author: JAMES F. MCKAY III, Chief Judge. JENKINS, J.,

text:
    STATE of Louisiana, In the Interest of J.D.
    No. 2014-CA-0551.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 2014.
    Rehearing Denied Jan. 7, 2015.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, J. Bryant Clark, Jr., Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., and Judge SANDRA CABRINA JENKINS).
   JAMES F. MCKAY III, Chief Judge.

|,J.D. was charged by petition with one count of theft of Black Beats headphones and a Samsung tablet valued at greater than or equal to one thousand dollars. On April 22, 2014, the Orleans Parish Juvenile Court adjudicated J.D. delinquent for the offense of misdemeanor theft. The written judgment provides that J.D. was adjudicated delinquent of theft pursuant to La. R.S. 14:67. However, the judgment is silent as to the grade of theft.

J.D. was committed to the Department of Public Safety and Corrections for six (6) months. The sentence was suspended, and J.D. was placed on one (1) year of inactive probation. For the reasons set forth below, we affirm and remand.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

At the adjudication hearing, the trial court heard testimony from one witness, Deputy George West (“Deputy West”) with the Orleans Parish Sheriffs Office. Deputy West stated that on July 7, 2014, he was assigned to the James Singleton Charter School in New Orleans to provide security. On that date, Deputy West and Deputy S. Reddick responded to a theft call from the school, wherein a student 12reported items missing from his gym bag while playing basketball. The deputies, the victim, and a school staff member watched the school’s surveillance video from the time in question. Deputy West testified that the victim identified J.D. as the individual seen on the video taking his gym bag. J.D.’s mother was called to the school to view the video. J.D. was not present at this time. At the request of Deputy West, J.D.’s mother brought J.D. back to the school. Deputy West stated that when J.D. arrived, the situation was explained to him, and J.D. confessed to the theft in the presence of his mother. When asked where the items were, J.D. stated that he sold the headphones for thirty (30) dollars. Deputy West gave no testimony regarding the Samsung tablet, which was the other item allegedly missing from the victim’s gym bag. Deputy West testified that the statements made by J.D. were not referenced in the police report.

Deputy West was asked to testify as to what he saw on the surveillance video. Defense counsel objected on the basis that the video was not made available to view at trial. Deputy West stated that the video he reviewed for the trial did not show the incident in question. Thus, it was not the same footage viewed by Deputy West at the school. The objection was overruled.

Deputy West testified that the video he viewed at the school showed the victim playing basketball and J.D. standing around watching. He could see J.D. pick up a bag; walk towards a bench area; stand there a few seconds; and then leave without the bag. This testimony differed somewhat on cross-examination, where Deputy West stated that he observed J.D. carrying a school bag; pick up the Rgym bag identified by the victim; and leave with two bags. This discrepancy was not questioned.

Following the testimony of Deputy West, the trial court rendered judgment from the bench, adjudicating J.D. delinquent of “theft of property having a value of $300.00 or more, but less than $500.00.” The written judgment provides that J.D. was adjudged delinquent of theft in violation of La. R.S. 14:67, but it does not indicate the grade of theft.

STANDARD OF REVIEW

In State in the Interest of J.J., 2013-0548, pp. 2-3 (La.App. 4 Cir. 9/25/13), 125 So.3d 1248, 1250, this Court recently reiterated the appellate standard of review in juvenile cases as follows:

In order to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.C. art. 883. The standard for the State’s burden of proof in a juvenile delinquency proceeding is “no less strenuous then the standard of proof required in a criminal proceeding against an adult.” State in the Interest of J.W., p. 3 (La.App. 4 Cir. 6/6/12), 95 So.3d 1181, 1184. As a court of review, we grant great deference to the juvenile court’s factual findings, credibility determinations, and assessment of witness testimony. State ex rel. W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61.
In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State in the Interest of T.E., 2000-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard of review is applicable in juvenile delinquency cases. Id.
In addition, La. Const, art. V, § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. “While delinquency proceedings may in many ways | implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature.” State in the Interest of D.R., 2010-0405, p. 5 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930. (Emphasis in the original). Therefore, as in the review of civil cases, a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. State in Interest of K.G., 2011-1559, p. 4 (La.App. 4 Cir. 3/21/12), 88 So.3d 1205, 1207, citing State in the Interest of Batiste, 367 So.2d 784 (La. 1979); State ex rel. E.D.C., 39,892 (La. App. 2 Cir. 5/11/05), 903 So.2d 571; State in the Interest of S.S., 557 So.2d 407 (La.App. 4 Cir.1990). In sum, we apply the “clearly wrong-manifest error” standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt.

LAW AND ANALYSIS

J.D. asserts four assignments of error: 1) The trial court erred in permitting Deputy West to testify as to the contents of the video when the video was not produced at trial; 2) The State failed to offer evidence that J.D.’s statements were made freely and voluntarily with the benefit of Miranda warnings; 3) Trial counsel was ineffective for failing to suppress J.D.’s statements and failing to object to the introduction of the statements at trial; and 4) The judgment does not reflect the grade of the offense.

Assignment of Error No. 1:

J.D. argues that the trial court erred in permitting Deputy West, over the objection of defense counsel, to testify as to the content of the surveillance video, which was not produced at trial. J.D. submits that this action denied him the right of confrontation in violation of both the Sixth Amendment of the United States Constitution and the confrontation clause set forth in La. Const. Art. I, § 16.

IsThe Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to be confronted with the witnesses against him. The confrontation clause of the Louisiana Constitution specifically and expressly guarantees the accused the right “to confront and cross-examine the witnesses against him.” La. Const. Art. I, § 16. See also State v. Robinson, 2001-0273, (La.5/17/02); 817 So.2d 1131, 1135. Confrontation not only means the ability to confront the witnesses physically but also to secure for the opponent the opportunity of cross-examination, which is its main and essential purpose. Id.

In the present case, Deputy West testified that he viewed the video in the presence of the victim, a school staff member, and J.D.’s mother. He stated that the video showed J.D. taking the victim’s bag. It is evident from the record that Deputy West was thoroughly cross-examined by defense counsel as to what he saw on the video. Certainly a video of the incident would have been helpful evidence. However, under the circumstances, its unavailability does not create a Confrontation Clause issue where full cross-examination occurred and the trial court heard testimony from the investigating officer.

J.D. further argues in this assignment of error that to prove the content of the video, the State was required to present the original video pursuant to La. C.E. art. 1002. We disagree.

While La. C.E. art. 1002 requires the original document to prove the contents therein, under La. C.E. art. 1004(1), the original of a writing, recording or photograph is not always required to prove its contents, and other evidence of the contents of a writing, recording or photograph is admissible if all originals are lost Ror have been destroyed, unless the proponent lost or destroyed them in bad faith. See State v. Sartain, 98-0878, (La.App. 4 Cir. 12/1/99), 746 So.2d 837, 848. The “best evidence” rule is to be applied sensibly and with reason. State v. Gaskin, 412 So.2d 1007, 1011 (La.1982). Absent a showing of prejudice to the defendant, a conviction will not be reversed on the ground that the best evidence was not produced. Id. The “best evidence” rule does not mandate production of an original taped statement when testimony shows that the original is not available and there is no bad faith by the State. State v. Sartain, supra at 848.

Here, it is undisputed that the video of the incident in question was not available at trial, and the record does not suggest bad faith on the State’s part. Also, as previously stated, J.D. had the opportunity to cross-examine Deputy West at trial. Thus, we find that J.D. failed to prove any prejudice suffered as a result of the original video not being produced. This assignment of error lacks merit.

Assignment of Error No. 2.

J.D. asserts that the State failed to offer evidence that his statements were made freely and voluntarily with the benefit of Miranda warnings. Thus, J.D. submits that the admission of the statements was erroneous.

At the outset we note that J.D. failed to file a motion to suppress the statements and never raised this issue during his trial. Louisiana courts have long held a defendant may not raise new grounds for suppressing evidence on appeal that he did not raise at the trial court in a motion to suppress. State v. Butler, 2012-2359, p. 4-5 (La.5/17/13), 117 So.3d 87, 89 (citing State v. Montejo, 2006-1807, p. 22 (La.5/11/10), 40 So.3d 952, 967-68). La. C.Cr.P. art. 703F provides that “[f]ailure to file a motion to suppress evidence in accordance with this Article prevents the defendant from objecting to its admissibility at the trial on the merits 17on a ground assertable by a motion to suppress.” A defendant cannot avail himself of an alleged error unless he made a contemporaneous objection at the time of the error. La.C.Cr.P. art. 841(A), See State v. Martin, 2013-0115, p. 8 (La.App. 4 Cir. 12/4/13), 131 So.3d 121, 127.

Because the admissibility of J.D.’s statements was not objected to in the trial court, this issue has not been preserved for appeal. Accordingly, this assignment of error has no merit.

Assignment of Error No. 3

In this assignment of error, it is argued that defense counsel was ineffective in failing to move for the suppression of J.D.’s statements and in failing to object to their introduction at trial. J.D. submits that his defense counsel should have objected to the admissibility of the statements, given the fact that they were made in a custodial environment without the benefit of Miranda warnings.

The general rule is that an ineffective assistance of counsel claim is more appropriately raised in an application for post-conviction relief than on appeal. State v. Brown, 2012-0626, p. 12 (La.App. 4 Cir. 4/10/13), 115 So.3d 564, 572, 573 (citing State v. Leger, 2005-0011, p. 44 (La.7/10/06), 936 So.2d 108, 142). The exception is when the record on appeal contains sufficient evidence to permit the appellate court to decide the issue, and the issue properly is raised by an assignment of error. Id. Under these circumstances, an appellate court may consider the issue in the interest of judicial economy. Id.

To support a claim for ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Brooks, 94-2438, p. 6 (La.10/16/95), 661 So.2d 1333, 1337 |s(on rehearing). The defendant must prove both elements to establish that his attorney was so ineffective as to require reversal. State v. Hongo, 96-2060, p. 5 (La.12/2/97), 706 So.2d 419, 422. Counsel’s performance is ineffective when it is shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland at 686, 104 S.Ct. at 2064.

Here, J.D. maintains that his counsel failed to object to the statements that he made while in custody and without the benefit of Miranda warnings. It is well recognized that the prosecution may not use a statement, whether exculpatory or inculpatory, stemming from custodial interrogation of a defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. State v. Hunt, 2009-1589 (La.12/1/09), 25 So.3d 746, 750, n. 2 (citing Miranda, supra). The constitutional privilege against self-incrimination and the right to counsel apply equally to juveniles and adults. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); State in the Interest of D.J., 2001-2149, p. 10 (La.5/14/02), 817 So.2d 26, 30.

In State v. Hankton, 2012-0466, p. 13 (La.App. 4 Cir. 4/30/14), 140 So.3d 398, 407, this Court stated:

The obligation to provide Miranda warnings attaches only when a person is questioned by law enforcement after he has been taken “into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612 (1966). Custody is decided by two distinct inquiries: an objective assessment of the circumstances surrounding the interrogation to determine whether there is a formal arrest or restraint on freedom of the degree associated with formal arrest; and, second, an evaluation of how a reasonable person in the position of the interviewee would gauge the breadth of his freedom of action. Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994), (citing California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam)); State v. Manning, 03-1982, p. 24 (La.10/19/04), 885 So.2d 1044, 1074 (citations omitted).

In J.D.B. v. North Carolina (2011), — U.S. -, 131 S.Ct. 2394, 180 L.Ed.2d 310, the United States Supreme Court addressed custody determinations for purposes of requiring Miranda warnings in juvenile cases. In that case, the Court held that a child suspect’s age, when known to the interrogating officer or objectively apparent to a reasonable officer, is relevant to the determination whether, considering all the objective circumstances of an interrogation, a reasonable person in the suspect’s position would understand his freedom to terminate police questioning and leave. Id. at 2406. The Court further noted that “[i]n the specific context of police questioning, events that ‘would leave a man cold and unimpressed can overawe and overwhelm1 a’ teen.” Id. at 2397 (citing Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 92 L.Ed. 224 (1948)).

In the present case, at Deputy West’s request, J.D.’s mother brought him to the school, thus limiting J.D.’s control over being there and rendering his presence ostensibly involuntary. Once present, J.D. was confronted and questioned by Deputy West, an officer with the Orleans Parish Sheriffs Office. J.D. confessed. Bearing this in mind, at fifteen years of age, a reasonable juvenile in J.D.’s position would, in all likelihood, be intimidated and overwhelmed. Thus, the evidence tends to suggest that a reasonable fifteen-year-old would believe that his freedom of movement had been significantly restricted.

The facts presented here weigh in favor of a finding that J.D.’s statements were made during a custodial interrogation without the benefit of Miranda warnings. Thus, there is some merit in J.D.’s assertion that defense counsel acted deficiently in failing to file a motion to suppress J.D.’s statements and in failing to |10object to their introduction at .trial. However, the limited record before us does not adequately provide a basis for assessing the adequacy of the representation provided by defense counsel. Accordingly, we find that a review of the claim of ineffective assistance of counsel is better reserved for post-conviction relief, which allows for a full evidentiary hearing thereby creating an adequate record for appellate review.

Assignment of Error no. 4

In his final assignment of error, J.D. asserts, and the State agrees, that the record reflects a patent error in that the written judgment does not state the grade of the offense pursuant to La. R.S. 14:67. This assignment of error has merit.

On the record, the juvenile judge specifically found J.D. guilty of misdemeanor theft. The written judgment provides that J.D. was adjudicated delinquent for theft, but fails to reflect the grade of theft. Thus, the judgment must be amended to reflect the misdemeanor status of the offense.

CONCLUSION

For the foregoing reasons, we affirm J.D.’s adjudication and disposition. We remand the matter to the juvenile court for the sole purpose of amending the judgment to reflect the misdemeanor status of the adjudication pursuant to La. R.S. 14:67.. J.D.’s claim of ineffective assistance of counsel is relegated to post-conviction relief.

AFFIRMED AND REMANDED

JENKINS, J., Dissents and Assigns Reasons.

JENKINS, J.,

dissents and assigns reasons.

hi respectfully dissent.

Although the juvenile defendant did not assign as error the insufficiency of evidence to sustain his adjudication, “[w]hen the state’s case is devoid of evidence of an essential element of the charged offense, the conviction and sentence must be set aside ‘regardless of how the error is brought to the attention of the reviewing court.’” State v. Thacker, 14-0418, p. 2 (La.10/24/14), 150 So.3d 296, 297 (quoting State v. Raymo, 419 So.2d 858, 861 (La. 1982)). While I recognize that insufficiency of evidence is not an error patent on the face of the record, it also must not be overlooked when it becomes apparent from a review of the record. See State ex. rel. Womack v. Blackburn, 393 So.2d 1216, 1219 (La.1981); State v. Schaffer, 99-0766 (La.App. 4 Cir. 4/12/00), 767 So.2d 49, 55-56 (Plotkin, J. concurring in part and dissenting in part).

In order for a juvenile to be adjudicated delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act charged. State in the Interest of R.L., 11-1721, p. 3 (La.App. 4 Cir. 5/30/12), 95 So.3d 1147, 1150. In this case, the trial court’s adjudication of J.D. as a delinquent is based solely on the testimony of Deputy West, which fails to establish the essential elements of the offense of theft. In reviewing the sole testimonial evidence against 12defendant, Deputy West does not testify to any facts within his personal knowledge that establish the elements of the offense. Deputy West’s testifies to the substance of the non-testifying victim’s identification of the defendant without any corroborating evidence. Deputy West also testifies regarding the uncorroborated confession of the defendant that was obtained during a custodial interrogation without the benefit of Miranda warnings. Other than the problematic testimony of Deputy West, the State did not introduce any evidence at the adjudication proceeding, such as the victim’s testimony, the video surveillance, the defendant’s statements, or a police report. From my review of the record, the State failed to prove the essential elements of the offense of theft beyond a reasonable doubt. Thus, I find there is insufficient evidence to sustain the adjudication of the juvenile defendant, J.D., for'theft.

The offense of theft is defined in La. R.S. 14:67 as follows:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

In order to convict a defendant of the offense of theft, the State must prove the following essential elements beyond a reasonable doubt: (1) the defendant misappropriated or took without consent or by fraudulent conduct; (2) a thing of value; (3) that belonged to another; and (3) defendant had the intent to deprive the owner permanently of the thing misappropriated or taken. State v. McMillian, 10-0812, p. 7 (La.App. 4 Cir. 5/18/11), 65 So.3d 801, 805 (citing State v. Pittman, [a368 So.2d 708 (La.1979)). Further, the State must prove the value of the thing taken, “for upon this proof depends the determination of the severity of the theft, and the punishment for a convicted offender.” Id. (citing State v. Monterroso, 96-376 (La.App. 5 Cir. 11/14/96), 685 So.2d 249, 251).

At the adjudication hearing, Deputy West was the sole witness to testify. He testified that he was working at the James Singleton. Charter School on July 17, 2013, when he received a call that a student was missing some items. Deputy West stated that he, his partner, and the alleged victim viewed a video. As to his own observations of the contents of that video, Deputy West stated,

A: Well, ..., we actually observed the victim playing basketball with a couple other people. During that time, there were several people standing in the area while they were playing basketball. Shortly after that, the alleged subject had picked up an item, a bag. As he picked up the bag, he walked towards a bench area, stood there for a few seconds, left without the bag, and exited toward O.C. Haley.

Subsequently, in direct examination, Deputy West testified as follows:

BY [THE STATE]:
Q: Did you see the juvenile, [J.D.]? Do you know [J.D.]?
A: I don’t know him personally. I just know that there was a victim and, of course, there was a subject.
Q: The individual that took the bag? A: Yes.
Did he leave with two bags? ⅛ * * G?
Yes, he did. <ri
How did you determine the individual that took the bag and left on that video? How did you learn his identity? O’
A: Well, once we were able to get the victim and his parents together, they actually saw the video as well, the victim identified who the subject was.

The State relies upon Deputy West to provide the identification of the defendant as the person who took the bag. This identification testimony, however, |4is based wholly on the statement of a non-testifying witness. Deputy West acknowledged that he had no personal knowledge of defendant. He also did not provide testimony establishing the ownership of the bag, its value, its contents, or the value of the bag’s contents. The alleged victim did not testify; and the State did not introduce any evidence establishing the ownership of the bag, its contents, or the value of either. From his personal observations and knowledge, Deputy West’s testimony does not establish that any thing of value was misappropriated without consent of the owner and with an intent to deprive the owner permanently of the thing.

Deputy West then testified that he obtained a confession from defendant. He stated that he contacted the defendant’s mother and had her bring defendant to the | r,school. Deputy West “explained to [defendant] his situation and he did, in fact, confess” to taking and selling headphones for $30 to a store. Deputy West “interviewed” defendant in the presence of his mother and separately from his mother. Deputy West did not state that he provided Miranda warnings to defendant at any time prior to or during the interview. A review of this record indicates that defendant’s statements were obtained during a custodial interview without the benefit of Miranda warnings to inform defendant of his constitutional right against self-incrimination and his right to counsel. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State in the Interest of McGinnis, 244 So.2d 336 (La. 1971) (finding “[s]ince [defendant] and his parent were not informed of [his] right to counsel and his privilege against self-incrimination, the judgment of the Juvenile Court in which he was found to be delinquent was rendered without due process of law...”).

Although I agree with the majority that the issue of the admissibility of defendant’s statement in this case was not preserved for review on appeal, the testimony regarding defendant’s confession must be considered as it pertains to the sufficiency of the evidence. The State relies solely on Deputy West’s testimony to establish all essential elements of the offense. The testimony regarding defendant’s confession was offered presumably to establish defendant’s intent to deprive the owner permanently of the thing taken and the value of the thing. The State, however, does not introduce any other testimony or any evidence at the adjudication to corroborate the testimony regarding defendant’s confession. Thus, I find that the State’s reliance on defendant’s uncorroborated confession violates Louisiana’s corpus de-licti rule, which requires corroboration of the reliability of anj^inculpatory statement. State v. Collins, 10-1181, pp. 9-10 (La.App. 4 Cir. 3/23/11), 62 So.3d 268, 274; State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190. Although the State is not required to show independent evidence of every element of the charged crime, the State is required to provide corroborating evidence to show that the injury specified occurred and that the injury was caused by criminal activity. Martin, 93-0285, p. 7, 645 So.2d at 195. As stated previously, the State did not offer any evidence or testimony to corroborate Deputy West’s testimony. Deputy West’s testimony that defendant confessed to taking headphones and selling them at a store cannot stand alone as both the proof and corroboration of the elements of the charged crime.

In an appeal from a delinquency proceeding, the appellate court reviews the facts and evidence and applies the law as it does in an adult proceeding; thus, the trier of fact’s credibility determinations and findings of fact are due great deference. State in the Interest of G.E., 11-1558, p. 6 (La.App. 4 Cir. 5/16/12), 94 So.3d 863, 867-68. However, where the record as a whole reveals a lack of sufficient evidence to establish the essential elements of the offense and sustain the adjudication, the adjudication must be set aside. See Raymo, 419 So.2d at 861. In my review of the record, I find the State failed to establish the essential elements of the offense of theft beyond a reasonable doubt and there is not sufficient evidence in this record to sustain the adjudication of defendant as a delinquent. Therefore, I would reverse the trial court’s adjudication.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      . Defendant raised four assignments of error in his appeal. From my review of the record in considering those four assignments of error, the lack of sufficient evidence to support this adjudication became clear from the record itself.

      . The State charged J.D. with one count of felony theft of things valued at greater than or equal to $1000. The trial court's judgment of adjudication does not specify the grade of theft, but the record of the adjudication proceedings reflects that the trial court found him guilty of a misdemeanor grade of theft. Regardless of the grade of the offense, the definition and elements of the offense remain the same.

      . Defense counsel objected contemporaneously to Deputy West’s testimony on the identification by the victim "on hearsay grounds and on confrontation clause grounds;” but the trial court overruled the objection and admitted the testimony. Defendant does not assign error to the trial court's ruling on this testimony; notably however, I find clear error in the trial court’s admission of Deputy West’s testimony regarding the victim's identification of the defendant. His testimony contained the statements of a non-testifying witness and offered them to prove the truth of the matter asserted; such testimony is hearsay. La. C.E. art. 801(C).
      Subject to specific exceptions, the content of a witness statement may not be testified to at trial by a law enforcement officer because such testimony violates the accused's right to confront and cross-examine the witnesses against him. State v. Hawkins, 96-0766, p. 4 (La. 1/14/97), 688 So.2d 473, 477; State v. Hearold, 603 So.2d 731 (La.1992). In Davis v. Washington, the United States Supreme Court clarified when police interrogation produces testimonial hearsay in violation of the Confrontation Clause of the Sixth Amendment.
      When we said in Crawford, supra, at 53, 124 S.Ct. 1354, that ‘interrogations by law enforcement fall squarely within [the] class' of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial.

        Davis, 547 U.S. 813, 826, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (citing Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)).
      In this case, Deputy West testified that he did not witness a crime either personally or on the video; he also did not have any personal knowledge of the identity of the person in the video who picked up a bag and walked away with it. Deputy West testified to the contents of the non-testifying witness’s statement and identification. Such testimony constitutes hearsay and does not fall within the exceptions under La. C.É. art. 802.
      The erroneous admission of testimonial hearsay is subject to the harmless error analysis. Hawkins, 96-0766, p. 5, 688 So.2d at 478.
      "An error is harmless if the verdict rendered was surely unattributable to the error.” Id. Due to the lack of any corroborating evidence to identify the defendant, I note that this testimony identifying defendant as the person in the video picking up the bag surely contributed to the verdict and constitutes prejudicial, reversible error.

      . When questioned on cross-examination about the existence of a police report of this incident, Deputy West testified that he had reviewed the police report before testifying and he acknowledged that the report does not reference any statements or confession given by defendant. The State did not offer or introduce the police report or any statements or confession of the defendant.


source: Caselaw Access Project

author: COOKS, Judge. AMY, J.,

license: Public Domain

text:
    Mildred DELOACH v. FARA INSURANCE SERVICES, et al.
    No. 14-408.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.
    Amy, J., concurred and assigned reasons.
    Conery, J., concurred in the result.

      W. Jay Luneau, Graham M. Brian, Lu-neau Law Office, Alexandria, LA, for Plaintiff/Appellant, Mildred Deloach.
    James D. “Buddy” Caldwell, Attorney General, Leanne L. Bridges, Assistant Attorney General, Alexandria, LA, for Defendant/Appellee, State of Louisiana through FARA Insurance Services.
    Court composed of SYLVIA R. COOKS, MARC T. AMY and JOHN E. CONERY, Judges.
   COOKS, Judge.

| ¿FACTS AND PROCEDURAL HISTORY

Claimant, Mildred Deloach, sustained a work-related head injury on October 6, 2009, while employed at the LSU Agricultural Center. FARA Insurance Services, the third party administrator of Claimant’s workers’ compensation claim, accepted her claim as compensable and she was approved for her choice of physician, Dr. Arsham Naalbandian, a neurologist.

Claimant treated with Dr. Naalbandian from November, 2009 through November 22, 2010, complaining of primarily of headaches and problems with her vision. In his report issued on November 22, 2010, Dr. Naalbandian opined that Claimant “neurologieally has done well” and there “has been no recurrence of headaches.” There was still a complaint of blurred vision and “some visual loss” to the left side. Dr. Naalbandian concluded that Claimant’s “[pjossible history of post-traumatic headaches ... seem to have resolved.” As to her complaints of visual loss, Dr. Naalban-dian noted she was being treated by “Dr. Lyons who is her primary ophthalmologist in Shreveport regarding her history of ocular histoplasmosis and hopefully will have his updated reports.” Dr. Naalbandi-an scheduled Claimant “for re-evaluation and followup within the next two or three months.”

Following the November 22, 2010 visit, Claimant did not return to see Dr. Naal-bandian again until March of 2013. Dr. Naalbandian requested an Electroencephalogram (EEG), a Brain Stem Auditory Evoked Response test and Visual Evoked Response test be performed on Claimant, which came back normal. Claimant notes, despite the two and one-half year gap between visits with Dr. Naalbandian, FARA approved the continued visits and tests recommended by Dr. Naalbandian.

|3On October 14, 2013, Claimant requested an evaluation with Dr. Gerald Leglue, a physiatrist. On November 19, 2013, Claimant filed a Form 1008 disputed claim, requesting to see Dr. Leglue and asserting entitlement to penalties and attorney fees. On December 3, 2013, Claimant filed a Motion for Expedited Hearing pursuant to La.R.S. 23:1121, which was set for December 16, 2013.

On December 8, 2013, FARA issued to Dr. Naalbandian a questionnaire concerning Claimant’s current medical status in relation to her work accident of October 6, 2009. FARA noted in the correspondence to Dr. Naalbandian that his November 22, 2010 report opined that Claimant’s post-traumatic headaches appeared to have resolved and that the March 27, 2013 diagnostic studies all appeared to be normal. The following day, December 9, 2013, FARA issued a 1002 Notice of Controversion stating Claimant’s rights to medical benefits are disputed and have been denied because causation of the current medical complaints as related to the compensa-ble injury was being disputed. It also stated that further medical treatment was being controverted pending .a response from Dr. Naalbandian regarding causation.

On December 16, 2013, the workers’ compensation judge (WCJ) heard the motion for expedited hearing seeking care from Dr. Leglue. In his oral reasons for judgment, the WCJ ruled as follows:

At this time, the Court will deny the expedited motion to see Dr. Leglue. The basis the Court denies it is because I have no evidence of anything that Mr. Brian has argued to the Court with respect to Ms. Deloach. She’s presented no documentary evidence to support these arguments. She hasn’t testified today in support of the argument. Simply put, there’s no evidence to support her claim to see a physiatrist for a head injury and headaches associated with that injury.

This appeal followed, wherein Claimant asserts the WCJ committed legal error by placing the burden of proof on Claimant, when the burden should have rested with FARA to show the treatment requested by Claimant was not medically necessary.

J4_ANALYSIS

Louisiana Revised Statutes 23:1121(B)(1), which concerns an employee’s right to select a physician, states:

B. (1) The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8), when denied his right to an initial physician of choice.... The workers’ compensation judge shall order the employer or payor to authorize the claimant’s choice of physician unless the employer or payor can show good cause for his refusal. After his initial choice the employee shall obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

(Emphasis added.)

Thus, the statute provides an injured employee has an absolute right to select one physician in any field without the approval of the employer. Smith v. Southern Holding Inc., 02-1071 (La.01/28/03), 839 So.2d 5. The selection of a new physician in a different specialty does not require approval. Thompson v. The Animal Hosp., 39,154 (La.App. 2 Cir.12/15/04), 889 So.2d 1193, citing Davis v. Sheraton Operating Corp., 97-2784 (La. App. 4 Cir. 5/20/98), 713 So.2d 814.

However, La.R.S. 23:1201(F)(2) also provides that “[t]his subsection shall not apply if the claim is reasonably eontro-verted[.]” Where a claim has been reasonably controverted, the imposition of penalties and attorney fees under La.R.S. 28:1201 is precluded. Nelson v. Windmill Nursery of La., L.L.C., 04-1941 (La.App. 1 Cir. 9/23/05), 923 So.2d 709, writ denied, 05-2294 (La.3/10/06), 925 So.2d 516. The law is clear that to determine if a claim has been reasonably controverted, “a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890.

|5We find the WCJ applied the wrong legal standard in this case. Claimant was given the burden to produce evidence to support her claim to see Dr. Leglue. The burden of proof should have rested with FARA to'reasonably controvert Claimant’s request to see Dr. Leglue. Ewing v. Hilburn, 11-1243 (La.App. 3 Cir. 3/7/12), 88 So.3d 640.

However, we find FARA put forth evidence and testimony to reasonably controvert Claimant’s continued need for any medical treatment. The evidence showed Claimant had been approved and was treated by Dr. Naalbandian, her choice of physician, since 2009. After Dr. Naalban-dian’s report of November 22, 2010, declaring that Claimant’s post-traumatic headaches from the work accident appeared to have resolved, there was a two and one-half year gap in treatment before she saw Dr. Naalbandian again in March of 2013. FARA approved her continuing treatment with Dr. Naalbandian, as well as a recommended Electroencephalogram (EEG), a Brain Stem Auditory Evoked Response test and Visual Evoked Response test. All these tests came back normal. It was not until FARA received a request to see Dr. Leglue that it conducted an investigation which revealed Dr. Naalbandian believed her post-traumatic headaches were resolved back in November of 2010 and the March 2013 tests were normal. FARA then filed the appropriate 1002 Notice controverting the claim for medical benefits. Claimant submitted no evidence or testimony to rebut FARA’s submissions supporting its position that the requested medical treatment was not medically necessary.

The WCJ denied the request to see Dr. Leglue, finding there was nothing in the record to support additional medical treatment pending the follow-up report from Dr. Naalbandian, who was the Claimant’s treating physician. The record | (¡supports this finding, and the judgment appealed from is affirmed. All costs of this appeal are assessed to Claimant-Appellant, Mildred Deloach.

AFFIRMED.

AMY, J., concurs and assigns reasons.

CONERY, J., concurs in the result.

AMY, J.,

concurring.

Ill agree with the majority that an affirmation is warranted in this case and with the majority’s conclusion that the trial court inappropriately shifted the burden of proof to the claimant, thus warranting a de novo review. See Tulane Univ. Hosp. & Clinic v. Lockheed Martin Corp., 11-179 (La.App. 4 Cir. 6/29/11), 70 So.3d 988. However, I write separately in light of my view of the interplay between La.R.S. 23:1121 and La.R.S. 23:1201(F).

Ms. Deloach’s disputed claim for compensation requested a determination regarding FARA’s denial of her choice of physician as well as penalties and attorney fees. La.R.S. 23:1121(B)(1) requires “good cause” on the part of the employer in refusing the claimant’s choice of physician, and this court has noted that La.R.S. 23:1121(B) “must be read in conjunction with La.R.S. 23:1203(A), which requires that treatment be medically necessary in order for the employer to be responsible for the expenses.” Krogh v. Tri-State Refrigeration, 11-697, p. 2 (La.App. 3 Cir. 11/2/11), 79 So.3d 445, 447. Violations of La.R.S. 23:1121 can subject the employer or insurer to penalties and attorney fees pursuant to La.R.S. 23:1201. La.R.S. 23:1201(F). However, an employer or insurer will not be liable for penalties and attorney fees if the claim is reasonably controverted. La.R.S. 23:1201(F)(2).

Un my view, FARA provided sufficient evidence to prove that it had “good cause” for denying Ms. Deloach’s request to see the physiatrist, Dr. Leglue. As detailed by the majority, Dr. Naalbandian commented in 2010 that Ms. Deloach’s work-injury-related headaches appeared to have resolved. Thereafter, there was a significant gap in Ms. Deloach’s treatment and, when Ms. Deloach returned, several medical tests showed normal results. Ms. De-loach failed to rebut this evidence. Accordingly, I conclude that FARA showed that the request was not medically necessary and met its burden of proof to show that it had good cause for denying Ms. Deloach’s request. Having determined that no violation of La.R.S. 23:1121(B) exists, it is unnecessary to address whether or not the claim was reasonably controverted.

For these reasons, I concur in the majority opinion.


author: CONERY, Judge. COOKS, J.,

text:
    Gannon BERTRAND v. G-FORCE TRANSPORTATION, LLC.
    No. 14-423.
    Court of Appeal of .Louisiana, Third Circuit.
    Dec. 10, 2014.
    Michael B. Miller, Jacqueline B. Ma-necke, Attorneys at Law, Crowley, LA, for Plaintiff/Appellant, Gannon Bertrand.

      Kirk L. Landry, Keogh, Cox & Wilson, LTD., Baton Rouge, LA, for Defendant/Appellee, G-Force Transportation, LLC.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN E. CONERY, Judges.
   CONERY, Judge.

11 This case involves a workers’ compensation claim in which claimant, Gannon Bertrand (Mr. Bertrand), was injured in the course and scope of his employment with G-Force Transportation (G-Force). G-Force, through its workers’ compensation self-insurance fund, paid Mr. Bertrand both medical and indemnity benefits. Mr. Bertrand filed an appeal of a judgment by the Workers’ Compensation Judge (WCJ) upholding G-Force’s suspension of his weekly benefits until he submitted to a psychological evaluation in order to obtain clearance for a surgical procedure recommended by his physician.

G-Force raised the issue of the procedural posture of Mr. Bertrand’s appeal on the basis that the WCJ’s February 17, 2014 judgment was not a final judgment subject to appeal. We agree that the judgment that is the subject of this appeal is not final, but interlocutory in nature. Accordingly, we dismiss the appeal filed on behalf of Mr. Bertrand. We further decline to exercise our supervisory jurisdiction granted to this court under La. Const, art. 5, § 10(A) to convert the appeal to an application for supervisory writs.

FACTS AND PROCEDURAL HISTORY

The WCJ held an expedited hearing on December 6, 2013, to address two separate issues relating to the suspension/termination of Mr. Bertrand’s benefits. G-Force claimed that Mr. Bertrand failed to submit to two medical examinations, whereupon G-Force suspended payment of benefits pursuant to La.R.S. 23:1201.1(K)(8)(d). G-Force gave notice to the Office of Workers’ Compensation |2of the two separate incidents leading to the suspension/termination of Mr. Bertrand’s benefits. The first issue involved an appointment for a second medical opinion with Dr. Gregory Gidman, which is not at issue here. The only remaining issue remaining before us involved Mr. Bertrand’s refusal to attend a psychological evaluation with Dr. Darren Strother, scheduled by G-Force pursuant to La.Admin.Code tit. 40, pt. I § 2011(A), which provides in pertinent part:

A. All operative interventions should be based on a positive correlation with clinical findings, the natural history of the disease, the clinical course, and diagnostic tests. A comprehensive assimilation of these factors should have led to a specific diagnosis with positive identification of the pathologic condition(s). It is imperative for the clinician to rule out non-physiologic modifiers of pain presentation, or | .¡non-operative conditions mimicking radiculopathy or instability (peripheral compression neuropathy, chronic soft tissue injuries, and psychological conditions).

(Emphasis added.)

Mr. Bertrand’s treating orthopedic surgeon, Dr. John Sledge, made a surgical recommendation. Pursuant to the procedures required as part of the pre-surgieal decision making process, Dr. Sledge recommended that a psychological evaluation of Mr. Bertrand be conducted prior to the performance of elective surgery in accordance with the requirements of La.Admin.Code tit. 40, pt. I § 2011(A).

Based on Dr. Sledge’s pre-surgical recommendation, G-Force scheduled a psychological evaluation for Mr. Bertrand with Dr. Darren Strother on October 14, 2014. Mr. Bertrand was given notice of the scheduled appointment through his counsel of record. In response to the notice of the appointment with Dr. Strother, counsel for Mr. Bertrand timely informed counsel for G-Force that the appointment should be canceled, and stated, “Mr. Bertrand did not select Dr. Darren Strother and would like to see Dr. Sandra Fried-berg who can be contacted at (337) 232-7236 for clearance for surgery. Please have your adjuster contact Dr. Friedberg’s office to give the necessary approval for this evaluation.”

Mr. Bertrand did not attend the October 14, 2013 appointment with Dr. Strother. Thus, on October 17, 2013, G-Force filed a “NOTICE OF PAYMENT, MODIFICATION, SUSPENSION, TERMINATION OR CONTROVERSION OF COMPENSATION OR MEDICAL BENEFITS” (Notice) with the Office of Workers’ Compensation. In the Notice, G-Force stated that Mr. Bertrand’s “Compensation and/or Medical Benefits” had been terminated on the basis that “Mr. Bertrand [refused] per surgery psychological evaluation— 10/14/13.”

l40n October 21, 2013, Mr. Bertrand filed with the Office of Workers’ Compensation his “NOTICE OF DISAGREEMENT,” which stated, “Mr. Bertrand is entitled to pre surgery psychological evaluation with his choice of psychologist, Dr. Friedberg. Mr. Bertrand has never refused a psychological evaluation.”

G-Force claimed that La.R.S. 23:1121 (A) provided statutory authority for its right to choose the medical practitioner that would conduct the psychological or psychiatric examination for surgical clearance mandated by the Administrative regulation. Louisiana Revised Statute 23:1121(A) provides:

An injured employee shall submit himself to an examination by a duly qualified medical practitioner provided and paid for by the employer, as soon after the accident as demanded, and from time to time thereafter as often as may be reasonably necessary at reasonable hours and places, during the pendency of his claim for compensation or during the receipt by him of payments under this chapter.

Mr. Bertrand urged the application of La.R.S. 28:1121(B)(1), which states in pertinent part, “The employee shall have the right to select one treating physician in any field or specialty.” However, the WCJ based its decision on the only issue before the WCJ, whether Mr. Bertrand had shown good cause for refusing to submit to the psychological evaluation mandated by the regulations. The WCJ’s oral reasons state, in pertinent part:

I’m following you, Mr. Miller.

I’m going to start by referring to 1201.KK) 8(d) and its requirement that good cause be shown. If we were here simply on a motion to compel evaluation on behalf of either party, it would be a different type of discussion and potentially different ruling. But good cause has to be shown for the refusal, and there is nothing in the statute that I am aware of in the jurisprudence under these particular facts that indicate that the employee has to see his choice first.
I am reminded of the arguments that I get in motions to compel discovery sometimes. I’m not answering until he answers mine. Or, I’m not providing my client for deposition until I get my responses for | ^discovery. It’s all well and good to try and lay out something that makes sense and that makes things flow easily, but there’s really no law saying who goes first.
What is a little bit different about this also, is under the “new medical guidelines,” a psychosocial evaluation is required prior to surgery. There have been denials for surgery because of the failure to get the psychosocial evaluation. So, this isn’t a determination. This being a psychological evaluation, it’s not a determination based on necessity of psychological treatment. It is directed by the guidelines’ requirement of psychological clearance. So, it’s not the normal procedure where the employee sees his doctor, that doctor makes recommendations as to medical necessity, and then the employer gets a second opinion on those recommendations of necessity.
This is something that is set up in the guidelines that says this needs to be done before surgery is cleared. So, it’s not dictated by questions of necessity. It’s required. And for that reason, I think it makes it a little different in that I don’t need the employee’s doctor to establish necessity. A psychosocial evaluation is needed, and under the basic statute or the old statute that’s been in place for a long time, both parties get their choice. So, it doesn’t matter who goes first. And because I am looking at a determination of good cause, I cannot say—

(Emphasis added.)

At this juncture, counsel for Mr. Bertrand attempts to speak and the WCJ requests that he refrain from speaking until the court’s oral reasons are completed. The WCJ continues:

Because I’m looking at whether or not good cause has been established, my approach is different. And I cannot state that good cause has been shown for the failure to comply with the employer’s request for an evaluation with Dr. Strother. Therefore, I do not order the lifting of any suspension for the failure to see Dr. Strother. Any suspension or reduction based on that failure shall continue until the employee complies with the request per 1201.1 (K) (8) (d).
Yes, sir. Now you may speak.

(Emphasis added.)

Counsel for Mr. Bertrand continued to argue to the WCJ that G-Force had denied his client his right to be examined first by a physician of his choosing | (¡pursuant to La.R.S. 23:1121(B)(1). However, the WCJ clearly distinguished the situation involving a second medical opinion, wherein G-Force would have been required to show medical necessity for the opportunity to have the claimant submit to an examination by a second physician, from this case, involving a pre-surgieal clearance mandated by the Office of Workers’ Compensation regulation.

Instead, the WCJ correctly found that the only issue before the court was the suspension of benefits by G-Force for Mr. Bertrand’s failure to keep his appointment with Dr. Strother and the requirement that Mr. Bertrand “show good cause for his refusal,” pursuant to La.R.S. 28:1201.1(K)(8)(d). The WCJ further found that in the case of a regulation mandating a psychological/psychiatric examination for surgical clearance, there was no statutory right for Mr. Bertrand to see his choice of physician first. The WCJ applied the statute and regulation as written and ruled that Mr. Bertrand had not shown good cause for his refusal to attend the scheduled appointment with Dr. Strother. A Judgment reflecting the WCJ’s ruling was signed on February 17, 2014.

JURISDICTION

Mr. Bertrand filed a timely appeal of the WCJ’s February 17, 2014 judgment denying the lifting of the suspension/termination of benefits for Mr. Bertrand’s refusal to see Dr. Strother for a psychological evaluation.

After a review of the transcript of the hearing on December 5, 2013, it is clear that the February 17, 2014 judgment is not a final judgment, contrary to the 17assertion by Mr. Bertrand in his original briefing to this court that our jurisdiction was subject to La.Code Civ. P. art. 2083.

Louisiana Code of Civil Procedure Article 2083(A) provides, in pertinent part, “[a] final judgment is appealable in all causes in which appeals are given by law.” Further La.Code Civ.P. art. 2083(C) provides, “An interlocutory judgment is appealable only when expressly provided by law.” Louisiana Code of Civil Procedure Article 1841 provides that:

A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.

The record of the hearing on December 6, 2018 and the WCJ’s discussions with counsel reflect that the two issues determined at that hearing were not final judgments on the merits of the case.' Further, as previously stated, that portion of the February 17, 2018 judgment that was rendered against G-Force, involving the appointment with Dr. Gidman, is not before this court.

As we have determined that the ruling at issue is not a final judgment, we dismiss the appeal. We further deny the claimant’s request that this court exercise its supervisory jurisdiction under La. Const, art. 5, § 10(A) and convert the appeal to an application for supervisory writs.

In brief and at oral argument, counsel for G-Force informed this court that, in fact Mr. Bertrand subsequently did attend the appointment with Dr. Strother and that his benefits had been reinstated. Counsel for Mr. Bertrand admitted same at oral argument. Such an occurrence would suggest that the claimant’s arguments [¿may have been rendered moot. See Baxter v. Scott, 03-2013, p. 1 (La.11/14/03), 860 So.2d 535, 536 (wherein the supreme court instructed that “It is well settled that courts should not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies.”) However, because these statements were made in brief and at oral argument, there is nothing in the record before us to definitively rule as such. Accordingly, we decline to exercise our supervisory jurisdiction. Such a procedure permits the parties to present any remaining issues upon a more fully developed evidentiary record if warranted.

CONCLUSION

For the foregoing reasons, we dismiss the appeal filed on behalf of Gannon Bertrand and decline to exercise our supervisory jurisdiction and convert the appeal to an application for supervisory writs. All costs of this appeal are assessed against Gannon Bertrand.

APPEAL DISMISSED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissenting.

|,I respectfully dissent from the majority opinion. I disagree that the termination of Claimant’s benefits for the failure to see Dr. Strother was not an appealable issue. In this case, Claimant’s weekly compensation benefits were terminated by G-Force for the sole reason that Claimant did not appear for an examination with Dr.. Strother. In response, Claimant filed a motion to terminate G-Force’s termination of benefits. That motion was denied, which allowed G-Force to continue not paying benefits to Claimant. I agree with Claimant that this is essentially a money judgment against him, and a properly appealable judgment. Moreover, it is important to note that workers’ compensation judgments are treated differently from ordinary judgments. WCJ’s maintain continuing jurisdiction over cases before them, allowing cases to be reopened and an award amended even after a judgment becomes final. Falgout v. Dealers Truck Equip. Co., 98-3150 (La.10/19/99), 748 So.2d 399. Thus, if the rules of finality that govern ordinary civil judgments are applied to workers’ compensation judgments, the flexibility of the workers’ compensation scheme of recovery would be greatly restricted. Falgout, 748 So.2d 399; Critser v. Dillard’s Dep’t Stores, Inc., 99-3113 (La.App. 1 Cir. 2/16/01), 791 So.2d 702, writ denied, 01-753 (La.5/4/01), 791 So.2d 659. Thus, I find the appeal in this case is proper. Even if the ruling is deemed interlocutory, the remedial underpinnings of the Workers’ Compensation Act demands that we 1 ¡.exercise our supervisory jurisdiction to prevent procedural delays in fixing benefits and resolving entitlement disputes.

I also find there was a legitimate dispute (regardless of how it may eventually be decided) as to who had the right to choose the psychological evaluation examiner. This dispute should have been decided by the WCJ, before any decision to terminate benefits was made. Simply put, G-Force did not have the right to terminate benefits prior to the WCJ’s ruling on the issue of which party could select the doctor who would conduct the initial psychological evaluation. Thus, the termination of benefits by G-Force was premature and I would reverse the denial of Claimant’s Motion to Lift the Suspension of Benefits and order all back benefits paid, as well as assess penalties and attorney fees for the improper termination of benefits by G-Force. For these reasons, I dissent.

      . The pertinent portions of La.R.S. 23:1201.1(K) state:
      K. (1) The employer or payor shall, within ten calendar days of the mailing of the determination from the workers’ compensation judge, do either of the following:
      8)(a) Upon motion of either party, whether or not the employer or payor is entitled to a preliminary determination, the workers' compensation judge’s ruling in a hearing shall be conducted as an expedited summary proceeding and shall be considered an order of the court and not requiring a further trial on the merits, if it concerns any of the following matters:
      (vii) The employee seeks to have a suspension of benefits for failure to submit to a medical examination lifted.
      (d) If the employee seeking relief pursuant to this Paragraph can show good cause for his refusal, the workers’ compensation judge shall order the suspension or reduction in benefits lifted and the payment of any arrearage due. If the employee fails to show good cause for refusal, the workers’ compensation judge shall order the suspension or reduction in benefits to continue until the employee complies.

      . G-Force terminated Mr. Bertrand's benefits, based on his failure to undergo an examination with Dr. Gidman, classified as a second medical opinion. The WCJ found in favor of Mr. Bertrand on this issue and ordered G-Force to "lift the suspension and termination of benefits as to the second medical opinion with Dr. Gregory Gidman.” G-Force timely filed a supervisory writ with this court, which was docketed as WCW 14-105. Mr. Bertrand responded to the G-Force writ but did not object to G-Force seeking a supervisory writ. On May 8, 2014, a panel of this court denied the G-Force writ and granted Bertrand’s request for attorney fees for the filing of the writ. This court found that G-Force’s writ application was frivolous and ordered G-Force to pay attorney fees in the amount of $2,500.00 to Mr. Bertrand’s counsel. G-Force then sought a timely supervisory writ with our supreme court under docket number LASC 2014-1198, which was recently denied on September 19, 2014. That portion of the WCJ’s judgment, including any prayer for penalties and attorney fees by Mr. Bertrand, is now final and not before us.

      . If the employee seeking relief pursuant to this Paragraph can show good cause for his refusal, the workers’ compensation judge shall order the suspension or reduction in benefits lifted and the payment of any arrear-age due. If the employee fails to show good cause for refusal, the workers' compensation judge shall order the suspension or reduction in benefits to continue until the employee complies. (Emphasis added.)