author: AMY, Judge.

text:
    Ryan DIETZ v. LOWE’S HOME CENTERS, INC.
    No. 14-401.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.
    Rehearing Denied Dec. 17, 2014.

      M. Blake Monrose, Hurlburt, Monrose & Ernest, Lafayette, LA, for Defendant/Appellee, Lowe’s Home Centers, Inc.
    Michael B. Miller, Jacqueline B. Ma-necke, Michael Miller & Associates, Crowley, LA, for Plaintiff/Appellant, Ryan Dietz.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN E. CONERY, Judges.
   AMY, Judge.

h The claimant challenged his employer’s assertion that he could return to work following a work-related accident. He further sought continued treatment for injury to his brachial plexus, for mental injury, and for cervical complaints. The employer, however, sought return of indemnity benefits paid after an orthopedic surgeon approved a submitted job description. While the workers’ compensation judge continued pain treatment for the claimant’s shoulder injury, she found no work-related causation of the cervical complaints and rejected the mental injury claim. The workers’ compensation judge found that no indemnity benefits were owed after the treating physician’s approval of the job position. The parties’ respective claims for penalties and attorney fees were denied. The claimant appeals and has also filed a motion to strike. For the following reasons, we deny the motion to strike and affirm the ruling under review.

Factual and Procedural Background

Ryan Dietz alleges that he sustained injury while moving a refrigerator in the course and scope of his employment at Lowe’s Home Centers, Inc. in July 2009. In December 2009, Mr. Dietz filed an initial disputed claim form challenging Lowe’s compensation rate and seeking his choice of orthopedic physician. Mr. Dietz also requested penalties and attorney fees. In response, Lowe’s sought an offset/credit in the event the workers’ compensation judge found compensation benefits due.

Acting upon the initial dispute, the workers’ compensation judge ordered that Mr. Dietz was permitted to see Dr. Robert Morrow, an orthopedic surgeon, as his initial choice of physician “with a sub-specialty in hands.” Dr. Morrow’s- records indicate that Mr. Dietz complained of upper left body pain extending up to |2his neck. A 2010 MRI of the cervical spine was read as negative. Dr. Morrow’s treatment ultimately focused on injury to the brachial plexus.

The parties agreed to a December 2010 consent judgment indicating that the claimant was injured in the course and scope of his employment and that Lowe’s would pay a penalty and attorney fees to cover those issues through October 14, 2010. The consent judgment also reflected that Lowe’s “agreed to pay weekly compensation benefits in the amount of $277.88 beginning on November 30, 2009 through the present and that the actual weekly compensation rate calculation will be reserved to be established at a later date.”

Mr. Dietz returned to the workers’ compensation judge, requesting psychiatric treatment as recommended by Dr. Morrow. He also sought penalties and attorney fees associated with Lowe’s refusal to provide the treatment. Lowe’s responded with an exception of improper use of summary proceedings, noting that medical treatment was not covered by the consent judgment. The workers’ compensation judge granted the exception, converting the matter to a disputed claim for compensation in October 2011.

By November 2011, Mr. Dietz began treating with Dr. James Blackburn, a psychiatrist. Thereafter, and upon motion of Lowe’s, the workers’ compensation judge ordered Mr. Dietz to submit to an evaluation by the employer’s choice of psychologist, Dr. Charles Frey, and by the employer’s choice of neurosurgeon, Dr. Ricardo Leoni.

Lowe’s additionally filed an answer to the converted disputed claim for compensation in which it denied Mr. Dietz claims on the merits and sought offsets for benefits previously provided. Before the merits of the underlying claim were addressed, however, Mr. Dietz filed an amended motion for penalties and attorney | afees, again citing the December 2011 consent judgment for the proposition that Lowe’s failure to approve treatment as recommended by Dr. Morrow warranted the imposition of penalties and attorney fees. In this instance, the contested care was the previously discussed psychiatric care as well as physical therapy for Mr. Dietz’s cervical spine complaints, failure to pay mileage requests, failure to approve pain medication, and failure to approve a cervical MRI as recommended by Dr. Daniel Hodges, a physical medicine and rehabilitation physician.

In response, Lowe’s noted that the workers’ compensation judge previously denied Mr. Dietz’s request for penalties and attorneys fees under the consent judgment, converting that claim to a disputed claim form. Despite that ruling, Lowe’s continued, Mr. Dietz filed the identical motion for penalties and attorney fees again, adding the additional claims. Lowe’s sought sanctions pursuant to La.Code Civ.P. art. 863, asserting that: “The items set out [in] plaintiff’s original motion and order for penalties and attorney’s fees as well as the amended motion and order for penalties and attorney’s fees has absolutely nothing to do with the Consent Judgment entered on December 6, 2011, even though [Mr. Dietz] avers in his motion that they do, and even though [the workers’ compensation judge] has already ruled that the allegations set out in the original motion, which are identical to the allegations set out in the amended motion, do not.” Lowe’s also filed an exception of improper use of summary proceedings. The record indicates that the workers’ compensation judge granted the exception, but deferred ruling on the sanctions issue until the time of trial.

In March 2012, Lowe’s sought an Independent Medical Examination of Mr. Dietz for recommendations regarding psychological treatment as previously commented upon by Dr. Blackburn and Dr. Frey. Over Mr. Dietz’s objection, the |4workers’ compensation judge appointed an “OWC IME” in April 2012. See, e.g., La.R.S. 23:1123; La.R.S. 23:1124.1.

When Mr. Dietz again filed an amended motion and order for penalties and attorney fees for alleged failures to comply with the consent judgment in May 2012, Lowe’s repeated its claim of improper use of summary proceedings and res judicata. As before, Lowe’s noted the prior filings as well as the workers’ compensation judge’s earlier ruling. Lowe’s again sought sanctions pursuant to La.Code Civ.P. art. 863, noting that it was defending Mr. Dietz’s claims for the third time. Subsequently, Mr. Dietz filed an amended claim form to include his claims for penalties and attorney fees. In its answer, Lowe’s reasserted its prior defenses and again sought dismissal of all of Mr. Dietz’s claims.

In June 2012, and pursuant to the workers’ compensation judge’s order for an IME, Mr. Dietz was evaluated by Dr. Harold Ginzburg, a psychiatrist. Dr. Ginzburg explained in his July 10, 2012 report that he concurred with the opinion expressed by Dr. Sandra Weitz, a pain management specialist, who suggested that Mr. Dietz suffered from brachial plexopathy and that he would be able to return to work in some capacity with better medication management and with some counseling. Dr. Ginzburg found no clinical evidence of malingering at that time. However, in a supplemental report, Dr. Ginzburg modified his prior opinion, finding clinical indication of secondary gain and malingering.

Although the hearing was conducted in September 2012, the workers’ compensation judge rendered verbal reasons for ruling in August 2014 and determined that Mr. Dietz had, in fact, sustained an accident on July 11, 2009, causing injury to his brachial plexus. The workers’ compensation judge rejected Mr. Dietz’s contention that the accident caused injury to his cervical spine. |sNeither did the workers’ compensation judge find that the claimant had proven a mental injury as a result of the accident. With regard to indemnity benefits, the workers’ compensation judge found that Mr. Dietz was temporarily totally disabled from the date of the accident through March 14, 2011, the date that Dr. Morrow approved the modified job position submitted by Lowe’s and found the employer entitled to a credit for any possible future indemnity obligation for any indemnity benefits that it paid after that date. As for medical treatment, the workers’ compensation judge found that Mr. Dietz was entitled to continue receiving treatment for his brachial plexus injury from Dr. Hodges, and that he was entitled to treatment by his choice of an anesthesiologist/pain medicine physician for that injury. The workers’ compensation judge found that Lowe’s had reasonably controverted the claim and, therefore, denied Mr. Dietz’s claims for penalties and attorney fees under La.R.S. 23:1201(F), La.R.S. 23:1201(G) or La.R.S. 23:1201(1). Finally, the workers’ compensation judge denied Lowe’s request for the imposition of sanctions under La.Code Civ.P. art. 863.

Mr. Dietz appeals, assigning the following as error:

1) The workers’ compensation judge erred in denying psychiatric and psychological treatment.
2) The workers’ compensation judge erred in finding that Mr. Dietz did not prove he injured his cervical spine in the accident.
3) The workers’ compensation judge erred in finding that Mr. Dietz was not entitled to indemnity benefits after March 14, 2011.
4) The workers’ compensation judge legally erred in ordering an IME with Dr. Harold Ginzburg and in relying upon the IME reports of Dr. Ginz-burg.
5) The workers’ compensation judge erred in not awarding penalties, attorney’s fees, expenses and legal interest.

| nMr. Dietz additionally filed a motion to strike with this court, seeking the exclusion of Dr. Ginzburg’s supplemental IME report. That motion was referred to the merits of the appeal.

Discussion

Motion to Strike

By this motion, Mr. Dietz questioned the workers’ compensation judge’s consideration of a supplemental report issued by Dr. Ginzburg, the psychiatrist who performed the IME ordered by the trial court. At the hearing, Lowe’s entered into evidence Dr. Ginzburg’s initial, July 2012 report. However, the exhibits forwarded to this court include a copy of a supplemental report issued by Dr. Ginzburg rendered May 14, 2013, subsequent to the September 2012 hearing date. Mr. Dietz suggests that the workers’ compensation judge was without authority to consider this supplemental report which could not have been introduced into evidence at the hearing.

Review of the August 2013 reasons for ruling indicates that the workers’ compensation judge referenced the “reports” of Dr. Ginzburg. She also explained to the parties that she had appointed Dr. Ginz-burg to perform an IME under La.R.S. 23:1124.1, which provides, in part, that: “[T]he workers’ compensation judge, on his own motion, may order that any claimant appearing before it be examined by other physicians.” Although the record lacks detail regarding the rendition of the supplemental report, it is notable that the period between the hearing date and the reasons for ruling spanned over one year.

[7While Mr. Dietz suggests that he “was deprived of the opportunity to cross-examine Dr. Ginzburg concerning his supplemental report and have his expert address Dr. Ginzburg’s supplemental opinion which was rendered without an additional examination and based upon unknown records[,]” the record does not support that claim. Instead, the supplemental report includes a cover letter from the Office of Workers’ Compensation to counsel for both parties stating that: “Enclosed is a copy of the supplemental report issued by Dr. Ginzburg, the physician selected by the Office of Workers’ Compensation to conduct the independent medical examination in this matter. A telephone status conference will be set. If you need anything before then, please give me a call.” The record is silent as to any objection to the supplemental record lodged by Mr. Dietz between the time of the letter, dated May 28, 2013, and the reasons for ruling, which occurred August 19, 2013.

For these reasons, we deny the motion to strike.

Psychiatric and Psychological Treatment

The workers’ compensation judge concluded that Mr. Dietz “did not prove he suffered a mental injury as a result of the accident.” Mr. Dietz challenges this finding in his first assignment of error, noting that Dr. James Blackburn, his treating psychiatrist, attributed his “emotional disorder” to his work-related injury. Mr. Dietz also asserts that Dr. Frey, Lowe’s choice of psychologist, indicated that his “emotional functioning” had been impacted by the pain and diminished activity | ^stemming from the accident. Mr. Dietz suggests that these physicians’ reports warranted a finding of medical necessity for the psychological treatment.

At the time Mr. Dietz met with Dr. Blackburn, the psychiatrist determined that the claimant had pain disorder with psychological factors of anxiety and depression. Dr. Blackburn recommended psychiatric and psychological treatment for that condition. However, that recommendation was early in the timeline of Mr. Dietz’s injury and, as noted by the workers’ compensation judge, some of the various physicians’ references to psychological treatment/evaluation were within the context of investigation of “symptom magnification and psychological overlay.” Notably, the court-appointed IME psychiatrist, Dr. Ginzburg, agreed that Mr. Dietz should maintain treatment for pain management, but did not relate mental injury to the accident in either the initial, July 2012 report or in his supplemental, May 2013 report. Instead, by the time of the May 2013 report, Dr. Ginzburg opined that “malingering/secondary gain seems to be, at this point in time, more likely than not.” Dr. Ginzburg reported that “[tjhere is clinical evidence of malingering” and that “[tjhere is clinical indication of secondary gain.”

In light of these factors, we find no manifest error in the workers’ compensation judge’s determination that Mr. Dietz failed to prove the existence of a mental injury by clear and convincing evidence. See La.R.S. 23:1021(8)(c)(“A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.”).

| ¡¡Causation — Cervical Spine

Throughout this matter, Mr. Dietz alleged that he sustained injury to his neck in the work-related accident., He references medical record documentation of his complaints and suggests that “[tjhere is no medical opinion that [his] cervical injury was not caused by the accident or that he did not need the treatment recommended.” Therefore, he questions the workers’ compensation judge’s determination that there was no evidence of cervical injury.

Certainly, early medical records commemorate Mr. Dietz’s complaints of cervical pain and physician consideration of whether there was cervical involvement associated with the brachial plexopathy diagnosis. Significantly, however, a May 2010 cervical MRI performed at the request of Dr. Morrow was reported as “negative” and a 2012 cervical MRI performed at the request of Dr. Hodges was described by Dr. Hodges as “completely normal.” By the time of the second MRI, Dr. Hodges commented only that he felt that Mr. Dietz’s “issue” would be “permanent relative to his arm and shoulder.” Dr. Hodges made no mention of neck at that point, but did recommend long term pain management. Although the workers’ compensation judge concluded that the need for pain management was demonstrated, she found no similar support for continued cervical treatment. The record supports that determination.

This assignment lacks merit.

Indemnity Benefits

In framing his argument with regard to indemnity benefits, Mr. Dietz contends that disability should not have been considered as an issue at the hearing on the merits. Rather, he asserts that the fact of his disability was established by the October 2010 consent judgment and that, thereafter, only his issues of penalties | inand attorney fees had been set for trial. Mr. Dietz addressed his argument regarding scope of the hearing in a post-trial memorandum as well.

The challenging procedural history in this matter reflects Mr. Dietz’s ongoing concern regarding both the content of the consent judgment and the scope of the hearing ultimately conducted. The record contains several motions for penalties and attorney fees allegedly arising under the consent judgment. The workers’ compensation judge rejected that contention, converting these matters to a claim on the merits and ultimately considering the expanse of the parties’ ongoing claims.

Reference to the consent judgment reveals measured language indicating that Lowe’s “agreed to pay weekly compensation benefits in the amount of $277.88 beginning on November 30, 2009 through the present[.]” The consent judgment did not reflect an agreement as to disability at some point in the future. See also La.R.S. 23:1204 (“Neither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability for compensation under this Chapter.”). The record contains no judicial determination regarding disability.

Further, after the confection of the consent judgment, the employer filed an answer to the ongoing claim indicating that “only in the event that this Honorable Court finds defendant liable for any workers’ compensation benefits, which is at all times specifically denied, then defendant pleads entitlement to any offset and/or offsets as per La.R.S. 23:1225 and/or La.R.S. 23:1212 and/or La.R.S. 23:1223 and/or La. R.S. 23:1206.” It re-urged that claim in an answer to the claimant’s disputed claim for compensation. Accordingly, we find no merit in Mr. Dietz’s assertion that he was not provided with notice of Lowe’s challenge to his disability In claim and no error in the workers’ compensation judge’s consideration of the indemnity issue.

As for the merits of the indemnification ruling, Mr. Dietz maintains that the workers’ compensation judge erred in finding that benefits were not due after the March 2011 date on which Dr. Morrow approved a modified job position. He argues that the benefits should have continued after that date because of Dr. Morrow’s April 2011 exam report in which he explained that the return to work should be delayed because of continued complaints and because of the need for psychological evaluation. However, Mr. Dietz’s argument blurs the applicable burden of proof in this regard.

The workers’ compensation judge did not terminate benefits as of March 2011. Instead, she determined that the claimant was not entitled to continuation of those benefits. This determination is consistent with La.R.S. 23:1221, which provides that an employee seeking indemnity benefits must prove his or her entitlement by clear and convincing evidence. See also Snelling Personnel Serv. v. Duhon, 00-661 (La.App. 3 Cir. 11/2/00), 772 So.2d 350 (wherein a panel of this court addressed a claim for indemnity benefits following an employer’s prior voluntary provision of those benefits).

In addressing Mr. Dietz’s claim for continued benefits, the workers’ compensation judge noted physicians’ reports in which they questioned the extent of his limitations from his injuries as well a functional capacity evaluation concluding that the extent of work capabilities was difficult to determine. The workers’ compensation judge further explained that a functional capacity evaluation “showed sub-maximal or self-limited effort and concluded that Mr. Dietz was capable of sedentary work; but because of his sub-maximal, self-limited |12effort, his true abilities may have been greater.” Subsequently, the workers’ compensation judge returned to her concern regarding credibility and explained that:

Because of Mr. Dietz’s symptom magnification, I think his histories, his complaints are unreliable. Dr. Morrow did mention this in his deposition that Mr. Dietz’s complaints changed every time he saw him. He didn’t see him that often, but it was something significant enough for Dr. Morrow to comment on. Dr. Morrow did ultimately approve the job tendered by the employer, and that was given credence to his complaints. I think when one takes away the complaints, you’re back to what the FCE examiner found, in that his abilities would be higher if we had a true picture of his physical capabilities.
Therefore, at this time, no further indemnity is due.

Mr. Dietz notes that there were positive medical indications of his ongoing physical injury after the March 2011 job approval by Dr. Morrow. Additionally, he references physician notations indicating the possibility of a return to work only after future treatment. Mr. Dietz asserts that this type of documentation indicates that the workers’ compensation judge’s determination that he was not entitled to indemnity benefits after March 2011 was in error.

The workers’ compensation judge obviously determined that Mr. Dietz did, in fact, sustain physical injury as a result of the accident. The record supports that view as well the further determination that indemnity benefits were appropriate, at least until some point in time. However, it is also clear that the workers’ compensation judge determined that Mr. Dietz’s continued complaints and reporting of those complaints to his physicians were unreliable or became unreliable as the disability period progressed, thereby undercutting the weight attributable to any work recommendations. This view supports the workers’ compensation judge’s ultimate conclusion that Mr. Dietz failed to meet his burden | isas to inability to engage in employment as described by La.R.S. 23:1221. See also Snelling, 772 So.2d 350.

For this reason, we find no merit in this assignment of error.

Independent Medical Exam

In addition to the issue addressed by the motion to strike, Mr. Dietz contests the workers’ compensation judge’s appointment of Dr. Ginzburg, as a psychiatric IME pursuant to La.R.S. 23:1124.1. That statute provides:

Neither the claimant nor the respondent in hearing before the workers’ compensation judge shall be permitted to introduce the testimony of more than two physicians where the evidence of any additional physician would be cumulative testimony. However, the workers’ compensation judge, on his own motion, may order that any claimant appearing before it be examined by other physicians.

Id. Specifically, Mr. Dietz argues that jurisprudence indicates that the authority to appoint an IME physician pursuant to La. R.S. 23:11241.1 arises only in the presence of a dispute regarding the claimant’s condition. See, e.g., Iberia Par. Sell. Bd. v. Broussard, 03-0151 (La.App. 3 Cir. 9/10/03), 854 So.2d 464, writ denied, 03-2852 (La.12/19/03), 861 So.2d 564. Because, he alleges, there was no dispute as to the need for psychiatric or psychological treatment or physical disability, the workers’ compensation judge was without authority to appoint under La.R.S. 28:1124.1.

The workers’ compensation judge specifically rejected this argument, finding that: “I want to note that claimant’s counsel has made a big issue of the fact that there was no dispute warranting the appointment of an IME. I appoint under 1[1]24.1, which doesn’t have any language requiring a conflict of opinion or a dispute for the appointment. If I have questions, I am entitled to appoint the IME, and I did so in this case.”

]14As noted by the workers’ compensation judge, La.R.S. 28:1124.1 does not contain language regarding a dispute. But see La.R.S. 23:1123 (which discusses an IME appointment following a dispute as to an employee’s condition). However, in this case, the nature of, scope of, and appropriate treatment of Mr. Dietz’s medical condition was in dispute. For instance, by the time the IME order was requested and entered, Dr. Blackburn had recommended psyehiatric/psychological treatment whereas Dr. Frey recommended a more rehabilitative cognitive-based treatment to cope with pain. Accordingly, we find no error in the appointment of Dr. Ginzburg pursuant to La.R.S. 23:1124.1.

Mr. Dietz also challenges the introduction of Dr. Ginzburg’s supplemental report after the hearing on the merits. However, we do not address this argument again as we resolved that issue within the context of the motion to strike. Finally, Mr. Dietz argues that Dr. Ginzburg’s opinion should be excluded because the physician’s narrative report indicates that he reviewed correspondence from Lowe’s counsel describing certain medical records. Mr. Dietz argues that this communication violated La.R.S. 23:1317.1. In response, Lowe’s asserts that the report indicates that the correspondence, contained in medical records forwarded to Dr. Ginzburg by the Office of Workers’ Compensation, pre-dat-ed the IME appointment and was not addressed to Dr. Ginzburg. Notwithstanding this argument as to the parameters of La.R.S. 23:1317.1, there is no indication that this issue was presented to or ruled upon by the workers’ compensation judge. We do not consider the argument for the first time on appeal. Suire v. Oleum Operating Co., L.C., 13-736 (La.App. 3 Cir. 2/5/14), 135 So.3d 87, writ denied, 14-0982 (La.8/25/14), 147 So.3d 1120, writ denied, 14-0987 (La.9/12/14), 147 So.3d 707. See also Uniform Rules-Courts of Appeal, Rule 1-3.

| penalties and Attorney Fees

The workers’ compensation judge denied Mr. Dietz’s request for various penalties and attorney fees. Mr. Dietz now questions that determination in a number of respects. First, he argues that a penalty was appropriate pursuant to La.R.S. 23:1201.3 since, he contends, the employer did not pay judicial interest on the compensation that was paid under the consent judgment. Lowe’s argues, however, that La.R.S. 23:1201.3(A) is inapplicable since the underlying judgment was a consent judgment and the statute relates to compensation awarded and payments directed “to be made by order of the workers’ compensation judge[.]” Lowe’s notes that the consent judgment indicates that it was entered by stipulation of the parties. Despite the opposing views of La.R.S. 23:1201.3, Mr. Dietz’s claim fails for evi-dentiary reasons as the record does not demonstrate the extent to which the consent judgment was satisfied, or not, with regard to interest. Accordingly, we find no error in the denial of benefits pursuant to La.R.S. 23:1201(G).

Next, the claimant cites error in a failure to award penalties and attorney fees to him pursuant to 23:1201(F) for Lowe’s failure to provide reimbursement for a physical therapy mileage request dated March 16, 2011 and for lab work expenses forwarded on August 9, 2011. This court has previously explained that a claimant has the burden of establishing that medical bills were not appropriately paid so as to invoke the penalty provision of La.R.S. 23:1201(F). See Lebert v. McNeese State Univ., 05-856 (La.App. 3 Cir. 2/1/06), 932 So.2d 678. With regard to the two reimbursements at issue, Mr. Dietz introduced the reimbursement requests for both the mileage and the lab work. His counsel then questioned him as to whether he had received reimbursements for those figures. Initially, Mr. Dietz explained that he had not received reimbursement. Thereafter, upon questioning by counsel for 11fiLowe’s, Mr. Dietz became more tentative in his response regarding his recollection generally for reimbursements and his ability to differentiate between what he had and had not received. In light of this equivocation, we find no error in the determination that penalties and attorney fees were not established by the evidence.

Finally, Mr. Dietz returns to the issue of psychiatric and/or psychological treatment. He contends that Lowe’s failed to reasonably controvert his request to see Dr. Mark Warner upon the recommendation of his psychiatrist, Dr. Blackburn, and subsequently arbitrarily and capriciously terminated treatment with Dr. Blackburn. Thus, Mr. Dietz argues that he was entitled to penalties under La.R.S. 23:1201(F) and La.R.S. 23:1201(1) for those respective actions. As explained above, however, the record in this case reveals rigorous debate regarding the need for, scope of, and type of psychological or psychiatric care. The workers’ compensation judge ultimately concluded that the necessity of such continued care was unwarranted due to findings of symptom magnification and unreliable complaints. This determination supports a finding that penalties were inappropriate under La.R.S. 23:1201.

For these reasons, Mr. Dietz’s assignment regarding penalties, attorney fees, and expenses is without merit.

Legal Interest

Finally, Mr. Dietz asserts that the workers’ compensation judge erred in failing to award legal interest on the judgment since his pleadings included a prayer for an award of interest on any amounts owed. In this case, however, no amounts were awarded. Accordingly, we do not amend the underlying ruling. This assignment lacks merit.

117DECREE

For the foregoing reasons, the ruling of the Office of Workers’ Compensation Judge is affirmed. Costs of this proceeding are assessed to the claimant — appellant, Ryan Dietz.

MOTION TO STRIKE DENIED. AFFIRMED.

      . The "Introduction” to his supplemental report, Dr. Ginzburg's indicated that "Ms. Jennifer Meche, Dispute Resolution Specialist, Office of Workers’ Compensation Administration ... requests that I review additional medical records on Ryan Dietz to determine if there are any changes in the professional opinions I rendered in my July 10, 2012 report.”

      . In reasons for ruling, the workers' compensation judge explained that:
      I think with the reports of Dr. Ginfzburg], it is evident that pain management is appropriate, not psychiatric treatment; and therefore, the evidence does not clearly and convincingly establish the need for continued psychiatric treatment forever. I think all of the opinions except Dr. Blackburn's perhaps, were interested in a psychological evaluation to investigate the symptom magnification and psychological overlay.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    HILCORP ENERGY I, L.P. v. MERRITT OPERATING, INC.
    No. 14-475.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.
    Rehearing Denied Dec. 17, 2014.

      George H. Robinson, Jr. Brian W. Ca-pell, Lafayette, LA, for Plaintiff-Appellant: Hilcorp Energy I, L.P.
    Guy E. Wall, Paul E. Bullington, Jonathan R. Cook, Harahan, LA, for Defendant-Appellee: Merritt Operating, Inc.
    Court composed of J. DAVID PAINTER, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   PAINTER, Judge.

| ]Plaintiff, Hilcorp I, L.P. (Hilcorp), appeals the trial court’s grant of a motion for summary judgment filed by Defendant, Merritt Operating, Inc. (Merritt), based on a finding that Hilcorp’s statement of privilege did not adequately set out the amount due, and therefore, did not fairly apprise Merritt of the debt secured by the privilege. We disagree.

FACTS AND PROCEDURAL HISTORY

In 2001, Merritt became the operator of the CAM I RA SUB; Shinn No. 1-D Alt. Well (the well), which is located in the Simon Pass Field in Section 28, Township 15 South, Range 13 East, St. Martin Parish, Louisiana. Merritt pays all of the costs associated with the well and sells the oil production to Plains Marketing, L.P. (Plains). In 2006, Hilcorp began leasing property in the unit and acquired 49.8552 percent of the leasehold interest in the unit. Through September 2009, the purchase price for the sale of oil to Plains was paid to Merritt monthly except for about 24 percent which was paid to royalty owners. Hilcorp claims that it owns 49.8552 percent of the mineral leases for the unit from which the well produces and that it is entitled to this percentage of the revenues from the sale of production from the well. After Merritt refused to pay Hilcorp and the Louisiana Commissioner of Conservation rejected Hilcorp’s attempt to become the well operator, Hilcorp filed this suit. Hilcorp filed a statement of privilege in the mortgage records. Plains stopped paying Merritt the purchase price for the sale of production from the well. Hilcorp’s statement of privilege describes the amount as “equal to 49.8552% of the production obtained from the unit well identified below for the period May 2006[,] to the present (which will continue to accrue until payment).” Merritt is currently producing the well but is not receiving any of the revenue.

|2Merritt filed a Motion for Summary Judgment or Alternatively to Release Production Revenues. In its memorandum in support of the motion, Merritt asserted that it was entitled to summary judgment because Hilcorp’s statement of privilege did not fairly apprise it of the privilege claimed. Alternatively, Merritt asked the court to set a bond and rule that it was entitled to use the funds held in suspense to satisfy the bond and, in the further alternative, that it should be paid for operating and workover expenses.

The trial court found that the statement of privilege did not fairly apprise Merritt of the privilege claimed in that it did not include the amount due and granted Merritt’s motion for summary judgment. This appeal followed.

DISCUSSION

Summary Judgment

A motion for summary judgment is to be granted:

[I]f the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. If the motion for summary judgment is denied, the court should provide reasons for the denial on the record, either orally upon rendition or in writing sua sponte or upon request of a party within ten days of rendition.

La.Code Civ.P. art 966(B)(2).

Summary judgment is favored, being “designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969.” La.Code Civ.P. art. 966(A)(2). The burden of proof is with the movant unless he will not bear the burden of proof at trial. La. Code Civ.P. art. 966(C)(2).

Appellate courts review trial courts’ ruling on motions for summary judgment de novo. Sanchez v. Harbor Const. Co., Inc., 07-0234, p. 4 (LaApp. 4 Cir. 10/3/07), 968 So.2d 783, 786. “An appellate court reviews a trial court’s decision granting summary judgment de novo using the same standard applied by the trial court in deciding the motion for summary judgment.” Id.‘An appellate | .¡court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appell[ee] is entitled to judgment as a matter of law.’ ” Williams v. Mem’l Med. Ctr., 03-1806, p. 13 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, 1052-53, quoting Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750.

Pine Prairie Energy Ctr., LLC v. Soileau, 14-5 (La.App. 3 Cir. 6/11/14), 141 So.3d 367.

Therefore, we will examine the pleadings, depositions, answers to interrogatories, admissions, and the affidavits filed in support of and opposition to the motion and make a de novo determination as to whether material facts remain and whether Merritt is entitled to summary judgment as a matter of law. •

Non-Operator’s Pnvilege

“A non-operator has a privilege over the property described in R.S. 9:4883 ... to secure payment of all obligations owed to him by the operator from the sale or other disposition of hydrocarbons of the non-operator produced from the well.” La. R.S. 9:4882. The privilege is established and effective as to a third party when the obligation it secures is incurred. La.R.S. 9:4884. A statement of privilege preserves the effect of the privilege against a third person to the extent that it:

secures an obligation due more than one hundred eighty days or incurred more than one year before a statement is filed in the mortgage records of the parish where the operating interest subject to the privilege is located. The filing of the statement of privilege preserves the effect as to a third person for all obligations incurred thereafter.

La.R.S. 9:4885.

Louisiana Revised Statutes 9:4887 sets out the form and contents of a statement of privilege, as follows:

A. A statement of privilege given by this Subpart must be in writing, signed by or on behalf of the creditor, and contain all of the following information:
|4(1) The name and address of the creditor and whether he is filing as an operator or non-operator.
(2) The amount of the obligation due as of the date of the statement.
(3) The name and address of the person owing such amount.
(4) The name of the operator of the well as shown by the records of the commissioner of conservation.
(5) A description of the operating interest over which the privilege is claimed.
B. The statement of privilege is not invalid if it fails to contain all of the information required by Subsection A of this Section, but fairly apprises the person against whom the privilege is asserted of the privilege claimed and of the operating interest, hydrocarbons, or other property upon which the privilege is claimed.

The statement of privilege filed by Hil-corp states in pertinent part that:

The amount of the obligation supporting this lien is equal to 49.8552% of the production obtained from the unit well identified below for the period May 2006 to the present (which will continue to accrue until payment). This amount is owed to Hilcorp by Merritt Operating, Inc. (Merritt), 3112 Purdue, Dallas, Texas, 75225, the current operator of the well.

Merritt asserts that this was inadequate to apprise it of the amount of the claim. After reviewing the documents in this case, particularly the affidavits in support of its motion for summary judgment, we conclude that Merritt had sufficient information in its possession to calculate the amount of the hen when provided with Hilcorp’s interest in the unit production. Merritt’s statement of uncontested facts included the value of the production attributable to the well and the amount paid for operating on the well. Accordingly, we find no basis for granting the motion for summary judgment. The affidavit of Kevin Merritt, president of Merritt, states the production attributable to the working interest and the costs of operating and working on the well. Attached to that affidavit was a statement of revenue, costs, and fees from the well from January 2006 through | .¡March 2011. Attached to the affidavit of Nancy G. DeArman, manager of Division Orders of Plains is an accounting summary of production from the well from September 2009 through January 2011.

We will not consider Merritt’s alternative pleas for relief as Merritt has not answered the appeal, and those matters have not been raised on appeal.

CONCLUSION

Finding that Merritt has not shown that it is entitled to summary judgment as a matter of law, we reverse the judgment granting Merritt’s motion for summary judgment. This matter is remanded for further proceedings.

REVERSED AND REMANDED.


author: COOK, Judge. CONERY, J.,

text:
    Kristy BAILEY v. David LEBLANC, et al.
    No. 14-267.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 2014.

      Dennis N. Thomson, Morris Bart, LLC, New Orleans, LA, for Plaintiffs/Appellants, Kristy Bailey.
    Charles M. Ponder, III, Ponder Law Firm, New Orleans, LA, for Defendants/Appellees, Greenwich Insurance Co., Macro Oil Co., Inc. and David R. Leblanc.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS and JOHN E. CONERY, Judges.
   COOK, Judge.

| «FACTS AND PROCEDURAL HISTORY

On January 25, 2010, at approximately 1:00 p.m., Plaintiff, Kristy Bailey, was driving her Oldsmobile Alero eastbound on Verot School Road in Lafayette, Louisiana. She was stopped in traffic near the intersection of Verot School Road and Queens Row. At that time, Defendant, David Leblanc, was driving a tractor-trailer and approaching from the opposite direction on Verot School Road, planning to turn left onto Queens Row. At the time, Leblanc was in the employ of Macro Oil Company, Inc. and was in transit to their pipe yard with pipe situated on a flat-bed trailer. While making the left turn, Leblanc’s tractor-trailer struck the left rear of Bailey’s vehicle. The left rear quarter pane and tail light of Bailey’s vehicle suffered damage.

At the scene of the accident, Bailey, twenty-two years old and five months pregnant at the time of the accident, complained of injuries and extreme distress as a result of the accident. That day she drove herself to the Iberia Medical Center Emergency Room. The records indicated she initially complained of lower abdominal pain and right side pain below the rib area.

The accident was investigated by Deputy Steve Wescott of the Lafayette Parish Sheriffs Department. Deputy Wescott stated, upon arriving at the scene, he asked Bailey if she needed an ambulance, but was told she did not. Bailey later stated in her deposition she was never asked if she needed an ambulance. Deputy Wescott maintained he did ask Bailey if she required an ambulance, and noted it was standard procedure to ask that question of all parties to an accident.

After investigating the scene, speaking with the parties to the' accident, and a witness to the accident, Deputy Wescott concluded Leblanc’s tractor-trailer was traveling approximately five (5) miles per hour at the time of the collision. He also laconcluded Bailey’s vehicle was stationary at the time of the accident, and did not move after impact. The damage to Bailey’s vehicle was listed in Deputy Wes-cott’s report as minor. Bailey’s vehicle sustained slightly over $1500.00 in property damage, which required replacement of the left rear bumper assembly and left tail lamp. The accident report listed that Bailey complained of pain in her abdomen.

Tanya Breayne was an eyewitness to the accident. She had been returning to work after lunch, and was driving the vehicle immediately behind Bailey’s on Verot School Road. Breayne stated, just prior to the accident, she had put her car into reverse and backed up slightly to avoid blocking the intersection of Verot School Road and Queens Row. Breayne watched as Leblanc attempted to turn left onto Queens Row. Breayne saw the trailer make contact with the rear of Bailey’s vehicle. She noticed the tail light of Bailey’s vehicle fall to the ground.

Breayne stated that the tractor-trailer was “going really slow” when it struck Bailey’s vehicle. According to Breayne, after the impact, Bailey drove her vehicle to the side of the road, exited her vehicle and made a call on her cell phone. Breayne returned to work at Frank’s Casing Crew, located near the accident scene. Later, she was asked to provide a statement to Deputy Wescott. At trial, Breayne testified when she arrived to give her statement to Deputy Wescott, she saw Bailey laying on the back of her vehicle talking on her phone.

On December 29, 2010, Bailey filed a personal injury lawsuit naming the following defendants: Leblanc, his employer Macro Oil, and its insurer, Greenwich Insurance Company. She claimed she endured significant neck and back problems as a result of the accident. Bailey relied on the testimony of Dr. Louis Blanda, an orthopedic surgeon, who treated her for neck and back problems beginning in February of 2011. Defendants pointed to the fact that Dr. Blanda did not begin to treat Bailey until nearly thirteen months after the accident.

LBailey testified she was severely shaken up and in emotional distress immediately following the accident. Leblanc confirmed this in his testimony, noting Bailey was in tears following the accident. She elected not to ride in an ambulance and drove herself to the Iberia Medical Center Emergency Room the day of the accident, complaining of abdominal, head and neck pain. An ultrasound of the fetus was performed and Bailey was released. She followed up a few days later with her family physician, Dr. Mark Davis, still complaining of abdominal pain and neck pain.

According to Bailey, over the next several months, she continued to experience pain while awaiting the birth of her son in July, 2010. During that time Bailey was also taking classes at Remington College until June, 2010, when she had to stop to give birth. She resumed her classes in September, 2010 and graduated in November. Bailey stated she endured pregnancy complications after the birth of her son. She also maintained she suffered continually from both neck and back pain during this time.

After graduation from Remington College, Bailey secured a job in the medical field. She claimed her severe neck and back pain eventually became unbearable, and she sought treatment with Dr. Blanda on February 8, 2011. Dr. Blanda ordered cervical and lumbar Magnetic Resonance Imaging (MRI) scans. The cervical results were thought to be relatively normal and the lumbar results showed some mild spurring. Bailey underwent physical therapy, but maintained she could not continue due to the pain.

On September 29, 2011, she returned to Dr. Blanda with continued complaints of neck and back pain, as well as urinary frequency problems. Another cervical MRI was performed on November 11, 2011, which revealed bilateral Rforaminal stenosis at the C6-7 level. Bailey continued to complain of back pain, which led to another lumbar MRI, performed on December 27, 2011. Dr. Blanda found the MRI revealed dessication and degeneration change of the T12-L1 disc with associated right paracentral disc bulge.

Dr. Blanda recommended Bailey undergo a cervical steroid injection, which was performed by Dr. Stephen Stairs on February 10, 2012. Bailey reported the injection gave her little relief. The possibility of surgery was discussed, but Bailey deferred that decision, citing her need to work and care for her children.

Bailey again saw Dr. Blanda on July 7, 2012, concerned that her neck symptoms were getting worse. Dr. Blanda ordered another cervical MRI, which was performed on July 28, 2012. Citing concerns over Bailey’s complaints of headaches and blurred vision, an MRI of her brain was also ordered. The brain MRI was found to be normal, and the cervical MRI was unchanged from the previous one. Dr. Blanda opined that Bailey’s neck was “possibly surgical,” and wanted a discogram to confirm that opinion. Bailey made no decision on the discogram, and Dr. Blanda referred her to pain management. Dr. Blanda last saw Bailey on April 16, 2013.

Dr. Blanda concluded Bailey suffered a neck sprain resulting in internal disc disruption that could be treated conservatively with pain management. At trial, Dr. Blanda testified, based on the history given to him by Bailey of an automobile accident, he believed her neck and back problems were likely caused by that accident.

Dr. Stan Foster, an orthopedic surgeon, examined Bailey at the request of the defendants on December 4, 2012. He opined that Bailey likely suffered a strain of her neck and lower back based on the history given. He found the MRIs were normal and the objective findings during his examination were normal with the | ^exception of some weakness in the left arm. Dr. Foster believed that any neck or back strain would have resolved within three to six months.

Defendants continually pointed to the gap in medical treatment for Bailey’s back and neck pain, between the few days following the accident, until she sought treatment with Dr. Blanda in February of 2011. Defendants also noted Bailey missed eight of the scheduled fifteen appointments with Dr. Blanda. Defendants also attempted to cast doubt on Bailey’s credibility by noting the differences between her estimation of how fast the tractor-trailer was traveling and that of Deputy Wescott and Tanya Breayne.

After the presentation of evidence, the trial court directed a verdict on the issue of liability, but denied Bailey’s motion for directed verdict on the issue of causation. The trial court then charged the jury with the applicable law, and the jury returned a unanimous verdict finding that Bailey was not injured as a result of the accident in question. After entry of judgment in conformance with the jury’s verdict, Bailey filed a Motion for Judgment Notwithstanding the Verdict (JNOV). Despite earlier comments indicating it would grant a JNOV for Bailey in the event the jury found no injury, the trial court denied same,- relying on this court’s opinion in Dore v. Mitsui Sumitomo Ins., USA, Inc., 12-875 (La.App. 3 Cir. 5/22/13), 117 So.3d 231, unit denied, 13-1953 (La.11/8/13), 125 So.3d 1094. The trial court stated:

As in Dore, all of the medical expert testimony as to the issue of causation was based on the history, report of injury and credibility of Kristy Bailey. The jury could have reasonably questioned the credibility of the plaintiff with regard to her neck and low back injuries due to the 12½ month break in treatment between the time of the accident and date of her first visit with Dr. Blanda in February, 2011. As stated in Dore, “... just because evidence of medical treatment was presented, it does not necessarily follow that the jury is required to conclude that the medical treatment was caused by this accident.” Credibility calls are for the jury to decide. Lirette [v. State Farm Ins. Co.], 563 So.2d 850 [ (La.1990) ]. Based upon the evidence and testimony in the record, a jury could reasonably find that this accident was not significant |7enough to have caused injuries to the plaintiff and that her failure to seek medical treatment for over a year post accident indicated a lack of credibility as to whether the plaintiff had suffered injury as a result of this accident. Thus, this Court would deny the Plaintiffs Motion for JNOV.

This appeal followed. Bailey asserts this court must conduct a de novo review of the record as the jury and the lower court committed manifest error in not finding she suffered injuries as a result of the accident in question.

This court recently in Cole v. Allstate Ins. Co., 07-1046, p. 2 (La.App. 3 Cir. 6/5/08), 987 So.2d 310, 312, writ denied, 08-1463 (La.10/31/08), 994 So.2d 535, discussed the standard of review for factual determinations as follows:

The standard of appellate review of a trial court’s factual findings is well settled and has long been established in this state. A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Our supreme court set forth a two-part test for the reversal of a factfinder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Earls v. McDowell, 07-17 (La.App. 5 Cir. 5/15/07), 960 So.2d 242, citing Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). On appeal, the issue to be resolved is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Earls, supra, citing, Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).
An appellate court cannot shirk its duty of appellate review of fact by simply deferring to a trial court’s factual determinations because its reasons for judgment are couched in terms of a credibility call. Earls, supra, citing, Rogers v. City of Baton Rouge, 04-1001 (La.App. 1st Cir.6/29/05), 916 So.2d 1099, 1104, writ denied, 05-2022 (La.2/3/06), 922 So.2d 1187. This Court has a constitutional responsibility to review the entire record and to determine whether, as a whole, it supports the judgment rendered by the trial court. Earls, supra, citing, LSA-Const. Art. 5, section 10(B); Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742.
Proof by a preponderance of the evidence is defined as taking the evidence as a whole, the fact to be Isproved is more probably than not. Earls, supra, citing, Fuller v. Wal-Mart Stores, Inc., 519 So.2d 366 (La. App. 2nd Cir.1988). Uncontroverted evidence should be taken as true to establish a fact for which it is offered absent any circumstances in the record casting suspicion as to the reliability of this evidence and sound reasons for its rejection. Id.
Boxie v. Smith-Ruffin, 07-264, pp. 3-4 (La.App. 5 Cir. 2/6/08), 979 So.2d 539, 545.

Bailey notes that both physicians in this case, including Defendant’s doctor, believed she suffered injuries from the accident in question. Defendant’s argued to the jury that Bailey’s credibility, or lack of credibility, was the key to the jury’s verdict that Bailey did not suffer any injury as a result of the accident. On appeal, we must determine if there is sufficient support in the record for the jury’s verdict of no injury in this case. After a thorough review of the record, we find the record did not support the jury’s verdict.

There was no question that an accident occurred involving a vehicle which Bailey was operating. Both Bailey’s testimony and that of the eyewitness, Tanya Breayne, established the rear of Leblanc’s tractor-trailer struck the left rear of Bailey’s vehicle. The report of Deputy Wes-cott confirmed the damage to Bailey’s vehicle.

There was conflict as to the severity of the impact. Breayne testified that the tractor-trailer was moving “really slow” at impact, and Deputy Wescott concluded it was traveling approximately five miles per hour. Bailey initially stated she believed the vehicle was traveling approximately 35 miles per hour. On cross-examination she qualified that statement by stating from the impact to her vehicle it “seemed like” that was how fast the tractor-trailer” was going. Although Deputy Wescott and Breayne testified the tractor-trailer’s speed was not 35 miles per hour when the turn was attempted, it is not implausible that someone in a small automobile struck by a tractor-trailer may have believed it was going faster. In any |flevent, such an erroneous calculation by Bailey does not negate the uncontroverted evidence that a collision occurred between Leblanc’s tractor-trailer and Bailey’s automobile. Defendants also noted Deputy Wescott concluded Bailey’s vehicle was not moved forward as a result of the impact. However, Bailey did not allege her vehicle moved forward; but that she was jerked around significantly by the impact. We note that .the eyewitness, Breayne, could not have seen the actual impact to Bailey’s vehicle, as her view was blocked by the tractor-trailer. .

Defendants also argued both doctor’s conclusion that Bailey suffered injuries as a result of the accident was based in large part on the history given to them by Bailey. More specifically, it is implied neither doctor would have believed the accident caused the injuries complained of without Bailey’s embellishment of the speed the tractor-trailer was going at the time of the impact. However, a review of the record gives no support to that assertion. Dr. Blanda did not qualify his medical opinion based on the significance of the impact. Dr. Foster acknowledged that the history given to him was simply that “the January 25, 2010 accident [was] the cause of her pain.” Thus, any argument that either physicians’ medical conclusions were based on a high-speed vehicular accident is not supported by the record.

Defendants also argued Bailey’s gap in medical treatment from the days just following the accident until February of 2011 belie her- claims of neck and back injuries as a result of the accident. The record established Bailey was treated at the Iberia Medical Center Emergency Room the day of the accident, complaining of abdominal, head and neck pain. The emergency room records indicate Bailey initially complained only of lower abdominal pain and right side pain below the rib area, but did complain of neck pain when examined by the emergency room doctor. Bailey underwent an ultrasound of the fetus and was released. She |infollowed up a few days later with her family physician, Dr. Mark Davis, and complained of neck pain. Bailey explained the gap in seeking treatment for her neck and back problems, stating she “understood there was nothing she could do about her pain until after she gave birth because she was having a high-risk pregnancy.”

According to Bailey, she endured her back and neck pain while awaiting the birth of her son, which occurred in July of 2010. During that time Bailey was also taking classes at Remington College until June, 2010. She resumed her classes in September, 2010 and graduated in November. Bailey stated her pregnancy complications continued after the birth of her son. She also maintained she suffered both neck and back pain during this time, but realized she would not be able to take any narcotic medications for her pain because she was breastfeeding her child. During this time, Bailey was also starting out in a new job, as well as caring for her infant son and other child. These factors, Bailey noted, made her hesitant to seek out time consuming doctor’s appointments. When the back and neck pain became unbearable, she sought treatment with Dr. Blanda.

While we find the gap in medical treatment could reasonably influenced the fact-finder’s opinion as to the severity of Bailey’s injuries suffered from the accident in question, considering the uncontroverted medical testimony that she suffered injury to her back and neck from the accident, we find it unreasonable for the jury to conclude the accident did not cause any injuries to Bailey.

Moreover, Bailey exhibited clear signs of distress at the accident scene. Leblanc acknowledged she was upset and was crying. Breayne’s testimony of Bailey laying on her car and talking on her phone, approximately an hour after the accident occurred, does not refute the testimony that Bailey endured emotional distress as a result of the accident. The record also established, not only that | nBailey was pregnant at the time of the accident, but that it was a high-risk pregnancy. She had to endure several hours of waiting before undergoing an ultrasound to confirm her fetus was unharmed. On the issue of emotional distress, the jury was manifestly erroneous in concluding Bailey suffered no injury as a result of the accident.

A review of the transcript at trial indicates the trial court initially believed the evidence required the jury to find Bailey entitled to damages. Although denying the motion for directed verdict as to causation, the trial court did state that “[i]f the jury finds no damages, you will get a JNOV because I’m confident that the testimony of Dr. Foster did nothing to dispel the fact that she had an injury from this accident.” Despite these comments, the trial court apparently believed this court’s opinion in Dore, 117 So.3d 231, mandated that it deny Bailey’s motion for JNOV. We disagree.

While a similar legal question exists in Dore as here, the facts are distinguishable. In Dore, as herein, the jury returned a verdict finding no damages were incurred as a result of the accident in question. A motion for JNOV by the plaintiff in Dore was also denied. A five-judge panel of this court, by a three to two split, affirmed the jury’s verdict and the trial court’s JNOV denial. The majority in Dore concluded the jury was reasonable in accepting the defendant’s argument that the impact was merely a “brushing” incident, such that the vehicles barely touched. The jury in Dore also heard that the defendant driver actually had to pursue the plaintiff for approximately a mile after the contact so that the incident could be reported for insurance purposes. The jury evidently concluded such a minimal impact could not have caused the injuries complained of by the plaintiff in Dore. Two judges dissented, opining that the damages to the plaintiffs vehicle could not have been caused by a “brushing” type impact.

112In the present case, there is no dispute that the rear of the tractor-trailer driven by Leblanc struck Bailey’s stationary, compact vehicle. The pictures showed clear damage to the rear of Bailey’s vehicle. There was no positive testimony to contradict Bailey’s testimony that she was jerked around in her vehicle at impact. Leblanc could not see the impact and Breayne was blocked by the tractor-trailer from seeing Bailey’s car at impact. Moreover, in Dore there was direct testimony from one of the physicians, that if the accident did not occur as the plaintiff described (significant impact, as opposed to a “brushing” type contact), the accident could not have caused the complained of injuries. Neither Dr. Blanda nor Dr. Foster made such a statement in the present case. Lastly, as was discussed previously, there were clear signs of emotional distress exhibited by Bailey, which were corroborated by Leblanc in his testimony. No such injuries were complained of by the plaintiff in Dore. For those reasons, we find Dore is distinguishable from the present case, and the trial court erred in relying on it to deny Bailey’s motion for JNOY.

Because the validity of the lower court judgment is interdicted by error, we must perform an independent de novo review of the complete record and exercise our own discretion in fixing the appropriate general and special damage award for this injury. Suhor v. Gusse, 388 So.2d 755 (La.1980).

I. Special Damages.

Bailey alleged she was entitled to $17,115.29 in special damages, which were her accrued past medical expenses. This court in Simon v. Lacoste, 05-550, p. 3 (La.App. 3 Cir. 12/30/05), 918 So.2d 1102, 1104-05, discussed a plaintiffs entitlement to special damages:

[W]hen a plaintiff alleges that medical expenses were incurred “and that allegation is supported by a bill, unless there is sufficient contradictory evidence or reasonable suspicion that the bill is unrelated to the accident, it is sufficient to support the inclusion of 113that item in the judgment.” [Este v. State Farm Ins. Co., 96-99, p. 10 (La.App. 3 Cir. 7/10/96), 676 So.2d 850, 857.] A factfin-der errs if it fails to award the full amount of medical expenses incurred as a result of the accident and proven by a preponderance of the evidence. Revel v. Snow, 95-462 (La.App. 3 Cir. 11/2/95), 664 So.2d 655, writ denied, 95-2820 (La.2/2/96), 666 So.2d 1084.

We find the uncontroverted medical testimony in the record of Dr. Blanda and Dr. Foster establishes that Bailey did, in fact, receive injuries from the subject accident. Therefore, we will award Bailey her incurred past medical expenses of $17,115.29.

II. General Damages.

In her petition, Bailey asserted claim for general damages, specifically including damages for pain and suffering from her bodily injuries, as well as mental anguish, principally involving fear for her unborn child. General damages include both mental and physical pain and suffering, inconvenience, the loss of physical enjoyment, and other losses of life or lifestyle that cannot be definitively measured in monetary terms. McGee v. A C AND S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770; Montgomery v. Opelousas Gen’l Hosp., 546 So.2d 621, 623 (La.App. 3 Cir.1989). There is no mechanical rule for determining general damages and the facts and circumstances of each case must control. LeBlanc v. Allstate Ins. Co., 00-1128 (La.App. 5 Cir.11/28/00), 772 So.2d 400; Maranto v. Goodyear Tire & Rubber Co., 25,-114 (La.App. 2 Cir. 5/10/95), 661 So.2d 503.

As discussed earlier, we find the record sufficiently establishes Bailey suffered emotional distress as a result of the accident. She exhibited clear signs of distress at the accident scene, which was corroborated by the testimony of Leblanc. The record established, at the time of the accident, Bailey was in the midst of a high-risk pregnancy. Bailey testified she was much more concerned over the health of her unborn child at that moment than any pain she may have been 1 ^suffering. She had to endure several hours of waiting before undergoing an ultrasound to confirm her fetus was unharmed. Despite the ultrasound, Bailey testified she continued to worry that the accident may have harmed her unborn child.

The jurisprudence has consistently recognized in accident cases that the fear a pregnant mother may have over the health of her unborn child is a compensable item of damages. The following cases all specifically listed this fear as a component of the damages awarded. In Gomez v. Galmiche, 433 So.2d 386 (La.App. 4 Cir.1983), a woman, who was nearly six months pregnant at the time of the accident, asserted a claim for damages in part due to her fear and anxiety about her unborn child’s health during the remainder of her pregnancy. She also asserted an entitlement to damages for knee and shoulder pain which could not be treated with medication due to her pregnancy. The plaintiff therein was awarded $12,000.00 total general damages in that thirty year-old case. In a similar case, Gagnet v. Zummo, 487 So.2d 721 (La.App. 5 Cir.1986), a pregnant woman received $10,000.00 in general damages when, as a result of an automobile accident, she endured emotional distress fear over the health of her child, as well as neck and back pain which could not be adequately treated with medication due to her pregnancy. In Phipps v. Allstate Ins. Co., 05-651 (La.App. 5 Cir. 2/27/06), 924 So.2d 1081, the plaintiff, approximately four months pregnant at the time of the accident, asserted fear over potential injuries to her unborn child. She also claimed damages for a neck injury which was resolved within three months. The appellate court affirmed a $10,000.00 general damage award. In Morris v. Flores, 36,932, 36,933 (La.App. 2 Cir. 3/7/03), 840 So.2d 1257, the plaintiff, who was seven months pregnant, alleged fear for the well-being of her unborn child, and that her necessitous use of pain killers eliminated her ability to breast-feed her child. She |15also suffered serious facial lacerations from the accident. The appellate court found the trial court’s general damage award of $12,500.00 abusively low, and raised it to $25,000.00.

We find the above cases similar to the facts in the present case as Bailey exhibited clear, uncontroverted signs of emotional distress over the health of her unborn child. Bailey also testified she realized she could not take medication while she was pregnant, and then could not take medications post-pregnancy due to her desire to breast feed her child.

Bailey also requested damages due to her neck and back pain, which both Dr. Blanda and Dr. Foster attributed to the accident. Dr. Foster, who examined Bailey only once at the defendant’s behest, noted it was typical for such neck and back strains to resolve within three to six months. He did not address whether Bailey’s pregnancy may have extended this period. Dr. Blanda, who was Bailey’s treating physician, ultimately concluded Bailey suffered from a neck sprain which deteriorated her cervical disc that was “possibly surgical,” but could be treated conservatively with pain management. Dr. Blanda also concluded she suffered from some dessication and degenerative change in the lower back, which could be treated conservatively.

In Jacobs v. City of Marksville, 06-1386 (La.App. 3 Cir. 3/7/07), 953 So.2d 139, writ denied, 07-1093 (La.9/14/07), 963 So.2d 999, a plaintiff therein complained of recurring headaches, neck and back pain. He exhibited signs of spasm in both the neck and back, and was diagnosed with neck and back sprain, which lasted for approximately ten months. The defendant in that case argued the injuries were soft tissue in nature and required only one steroid injection and less than one month of physical therapy. The trial court awarded $35,000.00 in general damages and this court affirmed.

In Henry v. Wal-Mart Stores, Inc., 99-1630 (La.App. 3 Cir. 3/1/00), 758 So.2d 327, writ denied, 00-929 (La.5/26/00), 762 So.2d 1107, the plaintiff slipped and fell in a store. He sustained shoulder, lower back and leg pain as a result of the fall. He saw an orthopedic surgeon approximately five times over a period of ten months for his complaints and took prescription medications for his symptoms. The trial court awarded $22,000.00 in general damages, which was affirmed by a panel of this court.

We also find instructive the general damage awards in Francis v. Commercial Ins. Co., 594 So.2d 1025 (La.App. 3 Cir.1992) ($10,000.00 in damages for a six-month neck and back strain) and Marshall v. A & P Food Co., 587 So.2d 103 (La.App. 2 Cir.1991) ($10,000.00 in damages for a six-month neck and back strain). We find these awards relatively in line with Jacobs and Henry, noting these cases are over twenty years old.

After a review of the record and prior awards, considering the clear emotional distress exhibited by Bailey over the health of her unborn child, as well as her documented neck and back sprains, we find an appropriate general damage award in this case is $40,000.00.

DECREE

For the foregoing reasons, this Court reverses the jury’s verdict finding Kristy Bailey was not injured as a result of the accident in question. Furthermore, we render judgment in favor of the plaintiff, Kristy Bailey, in the sum of $17,115.29 in special damages and $40,000.00 in general damages. All costs of this appeal are assessed to defendants-appellees.

REVERSED AND RENDERED.

CONERY, J.,

concurs and assigns reasons.

Li concur with the majority’s decision to award damages, but disagree as to the nature, extent, and amount of damages awarded by the majority.

The main questions we have to answer on appeal are:

Was there a reasonable factual basis for the jury to refuse to award any damages for emotional pain and suffering, mental anguish and distress over the possibility of Ms. Bailey'losing her fetus?-No. The record establishes that the jury’s finding on this issue was clearly erroneous.

Was there a reasonable factual basis for the jury to refuse to award reasonable damages for a three-six month neck and back strain? — No. Again, the record establishes that the jury’s finding on this issue was also clearly erroneous.

Was there a reasonable factual basis for the jury to refuse to award damages for continued treatment of the neck and back injury? — Yes. The zero verdict assumes such a finding and that finding is clearly supported by the record. As we noted in Dore v. Mitsui Sumitomo Ins., USA, Inc., 12-875 (La.App. 3 Cir. 5/22/13), 117 So.3d 231, writ denied, 13-1953 (La.11/8/13), 124 So.3d 1094:

The standard of review of a jury’s findings is well-settled:

A court of appeal may not set aside a trial court’s |2or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Our supreme court set forth a two-part test for the reversal of a factfinder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
Cole v. Allstate Ins. Co., 07-1046, p. 2 (La.App. 3 Cir. 6/05/08), 987 So.2d 310, 312, writ denied, 08-1463 (La.10/31/08), 994 So.2d 535 (citing Earls v. McDowell, 07-17 (La.App. 5 Cir. 5/15/07), 960 So.2d 242).

Dore, 117 So.3d at 234-235 (emphasis added).

The majority correctly analyzed the facts surrounding the incident, initial hospital visit, and initial doctor visit. There is no question that the record shows that Ms. Bailey’s vehicle was struck from the side near the left rear bumper by defendant’s left turning tractor trailer. The truck driver simply cut the turn too short and liability was not seriously at issue. Ms. Bailey was stopped at the time of impact. She described that her vehicle was severely rocked back and forth from the impact. The pictures in evidence support that the collision caused moderate damage to the vehicle, corroborating Ms. Bailey’s complaints of the nature and extent of the impact. After the wreck, she was in tears as she was pregnant and was afraid for her fetus because of her high risk pregnancy. The truck driver corroborated that she was “shook up” and crying immediately following the accident. Her testimony that she called her doctor immediately and went to the E.R. after the police finished the accident report was uncontradicted and corroborated.

The fact that a witness later claimed that Ms. Bailey was sitting or lying on her trunk talking on her cell phone sometime after the wreck while she was waiting |3for the completion of the accident report is not evidence that Ms. Bailey wasn’t hurt and worried about her unborn baby.

The E.R. records corroborate Ms. Bailey’s complaints of lower abdominal pain and about her worry over her fetus. An ultrasound was conducted and was normal. The E.R. records also corroborate Ms. Bailey’s testimony that her neck and back hurt. She was treated and released with instructions to see her family physician for follow up. She saw Dr. Mark Davis several days later. No medication was prescribed because of the fetus, but she was instructed to return if complaints continued. She never did, nor was there any proof that she complained of neck and back pain when she went to the doctor for pre-natal check-ups. The hospital records for her baby’s birth also contain no such complaints, and none were noted in follow up after the birth. She delivered full term without complications. She did not see a doctor for neck and back pain again until she saw Dr. Blanda over one year from the date of the accident and after her attorney had filed suit.

When she eventually saw Dr. Stan Foster for a defense I.M.E., Dr. Foster opined that based on all the records he reviewed, on the history he obtained, and on his examination, Ms. Bailey had suffered a three-six month cervical and lumbar strain.

Based on the totality of the evidence in the record, there is no reasonable basis for the jury to award zero damages for Ms. Bailey’s mental anguish and emotional distress over the possibility of loss of her fetus, as well as her own pain and suffering for neck and back strain over a three-six month period.

There is a reasonable factual basis in the record for the jury to conclude that Ms. Bailey was not as severely injured as she said she was. As previously vindicated, Ms. Bailey did not consult Dr. Blanda for neck and back complaints until February 8, 2011, over a year after the accident and after her attorney had filed suit. The defendant further pointed out some inconsistencies in Ms. Bailey’s testimony concerning her complaints, her missed appointments, and, especially, the fact that she didn’t seek medical treatment for her neck and back pain from anyone until over a year after the accident, despite the fact that she worked for a doctor and could easily have sought such treatment. As we said in Dore, 117 So.3d at 237:

Despite counsel for Dore’s protestations to the contrary, just because evidence of medical treatment was presented, it does not necessarily follow that the jury is required to conclude that the medical treatment was caused by the accident. Credibility calls are for the jury to decide. Lirette, 563 So.2d 850. Based upon the evidence and testimony in the record, a jury could reasonably conclude that Dore did not give accurate medical histories to her physicians and that she lacked credibility.

In this case, there is a reasonable factual basis in the record for the jury to conclude that Ms. Bailey’s neck and back complaints to Dr. Blanda and her treatment therefor were either exaggerated, or were unrelated to the wreck. I disagree with the majority’s decision to award medical expenses for the treatment and testing ordered by Dr. Blanda, and to include in the general damage award money damages for that treatment and alleged continued pain and suffering for neck and back pain during and after her treatment with Dr. Blan-da.

I would award medical expenses for Ms. Bailey’s visit to the E.R., and the costs of the testing done at the hospital only. The record shows that those initial costs amount to $3,694.50. There was no evidence as to the amount charged for Ms. Bailey’s initial visit in follow up with Dr. Davis. The record would then ^support a general damage award of $15,000.00, which, in my opinion, would fairly compensate Ms. Bailey for her emotional pain and suffering due to the fear of losing her baby from the date of the wreck until normal delivery, and for her personal injuries and pain and suffering for a three to six month period for neck and back strain. Gomez v. Galmiche, 433 So.2d 386 (La.App. 4 Cir.1983); Gagnet v. Zummo, 487 So.2d 721 (La.App. 5 Cir.1986); Phipps v. Allstate Ins. Co., 05-651 (La.App. 5 Cir. 2/27/06), 924 So.2d 1081.

I would award a total of $18,694.50 in general and special damages. I would apportion court costs and costs of this appeal equally.

      . Bailey notes these MRIs were performed in an open air MRI machine, due to her claustrophobia. Bailey notes it is well established that the results of MRIs performed in open air machines are not as clear as normal MRIs, which may well explain the relatively normal findings on the cervical MRI.

      . Property damages totaling $1,522.30 were paid and are not at issue.

      . The medical bills for the initial E.R. visit include:
      Iberia Medical Center $2,477.50
      Iberia Emergency Physicians $1,041.00
      Radiology Associates of Acadiana $176.00
      Total $3,694.50


author: LEE, C.J.,

text:
    Crystal CLAY, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00980-COA.
    Court of Appeals of Mississippi.
    Aug. 5, 2014.
    Rehearing Denied Dec. 2, 2014.
    Azki Shah, attorney for appellant.

      Office of the Attorney General by Barbara Wakeland Byrd, attorney for appel-lee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   LEE, C.J.,

for the Court:

¶ 1. A jury in the Coahoma County Circuit Court found Crystal Clay guilty of aggravated assault. The trial court sentenced Clay to serve three years in the custody of the Mississippi Department of Corrections, with two years of post-release supervision. Clay was also ordered to pay $150 in restitution. Clay filed a post-trial motion, which the trial court denied. Clay now appeals, asserting that the trial court erred in (1) allowing testimony concerning a witness’s prior conviction, and (2) admitting certain Facebook postings into evidence.

FACTS

¶2. On September 4, 2012, Clay and Marquita Thomas engaged in a fight at Thomas’s apartment in Clarksdale, Mississippi. Clay had been to Thomas’s apartment the day before, where she had learned Thomas and DiMarkus Williams were in a relationship. Clay and Williams had previously been involved in a physical relationship.

¶ 3. On the day of the fight, Clay showed up at Thomas’s apartment, but Thomas was not home at the time. Williams, Shorisa Mathis, and Victor Moore were at the apartment. All three testified that Clay was angry and intended to fight Thomas. Clay left but returned later that day. The women began yelling at each other. Thomas pushed Clay’s hands out of her face, which caused the fight to turn physical. At one point Clay pulled out a box cutter and began slashing at Thomas. Clay cut Thomas’s finger and her left arm. Thomas grabbed a chair and hit Clay in the shoulder with it. Williams then broke up the fight. Clay left, and Thomas went to the hospital, where she received twenty-eight staples in her arm.

¶ 4. The following Monday, Thomas pressed charges against Clay. During the investigation, Officer Norman Starks, an investigator with the Clarksdale Police Department, accessed Clay’s Facebook'pro-file. Officer Starks printed a copy of Clay’s comments, which were later introduced into evidence at trial.

¶ 5. Cedric McCray, who had accompanied Clay to Thomas’s apartment and witnessed the fight, testified Clay used the box cutter in self-defense after Thomas hit her with the chair.

DISCUSSION

I. PRIOR CONVICTION OF WITNESS

¶ 6. Clay contends the trial court should have excluded evidence of McCray’s prior conviction. McCray had been convicted of misdemeanor false information on June 7, 2001. Prior to McCray’s testimony, Clay asked that any evidence of McCray’s prior conviction be excluded. We review the trial court’s decision to allow the impeachment evidence under our familiar abuse-of-discretion standard. Strickland v. State, 980 So.2d 908, 919 (¶ 18) (Miss.2008).

¶ 7. Mississippi Rule of Evidence 609 governs the impeachment of witnesses by evidence of a prior conviction. Rule 609(a)(2) states: “[E]vidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.” The rule further states that “[ejvidenee of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction ... unless'the court determines ... that the probative value of the conviction supported by the specific facts and circumstances substantially outweighs its prejudicial effect.” M.R.E. 609(b).

¶ 8. However, if the witness to be impeached through the admission of prior convictions is not a party, any prejudice to that non-party witness is irrelevant, as a non-party can suffer no prejudice. Young v. State, 731 So.2d 1145, 1151 (¶ 39) (Miss.1999). “Even where the non-party witness being impeached is one party’s primary or sole witness, evidence of a pri- or conviction of that witness must be admitted if the requirements of Rule 609(a) ... are met.” Moore v. State, 787 So.2d 1282, 1290 (¶ 26) (Miss.2001).

¶ 9. In this instance, the trial court determined McCray’s crime of false information was properly admitted pursuant to the requirements of Rule 609. We find no abuse of discretion by the trial court in allowing evidence of McCray’s prior conviction to be admitted. This issue is without merit.

II. FACEBOOK MESSAGES

¶ 10. In her other issue on appeal, Clay contends the trial court erred in allowing certain Facebook postings into evidence. During Officer Starks’s testimony, he stated that during his investigation, he accessed Clay’s Facebook page through his own Facebook page. After reading comments made by Clay on her Facebook page and speaking with the other witnesses at Thomas’s apartment, Officer Starks charged Clay with aggravated assault. Officer Starks testified he printed out these Facebook comments on September 4, 2012, a few days after the fight. The State attempted to introduce them into evidence, and Clay objected on the ground that the State failed to lay a proper foundation.

¶ 11. “The standard of review regarding admission or exclusion of evidence is abuse of discretion.” Newell v. State, 49 So.3d 66, 71 (¶ 9) (Miss.2010). This Court will not disturb the trial court’s evidentiary ruling “unless the error adversely affects a substantial right of a party.” Id. (quoting Mingo v. State, 944 So.2d 18, 28 (¶ 23) (Miss.2006)). Mississippi Rule of Evidence 901(a) states that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” One means to authenticate evidence is through the testimony of a witness with knowledge “that a matter is what it is claimed to be.” M.R.E. 901(b)(1).

¶ 12. In Smith v. State, a case of first impression, the Mississippi Supreme Court recently discussed the unique issues posed in attempting to authenticate social media such as Facebook postings, noting that “something more than simply a name and [a] small, blurry photograph purporting to be Smith is needed to identify the Face-book account as his in the first place.” Smith v. State, 136 So.3d 424, 433 (¶20) (Miss.2014). The supreme court found that this “something more” could be as follows:

For example, the purported sender admits authorship, the purported sender is seen composing the communication, business records of an internet service provider or cell phone company show that the communication originated from the purported sender’s personal computer or cell phone under circumstances in which it is reasonable to believe that only the purported sender would have access to the computer or cell phone, the communication contains information that only the purported sender could be expected to know, the purported sender responds to an exchange in such a way as to indicate circumstantially that he was in fact the author of the communication, or other circumstances peculiar to the particular case may suffice to establish a prima facie showing of authenticity-

Id. at (¶ 21) (citations omitted). The supreme court found that the State failed to make a prima facie case that the Facebook messages were from Smith or that the Facebook profile belonged to Smith. Id. at 434 (¶ 24). There was also no testimony “regarding the security of or access to Smith’s Facebook account....” Id. at 435 (¶ 25). The supreme court determined the trial court abused its discretion in admitting the Facebook messages. Id. at (¶ 26). But the supreme court determined the error was harmless given the overwhelming evidence of Smith’s guilt. Id. at (¶ 28).

¶ 13. In this instance, we find the State has failed to make a prima facie case that the Facebook comments were from Clay. Although some of the postings mention a fight and the name Marquita, there was no testimony that the photograph in the Facebook profile was that of Clay. The profile states the account belongs to a “Crystal Clear,” who was born on March 4; graduated from Clarksdale High School; speaks Japanese, Chinese, and English; and lives in Paris, France. No personal information regarding Clay was elicited to determine whether the profile was hers. Furthermore, Clay did not admit authorship of these postings, nor was there testimony she was seen composing these comments. The only testimony concerning Clay’s Facebook usage occurred prior to the altercation with Thomas, which only established that Clay had used Thomas’s computer in the past to log in to her Facebook account. This testimony also highlights concerns regarding the susceptibility of Clay’s Facebook account to a potential security breach.

¶ 14. We find the trial court abused its discretion in admitting the Fa-cebook messages purporting to be from Clay’s account. Like the Court in Smith, we now must determine whether admitting this evidence was harmless. Id. at (¶ 26). “We do not reverse a conviction for an erroneous evidentiary ruling unless the error adversely affects a substantial right of a party, or in other words, unless the ruling prejudiced the accused.” Id. at (¶ 27) (internal quotations omitted). The conviction will not be reversed “where it is clear beyond a reasonable doubt that the error did not contribute to the verdict.” Id. (citation omitted).'

¶ 15. In this instance, there were three ■witnesses who testified Clay arrived at Thomas’s apartment angry and intending to fight Thomas. These witnesses stated that once the fight between the two women became physical, Clay stabbed Thomas with a box cutter, after which Thomas picked up the chair to defend herself. Given the evidence of Clay’s guilt, we find the admission of the Facebook postings was harmless.

¶ 16. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FOLLOWED BY TWO YEARS OF POST-RELEASE SUPERVISION, WITH THE SENTENCE TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED, AND TO PAY $150 IN RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: ISHEE, J.,

text:
    Marci Harvison OGLESBY a/k/a Marci H. Oglesby a/k/a Marci Oglesby, Appellant v. CITY OF MADISON, Mississippi, Appellee.
    No. 2013-KM-01301-COA.
    Court of Appeals of Mississippi.
    Aug. 19, 2014.
    Rehearing Denied Nov. 25, 2014.
    Kevin Dale Camp, Jared Keith Tomlin-son, Jackson, attorneys for appellant.
    John Gordon (Trae) Sims III, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the court:

¶ 1. On October 2, 2012, Marci Harvi-son Oglesby was convicted of driving under the influence (DUI), first offense, and careless driving. She was sentenced for the DUI charge to serve forty-eight hours in the custody of the Sheriff of Madison County, Mississippi, as well as ordered to pay a fíne of $900. For the charge of careless driving, she was ordered to pay a fíne of fifty dollars. Oglesby ultimately appealed her conviction and sentence for DUI, first offense, to the Madison County Circuit Court. The circuit court upheld Oglesby’s conviction and sentence. Aggrieved, Oglesby appeals.

STATEMENT OF FACTS

¶ 2. On February 11, 2012, at approximately 12:80 a.m., Oglesby was traveling eastbound on Hoy Road in Madison, Mississippi. Officer Britt Thomas of the Madison Police Department testified that he was traveling behind Oglesby when he witnessed her vehicle cross the white line into the gravel off Hoy Road. Subsequently, Officer Thomas pulled the vehicle over for careless driving and conducted a traffic stop. Officer Thomas asked Oglesby for her driver’s license and proof of insurance, which Oglesby retrieved from her purse in the trunk of the vehicle. Officer Thomas testified that, at this time, he smelled an intoxicating substance coming from Ogles-by’s vehicle. He asked Oglesby if she had been drinking, and she said that she had a couple of drinks. Officer Thomas admitted under oath, however, that he did not observe anything about Oglesby’s speech, eyes, or coordination to indicate that she was intoxicated. Officer Thomas then called Officer Drew Hall, also with the Madison Police Department, for assistance.

¶ 3. Officer Hall is certified in standard field sobriety testing, advanced roadside impaired-driving enforcement, and conducting the Intoxilyzer 8000. Although Officer Thomas is also certified in standard field sobriety testing, he testified that he asked for Officer Hall’s assistance due to Officer Hall’s lengthy tenure with the department as well as his experience. When Officer Hall arrived, Officer Thomas turned the traffic stop over to Officer Hall. Officer Hall introduced himself to Oglesby and informed her that he would be performing a field sobriety test. He asked Oglesby how many drinks she had consumed that evening, if any, and she stated two. He testified that he observed her eyes to be glassy and bloodshot. Officer Hall stated that he then asked Oglesby if she would be willing to submit to a preliminary breath test, but Oglesby refused. Oglesby, however, participated in the horizontal-gaze-nystagmus test (HGN) and the walk-and-turn test.

¶ 4. Prior to the HGN test, Officer Hall asked Oglesby if she had any physical impairments, to which she stated no. However, she later advised him that she suffered from a lazy eye. Officer Hall informed Oglesby that he would take that into account. He stated under oath that, during his training and certification process qualifying him to administer the HGN test, he was instructed on how to factor a lazy eye into the test. He declared that the HGN test can still be administered to a person with a lazy eye. During the HGN test, Officer Hall observed that Oglesby had difficulty following simple instructions, could not keep her head still, and would not follow his finger. Even though he had to discontinue the test, he found nystagmus present, thus indicating impairment.

¶ 5. Officer Hall then conducted the walk-and-turn test. During the walk-and-turn test, Officer Hall observed five out of a possible eight indicators of intoxication: inability to balance during instructions, missed heel-to-toe, incorrect turn, stops while walking, and steps off the line. He then asked her to perform a one-leg stand, for which he had to give her instructions twice. However, Oglesby ultimately refused to cooperate and complete the test. Subsequently, Officer Hall placed Oglesby under arrest for DUI and careless driving. Oglesby was transported to the Madison Police Department for the purpose of being offered the Intoxilyzer 8000 test, an alcohol-measuring breath test, but she declined to participate.

¶ 6. Oglesby was convicted in the Madison Municipal Court of DUI, first offense, and careless driving. She appealed the convictions to the County Court of Madison County for DUI, first offense, and careless driving, where she received a trial de novo on October 2, 2014. Following the presentation of the State’s evidence, Ogles-by made a motion to dismiss, which was denied. The county court ultimately found Oglesby guilty of DUI, first offense, and careless driving. For the conviction of DUI, first offense, Oglesby received a forty-eight hour suspended sentence, and was ordered to pay a fine of $900. She was also order to complete Mississippi Alcohol Safety Education Program (MASEP) classes and two years of unsupervised probation. For the conviction of careless driving, she was ordered to pay a fine of fifty dollars. Oglesby then appealed the DUI conviction to the Madison County Circuit Court, which upheld the judgment of the county court. Oglesby now appeals.

STANDARD OF REVIEW

¶ 7. “The standard of review for a judgment entered following a bench trial is well settled. In a bench trial, the trial judge is ‘the jury’ for all purposes of resolving issues of fact.” Sendelweck v. State, 101 So.3d 734, 738-39 (¶ 19) (Miss.2012). “The Mississippi Supreme Court has stated that: for review of the findings of a trial judge sitting without a jury, the appellate court will reverse only where the findings of the trial judge are manifestly erroneous or clearly wrong.” Id. at 739 (¶ 19) (internal citations omitted).

DISCUSSION

¶8. On appeal, Oglesby argues that the trial court erred in denying her motion for a directed verdict. The record reflects that, following the close of the State’s case-in-chief, Oglesby made a motion to dismiss based on the assertion that the State had failed to establish a prima facie case for careless driving and DUI, first offense. Although the motion was titled as one for dismissal, it had the same effect as one for a directed verdict given the motion’s style and timing, and the circuit court’s understanding of the motion. See, Thames v. State, 5 So.3d 1178, 1188-89 (¶ 33) (Miss.Ct.App.2009). “Motions to dismiss, motions for JNOV, and motions for [a] directed verdict all challenge the legal sufficiency of the evidence.” Id. at 1188 (¶ 32) (citations omitted).

¶ 9. Oglesby argues that the evidence was insufficient to support her conviction of DUI, first offense, under Mississippi Code Annotated section 63-11-30(1)(a) (Rev. 2013). In order for the evidence to be found sufficient to sustain a conviction, the evidence must show “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). This Court will reverse a conviction only if the evidence “point[s] in favor of the defendant on any element of the offense with sufficient force that [a] reasonable [fact-finder] could not have found beyond a reasonable doubt that the defendant was guilty.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 10. Section 63-11-30(1)(a) makes it “unlawful for any person to drive or otherwise operate a vehicle within this state who is under the influence of intoxicating liquor[.]” Section 63-11-30(1)(a) is often referred to as “common[-]law DUI.” Ellis v. State, 77 So.3d 1119, 1126 (¶ 30) (Miss.Ct.App.2011) (citing Gilpatrick v. State, 991 So.2d 130, 133 (¶18) (Miss.2008)). “Common[-]law DUI is proven when a defendant’s blood[-]alcohol results are unavailable or the defendant’s [blood-alcohol content] tests under the legal limit, but there is sufficient evidence that the defendant operated a vehicle under circumstances indicating his ability to operate the vehicle was impaired by the consumption of alcohol.” Id.

¶ 11. There was ample evidence presented at trial to support a finding that Oglesby operated her vehicle while impaired by the consumption of alcohol. Officer Thomas ' testified that he observed Oglesby’s vehicle drifting over the white line off the road; he smelled alcohol emerging from her vehicle once he made the traffic stop; and Oglesby admitted that she had been drinking. Officer Hall stated that when he arrived on the scene, he noticed Oglesby’s eyes were glassy and bloodshot. Officer Hall also noted that Oglesby hád difficulty following his instructions during the field sobriety test. He testified that she demonstrated impairment during the walk-and-turn test, and that she refused the Intoxilyzer 8000 test. Further, the video recording of Oglesby’s traffic stop was admitted into evidence, which allowed the judge to make an independent and neutral determination as to Oglesby’s actions and demeanor, separate from the testimony given at trial.

¶ 12. We find that the evidence shows that a reasonable fact-finder could have found beyond a reasonable doubt that Oglesby committed the crime of DUI, first offense, and she did so under such circumstances that every element of the offense existed. Accordingly, we find this issue is without merit. Thus, the judgment of the circuit court is affirmed.

¶ 18. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, MAXWELL, FAIR AND JAMES, JJ„ CONCUR. CARLTON, J., NOT PARTICIPATING.