author: CARAWAY, J. SEXTON, Judge Pro Tern.,

text:
    STATE of Louisiana, Appellee v. Grady THORNTON, Appellant.
    No. 47,598-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 13, 2013.

      Peggy J. Sullivan, Monroe, LA, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, District Attorney, Geya D. Prudhomme, Jordan B. Bird, Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and SEXTON (Pro Tempore), JJ.
   CARAWAY, J.

hA jury unanimously found Grady Thornton (“Thornton”) guilty of the second degree murder of his three-month-old son, “TJ,” in violation of La. R.S. 14:30.1. Thereafter, the defendant moved for post-verdict modification relief, arguing that the evidence did not sufficiently prove second degree murder. After the trial court denied his motion, Thornton received the mandatory sentence of life imprisonment without benefit of probation, parole, or suspension. The defendant appeals his conviction. For the following reasons, we affirm.

Facts

On June 24, 2008, the child’s father, Thornton, was the sole care giver of TJ from 8:30 p.m. until 6:20 a.m. Ursula Brantley (“Ursula”), Thornton’s girlfriend and TJ’s mother, was partying with her friend, Ambrielle Dawson (“Ambrielle”), and two men. As the night progressed, Thornton became increasingly angry that Ursula had gone out and not yet returned home. While Thornton was writing rap lyrics about Ursula, TJ woke up and “was just crying, crying, crying.” Thornton then called Dianne Dawson (“Dawson”), Ambrielle’s mother. During Thornton’s final call to attempt to locate Ursula at 5:36 а.m., Dawson heard TJ screaming, “a blood-curdling scream,” in the background. Based upon the phone records and testimony regarding when Ursula returned home, TJ’s fatal injuries were inflicted between 5:36 a.m. and 6:20 a.m. Thornton eventually admitted to police that he hit, shook, and squeezed TJ in an attempt to hurt Ursula.

| ^Shortly after Ursula returned home, Thornton discovered that TJ was not breathing. After attempting CPR, Ursula and Thornton drove TJ to the hospital. Despite the hospital’s best attempts, TJ died at 3:55 p.m. on June 25, 2008. Subsequently, Thornton was arrested.

On August 7, 2008, Thornton, age 18, was indicted by a grand jury and charged with committing the second degree murder of his three-month-old son. On February б, 2012, the indictment was amended, charging Thornton with second degree murder as defined by R.S. 14:30.1 in that he committed the homicide of TJ while:

(1) having the specific intent to kill or inflict great bodily harm, or
(2) while he was engaged in the perpetration or attempted perpetration of cruelty to a juvenile or second degree cruelty to a juvenile, even though he has no intent to kill or inflict great bodily harm.

The trial began on February 7, 2012, with the testimony of Ursula. At the time of TJ’s death, Ursula testified that she and Thornton had been living together for a year. She stated that it was her intention to make Thornton mad by staying out all night, a feat she admitted she accomplished.

When she arrived home around 6:20 a.m., Ursula testified that Thornton was walking around outside, and he appeared to be very angry. Shortly thereafter, Thornton informed her that something was wrong with TJ. Ursula testified that they both attempted CPR before driving to the hospital. On the way to the hospital, Thornton told her that “had you been home last night none of this would have happened.”

| ¡¡Sheila Taylor (“Taylor”), Ursula’s stepmother and a GI Technician at Willis-Knighton Pierremont, testified next. Taylor owns the house where Ursula, TJ and Thornton were living and was in her bedroom in the back of the house when TJ was fatally injured. While home, she testified that she did not hear anything nor was it common for her to hear anything from her bedroom. At the hospital, Taylor heard Thornton tell Ursula that “if she would have been at home this would have never happened.”

Dianne Dawson (“Dawson”) testified that Thornton called her in an attempt to locate Ursula. The phone records indicate that Thornton called her at 3:23 a.m. and 5:36 a.m. According to Dawson, Thornton did sound angry and upset during the last call. Thornton told her that Ursula was supposed to be home, because he had something to do. Dawson also testified that she heard TJ screaming in the background during the last phone call.

Officer Ronald Debello testified that he was dispatched to Willis-Knighton Pierre-mont to investigate allegations of child abuse. After speaking with child protective service workers and Willis-Knighton’s social worker, he realized the seriousness of the allegations and notified the Violent Crimes Division.

Shreveport Police Detectives Rod Johnson and Rod Demery from the Violent Crimes Unit were the investigators assigned to TJ’s case. Both officers were present for and conducted three interviews with the defendant. After a free and voluntary hearing, the trial court admitted all three interviews. The recordings of the interviews were played for the jury.

|4In the first interview, Thornton denied hitting TJ. He stated that after he fed and changed his son, TJ rolled off of the bed. After picking him up, Thornton stated that TJ looked fíne so he burped him and put him in his bassinet. After the officers stated that TJ’s injuries to his head were not indicative of falling off of a bed, Thornton stated that TJ hit his head on the bedside table when he fell.

During the second interview, Thornton admitted that he hit TJ in the head. Thornton stated that he lost his temper because he was angry that Ursula was not home, worried that she was cheating on him, and frustrated that TJ would not stop crying. Thornton admitted that he hit TJ in an attempt to hurt Ursula. After hitting TJ, Thornton stated that TJ stopped crying and fell asleep.

By the third interview, Thornton had been charged with TJ’s murder. The officers informed him that the autopsy results were inconsistent with his prior explanations regarding how TJ received his injuries. Initially, the defendant said that he hit TJ in the back of his head with the heel of his palm. Later, he admitted that he held TJ’s head like a basketball and squeezed. Thornton stated that he did not want TJ to die.

Dr. James Traylor conducted the autopsy in this case and was accepted by the court as an expert in forensic pathology. Dr. Traylor’s autopsy report classified the death as a homicide and determined that TJ’s cause of death was blunt force injury due to shaken impact syndrome, formerly known as shaken baby syndrome. The toxicology report showed no chemicals or drugs in TJ’s system that would have caused his death. He [.^testified that TJ suffered a radiating skull fracture, a laceration in his liver, a severed adrenal gland, and six broken ribs.

Dr. Traylor testified that the nearly four-inch fracture of TJ’s skull was a fatal injury. TJ’s fractured skull caused a large hemorrhage and swelling in the brain. The doctor also found four distinct bruises along each side of TJ’s back. Dr. Traylor suggested that the contusions on the back were made by lifting the child underneath the arms so that the thumbs were in front, resting around the bottom of the rib cage. At the bottom right side of the rib cage, TJ’s liver had lacerations or tears and the adjacent adrenal gland was completely torn in half. Additionally, six of TJ’s ribs-three on each side-were fractured. He testified that these injuries were consistent with grabbing and squeezing a child really hard, while driving the thumb into that area.

The doctor testified that squeezing the child’s head in the way Thornton described would not have created enough energy to cause the four-inch skull fracture. According to Dr. Traylor, the fractured skull was more likely caused by rapid compression, either from (1) pressure applied between two hands or (2) pressure applied to one side of the child’s head while it rested on a firm surface, as would occur if TJ was struck with the heel of a hand in a rapid, downward motion. Dr. Traylor confirmed that none of TJ’s injuries were accidental.

Thornton chose not to testify at the trial or call any witnesses. After closing arguments, the jury received instructions on second degree murder, as well as the responsive verdicts of manslaughter and negligent homicide. [fiOn February 8, 2012, a jury unanimously found the defendant guilty as charged of second degree murder. The defense filed a motion for post-verdict modification of the judgment, arguing that the state failed to prove that he was guilty, beyond a reasonable doubt, of second degree murder. On February 13, 2012, the trial court denied the defendant’s motion and found that the evidence excluded every reasonable hypothesis of innocence. After Thornton waived sentencing delays, the mandatory sentence of life imprisonment, without benefit of probation, parole, or suspension was imposed by the trial court.

Discussion

On appeal, Thornton does not argue that he is innocent. Instead, he argues that the evidence was insufficient to support a second degree murder conviction given the mitigating factors. Thornton argues that his anger at Ursula for staying out all night, suspicion that Ursula was cheating on him, and TJ’s incessant crying led him to experience a sudden heat of passion when he inflicted TJ’s injuries. A manslaughter conviction, therefore, is warranted.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L,Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d 7 Cir.1/9/08), 974 So.2d 181, unit denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir. 1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La. App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

Direct evidence provides proof of the existence of a fact, for example, a witness’ testimony that he saw or heard something.. State v. Lilly, 468 So.2d 1154 (La.1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. The trier of fact is charged with weighing the credibility of both direct and indirect evidence and on review, the same standard as in Jackson v. Virginia is applied, giving great deference to the fact finder’s conclusions. Id. The facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential |selement of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, unit denied, 09-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, unit denied, 07-2053 (La.3/7/08), 977 So.2d 896.

Second degree murder is defined by La. R.S. 14:30.1 as the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great' bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of ... cruelty to juveniles [or] second degree cruelty to juveniles ... even though he has no intent to kill or to inflict great bodily harm.

Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). As a state of mind, specific intent need not be proven as a fact, but may be inferred from the circumstances of the offense and the defendant’s actions. State v. Allen, 41,548 (La.App.2d Cir.11/15/06), 942 So.2d 1244, unit denied, 07-0530 (La.12/7/07), 969 So.2d 619. Specific intent to kill or inflict great bodily harm, as required to convict for second degree murder, may be inferred from the extent and severity of the victim’s injuries. State v. Patterson, 10-415 (La.App.5th Cir.1/11/11), 63 So.3d 140, writ denied, 11-0338 (La.6/17/11), 63 So.3d 1037; State v. Durand, 07-4 (La.App.5th Cir.6/26/07), 963 So.2d 1028, writ denied, 07-1545 (La.1/25/08), 973 So.2d 753.

Cruelty to juveniles is defined by La. R.S. 14:93(A)(1) as the intentional or criminally negligent mistreatment by neglect of anyone 17 years of age or older of any child under the age of 17 whereby unjustifiable Lpain or suffering is caused to said child. According to La. R.S. 14:93.2.3(A)(1), second degree cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect by anyone over the age of 17 to any child under the age of 17 which causes serious bodily injury or neurological impairment to that child. Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. La. R.S. 14:12.

In order to support a second degree murder conviction, the state needed to prove beyond a reasonable doubt that Thornton (1) intentionally or negligently caused (2) serious bodily harm/neurological impairment or unjustifiable pain/suffering to TJ which (3) resulted in his death. The state introduced sufficient evidence to support these elements. First of all, Thornton told Detectives Johnson and Demery that he hurt TJ in order to get back at Ursula. Additionally, Dr. Traylor testified that TJ suffered a lacerated liver, six broken ribs, and a four-inch fractured skull. Not only are these violent and severe injuries, but Dr. Traylor testified that they were intentionally inflicted. TJ died as a result of his skull fracture which Thornton inflicted. Therefore, the evidence and testimony presented to the jury sufficiently supported Thornton’s conviction.

The jury unanimously found Thornton guilty of the second degree murder of his three-month-old son, despite being given the responsive verdict of manslaughter. While the evidence was sufficient to support |insecond degree murder, it is necessary to review any mitigating factors that might warrant a lesser degree of culpability-

The offense of manslaughter is defined as a homicide that would be second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31(A)(1); State v. Miller, 36,003 (La. App.2d Cir.7/25/02), 824 So.2d 1208, writ denied, 02-2480 (La.6/27/03), 847 So.2d 1253. Sudden passion and heat of blood are mitigatory factors in the nature of a defense which exhibits a degree of culpability less than present when the homicide is committed without them. State v. Lombard, 486 So.2d 106 (La.1986); State v. Williams, 44,977 (La.App.2d. Cir.1/27/10), 32 So.3d 902, writ denied, 10-0368 (La.9/24/10), 45 So.3d 1071.

The defendant bears the burden to prove, by a preponderance of the evidence, that he acted in sudden passion or heat of blood in order for manslaughter to be appropriate. State v. Logan, 45,136 (La. App.2d Cir.4/14/10), 34 So.3d 528, writ denied, 10-1099 (La.11/5/10), 50 So.3d 812; State v. Lang, 42,125 (La.App.2d Cir.5/30/07), 960 So.2d 318, writ denied, 07-1469 (La.1/11/08), 972 So.2d 1161; State v. Hendricks, 38,945 (La.App.2d Cir.9/22/04), 882 So.2d 1212, writ denied, 04-2833 (La.3/18/05), 896 So.2d 1000.

Provocation and the time for cooling are questions for the trier of fact to determine according to the standard of the average or ordinary person. State v. Horn, 45,706 (La.App.2d Cir.11/3/10), 55 So.3d 100, writ denied, [n 10-2721 (La.5/6/11), 62 So.3d 124. The appellate court must determine whether a rational trier of fact, upon reviewing the evidence in the light most favorable to the prosecution, could have found that these mitigating factors had not been established by a preponderance of the evidence. State v. Robinson, 32,794 (La.App.2d Cir.3/1/00), 754 So.2d 311, writ denied, 00-0989 (La.3/23/01), 787 So.2d 1008: State v. Lewis, 28,973 (La.App.2d Cir.12/11/96), 685 So.2d 1130, writ denied, 97-0122 (La.5/16/97), 693 So.2d 797.

In his interviews to the police, Thornton stated that he injured TJ in order to hurt Ursula. Thornton stated that he was angry with Ursula for several reasons. First of all, she did not inform him that she was going to stay out all night. Secondly, Thornton did not approve of Ursula hanging out with Ambrielle. Lastly, Thornton suspected that Ursula was cheating on him. Nevertheless, although Ursula said she would be right back, Thornton told the police that this was not the first time that Ursula failed to return home as expected. Thornton’s own admission indicates that he had previously been left alone with TJ all night without incident, and TJ’s autopsy report failed to find evidence of prior injuries.

While Thornton claims that he did not intend for TJ to die, he used excessive force on his three-month-old son without regard for his life. Dr. Traylor stated that TJ’s fractured skull could have resulted only by squeezing TJ’s head with both hands or by applying rapid pressure against a firm structure. Not only did Thornton shake and squeeze TJ, but he did both of these so hard that he fractured six ribs, lacerated his liver, and left | ^internal bruises where his fingers had been. Dr. Traylor testified and Thornton admitted that TJ’s injuries were not accidentally inflicted.

Moreover, regardless of Thornton’s argument regarding his specific intent to kill, the evidence establishes his criminal negligence for the cruelty to the juvenile. There was such a disregard for the child that Thornton’s conduct amounted to a gross deviation below the standard of care expected from a reasonably careful man under the circumstances.

Regarding the defense’s argument for manslaughter, the measure of the “provocation sufficient to deprive an average person of his self-control” cannot be met by reference to the crying and discomfort of an innocent victim only three months old. The average person understands that no anger, much less anger accompanied by force and harm, is a reasonable response to an infant. With provocation totally irrelevant as an adult response in such instance, Thornton’s asserted provocation by Ursula can likewise not be transferred so as to make in any manner his violence against the child less culpable. There is no reasonable correlation providing a degree of justification between TJ’s crying, the defendant’s anger over Ursula’s petty and vengeful acts, and the brutality that Thornton showed his own son.

Thornton failed to prove, by a preponderance of the evidence, that circumstances existed such that he was so provoked by sudden passion or heat of blood that he was deprived of an average person’s self-control and cool reflection. State v. Logan, supra. Thus, the evidence was sufficient to support a conviction for second degree murder. The defendant failed to | improve that he acted in sudden passion or heat of blood sufficient to reduce his culpability and render the homicide a manslaughter. State v. Allen, supra. As a result, the jury’s verdict was correct and the conviction is affirmed.

Decree

For the above reasons, the defendant’s conviction is affirmed. The defendant failed to prove that there were mitigating factors that he acted upon strong provocation in order to warrant a manslaughter conviction. As a result, the jury correctly rejected the manslaughter responsive verdict and found the defendant guilty of second degree murder.

AFFIRMED.

SEXTON, J. Pro Tern., concurs with reasons.

SEXTON, Judge Pro Tern.,

concurring.

hi agree with this opinion, but consider that since there was sufficient evidence to convict the defendant under R.S. 14:80.1(2), a review of possible mitigating factors relating to manslaughter is unnecessary.


source: Caselaw Access Project

author:
THIBODEAUX, Chief Judge. AMY, J,
      GENOVESE, J., CONERY, J.

license: Public Domain

text:
    Victor RACHAL v. Justin P. BROUILLETTE, et al.
    No. 12-794.
    Court of Appeal of Louisiana, Third Circuit.
    March 13, 2013.

      Larry Alan Stewart, Stafford, Stewart & Potter, Alexandria, LA, for Defendant/Appellant, Justin P. Brouillette.
    Wilbert Joseph Saucier, Jr., Wilbert J. Saucier, Jr., Inc., Pineville, LA, for Plaintiff/Appellee, Victor Rachal.
    Rodney James Littlefield, New Orleans, LA, for Plaintiffs/Appellees, John Dumars, et al.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, JIMMIE C. PETERS, MARC T. AMY, ELIZABETH A. PICKETT, BILLY H. EZELL, J. DAVID PAINTER, JAMES T. GENOVESE, SHANNON J. GREMILLION, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   THIBODEAUX, Chief Judge.

_[jPlaintiff, Victor Rachal, filed this suit on behalf of his minor son, Nicholas, against Justin Brouillette and State Farm Mutual Automobile Insurance Company for the wrongful death of Nicholas’s mother, Joann Isaac. Mr. Brouillette, driving a large sports utility vehicle, crashed into Ms. Isaac and her two daughters as they walked along a highway in Alexandria, Louisiana. All three individuals were killed. Defendants admitted liability before trial, leaving only the issue of damages for the jury. The jury awarded Nicholas $2,800,000 in compensatory and $100,000 in exemplary damages. Defendants appeal the amount of compensatory damages, and Plaintiff appeals the amount of exemplary damages. For the following reasons, we affirm the compensatory damages and increase the exemplary damages to $500,000.

I.

ISSUES

We will consider:

(1) whether the verdict form submitted to the jury is duplicative;
(2) whether the jury awarded an excessive amount of general damages;
(3) whether the jury erroneously awarded damages for loss of financial support;
(4) whether the jury erroneously found that Mr. Brouillette caused the accident while under the influence of a controlled dangerous substance; and
(5) whether the jury awarded an insufficient amount of exemplary damages.

_b.II-

FACTS AND PROCEDURAL HISTORY

Mr. Brouillette was driving erratically at a high speed when he inexplicably left the highway and headed toward the right-hand shoulder. He immediately struck Ms. Isaac and her two minor daughters as they walked side-by-side on the shoulder near the grass. Mr. Brouillette continued driving past the shoulder, with Ms. Isaac and one of her daughters still on the hood of his car, until he struck one culvert, flew in the air, and crashed into a second culvert. Ms. Isaac and her two daughters were killed. Authorities discovered marijuana and hydrocodone in Mr. Brouillette’s system immediately after the accident. He was driving at ninety-one miles per hour when he hit the victims.

Mr. Brouillette was convicted of three counts of vehicular homicide and sentenced to five years in prison for each count. After Mi*. Rachal sued on behalf of Nicholas, State Farm and Mr. Brouillette admitted liability before the jury trial started, leaving only the issue of damages for the jury’s consideration. After a three-day trial, the jury awarded Nicholas $2,500,000 in general damages, $300,000 in loss of financial support damages, and $100,000 in exemplary damages for his mother’s wrongful death. Defendants appeal the judgment and assert the following four issues: (1) the jury verdict form is duplicative; (2) the award of general damages is excessive; (3) the jury erroneously awarded Plaintiff damages for loss of financial support; and (4) the jury erroneously determined that |sMr. Brouillette was impaired during the accident and that his impairment caused the accident. Mr. Rachal appeals the amount of exemplary damages as insufficient.

III.

LAW AND DISCUSSION

Standard of Review

A jury’s award of damages is a finding of fact. We review the award for abuse of discretion. Ryan v. Zurich Am. Ins. Co., 07-2312 (La.7/1/08), 988 So.2d 214. The discretion vested in the trier of fact is so great that a court of appeal should rarely disturb an award of damages. In fact, “[i]t is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). We will not set aside the award absent manifest error or unless it is clearly wrong. Ryan, 988 So.2d 214. Further, the trial court’s decision to separate the elements of the general damage award on the jury verdict form was also a finding of fact, as was the jury’s decision to award punitive damages. Id. These factual findings are also subject to the manifest error standard of review.

| ¿Discussion

Jury Verdict Form

State Farm and Mr. Brouillette argue that the trial court erred by submitting a verdict form to the jury that separated the elements of the general damage award. Specifically, the jury verdict form contained a separate line for mental anguish, grief, and anxiety, to which the jury awarded Nicholas $1,000,000 and a separate line for loss of love and affection, to which the jury also awarded him $1,000,000. Defendants assert that these two elements are duplicative. We disagree.

Louisiana Civil Code Article 2315 mandates that “a tortfeasor must compensate a tort victim for all of the damages occasioned by his act.” Compensatory damages are divided into special damages and general damages. General damages include physical and mental pain and suffering, inconvenience, loss of gratification, and other losses of lifestyle that cannot be definitively measured with money. McGee v. AC And S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770. These damages are “routinely dissected” on jury verdict forms. Id. at 774. As long as the damage elements are conceptually distinct from one another, the trial court has discretion to separate them on the verdict form. Id. A prior panel of this court addressed this issue and determined that loss of love and affection and mental anguish, grief, and anxiety are not conceptually different and should not be separated on the jury verdict form. Hardy v. Augustine, 10-946 (La. App. 3 Cir. 2/2/11), 55 So.3d 1019. That court held that grief is the expression | sof the loss of love and affection that the plaintiff experiences, not a distinct element of damage. We disagree.

Mental anguish, grief, and anxiety, on one hand, and loss of love and affection, on the other hand, are independent concepts. Mental anguish and grief refers to the “pain, discomfort, inconvenience, anguish, and emotional trauma” that accompany the injury. McGee, 933 So.2d at 775. In this case, it refers to the initial shock, anxiety, and distress that a ten-year old experiences as a result of the loss of a parent. Loss of love and affection, on the other hand, goes beyond the initial grief and emotional trauma. These damages compensate Nicholas for the enduring and irreversible loss of his mother. While grief and anguish will wane over time, Nicholas will always feel the absence of the traditional characteristics of the mother-son relationship. Put another way, grief is the presence of an emotion as a result of a loved one’s death. Loss of love and affection, however, is the absence of an experience; specifically, the absence of a love previously bestowed. These two categories are distinct and separate injuries that Nicholas experienced and will continue to experience as a result of his mother’s premature and wrongful death. We affirm the trial court’s decision to separate them on the jury verdict form.

The decision to separate the categories must still be evidentiary-based and is contingent upon adequate and sufficient proof that both damages are appropriate. Further, as always, the makeup of the jury verdict form is within the |fitrial court’s discretion. Finally, Hardy v. Augustine is overruled to the extent that it deviates from our opinion today.

Defendants also argue that loss of society, service, and consortium, which was a separate line on the verdict form, is duplicative of loss of love and affection and mental anguish and grief. We find no merit in this argument. The factors of a loss of consortium claim include: (1) loss of society and companionship; (2) loss of support and family income; and (3) loss of performance of material services, including educational and household help for children. Kilpatrick v. Alliance Cas. and Reinsurance Co., 95-17 (La.App. 3 Cir. 7/5/95), 663 So.2d 62, writ denied, 95-2018 (La.11/17/95), 664 So.2d 406. These factors are noticeably different from the elements of loss of love and affection and mental anguish and grief. Further, Louisiana courts regularly allow the jury to award a separate amount for loss of service, society, and consortium. See, e.g. Brossett v. Howard, 08-535 (La.App. 3 Cir. 12/10/08), 998 So.2d 916, writ denied, 09-77 (La.3/6/09), 3 So.3d 492. We affirm the trial court’s decision to separate these categories on the jury verdict form.

General Damage Award Review

Defendants assert that the award of $2,500,000 in general damages was excessive. We disagree. We will review the damage award for abuse of discretion. Only if no reasonable trier of fact could award Nicholas $2,500,000 will we disturb the award. Youn, 623 So.2d 1257.

17Nicholas enjoyed a close, loving relationship with his mother. Although his parents were separated and Nicholas lived primarily with his father, he spent most weekends with his mother. Ms. Isaac and Mr. Rachal went to great lengths to ensure their son was in the best environment for him considering his struggles with Attention Deficit Hyperactivity Disorder (ADHD). This thoughtfulness and attention shows Ms. Isaac was extremely involved in her son’s life. Defendants try to minimize the effects of Ms. Isaac’s death on Nicholas; however, the evidence suggests that Nicholas has endured severe physical and mental trauma as a result of this tragedy. Following his mother’s death, Nicholas suffered from hallucinations and suicidal thoughts and gained an extraordinary amount of weight. Nicholas’s father described how Nicholas has left school on more than one occasion to visit his mother’s grave and cry. The jury was apparently convinced that Ms. Isaac’s death had a profound effect on Nicholas. This finding is not clearly wrong; therefore, the jury did not abuse its discretion by awarding $2,500,000 in general damages.

Loss of Financial Support

Defendants contend that the jury erroneously awarded Nicholas loss of financial support damages. We find no merit in this contention. The factors considered for an award of loss of financial support include the decedent’s present earnings; age and life expectancy; the minor’s age at the time of decedent’s death; the decedent’s work life expectancy; the possibility of a decrease or increase in learnings with age; and any other factors relevant to the premature demise of the decedent. Nigreville v. Federated Rural Elec. Ins. Co., 93-1202 (La. App. 3 Cir. 7/13/94), 642 So.2d 216, writ denied, 94-2803 (La.1/27/95), 649 So.2d 384. Although Ms. Isaac’s income of $14,322 the year she died was not dramatically high, it steadily increased each year, suggesting she would have continued to strive to improve her financial situation had she lived. Ms. Isaac clothed Nicholas, fed him, and took care of him. Defendant argues that because Mr. Rachal did not present testimony regarding exactly how much money Ms. Isaac contributed to raising her son, we should presume she did not contribute anything. Common sense, however, dictates that since Ms. Isaac and Mr. Rachal maintained joint custody of Nicholas, Ms. Isaac financially contributed to her son’s upbringing. Further, the jury evidently believed that Ms. Isaac would have provided for her son until she reached the limits of her work life expectancy, some thirty years in the future. Although $300,000 may be on the higher end of the scale, it was not abusively high.

Exemplary Damages: Impairment

Defendants assert that the jury should not have awarded exemplary damages because the evidence was insufficient to establish Mr. Brouillette was impaired such that his impairment caused the accident. We find this argument meritless. Exemplary damages may be awarded upon proof that: (1) defendant was intoxicated or had ingested a sufficient quantity of a controlled dangerous substance to make him lose control of his mental or physical faculties; (2) the intoxication was a cause-in-fact of the accident; and (3) the injuries were caused by a wanton and reckless disregard for the rights and safety of others. La.Civ.Code |9art. 2315.4; Brossett, 998 So.2d 916. Mr. Brouillette’s own admission and the testimony presented at trial indicate that he was impaired when the accident occurred and his impairment caused the accident. Moreover, the circumstances surrounding the accident signify that he had a wanton and reckless disregard for the safety of others.

First, Mr, Brouillette pleaded guilty to three counts of vehicular homicide in violation of La.R.S. 14:32.1. This plea required Mr. Brouillette to admit that he was under the influence of a controlled dangerous substance and that this was a cause-in-fact of the accident. Mr. Brouillette admits, therefore, that he was impaired and that his impairment caused the accident.

Second, Dr. William George, a pharmacologist and toxicologist, examined the results of a blood test Mr. Brouillette submitted to immediately after the accident. Dr. George testified that Mr. Brouillette had ingested marijuana within six to twelve hours before his blood was drawn. The doctor also found hydrocodone in Mr. Brouillette’s system. He further testified that the level of marijuana and hydroco-done in Mr. Brouillette’s blood was sufficient to produce the effects of decreased reaction time, sedation, inattention, blurred peripheral vision, and drowsiness. Dr. George unequivocally stated that the amount of both drugs found in his system was enough to make Mr. Brouillette lose control of his mental and physical faculties.

The facts of this case demonstrate that Mr. Brouillette was not in control of his mental or physical faculties and that he had a wanton and reckless disregard for Ms. Isaac’s and her children’s safety. Mr. Brouillette was traveling at ninety-one miles per hour when he hit Ms. Isaac and her two daughters and the evidence suggested he sped up after he hit them, instead of slowing down. Further, hnMr. Brouillette carried two of the victims on the hood of his car for 184 feet until finally crashing into a culvert. Before hitting the victims, Mr. Brouillette was swerving in and out of traffic and driving erratically. This accident was not the product of someone in control of his actions. We find the jury properly determined Mr. Brouillette’s impaired state caused the accident.

Exemplary Damages: Amount

Plaintiff argues that the award of exemplary damages, $100,000, was unreasonably low. We agree and increase the award to $500,000. The purpose of exemplary damages is to punish the defendant and deter future similar behavior. These damages are regarded as a fine or penalty for the protection of the public interest. Mosing v. Domas, 02-12 (La.10/15/02), 830 So.2d 967. The following factors are considered in determining whether the award is too high or low: (1) the nature and extent of the harm to the plaintiff; (2) the wealth or financial situation of the defendant; (3) the character of the conduct involved; (4) the extent to which such conduct offends a sense of justice and propriety; and (5) the amount necessary to deter similar conduct in the future. Id, The amount of exemplary damages is the result of a fact-intensive inquiry into the case. These awards should only be disturbed if the damages are such that “all mankind at first blush would find [them] outrageous.” Id. at 972 (quoting Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415, 421-22, 114 S.Ct. 2331, 129 L.Ed.2d 336 (1994)).

The circumstances of this case illustrate the need to increase the exemplary damages. Ms. Isaac is not merely injured, she is deceased; therefore, [nthe injury to this plaintiff is great. Defendants suggest that because Mr. Brouillette had only “a small amount” of drugs in his system, his behavior was not as reprehensible as Mr. Rachal asserts. This “small amount” of drugs was apparently enough to cause Mr. Brouillette to drive erratically at a high speed, kill three people, and not remember any of it. We find this behavior sufficiently reprehensible.

Defendants also argue that Mr. Brouil-lette’s ten years in prison is punishment enough to deter this conduct in the future. The court notes, however, that Mr. Brouil-lette will actually spend only five years in prison since two of his five-year sentences were ordered to run concurrently (the other five year sentence was suspended). Five years in prison for killing three people is not as punitive as Defendants contend. Mr. Brouillette was previously convicted of driving while intoxicated, and he was in another car accident prior to this one. Moreover, he showed very little remorse at trial by consistently denying that he ingested marijuana or hydrocodone, despite scientific evidence of the drugs in his system. Mr. Brouillette clearly has no regard for the safety of others while he is driving a vehicle and continually refuses to obey the law. As further evidence of Mr. Brouillette’s disregard for the law, he was disciplined for possessing synthetic marijuana while in prison. Likewise, on a separate occasion a month later, he admitted to using marijuana and an opiate substance when ordered to undergo a random drug test. We cannot emphasize enough the need to deter this conduct.

Defendants suggest that we should refrain from increasing the award of exemplary damages because Mr. Brouil-lette will never be able to pay such a 112high award. The defendant’s financial situation, however, is only one factor to consider and is not dispositive.

We find the jury abused its discretion by awarding an unreasonably low amount of exemplary damages. Accordingly, we have determined that $500,000 is an amount sufficient to punish Mr. Brouil-lette’s behavior and protect the public interest.

V.

CONCLUSION

For the reasons above, we affirm the award of general damages and increase the award of exemplary damages. Costs of this appeal are assigned to Defendants, Justin Brouillette and State Farm Mutual Automobile Insurance Company.

AFFIRMED AND AFFIRMED AS AMENDED.

AMY, J., concurs in part, dissents in part, and assigns reasons.

GENOVESE, J., concurs in part, dissents in part, and assigns reasons.

GREMILLION, J., concurs in part and dissents in part for the reasons provided by Judge AMY.

CONERY, J., dissents and assigns written reasons.

AMY, J,

concurring in part and dissenting in part.

hi respectfully dissent from the majority opinion’s conclusions regarding the separate listings of general damages elements on the jury verdict sheet. In my opinion, the form erroneously duplicated conceptually similar areas of recovery.

The form at issue in this case inquired, in pertinent part, as follows:

1. What amount, if any, in compensatory damages do you award on behalf of Nicholas Isaac?
a. Past, present and future mental anguish, grief and anxiety due to the wrongful death and loss of his mother.
b. Past, present and future loss of the love and affection of his mother
c. Loss of society, service and consortium of his mother
d. Loss of financial support by his mother, Jo Ann Isaac

(Emphasis added.)

As addressed in the majority opinion, the supreme court, in McGee v. AC and S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770, found no error in the use of a verdict sheet that listed “loss of enjoyment of life” as a separate element of general damages. It noted a conceptual difference between the element of “loss of enjoyment of life” and broad categories of general damages such as pain and suffering, both physical and mental.

| PH owe ver, I do not find that McGee necessarily permits the type of further sub-division contained on the verdict sheet under review, i.e., “mental anguish, grief, and anxiety,” “loss of love and affection” and “loss of society, service and consortium.”

Rather, I find this court’s decision in Hardy v. Augustine, 10-946 (La.App. 3 Cir. 2/2/11), 55 So.3d 1019, unit denied, 11-0470 (La.4/25/11), 62 So.3d 92, squarely on point with and applicable to this case. In Hardy, the panel considered whether the general damages element of mental pain and suffering could be further sub-divided to list one portion of that element, “grief and anguish,” separately from another portion of that element, “loss of love, affection, and companionship.” Hardy rejected that further sub-division, finding that the injury, itself, is the same for both sub-divisions. The panel determined that the former, “grief and anguish,” is merely an expression of the latter, “loss of love, affection, and companionship.” I adhere to that view here. Accordingly, I find that the trial court erred in permitting “mental anguish, grief and anxiety” to be listed separately from “loss of love and affection.”

Further, and the more pronounced problem in my opinion, is the additional listing of “loss of society, service, and consortium.” I see no sufficient distinction between love/affection and society/consortium, so as to permit a separate line entry for these sub-divisions. In McGee, for example, the supreme court explained that loss of consortium is a harm to relational interest, something that, in my opinion, would include loss of love and affection. Additionally, jurisprudence supports the view that a consortium claim includes, among other things, loss of love and affection, society and companionship, services, and support. See, e.g., Willis v. Noble Drilling, 11-598 (La.App. 5 Cir. 11/13/12), 105 So.3d 828 (citing Finley v. Bass, 478 So.2d 608 (La.App. 2 Cir.1985)). See also Lonthier v. Northwest Ins. Co., 497 So.2d 774 (La.App. 3 Cir.1986) (wherein a panel of this court discussed loss of love, companionship, and affection within the context of the element of “society” within a consortium claim).

Finally, the potential confusion of the overlapping areas of recovery was exacerbated by the fact that the jury was asked to make an award, not only for “loss of society, service and consortium,” but to also make a separate award for “loss of financial support.” As jurisprudence discusses support as an element of consortium, I believe that these separate awards resulted in a duplicative award.

Accordingly, I find merit in the defendants’ assignment regarding the nature of the verdict sheet and dissent from the majority opinion in this regard. Given the patent duplication between the jury’s awards for “loss of society, service and consortium” and “loss of financial support,” I would reverse the separate, $300,000 award for the latter.

To the extent that the remaining overall general damages award of $2,500,000 is not an abuse of discretion, I join in the majority’s affirmation of that overall figure. See Hardy, 55 So.3d 1019 (wherein the panel reviewed the overall general damage award for abuse of discretion after determining that the jury verdict sheet should not have contained separate lines for “loss of love, affection and companionship” and for “grief and anguish.”)

As for the remaining issues, including the amendment of the abusively low exemplary damages awarded, I join in the majority opinion.

GENOVESE, J.,

concurs in part, dissents in part, and assigns the following reasons.

hi agree with the majority as to the jury verdict form to the extent that mental anguish, loss of love and affection, and loss of consortium are separate items of damage justifying a separate award for each on the jury verdict form provided there is sufficient evidence in the record proving same. I likewise agree with the majority as to the jury award for loss of financial support.

I disagree, however, with the majority’s affirmation of the $2,500,000.00 general damage award. The fact-finder, whether it be a judge or jury, is not at liberty to award whatever it wants as a general damage award. There are legal bounds and limitations (even on jury awards). As an errors court, the standard of reviewing a general damage award is abuse of discretion. Howard v. Union Carbide Corp., 09-2750 (La.10/19/10), 50 So.3d 1251. If the reviewing court finds an abuse of discretion, then the award must be increased or decreased to the highest or lowest reasonable amount based on similar prior awards and the evidence produced in support of the award. Id.

In the instant case, the jury awarded $2,500,000.00 in general damages for the wrongful death of a parent. This is more than threefold the highest amount ever awarded in this state for the wrongful death of a parent. Though I am fully | .¿cognizant and mindful of the heinous and horrific facts in this case, the law requires that such an award at least be somewhat in line with prior awards for the wrongful death of a parent. In my view, the jury award in this case must be reduced.

I also disagree with the majority’s fivefold increase in the jury’s award of punitive damages. There was no evidence in the record warranting such an increase; nor do I find that the jury abused its discretion in awarding $100,000.00 in punitive damages.

I would affirm the trial court’s ruling relative to the jury verdict form in providing for separate elements of damage for mental anguish, loss of love and affection, and loss of consortium. I would also affirm the jury awards for loss of financial support and punitive damages. Finally, I would amend the jury’s $2,500,000.00 general damage award by reducing it to $1,600,000.00, representing $500,000.00 for mental anguish, $800,000.00 for loss of love and affection, and $800,000.00 for loss of consortium.

CONERY, J.

concurs in part, dissents in part, and assigns written reasons.

^PROCEDURAL POSTURE

Sitting en banc, the majority voted to uphold a Jury Verdict Form that separated general damages into three parts and affirmed a record general damage award of $2,500.000.00 on behalf of a then ten-year-old boy for the wrongful death of his mother. Two members of the court dissented in part and concurred in part, finding the jury verdict form was improper, but the error did not lead to an excessive verdict. The majority and concurring opinions affirmed the jury’s award for loss of support as well as the jury’s decision to award punitive damages but voted to increase the punitive damage award from $100,000.00 to $500,000.00. Another member of the court concurred with the majority, finding the Jury Verdict Form proper, but dissented on the issue of general damages, finding the total jury award excessive. That judge concurred with the majority on the jury’s decision to award punitive damages and agreed with the amount set by the jury.

For the reasons which follow, I respectfully dissent from the affirmation of the general damage award and the award for loss of support. I join the dissenting opinion holding that the separation of general damages on the Jury Verdict Form was error. I concur in the decision to affirm the jury’s finding that punitive | {.damages were due, but dissent from the increase in punitive damages.

ISSUES AND DISCUSSION

There are four assignments of error for us to review.

Assignment of Error Number 1 — Jury Verdict Form

I join the concurring opinion and would adopt the rationale of Hardy v. Augustine, 10-946 (La.App. 3 Cir. 2/2/11), 55 So.3d 1019, unit denied, 11-0470 (La.4/25/11), 62 So.3d 92.

Assignment of Error Number 2 — Excessive Verdict

The jury awarded $2,500,000.00 in general damages. The standard used in reviewing a general damage award is abuse of discretion. I disagree with the majority and concurring opinions and find that the jury award is an abuse of discretion. The jury awarded damages as follows:

1. What amount, if any, in compensatory damages do you award on behalf of Nicholas Isaac?
a. Past, present and future mental anguish, grief and anxiety due to the wrongful death and loss of his mother $1,000,000.00
r $1,000,000.00 b. Past, present and future loss of the love and affection of his mother
$500,000.00 e. Loss of society, service and consortium of his mother
$300,000.00 d. Loss of financial support by his mother, JoAnn Isaac
$18,819.90 e. Funeral expenses for his mother, Jo Ann Isaac

Finding that the jury abused its discretion, the award must be reduced to the highest amount based on similar prior awards and the evidence produced at trial. Howard v. Union Carbide Corp., 09-2750 (La.10/19/10), 50 So.3d 1251.

|aThe highest award ever affirmed by a Louisiana appellate court for the wrongful death of a parent brought on behalf of a minor child was $750,000.00. Raymond v. Gov’t Employees Ins. Co., 09-1327 (La. App. 3 Cir. 6/2/10), 40 So.3d 1179, writ denied, 10-1569 (La.10/8/10), 46 So.3d 1268. The jury award in this case is three and one-third times higher. The child in this case, Nicholas, was only ten years old and was living with his father at the time of his mother’s death. The child in the Raymond case had an intact family and had an especially close and loving relationship with his parents.

The record in this case on the issue of general damages is scant. Quite simply, the evidence does not support such a high award. I would reverse the jury’s $2,500,000.00 general damage award and, using the abuse of discretion standard, would award $750,000.00, the highest award that can be affirmed as set by this court in Raymond. See also Brossett v. Howard, 08-535 (La.App. 3 Cir. 12/10/08), 998 So.2d 916, unit denied, 09-0077 (La.3/6/09), 3 So.3d 492 ($500,000.00 for a nine-month-old daughter who lost her father when an intoxicated motorist drove across the highway striking his vehicle); Estate of Francis v. City of Rayne, 08-359 (La.App. 3 Cir. 10/03/07), 966 So.2d 1105, writ denied, 07-2119 (La.2/15/08), 976 So.2d 176 ($650,000.00 to ten-year-old son whose father was killed as a result of a shooting involving a low-speed police pursuit — the father was the primary caregiver and the death of his father was devastating to the child).

Assignment of Error Number Three-Loss of Support

The evidence at trial was almost totally lacking as to any type of support the mother provided to Nicholas. In order to be compensated for this item of damages, 14this court has held there must be proof of “prior actual support.” Newsom v. State, Dept. of Trans, and Dev., 93-815, p. 10 (La.App. 3 Cir. 3/30/94), 640 So.2d 374, 381, writ denied, 641 So.2d 207 (La.1994).

The evidence showed that at the time of her death, Ms. Isaac was making about $15,000.00 per year. She had to support herself and two teenage daughters on that income. There was very little money, if any, available to send for Nicholas’ support, and there was no evidence that Ms. Isaac sent any amount whatever to Victor Rachal, Nicholas’ father.

There was some testimony in the record from the grandmother that Ms. Isaac “dressed her children well and took good care of them.” However, that testimony falls far short of proving actual financial support. Though it is part of the parental obligation to clothe, feed, and shelter one’s child, there was no evidence as to how much Ms. Isaac spent on clothing, food, and shelter for Nicholas. The burden of proof is on the plaintiff to prove each element of damages by a reasonable preponderance of the evidence. At best, the evidence showed that Ms. Isaac bought some clothes and furnished some food and shelter for Nicholas on the weekends he was with her.

Based on circumstantial evidence, Ms. Isaac clothed, housed, and fed Nicholas about 100 days per year, counting most weekends and some split summers and holidays. At a generous estimated expense of $100.00 per day, she would have spent $10,000.00 per year. Loss of support through age eighteen, i.e., for ten years during the remainder of Nicholas’ minority, would then total $100,000.00. I would award $100,000.00 for loss of support, being the highest award supported by the record. See Nigreville v. Federated Rural Elec. Ins. Co., 1593 — 1202 (La.App. 3 Cir. 10/11/94), 642 So.2d 216, writ denied, 94-2803 (La.1/27/95), 649 So.2d 384.

Assignment of Error Number 4-Impair-ment and Punitive Damages

Defendant alleges the jury erred in finding that Justin Brouillette was impaired at the time he lost control of the vehicle he was driving, and that his impairment was a cause in fact of the death of Ms. Isaac.

I agree with the majority and concurring opinions on this issue and would affirm the jury’s finding that Mr. Brouillette was clearly impaired by illegal drugs at the time he struck Ms. Isaac, and his impairment was a substantial factor in causing her death.

Plaintiff answered the appeal and claimed as an assignment of error that the $100,000.00 awarded by the jury for punitive damages was an abuse of discretion and erroneously low.

There are no Louisiana appellate cases increasing a trial court’s punitive damage award. Defendant in this case was convicted of three counts of vehicular homicide, and on two of the counts he was sentenced to five years at hard labor to run concurrently. His expected parole release date, according to the record, is 2013. Because of lack of means, it is highly unlikely that Mr. Brouillette will ever be able to pay the award made by the jury. Inability to pay is a substantial factor for the jury to consider in making an award of punitive damages. Grefer v. Alpha Technical, 02-1237 (La.App. 4 Cir. 08/08/07), 965 So.2d 511, writ denied, 07-1800 (La.11/16/07), 967 So.2d 523. The $100,000.00 awarded in this case was well within the jury’s discretion.

CONCLUSION

For all of these reasons, I would reverse the record $2,500,000.00 Judgment | Rof the trial court for general damages and, using the abuse of discretion standard, award $750,000.00 in compensatory general damages, the highest award supported by the evidence and the case law. I join the dissenting opinion on the issue of duplication of damages on the Jury Verdict Form and would follow the Hardy rationale. I find the $300,000.00 award for loss of support to be an abuse of discretion and would award $100,000.00 for loss of support. I would maintain the $100,000.00 punitive damage award set by the jury.

      . The causes of action stemming from the deaths of Ms. Isaac’s daughters have been settled and are not at issue in this appeal.

      . One of Mr. Brouillette’s five-year sentences was suspended and the other two were ordered to ran concurrently. Mr. Brouillette will, therefore, serve five years in prison for this crime; he is scheduled to be released in September 2013.

      . No special damages are at issue in this appeal.

      . To illustrate this, consider the effect of a mother’s death on two individuals: a one-year old toddler and a ten-year old adolescent. The toddler may be too young to experience the mental anguish and grief attendant such a drastic loss; he will, however, experience the absence of his mother's love and affection throughout his lifetime. The adolescent, on the other hand, will experience both emotions to a great degree. The ability to distinguish the two elements in different circumstances demonstrates their differences.

      . Defendants contend that because the jury verdict form was duplicative, it was also misleading and, therefore, we must review the damage award de novo. We find the verdict form was not duplicative; therefore, the appropriate standard is abuse of discretion.

      . Nicholas was diagnosed with ADHD before his mother's death and had frequent troubles in school before and after the accident. Defendants use these behavioral issues to question how much grief Nicholas actually experienced as a result of his mother’s death. We find Nicholas’s ADHD irrelevant to his entitlement to damages. This superficial linkage is a non sequitur. Further, Defendants’ contention that Nicholas’s condition somehow diminishes the love, affection, and attention his mother showed him or the grief he experiences as a result of her loss is unseemly.

      . In fact, Officer Dean White, the highest in command of the accident investigation, testified at trial that the "unnecessary deaths ... were caused by the reckless and inattentive driving of Justin Brouillette without regard for the safety of others.”

      . Mr. Brouillette claimed at trial that he did not remember the accident.

      . We also note that in the context of exemplary damages the defendant's financial situation is pertinent primarily when the defendant is a large corporation, such that a small amount of damages would not deter wrongful conduct. Mosing, 830 So.2d 967. That is not the case here.

      . The funeral expenses were stipulated to be $10,819.90, and that amount was corrected in the Final Judgment. There was no appeal from the award for funeral expenses.

      . La.Civ.Code art. 227


author: SAUNDERS, Judge.

text:
    Frederick FOY v. AMERISAFE RISK SERVICES, INC.
    No. 12-1126.
    Court of Appeal of Louisiana, Third Circuit.
    March 20, 2013.

      Jeffrey Martin Cole, Plauche, Smith & Nieset, Lake Charles, LA, for Defendant Appellee, Amerisafe Risk Services, Inc.
    Michael Glenn Hodgkins, Bice, Palermo & Veron, LLC, Lake Charles, LA, for Plaintiff Appellant, Frederick Foy.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   SAUNDERS, Judge.

| jThis workers’ compensation case involves and employee injured while in the course and scope of his employment. The employee and his original treating physician were notified that the treating physician’s recommended physical therapy was denied by a utilization review. Thus, the treating physician released the employee back to work, and the employee’s workers’ compensation benefits were terminated.

According to the adjuster working on the case, the physical therapy was approved, overturning the utilization review, shortly after the denial. However, the adjuster failed to inform the employee or the original treating physician of this overturning/approval. Rather, he testified that he notified the potential physical therapy provider of this approval. No record of this approval appears in the physical therapy provider’s records.

Months later, the employee, after hiring counsel, went to an orthopedic surgeon, who recommended physical therapy and epidural steroid injections. Further, the orthopedic surgeon opined that the employee should refrain from working. The employer’s insurer denied these treatments and requested benefits, pending a second medical opinion, which they did not obtain until four months later.

The workers’ compensation judge (WCJ) denied any penalties for the denial of the original treating physician’s recommended physical therapy, denied temporary, total disability (TTD) benefits starting from the date of termination of benefits until the orthopedic surgeon opined that the employee could not work, granted TTD benefits from when the orthopedic surgeon opined that the employee could not work, and awarded the employee a single penalty from the insurer’s denial of the orthopedic surgeon’s multiple elements in a plan of treatment.

|j,The employee filed this appeal. We reverse and render, in part, and affirm, in part.

FACTS AND PROCEDURAL HISTORY:

On October 27, 2010, Frederick Foy (Foy) was injured in the course and scope of his employment with Specialized Environmental Resources, L.L.C. Foy was seen by Dr. William Lowry, the company doctor. Dr. Lowry prescribed physical therapy on April 21, 2011, after finding that Foy suffered a cervical strain, myo-fascial pain, and right shoulder pain. A utilization review was performed. The utilization review denied the physical therapy. Dr. Lowry then had Foy perform home exercises in lieu of his recommended physical therapy.

On June 2, 2011, Dr. Lowry released Foy back to work. On June 17, 2011, Foy’s workers compensation benefits were terminated.

On October 7, 2011, Foy filed a 1008 claim for workers’ compensation benefits against Specialized Environmental Resources, L.L.C., and Amerisafe Risk Services, Inc. (collectively defendants). On October 19, 2011, Foy was seen by Dr. Clark Gunderson, an orthopedic surgeon. Dr. Gunderson recommended physical therapy and epidural steroid injections for Foy and for Foy to refrain from working. Defendants denied these workers’ compensation benefits pending a second medical opinion which took four months to obtain.

On April 2, 2012, the matter was heard by the WCJ. Judgment was signed on June 26, 2012, that defendants pay Foy $4,000.00 in penalties, $6,620.00 in attorney’s fees, and $442.30 in expenses. Additionally, the WCJ approved all medical treatment by Dr. Gunderson.

Foy filed this appeal. In it, he alleges three assignments of error.

ASSIGNMENTS OF ERROR:

|al. The WCJ erred in failing to award a penalty of $2,000.00 against the defendants for failure to approve the physical therapy ordered by the company doctor, Dr. William Lowry.
2. The WCJ erred in failing to award two separate penalties for the defendant’s failure to approve two separate medical treatments: (1) the physical therapy ordered by Dr. Clark Gunderson; and (2) the cervical epidural steroid injection ordered by Dr. Clark Gun-derson. The WCJ combined these two actions together, and awarded only one penalty.
3. The WCJ erred in failing to award temporary total disability benefits from June 17, 2011, to October 19, 2011.

ASSIGNMENT OF ERROR NUMBER ONE:

In his first assignment of error, Foy contends that the WCJ erred in failing to award a penalty of $2,000.00 against defendants for failure to properly approve the physical therapy ordered by the company doctor, Dr. William Lowry. We find that this contention has merit.

“The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers compensation action is essentially a question of fact subject to the manifest error or clearly wrong standard of appellate review.” LeBlanc v. Excel Auto Parts, 11-58, pp. 4-5 (La.App. 3 Cir. 6/1/11), 67 So.3d 687, 690 (citing Authement v. Shappert Engineering, 02-1631 (La.2/25/03), 840 So.2d 1181; LeJeune v. Bell Tower Corp., 09-1222 (La.App. 3 Cir. 4/7/10), 34 So.3d 464). “However, when there are errors of law asserted on appeal, the appellate court must make a determination whether the workers’ compensation judge’s ruling was legally correct.” Miller v. Blacktype Farms, 06-1202, p. 4 (La.App. 3 Cir. 3/7/07), 952 So.2d 867, 870 (citing McClain v. Pinecrest Dev. Ctr., 00-1622 (La.App. 3 Cir. 2/28/01), 779 So.2d 1112).

|4In the case before us, physical therapy was prescribed to Foy by Dr. Lowry on April 21, 2011, for Foy’s cervical strain, myofascial pain, and right shoulder pain. A utilization review denied this therapy on April 29, 2011. Both Foy and Dr. Lowry were informed of this denial.

Mark Pryor, the adjuster on this claim, testified that he overruled this denial and approved Dr. Lowry’s prescribed physical therapy in May 2011. Further, Pryor stated that he informed Rehab One, the company that had previously performed physical therapy on Foy, of this overruling.

Foy never received the prescribed physical therapy, as neither he nor Dr. Lowry were informed of this “approval.” Additionally, Foy was never contacted by Rehab One and notified of this “approval.”

Regardless, the WCJ denied Foy any penalties based on its personal knowledge of Pryor’s high character and on Pryor’s testimony despite the complete absence of evidence in the record that corroborates Pryor’s claim that he approved the therapy. Pryor candidly states that he never informed Dr. Lowry or Foy of his reversal of the utilization review and eventual “approval” of the therapy. Moreover, the records of Rehab One contain no evidence of Pryor’s “approval.”

Clearly, Pryor’s testimony is sufficient evidence in the record to support the WCJ’s finding of fact that Pryor actually made a phone call to Rehab One informing it of his decision to reverse the utilization review’s denial of physical therapy. Thus, given the manifest error standard of review, we are directed to uphold the WCJ’s finding that Pryor made that telephone call and that Rehab One had knowledge of the “approval” of Foy’s physical therapy. Defendants argue that the WCJ’s denial of Foy’s requested penalty on this issue is proper because Pryor’s informing of Rehab One was proper “approval” of Dr. Lowry’s prescribed therapy.

| fiHowever, Foy’s assignment of error is that WCJ should have awarded him a penalty because defendants failed to property approve the physical therapy ordered by Dr. Lowry. Thus, the question before us is whether Pryor’s actions constitute authorization of necessary medical procedures under La.R.S. 23:1201(F). Thus, this assignment of error poses a question of law.

An insurer’s failure to authorize necessary medical procedures subjects that insurer to the sanctions of that statute. Armand v. Denton-James, L.L.C., 08-920 (La.App. 3 Cir. 2/4/09), 2 So.3d 1272. As stated above, we must uphold the WCJ’s finding of fact that Pryor informed Rehab One of his “approval” of the physical therapy. However, we find that Pryor’s failure of inform either Dr. Lowry or Foy that defendants reversed the utilization review’s denial of physical therapy is arbitrary and capricious which subjects defendants to sanctions under La.R.S. 23:1201. Black’s Law Dictionary (9th ed. 2009), defines authorize as, “[t]o give legal authority; to empower.” Inherent in this definition is that the one granting authority or empowering is giving that power to someone else. Clearly, that someone else has to have knowledge of the grant of authority or power, or it will not be exercised, making that grant of power fruitless.

Moreover, La.R.S. 23:1201 pertains to the duties owed to the injured worker. Failure by an employer or insurer to inform either the injured worker or the prescribing physician of its decision to reverse a denial of necessary medical treatment is a breach of that duty.

Therefore, we find that the WCJ’s failure to award a penalty of $2,000.00 to Foy for this failure to properly authorize necessary medical treatment was manifestly erroneous. Accordingly, we reverse this denial and render that Foy is entitled to a penalty of $2,000.00 for the defendants’ failure to properly authorize the physical therapy ordered by Dr. Lowry on April 21, 2011.

| ^ASSIGNMENT OF ERROR NUMBER TWO:

Foy, in his second assignment of error, asserts that the WCJ erred in failing to award two separate penalties for defendant’s failure to approve two separate medical treatments: (1) the physical therapy ordered by Dr. Clark Gunderson; and (2) the cervical epidural steroid injection ordered by Dr. Clark Gunderson. We do not agree.

Whether multiple violations occur of workers’ compensation statutes is a determination subject to manifest error review. Wyble v. Acadiana Prep. Sch., 07-91 (La.App. 3 Cir. 5/2/07), 956 So.2d 722, writ denied, 07-1178 (La.9/14/07), 963 So.2d 1004. We have been directed by our supreme court to “ferret out” these situations. Fontenot v. Reddell Vidrine Water District, 02-439, p. 18 (La.1/14/03), 836 So.2d 14, 27.

Here, the WCJ found that the physical therapy and epidural steroid injections were “part and parcel of the same treatment plan.” Thus, the WCJ only awarded one penalty for this improper denial. Defendants’ denial of both was based on their single ongoing, erroneous decision to deny treatments recommended by Dr. Gunder-son until they could obtain a second medical opinion. While taking four months to obtain that second medical opinion is extreme, we find no error in the WCJ’s “ferreting out” of this situation and awarding of a single penalty. There is no evidence in the record that defendants were sinister in failing to obtain the second medical opinion timely. Rather, the record indicates that defendants wanted the second medical opinion based on a single error, their belief that Dr. Lowry’s recommendation that Foy could return to work was warranted.

ASSIGNMENT OF ERROR NUMBER THREE:

17In his final assignment of error, Foy alleges that the WCJ erred in failing to award temporary total disability (TTD) benefits from June 17, 2011, to October 19, 2011. We find that this allegation is without merit.

A workers’ compensation claimant, in order to be entitled to TTD benefits, must prove “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....” La.R.S. 23:1221(l)(c) (emphasis added). A WCJ’s decision regarding whether an employee carried his burden to prove entitlement to TTD benefits is a question of fact subject to the manifest error review. Landry v. City of Scott, 10-47 (La.App. 3 Cir. 6/2/10), 40 So.3d 428.

Here, Foy asks this court to find that the WCJ’s denial of TTD benefits from June 17, 2011, to October 19, 2011, was in error. The only evidence in the record regarding whether Foy could have worked during this time is a report dated June 2, 2011 singed by Dr. Lowry that states, “[a]t this point [I] think [Foy] is okay to return to work.”

Foy asks this court to find that he was entitled to TTD benefits because he was later found to be entitled to them on October 19, 2011, and, according to Foy, it is logical that if he was entitled to them then, he was entitled to them in the interim.

Foy’s argument necessitates that this court to assume his disability, something La.R.S. 23:1221(0(1) specifically prohibits. Accordingly, we find that no error by the WCJ in denying Foy TTD benefits from June 17, 2011 to October 19, 2011.

CONCLUSION:

Frederick Foy raised three assignments of error. We find merit in his first assignment that the WCJ erred in failing to award a penalty of $2,000.00 against | sAmerisafe Risk Services, Inc. and Specialized Environmental Resources, L.L.C. for failure to properly authorize the physical therapy ordered by Dr. William Lowry. Thus, we render that Foy is entitled to an additional $2,000.00 penalty.

We find no merit in Foy’s remaining assignments of error. Costs of this proceeding are assessed to Amerisafe Risk Services, Inc. and Specialized Environmental Resources, L.L.C.

REVERSED AND RENDERED IN PART, AFFIRMED IN PART.