. That assignment is not separately briefed, however, and may therefore be deemed abandoned pursuant to Uniform Rules — Courts of Appeal, Rule 212.4. Additionally, as noted above, we have found that the jury’s verdict is supported by the record. See Joseph v. Broussard Rice Mill, Inc., 00-628, p. 5 (La.10/30/00), 772 So.2d 94, 99 (wherein the supreme court explained that, on review of a denial of a motion for JNOV, an appellate court considers whether “the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict[.]”)

DECREE

For the foregoing reasons, the trial court’s judgment is affirmed. All costs of this proceeding are assessed to the plaintiff — appellant, Doris Doyle.

AFFIRMED.

      . When asked about the re-scheduling of the mammograms, the plaintiff explained that her work schedule precluded her from honoring the appointments.

      . We note, too, that Ms. Ramos testified that she did, in fact, perform self-examinations on occasion, even without instruction.

      . The Director of Radiology and Nuclear Medicine from the hospital, Jerry W. Pelo-quin, II, explained that the facility’s Picture Archival and Communication System initiates the sending of a facsimile of the radiologist’s report to the referring physician upon the report's transcription. Mr. Peloquin explained that, in reviewing the hospital’s documentation, he found no indication that there had been a problem widi the transmittal.
      However, Mr. Peloquin also testified that the hospital had a system in place where the mammography technicians followed up on abnormal mammograms with a telephone call to the referring physician’s office. He explained that, to his knowledge, all reasonable efforts were made to contact the physician's office "with no resolution as to what took place with the patient.” He explained that a letter was also mailed out to the patient, but that it was not sent by certified mail.
      On this point, the radiologist producing the report also testified generally regarding the hospital’s follow-up procedure. He explained that a suspicious mammogram such as that involved in this case would be listed in a booklet maintained by the mammogram technicians. Those technicians were responsible for contacting the referring physician in order to confirm that the information had been received. The radiologist explained that when this matter was filed, he obtained the booklet and that it was his understanding that the patients listed were "crossed off” when the physician’s office was contacted and confirmation that subsequent treatment would be pursued. Although other patients listed in the book were crossed off, Ms. Doyle’s name was not.


author: GENOVESE, Judge.

text:
    Gina ALPIZAR v. DOLLAR GENERAL.
    No. 13-1150.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      Michael M. Meunier, Sullivan Stolier Knight, LC, New Orleans, LA, for Defendant/Appellant, Dolgencorp, LLC.
    Mark Zimmerman, Lake Charles, LA, for Plaintiff/Appellee, Gina Alpizar.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|,In this workers’ compensation case, Defendant/Employer, Dolgencorp, LLC, doing business as Dollar General (hereafter Dollar General), appeals from a judgment in favor of Plaintiff/Claimant, Gina Alpizar, granting her request for a change in orthopedic surgeon, awarding her supplemental earnings benefits (SEB), a functional capacity evaluation (FCE), the costs associated with the litigation, penalties, and attorney fees. Ms. Alpizar has answered the appeal, seeking additional attorney fees for work done on appeal. For the reasons that follow, we affirm the judgment in its entirety, and we render an attorney fee award in favor of Ms. Alpizar for work done on appeal.

FACTS AND PROCEDURAL HISTORY

On September 2, 2008, Ms. Alpizar, who was employed by Dollar General as an assistant manager of its Merryville, Louisiana store, tripped over a box and injured her right knee and lower back. On December 29, 2010, Ms. Alpizar filed a disputed claim for compensation, alleging that Dollar General denied a doctor-recommended MRI and claiming entitlement to SEB, penalties, and attorney fees. She filed an amended disputed claim for compensation on August 10, 2011, alleging that Dollar General denied doctor-recommended physical therapy and claiming entitlement to penalties and attorney fees.

In its answer, Dollar General admitted that Ms. Alpizar was injured in the course and scope of her employment and that it paid her indemnity benefits from December 2008 through December 2009; however, Dollar General averred that |2Ms. Alpi-zar’s “current problems with her back and right knee are not related to the alleged work accident.” Dollar General further alleged that Ms. Alpizar had “voluntarily terminated her employment[.]”

This matter was tried on March 4, 2013, after which the Workers’ Compensation Judge (WCJ) took the matter under advisement and. accepted post-trial memoran-da. On May 20, 2013, the WCJ rendered oral reasons, wherein he characterized the matter before him as “focus[ing] on Ms. Alpizar’s contention that her employer unreasonably expected her to return to work performing duties beyond the limits of her post-accident physical condition.”

As previously stated, there is no dispute that Ms. Alpizar injured her right knee and back while in the course and scope of her employment with Dollar General. She initially saw her primary care physician, Dr. Larry Brown, and nurse practitioner, Anita Drake, at Newton Family Clinic. For her right knee, Ms. Alpizar was treated by Dr. J. David DeLapp. In March 2009, Dr. DeLapp performed a partial lateral meniscectomy and chondroplasty on Ms. Alpizar’s right knee. On March 24, 2009, Dr. DeLapp released Ms. Alpizar to “return to work without restrictions concerning her knee only[.]” For her back, Ms. Alpizar was initially treated by Dr. Richard Francis. On September 25, 2009, Dr. Francis performed a lumbar laminec-tomy and discectomy at L-3, L-4, and L-5 on Ms. Alpizar. On December 17, 2009, Dr. Francis found that Ms. Alpizar had reached “maximum medical improvement” and released her from his care, stating she could “return[ ] to the workforce in a full duty capacity.” It is at this point that Dollar General contends its responsibility for Ms. Alpizar’s ailments ceases. Ms. Alpizar, on the other hand, insists that she was unable to return to the workforce when Dr. Francis released her in December 2009, just two months after |3a multilevel back surgery. She alleges that her medical treatment post-December 2009 is Dollar General’s continuing responsibility because she had not fully recovered from her September 2, 2008 work accident.

Ms. Alpizar testified that she continued to experience pain after her release by Dr. Francis in December 2009, and returned to the Newton Family Clinic. On April 5, 2010, an FCE was ordered to determine whether she was physically able to work. The FCE, performed on August 13, 2010, found that Ms. Alpizar was capable of performing light-duty, sedentary work only on a part-time basis. We find it noteworthy that when Dr. DeLapp released Ms. Alpi-zar in March 2009, he did state, relative to her right knee, that she may not tolerate being released without restrictions and that an FCE may ultimately be necessary.

On November 22, 2010, Ms. Alpizar saw Dr. Clark Gunderson, an orthopedic surgeon. He recommended a lumbar MRI, a right-knee replacement, and opined that she was incapable of working in any capacity. Ms. Alpizar returned to Dr. Francis on June 16, 2011. Dr. Francis assessed Ms. Alpizar as having “[cjhronic low back and right lower extremity pain” and “right lumbar radiculopathy.” He, like Dr. Gun-derson in November 2010, recommended “[a]n MRI study of the lumbar spine with and without contrast as well as lower extremity electroneurographic studies[.]”

At trial, Dollar General defended its refusal to authorize Dr. Gunderson’s lumbar MRI by asserting that Dr. Francis was Ms. Alpizar’s treating physician and that she had been released from his care to return to work on December 17, 2009. It also took issue with the April 2010 prescription from the Newton Family Clinic for Ms. Alpizar to have an FCE because it was signed by a nurse practitioner and not a doctor. Dollar General also contends that Ms. Alpizar voluntarily terminated 14her employment because, after Dr. Francis released her in December 2009, she did not contact Dollar General about returning to work. Therefore, Dollar General considered the ailments experienced by Ms. Alpizar after December 2009 as being unrelated to her September 2, 2008 work accident. Relative to Ms. Alpizar’s request to see Dr. Gunderson, Ms. Alpizar’s request was not made until June 2011, seven months after she actually saw him on November 20, 2010. Dollar General argued it was within its rights to deny all requests for treatment made by Ms. Alpi-zar.

In his extensive oral reasons for judgment, the WCJ ruled in favor of Ms. Alpi-zar, as set forth in the following significant excerpt:

Dollar General’s view is that it has followed the recommendations of Ms. Alpi-zar’s treating orthopedic surgeons, Drs. DeLapp and Francis, both of whom felt she could return to work with no restrictions. Her visits to Dr. Gunderson, in the employer’s opinion, [were] unwarranted and had more to do with her litigation strategy than any valid medical purpose.
Actually, both sides questioned the motives of the physicians who espoused an opposing view. Claimant counsel suggested that Dr. Francis may have caved to pressure from the insurance company, and defense counsel minced few words in suggesting that Dr. Gun-derson was selected by Ms. Alpizar’s counsel because he could be relied upon to find her disabled.
I find these comments to be mere editorial asides, having little to do with the facts at hand since I have neither the information, insight, nor inclination to gauge a physician’s motives.
The fundamental question to be addressed in this case is whether Ms. Alpi-zar is simply doctor shopping in an effort to avoid full-time employment and cash in on ill-gotten workers’ compensation benefits, or whether she is a victim of a bureaucracy that chose to cling to an out-dated diagnosis, completely ignoring the later medical evidence.
Ms. Alpizar presented as a woman who appeared far older than her years, due I suspect to a variety of serious medical conditions including diabetes, emphysema, heart disease and cirrhosis. From 1¡¡what she said, and from what the record shows, she has worked all of her adult life, mostly in lower-skilled job[s] at low pay.
I am aware of how deceptive appearances can be; however, nothing she said was the least bit suggestive of being cunning or even clever. She is neither articulate nor sophisticated in speech, but she did seem to try, with some strained effort, to explain her position as best she could. She was very persuasive in trying to convince the Court that she did not want to be out of work permanently; rather, she wanted to improve to the point where she could work as many years as possible, given her physical condition.
At no point did she whine, complain, or accuse. My guess is that she was not a particularly easy client for the insurance company to deal with because she did not seem to have a very good grasp on what could have been done to improve her communication somewhat with the adjuster or the doctors. She appeared to be a passive and self-effacing individual, either convinced that the system would somehow work or resigned to the fact that it just may not.
This is not a totally subjective opinion on my part. A timeline showing the events after her injury to the date of trial shows vast gaps, months long in some cases, where absolutely nothing was done to move her recuperation process along.
Defense counsel indicated that the instant litigation was not Ms. Alpizar’s idea but that of her lawyer. He is probably right. He is also correct in his assertion that Ms. Alpizar did not go through the correct administrative procedure in seeking to change her orthopedic physician.
But rigid, unbending adherence to administrative procedure is what caused this problem in the first place. There is no question that this employer had in its hand a statement from Dr. Francis that Ms. Alpizar, two months or so from a major spinal surgery, could return to work, presumably to start climbing ladders, loading boxes, stocking shelves, and doing everything she did before her surgery for the same duration at the same pace.
The employer interpreted this particular physician’s diagnosis with almost [bjiblical literalness and proceeded straightaway to get this employee back to work, doing precisely what she did before she was injured. Later, when the results of a functional capacity examination clearly showed the woman had problems and needed work restrictions, this information seems to have been dismissed out of hand.
When another orthopedic surgeon diagnosed her as needing a complete replacement of her injured knee, the employer’s response | fiwas to complain she shouldn’t be seeing another doctor in the first place.
Ms. Alpizar candidly told the Court that she changed physicians after an attorney suggested she do so, but her motive for doing so was to find some healthcare provider who would listen to, and perhaps treat her so she can get back to work in some capacity. The employer insists that this change was unreasonable and unnecessary; however, both the functional capacity exam and another experienced orthopedic surgeon found her complaints were valid. It is not at all surprising that a 2009 evaluation of a spinal and knee problem might very well change, especially on a woman in frail health to begin with.
There is no Third Circuit jurisprudence indicating, or even hinting, that a post-surgical evaluation of a patient’s condition should not be reconsidered in light of subsequent medical events. It was unreasonable for the employer to do so in this case, and entirely reasonable for Ms. Alpizar to seek other medical assistance when it appeared obvious that the employer was not going to acknowledge, much less treat, her deteriorating knee problem.
I am not sure that I agree with claimant counsel that Ms. Alpizar wanted a new physician because she felt that there was some sort of collusion between the employer and Dr. Francis; I think she was in pain and needed someone to help her.
The FCE should have presented adequate notice to the employer that Ms. Alpizar’s original unrestricted return to work diagnosis should be re-examined. It obviously didn’t. Dr. Gunderson’s opinion that the knee must be replaced should have triggered at least some curiosity in this woman’s status. It didn’t. When Dr. Francis examined Ms. Alpizar at the request of the employer and was clear in his diagnosis that she had a right lumbar radiculopathy, this might have prompted some interest in taking another look at the case, but it didn’t.
Throughout the several years of postoperative degeneration, Dollar General held to its original “back to your regular duties” order as inviolate. While Ms. Alpizar presents the Court with a current report of her medical condition, along with a relatively recent FCE, the employer continues to rely on its original diagnosis, thoroughly dismissing the possibility that change may have occurred.
For these reasons which I trust I have made clear, the Court rules as follows:
The medical evidence shows conclusively that Gina Alpizar cannot perform her pre-injury duties at Dollar General, entitling her to ^supplemental earnings benefits, based on a zero rate earning capacity, from December 21, 2009[,] forward.
A $2,000.00 penalty is assessed for the employer’s failure to reasonably contr-over [sic] her claim to S.E.B.
Good and sufficient reason has been presented for her request to change orthopedic surgeons from Dr. Francis to Dr. Gunderson.
Her request for a functional capacity examination should have been granted. There was no good reason at all for Dollar General refusing to do so. A $2,00[0.00] penalty is assessed therefore ].
Claimant counsel has presented a fee petition in support of its request in the amount of $13,000[.00]. Given the complexity of this case, along with the conduct of the defendant, this amount appears to be reasonable] and is granted.
Reimbursement of the litigation, FCE, and medically related expenses which are outlined in detail on “Plaintiff Exhibit 21” is hereby also ordered.

Judgment in this matter was signed on May 28, 2013, whereby: (1) Ms. Alpizar was “awarded supplemental earnings benefits, at a zero earning rate, from December 1, 2009 forward”; (2) Ms. Alpizar was “awarded a $2,000.00 penalty for [Dollar General]’s failure to institute SEBs as of December 21, 2009”; (3) Ms. Alpizar’s “request for a change in orthopedic surgeons from Dr. Richard Francis to Dr. Clark Gunderson [was] granted”; (4) Ms. Alpi-zar’s “request for a functional capacities evaluation was reasonable”; (5) Dollar General was “assessed a $2,000.00 penalty for failing to grant that request”; (6) “attorney[ ] fees in the amount of $13,000.00 [were] awarded to [Ms. Alpizar]’s counsel”; and, (7) Ms. Alpizar was “awarded the costs associated with the litigation and the FCE ... in the total amount of $2,279.89.” Dollar General appeals.

| ^ASSIGNMENTS OF ERROR

Dollar General sets forth four assignments of error:

1. The trial judge clearly erred in awarding supplemental earnings benefits!.]
2. The trial judge clearly erred in granting the claimant’s request for a change in orthopedic surgeons!.]
3. The trial judge clearly erred in awarding penalties and attorney!] fees and in finding that defendant did not reasonable [sic] controvert the claimant’s claims[.]
4. The trial judge clearly erred in awarding the costs associated with the litigation and the functional capacities evaluation.

Ms. Alpizar has answered Dollar General’s appeal, seeking an additional award of attorney fees for work done on appeal.

STANDARD OF REVIEW

[F]actual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman, supra at. 737-38; Sto- bart v. State through Dept, of Transp. and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

Poissenot v. St. Bernard Parish Sheriffs Office, 09-2793, p. 6 (La.1/9/11), 56 So.3d 170,174.

LAW AND DISCUSSION

Supplemental Earnings Benefits

Dollar General contends that the WCJ erred in awarding SEB to Ms. Alpi-zar from December 2009 forward and in awarding the $2,000.00 penalty for its failure to institute SEB. On appeal, Dollar General argues:

liiThere is no opinion from any medical doctor that Ms. Alpizar was disabled or restricted from work in any fashion until Dr. Gunderson’s litigation opinion of November 22, 2010. The only other evidence of some type of restriction is the FCE of August 13, 2010, but even if that is to be the guiding source for the determination of whether SEBs are owed, those benefits would only be owed from August 2010 forward, not from December 1, 2009.

The law pertaining to SEB was recently set forth by our supreme court in Poisse-not, 56 So.3d at 174-75 (footnote omitted):

“The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra at 556. “In determining if an injured employee has made out a prima facie ease of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1009 (La.1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d 1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that job was available to the employee in his or the employee’s community or reasonable geographic location. La. R.S. 23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009.
The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Daigle, supra at 1007.... “In determining whether a [WCJ’sjfinding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine all evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages.” Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1166.

A review of the record reveals that the WCJ relied upon the trial testimony of Ms. Alpizar in awarding SEB and a $2,000.00 penalty. At trial, Ms. Alpizar 110explained that her duties as assistant manager entailed opening and/or closing the store, mopping, sweeping, handling rolltainers, stocking the shelves with merchandise from the rolltainers, putting up signs, sometimes climbing a ladder in order to stock shelves or hang signs, helping customers, and watching the register. Ms. Alpizar described her September 2, 2008 on-the-job accident to the WCJ, stating:

It started like any other day. I just— you know, some guy hollered down the food — wanted something on the shelf, and I went to help find it; and when I helped him find it, there was an employee — somebody was wanting to get checked out, so I was working it, too. So, I turned around. Before I knew it, somebody throwed [sic] a box down there at the end cap[,] and I went that way, turned right, and that’s when I fell over it.

According to Ms. Alpizar, after the accident, she “did a little bit of light duty [work] for a couple of days[,]” but the manager informed her that Dollar General didn’t have light duty work. In December 2008, Dollar General began paying Ms. Alpizar temporary total disability benefits which it terminated in December 2009. Ms. Alpizar offered the August 2010 FCE performed and the November 2010 opinion of Dr. Gunderson to further support her position that she is entitled to SEB from the date of termination, December 2009.

The WCJ found that Ms. Alpizar proved by a preponderance of the evidence that her disability was causally connected to her September 2008 work injury. Dollar General contends that the evidence offered by Ms. Alpizar to establish her entitlement to SEB is insufficient. However, other than Dr. Francis’ December 17, 2009 opinion, Dollar General offered no evidence that Ms. Alpizar was not entitled to SEB.

ln After a thorough review of the record and relevant jurisprudence, and considering the credibility findings by the WCJ, we find that the extensive oral reasons for judgment adequately explain and support its decision with respect to Ms. Alpizar’s entitlement to SEB. The WCJ found no evidence that Dollar General ever offered Ms. Alpizar anything other than “precisely what she did before she was injured.” It is evident that the WCJ considered Dr. Francis’ December 2009 medical opinion unpersuasive. The WCJ further found Ms. Alpizar credible in her assertions at trial that her knee and back pain made it impossible for her to work. In finding Ms. Alpizar entitled to SEB, it is clear that the WCJ accepted her testimony as to her physical ability, or lack thereof, as well as the findings of the FCE and Dr. Gunder-son, which corroborated her claim that she was entitled to SEB due to her inability to earn ninety percent or more of her average pre-injury wage. Thus, we find no manifest error in the WCJ’s award of SEB to Ms. Alpizar.

Change in Orthopedic Surgeon

Dollar General also urged that the WCJ erred in finding that Ms. Alpizar was entitled to treatment from Dr. Gunderson. Dollar General particularly took issue with the fact that Ms. Alpizar’s formal request was not made until June 2011, seven months after she saw Dr. Gunderson in November 2010. Dollar General contends that it fulfilled the requirements of La.R.S. 28:1121(B)(1), which states “[t]he employee shall have the right to select one treating physician in any field or specialty.” Dollar General argues that it fulfilled its statutory obligation under La.R.S. 23:1121(B)(1) since Ms. Alpizar chose to see Dr. Francis, and Ms. Alpizar failed to prove a medical necessity under La.R.S. 23:1203(A) in order for Dollar General to provide her treatment with another physician.

_|^An employer’s duty to furnish medical expenses is governed by La.R.S. 23:1203(A), which provides, in pertinent part:

In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services.

The WCJ found “good and sufficient reason” for Ms. Alpizar’s request to change orthopedic surgeons from Dr. Francis to Dr. Gunderson. Dollar General’s challenge of the medical necessity for a change in Ms. Alpizar’s orthopedic surgeons is purely argument, not evidence. The evidence, however, reflects that Dr. Francis opined that Ms. Alpizar was able to return to the workforce two months after her back surgery. Further, her request for an FCE was rebuffed by Dollar General, which relied upon the opinion of Dr. Francis. Considering these facts and circumstances, it is both reasonable and understandable that Ms. Alpizar would choose not to return to Dr. Francis and would seek to change her orthopedic surgeon. Hence, we disagree with Dollar General’s assertion that the WCJ erred in approving Ms. Alpizar’s request for a change in orthopedic surgeon.

As earlier stated, we find the WCJ’s extensive oral reasons for judgment adequately explain his decision allowing Ms. Alpizar to change orthopedic surgeons. Accordingly, we find no manifest error in the WCJ’s ruling that Ms. Alpizar was entitled to treatment with Dr. Gunderson without approval, even though she had been released to return to work by Dr. Francis.

Penalties and Attorney Fees

Dollar General contends that the WCJ erred in assessing penalties and attorney fees. Specifically, it argues the WCJ erred in finding that it failed to | ^reasonably controvert Ms. Alpizar’s claims and awarding: (1) a $2,000.00 penalty for failing to pay SEB; (2) a $2,000.00 penalty for refusing to authorize the FCE; and, (3) $13,000.00 for attorney fees.

Louisiana Revised Statutes 23:1201(F) authorizes penalties and attorney fees in situations where the employer failed to commence, or recommence, payment of benefits timely, to pay continued installments timely, or to pay medical benefits timely.

“To avoid the imposition of penalties and attorney fees, the employer and its insurer must provide factual and medical evidence to reasonably controvert a workers’ compensation claim.” Landry v. Furniture Center, 05-643, p. 10 (La.App. 3 Cir. 1/11/06), 920 So.2d 304, 311, writ denied, 06-358 (La.4/28/06), 927 So.2d. 290. Whether or not the employer is cast with attorney fees and penalties is a question of fact that will not be reversed on appeal absent manifest error. Kibodeaux v. Cajun Bag & Supply Co., 99-149 (La.App. 3 Cir. 6/2/99), 742 So.2d 582.

Lambert v. Brookshire Grocery Co., 06-1001, p. 11 (La.App. 3 Cir. 12/20/06), 945 So.2d 918, 927.

The WCJ found that Dollar General failed to reasonably controvert Ms. Alpi-zar’s requests for SEB and a FCE. Again, the only evidence offered by Dollar General as to why it felt it was within its rights to deny Ms. Alpizar’s requests is Dr. Francis’ release. Dollar General also argued that Ms. Alpizar’s poor health, and not her work-related injuries, was the reason she could not work. Dollar General did not present factual and medical evidence to reasonably controverted Ms. Alpizar’s claims. Ms. Alpizar’s evidence, particularly the FCE, corroborate her injuries.

After a thorough review of the record and relevant jurisprudence, and considering the credibility findings by the WCJ, we find no manifest error in the [UWCJ awarding a $2,000.00 penalty and $13,000.00 in attorney fees for failing to pay SEB and a $2,000.00 penalty for refusing to authorize the FCE.

Costs of Litigation and the Functional Capacity Evaluation

The WCJ cast Dollar General with the costs associated with the litigation and the FCE. Dollar General asserts the WCJ erred in awarding reimbursement of the FCE because Ms. Alpizar failed to prove it was medically necessary.

The record reflects that a written demand, dated April 6, 2010, was sent to Dollar General based on the prescription written by Anita Drake, a nurse practitioner at Newton Family Clinic, on April 5, 2010. An authorization from Dollar General was not received; however, Ms. Alpi-zar had an FCE performed on August 13, 2010. The results substantiated Ms. Alpi-zar’s complaints relative to her back. Dollar General continues to argue that it was error for the WCJ to attribute Ms. Alpi-zar’s inability to work to her September 2008 work accident, and not her poor health, in general. While the medical records and testimony confirm that Ms. Alpi-zar did have health problems, Dollar General did not prove that her poor health did anything more than exacerbate her inability to work because of her proven injuries. We find no manifest error in WCJ’s determination that medical necessity existed and in casting the costs of the FCE being against Dollar General.

Dollar General also asserts the WCJ erred in assessing it with the costs associated with the litigation. An appellate court reviews a WCJ’s assessment of court costs under an abuse of discretion standard. Lambert, 945 So.2d 918. Given that Ms. Alpizar prevailed on her claims before the WCJ, we find no abuse of discretion in the WCJ’s assessment of costs against Dollar General.

| 15Ms. Alpizar’s Answer to Dollar General’s Appeal

Ms. Alpizar requests additional attorney fees for work done on appeal. “The general rule is that an increase in attorney fees is usually allowed where the WCJ awarded a party attorney fees and that party is forced to and successfully defends an appeal, provided that the party properly requests such an increase.” Simpson v. Lafayette Consol. Gov’t, 09-816, p. 10 (La.App. 3 Cir. 2/3/10), 29 So.3d 727, 733, writ denied, 10-477 (La.4/30/10), 34 So.3d 292 (citing McKelvey v. City of Dequincy, 07-604 (La.App. 3 Cir. 11/14/07), 970 So.2d 682). Ms. Alpizar was awarded attorney fees by the WCJ. Having affirmed the judgment of the WCJ, we award Ms. Alpizar $3,500.00 in attorney fees for work done on appeal.

DECREE

Accordingly, for the foregoing reasons, we affirm the May 23, 2013 judgment of the Office of Workers’ Compensation in its entirety. Ms. Alpizar is awarded additional attorney fees of $3,500.00 for work performed on this appeal. All costs of this appeal are assessed against Defendant/Employer, Dolgencorp, LLC, doing business as Dollar General.

AFFIRMED AND RENDERED.

      . Ms. Alpizar identified her employer as Dollar General in her disputed claim for compensation; however, we note that Dollar General is owned and operated by Dolgencorp, LLC. Since the parties refer to Defendant/Employer herein as Dollar General, we will do likewise.

      . Ms. Alpizar described a rolltainer as being "a big caged building with [items] stacked on, groceries, bleach, dog food_It could probably be up to 500 pounds to move it[.]” According to Ms. Alpizar, she would “roll them around in the store.”