text:
    Corey LAMARTINIERE v. BOISE CASCADE CORPORATION.
    No. 2014-C-1195.
    Supreme Court of Louisiana.
    Oct. 24, 2014.
   PER CURIAM.

|, Writ granted in part, otherwise denied.

We granted this writ in part in this workers’ compensation case to address the procedural issue concerning whether the Court of Appeal can modify a judgment in favor of a non-appealing party when the appellate court reverses the trial court’s judgment, which was granted fully in favor of the non-appealing party, and the non-appealing party did not file an answer to the appeal. For the following reasons, we find the Court of Appeal erred as a matter of law in requiring the claimant to file an answer to the appeal for a modification of the judgment granted fully in favor of the non-appealing party. This writ is denied in all other respects. Accordingly, we reverse in part and remand to the Court of Appeal for further consideration.

The claimant, Corey Lamartiniere, filed suit against defendant Boise Cascade Corporation (Boise) after the defendant discontinued all benefits based upon its belief that claimant had committed fraud in violation of La.Rev.Stat. 23:1208. The trial court found the claimant did not violate La.Rev.Stat. 23:1208 and reinstated temporary total disability benefits (TTDs) from the date of his termination. Boise appealed. The Court of Appeal affirmed the trial court’s finding 12that Boise failed to meet its burden of proving fraud but reversed the trial court’s reinstatement of TTDs, holding the trial court committed manifest error in finding claimant met his burden of proving entitlement to continued TTDs. Additionally, the Court of Appeal declined to consider the claimant/appellee’s alternative request in his brief for supplemental earnings benefits, for which a worker unable to make 90% of his pre-accident wage may be eligible. The appellate court held it could not consider the request because the claimant did not file an answer to Boise’s appeal.

Because the trial court’s judgment was granted fully in favor of the claimant, the claimant was under no obligation to answer the appeal. Under Louisiana law, “an appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant.” La. C.C.P. art. 2133. See also Hildebrand v. City of New Orleans, 549 So.2d 1218 (La.1989); Logan v. Louisiana Dock Co., 541 So.2d 182 (La.1989). Therefore, the Court of Appeal fell into error in requiring the claimant to file an answer to the appeal under these circumstances.

In its judgment, the appellate court commented: “Finally, because Claimant did not answer Boise’s appeal, we cannot grant the request in his appellee brief that he be awarded SEBs [supplemental earnings benefits] ‘because to do so would result in a modification in favor of the non-appealing [party], contrary to Louisiana law.’ La.CCP art. 2133. Matthews v. Consol. Cos., Inc., 95-1925, p. 1 (La.12/8/95), 664 So.2d 1191, 1191.” However, Matthews is inapposite. In Matthews, only the plaintiff appealed for an increase in the jury’s personal injury award. The defendant did not appeal nor file an answer to the appeal. The Court of Appeal denied the plaintiffs requested increase and instead decreased the jury’s personal injury award. We granted writs and reversed the Court of Appeal, because it was without authority to modify the jury’s award in favor of the non-appealing defendant. Under the plain language of La. C.C.P. art. 2133, the defendant was under an obligation to file an |sanswer in order to obtain a reduction of the jury’s award. In contrast, the claimant in the present case, having no desire to modify the trial court’s judgment, was not required to file an answer to the appeal under La. C.C.P. art. 2133. Because the Court of Appeal reversed the original judgment which the claimant had not sought to modify, the claimant now has a potential claim for supplemental earnings benefits.

DECREE

We hereby grant the claimant’s writ in part, reversing the Court of Appeal’s ruling that claimant had to file an answer to the appeal for consideration of his eligibility for supplemental earnings benefits. We remand this case to the Court of Appeal for a determination of whether the record has been sufficiently developed to support a finding regarding the claimant’s entitlement for supplemental earnings benefits. In all other respects this writ is denied.

GRANTED IN PART, DENIED IN PART, AND REMANDED.

WEIMER, J., would grant and docket.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kenneth BAHAM.
    No. 2013-KA-1069.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 10, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Appellant/State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Mr. Ba-ham/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   TERRI F. LOVE, Judge.

hThe State appeals the trial court’s granting of Mr. Kenneth Baham’s (“Mr. Baham”) motion to withdraw his guilty plea, claiming Mr. Baham failed to present valid grounds for its withdrawal. We find that the ruling from which the State seeks relief is not a final judgment and is therefore not an appealable judgment. For the reasons discussed herein, this Court converts the present matter to an application for supervisory review, granting the writ and remanding for an evidentiary hearing.

PROCEDURAL HISTORY

On August 6, 1997, Mr. Baham was charged with possession with intent to distribute cocaine. He pled not guilty at arraignment. On May 5,1998, Mr. Baham entered a plea of guilty as charged under the terms of a negotiated plea agreement before Judge Sharon Hunter. Under the terms of the agreement, Mr. Baham would be charged as second felony offender and would receive a sentence of fifteen years at hard labor.

| ¡.After Mr. Baham entered his plea, the court agreed to defer sentencing until June 1998. At that time, Mr. Baham appeared, and his sentencing was reset for July 1998. Mr. Baham was notified in open court of the new date; however, he then failed to appear at the July 1998 sentencing, and an alias capias was issued.

In January 2005, notice was submitted of Mr. Baham’s arrest on the outstanding capias. In December 2006, the court sentenced Mr. Baham to fifteen years at hard labor. In December 2007, Mr. Baham pled guilty to the multiple bill and was sentenced as a second felony offender to fifteen years at hard labor.

For reasons not apparent in the record, the case was again set for sentencing in 2008. In March 2008, Mr. Baham appeared, and through counsel he moved to withdraw his guilty plea. Counsel proffered no basis for the motion, stating simply that the trial court was familiar with the background of the case. Judge Ben Willard then granted the motion on the basis that “the judge who took the plea was totally incompetent at the time.” The trial court further noted that defense counsel would need to file a written motion, stating “I need it in writing.” The minute entry from that date states that the State filed a motion for appeal and designation of the record. Mr. Baham subsequently filed a written motion to withdraw guilty plea the same day. A notice of appeal was generated by the minute clerk on April 4, 2013.

FACTUAL BACKGROUND

The facts of this case are unknown as Mr. Baham pled guilty. Nevertheless, the facts are not pertinent to the issues raised on appeal.

\ .MOTION to withdraw GUILTY PLEA

At the outset, we note the ruling from which the State seeks relief is not an appealable judgment. Under La.C.Cr.P. art. 912(A), “[o]nly a final judgment or ruling is appealable.” A final judgment is one which puts an end to the proceedings. State v. Quinones, 94-436, p. 3 (La.App. 5 Cir. 11/29/94), 646 So.2d 1216, 1217. The trial court’s ruling granting Mr. Baham’s motion to withdraw his guilty plea did not put an end to the proceedings and is therefore not an appealable judgment. The appropriate “avenue of review” is an application for supervisory writ. State v. Hutchinson, 99-0034 (La.App. 4 Cir. 5/17/2000), 764 So.2d 1139, 1140. See also State v. Hill, 11-0683 (La.App. 4 Cir. 4/4/12), 89 So.3d 396; State v. Myers, 98-1213 (La.App. 4 Cir. 2/9/00), 753 So.2d 921. Therefore, we convert this appeal to an application for supervisory writ.

The State contends that pursuant to La.C.Cr. P. art. 559(A), Mr. Baham’s motion to withdraw was untimely as it was not filed “before sentencing.” In State v. Lewis, 421 So.2d 224 (La.1982), the Louisiana Supreme Court concluded that a constitutionally infirm plea is subject to attack even after sentencing. The Lewis Court reviewed the substance of the defendant’s pro se motion to vacate his plea and stated that the style of the pleading was not vital to determine if it was “a request for a post-conviction remedy which attacks the constitutionality of the guilty plea.” Id. at 226. Therefore, the appropriate procedural vehicle to challenge a guilty plea after sentencing is an application for post-conviction relief. State v. 4Stewart, 04-1231, p. 12 (La.App. 5 Cir. 4/26/05), 902 So.2d 440, 448. See also State ex rel. Chauvin v. State, 99-2456 (La.App. 1 Cir. 1/28/00), 814 So.2d l(the court held that the defendant’s motion to vacate his plea, because he had not been advised of the sex offender registration requirement, was subject to La. C.Cr.P. art. 930.8 and its prescriptive period; therefore, the motion filed after sentencing was substantively an application for post-conviction relief).

In this case, Mr. Baham’s claim is permitted under La.C.Cr.P. art. 930.3, which provides in pertinent part: “If petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on the following grounds: (1) The conviction was obtained in violation of the constitution of the United States or the state of Louisiana.” The withdrawal of a guilty plea is within the discretion of the trial court and is subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Johnson, 406 So.2d 569 (La.1981); State v. Rhea, 04-0091 (La.App. 4 Cir. 5/19/04), 876 So.2d 131.

The Due Process Clause of the Fourteenth Amendment requires that a guilty plea be both knowing and voluntary because it constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one’s accusers, and the privilege against self-incrimination. See Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A plea is not voluntary unless it is “entered by one fully aware of the direct consequences” of the plea. Brady v. United States, 5397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970) (internal quotation and citation omitted). The ultimate inquiry under Boykin is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. State v. Juniors, 03-2425, p. 60-61 (La.6/29/05), 915 So.2d 291, 334-35.

A review of the record reflects that the trial court was not presented with a transcript of Mr. Baham’s guilty plea colloquy. Nevertheless, the record on appeal contains the guilty plea transcript. At the hearing on the motion to withdraw, the defense extended no basis for the motion, except to state that the trial court was “familiar with the background of the case.” Further, the basis for Mr. Baham’s claim, as provided in the written motion, states simply: “1. Ineffective assistance of counsel. 2. Judicial miss [sic] conduct.” The trial court, in turn, granted the motion concluding:

[A]s I mentioned to you so many times you all have reminded me, the supreme court has reminded me, the court of appeals has reminded me that the judge who took the plea was totally incompetent at the time. Based upon that I’m going to grant the motion.

Judge Sharon Hunter was presiding judge at the time Mr. Baham entered his guilty plea. The Louisiana Supreme Court later removed her from office in 2002 for failing to discharge her administrative duties, for refusing to cooperate with this Court in securing record transcripts for appellate review, and for persistent public conduct prejudicial to the administration of justice. See In re Hunter, 02-1975 (La.8/19/02), 828 So.2d 325.

|KThe record shows little, if any, evidence or argument was offered by the parties at the hearing on the motion to withdraw. Further, the record fails to show a connection between Judge Hunter’s removal and the taking of Mr. Baham’s guilty plea. Accordingly, because the May 5, 1998 guilty plea suggests a facially valid taking of Mr. Baham’s guilty plea and the transcript does not appear to have been presented to the trial court for its consideration, we reverse the trial court’s ruling granting the motion to withdraw his guilty plea and remand the matter for an eviden-tiary hearing consistent with this Court’s ruling. Therefore, we grant the State’s application for supervisory writ and remand the matter for an evidentiary hearing.

WRIT GRANTED; REMANDED FOR EVIDENTIARY HEARING.

      . Pursuant to La.C.Cr.P. art. 930.8, Mr. Ba-ham's claim is timely as the multiple offender adjudication and sentencing occurred three months prior to his filing of the motion to withdraw guilty plea.


author: ROSEMARY LEDET, Judge.

text:
    STATE of Louisiana v. Kawana D. JASPER.
    No. 2014-KA-0125.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Parish of Orleans, Donna Andrieu, Assistant District Attorney/Chief of Appeals, Christopher J. Ponoroff, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
    William P. Quigley, Anna Lellelid, Loyola University New Orleans College of Law, New Orleans, LA, for Defendant/Appellant.

      (Court composed of Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

Lin this criminal appeal, the defendant, Kawana Jasper, seeks review of her conviction and sentence for two counts of aggravated battery, in violation of La. R.S. 14:34. For the reasons that follow, we affirm.

STATEMENT OF THE CASE

On May 3, 2012, Ms. Jasper was charged by bill of information with two counts of aggravated battery. On May 21, 2012, she was arraigned and pled not guilty to both counts. On January 17, 2013, the district court held a preliminary hearing and found probable cause. In April 2013, a two-day jury trial was held. The jury found Ms. Jasper guilty as charged on both counts. On May 22, 2013, the district court denied Ms. Jasper’s motions for post-verdict judgment of acquittal and new trial. On the same date, the district court sentenced Ms. Jasper to serve four years at hard labor on each count, with credit for time served. The sentences were to be served concurrently to each other and without benefit of probation or suspension of sentence. On June 19, 2013, Ms. Jasper filed a motion to reconsider ^sentence. On July 9, 2013, the district court denied the motion to reconsider. This appeal followed.

STATEMENT OF THE FACTS

On the evening of October 29, 2011, a “Sweet Sixteen” birthday party for Tashea Hankton was held on the second floor of Hoshun Restaurant (the “Restaurant”), which is located on St. Charles Avenue in New Orleans, Louisiana. On the night of the party, two fights occurred. The first fight occurred during the party on the upstairs balcony. The second fight occurred after the party in the downstairs lobby of the Restaurant. The two counts of aggravated battery for which Ms. Jasper was charged arose out of the second fight.

Although only thirty guests were scheduled to attend the party, between eighty to one hundred people showed up to the party. Among the attendees were a trio of “cousins” — Corianna Jasper a/k/a “Pinky” (Ms. Jasper’s daughter), Sha’Ron Sears a/k/a “Bubbles” (Ms. Jasper’s niece), and LaSheba Jaurnee (Corianna and Sha’Ron’s friend) (collectively the “Trio”). The Trio attended the party together. After the first fight, the Trio, as well as most of the other attendees, left the party. The Trio went downstairs to call and wait for their parents. Corianna had a busted lip as a result of the first fight and could not speak, so her cousin called her mother for her.

Meanwhile, the only people left upstairs at the party were the hosts and a handful of people assisting with the party. Among the people remaining upstairs were two of Tashea Hankton’s cousins, two sisters Paris and D’Miria Livas. |,sAccording to Paris and D’Miria, when they realized that Tashea was not upstairs, they — aceompa-nied by their brother and a cousin — went downstairs to look for her. They took the elevator to the first floor. As they exited the elevator, Paris came out first, followed by her brother, sister, and cousin. When they could not find Tashea on the first floor, they believed she might be outside. Paris opened the front door of the Restaurant to go outside. When she did so, she heard Ms. Jasper say, “which one did you get in an altercation with?” Ms. Jasper then threw bleach at Paris and D’Miria from a white styrofoam cup. The bleach got on Paris’ face, jacket, and shirt. The bleach also got in D’Miria’s eyes and on her dress. Their eyes started to burn, and they turned away from Ms. Jasper. Because they could not see, Paris and D’Mi-ria went back upstairs. After unsuccessfully attempting to wash the bleach out of their eyes, the victims’ mother took them to the emergency room at Children’s Hospital.

Jennifer Schwehm, a registered nurse, was working at Children’s Hospital on the evening of the incident. Ms. Schwehm took a report from the victims, who stated that bleach was thrown in their eyes. Ms. Schwehm called 911 and reported that two young females were in the emergency room, that bleach was thrown into their eyes, and that they had scratches on then-bodies.

New Orleans Police Department (“NOPD”) Officer John Walker responded to the disturbance call at the Restaurant that night. When he arrived at the Restaurant, he was informed that some type of liquid was thrown in the victims’ faces. He was unable to locate the victims at the Restaurant. A few minutes later, he received another dispatch call indicating that Children’s Hospital had two females in the emergency room who stated that some type of liquid substance, possibly a chemical, was thrown in their faces. Officer Walker relocated to | ¿Children's Hospital and spoke with the two victims and then-mother. The victims were upset, in discomfort, and their eyes were red and bloodshot. The victims could not open their eyes while they were speaking with the officer.

Officer Walker also spoke with the doctor who treated the victims that night, Dr. John Bardigan. Dr. Bardigan diagnosed the victims with chemical conjunctivitis of the eye — an irritation of the eye tissue due to a chemical. He stated that the victims’ eyes were red and watery and that they had painful tearing. He prescribed an ointment for their eyes and recommended that they see an ophthalmologist for a follow-up. The victims were discharged that evening.

Paris testified that about a week after the incident, she went to see an eye doctor and that her vision is now permanently impaired in both eyes. She has to wear either contact lenses or glasses at all times. D’Miria testified that before the incident she only wore glasses for reading. Since the incident, she has to wear glasses all the time. She cannot see in the distance, and her vision is blurry.

Before the incident at the Restaurant, neither victim had met Ms. Jasper. Both victims identified Ms. Jasper in a photographic lineup, as the person who threw bleach in their eyes. Both victims also identified Ms. Jasper in court as the person who threw bleach at them.

In her defense, Ms. Jasper testified that, at about 9:30 p.m. that night, she received a telephone call from her nephew Shaq-uille. As a result of that call, she went to pick up her daughter from the party. When she arrived, her daughter and a few other teenagers were standing outside the Restaurant, but no adults were 1 ¿outside. She went into the Restaurant and spoke with the Restaurant’s manager, Mick Tran, about the incident. She asked Mr. Tran to call the police, and then went outside to wait for the police to arrive.

Ms. Jasper testified that when the police did not come, she went back inside the Restaurant to speak with Mr. Tran, but she denied yelling at him. She testified that as she was walking back outside, she heard someone say, “there they go.” She turned around, and a guy hit her. Ms. Jasper testified that someone threw a bus pan full of silverware into the crowd and hit her daughter, Corianna. Ms. Jasper also testified that Paris took bleach from a cart of cleaning supplies near the elevator and threw it at the group. Ms. Jasper denied throwing bleach at anyone, and she denied bringing bleach with her.

The Trio testified for the defense. Sha’Ron and Corianna testified that a boy came up and hit Ms. Jasper. At that point, a fight erupted. The Trio testified that Paris then took bleach from a cleaning cart and threw it at the group. The Trio also corroborated Ms. Jasper’s testimony that she did not throw bleach at anyone. The Trio further testified that another girl also named “Pinky,” a/k/a Jar-ameshia, then threw bleach back into the crowd. The Trio’s testimony, however, varies as to what | (¡type of container Pinky threw the bleach out of — a white styro-foam cup, as Sha’Ron testified; a little black bottle, as Corianna testified; or a mace type tube, as LaSheba testified. Co-rianna and LaSheba testified that they got bleach on them during the fight. After the fight was over, Ms. Jasper grabbed the Trio and they left the Restaurant. She did not speak with the police.

Detective Wayne DeLarge was assigned to handle the follow-up investigation of the aggravated batteries. He read Officer Walker’s initial report and reviewed the crime lab’s photographs. Detective De-Large also spoke with the victims (Paris and D’Miria); the Restaurant’s manager, Mr. Tran; the woman who arranged the party; and several individuals at the high school that Corianna attended. On cross-examination, Detective DeLarge testified that the only individuals he spoke to during his investigation that actually were at the Restaurant on the night of the party were the victims and the Restaurant’s manager. Detective DeLarge presented the victims with photographic lineups. As noted, both victims identified Ms. Jasper as the person who threw the bleach in their faces. He also presented Mr. Tran with a single photograph of Ms. Jasper. He identified Ms. Jasper as the parent who complained about her daughter being injured in a fight. After developing Ms. Jasper as a suspect through his investigation of the incident, Detective DeLarge obtained an arrest warrant for Ms. Jasper.

ERRORS PATENT

A review of the record for patent errors reveals one. The error occurred when the district court imposed Ms. Jasper’s sentence immediately after it denied 17her motion for new trial. La.C.Cr.P. art. 873 provides that “[i]f a motion for new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled.”

A review of the transcript from the sentencing hearing reveals that defense counsel did not expressly waive Ms. Jasper’s right to this delay. Nevertheless, we find that the district court’s failure to observe the twenty-four-hour delay was harmless error. This court has held that failure to observe the twenty-four hour delay provided under La.C.Cr.P. art. 873 is considered harmless error when the following three circumstances are present: (i) there is a sufficient delay between the conviction and the sentencing; (ii) there is no indication that the sentence was hurriedly imposed; and (iii) there is neither an argument nor a showing of actual prejudice by the failure to observe the twenty-four-hour delay. State v. Stovall, 07-0343, p. 15 (La.App. 4 Cir. 2/6/08), 977 So.2d 1074, 1084 (citing State v. Foster, 02-0910, pp. 3-4 (La.App. 4 Cir. 12/11/02), 834 So.2d 1188, 1192) (finding failure to observe twenty-four-hour delay was harmless error when almost two months elapsed between the defendant’s conviction and sentencing and the defendant did not show prejudice); see State v. Jefferson, 97-2949, pp. 5-6 (La.App. 4 Cir. 4/21/99), 735 So.2d 769, 772-73 (finding failure to observe twenty-four-hour delay was harmless error when three months elapsed between the defendant’s conviction and sentencing and the defendant did not show any prejudice).

We find all three circumstances are present in this case. First, seven weeks elapsed between Ms. Jasper’s conviction and sentencing — Ms. Jasper was convicted on April 4, 2013 and sentenced on May 22, 2013. Second, there is no indication that Ms. Jasper’s sentence was hurriedly imposed. Finally, Ms. Jasper |shas not shown actual prejudice by the district court’s failure to observe the twenty-four-hour delay. We thus find that the district court’s failure to observe the twenty-four-hour delay was harmless error.

DISCUSSION

Assignment of Error Number 1

In her first assignment of error, Ms. Jasper contends that the district court erred when it denied her motion for new trial. She argues that the district court should have granted her motion for new trial because the jury’s verdict is not supported by the law and the evidence. This argument has two prongs: (i) that the evidence did not support the finding that she was the person who threw the bleach, and (ii) that the evidence presented did not support a finding that bleach was a dangerous object.

The jurisprudence has recognized that the denial of a motion for new trial based on the contention that the verdict is contrary to the law and the evidence is not subject to review on appeal. See State v. Guillory, 10-1281, p. 3 (La.10/8/10), 45 So.3d 612, 614-15; State v. Frith, 11-0187, p. 5 (La.App. 4 Cir. 8/10/11), 102 So.3d 65, 69; State v. Sparkman, 08-0472, p. 5 (La.App. 4 Cir. 1/28/09), 5 So.3d 891, 894. Nonetheless, a review of the contentions in Ms. Jasper’s appellant brief reveals that her intent was to assign as error the district court’s denial of her motion for post-verdict judgment of acquittal, which she asserts was premised on “the fact the State failed to prove an essential element of the crime and prove that bleach was a dangerous weapon.” A review of that motion reveals it was premised on the State’s alleged failure to prove that bleach was a dangerous weapon. In contrast, Ms. Jasper’s motion for new trial was based entirely on alleged sequestration errors. Thus, we find Ms. Jasper’s reference in her first assignment of error to the | fldenial of the motion for new trial was an apparent misstatement; her intent was to seek review of the denial of her motion for post-verdict judgment of acquittal, based on the insufficiency of the evidence. Indeed, we note the relief she seeks on appeal is not a new trial, but the granting of a judgment of acquittal. Given these circumstances, we find it appropriate to treat this assignment of error as properly raising a sufficiency of the evidence claim on appeal. See State v. Sterling, 13-287, p. 4 (La.App. 5 Cir. 12/12/13), 131 So.3d 295, 299.

This court summarized the standard for evaluating a sufficiency of the evidence claim in State v. Brown, 12-0626, pp. 6-8 (La.App. 4 Cir. 4/10/13), 115 So.3d 564, 570-71, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4th Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id. at 1310. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).
When circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from the Jackson reasonable doubt standard; rather, it is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a 1 mdefendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

In the instant case, Ms. Jasper was charged with two counts of aggravated battery. Aggravated battery is defined as “battery committed with a dangerous weapon.” La. R.S. 14:34. “Battery” includes “the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.” See La. R.S. 14:33. A “dangerous weapon” is defined as including “any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” La. R.S. 14:2(A)(3).

As noted at the outset, Ms. Jasper’s sufficiency of the evidence claim has two parts: (i) the State failed to establish that she was the person who threw the cup of bleach at the victims — misidentification; and (ii) the cup of bleach, in the manner in which it was used, was a dangerous weapon — dangerous weapon. We separately address each of these issues.

(i) Misidentification

Ms. Jasper contends that the jury could not have found beyond a reasonable doubt that she was the person who threw the bleach at the victims and caused their injuries. In support, she contends that the victims’ trial testimony, on which the State’s case was based, was contradictory. She notes that, on direct examination, Paris testified that Ms. Jasper, who she neither knew nor could identify by name, threw bleach at her and her sister. However, Ms. Jasper contends that, on cross-examination, Paris testified that it was Ms. Jasper’s daughter, Corianna, who threw the bleach.

| nThe colloquy on which Ms. Jasper relies, which was between defense counsel and Paris, was as follows:

Q: All of a sudden you decide to go outside, correct?
A: Correct.
Q: And someone just pick[s] you out and throw[s] bleach on you, correct?
A: Someone?
Q: Right.
A: Specifically her daughter. Specifically who threw bleach on me,, her, yes.

Paris’s testimony, as the State contends, was not that Corianna threw the bleach. Rather, it was that Corianna identified Paris to her mother and then Ms. Jasper threw the bleach.

Ms. Jasper further points out that the State disclosed in its pretrial notice of disclosure of exculpatory evidence that one of the victims had identified Jarameshia— the other girl nicknamed “Pinky” — as the one who threw the bleach. However, a review of the State’s pretrial notice of disclosure reveals that neither victim identified Jarameshia as the person who threw the bleach. Rather, one of the victims identified “Jermisha” a/k/a “Pinkey” as the defendant’s accomplice. The victim further stated that she did not know someone named Corianna Jasper. The State explained that the defendant’s accomplice aided the defendant in targeting the victims, but did not throw bleach on anyone.

Ms. Jasper still further points out that when defense counsel asked Paris during cross-examination whether she had picked up a bottle of bleach sitting on a cart with cleaning supplies located by the elevator, she replied: “No. But if that was the case, do they have evidence that bleach was thrown at them?” Ms. Jasper |12also points out that both Paris and D’Miria were involved in the fighting that occurred on the night of the party; they both had scratches and scrapes as a result of such fighting. Given that multiple people were involved in the fights that occurred that night coupled with the victims’'’ own involvement in those fights, Ms. Jasper contends that the jury could not have ruled out the reasonable likelihood that it was not her but someone else who threw the bleach at the victims. The State counters that the victims’ testimony was consistent and is corroborated by their identification of Ms. Jasper in separate photographic line-ups.

“The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction.” State v. Nellum, 13-0360, pp. 8-9 (La.App. 4 Cir. 2/12/14), 136 So.3d 120, 126 (citing State v. Wells, 10-1338, p. 5 (La.App. 4 Cir. 3/30/11), 64 So.3d 303, 306). This court still further noted in Nellum that “[a] fact finder’s decision concerning the credibility of a witness will not be disturbed unless it is clearly contrary to the evidence.” Nellum, 13-0360 at p. 9, 136 So.3d at 126 (citing State v. James, 09-1188, p. 4 (La.App. 4 Cir. 2/24/10), 32 So.3d 993, 996). In this case, Paris and D’Miria’s testimony was sufficient to establish Ms. Jasper’s identification as the person who threw the bleach at them.

(ii) Dangerous weapon

The second part of Ms. Jasper’s sufficiency of the evidence argument is her contention that the State failed to establish that the cup of bleach that she allegedly threw at the victims was a dangerous weapon pursuant to La. R.S. 14:34. In response, the State contends that the bleach, in the manner used, should be considered a dangerous weapon.

The jurisprudence has recognized that “virtually any item, no matter how innocuous, can be considered a dangerous weapon provided the manner in which it |13is used is likely to produce death or great bodily harm.” State v. Black, 09-1664, p. 16 (La.App. 4 Cir. 6/17/10), 41 So.3d 1243, 1252 (citing State v. Bonier, 367 So.2d 824 (La.1979)). Although no published Louisiana decision has addressed the issue, a Florida court in Smith v. State, 969 So.2d 452, 455 (Fla.App. 1 Dist.2007), found that bleach, in the manner used in that case, constituted a dangerous weapon. In so finding, the Florida court reasoned:

[Ejvidence that the bleach was used in a manner likely to cause great bodily harm existed in the form of the victim’s testimony that the bleach was ‘sloshed’ into her face three or four times and that it got into her eyes, mouth, and throat, making her unable to open her eyes and constricting her throat, making breathing difficult. Additionally, she testified that she later had to go to the emergency room. The testimony required for the jury to make a determination is testimony that bleach was used, not the effect of its use. The jury, as fact finder, could then determine whether such use was likely to cause great bodily harm.

Smith, 969 So.2d at 455.

By analogy, the record in this case supports a finding that the manner in which Ms. Jasper used the cup of bleach was likely to produce great bodily harm. Both Paris and D’Miria testified that Ms. Jasper threw bleach out of a styrofoam cup directly into their eyes. As the State points out, two experts — Dr. Bardigan, the pediatrician who treated the victims at Children’s Hospital; and Seth Stanton, an expert in optometry — testified at trial regarding the effect of bleach on the eye. Dr. Bardigan testified that bleach can cause liquefactive necrosis and that it will burn and dissolve the tissue. Mr. Stanton testified that bleach can cause significant tissue damage as well as blindness. Thus, Ms. Jasper’s act of throwing bleach into a crowd and at the victims’ eyes is a use that will likely cause great bodily harm.

Insofar as Ms. Jasper’s suggestion that the State failed to provide a rational basis for concluding the chemical she allegédly threw in the victims’ eyes was |14bleach, several witnesses testified that the chemical was bleach. Dr. Bardigan testified that in his opinion both victims had bleach in their eyes when he treated them. Ms. Schwehm testified that the victims’ appearance was consistent with their report that they had bleach in their eyes. Further, crime lab technicians took photographs of the victims and their clothing at Children’s Hospital demonstrating that the clothing was turning to a color that suggested it had been exposed to bleach. We thus find that the State met its burden of establishing that bleach, in the manner in which it was used, constituted a dangerous weapon.

Assignment of Error Number 2

In this assignment of error, Ms. Jasper contends that the district court erred when it allowed Detective DeLarge to remain in the court during the testimony of the five witnesses who testified before him. Ms. Jasper contends that Detective DeLarge should have been sequestered along with the other witnesses. A review of the trial transcript reveals that defense counsel did not initially object to the district court’s exempting Detective DeLarge from the order of sequestration. Rather, defense counsel’s initial objection was only to the district court’s decision exempting the victims from the order of sequestration. The district court overruled that objection, and Ms. Jasper requested that the district court note her objection. Ms. Jasper raised her objection to Detective De-Large’s exemption after the first day of trial and after several witnesses had testified. The district court overruled Ms. Jasper’s objection, noting that the State had announced at the beginning of trial that Detective DeLarge would be the State’s representative.

La. C.E. art. 615 provides:

A. As a matter of right. On its own motion the court may, and on request of a party the court shall, order that the witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings, |ifiand refrain from discussing the facts of the case with anyone other than counsel in the case. In the interests of justice, the court may exempt any witness from its order of exclusion.
B. Exceptions. This Article does not authorize exclusion of any of the following:
' (2) A single officer or single employee of a party which is not a natural person designated as its representative or case agent by its attorney.

Comment (d) to La. C.E. art. 615 provides, in pertinent part, as follows:

On the other hand, the exemption of representatives may, if mechanically applied, result in manifest unfairness such as by undermining the right to meaningful cross-examination. Nothing in this Article is intended to deprive the trial court of the power to sequester witnesses in such cases in the interests of justice. See C.Cr.P. Art. 17. Such a potentially prejudicial situation is presented, of course, in criminal cases when a law enforcement officer who is designated as the state’s representative is expected also to testify as a fact witness. In such a situation the court should take appropriate measures to minimize the possibility of prejudice, such as permitting the case agent to be designated as the state’s representative only if he testifies prior to all other fact witnesses.

“The purpose of the sequestration article is to prevent witnesses from being influenced by the testimony of earlier witnesses, and to strengthen the role of cross-examination in developing the facts.” State v. Doleman, 02-0957, p. 11 (La.App. 4 Cir. 12/4/02), 835 So.2d 850, 858 (citing State v. Castleberry 98-1388, p. 28 (La.4/13/99), 758 So.2d 749, 772; State v. Chester, 97-2790, p. 8 (La.12/1/98), 724 So.2d 1276, 1282); see also State v. Coleman, 02-1000, p. 16 (La.App. 4 Cir. 9/25/02), 828 So.2d 1130, 1140; State v. Breaux, 12-0555, p. 3 (La.App. 4 Cir. 2/27/13), 110 So.3d 281, 284. This court has recognized that “[r]esolution of sequestration problems is within the sound discretion of the district court” and that such determinations will not be disturbed on appeal absent an abuse of that discretion. Rhone v. Boh Bros., 01-0270, p. 3 (La.App. 4 Cir. 12/12/01), 16804 So.2d 764, 766-67; see also Coleman, 02-1000 at p. 16, 828 So.2d at 1140; State v. Bream, 12-0555 at p. 4,110 So.3d at 284.

In State v. Ondek, 584 So.2d 282, 298-99 (La.App. 1st Cir.1991), the First Circuit considered La. C.E. article 615 comment (d) to determine whether the district court erred in overruling a defendant’s objection to exempting a police officer from the sequestration order. In Ondelc, the defendant argued that the officer’s testimony was influenced by the prior testimony of six fact witnesses and two police officers. Id. In concluding that the district court did not err in exempting the police officer from the sequestration order, the court noted that the officer was the first witness to testify about the administration of Miranda rights to the defendant; the lack of duress, threats, promises or inducements made to the defendant; and the chain of custody of the defendant’s taped statement. Id. The court also noted that the officer had testified at the suppression hearing and was aware of the defendant’s theory of defense. Id. The court found that there was no prejudice by allowing the officer to remain in the courtroom. Id.

In State v. Holden, 45,038, pp. 12-13 (La.App. 2 Cir. 1/27/10), 30 So.3d 1053, 1063, the Second Circuit found that the district court did not err in exempting a police officer from the sequestration order. The court noted that the defendant did not object at the time the State designated the officer as its case representative. Id. The State called two witnesses to testify before calling the officer to testify. Id. The court noted that the testimony of the State’s witnesses was given in sequential order and that the officer’s testimony was not cumulative of the testimony of the prior witnesses, who testified to their limited roles in the investigation. Id. The officer’s testimony focused on his subsequent investigation 117of the matter, including his interview with the defendant and his handling of evidence obtained in' the matter. Id.

In the present case, Detective DeLarge was the State’s sixth witness. The witnesses who testified before the detective were Officer Walker, the initial investigating officer; Ms. Schwehm, the nurse at Children’s Hospital; Mr. Tran, the manager of the Restaurant; Dr. Bardigan, the emergency room physician at Children’s Hospital; and Dr. Stanton, the victims’ optometrist.

Officer Walker’s testimony centered on his initial investigation at the Restaurant and interviews with the victims at the emergency room. Ms. Schwehm and Dr. Bardigan’s testimony focused on the victims’ appearance ánd treatment at Children’s Hospital’s emergency room. Mr. Tran testified about the party being held at the Restaurant, the altercations that occurred, and his encounter with Ms. Jasper. Dr. Stanton’s testimony concerned his prior treatment of the victims. Dr. Bardigan and Dr. Stanton also offered expert testimony on the effect bleach would have on a person’s eyes. The victims and all of the defense witnesses testified after Detective DeLarge.

Detective DeLarge’s testimony was not cumulative to the testimony of the witnesses who testified before him. His testimony focused solely on his subsequent investigation of the incident. Detective DeLarge was the first witness to testify about the development of Ms. Jasper as a potential suspect and the identification of Ms. Jasper by the victims. Officer Walker’s testimony was limited to the initial investigation the night of the party. At that point, no information had been obtained about a potential suspect.

There is nothing to suggest that Detective DeLarge’s testimony was influenced by the testimony of the witnesses who testified before him. His | ^testimony was completely distinct from their testimony. Further, Detective DeLarge was the only officer who testified at Ms. Jasper’s preliminary hearing and became aware of Ms. Jasper’s theory of defense through defense counsel’s cross-examination concerning his actions in identifying Ms. Jasper as the alleged perpetrator.

Ms. Jasper asserts that Officer Walker and the experts’ testimony aided Detective DeLarge in his testimony regarding how he formed his case and the fact that bleach was the chemical thrown. She relies on State v. Lopez, 562 So.2d 1064 (La.App. 1st Cir.1990). In Lopez, the First Circuit found that the district court erred in allowing the State’s selected agent, who was a State’s witness, to remain in the courtroom during the trial without requiring him to testify as the first witness. Id. at 1066; See La. C.E. art. 615, comment (d). The case agent was the officer who conducted the pat down search of the defendant and found the illegal substance on him. Id. at 1065. In reversing the conviction, the court explained that the officer was a principal witness against the defendant in the case and the State’s case depended almost completely on the credibility of the law enforcement representative. Id. at 1066-67. Further, the court stated that the agent testified after a key prosecution witness, who made the initial traffic stop of the defendant. Id. Thus, the agent received information from the key prosecution witness that aided his own testimony. Id.

The instant case is factually distinguishable from Lopez. Unlike in Lopez, the instant case does not depend entirely on the credibility of the State’s agent, Detective DeLarge. Rather, this case, in most respects, relies on the testimony of the victims who testified after Detective De-Large. Also unlike in Lopez, Detective DeLarge did not receive information that would aid his testimony in any way from li9the witnesses who testified before him. Contrary to Ms. Jasper’s contention, Detective DeLarge mentioned in the preliminary hearing that bleach was the chemical thrown by Ms. Jasper. Also in Detective DeLarge’s application for an arrest warrant, he stated that Ms. Jasper threw bleach on the victims. Thus, when Detective DeLarge heard Officer Walker and the other experts relay this information again at trial it did not aid him with his testimony in any way.

As in Ondek and Holden, we find Ms. Jasper was not prejudiced by the district court allowing the officer to remain in the courtroom. Stated otherwise, the district court did not err when it overruled Ms. Jasper’s objection to the exemption of Detective DeLarge from the sequestration order. This assignment of error is without merit.

Assignment of Error Number 3

In this assignment of error, Ms. Jasper contends that the district court imposed an unconstitutionally excessive sentence and failed to consider all the factors provided in. La.C.Cr.P. art. 894.1. This court in State v. Boudreaux, 11-1345, pp. 5-6 (La.App. 4 Cir. 7/25/12), 98 So.3d 881, 884-85, noted the following well-settled principles that govern our review of a defendant’s excessive sentence claim:

• Article l[sic], Section 20 of the Louisiana Constitution of 1974 provides that “No law shall subject any person ... to cruel, excessive, or unusual punishment.”
• On appellate review of an excessive sentence claim, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462.
• The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D). State v. Robinson, 11-0066, p. 17 (La.App. 4 Cir. 12/7/11), 81 So.3d 2090, 99; State v. Major, 96-1214 (La.App. 4 Cir..3/4/98), 708 So.2d 813, 819.
• An appellate court reviewing an excessive sentence claim must determine whether the trial court adequately complied with the statutory sentencing guidelines set forth in La.C.Cr.P. art. 894.1, as well as whether the particular circumstances of the case warrant the sentence imposed. State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189; Stale v. Black, 98-0457, p. 8 (La.App. 4 Cir. 3/22/00), 757 So.2d 887, 891.
• The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La.1982); State v. Davis, 448 So.2d 645, 653 (La.1984) (the trial court need not recite the entire checklist of article 894.1, but the record must reflect that it adequately considered the guidelines).
• If the appellate court finds the trial court adequately complied with Article 894.1, it then must determine whether the sentence imposed is too severe in light of the particular defendant and the particular circumstances of the case,' “keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Landry, 03-1671, p. 8 (La.App. 4 Cir. 3/31/04), 871 So.2d 1285,1239.
• A trial judge has broad discretion when imposing a sentence, and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985).
• Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const, art. I, § 20, i.e., when it imposes “punishment disproportionate to the offense.” State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608.
• A sentence, although within the statutory limits, is constitutionally excessive if it is “grossly out of proportion to the severity of the crime” or is “nothing more than the purposeless and needless imposition of pain and suffering.” State v. Caston, 477 So.2d 868, 871 (La.App. 4th Cir.1985).

The penalty for aggravated battery is set forth in La. R.S. 14:34(B), which provides that “[w]hoever commits an aggravated battery shall be fined not more fythan five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.” The district court in this case sentenced Ms. Jasper to four years at hard labor on each count of aggravated battery. Before the sentencing hearing, the district court ordered a pre-sentence investigation (“PSI”).

At the sentencing hearing, the district court heard argument from both defense counsel and the State. The district court also allowed Ms. Jasper to produce a witness to testify in support of leniency. In sentencing Ms. Jasper, the district court noted that it considered the PSI, in which Ms. Jasper gave a different version of the events than what she testified to at trial. The district court further noted that Ms. Jasper showed no remorse for the incident and recognized that the victims suffered permanent damage to their eyes. While Ms. Jasper did not have any prior convictions, the PSI report indicated that Ms. Jasper had five prior arrests-disturbing the peace in 1998, second degree injury to a child in 2006, two counts of simple battery in 2009, and simple burglary in 2011. In light of these factors, the district court’s imposition of a sentence of four years at hard labor, without benefit of probation or suspension of sentence, is not excessive.

Ms. Jasper argues that the district court erred when it did not allow her to review • the PSI report for errors. Although a defendant is guaranteed the right to contest allegations and statements in a PSI report and additional information to which the sentencing court was exposed, defense counsel must make a timely request before sentencing for access to the PSI report and must make some showing that the report contains materially false or misleading information prejudicial to the defendant. State v. Boone, 364 So.2d 978, 983 (La.1978); State v. Coleman, 574 So.2d 477, 480 (La.App. 2nd Cir.1991).

|22In this case, defense counsel, stated to the district court during the sentencing hearing, and just before sentencing, that Ms. Jasper disagreed with the PSI report and the chronology of events. The district court judge, however, cut defense counsel off and sentenced Ms. Jasper. While Ms. Jasper raised this issue on appeal, she failed to identify what errors the PSI report contained. Thus, she failed to establish that the PSI contained materially false or misleading information that was prejudicial to her. We thus find this assignment of error lacks merit.

DECREE

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

      .Although La. R.S. 14:34 does not indicate that the sentences are to be served without benefit of probation or suspension of sentence, the district court referenced La.C.Cr.P. art. 893, which provides that a "court shall not suspend the sentence of a conviction for a crime of violence as defined in La. R.S. 14:2(B) ... (5).” La. R.S. 14:2(B)(5) provides that aggravated battery is considered a crime of violence.

      . While Sha’Ron and Corianna refer to LaSheba as their "cousin,” she is only a friend and not a relative.

      . Paris and D’Miria are the victims of the second fight that occurred that night. At the time of the incident, Paris was sixteen-years-old and D’Miria was eighteen-years-old.

      . Paris and D’Miria’s optometrist, Dr. Seth Stanton, testified that he performed eye exams on both sisters before the incident at the Restaurant, and their exams were normal. He stated that they were slightly near-sighted.

      . Mr. Tran, in contrast, testified that the one parent he spoke with regarding the fight on the balcony was irate, loud, and upset. The párent said that her daughter had been injured in a fight, and she wanted him to call the police. He told the parent to wait outside, and he called the police. About fifteen minutes later, the parent came back into the Restaurant yelling.

      . Paris and D’Miria, in contrast, testified that there were no cleaning supplies or utensils in the lobby area of the Restaurant.

      . Mr. Tran, on the other hand, testified that there was no bleach or cart in the lobby area before the fight occurred. He explained that the Restaurant did not store or use bleach during meal service. The Restaurant also did not have any janitorial carts and that any carts they had were kept in the kitchen in the back of the Restaurant away from the elevator and stairs. Further, all cleaning supplies were kept in the dish room behind the kitchen.

      . Paris denied throwing a bottle of bleach at anyone. D'Miria denied fighting or throwing anything at anyone.

      . On appeal, Ms. Jasper notes that Detective DeLarge went to Lake Area High School days after talking with Paris and asked the staff which student goes by “Pinky” and then asked the staff for Pinky’s mother’s name. Ms. Jasper emphasizes that Jarameshia, also known as "Pinky,” did not attend this high school.

      . At oral argument before this court on September 5, 2014, defense counsel was asked to identify the errors in the PSI report. Defense counsel again failed to articulate any errors.


author: GENOVESE, Judge.

text:
    Curtis LEDAY, et al. v. Albert LIE, M.D., et al.
    No. 14-75.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.
    Rehearing Denied Nov. 12, 2014.

      Patrick M. Wartelle, Leake & Anders-son, L.L.P., Lafayette, Louisiana, for Defendants/Appellants, Special Assistant Attorney General and for Dr. Albert Lie and the Louisiana State University Board of Supervisors as Owners of W.O. Moss Regional Medical Center.
    John L. Hammons, Nelson & Hammons, A Professional Law Corporation, Shreveport, Louisiana, for Plaintiffs/Appellees, Curtis Leday, Earline Edwards, Alfred Leday, Lenora Gobert, and Janice Davis.
    Benjamin J. Guilbeau, Jr., Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, Louisiana, for Defendant/Appellee, Dr. William Condos, Jr.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

_jjln this medical malpractice case, Defendants appeal the judgment of the trial court granting summary judgment in favor of Plaintiffs on the issues of liability and damages. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL HISTORY

Edmund Leday presented to the emergency department at W.O. Moss Regional Medical Center (Moss Regional) on November 2, 2006, and was diagnosed with congestive heart failure and pulmonary edema. Given his diagnosis of cardiac disease, pursuant to a contract between various hospitals, Mr. Leday was transferred to Lake Charles Memorial Hospital (Lake Charles Memorial) where he was evaluated by Dr. William Condos, Jr., a cardiologist, and underwent a diagnostic angiogram. Dr. Condos made the determination that Mr. Leday was in need of bypass surgery. Upon his discharge from Lake Charles Memorial on November 7, 2006, Mr. Leday was instructed to follow-up at Moss Regional to schedule his surgery.

Mr. Leday was not treated again until January 4, 2007, when he saw Dr. Albert Lie at Moss Regional. He returned to Dr. Lie on February 8, 2007, and March 8, 2007. On March 12, 2007, Mr. Leday returned to the emergency |2department at Moss Regional suffering a myocardial infarction (heart attack). He was then transferred to Lake Charles Memorial where he died on March 16, 2007, without having had the bypass surgery recommended by Dr. Condos.

Plaintiffs filed the present action, asserting that acts of medical malpractice on the part of healthcare providers, Dr. Lie, Moss Regional, and Dr. Condos, caused Mr. Leday’s death. On March 14, 2018, a Motion for Summary Judgment was filed by Plaintiffs, seeking a judgment only against Dr. Lie and Moss Regional on the issues of liability and damages. In response, on May 8, 2018, Defendants, Dr. Lie and Moss Regional, filed a Memorandum in Opposition to Motion for Summary Judgment with attachments thereto. Thereafter, Plaintiffs filed a Motion to Strike Defendants’ Opposition to Motion for Summary Judgment, Response to Plaintiffs’ Assertion of Undisputed Facts, and All Attached Exhibits, asserting that the opposition and the attachments were not served “at least eight calendar days before the hearing” as required by La. Dist.Ct.R. 9.9(b). Additionally, citing La. Dist.Ct.R. 9.9(d), Plaintiffs argued that because Defendants failed to comply with La.Dist.Ct.R. 9.9(b), they were “precluded from oral argument[.]” Lastly, Plaintiffs set forth specific objections to attachments filed by Defendants with their Memorandum in Opposition to Motion for Summary Judgment.

Following a hearing, the trial court signed a judgment on August 1, 2013, granting Plaintiffs’ motion to strike Defendants’ opposition and granting their Motion for Summary Judgment on both liability and damages. Judgment was rendered in favor of Plaintiffs against Defendants for $572,433.89.

Defendants then filed a Motion and Order for New Trial. At the hearing on this motion, Defendants introduced into evidence the exhibits previously attached | ¡¡to their opposition to Plaintiffs’ Motion for Summary Judgment that had been stricken by the trial court. They also introduced the deposition transcript of Dr. Condos, which was not available at the first hearing since his deposition had been taken one day prior to the hearing. The motion for new trial was denied by the trial court by judgment of October 1, 2013. From said judgment, Defendants appeal. Plaintiffs sought to dismiss the appeal as being untimely. In its consideration of Plaintiffs’ Motion to Dismiss Appeal, this court found “that although Defendants stated in their motion for appeal that they were appealing the judgment denying the motion for new trial, the arguments raised in Defendants’ appellate brief demonstrate that Defendants intended to appeal the underlying summary judgment granted on the merits of the case.” Leday v. Lee; 14-75, p. 1 (La.App. 3 Cir. 3/19/14) (unpublished opinion). For these reasons, Plaintiffs’ Motion to Dismiss the Appeal was denied.

ASSIGNMENTS OF ERROR

Defendants present the following for our review:

ASSIGNMENT OF ERROR NUMBER 1:
The district court erred in granting summary judgment on liability where the testimony of Dr. Albert Lie, a defendant herein, creates material issues of fact as to whether or not a timely referral was made to LSU-HSC for Edmund Leday to have bypass surgery.
ASSIGNMENT OF ERROR NUMBER 2:
The district court abused its discretion in striking Defendants’ opposition to Plaintiffs’ Motion for Summary Judgment and in granting summary judgment on liability and damages based upon Plaintiffs’ argument that Defendants’ response to Plaintiffs’ Motion for Summary Judgment was not timely.
I ASSIGNMENT OF ERROR NUM- , BER3:
The district court erred in granting summary judgment on liability where there exist genuine issues of material fact as to whether Lake Charles Memorial Hospital and its employee, Dr. William Condos, a cardiologist, and Dr. Leung, a nephrologist, were at fault.
ASSIGNMENT OF ERROR NUMBER L
The district court erred in not following this court’s opinion in [Ceasar v. Barry, 02-52 (La.App. 3 Cir. 7/17/02), 823 So.2d 998, writ denied, 02-2515 (La.9/19/03), 853 So.2d 630,] regarding presentation of [third] party fault to a jury.
ASSIGNMENT OF ERROR NUMBER 5:
The district court erred in granting summary judgment on liability where the attachments to Plaintiffs’ [m]otion show that Edmund Leday was non-compliant with his medications from which the jury could infer that Edmund Leday was [at] fault in contributing to his own demise.
ASSIGNMENT OF ERROR NUMBER 6:
The district court erred in granting summary judgment where there exist genuine issues of material fact on causation as set forth by the affidavit of Dr. Mary Mancini.
ASSIGNMENT OF ERROR NUMBER 7:
The district court erred in granting summary judgment on damages where only two [Plaintiffs attached affidavits on damages, and part of the evidence was hearsay as to damages sustained by others.
ASSIGNMENT OF ERROR NUMBER 8:
The district court erred in granting summary judgment on damages as to the medical bills as they were unsigned, unsworn, hearsay, and were not established to have been caused by any breach of the standard of care.
ASSIGNMENT OF ERROR NUMBER 9:
The district court erred in granting summary judgment as to a medical bill for the patient’s first hospitalization at Lake Charles Memorial Hospital in November of 2006 when there is no evidence whatsoever that there was a breach of [the] standard of care associated with that event.
| ^ASSIGNMENT OF ERROR NUMBER 10:
The district court erred in granting damages where there exist serious issues as to the amount of damages sustained by Plaintiffs.

LAW AND DISCUSSION

Relative to the standard of appellate review to be applied when considering a motion for summary judgment, this court has stated the following:

We review this matter de novo. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. Accordingly, we must determine, using the same criteria applied by the trial court, whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). The initial burden of proof is with the mover to show that no genuine issue of material fact exists.

Davis v. Fortenberry, 09-1463, p. 2 (La.App. 3 Cir. 5/5/10), 37 So.3d 514, 516, writ denied, 10-1493 (La.10/1/10), 45 So.3d 1102.

At the outset, we note that the record contains allegations of comparative and third party fault as set forth in the pleadings. Specifically, Dr. Condos, the cardiologist who cared for Mr. Leday while he was a patient at Lake Charles Memorial, was named as a Defendant in Plaintiffs’ Petition. Therein, Plaintiffs asserted that Dr. Condos was also guilty of negligence in that he “deviated from applicable medical standards with regard to the care and treatment that he provided to Mr. Le-day[.]” In his Answer to Petition, Dr. Condos denied liability and alleged “fault or negligence of a third party for whom [he] is not legally or contractually responsible.” Likewise, in the Answer to Petition filed on behalf of Defendants, Dr. Lie and Moss Regional, it is asserted that “[t]he claims are barred or should be reduced by application of comparative fault or negligence or the fault of another.”

Further allegations of negligent actions on the part of Dr. Condos and his employer, Lake Charles Memorial, are found in documents introduced by Plaintiffs in support of their Motion for Summary Judgment. In correspondence of RAugust 12, 2008, directed to the medical review panel, Plaintiffs filed a Second Supplemental and Amending Claim wherein Dr. Condos and Lake Charles Memorial were added as additional healthcare providers. Included therein was the following:

The patient/decedent presented to W.O. Moss Regional Medical Center emergency department on 11/2/06 with an onset of shortness of breath and rapid heart rate and was transferred to Lake Charles Memorial Hospital to the care of the defendant, Dr. Condos, who performed a cardiac angiogram and concluded that the patient had three-vessel cardiac disease for which he needed immediate coronary artery bypass grafting (CABG); nevertheless, Dr. Condos negligently discharged him with inadequate steps being taken to manage his care and to minimize the risk of further cardiac deterioration. Dr. Condos deviated from applicable medical standards by failing to give appropriate discharge instructions, failing to establish a timely visit for the patient after discharge, failing to establish an approximate time line for surgical intervention^] and failing to insure that appropriate medications would be available to the patient. Lake Charles Memorial Hospital negligently-failed to assure that the patient received appropriate medical care.

The record reveals that evidence relative to the foregoing allegations of comparative and third party fault is contained in the exhibits introduced by Plaintiffs in support of their Motion for Summary Judgment. Although Defendants have raised several assignments of error for our review on the issues of both liability and damages, and after having conducted a de novo review of the record, we find merit in Defendants’ assertion that the trial court erred in granting summary judgment given the existence of genuine issues of material fact relative to comparative and third party fault which preclude the grant of summary judgment herein. Our finding on this issue renders the remaining assignments of error moot.

|7The affidavit of Dr. Gary Sander, a cardiologist, was submitted in support of Plaintiffs’ motion. Dr. Sander noted that following Mr. Leday’s discharge from Lake Charles Memorial on November 7, 2006, he “was not given a follow up appointment until January 4, 2007[.]” According to Dr. Sander, this “was an unreasonable and unacceptable delay[.]” Defendants argue that although Dr. Sander opined that both Dr. Lie and Moss Regional were negligent, “the inference to be drawn from his statement that ‘there was an unreasonable and unacceptable delay’ is that Dr. Condos and/or the people at Lake Charles Memorial Hospital were at fault in not timely referring the patient back to Moss Regional.” Additionally, Defendants note that Dr. Sander commented that “according to Dr. Lie, Moss Regional did not provide him with any of the medical records of Dr. Condos during his hospitalization at Lake Charles Memorial Hospital[.]” According to Dr. Sander, “[s]uch a system is inherently flawed, substandard and clearly contributed to Mr. Leday’s subsequent demise.” Defendants conclude that based upon Dr. Sander’s affidavit, “a jury can easily conclude fault on the part of Dr. Condos and Lake Charles Memorial Hospital for failing to timely refer the patient back to Moss Regional and failing to send the records to Dr. Lie.”

Also attached to Plaintiffs’ Motion for Summary Judgment was the affidavit of Dr. Sheldon Kottle, a nephrologist retained by Plaintiffs. Like Dr. Sander, Dr. Kottle opined that there was an unacceptable delay in Mr. Leday not being given a follow-up appointment until January 4, 2007, considering his condition in November 2006. Defendants argue that the affidavit of Dr. Kottle provides ^additional evidence upon which a fact finder may conclude that the delay was the fault of Dr. Condos and/or Lake Charles Memorial.

Plaintiffs also introduced into evidence the deposition of Dr. Michael Alexander, an internist who was a member of the medical review panel. Dr. Alexander was questioned about the delay from November 7, 2006, when Mr. Leday was discharged from Lake Charles Memorial by Dr. Condos, until January 4, 2007, when he was seen by Dr. Lie at Moss Regional. In Dr. Alexander’s opinion, it was “too long” of a delay. When asked if the delay was because “someone dropped the ball[,]” Dr. Alexander opined that he did not “think the ball had been thrown or had reached its target until [Mr. Leday] shows up at Moss Regional in January[.]” Notably, Dr. Alexander also commented that Mr. Leday was noncompliant with taking his medications. Thus, although Dr. Alexander concluded that Dr. Lie and Moss Regional breached the standard of care, Defendants contend that his testimony also raises genuine issues of material fact relative to comparative and third party fault.

The deposition of Dr. Mike Mounier was likewise introduced into evidence in support of Plaintiffs’ Motion for Summary Judgment. Dr. Mounier, an internist and cardiologist, was also a member of the medical review panel. Although Dr. Mounier found “a little bit of negativity” relative to the treatment by Dr. Condos, he testified that the medical review panel “did not put it as breaking the standard of care because I don’t know what the standard [was] over there.” However, in Dr. Mourner’s opinion, Dr. Condos should have personally called Dr. Lie and told him that Mr. Leday needed “urgent bypass surgery.” Based upon the information reviewed by the medical review panel, Dr. Mounier explained that “we did not know who to put the blame on, to be honest with you. There was so much commotion in the case. That’s why we said, ‘There is an issue. We’re going [ ¡¡to let the court take care of it[.]’ ” Ultimately, Dr. Mounier felt that the medical care provided by Dr. Condos was excellent; however, he agreed that the delay was not acceptable, and he was of the opinion that Dr. Condos should have called Dr. Lie. Dr. Mounier characterized what transpired as “administrative communication” that failed, and he explained that the medical review panel “didn’t know who is supposed to be blamed for it. Is it the administration of [Lake Charles] Memorial Hospital? Is it the administration of [Moss Regional] Hospital?” Additionally, Dr. Mounier found that the system was below the appropriate standard of care in that it did not provide a manner by which the medical records from Lake Charles Memorial are sent to Moss Regional for consideration. Dr. Mounier was clear that the medical review panel “did [find] something wrong and something sad[,] but [they] didn’t know where to put the blame.” Finally, Dr. Mounier, like Dr. Alexander, noted that the medical records showed that Mr. Leday was non-compliant. According to Dr. Mounier, the history conveyed by Mr. Leday to Dr. Condos documented that “the patient has not taken his medication in six months.” Defendants assert that the testimony of Dr. Mounier provides further evidence of comparative and third party fault, which precludes the grant of summary judgment.

Based on the foregoing evidence, Defendants argue that the trial court erred in granting summary judgment. Defendants cite this court’s decision in Ceasar, 823 So.2d 998, a medical malpractice case in which the trial court granted summary judgment in favor of the plaintiffs, wherein we found that there was an admission of liability after one of the healthcare providers paid the applicable limits. The Louisiana Patient’s Compensation Fund (PCF) appealed, arguing that there were ongoing claims against another codefendant/hospi-tal and that the hospital could have been found tb also be at fault for. plaintiffs’ injury. The PCF | inargued that any comparative fault attributed to the hospital would result in a reduction of the damages that it was obligated to pay. This court agreed that issues of comparative fault precluded the grant of summary judgment and that the trial court' should have conducted a trial on the issues of comparative fault and damages. Thus, the trial court’s grant of summary judgment in favor of the plaintiffs was reversed.

We agree with Defendants that Ceasar is instructive. Although Plaintiffs persistently argue that “[tjhere exists no genuine issue of material fact that both Dr. Lie and [Moss Regional] committed medical malpractice which resulted in the damages suffered by Mr. Leday[,]” we find that there remain genuine issues of material fact relative to comparative and third party fault, and we agree with Defendants that “the fault of all of these actors should be quantified[.]” For the foregoing reasons, we find that the trial court erred in granting summary judgment on the issue of liability. Having so found, the trial court’s grant of summary judgment on the issue of damages must, likewise, be reversed.

DECREE

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Plaintiffs on the issues of liability and damages is reversed. Costs of this appeal are assessed to Plaintiffs.

REVERSED.

      . We note that the Petition filed in this case lists Curtis Leday, Earline Edwards, Alfred Leday, Lenora Gobert, and Janice Davis as Plaintiffs and identifies them as the major siblings of Edmund Leday. This pleading was never amended; however, the Motion for Summary Judgment filed herein does not include the name of Earline Edwards, but does include the names of Elaine Guillory, Ernest E. Williams, and Theo Edwards as movers. The motion itself, as well as the transcript of the hearing, repeatedly refers to movers as the major siblings of the deceased, Edmund Leday, and fails to acknowledge that three individuals were seemingly never added to the lawsuit and, at least according to Plaintiffs’ Witness and Exhibit List, are, in fact, not siblings of Edmund Leday. Plaintiffs’ Witness List identifies Elaine Guillory as the daughter of Earline Edwards, Ernest E. Williams as the grandson of Earline Edwards, and Theo Edwards as the son of Earline Edwards. This discrepancy is not at issue before this court, and we will simply refer to movers in the Motion for Summary Judgment as Plaintiffs.

      . The Petition names W.O. Moss Regional Medical Center as a Defendant. In its Answer to Petition, Moss Regional appears formally as The Louisiana State Board of Supervisors as Owners of W.O. Moss Regional Medical Center. Throughout, this opinion we shall simply refer to the hospital as Moss Regional.

      . For purposes of this opinion and our discussion of the Motion for Summary Judgment, our reference to Defendants includes only Dr. Lie and Moss Regional, against whom summary judgment was sought.

      . We note that the caption of that opinion mistakenly reads “Dr. Albert Lee, et al." and misspells Dr. Lie’s name.

      . Such a determination in effect includes consideration of Assignment of Error Number 3, Assignment of Error Number 4, and Assignment of Error Number 5. Additionally, in reaching this conclusion, we recognize that an additional Assignment of Error raised by Defendants included the trial court’s striking of their opposition and attachments to Plaintiffs’ Motion for Summary Judgment. In that regard, we purposely render our decision herein solely on the evidence introduced by Plaintiffs and expressly note that the stricken evidence was not considered by this court. Therefore, we pretermit any discussion of whether this action constituted an abuse of the trial court’s discretion.

      . With the exception of the introductory paragraphs identifying the affiant and a final paragraph in the affidavit of Dr. Sander, the contents of the affidavit of Dr. Kottle and the affidavit of Dr. Sander are identical.


author: PITMAN, J.

text:
    Tangela MASON, Plaintiff-Appellee v. WILLIS-KNIGHTON MEDICAL CENTER, Defendant-Appellant.
    No. 49,320-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Lunn, Irion, Salley, Carlisle & Gardner by Walter S. Salley, for Appellant.
    Robert M. Hanna, for Appellee.
    Before BROWN, MOORE & PITMAN, JJ.
   PITMAN, J.

11 Defendant Willis-Knighton Medical Center (“Willis-Knighton”) appeals the judgment of the Workers’ Compensation Judge (“WCJ”) finding that Claimant Tangela Mason is permanently and totally disabled. For the following reasons, we reverse.

FACTS

On June 11, 2000, Ms. Mason, a certified nursing assistant employed by Willis-Knighton, injured her back at work while attending to a patient. Ms. Mason’s weekly wage at the time of the accident was $339.79, and her indemnity rate was $226.53. Willis-Knighton paid indemnity benefits for 520 • weeks and terminated payment as of December 7, 2010.

On August 23, 2011, Ms. Mason filed a disputed claim for compensation seeking a determination from the Office of Workers’ Compensation that she is permanently and totally disabled pursuant to La. R.S. 23:1221(2).

On September 2, 2011, Willis-Knighton filed an answer and denied that Ms. Mason was entitled to any additional workers’ compensation benefits or medical expense reimbursement beyond what had already been paid or was being paid at the time of filing the answer. Willis-Knighton alleged that Ms. Mason is not permanently and totally disabled as defined by La. R.S. 23:1221(2).

DA trial on the merits was held on October 1, 2013. Ms. Mason testified that she worked at Willis-Knighton as a certified nursing assistant beginning in 1990 and that she never had back pain or depression prior to the accident. She stated that, on June 11, 2000, she ruptured a disc in her back while “pulling a patient up in the bed.” She explained that she initially treated the injury with physical therapy and then subsequently had three surgeries. All three surgeries were unsuccessful and she was able to work for a few months after each surgery performing only light duty. She further stated that she stopped working following her third surgery and was approved for social security disability in 2002.

Ms. Mason detailed her history of treatment for pain and that she has seen several doctors for pain management, including Dr. Sudar Tanga and Dr. Randall Brewer. She stated that, on the advice of Dr. Brewer, she went to the Mayo Clinic for approximately a month, continuing all of her medications while there. She testified that she stopped seeing Dr. Tanga because he wanted to put a morphine pump in her back and she stopped seeing Dr. Brewer because he wanted to prescribe her Oxycontin; she did not want to take either of those medications. In the fall of 2012, she went back to Dr. Brewer because he agreed to perform a spinal cord stimulator procedure. However, she did not undergo the procedure because she did not want to complete all the steps for approval, including seeing a psychiatrist. She stated that Dr. Brewer recommended that she participate in a program at Brentwood designed to assist her in weaning off all of the medications she [3was taking, but she declined to participate in the program because she needed the medications for pain.

Ms, Mason stated that, at the time of trial, she was still undergoing pain management through her primary doctor, Dr. Wendell Wall. She testified that she is unable to drive per doctors’ orders because of the medication she takes, i.e., morphine, Lortab, Lyrica, Celebrex, Soma, Cymbalta, Ambien, Triazidone, Nexium, Zofran and Creon. She described her side effects from the medication as, “My head always spinning, having these mood swings, my stomach hurting. Drowsy, lack of energy. Depression, medicine cause depression.” She further stated that she has pancreati-tis, fibromyalgia as a result of the accident and surgeries and stomach problems as a result of her medications. She acknowledged that she takes too many medications and narcotics and that, beginning in February 2013, she has decreased the amount of narcotics she takes.

Ms. Mason also testified that she has not worked since she began receiving social security disability. She described her daily schedule as, “I get up. I have to take my medicine because I hurt bad when I first get up. And the medicine make me sleepy so I go back to sleep. That’s most of my daily routine.” On a good day she gets out of the house for a few hours and on bad days she stays in bed propped up on pillows. On cross-examination, counsel for Willis-Knighton produced photos of Ms. Mason from her Facebook account, wearing high heels and carrying a purse while shopping [4in 2012. She explained that she shops and eats at The Boardwalk “fairly often” and goes to Walmart to shop, but feels she cannot work because of her back symptoms.

In addition to her testimony, Ms. Mason introduced into evidence vocational rehabilitation reports, a letter from Dr. Donald Smith (neurosurgeon), correspondence from Dr. Wall, a social security offset form and a copy of her last temporary total disability check.

In a vocational rehabilitation progress report dated October 8, 2008, her counsel- or noted that “[r]esults of [psychometric] testing indicate that [Ms. Mason] is not a good candidate for these services as she was reported to be incapable of working on a functional basis due to the effects of oversedation as a result of probable medication abuse.”

In a letter dated February 13, 2003, Dr. Smith stated that he does “not believe [other doctors] will be successful in returning this patient to any significant work activities.”

In a letter dated February 26, 2013, Dr. Wall stated, “This letter is to confirm that I am continuing the care of Tangela Mason. She is totally disabled and is unable to work.”

Willis-Knighton introduced into evidence the deposition of Dr. Smith; the medicals records of Drs. Tanga, Wall, James Pinkston, Brewer and Smith; correspondence of Nurse Kristy Coleman to Dr. Wall; a form from Dr. Brewer; and Facebook photos.

|fiIn his deposition, Dr. Smith testified that he is a neurosurgeon and was one of Ms. Mason’s physicians after her accident. He stated that he performed a lumbar disc excision on Ms. Mason in 2000 or 2001. He noted that he performed a physical examination of Ms. Mason in 2007 and that his impression of Ms. Mason after this examination was that he

d[id] not believe that any additional invasive procedures of any type will result in significant improvement in the patient’s level of complaints and d[id] not believe that any of these procedures will result in a return of the patient to any significant level of productive activity.... On a purely physical basis, [he felt] that the patient should be able to perform a wide variety of at least light work activities.

Dr. Smith further noted that Ms. Mason “did not really show a lot of motivation to return to work.” He also noted that, based on her functional capacity testing results, she qualified for sedentary work. He testified that he again examined Ms. Mason in 2009 and reviewed her performance in a functional capacity evaluation. He noted that she did not complete the evaluation because she was in pain, but that he was able to assess that “on a physical basis that the patient should be capable of performing a variety of light work activities.” Dr. Smith also testified that he saw Ms. Mason again in November 2011 and that he believed she could perform light work duties, but that “no return to productive activity will be successful until Ms. Mason has obtained some resolution of her litigation matters.” He reiterated that Ms. Mason was not totally disabled from a physical standpoint. He emphasized that, although he believed she was physically able to perform sedentary work or perhaps light work, “the realistic outlook for returning to | fiany formal work activity is very remote, very poor,” noting her excessive use of narcotics and her poor motivation.

Dr. Tanga’s medical records detail his treatment of Ms. Mason’s pain management beginning in October 2004 and ending in November 2006. In his first consultation with Ms. Mason, he noted that she does not work because of pain and he suggested that she try several different narcotics to manage her pain. After several follow-up appointments, Dr. Tanga noted in March 2005 that Ms. Mason had “tried pretty much every pain medication that is available.” He suggested that Ms. Mason be weaned off all narcotics before beginning an intrathecal morphine trial. His reports suggest that this course of treatment was not pursued and that Ms. Mason continued to take several medications, including Lortab, Lyriea, Celebrex and Ambien, to help control her pain.

Dr. Wall’s medical records document his treatment of Ms. Mason from 2007 to 2013. The most recent records, dated July 9, 2013, state that Ms. Mason has degenerative disc disease of the spine, chronic pain, gastritis, chronic pancreatitis, insomnia, depression and possible fibromyalgia. These records also detail Ms. Mason’s history of medication. The most recent records of her medications, dated August 5, 2013, state that she takes Creon, Lyrica, Ambien, Morphine, Zofron, Soma, Cymbal-ta, Combivent, Celebrex, Nexium, Phener-gan, Norco, Relistor, Vitoz, Trazadone, Li-doderm and Abilify.

In a report dated November 14, 2012, Dr. James Pinkston, a clinical psychologist, detailed his psychological evaluation of Ms. Mason, which he |7performed to assist with her pain management “treatment planning including the consideration of her appropriateness for various interventions including physical therapy, narcotic pain medication, nerve root block injections, implantable medication pumps, and spinal cord stimulation.” Dr. Pink-ston noted that:

Ms. Mason has a long history of chronic pain treatment without success including three back surgeries, various therapies, and many medications. Multiple providers have noted a significant psychological overlay to the perception and maintenance of her pain.
Based on her history, presentation, and standardized psychological assessment, and from a psychological perspective, the examinee is inappropriate for spinal cord stimulator placement or other surgical procedures as a treatment for her chronic pain.
In addition, the examinee’s history, pres- . entation, and current assessment results suggest sedation, medication habituation, and a propensity towards dependence on her pain medications. Given her misperception and significant exaggeration of her chronic pain, it is likely that she will not receive appropriate benefit from narcotic pain medications.

Dr. Brewer’s medical records detail his treatment of Ms. Mason regarding her pain management. His records from October 30, 2012, note that his treatment plan was to attempt to wean Ms. Mason off of her medications after undergoing a spinal cord stimulator trial. Dr. Brewer stated that his alternative plan was to refer her to Brentwood for pain rehabilitation and detoxification. Records from February 13, 2013, note that Ms. Mason did not participate in the program at Brentwood because “she states that there is no point to go through detox if she is still needing pain meds.”

|sIn a letter dated January 18, 2013, Kristy Coleman, a nurse case manager assigned to Ms. Mason’s workers’ compensation ease, wrote to Dr. Wall concerning the rehabilitation conference they attended. Nurse Coleman noted Dr. Pinkston’s finding that Ms. Mason is not a candidate for a spinal cord stimulator and that Dr. Wall disagreed with Dr. Pinkston. She also noted that Dr. Wall requested that Dr. Brewer assume management of Ms. Mason’s medications, but that he believed it would “be difficult as the work [sic] comp carrier is only willing to pay for the lumbar pain and she suffers from chronic pancreatitis” and it would “be difficult to differentiate between the two conditions.” She also discussed Dr. Brewer’s suggestion that Ms. Mason undergo treatment in Brentwood’s detox/pain management program. She wrote that Dr. Wall stated that “her lumbar pain appears stable and her pancreatitis and IBS are more troublesome for the patient.”

On November 25, 2018, the WCJ filed a judgment in favor of Ms. Mason, finding that she proved by clear and convincing evidence that she is permanently and totally disabled. The WCJ also filed detailed reasons for judgment.

Willis-Knighton appeals.

DISCUSSION

Willis-Knighton argues that the WCJ committed legal and manifest error by concluding that Ms. Mason is permanently and totally disabled. 9Willis-Knighton alleges that Ms. Mason has not proven by clear and convincing evidence that she is physically unable to engage in any employment. It suggests that it is mere speculation that Ms. Mason is unable to work because of her back symptoms, as opposed to the other numerous ailments for which Dr. Wall was treating her.

Ms. Mason argues that Willis-Knighton does not point to any legal error and does not establish that the WCJ’s factual findings were manifestly erroneous or clearly wrong. She contends that the WCJ’s judgment was reasonable and supported by the evidence.

The applicable statute pertaining to an employee’s claim for permanent and total disability is La. R.S. 28:1221(2), which states, in pertinent part:

(a)For any injury producing permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds percent of wages during the period of such disability.
(b) For purposes of Subparagraph (2)(a) of this Paragraph, compensation for permanent total disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.
(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the 11flemployee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

Thus, a workers’ compensation claimant seeking permanent total disability benefits bears the burden of proving by clear and convincing evidence that he or she is physically unable to engage in any employment. La. R.S. 23:1221(2)(c); see also, Morgan v. Glazers Wholesale Drug Co., 46,692 (La.App.2d Cir.11/2/11), 79 So.3d 417. Whether the claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Id., citing Harris v. Casino Magic, 38,137 (La.App.2d Cir.1/28/04), 865 So.2d 301, writ denied, 04-0502 (La.4/8/04), 870 So.2d 275.

Factual findings in workers’ compensation cases are subject to the manifest error rule. Buxton v. Iowa Police Dep’t, 09-0520 (La.10/20/09), 23 So.3d 275, citing Winford v. Conerly Corp., 04-1278 (La.3/11/05), 897 So.2d 560; Morgan v. Glazers Wholesale Drug Co., supra, citing Dean v. Southmark Const., 03-1051 (La.7/6/04), 879 So.2d 112. Under the manifest error rule, the reviewing court does not decide whether the factfinder was right or wrong, but only whether its findings are reasonable. Buxton v. Iowa Police Dep’t, supra, citing Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993); Morgan v. Glazers Wholesale Drug Co., supra.

|nEvidence that an employee could not return to any gainful employment without suffering substantial pain is not sufficient to support an award of permanent total disability benefits. Id., citing Bank of Winnfield & Trust Co. v. Collins, 31,473 (La.App.2d Cir.2/24/99), 736 So.2d 263.

In the case sub judice, Ms. Mason attempted to prove by clear and convincing evidence that she is permanently and totally disabled. The WCJ made the determination that Ms. Mason is permanently and totally disabled, noting her chronic back and leg pain, her significant amounts of medication, her lethargic manner and her unsuccessful attempts at rehabilitation. Upon review of the record, we find that the WCJ’s findings are not reasonable and are manifestly erroneous because Ms. Mason has not met her burden of proof.

Ms. Mason’s testimony and the medical records of her treating physicians detail her struggle with pain management following her three back surgeries. Ms. Mason stated that she was unable to work because of her back pain and because of the side effects of her medication, i.e., fatigue, dizziness, upset stomach and depression.

The only testimony or documentation introduced to prove that Ms. Mason is physically unable to work is Dr. Wall’s letter stating, “[s]he is totally disabled and is unable to work” without any explanation for his finding. Although Ms. Mason introduced into evidence the records of several of her doctors, none of these records support her argument that she is physically unable to engage in any employment. The doctors’ records repeatedly highlight Ms. Mason’s dependence on pain medication, notably, | iaher dependence on narcotics. Dr. Tanga noted that Ms. Mason does not work because of pain. Although the vocational rehabilitation counselor stated that Ms. Mason was not a good candidate for vocational rehabilitation, the counselor noted that this was because of Ms. Mason’s “probable medication abuse.” Dr. Smith wrote in a 2003 letter that he did “not believe [other doctors] will be successful in returning this patient to any significant work activities”; but, in his deposition, he explained this was because of her lack of motivation and her excessive use of narcotics — not her physical abilities or inabilities. He opined that Ms. Mason is physically able to work at least on a sedentary basis or perhaps light work.

We find that Ms. Mason has not proven by clear and convincing evidence that she is physically unable to engage in any employment and that, therefore, the WCJ erred in finding that she met her burden of proof. Her complaints that pain and the side effects of pain medication are preventing her from working are insufficient to support her claim of permanent and total disability. See Morgan v. Glazers Wholesale Drug Co., supra; Bank of Winnfield & Trust Co. v. Collins, supra. The evidence presented suggests that Ms. Mason is physically able to engage in employment, including sedentary work or perhaps light work. The evidence also suggests that Ms. Mason abuses pain medication, which has prevented her return to employment.

Accordingly, this assignment of error has merit.

¡^CONCLUSION

For the foregoing reasons, we reverse the judgment of the Workers’ Compensation Judge against Defendant Willis-Knighton Medical Center and in favor of Claimant Tangela Mason finding her to be permanently and totally disabled. Costs of appeal are assessed to Claimant Tange-la Mason.

REVERSED.

      . The original complaint refers to Defendant as "Willis-Knighton Medical Center”; however, subsequent filings refer to Defendant as "Willis-Knighton Health System.”

      . In the alternative, Willis-Knighton asserted entitlement to Social Security offset if the WCJ ruled that Ms. Mason is permanently and totally disabled.

      . Ms. Mason captioned one of the photos "Ready to tke [sic ] theses [sic ] shoes off [sic ] they r [sic ] killing my back.”

      . The Boardwalk is an outdoor outlet center in Bossier City with retail stores, restaurants and a movie theater.

      . The WCJ ordered Willis-Knighton to pay Ms. Mason permanent and total disability benefits of $226.54 per week retroactive to November 23, 2010, and continuing unless modified by the WCJ, subject to reverse Social Security offset of $520.80 per month. The WCJ also ordered Willis-Knighton to pay judicial interest on each payment from the date it came due, together with all costs of the proceedings.

        . We note that Ms. Mason has received 520 weeks of workers’ compensation benefits. Accordingly, she is ineligible to receive supplemental earnings benefits pursuant to La. R.S. 23:122l(3)(d) and 23:1223(B).