author: SANDRA CABRINA JENKINS, Judge.

text:
    STATE of Louisiana v. John TUCKER.
    No. 2012-KA-1668.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 30, 2013.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Scott G. Vincent, Assistant District Attorney Of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellee.
    Court composed of Judge DANIEL L. DYSART, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS.
   SANDRA CABRINA JENKINS, Judge.

hThe State appeals the trial court’s judgment granting defendant’s motion to quash the bill of information. After a review of the record, we find the State failed to commence trial within the two year time limitation required by La C.Cr.P. art. 578. The State also failed to show that the two year time limitation was suspended or interrupted in accordance with La.C.Cr.P. arts. 579 and 580. We therefore find no abuse of discretion in the trial court’s ruling granting defendant’s motion to quash. The trial court’s judgment of July 23, 2012 is affirmed.

RELEVANT FACTS AND PROCEDURAL HISTORY

On June 21, 2010, the State filed a bill of information charging defendant with violation of La. R.S. 40:966(A)(1), possession of heroin. Arraignment was scheduled for July 13, 2010 in Section B of the Orleans Parish Criminal District Court. The court was closed on July 13, 2010, and defendant’s arraignment was rescheduled for July 28, 2010. On that date, defendant appeared for arraignment, the trial court appointed counsel to represent defendant, and defendant entered a plea of not guilty. The trial court set a motions hearing date of September 2, 2010, Land ordered defendant be placed on the jail list. Defendant was returned to the Orleans Parish Prison.

On September 2, 2010, the trial court was closed and defendant’s motions hearing was reset to September 30, 2010. The trial court minutes reflect that notices were to be sent and that defendant should be placed on the jail list for the September 30, 2010 court date. The record does not reflect that notice was sent to defendant, either at the prison or to defendant’s address on file.

Defendant was released from Orleans Parish Prison on the municipal charge on September 14, 2010. On September 30, 2010, defendant was not present in court and motions were reset to October 1, 2010. When defendant did not appear in court for the motions hearing on October 1, 2010, the trial court issued an alias capias for his arrest, and the motions hearing was continued without date.

On June 13, 2012, defendant appeared in court following his arrest under the outstanding alias capias in this matter. The trial court set the matter for a hearing to determine counsel on June 15, 2012, and ordered defendant be placed on the jail list. On June 15, 2012, defendant appeared without counsel. The hearing to determine counsel was reset until June 28, 2012.

On June 28, 2012, the defendant appeared before the court without counsel. The trial court set a bond in the amount of $25,000, recalled the alias capias, and appointed Orleans Parish Defender counsel to represent defendant. On this same date, defense counsel filed motions to suppress evidence, statements, and identification, and for discovery and inspection. A preliminary hearing was set for August 6, 2012, and trial was set for September 6, 2012.

|3On July 16, 2012, defendant filed a motion to quash, arguing violation of his right to speedy trial pursuant to La. C. Cr. P. article 578. The trial court held a contradictory hearing on defendant’s motion to quash on July 23, 2012. At that hearing, the trial court reviewed the court minutes and files, and determined that the two year time limitation for commencing trial had expired. The trial court found that the State did not show that defendant was served or had received actual notice of any court dates set on or after September 2, 2010, and, therefore, the State did not carry its burden to show that the two year time limitation had been interrupted, in accordance with La.C.Cr.P. art. 579. Finding that the time limitation had expired without interruption, the trial court granted defendant’s motion to quash the bill of information, and ordered defendant be released from custody.

It is from this ruling the State now appeals.

ASSIGNMENT OF ERROR

The State asserts that the trial court erred in finding that the two year time limitation for commencing trial had expired and in granting defendant’s motion to quash.

STANDARD OF REVIEW

The trial court’s ruling on a motion to quash should not be reversed in the absence of a clear abuse of discretion. State v. Sorden, 2009-1416, p. 3 (La.App. 4 Cir. 8/4/10), 45 So.3d 181, 183; State v. Love, 2000-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206.

\ ¿DISCUSSION

The State asserts that the two year time limitation to bring defendant to trial had not expired at the time defendant filed the motion to quash. The State argues that the time limitation was interrupted, pursuant to La.C.Cr.P. art. 579, because the defendant failed to appear on September 30, 2010 and October 1, 2010. The State contends that the running of the time limitation to commence trial was interrupted until the defendant returned to court. In addition, the State asserts that defense counsel filed preliminary motions that suspended the two year time limitation pursuant to La.C.Cr.P. art. 580. For the following reasons, we find no merit to the State’s arguments, and find that the trial court did not abuse its discretion in granting defendant’s motion to quash.

Louisiana’s relevant criminal procedure statute provides that no felony trial, other than for a capital offense, may be commenced after two years from the date of institution of the prosecution. La.C.Cr. P. art. 578(A)(2). Upon expiration of the time period, the court shall, upon motion of the defendant prior to trial, dismiss the indictment. La.C.Cr.P. art. 581. The two year time limitation should be given effect and mandate dismissal, “unless the state carries its burden of showing valid grounds to support an interruption or sufficient suspension of these time periods.” State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1286. “The purpose of the statute’s mandating dismissal, when legislative time limits have elapsed, is to enforce the accused’s right to a speedy trial and to prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time.” Id.

| jjWhen a defendant brings an apparent meritorious motion to quash based on the prescription, the State then bears a heavy burden to demonstrate that the time period was interrupted or suspended. State v. Joseph, 2012-1176, p. 3 (La.App. 4 Cir. 3/20/13), 112 So.3d 363, 365. The time limitation provided for in La.C.Cr. P. art. 578 shall be interrupted if any one of the following occurs:

(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.

La.C.Cr.P. art. 579(A).

If the time period for the commencement of trial is interrupted, as provided by La. C.Cr. P. art. 579(A), then the time period begins to run anew from the date the cause of the interruption no longer exists. La.C.Cr.P. art. 579(B).

In this case, the State argues that the two year time limitation was interrupted when defendant failed to appear in court on September 30, 2010 and October 1, 2010. At the hearing on the motion to quash, the State asserted that a court error beyond the control of the State prevented the State from securing defendant’s presence in court on September 30 or October 1. The State argued that the closure of court on September 2, 2010 prevented the State, through no fault of its own, from proceeding in the case or notifying defendant of the next court date. The State argued, however, that defendant had actual knowledge that the State had initiated proceedings against him, and, even if he was not aware that his court date was reset for September 30, 2010, defendant should have appeared before the court after his release from OPP on the municipal charge to face his felony charges. The |fiState further contends that the interruption lasted until defendant was arrested on the alias capias on May 27, 2012.

The trial court ruled that the State failed to carry its burden of showing that the two year time limitation was interrupted in accordance with La.C.Cr.P. 579(A). We find no error in the trial court’s ruling.

As the trial court stated at the motion hearing, the State bore the responsibility to ensure that defendant was served with actual notice of the court dates. See La.C.Cr.P. art. 579(A)(3). “To satisfy its burden in establishing that an interruption of the prescriptive period has occurred, the State must exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him.” State v. Andres, 2011-1341, p. 4 (La.App. 4 Cir. 9/19/12), 100 So.3d 953, 956. The trial court stated that when defendant did not appear on September 30, 2010, the State could have checked the jail list to discover that defendant was no longer in jail and moved to have defendant served at the address listed on his bond. The trial court noted that the State returned to court on October 1, 2010, and moved for an alias capias to be issued before it attempted to serve notice to defendant.

The State failed to present any evidence that defendant’s presence could not be obtained by legal process or that defendant received actual notice to appear m court, The State did not show that any interruption, in accordance with La.C.Cr.P. art. 579, occurred. Therefore, we find no merit to the State’s argument that the two Uyear time limitation was interrupted and had not expired when defendant filed the motion to quash.

The State also asserts that the two year time limitation was suspended pursuant to La.C.Cr.P. art. 580. The State argues that defendant filed a preliminary plea consistent with La.C.Cr. P. art. 580, thereby adding an additional year, from the date the court rules on such plea, to the time period for the State to bring the matter to trial. We find no merit in the State’s argument.

A suspension of the time limitation set by La.C.Cr.P. art. 578 can occur in two instances. La.C.Cr. P. art. 580 provides:

A. When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.
B. The periods of limitation established by Article 578 shall also be suspended if the court grants a continuance in accordance with the provisions of Paragraph B of Article 709.

Our review of the record reveals there was no action taken by defendant or the trial court suspending the two year time limitation in accordance with La.C.Cr.P. art. 580. Defendant did not file any preliminary pleadings until June 28, 2012, seven days after the time period to commence trial had expired. On July 16, 2012, defendant filed the motion to quash the bill of information. The State has failed to establish that a suspension occurred between June 21, 2010 and June 21, 2012 that would trigger the suspensive period allowed by Article 580. We find no merit to this argument from the State.

|8La.C.Cr. P. art. 578(A)(2) provides that trial in felony matters shall commence within two years from the date of the institution of prosecution. Prosecution was instituted in this matter on June 21, 2010. The State had until June 21, 2012 in which to bring the defendant to trial. The State has not shown that this prescriptive period was interrupted or suspended. By July 16, 2012, when defendant filed his motion to quash, the State had not brought defendant to trial. We find no error in the trial court’s ruling that the two year time period to commence trial had expired, thereby mandating dismissal of the bill of information against defendant.

CONCLUSION

We find the trial court did not abuse its discretion in granting defendant’s motion to quash. The trial court’s judgment of July 23, 2012 is affirmed.

AFFIRMED

      . Defendant was being held in the Orleans Parish Prison at that time on an unrelated municipal charge.

      . The defendant was again placed on the jail list for the June 28, 2012 date.

      . The trial court also found that the alias capias for defendant had been issued in error on October 1, 2010, because there was no record that defendant had received actual notice of the court dates on September 30 or October 1, 2010.

      . At all times, the defendant’s home and work addresses were available to the state in the court record. The record reflects that on April 7, 2010, a change of address form was filed in the record. The old address of 505 Andry Street, New Orleans, Louisiana was corrected; the new address entered by the appellee was 1039 S. Clark Street, New Orleans, Louisiana. There is even evidence in the record that the State updated his address change on the bond in the record.

      . The trial court appointed counsel for defendant on that date and counsel filed an omnibus motion.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jammicka GREENE.
    No. 12-649.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Annette C. Roach, Louisiana Appellate Project, Lake Charles, Louisiana, for Defendant/Appellant, Jammicka Greene.
    Michael Harson, District Attorney — Fifteenth Judicial District, Ted L. Ayo, Assistant District Attorney, Abbeville, Louisiana, for Appellee, State of Louisiana.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

fin this criminal case, Defendant, Jam-micka Greene, appeals her aggravated battery conviction and sentence, alleging insufficiency of the evidence, erroneous jury instructions, excessive sentence, and ineffective assistance of counsel. For the following reasons, we affirm Defendant’s conviction, vacate her sentence, and remand the matter to the trial court for resentenc-ing.

FACTS AND PROCEDURAL HISTORY

On March 5, 2005, Defendant was involved in a personal dispute with the victim, Sharell Charles. They argued in a parking lot near the victim’s apartment in Abbeville, Louisiana, but a mutual acquaintance, Chasity Petry, intervened and broke it. After leaving the apartment complex, the two women met up again and became embroiled in a physical altercation at a nearby intersection. During this altercation, Defendant cut the victim multiple times with a sharp object that was never conclusively identified, which resulted in the victim’s hospitalization for approximately one week.

On April 12, 2005, the State charged Defendant with attempted second degree murder, a violation of La.RS. 14:27 and La.R.S. 14:30.1. The case was tried before a jury on August 26, 2009, and the jury convicted Defendant of the lesser-included charge of aggravated battery. On February 8, 2010, the trial court sentenced Defendant to serve six years at hard labor. Defendant did not file a Motion to Reconsider Sentence.

In 2011, Defendant’s efforts to obtain an out-of-time appeal were rebuffed by the trial court. She sought appellate review by this court, which dismissed the matter as non-appealable. State v. Greene, 12-649 (La.App. 3 Cir. 8/22/12), 2012 WL 3584977 |2(unpublished opinion). The supreme court reversed, allowed the appeal, and remanded the matter to this court to address the merits of Defendant’s appeal. State v. Greene, 12-2027 (La.3/15/13), 109 So.3d 370.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no actionable errors patent.

ASSIGNMENTS OF ERROR

Defendant asserts the following assignments of error:

I.
The evidence introduced at the trial of this case, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 [61 L.Ed.2d 560] (1979) standard, was insufficient to prove beyond a reasonable doubt that Jammicka Greene committed either an aggravated battery[ ] or the charged offense of attempted second degree murder.
II.
The evidence introduced at the trial of this case, when viewed under the preponderance of the evidence standard, was sufficient to establish that Jammic-ka Greene acted in defense of herself and/or her unborn child.
III.
The trial court erred in both its original instructions to the jury and in its re-instructions to the jury[ ] during deliberations.
IV.
The trial court failed to sufficiently or correctly consider and weigh the factors set forth in [La.Code Crim.P.] art. 894.1, resulting in the imposition of a sentence which violates the Eighth Amendment of the Constitution of the United States and La.[Const.] Art. I, § 20, as it is nothing more than cruel and unusual punishment and, thus, excessive.
V.
Trial counsel erred by failing to object to the jury charges with regard to the burden of proof necessary for a claim of self-defense, in ^failing to object to the re-instructions to the jury[,] and in failing to file a motion to reconsider sentence, specifically setting forth: 1) the mitigating factors the court did not consider in arriving at a sentence in this case, and 2) the errors in the judge’s conclusions of the facts of the case. Appellant was prejudiced as a result of these errors as the issues were not properly preserved for appellate review. As a result, trial counsel rendered ineffective assistance of counsel.

ASSIGNMENTS OF ERROR NOS. 1 & 2:

Combining her first two assignments of error, Defendant argues that the evidence adduced against her was insufficient to support her conviction for aggravated battery, contending that her actions were justified. She claims that she was acting in self-defense and defense of her unborn child, as she was eight months pregnant at the time of the offense.

The standard for reviewing attacks on sufficiency of evidence is well settled, as this court explained years ago:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Aggravated battery is defined by La. R.S. 14:34(A) as “a battery committed with a dangerous weapon.” Battery is defined by La.R.S. 14:33 as “the intentional use of force or violence upon the person of another. ...”

14As Defendant points out, the standard for non-homicide self-defense was set forth in La.R.S. 14:19 as it existed in 2005, the year of the offense:

The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession; provided that the force or violence must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.

Defendant’s present argument is essentially the same one she made at trial. She relies upon her testimony that the victim was the aggressor and that she feared for herself and her unborn child. She also claimed that the victim was wielding a bat — an allegation she did not mention in her original statement to police. However, Defendant’s case hinges upon credibility, as the victim and another State witness testified that she was the aggressor. According to the victim and Glenda Landry, Defendant attacked the victim as the latter was exiting her ear. The victim denied using a bat, and Landry did not see one.

As noted in Kennerson, this court is not allowed to second-guess the credibility determinations made by the factfinder. In this case, the jury found the victim and Landry more credible than Defendant. We are unable to say that the jury’s assessment was unreasonable or irrational. Therefore, we find Defendant’s assignments of error numbers one and two to be without merit.

ASSIGNMENT OF ERROR NO. 3:

In her third assignment of error, Defendant argues that the trial court gave an incorrect instruction to the jury regarding self-defense and failed to mention self-defense during its re-instruction. She also claims that the trial court failed to explain to the jury the proper verdict if it found that she had acted in self-defense. IsHowever, Defendant acknowledges in her cited jurisprudence that an erroneous self-defense. instruction can be deemed harmless error.

The record indicates that tidal counsel failed to object to the trial court’s jury instructions. Defendant acknowledges same in arguing that her trial counsel was ineffective for failing to object to the court’s jury instructions. Lacking such an objection at trial, Defendant has not preserved the issue for appellate review. State v. Runnels, 12-167 (La.App. 3 Cir. 11/7/12), 101 So.3d 1046, writ denied, 13-498 (La.7/31/13), 118 So.3d 1121.

Regardless, we note that the instruction error was in Defendant’s favor, as the trial court’s instruction placed upon the State the burden of proving Defendant did not act in self-defense, even though this was a non-homicide case. In a non-homicide case, such as attempted second degree murder, which is the charge in the instant case, the defendant must carry the burden of proving self-defense by a preponderance of the evidence. State v. Anderson, 98-492 (La.App. 3 Cir. 10/28/98), 721 So.2d 1006, writ denied, 98-2976 (La.3/19/99), 739 So.2d 781; State v. Black, 09-1664 (La.App. 4 Cir. 6/17/10), 41 So.3d 1243, writ denied, 10-1678 (La.1/28/11), 56 So.3d 966. Also, the context of the trial judge’s initial instruction shows that a finding that Defendant acted in self-defense should result in a not guilty verdict wherein the trial judge stated:

And, finally, if the State has failed to prove to you beyond a reasonable doubt that the defendant is guilty of either the offense charged or a lesser offenses [sic], then your verdict must be not guilty.
Self-defense, a defendant who raises— this is where I made the error. I told you that the State always had the burden unless it’s self-defense; that the defendant had to prove self-defense. That’s wrong. I don’t know why I said it. It’s been a long week.
A defendant who raises self-defense does not have the burden of proof on that issue. The State must prove beyond a reasonable doubt that the attempted second degree murder was not committed in self-defense. So the burden always remains with the State.

| ^Regarding the trial court’s failure to re-instruct the jury on self-defense, the record does not show that the jury requested such an instruction nor that the issue was problematic for the jury. Rather, the record suggests that the jury members wanted to clarify the various possible responsive verdicts.

In a fifth circuit case mentioned by Defendant, the court stated:

We note that the charge given by the trial court is not wholly correct because it is based on the standard applicable when a homicide results. However, we believe this error to be harmless.
In State v. Cage, 583 So.2d 1125 (La.1991), cert. denied, 502 U.S. 874, 112 S.Ct. 211, 116 L.Ed.2d 170 (1991), the Louisiana Supreme Court stated that an improper jury instruction is a trial error and is subject to a harmless error analysis. We are mindful that the United States Supreme Court held that an erroneous jury instruction on reasonable doubt is not subject to harmless error. See Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Nonetheless, we do not believe that the reasoning and analysis used by the Sullivan court are applicable in this instance. In Sullivan, the court held that a constitutionally deficient reasonable doubt instruction vitiates the jury’s findings and will always result in the absence of an appropriate “beyond a reasonable doubt” jury finding. Such a structural defect in the trial mechanism is not subject to a harmless error.
However, the erroneous instruction in the instant case concerned self-defense, and the existence of self-defense merely presents exculpatory circumstances which defeat culpability without negating the state’s proof beyond a reasonable doubt of all the essential elements of the offense. See State v. Barnes, 491 So.2d 42 (La.App. 5 Cir.1986). As such the instruction is subject to a harmless error analysis.
The proper analysis for determining harmless error as stated by the Supreme Court is, “not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in the instant trial was surely unattributable to the error”. Sullivan v. Louisiana, supra, 508 U.S. at [279], 113 S.Ct. at 2081; State v.Code, 627 So.2d 1373 (La.1993), [cert. denied ], 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 [490] (1994).
In the instant case the evidence overwhelmingly established that the defendant fired upon police officers as they attempted to enter the building to execute a search warrant, thereby negating any claim of self-defense. Therefore, we do not find that the defendant’s 17conviction was attributable to the erroneous instruction. Thus, we find the erroneous instruction to be harmless error.

State v. Richardson, 92-836, pp. 5-6 (La.App. 5 Cir. 12/14/94), 648 So.2d 945, 948, writ denied, 95-343 (La.6/23/95), 656 So.2d 1011.

As set forth in the earlier Jackson review and as the State suggests, self-defense was not a subtle legal issue at trial. It is quite clear that an altercation occurred, and that Defendant cut the victim. Defendant testified that she was defending herself and her unborn baby from the bat-wielding victim. The victim and another witness testified that Defendant attacked the unarmed victim with some sort of blade. Clearly, the jury believed the State’s witnesses on the self-defense issue, even though the trial court’s instruction placed the burden of disproving self-defense on the State. We find the court’s error to be harmless as the verdict is “surely unattributable” to this issue. Thus, we find that this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4:

In her fourth assignment of error, Defendant contends that her six-year sentence is excessive. The record indicates that counsel objected to the sentence without argument, and there was no motion to reconsider sentence. Louisiana Code of Criminal Procedure Article 881.1(E) states:

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.

In State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356, the defendant failed to object to the sentence at the sentencing hearing and did not timely file a motion to reconsider sentence. Thus, this court found his claim of exces-siveness of sentence was barred. See also State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La.1/31/03), 836 So.2d 59; State v. Algere, 09-85 (La.App. 3 Cir. 6/3/09), 2009 WL 1545816 (unpublished opinion); State v. Robinson, 09-735 (La.App. 3 Cir. 12/9/09) (unpublished opinion); State v. Stapleton, 09-891 (La.App. 3 Cir. 2/3/10), 30 So.3d 287 (unpublished opinion); State v. Gresham, 10-474 (La.App. 3 Cir. 11/3/10) (unpublished opinion), writ denied, 10-2699 (La.4/25/11), 62 So.3d 90. However, this court has reviewed excessiveness claims despite the lack of an objection and motion to reconsider sentence. See State v. Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La.6/25/10), 38 So.3d 336, cert. denied, — U.S. —, 131 S.Ct. 932, 178 L.Ed.2d 775 (2011); State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127; State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La.6/25/10), 38 So.3d 352; State v. H.J.L., 08-823 (La.App. 3 Cir. 12/10/08), 999 So.2d 338, writ denied, 09-606 (La.12/18/09), 23 So.3d 936; State v. Quinn, 09-1382 (La.App. 3 Cir. 5/12/10), 38 So.3d 1102, writ denied, 10-1355 (La.1/7/11), 52 So.3d 885. In the case at bar, we opt to review Defendant’s argument as a bare claim of excessiveness.

The following analysis is pertinent:

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

IsThe fifth circuit, in [State v.] Lisotta, [98-648 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57,] 58, stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:

1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.

State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59. We note that Defendant was subject to a sentence of up to ten years. La.R.S. 14:34.

At sentencing, the trial court stated:

The victim impact statement is quite lengthy with regard to the scarring and the problems that she has had as a result of the attack. She was also pregnant at the time and delivered prematurely. She had some hospital bills that remained unpaid, and she also missed some work.

When pronouncing sentence, the court observed:

I’m also taking into consideration in sentencing less than the maximum— even though this was violent, cutting in the face, across the body, stabbing a pregnant woman, I’m also taking into consideration that there is no suspended sentence available and that Ms. Greene will have to serve out her time that I give her. She’s still eligible for parole and still eligible for good time, but I cannot give her a sentence and suspend any part of it.

Although Defendant makes other arguments, the key issue she raises is whether her sentence was affected by the trial court’s belief that the victim was pregnant at the time of the offense. As Defendant’s appellate counsel accurately notes, the medical records introduced at trial indicate that the victim was not pregnant at the time of the offense. We find this to be a significant discrepancy, even within the context of a bare excessive claim review, as it bears upon the nature of the crime.

IsAs a Whatley/Lisotta analysis cannot be properly conducted without clarification of this issue, we must remand this matter for a hearing and determination of whether the victim, was pregnant at the time of the offense. If the trial court determines that the victim was pregnant during the altercation, the record must be clarified to account for medical evidence in the record indicating that the victim was not pregnant.

ASSIGNMENT OF ERROR NO. 5:

In her fifth and final assignment of error, Defendant argues that her trial counsel was ineffective for failing to object to the erroneous jury charges and for failing to file a motion to reconsider sentence. As Defendant notes, an ineffective-assistance analysis has two parts: “In outlining the convicted defendant’s burden of proof in an ineffective assistance case, the Supreme Court has established a two-part test. The defendant must show that a deficient performance on the part of his attorney prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” State v. Velez, 588 So.2d 116, 131 (La.App. 3 Cir.1991), writs denied, 592 So.2d 408 (La.1992), cert. denied, 505 U.S. 1220, 112 S.Ct. 3031, 120 L.Ed.2d 901 (1992).

Regarding Defendant’s argument that counsel should have objected to the erroneous jury charges, as previously addressed in this opinion, the merits of the claim would not entitle Defendant to any relief. Even assuming, arguendo, that counsel’s inaction constituted a deficient performance, Defendant failed to prove that her trial counsel’s deficient performance prejudiced her defense as required by Strickland.

It is unnecessary to address the failure of Defendant’s trial counsel to file a motion to reconsider sentence as we are remanding the case for clarification of the record regarding Defendant’s sentence.

^DISPOSITION

Defendant’s aggravated battery conviction is affirmed. Defendant’s sentence is vacated. This matter is remanded to the trial court for a resentencing hearing to determine whether the victim was pregnant at the time of the offense and to resolve the current discrepancy between the sentencing transcript, which indicates that the victim was pregnant, and the victim’s medical records introduced at trial which indicate otherwise. Upon resolution of this discrepancy, the trial court shall resentenee Defendant pursuant to her aggravated battery conviction.

CONVICTION AFFIRMED;

SENTENCE VACATED;

REMANDED FOR RESENTENCING.

      . Defendant was seeking review of a denial of her post-conviction relief application in which she requested an out-of-time appeal.

      . Glenda Landry testified as an eyewitness to the altercation between Defendant and the victim.


author: CONERY, Judge.

text:
    John WILTZ v. TODD’S CAR WASH.
    No. 13-448.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Michael Benny Miller, Jacqueline B. Ma-necke, Miller & Miller, Crowley, Louisiana, for John Wiltz.
    Matthew William Tierney, Kristine D. Smiley, Tierney and Smiley, LLC, Baton Rouge, Louisiana, for Todd’s Car Wash.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   CONERY, Judge.

|/The plaintiff, John Wiltz (“Mr. Wiltz”), appeals the judgment of the Workers’ Compensation Judge (“WCJ”) in favor of Todd’s Car Wash (“Todd’s”). The WCJ found that Mr. Wiltz’s right eye condition and hypertension were not causally related to his work accident and injury, awarded Todd’s a credit and offset for all amounts paid in relation to Mr. Wiltz’s right eye, denied Mr. Wiltz supplemental earnings benefits (“SEB”) both before and after his termination for cause, awarded Mr. Wiltz $8,000.00 in penalties, awarded $8,000.00 in attorney fees, and equally divided the claimant’s costs. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

It is undisputed that on January 15, 2009, Mr. Wiltz had a compensable work accident during the course and scope of his employment at Todd’s when a metal ball struck his left eye. The injury to Mr. Wiltz’s left eye required medical treatment, including surgery. He was released to light duty work on March 24, 2009.

Mr. Wiltz claimed that as a result of the accident involving his left eye, he required treatment for glaucoma in his right eye. Additionally, Mr. Wiltz claimed that he developed high blood pressure due to the January 15, 2009 accident and was restricted by his physician to working no more than forty hours a week due to his unstable hypertension. Mr. Wiltz also sought SEB beginning on his return to work on March 24, 2009.

In addition to its defense on the merits, Todd’s contended that Mr. Wiltz violated La.R.S. 23:1208 by submitting fraudulent forms and false testimony to the |aWCJ concerning the use of a dolly while moving fifty-five gallon drums. Todd’s sought dismissal on these grounds.

This matter proceeded to a trial on the merits before the WCJ. Trial began on November 7, 2011, and was continued to February 14, 2012, as Todd’s had not completed their case in chief. In the interim, Mr. Wiltz was terminated for cause from his position with Todd’s on November 15, 2011, for a violation of company policy. Counsel for both parties stipulated, and the WCJ agreed, that the effect of Mr. Wiltz’s termination for cause on his claim for SEB would be heard by the WCJ at the close of Todd’s case in chief. The parties entered into the following stipulations prior to and during trial:

1. Mr. Wiltz sustained an accident in the course and scope of his employment with Todd’s on or about January 15, 2009, when a steel ball hit him in the left eye.
2. Todd’s stipulated to the maximum amount penalties under La.R.S. 23:1201(F) of $8,000.00.
3. Mr. Wiltz’s average weekly wage as of January 15, 2009, was $1,000.00.

At the close of evidence, the WCJ took the matter under advisement. On July 9, 2012, the WCJ rendered oral reasons for judgment on the remaining issues, finding that Mr. Wiltz failed to meet his burden of proof that his hypertension was causally related to his accident and that payment for wages or related medical bills for this condition was not owed by Todd’s pursuant to La.R.S. 23:1201(A) & (E). The WCJ further found that Mr. Wiltz failed to meet his burden of proof that his right eye condition was causally related to the injury to his left eye and awarded Todd’s a credit for all treatment paid for the right eye pursuant to La.R.S. 23:1206. Additionally, the WCJ found that Mr. Wiltz failed to carry his burden of proof showing any further entitlement to SEB pursuant to La.R.S. 23:1221(3), either for |athe time he returned to work on March 24, 2009, through November 15, 2011, or after his termination for cause on November 15, 2011. The WCJ awarded $8,000.00 in attorney fees based on the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the claimant, the amount of time devoted to the case, and the results obtained. On the issue of costs, the WCJ found that as the claimant did not prevail on all issues, and Todd’s stipulated to the penalties right before trial, only fifty percent of claimant’s costs, $996.49, would be assessed against Todd’s, with legal interest due according to law. The WCJ reduced the stipulations and reasons for judgment to a written judgment on September 28, 2012. The WCJ also dismissed Todd’s claim that Mr. Wiltz violated the provisions of La.R.S. 23:1208, by filing false claim forms and testifying falsely on the issue of lifting fifty-five gallon drums as a work requirement.

ASSIGNMENTS OF ERROR

Mr. Wiltz perfected a devolutive appeal from the September 28, 2012 judgment, presenting seven assignments of error:

1.) The workers’ compensation judge erred in failing to award disability benefits.
2.) It was error for the workers’ compensation judge to require that Mr. Wiltz first present evidence on Todd’s Car Wash’s Motion to Terminate Benefits due to Mr. Wiltz being terminated from his job at Todd’s Car Wash.
3.) The workers’ compensation judge erred in finding that Mr. Wiltz was terminated for cause and in failing to award any supplemental earnings benefits (SEB) after his termination from Todd’s Carwash, LLC.
|44.) The workers’ compensation judge erred in finding that Mr. Wiltz failed to meet his burden of proof that the right eye condition was causally related to the work injury.
5.) The workers’ compensation judge erred in finding that Mr. Wiltz failed to meet his burden of proof and in denying all claims related to his high blood pressure and hypertension.
6.) The workers’ compensation judge erred in reducing the attorney’s fees to $8,000.00 when Mr. Wiltz obtained the maximum penalties of $8,000.00 allowable under La.R.S. 23:1201(F).
7.) The workers’ compensation judge erred in only awarding fifty percent of Mr. Wiltz’s expenses when Mr. Wiltz obtained the maximum penalties of $8,000.00 allowable under La. R.S. 23:1201(F).

LAW AND ANALYSIS

“Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Foster v. Rabalais Masonry, Inc., 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784 (citations omitted).

In Green v. National Oilwell Varco, 10-1041, p. 3 (La.App. 3 Cir. 4/27/11), 63 So.3d 354, 358 (citations omitted), we explained that, “ ‘[t]he determination of coverage is a subjective one in that each case must be decided from all of its particular facts.’ This court has held that, in light of that standard of review, ‘great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.’ ”

Furthermore, a legal error by the WCJ presents a question of law, which is reviewed by determining whether the WCJ’s ruling is legally right or wrong. LeBlanc v. Lafayette Consol. Gov’t, 07-1608 (La.App. 3 Cir. 5/28/08), 983 So.2d 1022.

Assignment of Error One — Failure of WCJ to Award Temporary Total Disability Benefits

Mr. Wiltz asserts he is entitled to temporary total disability (“TTD”) benefits pursuant to La.R.S. 23:1221(l)(b) for the period of time he missed work after the accident and after his eye surgery on March 12, 2009.

Todd’s asserts that this issue was raised for the first time on appeal by Mr. Wiltz and was not presented to the WCJ in the proceedings below, as there is no ruling from the WCJ as to whether or not Mr. Wiltz is entitled to TTD benefits. Mr. Wiltz contends that the issue was before the WCJ based on Mr. Wiltz’s answer to Section 2(c) of the Pretrial Questionnaire, entitled “Claims To Be Litigated At The Hearing,” wherein it states, “Whether claimant is entitled to weekly compensation benefits.”

The determination of whether a claimant is entitled to TTD benefits is a factual issue to be decided by the WCJ and is governed by La.R.S. 23:1221(1). Louisiana Revised Statutes 23:1221(l)(b) & (c) do not allow an award of TTD benefits if an employee is engaged in any employment or self-employment, and places the burden on the claimant to prove by clear and convincing evidence the inability to engage in any kind of employment of any nature.

The WCJ’s oral reasons and judgment do not contain any ruling on Mr. Wiltz’s entitlement to TTD benefits, nor does the record reflect any notice to the WCJ by Mr. Wiltz’s counsel of the omission of this issue. The issue of Mr. Wiltz’s entitlement to TTD benefits was not considered by the lower court. | (/Therefore, Mr. Wiltz’s first assignment of error cannot be considered by this court. Boudreaux v. State, Dep’t of Transp. & Dev., 01-1329 (La.2/26/02), 815 So.2d 7.

Assignments of Error Two and Three— Procedural Issues Relating to Mr. Wiltz’s Entitlement to SEB

Mr. Wiltz’s second and third assignments of error address the issue of Mr. Wiltz’s termination for cause from his position as manager of the Pinhook Road location of Todd’s. A Todd’s employee working under Mr. Wiltz’s supervision drove a customer’s vehicle without a driver’s license and wrecked the vehicle. Todd’s company policy clearly states: “Onlg licensed drivers are allowed to move customer vehicles.”

As previously indicated, counsel for both parties stipulated, and the WCJ agreed, that the issue of Mr. Wiltz’s termination for cause, and its effect on his claim for post termination supplemental earning benefits, would be heard by the WCJ at the close of Todd’s case in chief.

Mr. Wiltz asserts in his second assignment of error that the WCJ erred in requiring him to present his evidence first on the issue of termination for cause. We find that the order of trial was within the WCJ’s discretion. The burden to prove entitlement to SEB remained with Mr. Wiltz, and his termination for cause was an integral part of that determination.

In Grillette v. Allied Compressors, 05-982 (La.App. 3 Cir. 2/1/06), 923 So.2d 774, the claimant contended that regardless of the reason for her termination, she was restricted to light duty work for the period in question and, therefore, was entitled to SEB. Her employer contended that because of her “for cause” termination, she was not entitled to SEB. The court stated, “[a]n employee bears the burden of proving, by a preponderance of the evidence that the injury resulted |7in his or her inability to earn ninety percent (90%) or more of the average pre-injury wage under the facts and circumstances of the individual case.” Grillette, 923 So.2d at 778.

The Grillette court found that Ms. Gril-lette stipulated she was terminated for cause for violating company policy and not for any reason related to her light duty work restrictions and, thus, was not entitled to SEB. “The fact that a job is no longer available to Grillette due to her ‘for cause termination’ is no different from her refusing to accept the job in the first place and, thus, terminates her entitlement to SEB.” Grillette, 923 So.2d at 779. Additionally, in Fusilier v. Slick Construction, 94-11 (La.App. 3 Cir. 6/1/94), 640 So.2d 788, the court held that a worker, who had been released to light duty work and refused his employer’s offer of light duty work at the same wage and hours, was not entitled to SEB.

The burden of proof as to his entitlement to SEB remained with Mr. Wiltz. The WCJ correctly required Mr. Wiltz to present his ease on the issue of termination for cause. Thus, Mr. Wiltz’s second assignment of error is without merit.

Mr. Wiltz then urges in his third assignment of error that, “[t]he workers’ compensation judge legally erred in even deciding the issue of cause.” Counsel for Mr. Wiltz, despite the stipulation of counsel and the agreement of the WCJ to have the issue of termination for cause tried before the WCJ, now argues that Miller v. Christus St. Patrick Hospital, 12-370 (La.App. 3 Cir. 10/24/12), 100 So.3d 404, writ denied, 12-2467 (La.1/11/13), 107 So.3d

619, holds that the issue of termination for cause must be tried to a state district court. Based on the particular facts and circumstances of this case, we do not agree. In Cash Point Plantation Equestrian Center, Inc. v. Shelton, 40-647, p. 5 (La.App. 2 Cir. 1/25/06), 920 So.2d 974, 977 (citations omitted), the court stated:

A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. A stipulation between the parties in a specific case is binding on the court when not in derogation of the law; it is the law of the case. A judicial confession may be revoked only on the ground of error of law.

Counsel for Mr. Wiltz and Todd’s stipulated that the WCJ would make the determination of whether Mr. Wiltz was terminated for cause by violating Todd’s company policy. The agreement of the parties allowing the WCJ to hear and determine the issue of Mr. Wiltz’s termination for cause is a logical continuation of the WCJ’s previous ruling on Mr. Wiltz’s right to SEB prior to his termination. Moreover, the determination of whether Mr. Wiltz was terminated for cause is a crucial and necessary step in order for the WCJ to determine whether Mr. Wiltz was entitled to SEB post termination. It is well settled that termination for cause deprives a claimant of the right to claim SEB. Grillette, 923 So.2d 774; Palmer v. Alliance Compressors, 05-478 (La.App. 3 Cir. 11/2/05), 917 So.2d 510, writ denied, 05-2440 (La.3/24/06), 925 So.2d 1231. Thus, we find the stipulation is binding on the parties and will not be disturbed on appeal. Mr. Wiltz’s third assignment of error is without merit.

Pre-Termination Entitlement to SEB

At the hearing before the WCJ, Mr. Wiltz claimed that he was entitled to pre-termination SEB, as his salary post-accident was less than the stipulated $1,000.00 per week that he was earning prior to the January 15, 2009 accident.

“Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review.” Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. A claimant is entitled to SEB, under La.R.S. 23:1221(3)(a)(i), “[f]or injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury[.]” In Banks, 696 So.2d at 566 (citation omitted), the supreme court stated:

Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case....
Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs ... must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job....

However, if the employee’s inability to earn ninety percent of his pre-injury wages is due to “circumstances” other than the work-related injury, he is not entitled to SEB. Coleman v. Walter Indus., Inc./Jim Walter Homes, 10-1145, p. 9 (La.App. 1 Cir. 2/11/11), 56 So.3d 1258, 1262. The WCJ found based on the law and the totality of the evidence, citing La.R.S. 23:1221(3) and Poissenot v. St. Bernard Parish Sheriffs Office, 09-2793, (La.1/9/11), 56 So.3d 170, that Mr. Wiltz failed to carry his burden of proof that he was entitled to any payment of SEB from Todd’s.

The testimony at trial clearly supported the WCJ’s finding that Mr. Wiltz’s pre-injury job as manager of three of Todd’s locations was within the classification of light duty. The WCJ also found that Mr. Wiltz’s post injury and pre-termination job as manager of the Pinhook location was also within the light duty classification. The light duty classification was confirmed by the job analysis performed by the vocational rehabilitation counselor and Mr. Wiltz’s own treating physician. Thus, after March 24, 2009, Mr. Wiltz’s release to light duty was, in fact, a release to full duty work at Todd’s.

110Mr. Wiltz claimed he could not fulfill all of his previous job responsibilities, as his job as a manager required him to lift heavy fifty-five gallon drums on a regular basis. Mr. Wiltz was restricted from lifting more than fifty pounds, and the drums were around four hundred pounds. Employees would lift the drums, place the drums on dollies, and use dollies to move the drums when needed. The WCJ found that Mr. Wiltz’s position as manager did not require him to engage in lifting, tilting, or moving the fifty-five gallon drums, as there were other employees he could instruct to place the heavy drums on the dolly and move drums as needed. Additionally, the WCJ questioned Mr. Wiltz’s “veracity, in particular, his testimony regarding the lifting of the fifty-five gallon drums.” Other managers at Todd’s, including the new manager of the Pinhook location, testified that they were not required to participate in moving the drums and would direct other employees to do so. The WCJ concluded that Mr. Wiltz’s testimony lacked credibility on this issue.

The record also clearly supports the WCJ’s finding that Mr. Wiltz failed to meet his burden of proof that because of the change in his pay status, from $1,000.00 per week to $18.00 per hour, he was no longer earning ninety percent of his pre-injury wage post-accident and pre-termination. Prior to his injury, Mr. Wiltz was paid a weekly salary of $1,000.00 based on his job of managing three of Todd’s locations. Mr. Wiltz claimed that his job responsibilities and pay changed after his injury. Shortly after his injury and prior to the surgery on his left eye, however, Mr. Wiltz requested that he be allowed to manage only one location of Todd’s due to the stress involved in managing multiple locations. Mr. Wiltz’s request was granted by his employer, Todd Lemaire. Mr. Lemaire further testified luthat several different employees had tried to manage multiple locations of Todd’s and had been unsuccessful.

According to Mr. Lemaire, the change in Mr. Wiltz’s position was also occasioned by the financial condition of Todd’s, which could no longer afford Mr. Wiltz’s former managerial position due to a reduction in the number of employees. Todd’s had filed for Chapter Eleven reorganization under the bankruptcy law. At Mr. Wiltz’s request, his position was changed to manager of only the Pinhook location of Todd’s with a pay rate of eighteen dollars per hour.

The Pinhook location of Todd’s is open six days a week from seven forty-five a.m. to five p.m. The WCJ found that based on Mr. Wiltz’s testimony, he “consistently worked less than forty hours a week.” He chose to begin his work day “between eight-fifteen and eight-forty-five a.m., depending on the traffic and leaves by three-fifteen to pick up his daughter.” Thus, the WCJ found factually that Mr. Wiltz made a personal decision to work fewer hours, coming into work late and leaving early to help care for his daughter. The WCJ also found that Mr. Wiltz continued to wash cars on the side, thereby further supplementing his income.

The WCJ found and the record supports that Mr. Wiltz could have worked forty-eight hours a week, which would have resulted in a gross wage of $936.00, a figure in excess of ninety percent of his stipulated average weekly wage of $1,000.00.

The evidence in the record clearly supports the WCJ’s finding that when Mr. Wiltz returned to work in March 2009, until his termination in November 2011, his reduced hours had nothing to do with his inability to perform any of his duties. | iaThe circumstances of his reduced pay were a personal choice by Mr. Wiltz to work reduced hours, which Todd’s allowed, and was unrelated to his work-related injury. The WCJ found that this choice by Mr. Wiltz to work reduced hours was the cause of his inability to earn ninety percent of his pre-injury wages. We affirm the WCJ’s denial of any SEB to Mr. Wiltz from March 24, 2009, to his termination on November 15, 2011. Coleman, 56 So.3d at 1262.

Post-Termination Entitlement to SEB

In Palmer v. Schooner Petroleum Services, 02-397 (La.App. 3 Cir. 12/27/02), 834 So.2d 642, writ denied, 03-367 (La.4/21/03), 841 So.2d 802, a panel of this court held that termination in and of itself, or without cause, does not destroy a claimant’s entitlement to SEB. However, when an employee is terminated due to the claimant’s actions or a violation of company policy, i.e., for cause, he is no longer entitled to SEB. Grillette, 923 So.2d 774; Palmer v. Alliance Compressors, 917 So.2d 510.

The WCJ found that Mr. Wiltz was terminated for cause for violating Todd’s company policy by allowing an employee under his supervision to drive a customer’s vehicle without a driver’s license, causing a wreck and damage to the customer’s vehicle. The WCJ also found that Mr. Wiltz was aware of the company policy pertaining to unlicensed drivers and the manager’s responsibility for any accident involving an unlicensed driver. Two prior incidents involving unlicensed drivers occurred while Mr. Wiltz was a manager. In only one of the prior incidents was he present on the site. Evidence in the record indicates that he was warned on both prior occasions.

Mr. Wiltz testified that the policy was not in effect after the first accident, but admitted that after the second accident, he was given a warning. The WCJ’s 113finding that Mr. Wiltz was terminated for cause and, therefore, not entitled to SEB is fully supported by the record and case law. We affirm the WCJ’s ruling that Mr. Wiltz is not entitled to post-termination SEB dating from November 15, 2011, as he was terminated for cause for violating a known company policy.

Analysis of the Fourth Assignment of Error — Right Eye Condition

In his fourth assignment of error, Mr. Wiltz argues the WCJ erred in finding that Mr. Wiltz failed to meet his burden of proof that his right eye condition was causally related to his work injury to his left eye.

Mr. Wiltz suffered a work injury to his left eye. He was later diagnosed with glaucoma in his right eye for which he received medical treatment and surgery paid for by Todd’s.

The WCJ reviewed the deposition of Dr. Hall, Mr. Wiltz’s treating physician for his right eye. The WCJ recited verbatim Dr. Hall’s deposition testimony taken October 28, 2010, in his reasons for ruling confirming that Dr. Hall was unable to “state with any degree of medical certainty” that Mr. Wiltz’s glaucoma was related to the work accident. Dr. Hall was asked, “what kind of things can cause pressure change in the eye?” He responded, “[u]sually, it’s idiopathic. We don’t know.”

Mr. Wiltz had the burden to prove by a preponderance of the evidence that the medical condition in his right eye is related to his work related accident involving his left eye. To establish that a claimant is entitled to workers’ compensation benefits, claimant must prove by a preponderance of the evidence that an accident occurred during the course and scope of his employment, the accident caused his injuries, and the injury caused his disability. Ceasar v. Crispy Cajun Rest., 94-30 (La.App. 3 Cir. 10/5/94), 643 So.2d 471, writ denied, 94-2736 (La.1/6/95), 648 So.2d 931. “The employee has the burden of proving, by ^[¿¡preponderance of the evidence, that the resulting disability is related to an on-the-job injury.” Buxton v. Iowa Police Dep’t, 09-520, p. 12 (La.10/20/09), 23 So.3d 275, 283.

Based on the evidence, we find no manifest error and affirm the WCJ’s finding that Mr. Wiltz failed to carry his burden of proof that his right eye condition was causally related to the work-related injury to his left eye. We also affirm the WCJ’s award of a credit to Todd’s, pursuant to La.R.S. 23:1206, for all costs of medical treatment to Mr. Wiltz’s right eye. Thus, Mr. Wiltz’s fourth assignment of error is without merit.

Analysis of the Fifth Assignment of Error — Hypertens ion

In the fifth assignment of error Mr. Wiltz argues the WCJ erred in finding that he failed to meet his burden of proof that his claim for high blood pressure and/or hypertension was related to the work related injury to his eye and his stress on the job.

The WCJ’s reasons reflect that in support of this claim, Mr. Wiltz submitted a November 30, 2010 letter sent by his counsel, Ms. Manecke, to his treating physician for this condition, Dr. Moore. The letter stated in pertinent part:

It is my understanding that you recently restricted Mr. Wiltz from working more than forty hours a week due to unstable hypertension. Assuming prior to Mr. Wiltz’s job injury, he did not suffer with high blood pressure or require any treatment for his high blood pressure, please advise whether you believe that it is more likely than not that his hypertension is related to stress from his job and injury. And, it is checked yes.

The WCJ then conducted a review of Mr. Wiltz’s medical records, including both records from Lafayette General Medical Center dated October 29, 1999, and a June 17, 2009 report from Dr. Moore under the portion entitled “History of Present Illness.” From these medical records, the WCJ determined that Mr. Wiltz had 1 ^previously been diagnosed with and treated for “elevated high blood pressure” in October 1999. The WCJ also quoted directly from additional progress notes from Lafayette General, which reflected that on January 19, 2009, under the heading “History,” it stated, “[h]e has been told that his blood pressure is high. He has an appointment in two days to see his family doctor about being put on medicine for his high blood pressure.”

The notes of Dr. Moore on June 17, 2009, also confirm that Mr. Wiltz’s high blood pressure/hypertension is not related to his work related injury and job stress. Once again the WCJ quotes, “The hypertension is associated with family history. The patient’s cardiovascular risk factors include obesity, BMI greater than 30kg/ m2, physical inactivity. The patient’s identifiable causes of hypertension include none.”

The WCJ then further addressed the letter of Ms. Manecke to Dr. Moore on November 30, 2010, and stated, “The letter to Dr. Moore by Ms. Manecke asked Dr. Moore to assume prior to Mr. Wiltz’s job injury, he did not suffer with high blood pressure. This question is flawed and inaccurate based upon, at minimal, the October 29, 1999, Lafayette General Medical Center ER Physician’s Assessment.”

Based on the WCJ’s reasons, the medical reports in evidence, and the claimant’s burden of proof, we agree that Mr. Wiltz failed to meet his burden of proof that his high blood pressure/hypertension was causally related to his on the job accident. Thus, this assignment of error is without merit.

Analysis of the Sixth and Seventh Assignments of Eiror — Attorney fees and Costs

In the sixth and seventh assignments of error, Mr. Wiltz argues that the WCJ erred in awarding only $8,000.00 in attorney fees and awarding only fifty percent |1Bof Mr. Wiltz’s expenses, as Mr. Wiltz obtained the maximum penalties of $8,000.00 under La.R.S. 23:1201(F).

The WCJ considered “the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the claimant and the amount of time devoted to the case.” He concluded that $8,000.00 was an appropriate amount based on the facts of the case and the results obtained. Mr. Wiltz failed to prevail on any of the issues actually litigated, as Todd’s stipulated to paying the maximum $8,000.00 penalty pre-trial.

Mr. Miller’s affidavit reflects that he spent fifty-seven hours on Mr. Wiltz’s case prior to trial. He also seeks attorney fees for six hours post-trial for a total of sixty-three hours at the hourly rate of $225.00. Ms. Manecke’s affidavit reflects that she spent sixty-eight hours on Mr. Wiltz’s case prior to trial and another eight hours in preparation of the post-trial memorandum for a total of seventy-six hours at an hourly rate of $175.00. Together counsel for Mr. Wiltz sought a total of $27,475.00 in attorney fees for the case.

Our supreme court, in McCarroll v. Airport Shuttle, Inc., 00-1123, p. 9 (La.11/28/00), 773 So.2d 694, 700 (citations omitted), stated:

In our determination of the respective rights of the employee and the attorney to the statutory attorney fees, a persuasive factor is the methodology used to calculate the amount of the statutory attorney fees. The only limitation on the amount is the reasonableness of the fee awarded by the judge. The amount awarded rests within the discretion of the workers’ compensation judge, as long as that amount is supported by the record. Some of the factors taken into account by the judge in fixing the amount of the fee are the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the employee, and the amount of time the attorney devoted to the case.

“Awards of penalties and attorney’s fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and | i7undesirable conduct by employers and insurers. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed.” Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46 (citation omitted). An appellate court reviews the WCJ’s decision to award penalties and attorney fees using the manifest error standard of review. Ducote v. La. Indus., Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843.

Given our supreme court’s directive in McCarroll, we find no manifest error in the WCJ’s award of $8,000.00 in statutory attorney fees. As previously indicated, Mr. Wiltz did not prevail on any of his claims at trial and was awarded $8,000.00 in statutory penalties based on a stipulation of the parties at the beginning of trial. The parties also stipulated that the injury to Mr. Wiltz’s left eye was work related and that his average weekly wage was $1,000.00.

As additional support for the WCJ’s holding on this issue, Todd’s urges on appeal that testimony at trial questioned the basis of an affidavit submitted by of one of the attorneys for Mr. Wiltz. Counsel for Todd’s sought to strike the affidavit as not based on counsel’s personal knowledge, but on a review by counsel’s secretary. In addition, Mr. Wiltz’s counsel was unable to state whether there were duplicate time estimates for work performed by co-counsel.

The WCJ is allowed great discretion in the decision to award attorney fees. Frank v. City of Lake Charles, 04-820 (La.App. 3 Cir. 11/10/04), 887 So.2d 679. The supreme court in McCarroll, however, does require that the attorney fee awarded be reasonable. Other panels in this circuit have affirmed awards where $8,000.00 in statutory penalties were awarded, and counsel was awarded amounts ranging from $5,000.00 to $10,000.00 in attorney fees. Mitchell v. Artcrete, Inc., 09-492 (La.App. 3 Cir. 12/9/09), 24 So.3d 1000; Burnett v. Village of Esterwood, 09-680 (La.App. 3 Cir. 12/9/09), 25 So.3d 997.

The WCJ’s reasons clearly considered the directive given by the supreme court in McCarroll in its determination that the award of $8,000.00 in attorney fees was reasonable in this case. We agree and affirm the judgment of the WCJ.

Assessment of Costs

Mr. Wiltz contends the WCJ erred in only assessing fifty percent of the claimant’s costs to Todd’s in the amount of $996.49 and seeks the full amount of costs of $1,992.98. The decision of the WCJ in awarding costs is governed pursuant to Section 6609 of the Workers’ Compensation Hearing Rules and directs that the awarding of costs shall also be governed by La.Code Civ.P. art.1920. Louisiana Code of Civil Procedure Article 1920 allows a trial court to “render judgment for costs, or any part thereof, against any party, as it may consider equitable.” Thus, the determination of the award of costs is within the sole discretion of the trial court and must not be disturbed on appeal unless there is an abuse of that discretion. Middlebrooks v. Int’l Indem., 95-1364 (La.App. 3 Cir. 3/6/96), 670 So.2d 740. We find no abuse of discretion by the WCJ in ruling that each party was to bear fifty percent of the costs.

DISPOSITION

For the foregoing reasons, we affirm the judgment in all respects. The costs of this appeal are assessed to John Wiltz.

AFFIRMED.

      . This finding is contained in the WCJ’s July 9, 2012 oral reasons, but is not referenced in the WCJ’s September 28, 2012 judgment. Since there was no judgment on this issue, there was no appeal of this issue.

      . Although, Dr. Moore restricted Mr. Wiltz to forty hours a week due to unstable hypertension, as will be discussed, his hypertension is not causally related to the work-related accident.


author: EZELL, Judge.

text:
    Leroy HERRON v. LABOR FINDERS-LFI FORT PIERCE, INC.
    No. WCA 13-467.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Philip Gardiner Hunter, Joseph Yuri Beck, Hunter & Beck, Alexandria, LA, for Plaintiff/Appellee, Leroy Herron.
    Kirk Lindsay Landry, Keogh, Cox & Wilson, Baton Rouge, LA, for Defendants/Appellants, Ace American Insurance Company Labor Finders-LFI Fort Pierce, Inc.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

11 Labor Finders-LFI Fort Pierce, Inc. (hereinafter LFI) appeals the decision of the workers’ compensation judge below finding that Leroy Herron suffered a work-related injury to his back. For the following reasons, we hereby affirm the decision of the workers’ compensation judge.

Mr. Herron sustained a workplace injury on August 24, 2011. That day, he was on a stepladder cutting catalytic converters from junked ears for his employer, LFI. LFI was providing labor services for U-Pull-It Auto, a salvage yard. Mr. Her-ron was cutting parts when a piece of a catalytic converter swung free and struck his hand. According to Mr. Herron, this severely sliced his hand and caused him to fall from the ladder and land on his buttocks. The workplace injury to his hand is undisputed and is not at issue in this litigation. Because of the severity of the laceration, Mr. Herron was taken to Rapides Regional Medical Center. Surgery was performed on his hand that day and again at a later time. From that date, Mr. Her-ron was prescribed narcotic pain medications and remained on them until January 24, 2012, when he was placed on a tapering dose of Percocet. On February 8, 2012, roughly two weeks after decreasing his pain medications, Mr. Herron visited Dr. Gerald Leglue for back pain he claims arose from the incident involving his hand. Dr. Leglue sought to have an MRI performed on Mr. Herron’s back, but LFI did not approve it. Mr. Herron then filed the current disputed claim for compensation.

After a hearing below, the workers’ compensation judge ruled that Mr. Herron had proven a work injury to his back and ordered LFI to provide medical care for that injury. From that decision, LFI appeals.

li>LFI asserts three assignments of error on appeal. It claims that the workers’ compensation judge erred in applying the preponderance of the evidence burden of proof to an unwitnessed accident; that the workers’ compensation judge erred in ruling that Mr. Herron injured his back in a work accident; and that the workers’ compensation judge erred in relying solely on Mr. Herron’s testimony in reaching that finding. Because LFI’s last two assignments of error overlap greatly, they will be addressed as one.

LFI first claims that the workers’ compensation judge applied an incorrect burden of proof to this case when he used the preponderance of the evidence standard. We could not disagree more. The law concerning a plaintiffs burden of proof in workers’ compensation cases could not be clearer. “[A]s in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence.” Bruno v. Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992) (citing Prim v. City of Shreveport, 297 So.2d 421 (La.1974), and Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991))(emphasis ours).

However, in this assignment of error, LFI asserts that the elements required by Bruno to prove an unwitnessed accident somehow change the prescribed burden of proof to something higher than preponderance of the evidence. This argument is specious at best and unsupported by the law. Immediately after plainly declaring that a preponderance of the evidence standard exists for workers’ compensation cases, Bruno states that “[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 |salleged incident.” Id. (emphasis ours). It is clear from a plain reading of the law that these additional elements set forth in Bruno are but elements that need to be proven by a preponderance of the evidence. “[T]here is no doubt that the burden of proof is a preponderance of the evidence.” Phillips v. Coca-Cola Bottling Co. United, 06-323, p. 6 (La.App. 3 Cir. 9/27/06), 939 So.2d 673, 677. The workers’ compensation judge applied the correct burden of proof in applying the preponderance of the evidence standard. This assignment of error is utterly devoid of merit.

LFI next claims that the workers’ compensation judge committed manifest error in finding that Mr. Herron sustained a work-related injury based on his testimony alone.

As in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident. Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991); Prim v. City of Shreveport, 297 So.2d 421 (La.1974). An employee may prove by his or her testimony alone that an unwit-nessed accident occurred in the course and scope of employment if the employee can satisfy two elements: (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 accident. Bruno v. Harbert International, Inc., supra, 593 So.2d at 361 (citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Civil Law Treatise, Workers’ Compensation, Section 253 (2d Ed.1980)). As we noted in Bru,-no, corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Id. (citing West, Nelson, and Malone and Johnson).
In Bruno, we cautioned that, in deciding whether the plaintiff-worker has discharged his or her burden of proof, the fact-finder “should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent ‘circumstances casting suspicion on the reliability of this testimony.’ ” 593 So.2d at 361 (quoting West, 371 So.2d at 1147, and citing Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987)). The fact-finder’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his burden of proof are, most certainly, factual determinations that should not be disturbed on appellate review unless |4clearly wrong or manifestly erroneous. Id. (citing Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988)).
It is well-settled that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979). In Arceneaux, we set forth a two-part test for the appellate review of facts: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court, and (2) the appellate court must further determine that the record establishes the finding is not clearly wrong or manifestly erroneous. Arceneaux, 365 So.2d at 1333; see also Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993); Sistler, 558 So.2d at 1112.

Ardoin v. Firestone Polymers, L.L.C., 10-245, pp. 5-6 (La.1/19/11), 56 So.3d 215, 218-19.

LFI likens this case factually to Ardoin, because there was a delay in reporting the injury. However, in that case, the plaintiff admitted he did not report the accident until some eighteen months after he claimed it occurred. Here, the delay was a much shorter six months. Moreover, while the workers’ compensation judge may not have stated it as plainly as LFI would have liked, it is clear that the workers’ compensation judge found an acceptable reason for the delay between the accident and the first documented claim of back pain in Mr. Herron’s medical records. The workers’ compensation judge noted in his reasons the extended period of time Mr. Herron was on narcotic pain medication for his hand injury and it is evident that the workers’ compensation judge found that these medications masked or reduced Mr. Herron’s back pain until he was weaned from them, just |fitwo weeks prior to his first doctor’s visit specifically for his back. This finding is reasonable.

While LFI claims that the facts of this case do not support Mr. Herron’s version of the events, Mr. Herron’s testimony that he fell from the ladder at the time of the accident is not only uncontradicted, but it is supported by the record. Although the overwhelming majority of his medical records focus on his severely injured hand, Mr. Herron’s medical records from Rap-ides Regional Medical Center on August 24, 2011, note a “Secondary Diagnosis” of an “Accidental fall from one level to another.” His testimony that his back pain began shortly after the fall is also uncon-tradicted.

Additionally, Mr. Herron’s testimony is corroborated by his wife, who testified that he told her his back hurt shortly after the accident. She testified that Mr. Herron had trouble sleeping at night due to the back pain and that his back hurt continuously since the fall. The workers’ compensation judge found them both to be credible witnesses, noting their forthrightness when discussing prior injuries to Mr. Her-ron’s back which had resolved prior to his employment with LFI.

Ultimately, the workers’ compensation judge found that the circumstances surrounding this case did not cast serious doubt upon Mr. Herron’s version of the incident or cast suspicion on the reliability of his testimony. Mr. Herron’s version of the events surrounding his injury was corroborated by his wife. The workers’ compensation judge repeatedly stated that he found Mr. Herron and his wife to be credible witnesses. “When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings.” Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted). Nothing in the record so contradicts Mr. Herron’s 16story so as to make it incredible, and a reasonable factual basis for the workers’ compensation judge’s findings does exist. Accordingly, there can be no manifest error in the workers’ compensation judge’s determination. This assignment of error also lacks merit.

For the above reasons, the decision of the workers’ compensation judge is hereby affirmed. Costs of this appeal are hereby assessed against LFI.

AFFIRMED.

AMY, J., concurs in the result.


text:
    Rhonda POWELL v. The OPELOUSAS HOUSING AUTHORITY.
    No. WCA 13-534.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Gloria A. Angus, Angus Law Firm, LLC, Opelousas, LA, for Plaintiff/Appellant, Rhonda Powell.
    K. Renee C. Willis, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendant/Appellee, The Opelousas Housing Authority.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

h Rhonda Powell appeals a judgment of the Office of Workers’ Compensation finding that she is not entitled to benefits for a mental incident resulting in injury. For the following reasons, we affirm.

FACTS

Mrs. Powell was employed by the Opel-ousas Housing Authority (OHA) as a property manager of Development 1 in 2010. She had been employed with the OHA for twenty-nine-and-a-half years. There were two additional developments managed by two other property managers.

Mrs. Powell explained that she received her work assignments from the computer/fax when she would get to work in the mornings. The assignments were usually sent by Diane Reed, the assistant director who was in charge of the three property managers. Mrs. Powell testified that, on the morning of March 10, 2010, she received a fax with a work assignment. The assignment required her to transfer seven residents out of homes into another unit that had not been “modified”. “Modification” of a unit is the preparation of the unit for occupancy by cleaning and making repairs. Mrs. Powell stated that she only had three days to complete this task. Testimony at trial, revealed that this type of task normally requires at least six days.

Mrs. Powell testified that she knew she would have to violate the law by moving the residents into unmodified units or get fired due to prior reprimands. She was previously reprimanded twice by the new executive director Jo Ann Tyler. In December 2009, Ms. Tyler wrote Mrs. Powell up because she refused to follow an order given by Ms. Tyler. In February 2010, Mrs. Powell was reprimanded for | ¡^negative comments expressed to other employees about employees and Board members.

Mrs. Powell stated she got frightened upon receiving the faxed order and asked Rose Collins, a secretarial helper in the office, to get help. Michael Reed and Willie Pickney were maintenance men that worked for the OHA. Mrs. Powell told them she was sick. Mr. Reed drove Mrs. Powell in her car to her house, and Mr. Pickney followed them in another vehicle. They dropped her off and went back to work.

When Mrs. Powell’s husband got home, he noticed that Mrs. Powell did not look well and had been crying. She allegedly told him about getting the fax. Mrs. Powell complained she had a headache, so Mr. Powell called their family doctor, Dr. Theodore Deblanc, and scheduled an appointment for his wife.

Mrs. Powell saw Dr. Deblanc on March 12, 2010. At that time, Dr. Deblanc ordered Mrs. Powell not to return to work for three weeks and prescribed medications. She returned to see Dr. Deblanc on March 30, 2010, reporting three more episodes of anxiety. She also requested that Dr. Deblanc fill out a Family and Medical Leave Act form.

Through her husband’s employee assistance program, Mrs. Powell was referred to a licensed clinical social worker, Patricia Lafleur. Ms. Lafleur saw Mrs. Powell on April 15, 2010. When Ms. Lafleur first saw Mrs. Powell, she was taking Paxil and Xanax. She was depressed, anxious, irritable, hallucinating, and had trouble sleeping. She was also experiencing paranoia symptoms. Ms. Lafleur testified that Mrs. Powell felt pressured at work and was concerned she was being pushed to do things that were not legal. Ms. Lafleur opined that Mrs. Powell was |sin need of more intensive counseling, and by her third visit Mrs. Powell agreed to go to Oceans Behavioral Hospital.

Oceans provided outpatient care for a year under the care of Dr. Samir Salama, a psychiatrist. Dr. Salama testified that Mrs. Powell had a history of anxiety and depression, which had most likely increased due to a problem at work. When Mrs. Powell was discharged from Oceans, she was referred back to Ms. Lafleur for outpatient counseling. Ms. Lafleur saw Mrs. Powell four more times and observed that Mrs. Powell had learned some coping skills and was a completely different person.

In November 2010, Mrs. Powell was notified by Ms. Tyler that her sick leave was exhausted. She informed Mrs. Powell that she would be terminated unless she could return to work. Mrs. Powell responded indicating that she objected to the termination and would appeal the “adverse discriminatory, retaliatory, harassing employment practices.”

On February 9, 2011, Mrs. Powell filed a disputed claim for compensation claiming that she had a nervous breakdown on March 10, 2010. Mrs. Powell claimed that Ms. Tyler refused to address the extraordinary amount of work assigned to her and that she denied her request to timely complete the tasks. She also claimed that Ms. Tyler made many threats to terminate her.

On June 8, 2011, Mrs. Powell was evaluated by Dr. Douglas de Mahy to assess her mental status regarding the presence of a potentially disabling mental/psychiatric condition in conjunction with her application for social security disability. Mrs. Powell is currently receiving social security disability benefits, and testified that she did not know she had a workers’ compensation claim until |4she saw Dr. de Mahy. However, she filed her claim on February 9, 2011, approximately four months before she was evaluated by Dr. de Mahy.

A trial on the matter was held on October 10 and 11, 2012. On November 21, 2012, the workers’ compensation judge (WCJ) issued an oral ruling finding that Mrs. Powell failed to meet her burden of proof by clear and convincing evidence as required by La.R.S. 23:1021(8)(b). The WCJ then dismissed her claim against the OHA and its insurer, the Louisiana Workers’ Compensation Corporation. Judgment was signed on January 7, 2013. Mrs. Powell then filed the present appeal.

DISCUSSION

Mrs. Powell argues that the decision of the WCJ should be reversed because her testimony was uncontradicted and corroborated by witness and physician testimony in addition to the evidence introduced at trial. She argues that the facts corroborate her testimony of an injury on the job on March 10, 2010.

Workers’ compensation benefits are available for a mental injury caused by mental stress when the “mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.” La.R.S. 23:1021(8) (b).

In order to recover workers’ compensation benefits for a mental injury it must be triggered by an accident; “an unexpected and unforeseen event that occurs suddenly or violently.” Fontenot v. Interstate Distrib. Co., 09-1526, p. 5 (La.App. 3 Cir. 5/12/10), 37 So.3d 1095, 1098 (quoting Adams v. Temple Inland, LA, 03-187, p. 5 (La.App. 3 Cir. 11/5/03), 858 So.2d 855, 859, writ denied, 03-3327 (La.2/13/04), 867 So.2d 695). “It is insufficient for the claimant to show that his |smental injury is ‘related to general conditions of employment, or to incidents occurring over an extended period of time.’ ” Id.

The Supreme Court has held that “ ‘the legislature intended to restrict recovery under subsection [8](b) to those mental injuries that result from stresses which, by their nature, are sudden, unexpected, and extraordinary in the usual course of employment in that working environment.’” Manuel v. Northrop-Grumman, 04-480, pp. 2-3 (La.App. 3 Cir. 9/29/04), 883 So.2d 502, 504 (quoting Partin v. Merchants & Farmers Bank, 01-1560, p. 12 (La.3/11/02), 810 So.2d 1118, 1125).

In finding that Mrs. Powell failed to meet her burden of proving by clear and convincing evidence that she suffered a mental injury caused by mental stress, the WCJ stated: “In assessing Ms. Powell’s testimony, based upon her gestures, tone of voice, responses and reactions to questions, and overall demeanor, the Court does not find Ms. Powell’s testimony credible regarding the March 10, 2010 fax.”

Determinations by the workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Lestage v. Nabors Drilling Co., 10-728 (La.App. 3 Cir. 12/8/10), 54 So.3d 133, writ denied, 11-88 (La.2/25/11), 58 So.3d 458.

Only Mrs. Powell and Ms. Collins worked in the building together. Ms. Collins testified that Mrs. Powell told her she was sick and going home. Mr. Reed, who drove Mrs. Powell home, testified that Mrs. Powell did not tell him that anything had happened at work. She only told him that she was sick. Neither Ms. Collins nor Mr. Reed knew anything about a fax.

IrMs. Tyler confirmed that Mr. Reed reported that he drove Mrs. Powell home because she was sick. Later she received notification that Mrs. Powell was under the care of a doctor and would be out for some time. She never received any notification that her illness was work-related. It was not until she received the workers’ compensation notice that Ms. Tyler became aware that Mrs. Powell was claiming a work-related illness. Ms. Tyler testified that she did not send Mrs. Powell a fax on March 10, 2010. She stated that she was not aware of any fax sent to Mrs. Powell notifying her that she had a certain number of days to perform a task.

The disputed claim for compensation makes no mention of a fax. It only asserts that claimant had a nervous breakdown because Ms. Tyler refused to address the extraordinary amount of work assigned to Mrs. Powell and refused her request for an assistant to help timely complete the tasks. The claim form also stated that Ms. Tyler made many threats to terminate Mrs. Powell.

Ms. Tyler testified that it takes six to fourteen days to modify a unit for occupancy. She agreed that you could not move a tenant into a unit that is not ready for occupancy as it is against HUD’s rules and regulations. She further acknowledged that it is almost impossible to move a tenant in three days unless the unit is in good shape when the tenant moves out.

Ms. Tyler testified that she was not aware of any extra work or deadlines placed on Mrs. Powell around March 10, 2010. She had the same responsibilities and was treated the same as the property managers of Development 2 and Development 3.

The Powells testified that Mrs. Powell had only had an anxiety attack one other time, when they were building a house in 2001. Mr. Powell testified that his |7wife was prescribed Paxil at that time and may have taken it for two to three years. However, Dr. Deblanc’s medical records indicate that Mrs. Powell continued to receive treatment for depression and anxiety throughout the years. In June of 2005, Mrs. Powell was continuing to be prescribed Paxil. In October of 2005, she reported that she was “under a great deal of work stress.” She was prescribed Paxil in May 2006. Valium was prescribed for her in May 2006. In December 2006, Mrs. Powell reported depression. Again, Paxil continued to be prescribed in February 2007. Mrs. Powell requested a refill of Paxil in October 2007. In 2009, Mrs. Powell was prescribed Paroxetine. She reported being stressed a lot.

Dr. Deblanc’s progress notes indicate that when he first examined Mrs. Powell in March 2010 that she was having panic attacks more often than normal, had to put her head between her legs to calm down, and was stressed out. Later, she reported three more anxiety attacks. No mention is made of a fax.

Ms. Lafleur reported that Mrs. Powell was reprimanded in February which caused her anxiety issues. Ms. Lafleur testified that it was her understanding Mrs. Powell broke down at work on March 10, 2010, and had to be taken home. Ms. Lafleur testified that Mrs. Powell felt pressured and that the agency was biased and unfair. Ms. Lafleur did not indicate that Mrs. Powell had received a fax.

Dr. Samir testified that Mrs. Powell had a history of depression which was intensified by stressors with her employer that happened prior to her admission at Oceans.

Dr. de Mahy, the social security doctor, noted that Mrs. Powell reported she had a breakdown at work and “complained that the heavy workload and the demanding attitude of her supervisor resulted in a subsequent hospitalization [in] an intensive outpatient therapy.” She related that her breakdown occurred at work |sin March 2010. She related that she was “concerned about her ability to deal with normal work demands particularly working under a demanding and aggressive supervisor.” She also reported that “she harbors intense resentment for her former supervisor and the way she was treated.” Mrs. Powell was “concerned that she will be overly sensitive and misinterpret normal supervisory expectations as demanding.”

Mr. Powell testified that when he got home, Mrs. Powell told him that she had received a fax from the main office about transferring tenants into units that were not available. Mrs. Powell agreed that she showed the fax to her husband but did not have a copy of it for trial. She testified that she did not know if she destroyed it or if it was in a binder at her home.

Based on the above testimony and evidence, we find that the WCJ’s decision is reasonably supported by the record. The only people who stated anything about Mrs. Powell getting a fax were her and her husband. The fax itself was never introduced into evidence. Furthermore, the record establishes that Mrs. Powell had a history of depression and anxiety attacks years before March 10, 2010. It is obvious that Mrs. Powell was adjusting to working with a new director. The record as a whole indicates that Mrs. Powell was con-turning to feel pressured at work which resulted in a breakdown on March 10, 2010. We find no manifest error in the WCJ’s decision that there was no sudden and unforeseen event on March 10.

For the above reasons, the judgment of the Office of Workers’ Compensation is affirmed. All costs are assessed to Rhonda Powell.

AFFIRMED.