author: HIGGINBOTHAM, J. MeCLENDON, J.,

text:
    NORTHSHORE REGIONAL MEDICAL CENTER, L.L.C., d/b/a NorthShore Regional Medical Center v. Edith Ruth DILL, Brian Dill, Atlas Travel Insurance Services Limited, Global Excel Management, Inc.
    No. 2012 CA 0850.
    Court of Appeal of Louisiana, First Circuit.
    March 22, 2013.

      Mark W. Verret, Philip G. Smith, Dax C. Foster, Brett M. Bollinger, Jeffrey S. Val-liere, Jeffrey E. McDonald, Metairie, LA, for Plaintiff-Appellee, Tenet 100 Medical Center Slidell, L.L.C., formerly known as NorthShore Regional Medical Center, L.L.C., d/b/a NorthShore Regional Medical Center.
    Patrick D. DeRouen, Laurie L. DeAr-mond, New Orleans, LA, for Defendant-Appellant, Atlas Travel Services Limited d/b/a Atlas Direct.
    Christine Y. Voelkel, Jacques F. Bezou, Covington, LA, Attorneys for Defendants-Appellees, Edith Ruth Dill and Brian Dill.
    Ernest E. Svenson, New Orleans, LA, for Defendant-Appellee, Global Excel Management, Inc.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   HIGGINBOTHAM, J.

|2A British corporation, Atlas Travel Insurance Services Limited, d/b/a Atlas Direct (“Atlas”), appeals a default judgment in a suit on open account for medical services rendered by a Louisiana hospital, NorthShore Regional Medical Center, L.L.C., d/b/a NorthShore Regional Medical Center (“NorthShore”). The issue presented is whether the evidence introduced by NorthShore to confirm a default judgment against Atlas was sufficient to establish a prima facie case under Louisiana Code of Civil Procedure article 1702. For the following reasons, we find that NorthShore failed to sustain its burden of proof for confirmation of the default judgment. Accordingly, we vacate the trial court judgment and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On November 13, 2009, NorthShore instituted suit for the balance due on unpaid medical services. The named defendants were Brian and Edith Ruth Dill, citizens of the United Kingdom from Lancashire, England, the Dills’ alleged travel-health insurance carrier, Atlas, as well as the alleged medical claims administrator, a Canadian corporation, Global Excel Management, Inc. (“Global Excel”). The facts leading to the lawsuit arose when the Dills were vacationing in south Louisiana in mid-November 2006. Prior to their vacation, the Dills purchased a travel-health insurance policy through Atlas, with a coverage period of February 11, 2006, to January 11, 2007. While in Louisiana, Ms. Dill became extremely ill, was admitted for emergency surgery, and was hospitalized for further treatment at NorthShore. On November 15, 2006, through a series of facsimile communications, Global Excel acknowledged to NorthShore “on behalf of the underwriter” that Ms. Dill was covered “under a valid medical emergency policy” Uwith a “60% discount” benefit rate. Ms. Dill remained hospitalized at NorthShore for more than two months, until she was transported via air ambulance to a hospital in England on January 24, 2007. The final cost of Ms. Dill’s medical treatment at NorthShore was $1,256,229.08; North-Shore has received a partial payment of $309,498.31 toward the expenses. Because no other payments were made despite written demand, NorthShore filed suit for the balance due on open account for medical services rendered.

In a supplemental and amending petition, NorthShore added an Irish corporation, White Horse Insurance Ireland, Ltd. (“White Horse”), as a defendant, alleging White Horse underwrote the travel-health insurance policy purchased by the Dills. However, White Horse was dismissed from the litigation for lack of personal jurisdiction. In a previous appeal, this Court affirmed the dismissal of NorthShore’s claims against White Horse, without prejudice. NorthShore Regional Medical Center, L.L.C. v. Dill, 2011-2271 (La.App. 1st Cir.6/8/12), 94 So.3d 155, writ denied. 2012-1494 (La.10/8/12), 98 So.3d 862, (hereafter referred to as “NorthShore I ”). NorthShore filed another supplemental and amending petition, adding defendant, Inter Group Assistance Services, Ltd. (“Inter Group”), and alleging that Inter Group made coverage decisions and authorized the partial payment to NorthShore on behalf of White Horse and/or Atlas through Global Excel.

Currently, the record reflects that the following defendants remain in the lawsuit: the Dills, Atlas, Global Excel, and Inter Group. The Dills and Global Excel have both made appearances of record by filing answers and/or various exceptions; however, the record is void of any responsive pleadings filed on behalf of Atlas or Inter Group. The issues on appeal at this time only concern one defendant, Atlas, which disputes service of any and all pleadings.

RNorthShore attempted to comply with international treaty requirements for service abroad since service on Atlas was to be effected outside the United States in the United Kingdom of Great Britain, specifically in London, England. The United States and the United Kingdom are bound by the 1965 Hague Service Convention (“the Hague Convention”), so North-Shore’s attorney of record requested citation and service of process on Atlas through the Clerk of Court for the 22nd Judicial District Court via the long-arm statute and pursuant to the requirements of Article 5 of the Hague Convention. NorthShore’s counsel received confirmation in the form of a certificate, completed by the Senior Courts of England and Wales, Foreign Process Section, attesting that Atlas was served with NorthShore’s petition on January 14, 2010, pursuant to a January 12, 2010 High Court of Justice, Queen’s Bench Division Order granting permission for service on Atlas. Atlas, however, maintains that NorthShore did not strictly follow the mandates of the Hague Convention, and thus, it was never properly served.

Atlas does not dispute having knowledge of NorthShore’s lawsuit, but rather than filing responsive pleadings into the record, Atlas mailed two letters to NorthShore’s counsel, dated February 23, 2010, and March 3, 2010. The letters essentially requested that Atlas be removed as a defendant with an explanation that Atlas’s role was solely limited to the status of an insurance broker that sold travel insurance products on behalf of White Horse. NorthShore did not respond to Atlas’s request to be released, and shortly after White Horse was dismissed on jurisdictional grounds, NorthShore pursued a preliminary default against Atlas | .¡since the record showed that the time for filing responsive pleadings had passed and no answer or other opposition had been filed by Atlas. The trial court ordered a minute entry reflecting the preliminary default on August 8, 2011. NorthShore then filed a motion to confirm the default judgment against Atlas on August 26, 2011. After two separate hearings, the trial court signed a final default judgment on November 15, 2011, in favor of NorthShore and against Atlas in the amount of $753,737.45.

Atlas filed a motion and order for devol-utive appeal when it learned that a default judgment had been rendered against it. The propriety of the default judgment is the subject of this appeal (Appeal No. 2012-0850, hereafter referred to as “NorthShore II ”). Additionally, Atlas filed a motion to annul the default judgment on the same day that it appealed the default judgment. The motion to annul was eventually denied by the trial court and is the subject of a separate appeal rendered this same date (Appeal No. 2012-1400, hereafter referred to as “NorthShore III ”). In this appeal, Atlas contends that the trial court erred in confirming the default judgment, in that: (1) Atlas was never properly served with process and never waived objection to jurisdiction, and (2)NorthShore failed to sufficiently establish prima facie proof that Atlas was the insurer responsible for Ms. Dill’s medical expenses incurred at NorthShore.

STANDARD OF REVIEW

When reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. | Arias v. Stolthaven New Orleans, LLC, 2008-1111 (La.5/5/09), 9 So.3d 815, 818. This determination is governed by the manifest error standard of review. Id.

LAW AND ANALYSIS

Requirements for a Default Judgment

Louisiana Code of Civil Procedure Article 1701(A) provides that “[i]f a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him.” Thereafter, the default judgment may be confirmed according to the requirements provided, in pertinent part, by La.Code Civ. P. art. 1702:

A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima fa-cie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default....
B. (1) When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.
(3)When the sum due is on an open account ... an affidavit of the correctness thereof shall be prima facie proof....
C.In those proceedings in which the sum due is on an open account ... or other conventional obligation ... a hearing in open court shall not be required unless the judge, in his discretion, directs that such a hearing be held....

(Emphasis and italics added.)

Louisiana Code of Civil Procedure Article 1702.1(A) requires a plaintiff seeking to confirm a default judgment, when the sum is due on open account, to include “along with any proof required by law, ... a certification that the suit is on an open account, ... or ... on a conventional obligation, ... and that the necessary invoices and affidavit, or certified reproduction thereof are attached.” Further, the certification “shall indicate the type of service made on the defendant, the date of service, and the date a preliminary default was entered, and shall also include a 17certification by the clerk that the record was examined ... and a statement that no answer or other opposition has been filed.” La.Code Civ. P. art. 1702.1(B). Charges by medical providers for medical services are generally characterized as open account claims. Touro Infirmary v. American Maritime Officer, 2009-0696 (La.App. 4th Cir.1/7/10), 34 So.3d 878, 883, writ denied, 2010-0289 (La.4/9/10), 31 So.3d 395.

To prevail in a suit on open account based on coverage under an insurance policy, the prima facie proof required includes introduction of the insurance policy into evidence. See Arias v. Stolthaven New Orleans, L.L.C., 2008-1111 (La.5/5/09), 9 So.3d 815, 823; Clark v. Clark, 2010-1281 (La.App. 3rd Cir.3/9/11), 58 So.3d 1081, 1084-87. See also Louisiana Workers’ Compensation Corp. v. Fowler, 2010-1367 (La.App. 1st Cir.2/11/11), 56 So.3d 1250, 1253, where this Court determined in a suit for collection of an unpaid premium due on an insurance policy that a certified copy of the policy of insurance, along with an invoice showing a balance due and a policy summary statement, constituted sufficient and competent evidence of the claim demanded in a confirmation-of-default judgment scenario.

Confirmation of the default is similar to a trial at which the defendant is absent. The plaintiff must present admissible and competent evidence that establishes a prima facie case, proving both the existence and the validity of the claim. Arias, 9 So.3d at 820; 1 Frank L. Maraist, Louisiana Civil Law Treatise: Civil Procedure, § 12:3, at 452-453 (2d ed.2008). Inadmissible evidence may not support a default judgment even though it was not objected to because the defendant wás not present. Arias, 9 So.3d at 820. There is a presumption that a "default judgment is supported by sufficient evidence, but this presumption may be rebutted by the record upon which the judgment is rendered. Id. Therefore, our review in this appeal is limited to determining whether North-Shore offered |8sufficient and competent evidence that Atlas was responsible for the unpaid medical services rendered to Ms. Dill on open account.

Service of Process

Initially, Atlas contends that the trial court never should have confirmed the default judgment because NorthShore failed to follow the strict mandates for service abroad pursuant to the Hague Convention, and Atlas never waived its objection to personal jurisdiction. It is well settled that citation and service must strictly comply with law to support a valid default judgment. See Mitchell v. Bass, 2001-2217 (La.App. 1st Cir.11/8/02), 835 So.2d 778, 780. In order for a default judgment to be valid, the trial court must have jurisdiction over the parties, based upon service of process on the defendant. Id. Thus, citation and service are essential in all civil actions except summary and executory proceedings; and without citation and service, all proceedings are absolutely null. La.Code Civ. P. art. 1201; Id.

NorthShore asserts that it properly requested service on Atlas by forwarding the proper forms to the Central Authority in England — the Senior Master of the High Court of Justice, Queen’s Bench Division— in accordance with the Hague Convention. NorthShore also argues that Atlas is barred from asserting insufficient service of process in this appeal because that issue has not been asserted by way of exception in the trial court and is limited to consideration in an action of nullity. However, because the trial court reviewed the sufficiency of the evidence on the service issue before confirming the default judgment, we find that service of process is properly challenged on direct appeal of this default judgment. See Mitchell, 835 So.2d at 780; Pollock v. Talco Midstream Assets, Ltd., 44,629 (La.App.2d Cir.9/23/09), 22 So.3d 1033, 1037; State, Dept. of Social Services, Office of Family Support ex. rel. T.M.A. v. Pickins, 42,721 (La.App.2d Cir.12/5/07), 972 So.2d 1225, 1229. See also Maraist, supra, at 453 (“A defendant 19may attack a default judgment in three ways: (1) by a timely motion for new trial; (2) by an appeal[;] or (3) by an action for nullity.”) (Footnotes omitted.)

Service of documents abroad is precisely the type of service that triggers an application of the Hague Convention procedures. Sheets v. Yamaha Motors Corp., U.S.A., 891 F.2d 533, 537 (5th Cir. 1990). The Hague Convention specifically provides for service upon a corporation in a foreign country through a Central Authority designated to receive requests for service of judicial documents from other countries. See Articles 2 and 3 of the Hague Convention. It is the responsibility of the Central Authority to review the documents for compliance with the Hague Convention and notify the applicant with any objections to the request. See Articles 3 and 4 of the Hague Convention. If no objections are made, the Central Authority serves the documents by a method prescribed by the internal law of the receiving country and returns a certificate to the applicant stating that either the document has been served, including the method, place, date, and to whom delivery was made, or providing an explanation for why service could not be accomplished. See Articles 5 and 6 of the Hague Convention.

The record contains evidence of a certificate by the United Kingdom’s Central Authority, the Senior Courts of England and Wales, Foreign Process Section, attesting that Atlas was served with NorthShore’s petition on January 14, 2010, by first-class post at the registered address for Atlas in London. The certificate further indicates that the service was made in conformity with the Hague Convention. Several federal and out-of-state court decisions have held that the return of a completed certificate of service by a Central Authority is prima facie evidence that the service was made in compliance with Hague Convention procedures. See S.E.C. v. Internet Solutions for Business, Inc., 509 F.3d 1161, 1166 (9th Cir.2007); Floveyor Internat., Ltd. v. Superior Court, 59 Cal.App.4th 789, 795-796, 69 Cal.Rptr.2d 457, 461 (1997); Northrup King Co. v. Compania Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383, 1390 (8th Cir.1995).

Had the service on Atlas been inadequate in any material respect, the Central Authority undoubtedly would have complied with its duty to promptly inform NorthShore and specify its objections to NorthShore’s service request. By not objecting to the documents and by certifying service, the Central Authority indicated that the documents complied with the Hague Convention. See Northrup King Co., 51 F.3d at 1389-90. We decline to look beyond the certificate of service, especially since Atlas has not shown a lack of actual notice of the lawsuit or that it was prejudiced in some way. See Id. Where the record reflects that NorthShore complied with the Hague Convention, and Atlas received sufficient notice of the action as evidenced by its letters sent to North-Shore requesting to be removed from the lawsuit, we find no manifest error in the trial court’s determination that service of process on Atlas was proper in this case.

Prima Facie Proof of Insurance Coverage

In an alternative argument, Atlas maintains that the trial court erred in confirming the default judgment against it because NorthShore failed to sufficiently establish that Atlas was the insurer responsible for Ms. Dill’s medical expenses at NorthShore. Essentially, Atlas questions the sufficiency of NorthShore’s evidence presented in support of the default judgment. We find merit to this aspect of the appeal, because we do not find an actual insurance policy anywhere in the record.

With regard to insurance coverage, NorthShore submitted a poor-quality copy of a tri-fold brochure-type document with an attachment labeled “Travel Insurance Validation Certificate.” While Atlas’s name and London address is printed on the brochure document as well as the validation certificate, Atlas is not specifically defined as the “insurer.” In fact, there is no specified insurer listed on |neither document. Mr. and Mrs. Dill are, however, identified as the “Insured[s].” The tri-fold document and the validation certificate each refer to “conditions and exclusions” and the validation certificate particularly asserts: “[p]lease refer to Terms and Conditions for full details of cover, conditions and exclusions.” The brochure document states that “[t]his policy is a CONTRACT OF INSURANCE. It contains details of the cover, conditions, and exclusions relating to each Insured Person and is the basis on which all claims will be settled.” The brochure also advises the holder to “PLEASE READ ... THE WHOLE OF THIS DOCUMENT CAREFULLY.” Nowhere in the brochure document or the attached validation certificate is there a section on “terms and conditions of the policy,” yet there is a declaration signed by the insured at the bottom of the validation certificate providing “I confirm that I have read the terms and conditions of the policy document and have not withheld any Material Facts that would increase the risk of making a claim.”

Obviously, what NorthShore submitted as evidence of an insurance policy that had allegedly been issued by Atlas was more akin to a declaration page from the policy and a policy coverage disclosure summary. See Clark, 58 So.3d at 1085. The validation certificate evidences a limit for medical expenses “up to 10,000,000 ([i]nclud[ing] emergency assistance services Hospitalization Benefit)” with an explicit directive to refer to the “Terms and Conditions for full details of cover, conditions and exclusions.” We find that the evidence presented is insufficient to impose liability against Atlas as an insurer. See Id. The supreme court held in Arias, 9 So.3d at 823, that the terms and conditions of an insurance policy are part of the principal basis for the claims and are “critical to establishing a prima facie case of the insurer’s liability[.]” (Italics added.) Our jurisprudence holds that when an obligation is based on a writing, prima facie proof of the obligation requires introduction of the writing into evidence. Id. at 822. | ^Furthermore, a plaintiff seeking to confirm a default must prove the existence and the validity of the claim. Id. A contract of insurance is an essential element of a plaintiffs prima facie case to confirm a default judgment against an insurance company. Id.; McIntyre v. Sussman, 2010-1281 (La.App. 4th Cir.10/26/11), 76 So.3d 1257, 1262, writs denied, 2011-2777 and 2011-2791 (La.2/17/12), 82 So.3d 290, 291.

NorthShore’s documentary evidence produced at the confirmation hearing did not constitute adequate proof under La. Code Civ. P. art. 1702 of Atlas’s liability. The brochure document and the accompanying validation certificate were deficient in that neither provided any information about the specific terms and conditions of the policy, while both expressly stated that application of the policy was limited by the terms and conditions and warned that the terms and conditions should be referred to for full “details of cover, conditions, and exclusions.” Also, there is no testimony concerning the contents of the insurance policy. Thus, it is impossible to determine the terms of the policy or Atlas’s alleged liability. See McIntyre, 76 So.3d at 1262. As in Arias, 9 So.3d at 823-824, we find that the evidence introduced to confirm the default judgment in this case was not sufficient to establish prima facie insurance coverage and liability in the absence of the admission of the insurance policy itself. For this reason, we find that the trial court was manifestly erroneous in entering a default judgment against Atlas. Finding that NorthShore failed to sustain its burden of proof to confirm the default judgment against Atlas, any discussion regarding adequate proof of the amount of damages is pretermitted and does not warrant further consideration.

CONCLUSION

For the outlined reasons, we vacate the November 15, 2011 default judgment rendered and confirmed by the trial court against defendant-appellant, Atlas Travel Insurance Services Limited, d/b/a Atlas Direct, and in favor of plaintiff-appellee, |i;iTenet 100 Medical Center Slidell, L.L.C., formerly known as NorthShore Regional Medical Center, L.L.C., d/b/a NorthShore Regional Medical Center. The matter is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed against NorthShore.

NOVEMBER 15, 2011 FINAL JUDGMENT OF DEFAULT VACATED; CASE REMANDED.

MeCLENDON, J., concurs and assigns reasons.

MeCLENDON, J.,

concurs and assigns reasons.

LI disagree with the majority’s conclusion that Exhibit B, a document introduced by NorthShore in support of the confirmation of the default judgment, was not an insurance policy. The document provides that “This policy is a CONTRACT OF INSURANCE” and it does include certain terms and conditions. The document also provides that “A numbered validation Certificate must be attached to this page to make this document a valid insurance policy,” and a numbered validation certificate is attached thereto. Accordingly, I cannot conclude that the trial court manifestly erred in determining that Exhibit B was an insurance policy.

The document, however, does not sufficiently establish the identity of the insurer. The document references “Atlasdirect,” “Atlasinsurance,” and “Atlas Travel Insurance Services Limited.” The document also provides that “This policy is underwritten by Whitehorse Insurance Ireland Ltd an EU regulated insurance company established in Ireland and licensed by the Irish Financial Services Regulatory Authority.” NorthShore introduced nothing further to establish the insurer’s identity. In light of the foregoing, NorthShore failed to establish that Atlas Travel Insurance Services Limited, d/b/a Atlas Direct is the insurer responsible for Ms. Dill’s medical expenses. As such, I concur with the result reached by the majority.

      . NorthShore is currently known as Tenet 100 Medical Center Slidell, L.L.C.; however, because the caption of the case in the record has not been changed to reflect NorthShore's new name, for consistency we will use the former business name.

      .The 1965 Hague Service Convention is a treaty that is formally known as the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters. The Hague Convention was entered into on November 15, 1965, and was effective on February 10, 1969. It was specifically intended to provide a simple way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698, 108 S.Ct. 2104, 2107, 100 L.Ed.2d 722 (1988). The United States of America and the United Kingdom of Great Britain are among the countries who are either signatories or have ratified or acceded to the Hague Convention.

      . In a separate action on August 13, 2012, this court denied NorthShore’s motion to dismiss Atlas's appeal as untimely, thereby maintaining Atlas’s appeal. Tenet 100 Medical Center Slidell, L.L.C. f/k/a NorthShore Regional Medical Center, L.L.C. v. Dill, 2012-0850 (La. App. 1st Cir.8/13/12) (unpublished).

      . Our consideration of the trial court's ruling on the motion to annul in NorthShore III was rendered moot by our decision to vacate the default judgment in this appeal, NorthShore II. See NorthShore Regional Medical Center v. Dill, 2012-1400 (La.App. 1st Cir.3/22/13), 115 So.3d. 1139, 2013 WL 1195827.


source: Caselaw Access Project

author: HIGGINBOTHAM, J. McCLENDON, J.,

license: Public Domain

text:
    Alejandro Alvarez VARGAS v. PETRIN CORPORATION and Louisiana Workers’ Compensation Corporation.
    No. 2012 CA 1212.
    Court of Appeal of Louisiana, First Circuit.
    March 22, 2013.

      Anna E. Dow, Gonzales, LA, for Plaintiff-Appellee, Alejandro Alvarez Vargas.
    Matthew R. Richards, Baton Rouge, LA, for Defendants-Appellants, Petrin Corporation and Louisiana Workers’ Compensation Corporation.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   HIGGINBOTHAM, J.

|2In this case, the former employer, Pet-rin Corporation (“Petrin”), and the workers’ compensation insurer, Louisiana Workers’ Compensation Corporation (“LWCC”), appeal the decision of the workers’ compensation judge (WCJ) finding in favor of the claimant, Alejandro Alvarez Vargas (“Mr. Alvarez”), and awarding him temporary total disability (“TTD”) benefits. The primary issue is whether the WCJ’s factual finding that Mr. Alvarez sustained a work-related injury was manifestly erroneous. Additionally, Mr. Alvarez answered the appeal, claiming that the WCJ manifestly erred in failing to assess penalties and attorney fees against Petrin and LWCC. For the following reasons, we affirm the judgment below in all respects.

BACKGROUND

On the pertinent date in this case, July 11, 2011, Mr. Alvarez was a three-year Petrin employee, who did insulation and sheet metal work on pipes and other equipment. His first task that particular day involved obtaining measurements for insulating some pipes at the job site. The pipes were located low to the ground and behind other pipes, which required Mr. Alvarez to twist and reach while bending over on his knees. While maneuvering for the measurements, Mr. Alvarez “felt something in [his] lower back[,]” but he kept working, trying to finish the job. His back pain quickly increased to the point that he informed his supervisor within thirty minutes of starting the job that he needed to see a doctor for the “bad” pain. At the time, Mr. Alvarez was uncertain as to why he began to experience back pain, but he thought it might be a recurring kidney problem, although his back was not hurting before he arrived at work that day. Mr. Alvarez continued to work for approximately one more hour since his supervisor asked him to stay, but by 9:00 a.m., he could not work any longer due to increased pain. While the supervisor allegedly informed Mr. Alvarez that if he left it would be for the last time, he left |3the job anyway to seek medical treatment. Mr. Alvarez did not report a work accident before leaving the job site.

Mr. Alvarez saw Dr. Carlos R. Vazquez later that same day. He told Dr. Vazquez that he did not know what had triggered the pain, but he had experienced similar pain before when he had what he thought was a kidney problem. While at Dr. Vazquez’s office, Mr. Alvarez did not relate his back pain to any injury. Dr. Vazquez prescribed medication; however, the pain did not resolve and only became worse. Since Mr. Alvarez believed that he had been fired by Petrin and his back pain prevented him from returning to work, he sought the advice of an attorney. Thereafter, Petrin was notified of Mr. Alvarez’s July 11, 2011 accident and injury. Petrin filed a report of the injury with its workers’ compensation insurer, LWCC, on August 1, 2011. LWCC opened an investigation into Mr. Alvarez’s claim, took a recorded statement of Mr. Alvarez on August 22, 2011, and initially authorized an orthopedic evaluation and an MRI for him.

Meanwhile, Mr. Alvarez sought treatment from a chiropractor, Christine Ep-per, for a purported work-related injury from July 26, 2011, through August 25, 2011. The chiropractic treatment provided him limited relief. The chiropractor advised that Mr. Alvarez was totally incapacitated and could not return to work during the time period that he received treatment. Still unable to work a month later, on September 30, 2011, Mr. Alvarez was seen by an orthopedic surgeon, Dr. Thad S. Broussard, where he again gave the history of being hurt during the course of his job duties on July 11, 2011. Dr. Broussard ordered an MRI, which revealed three levels of abnormality in Mr. Alvarez’s back: a disc herniation, a disc bulge, and a disc protrusion. Dr. Broussard opined that Mr. Alvarez’s complaints of pain and symptoms were consistent with the MRI results and that Mr. Alvarez’s work accident caused his back condition to become symptomatic. Dr. Broussard recommended conservative treatment consisting of physical therapy, medications, |4and injections, as well as a possible referral to a neurosurgeon. Additionally, Dr. Brous-sard advised that Mr. Alvarez should not return to work, as he was temporarily totally disabled.

Before LWCC received Mr. Alvarez’s medical records from Dr. Broussard, a decision was made to deny the claim on the basis that Mr. Alvarez did not report an accident after it allegedly occurred and there were no witnesses to the alleged accident. In support of the decision to deny benefits, the LWCC claims’ adjuster, Melissa Vaughn, relied on Mr. Alvarez’s statements indicating that he initially thought the back pain was the same as he had previously experienced with a self-diagnosed kidney problem that had resolved with a home remedy. She also relied on the medical records from Dr. Vazquez indicating that on the day of the alleged accident, Mr. Alvarez reported “no injury” and related the onset of his back pain to two years earlier.

When his claim for workers’ compensation benefits was denied, Mr. Alvarez filed a disputed claim for compensation with the Office of Workers’ Compensation on November 4, 2011. He sought to collect benefits, penalties, and attorney’s fees from Petrin and LWCC. Following a hearing before the WCJ, a judgment was signed on May 1, 2012, in favor of Mr. Alvarez. The WCJ specifically found that Mr. Alvarez was credible and that he had suffered an on-the-job accident on July 11, 2011, in which he sustained an injury to his back. The WCJ awarded Mr. Alvarez TTD benefits from the date of the accident through November 1, 2011, plus all reasonable and necessary medical treatment related to his injuries suffered in the accident. Finally, the WCJ found that Petrin and LWCC had reasonably controverted Mr. Alvarez’s entitlement to benefits, and therefore, no penalties or attorney fees were assessed against Petrin and LWCC.

Petrin and LWCC appeal, maintaining that the WCJ erred in finding Mr. Alvarez had carried his burden of proof as to a work accident and an injury. Petrin lBand LWCC also argue that the WCJ erred in finding that Mr. Alvarez was entitled to TTD and medical benefits, that the medical treatment was reasonable and necessary, and that Petrin and LWCC must pay for Mr. Alvarez’s medical treatment. Mr. Alvarez answered the appeal, asserting that the WCJ erred in concluding that Petrin and LWCC had reasonably controverted the claim, thus maintaining that penalties and attorney fees are due.

LAW AND ANALYSIS

Petrin and LWCC basically contend that the WCJ committed error in finding that Mr. Alvarez carried his burden of proving that he was injured in the course ' and scope of his. employment at Petrin. Essentially, Petrin and LWCC urge us to overturn the WCJ’s credibility evaluation of Mr. Alvarez. Petrin and LWCC point out the alleged discrepancy between Mr. Alvarez’s initial complaints of back pain that were linked to a possible kidney problem, rather than an injury, and his subsequent complaints of back pain purportedly due to an injury in an unwit-nessed work accident that was formally reported several weeks after the injury.

A workers’ compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. See La. R.S. 23:1031; Hirstius v. Tropicare Service, LLC, 2011-1080 (La.App. 1st Cir.12/21/11), 80 So.3d 1215, 1216. A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Hirstius, 80 So.3d at 1216. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Id.

Determining whether the worker has discharged his burden of proof requires the WCJ to accept as true a witness’s uncontradicted testimony, absent | c,circumstances casting suspicion on the reliability of this testimony, Bruno v. Herbert Intern. Inc., 593 So.2d 357,-361 (La.1992). Further, the WCJ’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his burden of proof are factual determinations not to be disturbed on review absent a showing of manifest error. Id. Under the manifest error standard of review, an appellate court may only reverse a WCJ’s factual determinations if it finds from the record that a reasonable factual basis for the finding does not exist and that examination of the entire record reveals that the finding is clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993). Thus, where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous. Id. at 883. Nonetheless, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story, the court of appeal may find manifest error even in a finding purportedly based upon a credibility determination. Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989).

The WCJ apparently accepted as true Mr. Alvarez's testimony regarding the work-related accident. In so doing, the WCJ found and noted in the judgment that Mr. Alvarez was “credible” and that he had “suffered an accident on July 11, 2011, when he bent down on his knees and twisted to reach a pipe while taking measurements for insulation[,] ... sustaining] an injury to his back[.]” While there may have been a discrepancy between Mr. Alvarez’s first impression of his back pain as being similar to a prior self-diagnosed kidney problem and his realization a few weeks later that his back pain was obviously due to an injury he sustained while reaching and twisting for measurements at work on the morning of July 11, 2011, and while Mr. Alvarez may not have initially reported a work 17accident because he was uncertain as to what caused his back pain, we find that these “discrepancies” do not mandate overturning the WCJ’s credibility determinations.

A worker’s delay in reporting an injury is more corroborative of his initial unawareness of the seriousness of the injury than it is any cause to doubt his credibility about its occurrence, Bruno, 593 So.2d at 363. This is especially true when, as in the instant case, the delay is of a relatively short duration such as a few weeks. Id. Another fact finder may have made different credibility determinations and weighed the evidence differently, but we do not find that the WCJ was clearly wrong in rejecting the attack on Mr. Alvarez’s credibility.

We further note that Dr. Broussard’s deposition testimony and the objective MRI results were consistent with and corroborated Mr. Alvarez’s testimony that he was not experiencing daily back pain until he injured his back at work on My 11, 2011. Dr. Broussard testified that while Mr. Alvarez’s onset of changes noted on the MRI could have been present before the work accident, Mr. Alvarez’s work accident caused his back condition to become symptomatic to thé point that he sought medical treatment. Dr. Broussard reconciled Dr. Vazquez’s different history of intermittent back pain for two years by acknowledging that Mr. Alvarez reported that his back pain began on the date that he first sought medical treatment for back pain, which was the same date.that Mr. Alvarez testified that he was injured at work on July 11, 2011. Dr. Broussard testified that Mr. Alvarez’s complaints of pain were consistent.

Workers’ compensation benefits are payable when a work-accident aggravates or accelerates a pre-existing latent back condition, producing disability. See Bruno, 598 So.2d at 363. “A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition |8appear and continuously manifest themselves af-terwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.” Id., quoting West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1149 (La.1979).

The record contains medical evidence showing that Mr. Alvarez was in good health before going to work on July 11, 2011, and became symptomatic immediately, and experienced back pain continuously, after the work accident that morning, thereby preventing Mr. Alvarez from working since that date. There is no evidence in the record that shows Mr. Alvarez was medically treated for back pain prior to July 11, 2011. Thus, we conclude the WCJ did not manifestly err in concluding that Mr. Alvarez had met his burden of establishing a work-related accident by a preponderance of the evidence, and that Mr. Alvarez was entitled to all reasonable and necessary medical treatment related to the back injury he sustained in the accident. The record contains no evidence that suggests the medical treatment received by Mr. Alvarez was unrelated to his work injury.

Additionally, we note that an employee seeking TTD benefits must prove by clear and convincing evidence— that is, to demonstrate that the existence of a disputed fact is much more probable than not — that he is physically unable to engage in any employment. See La. R.S. 23:1221(1)(c); McCray v. Delta Industries, Inc., 2000-1694 (La.App. 1st Cir.9/28/01), 809 So.2d 265, 268. The claimant must introduce objective medical evidence of the disabling injury. Id. at 269. Disability can be proven by medical and lay testimony. The WCJ must weigh all the evidence, medical and lay, in order to determine if the claimant has met his burden. Id. Mr. Alvarez introduced objective medical evidence through Dr. Broussard’s testimony and the chiropractic medical records, as well as his own testimony that he was unable to return to work because of his back injury. Because no other evidence was presented that would indicate that Mr. Alvarez could return |3to work in any capacity after he was injured, the WCJ properly concluded that Mr. Alvarez was entitled to TTD benefits from the date of the work accident through the last date of documented medical treatment, November 1, 2011.

Finally, as for Mr. Alvarez’s answer to this appeal, he asserts that he is entitled to penalties and attorney fees because Petrin and LWCC did not reasonably controvert his claim. The failure to provide payment of benefits will result in a penalty and attorney fees assessment unless “the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” La. R.S. 23:1201(F)(2); McCarroll v. Airport Shuttle, Inc., 2000-1123 (La.11/28/00), 773 So.2d 694, 698. The phrase “reasonably controverted” means that the employer or its insurer must have “some valid reason or evidence” on which to base the denial of benefits. Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 890. To determine whether a claimant’s claim was reasonably controverted, the WCJ must ascertain whether the employer or its insurer possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time the employer and its insurer refused to pay all or part of the benefits allegedly owed. Id. We review a WCJ’s decision regarding the assessment of penalties and attorney fees pursuant to the manifest error standard. See Thomas v. Browning-Ferris, Inc., 2004-1584 (La.2/25/05), 894 So.2d 1091 (per curiam).

Although the WCJ accepted Mr. Alvarez’s testimony regarding the work accident and injury, as well as Dr. Broussard’s medical opinion as to Mr. Alvarez’s back injury and disability, the record contains some evidence of inconsistencies as to what Mr. Alvarez initially believed was the cause of his back pain and what he reported to Dr. Vazquez on the date of the accident. Relying on the lack of a reported work accident, the lack of witnesses to the accident, and Dr. Vazquez’s [ lflmedical record stating that “no injury” had occurred on the date of the accident, LWCC denied Mr. Alvarez’s benefits. While these facts were ultimately found to be inadequate to defeat Mr. Alvarez’s claim, we agree they were sufficient to reasonably controvert the claim. We detect no manifest error in the WCJ’s conclusion. Therefore, no penalties or attorney fees are warranted.

CONCLUSION

For the reasons expressed, the judgment of the WCJ is affirmed in all respects. Costs of this appeal are assessed equally between the parties.

AFFIRMED.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurs and assigns reasons.

|! Given the manifest error standard of review, I am constrained to concur with the result reached by the majority.


author: WHIPPLE, C.J. McCLENDON, J.,

text:
    STATE of Louisiana v. Dennis M. WELCH.
    No. 2012 KA 1531.
    Court of Appeal of Louisiana, First Circuit.
    March 22, 2013.

      Walter P. Reed, Covington, LA, Kathryn W. Landry, Baton Rouge, LA, for Appellee, State of Louisiana.
    Vincent F. Wynne, Jr., Shannon K. Low-ry, Covington, LA, for Defendant/Appellant, Dennis M. Welch.
    Before WHIPPLE, C.J., McCLENDON and HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

[¿The defendant, Dennis M. Welch, was charged by amended bill of information with one count of fourth-offense operating a vehicle while intoxicated (DWI), a violation of LSA-R.S. 14:98, and pled not guilty. Following a bench trial, the defendant was found guilty as charged. He was fined $5,000.00 and sentenced to twenty-five years at hard labor, with the first two years of the sentence to be served without benefit of probation, parole, or suspension of sentence. He now appeals, contending the trial court: (1) abused its discretion in denying the motion to suppress AIT Laboratories’ certificate of analysis; (2) erred in allowing the testimony of Dr. George Behoniek; (3) erred in admitting into evidence AIT Laboratories’ certificate of analysis; (4) erred in finding the evidence of record sufficient to support a conviction without AIT Laboratories’ certificate of analysis; (5) erred in considering predicate DWI offenses older than ten years; and (6) abused its broad discretion by imposing an excessive sentence. For the following reasons, we affirm the defendant’s conviction and sentence, and remand for an evi-dentiary hearing on the issue of waiver of a jury trial.

FACTS

St. Tammany Parish Sheriffs Office Deputy Jamie Raquet testified at trial. On March 17, 2011, at approximately 6:00 p.m., he investigated a vehicle crash on Louisiana Highway 437 at North Fitzmor-ris Road, north of Covington. The crash involved one vehicle, driven by the defendant. Deputy Raquet noted that the | ¿vehicle was off the east side of the roadway, overturned on its passenger side. The vehicle had travelled through a ditch, impacted on the driver’s side, overturned on its side, and rotated counterclockwise, finally coming to a stop in a barbed wire fence. Deputy Raquet detected a strong odor of an alcoholic beverage emanating from the vehicle’s interior. Deputy Ra-quet did not see the emergency brake on the vehicle pushed down.

Covington Police Department Sergeant Jimmy Slade had witnessed the crash. He saw the vehicle travelling forty miles per hour as it ran through a stop sign. He saw the defendant lose control of the vehicle as the defendant attempted to turn southbound and cross two lanes of traffic before the vehicle entered a ditch.

The defendant had no observable signs of injury and stated he was not hurt. According to Deputy Raquet, the defendant’s speech was slurred, the defendant stuttered, and the defendant’s movements were lethargic and slow. The defendant claimed he had only “drank a beer at lunch time,” but he also stated that he had taken the prescription medications Paxil, Klono-pin, Fioricet, and another medication “morning and lunch.” The defendant claimed his vehicle had defective brakes and that he had pushed the emergency brake, but it had not worked.

The defendant stated he had been trav-elling from River Forest subdivision to Fairhaven Road, a distance of approximately twelve miles. The defendant claimed he left at 3:30 p.m. The defendant thought the accident had occurred at 4:00 p.m., when, in fact, he actually had crashed the vehicle at approximately 5:45 p.m. The defendant consented to a blood and urine test in the hospital, but he could not stand up without swaying back and forth. The defendant staggered on |4the way to the bathroom to provide a urine sample and complained of a pain in his side. Also, at the time of the accident, his driver’s license was suspended.

Based on observations of the defendant, the manner in which he was speaking, his lethargic movements, and his problem with normal motor skills, Deputy Raquet concluded that the defendant was operating the vehicle while under the influence of his prescription medications. Thus, Deputy Raquet arrested him for DWI.

DISCUSSION

Admissibility of AIT Laboratories’ Certifícate of Analysis

(Assignment of Error No. 1)

In assignment of error number 1, the defendant argues the trial court erred in denying his motion to suppress the certificate of analysis by AIT Laboratories (“AIT”) because his blood sample was not transported for analysis in accordance with La. Administrative Code, Title 55, part I, § 581.

A motion to suppress is available to question the admissibility of chemical test results that can result in the legal presumption of intoxication. State v. Shirley, 2008-2106 (La.5/5/09), 10 So.3d 224, 232. Before the State may avail itself of the statutory presumption of the defendant’s intoxication arising from chemical analysis of his blood, it is incumbent on the State to show strict compliance with the detailed procedures adopted to secure the efficacy and reliability of the chemical test. Id.

Prior to amendment in May of 2011, La. Administrative Code, Title 55, part I, § 581 provided, in pertinent part:

C. The sample taken for analysis should be refrigerated and delivered to a designated collection site within 24 hours following the end of the collecting officer’s shift. It shall then be transported to the laboratory utilized for analysis at the earliest opportunity after collection, not to exceed 7 days.

| fiPrior to trial, the defendant moved to suppress the results of the analysis of his blood sample, arguing that the documentation from the State indicated that twenty-two days had passed between the drawing of the blood and its receipt for testing. At the hearing on the motion, the defense introduced a report from AIT indicating the sample tested was collected on March 17, 2011, and received on April 8, 2011. The State introduced documentation indicating that the sample was received by the Louisiana State Police Crime Laboratory on March 23, 2011. Additionally, the State presented the testimony of Louisiana State Police Crime Laboratory Forensic Analyst Robert Spinks, who stated that the sample was received by the Louisiana State Police Crime Laboratory on March 23, 2011. He conducted a blood alcohol test on the sample, which was negative. He further indicated the Louisiana State Police Crime Laboratory had a contract with AIT, a toxicology firm from Indianapolis, to help reduce the backlog of items to be tested. At the conclusion of the trial, the trial court denied the motion to suppress.

When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, 280-81. However, a trial court’s legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La.12/1/09), 25 So.3d 746, 751.

The trial court did not err or abuse its discretion in denying the motion to suppress the results of the analysis of the blood sample obtained from the defendant. La. Administrative Code, Title 55, part I, § 581 was not violated. The record demonstrates that the sample at issue was “transported to the laboratory utilized for analysis” within 7 days of collection. While the sample was subsequently tested for Rthe presence of other drugs by AIT later than 7 days after collection, this testing occurred at a laboratory subcontracted with the State Police laboratory due to a backlog at the Louisiana State Police Crime Laboratory.

Thus, this assignment of error lacks merit.

Admissibility of Dr. George Behonick’s Testimony

(Assignment of Error No. 2)

In the first part of assignment of error number 2, the defendant argues the trial court erred in allowing the simultaneous broadcast testimony of Dr. George Behon-ick because the State failed to provide timely written notice to the defense under LSA-R.S. 15:502(B).

Louisiana Revised Statute 15:502 provides, in pertinent part:

A. The court may authorize the following persons to testify by simultaneous transmission through audiovisual equipment, if such technology is available in the courtroom, during any criminal proceeding, ...:
(1) Employees of criminalistics laboratories-.
B. The party seeking to offer testimony as provided in Subsection A of this Section shall provide written notice to opposing counsel not less than thirty days prior to the commencement of the proceeding.
D. Nothing in this Section shall be construed as to prohibit the use of a subpoena to compel any such witness to physically appear and testify in person. When the attorney for the defendant, or the defendant acting in his own defense, requests that a subpoena be issued to the person who performed the examination or analysis, the request shall be in writing or shall contain a certification that the attorney or the defendant intends in good faith to conduct the cross-examination.

On February 13, 2012, the State moved to present the testimony of Dr. George Behonick, an expert witness from a crime laboratory, by simultaneous 17broadcast transmission. On February 17, 2012, the defendant filed a motion opposing the use of simultaneous broadcast transmission.

The defendant’s motion set forth that on September 29, 2011, the defense had notified the State that the defense wanted the toxicologist who conducted the blood analysis to appear in person in open court. The defendant further alleged that the State had failed to give the defense the required 30-day notice prior to the February 29, 2012 trial date. Additionally, the motion set forth that the defense had requested a subpoena of the toxicologist who performed the blood analysis.

The motions were heard on February 29, 2012. The State indicated it had three officers ready to testify and asked the court to keep the matter open for the presentation of additional testimony by “Skype” at a later date. The defense objected to holding the matter open. The court continued the matter until March 15, 2012, and the defense objected. Thereafter, on March 15, 2012, the State presented testimony from Dr. George Behonick by “Skype.”

The granting or denial of a motion for continuance rests within the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent a showing of a clear abuse of discretion. State v. Albert, 96-1991 (La.App. 1st Cir.6/20/97), 697 So.2d 1355, 1360.

There was no clear abuse of discretion in continuing the February 29, 2012 proceeding to March 15, 2012. The trial court was attempting to give the defense the benefit of the full period of notice specified in LSA-R.S. 15:502(B). Moreover, the defense failed to show how the defendant would be prejudiced by the continuance.

This portion of assignment of error number 2 also lacks merit.

| sConfrontation Clause Violation

(Assignment of Error No. 2)

In this portion of assignment of error number 2, the defendant also argues that his confrontation rights were violated because the State failed to present testimony from Dr. Gene Schwilkie, the certifying scientist on the AIT certificate of analysis.

In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const, amend. VI. The Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004); see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (Massachusetts “certificates of analysis” used to establish that the substance hidden in the police ear used to transport a defendant and two other men contained cocaine were testimonial statements subject to the Confrontation Clause).

Prior to amendment by 2012 La. Acts No. 69, § 1, LSA-R.S. 15:499(A) authorized all criminalistics laboratories established by the laws of Louisiana or of the United States to make proof of examination and analysis of physical evidence by the certificate of the person in charge of the facility in which such examination and analysis was made.

Louisiana Revised Statute 15:500 provides, in pertinent part, that:

[i]n all criminal eases ... the courts of this state shall receive as evidence any certificate made in accordance with LSA-R.S. 15:499 subject to the conditions contained in this Section and LSA-R.S. 15:501. The certificate shall be received in evidence as prima facie proof of the facts shown thereon, and as prima facie proof of proper |9custody of the physical evidence listed thereon from time of delivery of said evidence to the facility until its removal therefrom.

Louisiana Revised Statute 15:501 provides:

A.The party seeking to introduce a certificate made in accordance with R.S. 15:499 shall, not less than forty-five days prior to the commencement of the trial, give written notice of intent to offer proof by certificate. Such notice shall include a copy of the certificate.
B. The attorney for the defendant, or the defendant acting in his own defense, if not represented by counsel, may demand that the person making the examination or analysis testify by filing a written demand and serving it upon the district attorney or attorney general seeking to introduce the certificate. If such a demand is made timely as set forth below, the certificate shall not constitute prima facie proof of the facts thereon as set forth in R.S. 15:500.
C. Demand for the testimony of the person making the examination or analysis shall be filed and served by counsel for the defendant, or by a defendant acting as his own counsel, within thirty days of the receipt of the notice provided for in Subsection A of this Section. The trial court may extend this thirty-day period for good cause shown if such request is made prior to the expiration of the thirty days.
D. If no request for additional time is made prior to the expiration of the thirty-day period, an extension of time in which to make such a demand may be made only upon a showing of exceptional circumstances. Any allegation that such circumstances exist shall constitute a preliminary plea on the defendant’s behalf for the purposes of Louisiana Code of Criminal Procedure Article 580. The demand shall be made in writing and notice shall be served on the district attorney or the attorney general prosecuting the matter. The court shall conduct a contradictory hearing to determine if the extension is warranted.
E. The filing of a demand by the defendant does not prevent the admission of the certifícate or its contents in any other manner otherwise appropriate pursuant to the Louisiana Code of Evidence or its ancillaries.

As this court has previously noted, LSA-R.S. 15:501 is precisely the kind of “notice-and-demand” statute that the court in Melendez-Diaz recognized to be permissible under the Confrontation Clause. State v. Beauchamp, 2010-0451 (La.App. 1st Cir.9/10/10), 49 So.3d 5, 9. Further, as the Louisiana Supreme Court | inhas held, states remain free to impose reasonable restrictions on a defendant’s confrontation rights. State v. Simmons, 2011-1280 (La.1/20/12), 78 So.3d 743, 747 (per curiam).

Dr. -George Behonick testified he was a forensic toxicologist employed by the American Institute of Toxicology Laboratories (AIT). The defense stipulated he was an expert in the field of forensic toxicology. Dr. Behonick indicated that Dr. Gene Schwilkie was a Ph.D. toxicologist with AIT. Dr. Behonick testified that the report generated by AIT concerning the sample of the defendant’s blood was reviewed and released by Dr. Schwilkie. The defense objected to Dr. Behonick’s testimony on the basis that Dr. Behonick was not the person “who did the testing.” The court noted the objection, but allowed Dr. Behonick to testify.

Dr. Behonick testified that the positive findings of drugs and their concentrations in the sample of the defendant’s blood were generated by the use of mass spectrophotometry. He indicated that the instrumentation used for the testing was recognized by Louisiana as appropriate for testing bodily fluids. He further stated that testing on the defendant’s sample indicated the presence of 6.8 micrograms per milliliter of butalbital. Dr. Behonick stated that butalbital is a barbiturate and a central nervous system depressant. Notably, the effects of the drug include lethargy, confusion, disorientation, and uncoor-dination. Dr. Behonick indicated that testing on the defendant’s sample also indicated the presence of 11.8 nanograms per milliliter of clonazepam. Dr. Behonick stated that clonazepam is also a central nervous system depressant. The effects of the drug include sedation, uncoordination, double vision, slurred speech, dizziness, and confusion. Dr. Behonick also stated that testing on the defendant’s sample indicated the presence of norpropoxy-phene, a metabolite of propoxyphene. He | nstated that norpropoxyphene and pro-poxyphene are central nervous system depressants, and that the effects of these drugs include lethargy, diminished alertness, and sleepiness. Dr. Behonick indicated that drugs such as butalbital, clona-zepam, and propoxyphene carry standard cautions to their users warning them of the effects of the drugs in trying to operate hazardous machinery.

Considering Dr. Behonick’s credentials and the basis for his explanation of the test results, we find no confrontation clause violation in allowing Dr. Behonick, a forensic toxicologist, to testify on the basis of the report by his fellow toxicologist, who did not testify at trial. See State v. Bolden, 2011-2435 (La.10/26/12), 108 So.3d 1159, (per curiam).

This portion of assignment of error number 2 also lacks merit.

Proof of AIT’s Permit

(Assignment of Error No. 3)

In this assignment of error, the defendant argues that the trial court erred in admitting the AIT certificate of analysis because the State failed to submit proof of AIT’s permit prior to trial.

Louisiana Revised Statute 32:663 provides, in pertinent part:

A. (1) Chemical analyses of the person’s blood, urine, breath, or other bodily substance, to be considered valid under the provisions of this Part, shall have been performed according to methods approved and promulgated by the Department of Public Safety and Corrections and performed by an individual or laboratory possessing a valid permit issued by said department for the purposes set forth in this Part. The Department of Public Safety and Corrections is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals or laboratories to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the department in accordance with regulations approved and promulgated by the department pursuant to the Administrative Procedure Act.
(2) Chemical analyses of a person’s blood, urine, breath, or other bodily substance may be conducted by an out-of-state individual or laboratory provided that the chemical analyses are performed in | ^accordance with the methods approved and promulgated by the Department of Public Safety and Corrections or are performed by an individual or laboratory possessing a valid permit. Such analyses shall be considered valid under the provisions of this Part and admissible and competent evidence in the courts of this state and in administrative law hearings if performed in accordance with the methods approved and promulgated by the Department of Public Safety and Corrections or are performed by an individual or laboratory possessing a valid permit.
C. Issuance of a permit to such a certified individual or laboratory makes all laboratory forensic test results conducted on a person’s blood, urine, or other bodily substance by such individual or laboratory valid under the provisions of this Part, and admissible and competent evidence of intoxication in any court of law or administrative hearing.

At trial, the State questioned Dr. Behon-ick concerning certification .of AIT Laboratories and how long it had done business with the Louisiana State Police Crime Lab. Dr. Behonick referenced dates on permits obtained by AIT. Defense counsel objected to any reference to a permit because he had “never seen this permit,” and stated, “I would like to see a copy of it.” The State indicated it did not have the referenced permit. Dr. Behonick, however, stated he did have the permit. The State then asked if he could fax the permit to the court. Dr. Behonick indicated he did not currently have access to a fax machine, but could “send it as a PDF.” The defense then objected to the permit being emailed “at the last minute.” Thereafter, the court provided Dr. Behon-ick with an email address, and he sent a copy of the permit by email during a recess. Subsequently, the court provided the State and the defense with copies of the permit and an opportunity to review the permit.

On review, we find no error or abuse of discretion. Louisiana Revised Statute 32:663 does not require the State to obtain the referenced permit from AIT prior to trial and supply it to the defense. Moreover, the defense was supplied |iawith a copy of the permit and was given an opportunity to review the document prior to cross-examining Dr. Behonick.

This assignment of error also lacks merit.

Sufficiency of the Evidence

(Assignment of Error No. 4)

In assignment of error number 4, the defendant argues, “[assuming AIT’s Certificate of Analysis was properly excluded,” the evidence was insufficient to support the conviction because the evidence did not exclude the reasonable hypothesis that he was impaired from a head injury he suffered during his automobile accident.

Initially, we note that we have addressed and rejected the defendant’s arguments alleging error in the admission of AIT’s certifícate of analysis. Accordingly, the instant assignment of error is founded on an erroneous assumption by the defense. Nonetheless, even absent consideration of the certifícate of analysis, we find there was sufficient evidence to support the verdict under the applicable standard.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which requires, in part, that “assuming every fact to be proved that the evidence tends to prove,” in order to convict, every reasonable hypothesis of innocence is excluded. State v. Wright, 98-0601 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157 & 2000-0895 (La.11/17/00), 778 So.2d 732 (quoting LSA-R.S. | u15:438).

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 730 So.2d at 487. Intoxication, with its attendant behavioral manifestations, is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330, 1334 (La.1983).

The crime of operating a vehicle while intoxicated is the operating of any motor vehicle when the operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in LSA-R.S. 40:964; or when the operator is under the influence of alcohol and one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription. LSA-R.S. 14:98(A)(1)(c) and (A)(1)(d)(i).

After a thorough review of the record, we are convinced that any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of any reasonable hypotheses of innocence raised by the defendant at trial, all of the elements of fourth-offense DWI and the defendant’s identity as the perpetrator of that offense. A police officer witnessed the defendant run through a stop sign, lose control of his vehicle, and crash into a ditch. Thereafter, the defendant admitted he had consumed alcohol and prescription medications, 11fiincluding at least one controlled dangerous substance. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder’s determination of guilt. State v. Glynn, 94-0332 (La.App. 1st Cir.4/7/95), 653 So.2d 1288, 1310, writ denied, 95-1153 (La.10/6/95), 661 So.2d 464. In reviewing the evidence, we cannot say that the fact finder’s determination was irrational under the facts and circumstances presented to the trial judge herein. See State v. Ordodi, 2006-0207 (La.11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the fact finder. See State v. Calloway, 2007-2306 (La.1/21/09), 1 So.3d 417, 418 (per curiam).

This assignment of error also lacks merit.

Failure to Quash Predicate Offenses

(Assignment of Error No. 5)

In assignment of error number 5, the defendant argues the trial court erred in denying the motion to quash predicate offenses based upon said offenses being over ten years old.

Louisiana Revised Statute 14:98(F)(2) provided, in pertinent part:

For purposes of this Section, a prior conviction shall not include a conviction for an offense under this Section ... if committed more than ten years prior to the commission of the crime for which the defendant is being tried and such conviction shall not be considered in the assessment of penalties hereunder. However, periods of time during which the offender was awaiting trial, on probation for an offense described in Paragraph (1) of this Subsection, under an order of attachment for failure to appear, or | ^incarcerated in a penal institution in this or any other state shall be excluded in computing the ten-year period.

Prior to trial, the defense moved to quash and/or suppress the predicate offenses on the basis that they were excluda-ble under LSA-R.S. 14:98(F)(2).

In connection with predicate # 1, first-offense DWI committed on March 17, 1990, the State introduced documentation indicating that on May 7, 1990, the defendant pled guilty, was fined $300.00 plus court costs, and was sentenced to 90 days in the parish jail, suspended, and two years probation. In connection with predicate # 2, third-offense DWI, committed on December 20, 1997, the State introduced documentation indicating that on June 15, 1998, the defendant pled guilty, was fined $2,000.00 plus court costs, and was sentenced to three years without hard labor, with six months of the sentence without benefit of probation, parole, or suspension of sentence and two and one half years of the sentence suspended, and two years probation. In connection with predicate #3, fourth-offense DWI, committed on May 31, 1998, the State introduced documentation indicating that on June 25,1998, the defendant pled guilty, was fined $5,000.00 and was sentenced to ten years at hard labor, with two years of the sentence without benefit of probation, parole, or suspension of sentence. In connection with predicate #4, second-offense DWI, committed on May 15, 1997, the State introduced documentation indicating that on August 13,1997, the defendant pled guilty, was fined $500.00 plus court costs, and was sentenced to six months in parish jail, suspended, and two years probation.

At the final hearing on the motion, the defense indicated it had stipulated to the files introduced by the State concerning the predicate offenses, but argued that those files did not contain information concerning probationary periods. The State responded “any time probation is terminated before it’s set to expire, then that’s 117the time that they’re on probation. You need to file a motion to terminate probation early and that has to be filed into those records, the Clerk’s record.” The trial court stated it had reviewed the clerk’s records and found no indication of early termination of probation. Additionally, the court found the defendant had been sentenced to ten years on May 31, 1998 and “this links up.” The court found that predicate # 1 did not “link[ ] up.” The court denied the motion to quash.

When a trial court grants or denies a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion. See State v. Odom, 2002-2698 (La.App. 1st Cir.6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La.10/17/03), 855 So.2d 765. However, a trial court’s legal findings are subject to a de novo standard of review. See State v. Smith, 99-2094, 99-2015, 99-2019, 99-0606 (La.7/6/00), 766 So.2d 501, 504.

On the record before us, we find no error in the denial of the motion to quash. The oldest predicate offense used to establish the defendant’s fourth-offense DWI status, predicate # 4, was committed thirteen years and three hundred and six days before the instant offense. Therefore, in order for predicate # 4 to escape exclusion under LSA-R.S. 14:98(F)(2), the State had to establish that the defendant was “awaiting trial, on probation for an offense described in [LSA-R.S. 14:98(F)(1) ], under an order of attachment for failure to appear, or incarcerated in a penal institution in this or any other state” for at least three years and three hundred and six days. The documentation introduced by the State indicated that the defendant was on probation in connection with predicates # 2 and # 4 from at least August 13, 1997 to June 15, 2000. Additionally, the defendant was incarcerated in connection with predicate # 3 for at least two years.

| ^Accordingly, this assignment of error also lacks merit.

Excessive Sentence

(Assignment of Error No. 6)

In assignment of error number 6, the defendant argues the trial court imposed an excessive sentence herein.

Louisiana Code of Criminal Procedure article 881.1 provides, in pertinent part:

A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

The defendant failed to make or file a motion to reconsider sentence in this matter. Accordingly, review of this assignment of error is procedurally barred. See LSA-C.Cr.P. art. 881.1(E); State v. Duncan, 94-1563 (La.App. 1st Cir.12/15/95), 667 So.2d 1141, 1143 (en banc per curiam).

REVIEW FOR ERROR

Initially, we note that our review for error is pursuant to LSA-C.Cr.P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and “error that is discoverable by a mere |19inspection of the pleadings and proceedings and without inspection of the evidence.” LSA-C.Cr.P. art. 920(2).

The right to trial by jury in felony and certain misdemeanor cases is protected by both the federal and state constitutions. See U.S. Const, amend. VI; La. Const, art. I, §§ 16, 17. Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury, but no later than forty-five days prior to the trial date, and the waiver shall be irrevocable. La. Const, art. I, § 17(A). A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge. At the time of arraignment, the defendant in such cases shall be informed by the trial court of his right to waive trial by jury. LSA-C.Cr.P. art. 780(A).

The June 15, 2011 minutes of arraignment reflect that this case was originally set for jury trial on August 22, 2011. Thereafter, the October 6, 2011 minutes state, “[fjurther, the Felony Jury Trial being set on October 10, 2011, on motion of the Defense Counsel, Court ordered the Felony Judge Trial continued to January 4, 2012.” The October 6, 2011 transcript sets forth the following:

[State]: Dennis Welch has been continued and converted to a Judge Trial.
[Court]: All right.
(Thereupon, the [proceedings were
[concluded)

The record reflects that at some point, the mode of trial in this matter was changed from a jury trial to a bench trial. The record, however, does not contain a jury-trial waiver. The waiver of a criminal defendant’s right to trial by jury is not presumed; there operates, in fact, a presumption against such waiver which must be rebutted. State v. Cappel, 525 So.2d 335, 337 (La.App. 1st Cir.), writ denied, 531 So.2d 468 (La.1988).

120When the record does not clearly indicate a valid waiver of the right to a jury trial, the recent trend has not been to reverse, but to remand the case to the trial court for an evidentiary hearing on the issue of whether a valid jury waiver was obtained. See State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963. In State v. Cappel, 525 So.2d at 337 n. 3, this court noted that when the record is insufficient to determine whether the defendant knowingly and intelligently waived his right to a jury trial, the testimony by the defendant and defense counsel at an evidentiary hearing would certainly be relevant, if not dispositive of the issue.

Accordingly, we remand this case for the trial court to conduct an evi-dentiary hearing within thirty days to determine whether defendant knowingly and intelligently waived his right to a jury trial. If the evidence shows defendant did not execute such a waiver, the trial judge is instructed to set aside the conviction and sentence and grant a new trial. We note that double jeopardy does not preclude the State from retrying a defendant whose conviction is set aside because of judicial error. See State v. Mayeux, 498 So.2d 701, 705 (La.1986). If, on the other hand, the trial court concludes that the defendant did waive his right to a jury trial, the defendant may appeal only that decision to this court.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR EVIDEN-TIARY HEARING ON JURY TRIAL WAIVER ISSUE.

McCLENDON, J., concurs and assigns reasons.

HIGGINBOTHAM, J., dissents.

McCLENDON, J.,

concurs and assigns reasons.

| ] Louisiana Administrative Code, title 55, part 1, § 581 provides:

C. The sample taken for analysis should be refrigerated and delivered to a designated collection site within 24 hours following the end of the collecting officer’s shift. It shall then be transported to the laboratory utilized for analysis at the earliest opportunity after collection, not to exceed 7 days.

Merriam Webster defines “utilize” as follows:

To make use of; turn to practical use or account.

The majority reasons that since the blood sample was transported to the Louisiana State Police Crime Laboratory within the mandated 7 days after collection, the requirements of the administrative code were satisfied. However, the sample was subsequently sent to and received by AIT 22 days following collection, where further blood analysis was conducted. Since AIT performed the analysis which indicated the presence of drugs in the defendant’s blood, I believe that the laboratory “utilized” for analysis was AIT.

I therefore question the majority’s interpretation of the term “utilize” and recognize that at best, under the facts of this case, the regulation is ambiguous. Nonetheless, I concur with the ultimate result reached by the majority. Exclusive of the findings pursuant to the defendant’s blood sample, I believe there is | ..sufficient evidence to affirm defendant’s conviction. Therefore, I respectfully concur.

      . Predicate # 1 was set forth as the defendant’s May 7, 1990 guilty plea, under Twenty-Second Judicial District Court Docket # 188620, to first-offense DWI. Predicate # 2 was set forth as the defendant’s June 15, 1998 guilty plea, under Twenty-Second Judicial District Court Docket # 283263, to third-offense DWI. Predicate # 3 was set forth as the defendant’s June 25, 1998 guilty plea, under Twenty-Second Judicial District Court Docket # 287082, to fourth-offense DWI. Predicate # 4 was set forth as the defendant’s August 13, 1997 guilty plea, under Twenty-Second Judicial District Court Docket #274319, to second-offense DWI.

      . Klonopin (clonazepam) is a schedule IV controlled dangerous substance. See LSA-R.S. 40:964, Schedule IV(B)(9).

      . The applicable version of LSA-R.S. 14:98 is the version in effect on the date of the commission of the instant offense. See State v. Barbay, 2007-1976 (La.App. 1st Cir.3/26/08), 985 So.2d 749, 751. The instant offense was committed on March 17, 2011. Accordingly, we apply LSA-R.S. 14:98(F)(2) prior to amendment by 2012 La. Acts No. 547, § 1.

      . Proof of three of the four predicate offenses alleged was sufficient to establish the instant offense as a fourth-offense DWI.

      . Given that the Louisiana State Police Crime Laboratory is on occasion apparently subcontracting with other laboratories due to a backlog at its own laboratory and given the ambiguity that arises under that factual scenario, the wording of this regulation might be ripe for review.


author: PETTIGREW, J.

text:
    Durwin L. ABBOTT v. James LeBLANC Secretary of the Department of Public Safety & Corrections, Warden Steve C. Radar & Warden Carson.
    No. 2012 CA 1476.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2013.

      Durwin L. Abbott, Jackson, LA, In Proper Person, Plaintiff-Appellant.
    Jonathan R. Vining, Baton Rouge, LA, for Defendant-Appellee, James M. Le-Blanc.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

12Petitioner, Durwin L. Abbott, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (“DPSC”), appeals a judgment affirming DPSC’s final agency decision rendered under Administrative Remedy Procedure (“ARP”) No. DCI-2010-342 and dismissing the claims alleged in his petition for judicial review. For the following reasons, we affirm.

DISCUSSION

Following a failed drug screen, Abbott filed an ARP at the prison where he was incarcerated, claiming that he was subjected to “cruel and unusual punishment, favoritism and discrimination as it regards [DPSC’s] drug and alcohol testing policy.” Petitioner believed that medications he was taking at the time of a DPSC drug screen caused a false positive result and that his sample should have been sent to an outside lab for further testing. According to the record, petitioner’s medical records were reviewed to determine if any of his medications would cross react with the testing strips. It was determined that they would not. His request was reviewed and denied at the first and second steps of the ARP. Having exhausted his administrative remedies, Abbott filed a petition for judicial review in the Nineteenth Judicial District Court. The matter was then referred to a commissioner for review pursuant to La. R.S. 15:1188, who recommended to the district court judge that DPSC’s decision be affirmed and Abbott’s petition be dismissed, with prejudice. Abbott timely filed a traversal of that recommendation, reiterating his arguments to the court. On May 25, 2012, a judgment was signed, affirming DPSC’s decision and dismissing Abbott’s petition for judicial review, with prejudice. This appeal followed.

|sIn recommending that DPSC’s decision be affirmed, the commissioner offered the following findings:

In this matter, the petitioner alleges the drug testing policy does not afford due process because results suspected of false positive readings are not sent to an outside lab and offenders are not provided with a list of medications that may cause false positive drug screens....
The record in this matter contains a May 10, 2010 memo from the medical staff that indicates the petitioner did not take any medications that could cause a false positive result in this matter. The memo further indicates that the issue of a false positive result in the petitioner’s drug screen was forwarded to the manufacturer, who responded that the petitioner’s medications could not have [caused] a false positive result. The record indicates that the Department checked with a list of medications that were known to cause false positive results and that the petitioner’s medications did not appear on the list prepared by the manufacturer of the testing materials. The record supports the finding that the Department has adequate procedures in place to address the issue of prescription drug interaction with the testing materials utilized in the petitioner’s drug screens. The record in this matter does not support the petitioner’s contention that the Department’s drug testing procedure does not afford due process. The petitioner has failed to show he is entitled to the relief sought in this matter.

After a thorough review of the record, in consideration of Abbott’s arguments on appeal, and applying the relevant law and jurisprudence, we find no error of law or abuse of discretion by the district court in adopting, as its own, the commissioner’s report. We, therefore, affirm the May 25, 2012 judgment of the district court and find that the district court’s reasons for judgment, as set forth in the commissioner’s recommendation, adequately explain the decision. All costs associated with this appeal are assessed against petitioner, Durwin L. Abbott.

AFFIRMED.

      . The offices of commissioner of the 19th Judicial District Court were created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. La. R.S. 13:713(A). The district judge "may accept, reject, or modify in whole or in part the findings or recommendations made by the commissioner and also may receive further evidence or recommit the matter to the commissioner with instructions.” La. R.S. 13:713(0(5).


text:
    Durwin L. ABBOTT v. James LeBLANC Secretary of the Department of Public Safety & Corrections, Warden Steve C. Radar.
    No. 2012 CA 1477.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2013.

      Durwin L. Abbott, Jackson, LA, In Proper Person, Plaintiff-Appellant.
    Jonathan R. Vining, Baton Rouge, LA, for Defendant-Appellee, James M. Le-Blanc.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

| ¡¿Petitioner, Durwin L. Abbott, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (“DPSC”), appeals a judgment affirming DPSC’s final agency decision rendered under Disciplinary Board Appeal No. DCI-2010-92 and dismissing the claims alleged in his petition for judicial review. For the following reasons, we affirm.

DISCUSSION

On March 8, 2010, Abbott was found guilty of violating Disciplinary Rule # 1 (contraband) when he failed a drug screen for THC (marijuana), resulting in a sentence of custody change from medium to maximum working cellblock, forfeiture of 90 days good time, 6 months of drug testing, and restitution in the amount of $63.00 to cover the costs of the drug testing. In his disciplinary board appeal, Abbott argued that his urine sample was required to be sent to an outside lab according to DPSC’s regulations and because it was not, his rights were violated. Abbott also alleged that certain medications he was taking could cause a false-positive test result. Abbott’s appeals were unsuccessful. DPSC determined that Abbott “was provided with a full hearing and was afforded due process in both the hearing and the sentencing phases of the proceeding” and that “the sanctions imposed were appropriate.”

Having exhausted his administrative remedies, Abbott filed a petition for judicial review in the Nineteenth Judicial District Court. The matter was then referred to a commissioner for review pursuant to La. R.S. 15:118s. The commissioner noted that DPSC’s regulation for drug testing requires two in-house tests if the first one is positive. Both must be administered by different officers, which they were in this case. The commissioner further recognized that petitioner failed to provide sufficient authority for his claim that an outside lab test is constitutionally required or even required by regulation |sand failed to present evidence showing the testing procedures used were invalid or unreliable. The commissioner concluded DPSC’s decision to rely on the test results was neither arbitrary nor capricious and was not in violation of petitioner’s rights. The commissioner recommended that DPSC’s decision be affirmed, Abbott timely filed a traversal of that recommendation, reiterating his arguments to the court. On April 4, 2012, a judgment was signed, affirming DPSC’s decision and dismissing Abbott’s petition for judicial review, with prejudice. This appeal followed.

After a thorough review of the record, in consideration of Abbott’s arguments on appeal, and applying the relevant law and jurisprudence, we find no error of law or abuse of discretion by the district court in adopting, as its own, the commissioner’s report. We, therefore, affirm the April 4, 2012 judgment of the district court and find that the district court’s reasons for judgment, as set forth in the commissioner’s recommendation, adequately explain the decision. All costs associated with this appeal are assessed against petitioner, Durwin L. Abbott.

AFFIRMED.

      . The offices of commissioner of the 19th Judicial District Court were created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. La. R.S. 13:713(A). The district judge "may accept, reject, or modify in whole or in part the findings or recommendations made by the commissioner and also may receive further evidence or recommit the matter to the commissioner with instructions.” La. R.S. 13:713(0(5).