author: LOLLEY, J.

text:
    Robin ALLEY, Plaintiff-Appellee v. PERINI/O & G INDUSTRIES, Defendants-Appellants.
    No. 44,268-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Robin Alley, pro se.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, by Robert A. Dunk-elman, Shreveport, for Appellants, Perini 0 & G Industries, Farmington Casualty Co.
    Before BROWN, STEWART and LOLLEY, JJ.
   LOLLEY, J.

| iDefendant, Perini/O & G Industries, appeals a judgment from the Office of Workers’ Compensation, District 1-W, Parish of Caddo, State of Louisiana, which found in favor of claimant, Robin Alley. For the following reasons, we reverse in part and affirm in part.

FACTS

This matter arises out of an accident which occurred on May 18, 1994, when claimant, Robin Alley, worked at the construction company Perini/O & G Industries (“Perini”). While working with others to lift a cross tie, Alley felt a pulling sensation and immediate back pain. Perini stipulated that there was an accident (“Perini accident”) and that Alley was hurt. Alley filed this lawsuit in 2005 when Perini ceased paying benefits after having paid them for 520 weeks (10 years). After having two separate attorneys withdraw resulting in several delays, Alley proceeded to trial as a pro se litigant on October 8, 2007. At trial, the issue to be determined was which, if any, of Alley’s continuing medical conditions were causally connected to the Perini accident.

After the trial, the Workers’ Compensation Judge (“WCJ”) found that Alley was not entitled to permanent or total disability benefits under the Workers’ Compensation Act, medical treatment regarding her heart condition or her left shoulder injury, or home health care. However, the WCJ did find that Alley was entitled to medical benefits and treatment for the following conditions: chronic pain; incontinence; depressive disorder; dental condition; dry mouth and dry eyes; neck pain; back pain; headache; radiating leg pain and nerve damage from her back injury; pain | ^management; hernia; effects from use of prescription medications; and, removal of the ANS unit. The WCJ also found that Alley was entitled to her choice of pain physician; medicals including mileage benefits for the above listed conditions; and, that defendant must repay Medicare/Medicaid. In addition, defendant was charged with penalties for delay of Alley’s treatment. The WCJ also found that Alley did not violate La. R.S. 23:1208. This appeal by Perini ensued.

LAW AND DISCUSSION

On appeal, Perini argues that the WCJ was manifestly erroneous in finding that Alley was entitled to medical benefits, mileage, choice in pain physician, and Medicare/Medicaid repayment for the conditions listed above. In addition, Perini appeals the WCJ’s finding that Alley did not violate La. R.S. 23:1208.

Workers’ compensation benefits are available for claimants who suffer personal injury by accident arising out of and in the course of employment. La. R.S. 23:1031(A). Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 1996-2840 (La.07/01/97), 696 So.2d 551. In order for the employee to recover, he must establish a causal link between the work-related accident and his injury. Albert v. Trans-Met, Inc., 38,261 (La. App. 2d Cir.06/23/04), 877 So.2d 183; Qualls v. Stone Container Corporation, 29,794 (La. App. 2d Cir.09/24/97), 699 So.2d 1137, unit denied, 1997-2929 (La.02/06/98), 709 So.2d 736. The claimant does not |3necessarily have to establish the exact cause of his disability or injury, but he must demonstrate by a preponderance of the evidence that the accident had a causal connection with it. Buxton v. Sunland Construction, 34,995 (La.App. 2d Cir.08/22/01), 793 So.2d 526.

If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the claimant fails to carry the burden of proof. Lubom v. L.J. Earnest, Inc., 579 So.2d 1174 (La.App. 2d Cir.1991). The issue of disability within the framework of the workers’ compensation law is not solely a medical determination. The totality of the evidence, lay and medical, resolves the issue. The fact finder is free to accept or reject the opinion of a physician or medical expert depending upon that expert’s qualifications, credibility and testimony. Anthony v. BE & K Construction, 32,729 (La.App. 2d Cir.05/10/00), 760 So.2d 608, writ denied, 2000-1673 (La.09/15/00), 768 So.2d 1280.

Medical Evidence

At trial, Alley complained of a myriad of medical conditions that she attributes to the Perini accident. Alley’s medical history is lengthy as it covers over 14 years of treatment, both for physical and mental issues. The evidence supports the claim that Alley suffered from a hernia and mild ligamentous strain in her back soon after the Perini accident. Perini, at trial, agreed with this assessment but not to the other conditions that Alley complains of.

| ¿Back Injury

Alley’s back problems are complicated. For one thing, we note that Alley had a pre-existing back injury which required a total of four surgeries in 1984 and 1985 around the L4 and L5 region of the spine. This predated her employment with Perini. After reviewing the medical evidence, the most informative documents are the medical reports regarding Alley’s treatment immediately after the Perini accident. Her first physician, Dr. Don Burt, attended to her right after the accident and opined that Alley did “show some tightness of the low back at the time; however, she had normal strength, normal reflexes, normal sensation, normal sciatic stretch tests, and normal electromyographic studies involving the lower extremities.” In short, he “judged her recent injury to be entirely muscular in nature.” Alley decided to obtain a second opinion.

Dr. Christopher Burda, a rheumatologist, diagnosed her with a “mild ligamen-tous strain” and she was sent to physical therapy. In July 1994, Alley came back to Dr. Burda with new complaints, i.e., neck pain. Dr. Burda referred her to Dr. James Zum Brunnen, an orthopaedic surgeon, for further examination. She underwent an MRI of the lumbar spine on September 30, 1994, which showed scarring around the L4 and L5 area where her previous operations were performed; however the examinations did not show any neck-related or new back injuries. In 1995, Dr. Zum Brunnen’s notes indicated that she is showing some “general improvement.” In fact, Dr. Zum Brunnen gave her permission to ride her “gentle” horse. One month later, Dr. Zum Brun-nen reported that she “move[d] about | ¡¡readily.” On May 8, 1995, Alley was in a car accident and came to Dr. Zum Brun-nen complaining for the first time of thoracic and shoulder pain, and tenderness in the right cervical area, in addition to some lumbar pain.

Psychological Issues

Alley came back to Dr. Zum Brunnen with psychological issues 6 months after the Perini accident. Dr. Zum Brunnen referred her for a psychological consult. The report from this consult indicated that Alley “shows extremely poor health habits in comparison to her peers. Continuation of a similar lifestyle will compromise her health over a lifetime.” Eventually Dr. Charles Armistead, a psychiatrist, saw her in March 1995 and his report indicated that Alley felt she had been “phobic for years.” Dr. Armistead stated that he did not know the exact extent of her medical problems but noted Alley’s primary complaint was a work situation and issues with sexual harassment while at Perini. She was diagnosed as having chronic anxiety with phobic features and chronic depression.

In 2001, she reported having family problems and this worried her significantly. In 2003, a report indicated that she had not had her Zoloft in weeks and the nausea and vomiting may have resulted from her anxiety and depression. Also in 2003, another examiner, Dr. Jonathan Cole, found that there are “psychological factors creating or exacerbation [sic] the patient’s pain presentation_She is overly focused on her health at this time and she can be passive/aggressive and get back at other people indirectly when she feels she has been wronged.”

1rPain Management and Other Conditions

Over the next 10 years, Alley moved twice for personal reasons, first to South Carolina and then Kentucky. She continued to see various doctors — including many pain management specialists. In South Carolina at the Carolina Spine Institute, Dr. Leonard Forrest opined that her neck issues “are considered to be soft-tissue related only.” In 1998, Dr. Forrest believed that the treatment had reached “maximum medical improvement” after a series of epidural injections in the L4, L5 region of her back. Alley eventually switched doctors, and started seeing Dr. Mark Netherton who suggested the use of Racz catheter procedure and completed this operation in September 1998. When this procedure did not prove to be effective, Dr. Netherton suggested that the last thing they could try that would be helpful but “not make her 100%” was to implant a dorsal column stimulator for pain control (“ANS unit”). In 2001, she received the ANS unit.

In Kentucky, Dr. Harold Rutledge treated Alley at the Central Kentucky Pain Professionals, PLLC. He reported in his medical record:

I attempted to clarify exactly where she was complaining of new pain in the right lower extremity. I asked specifically if she could describe the pain in the front, side, back of the upper left and whether it extended below the knee into the foot, etc. She seemed not to be able to do this and three minutes or so later, I still was unclear exactly where she was experiencing pain in her right leg.

Alley also saw Dr. Mark Delomas in Kentucky, and he performed another operation, a bilateral lumbar facet injection with fluoroscopy.

The record also indicates that over the past 13 years she has complained of various symptoms and “new” medical issues developed 17including incontinence, upper extremity weakness and numbness, leg pain, gum disease as a result of her prescribed medications, ANS unit malfunction, and fibromyalgia.

Causal Connection

After a thorough review of the evidence we cannot find a causal connection of the various conditions to the Perini accident. First we note that Alley’s psychological evaluations all allude to a “sexual harassment” incident that occurred on the job presumably while at Perini yet nothing is mentioned about the actual on-the-job accident. The reports also indicate that her psychological issues manifest themselves as somatic health issues including chronic pain. This was evident early on when the first psychological “consult indicated that, somatic complaints have characterized the past year.” The same diagnosis has been made over the last decade regarding her psychological state and we cannot, by a preponderance of the evidence, attribute her various psychological issues to the accident.

Further, we cannot determine the various medicines and treatment that have multiplied over the years to be related to the Perini accident. We find the car accident Alley had in 1995 to be of great significance and a superseding incident. The record indicates that Alley was doing better before her motor vehicle accident. Several of the complaints Alley had at trial could be directly linked to the motor vehicle incident. In addition, several reports over the last decade consistently attribute her back pain to the scarring from the previous surgeries and not to the Perini accident. In [8May 1996, Dr. Zum Brun-nen noted that he does “not advise surgical treatment.” This same analysis was made five years later when Alley went to the Carolina Spine Institute. A doctor there stated that she would not be a candidate for back surgery.

Accordingly, we analyze each of the conditions that the WCJ found were a consequence of her work-related injury.

Chronic Pain: The record does not disclose whether the chronic pain is due to the previous surgeries, the motor vehicle accident, natural aging, or psychological issues manifesting themselves as somatic conditions. Because we have determined that issues with the hernia have been resolved, and the current general pain cannot be causally related to the “mild liga-mentous strain” from 14 years ago, we find the WCJ was manifestly erroneous in awarding medical benefits for chronic pain.

Incontinence: Her medical records vary as to whether she suffered from bowel or bladder dysfunction. In 1999, the first time incontinence is mentioned, Alley explained that this occurred after one of her epidural injections. However in 2000, one report indicates she does not suffer from incontinence. There is also some indication that this could be a result of a rectal fistula that was repaired in 1991. Dr. Rutledge was unable to determine a connection between her medications for her back problems and the incontinence. Dr. Steven Swift, a South Carolina doctor treating Alley for incontinence, indicated that he could not determine the exact cause and that it is a “relatively impossible task.” Therefore we find the WCJ was manifestly erroneous in its finding.

\JDepressive Disorder: As we noted above, there were several accounts of Alley’s anxiety over her perceived “sexual harassment” at work which is not the subject of this lawsuit. When she did mention her back pain during these consults she reported being afraid of future surgeries and talked about her previous back surgeries. There has been no indication that future back surgery is necessary.

Treatment for side effects from her prescription medications: Since we cannot determine the duration of use and which medications were legitimately used to manage her mild ligamentous strain 14 years ago — if any — we cannot find that all side effects are covered as a result of the Perini accident.

Dental condition, dry mouth and dry eyes: These conditions are side-effects from her medication intake. Nothing in the record specifically connects pain medication to her mild ligamentous strain or hernia. As such, the WCJ erred in finding these to be a derivative of the Perini accident.

Neck: After the Perini accident, several tests showed no evidence of neck-related injuries. In 1998, she reported her neck symptoms were minor. We cannot find supporting evidence relating the pain to the Perini accident. In addition, there have been several superseding incidents that could have caused the neck pain, e.g., car accident, psychological issues, etc. Therefore, we find that the WCJ erred in its findings.

Back: All reports indicate that the pain Alley continues to experience is related to scarring from the initial surgeries predating her employment at Perini. Therefore we disagree with the WCJ that this condition is related to the Perini accident.

| mLey Pain/Nerve Damage: Here, Alley fails to causally connect this condition to the Perini accident. Several MRIs of the lumbar spine show the scarring from the previous surgeries as a possible reason for this condition. We also mention that the treating physicians had a hard time identifying the issue to begin with. Again, the evidence does not support the WCJ’s findings.

Headaches: First indication of headaches, according to the record, were in 2004. There is no evidence what the cause or relationship is to the various medical conditions and procedures Alley has had. Therefore we find the WCJ erred in finding this treatment is related to the Perini accident.

Pain Management: The findings have been consistent among the pain management doctors that the treatments are not helpful for Alley. Dr. Rutledge opined that Alley has an expectation regarding treatment that was “unrealistic.” He further stated that:

It appears to me that Alley has had good treatment in at least two very good pain clinics. Despite their efforts, she continues to report her pain level at 10 +. It is unlikely that further aggressive therapy will make any significant difference.... I am of the opinion that Ms. Alley’s report of the current pain condition is unreliable and report of response to therapy is at best difficult to assess.

In addition to its ineffectiveness, we cannot find a causal connection between the need for pain management and the Perini accident. We find the WCJ was manifestly erroneous in awarding this treatment.

Hernia,: Alley, in her brief, admits that her hernia had been “fixed” and the record does not indicate any further issues related to the hernia.

ANS unit: The unit was placed for back and leg pain that cannot be causally linked to Perini accident. Nevertheless, several doctors did not feel |,,that anything should be done. In 2004, Dr. Delomas stated that he “could find nothing wrong with it and would not be doing surgery on the unit again. He further advised her to returned to clinic where she had it put in to see if they had any options for her.... ” We cannot find the removal of the unit is either necessary or causally related to the Perini accident.

Other findings: In light of our reversal of medical treatment of all the above listed medical conditions, we also reverse the WCJ’s grant of choice of pain management physician. Furthermore, we reverse the order for payments of medical bills and mileage expenses related to the conditions and the reimbursement to Medicare/Medicaid. The WCJ was manifestly erroneous in assessing penalties for the delay in approval of treatment of incontinence and the removal of the ANS unit as these claims were reasonably controverted. See La. R.S. 23:1201(F)(2).

While we sympathize with Alley’s ongoing afflictions, after a thorough review of the voluminous medical evidence, we fail to find a causal connection between the Peri-ni accident and the array of ailments with two exceptions, neither of which require further treatment: the hernia and mild ligamentous strain of the back. Alley’s medical evidence leaves the question open to speculation or conjecture regarding the source of her disabilities, and therefore she failed to carry the burden of proof.

Fraud charge

Perini argues that Alley committed fraud when she allegedly “made false statements” to obtain an adjustable therapeutic bed. Specifically, Perini argues that she manipulated Dr. Delomas into writing a prescription claiming- she had already received approval from the insurance company. | ^Louisiana R.S. 23:1208 provides in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation!.]
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter[.]

Alley argues that there was a misunderstanding and points out that she never received the bed. We do not believe Alley intentionally tried to defraud the workers’ compensation insurance, and find that the WCJ was not plainly wrong in finding that there was no violation of La. R.S. 23:1208.

CONCLUSION

In light of our findings, we note that Robin Alley has had a windfall of benefits after having numerous medical procedures, prescriptions, and doctors paid for by the worker’s compensation insurance for 10 years. While we do not dispute that Robin Alley suffers from physical pain we cannot find a continued causal connection to the Perini accident.

We affirm the WCJ’s finding that Alley was not entitled to permanent or total disability benefits under the Workers’ Compensation Act, medical treatment regarding her heart condition or her left shoulder injury, or home health care. We also affirm the WCJ’s finding that Alley did not violate La. R.S. 23:1208. In all other respects, the judgment is reversed. Costs are to be assessed equally among the parties.

AFFIRMED IN PART; REVERSED IN PART; RENDERED.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    HEIRS OF Bobbie JACKSON, Plaintiff-Appellant v. Dr. Richard M. O’DONOVAN, et al., Defendants-Appellees.
    No. 44,314-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      S. Douglas Busari & Associates, by S. Douglas Busari, Tallulah, for Appellant.
    Nelson, Zentner, Sartor & Snelling, LLC, by F. Williams Sartor, Jr., Monroe, for Appellees.
    Before STEWART, GASKINS & PEATROSS, JJ.
   STEWART, J.

| ,The trial court granted an exception of prescription filed by the defendant doctors in response to the initiation of medical review panel proceedings by the heirs of the decedent, Bobbie Jackson. Finding that the complaint is prescribed on its face and that the plaintiffs failed to prove that their action had not prescribed, we affirm.

FACTS

The plaintiffs, identified as the “Heirs of Bobbie Jackson,” filed a complaint on March 19, 2008, to initiate medical review panel (“MRP”) proceedings against the defendants, Dr. Richard M. O’Donovan, Dr. Michael R, Hand, and Dr. Walter M. Sartor concerning their treatment of Ms. Jackson and their alleged failure to diagnose an abdominal mass as cancer. The complaint identifies the heirs as “persons of full age and majority,” but does not explain their relationship to the deceased.

The complaint alleges that Dr. O’Donovan treated Ms. Jackson in June 2006, when she exhibited symptoms of weight loss, poor appetite, vomiting, and abdominal pain. Tests done on June 13, 2006, revealed a mass in Ms. Jackson’s right lower abdomen, but Dr. O’Donovan did not investigate or examine the mass. Rather, on June 15, 2006, he diagnosed the mass as an asymptomatic fibroid.

Still having abdominal complaints, Ms. Jackson was admitted to St. Francis North Hospital under Dr. Hand’s care on July 12, 2006. He diagnosed a gallbladder problem. On August 22, 2006, Dr. Sartor performed gallbladder removal surgery on Ms. Jackson. Although she was l2still complaining of abdominal pain upon discharge from the hospital, Dr. Sartor did not investigate its cause.

The complaint further alleges that Ms. Jackson was again admitted to the hospital on September 30, 2006, at which time another physician, who is not involved in this matter, diagnosed the abdominal mass as cancer. Ms. Jackson subsequently died on February 5, 2007. According to the complaint, the death certificate issued on March 21, 2007, identified the cause of death as sarcoma with metastasis.

The defendants responded to the MRP complaint by filing an exception of prescription in the district court. They argued that the plaintiffs’ complaint, which was filed more than one year after the date of Ms. Jackson’s death, was prescribed on its face. Therefore, they asserted that dismissal of the complaint was warranted unless the plaintiffs proved that it was not untimely.

In response, the plaintiffs offered the affidavit of Catina Jackson-Robinson, identified as an heir of Bobbie Jackson. The affidavit states that Ms. Jackson died at home and that her family was not advised of the cause of death until the death certificate was issued on March 21, 2007. According to the affidavit, the death certificate listed sarcoma cancer as the cause of Ms. Jackson’s death, thereby prompting the family to inquire into her medical records, which revealed the alleged malpractice by the defendants.

The exception was heard by the trial court on September 12, 2008. The minutes indicate that the parties declined to have the proceedings | ^recorded, thus there is no transcript to review. Upon taking the matter under advisement, the trial court rendered a judgment on October 12, 2008, dismissing the plaintiffs’ claim as prescribed. The trial court determined that any damage resulting from the alleged malpractice was apparent on February 5, 2007, the date of Ms. Jackson’s death. Prescription began to run on the date of death, and not on the date of the death certificate as contended by plaintiffs.

The plaintiffs’ appeal followed.

APPLICABLE LAW

Prescription is a peremptory exception that must be specially pleaded. La. C.C.P. art. 927(B). The party pleading prescription ordinarily bears the burden of proof; however, if prescription is evident on the face of the plaintiffs pleadings, then the burden shifts to the plaintiff to show that the matter has not prescribed. Carter v. Haygood, 2004-0646, p. 8-9 (La.1/19/05), 892 So.2d 1261, 1267; Campo v. Correa, 2001-2707, p. 7 (La.6/21/07), 828 So.2d 502, 508. Prescriptive statutes are to be strictly construed so as to favor the obligation sought to be extinguished. Carter v. Haygood, 2004-0646, p. 10, 892 So.2d at 1268.

The prescriptive period for medical malpractice actions is set forth in La. R.S. 9:5628(A), which states:

A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect; however, Reven as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

A health care provider against whom MRP proceedings have been initiated may raise an exception of prescription in a court of competent jurisdiction and proper venue before completion of the MRP process. La. R.S. 40:1299.47; Dixon v. Louisiana State University Medical Center, 33,036, p. 4 (La.App. 2d Cir.1/26/00), 750 So.2d 408, 411-412, unit denied, 2000-0627 (La.4/20/00), 760 So.2d 350.

La. R.S. 9:5628(A) provides two periods for filing a malpractice action — either one year from the date of the alleged act, omission, or neglect, or one year from the date of discovery so long as no more than three years have elapsed from the date of the alleged act, omission, or neglect. Campo v. Correa, 2001-2707, p. 9, 828 So.2d at 509. The first period applies when the damages are immediately apparent upon the commission of the alleged malpractice, whereas the second period is a codification of the fourth category of contra non valentem that occurs where the cause of action is not known or reasonably knowable by the plaintiff and when the damages are not immediately apparent upon commission of the alleged malpractice. Carter v. Haygood, 2004-0646, p. 11, 892 So.2d at 1268.

Considering the two prescriptive periods provided by La. R.S. 9:5628, a petition alleging medical malpractice is not prescribed on its face if it is brought within one year of the date of the discovery so long as there are facts alleged with particularity to show that the plaintiff was unaware of the malpractice before the date of discovery and that the delay in filing suit |6was not due to some willful, negligent, or unreasonable action by the plaintiff. Campo v. Correa, 2001-2707, p. 9, 828 So.2d at 509.

In Taylor v. Giddens, 618 So.2d 834 (La.1993), the supreme court clarified the applicability of La. R.S. 9:5628 to survival actions and wrongful death actions. The court determined that La. R.S. 9:5628 applies to the survival action, which comes into existence at the time of the tortious conduct and is derivative of the malpractice victim’s action. Id., at 840. The survival action, which allows the recovery of damages suffered by the victim from the time of injury until death, is dependent upon the victim having a viable malpractice claim at the time of death. Id. However, the wrongful death action, which compensates the victim’s family for their own injuries resulting from the victim’s death, arises when the victim dies and not at the moment of the alleged malpractice. Id. The wrongful death action is not derivative of the malpractice victim’s action and is not subject to the prescriptive periods of La. R.S. 9:5628. Rather, the wrongful death action is governed by the one-year period under La. C.C. art. 3492 applicable to delictual actions and begins running on the date of the malpractice victim’s death. Id., at 841. In Taylor, supra, the wrongful death action filed within one year of the malpractice victim’s death was timely, but the survival action filed more than three and one-half years after the tortious act was prescribed.

DISCUSSION

With the aforementioned principles in mind, we must determine whether the complaint initiating MRP proceedings filed on March 19, 2008,16is prescribed. To the extent that the plaintiffs seek damages for wrongful death, their claim is prescribed due to the fact that it was filed more than one year after the date of Ms. Jackson’s death, which occurred on February 5, 2007.

Seeking reversal of the trial court’s judgment, the plaintiffs argue that the survival action aspect of their malpractice claim is not prescribed. They contend that the complaint initiating MRP proceedings was timely filed within one year of the date of discovery of the malpractice and certainly within the three-year limit of La. R.S. 9:5628. The date of discovery occurred, according to plaintiffs, on March 21, 2007, when the death certificate identifying the cause of death as sarcoma with metastasis was issued. Upon learning that Ms. Jackson had died from cancer, her heirs were prompted to examine her medical records, which revealed the defendants’ alleged failure to diagnose Ms. Jackson with cancer.

As stated, a medical malpractice action brought within one year of the date of discovery is not prescribed on its face so long as the petition alleges facts with particularity to show that the plaintiff was unaware of the malpractice before the alleged date of discovery and that the delay in filing was not due to the plaintiffs willfulness, negligence, or unreasonableness. Campo v. Correa, 2001-2707, p. 9, 828 So.2d at 509. For prescription to begin, a plaintiff need only have constructive knowledge of facts that would indicate to a reasonable person that he or she was a tort victim. Campo v. Correa, 2001-2707, p. 11-12, 828 So.2d at 510. This means notice of sufficient facts to excite attention and call for inquiry. Id. There is no 17requirement that the plaintiff or injured party must be informed of possible malpractice by an attorney or medical practitioner before prescription begins to run. Abbott v. Louisiana State University Medical Center-Shreveport, 35,693, p. 6 (La. App. 2d Cir.2/27/02), 811 So.2d 1107, 1111, writ denied, 2002-0952 (La.5/31/02), 817 So.2d 104.

The petition in this matter is the complaint initiating the MRP proceedings filed on March 19, 2008. Contrary to the plaintiffs’ claim that they did not discover the alleged malpractice until the issuance of the death certificate prompted inquiry, the allegations set forth in their complaint point to the date of discovery as September 30, 2006, when a cancer “work up” was done on Ms. Jackson and the abdominal mass was found to be a “sarcomatous degeneration.” At this point, it was apparent that the defendants may have failed to properly diagnose Ms. Jackson’s complaints about abdominal pain and the etiology of the abdominal mass previously revealed in a CT scan on June 13, 2006. The diagnosis of cancer made on or immediately after September 30, 2006, would excite the attention of a reasonable person and call for an inquiry about possible malpractice by the defendants who had previously treated Ms. Jackson for abdominal complaints. Upon Ms. Jackson’s death on February 5, 2007, her viable malpractice claim was transmitted to her heirs who then had to file their survival claim within one year of her death and within three years of the date of the tortious conduct.

Based on the allegations made in the complaint, the plaintiffs’ survival action/malpractice claim is prescribed on its face, as asserted by |8the defendants in exception of prescription. The burden then shifted to the plaintiffs to show that the matter had not prescribed. To meet the burden of proving their claim had not prescribed, the plaintiffs offered the affidavit of Catina Jackson-Robinson. The affidavit, which simply alleges that the heirs were unaware of the cause of death and potential malpractice until the death certificate prompted them to inquire into Ms. Jackson’s medical records, does not alone suffice to show that the claim had not prescribed. If so, any plaintiff could easily defeat an exception of prescription by claiming he did not know.

The date that the malpractice occurred, or the date the deceased knew or should have known of the malpractice, is the date prescription began to run. According to the complaint, the abdominal mass was diagnosed as some type of cancer as early as September 30, 2006, at which time the facts suggesting the existence of a potential malpractice claim were apparent and discoverable. It was incumbent upon the plaintiffs to explain whether or not Ms. Jackson was aware of her condition and the actionable malpractice claim. If Ms. Jackson did not know and should not have known that she had an actionable malpractice claim, then plaintiffs had to explain why they did not learn of Ms. Jackson’s condition and actionable malpractice claim prior to the issuance of the death certifí-cate. Though the plaintiffs’ complaint suggests that Ms. Jackson should have been aware of her actionable malpractice claim by September 30, 2006, when she was diagnosed with cancer, plaintiffs offered nothing to show that Ms. Jackson had no knowledge of her claim or to explain what knowledge, if any, they had |9about her medical condition and treatment in the months prior to her death. Not even the death certificate was included in the record. We find that the bare allegation that they did not know about the malpractice until after the death certificate was issued does not suffice to show that the plaintiffs’ survival action is not prescribed.

Although La. C.C.P. art. 934 allows for amendment of the petition when the grounds of the peremptory objection may be removed by amendment, we do not find this article applicable to allow plaintiffs to plead facts supporting their claim of late discovery of actionable malpractice. Such facts should have been established by plaintiffs as part of their burden of proof before the trial court on the exception of prescription. See Holmes v. LSU/E.A. Conway Medical Center, 43,662 (La. App.2d Cir.10/22/08), 997 So.2d 605 and Dixon v. LSU Medical Center, supra.

CONCLUSION

For the reasons explained, we affirm the trial court’s judgment. Costs of appeal are assessed against the plaintiffs.

AFFIRMED.


author: MOORE, J.

text:
    J.P. MORGAN CHASE, et al., Plaintiff-Appellant v. Angela R. LOUIS, Defendant-Appellee.
    No. 44,309-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel by Michael Royce Sistrunk, Metairie, Ungarino & Eckert, L.L.C. by Brian D. Smith, J. Michael Nash, Shreveport, for Appellants.
    Law Offices of Street & Street by C. Daniel Street, Monroe, for Appellee.
    Before CARAWAY, PEATROSS and MOORE, JJ.
   MOORE, J.

| ,The employer, J.P. Morgan Chase, and its insurer, Liberty Mutual, appeal a judgment finding that the claimant, Angela Louis, sustained a work-related injury resulting in a protruded disc in her neck, ordering them to provide surgery, and assessing a penalty of $2,000 and attorney fee of $5,000. For the reasons expressed, we affirm in part and reverse in part.

Factual Background

Ms. Louis was employed at a Chase office in Monroe at an average weekly wage of $546.02. She had worked at Chase since 1998; in 2006, she was a “team leader,” charged with distributing and processing large boxes of mortgage documents. She testified that she had to move boxes weighing from 25 to 40 lbs.

For several months in 2004 she saw a chiropractor, Dr. Michael Harvey, for neck and lower back pain; she also described symptoms of carpal tunnel syndrome and ulnar compression in her right hand, but she ascribed none of these problems to her job at Chase. In April 2006, she was in an auto accident resulting in neck pain bad enough that she took off work for about two months. She received adjustments from Dr. Harvey and other treatment from her family doctor, and testified that her neck pain had resolved by June. Meanwhile, however, the pain in her wrist got so bad that she had carpal tunnel surgery at E.A. Conway Hospital on June 22. In a visit to Conway for an unrelated complaint on October 12, Ms. Louis told the physician’s assistant that she had no complaint with her neck.

In late September or early October, Chase had a reduction in force (“RIF”) with the result that Ms. Louis had to handle more boxes than before. |2In late October or early November — she could not recall the exact date — she was taking a box from a coworker and removing boxes from the gondola when she felt a sharp pain in her neck, followed by dull pain going down her shoulders, arm and back. She knew she was hurt, but not bad enough to take off work; she testified mentioning this event to several coworkers, notably Dawn Wiggins, but admitted not reporting it to her manager, Wayne Jefferson.

E.A. Conway’s records showed that she phoned on October 29, telling the operator her neck “started hurting again,” but that she received no further medical treatment for her neck. She testified that she continued to work in pain; when Dawn and other coworkers asked her why she could not turn her head, she said she’d hurt herself at work. She went to her chiropractor, Dr. Harvey, on December 1, and to her family doctor, who ordered an MRI on January 11, 2007. After seeing the results, he referred her to a neurosurgeon, Dr. Bernie McHugh.

On the initial visit in February 2007, Dr. McHugh’s physician’s assistant noted, “She returned to work in September 2006; since November, she has experienced cervical pain with radiation” — no mention of work-related. Dr. McHugh testified that the MRI showed “moderate to severe sten-osis” at C-4/5, for which he recommended pain management and epidural injections. He described stenosis as purely degenerative, likely aggravated by the auto accident. On cross-examination, he agreed that lifting boxes at work was a “reasonable assumption” to explain some exacerbation. On a second visit, March 1, he discussed intracervical Rdiskectomy and fusion at C — 1/5. She agreed, and they scheduled the surgery for April 9.

Ms. Louis then went to her manager, Wayne Jefferson, and told him she would need time off for the surgery. According to Ms. Louis, he advised her that she would have to contact the compensation carrier, Liberty Mutual, which she did; the adjuster emailed her forms to fill out, which she did; and she agreed to put off the operation until Liberty Mutual approved the procedure. She also testified that Liberty Mutual sent her to a Dr. Puaranton in Shreveport, who agreed that she needed the operation, but the insurer had still not approved it. Neither Jefferson, nor the insurance adjuster nor Dr. Puaranton was called to testify.

Ms. Louis also described a subsequent incident, on April 9, 2007, when she fell down a short flight of stairs as she was leaving work. She testified that she promptly reported this to the security office. The incident hurt her left hand, neck and knees, but is not part of the instant claim. She has continued to work.

Procedural History

Chase filed the instant disputed claim on August 20, 2007, stating that Ms. Louis “alleges” a neck injury on November 1, 2006, and that they had a bona fide dispute over occurrence, causation, disability, medical treatment and preexisting conditions. Ms. Louis then filed her own disputed claim, which was consolidated with Chase’s claim; her Form 1008 is not included in the consolidated appellate record. She demanded approval of the surgery with Dr. McHugh, weekly benefits of $420 during her recovery, |4and a penalty and attorney fee. Chase raised an exception of prescription which it apparently withdrew.

At trial in May 2008, Ms. Louis testified as noted above. She admitted not reporting the injury to her manager until March 2007, as she was not aware of the reporting requirement until then. She insisted that she had told several coworkers about it, and maintained that even though Dr. McHugh’s office records did not reflect it, she advised him the injury occurred at work. Dawn Wiggins, another team leader, testified that Ms. Louis told her her neck started hurting after she lifted some boxes. Coworkers Rosemary Thomas and Wanda Crockhom confirmed that Ms. Louis said she had hurt her back, but they could not recall her saying how it happened. Courtney Burrell, another coworker, corroborated that Ms. Louis stumbled down the stairs in April 2007. Ms. Burrell stated that Chase provided no training for reporting accidents, and Ms. Crockhom agreed that not all supervisors relayed this information to new hires. As exhibits, Ms. Louis introduced her Louisiana Pain Care record and Dr. McHugh’s records and deposition.

Chase called two witnesses. Chad Ellis, a coworker, testified that Ms. Louis never reported an accident and never told him her injury was work-related. Amy Squyres, a warehouse supervisor, testified that in November 2006, Ms. Louis had no immediate supervisor other than the branch manager, Jefferson. She also testified that Chase’s policy of reporting work-related injuries to a supervisor was part of the full FMLA notice given to all new hires, available on the website and posted on a placard | ¡¡downstairs. On cross-examination, Ms. Wiggins and Ms. Burrell testified that Chase’s attorney had interviewed them in May 2006 about Ms. Louis’s accident. As- exhibits, Chase introduced Dr. Harvey’s office notes and Ms. Louis’s complete E.A. Conway record.

Action of the WCJ

Ruling from the bench in August 2008, the WCJ recapped the evidence, finding that Ms. Louis’s neck pain from the auto accident had completely resolved by October 12, 2006. The WCJ noted Dr. McHugh’s diagnosis of a preexisting degenerative condition aggravated by the auto accident, but accepted his concession that lifting heavy boxes could further exacerbate this: “It added to her symptomolo-gy which led its way to surgical intervention.” Because of the recent RIF, Ms. Louis had to process more boxes and hurt herself removing them from the gondola; the incident and injury were corroborated by Ms. Wiggins and others. Chase did not adequately publish its reporting policy to Ms. Louis; even if it had, she had no direct supervisor to whom to report an accident. This, according to the WCJ, explained her failure to report the injury promptly, and Chase was not prejudiced by the late reporting. In fact, the WCJ commended Ms. Louis for her willingness to proceed with surgery under her private insurance instead of charging it to comp. She concluded that Ms. Louis was “clearly” entitled to the surgery and medical treatment.

Finally, the WCJ held that Chase did not reasonably controvert the claim. Each of its defenses was flawed: the late report of injury, because Chase failed to train employees how to report injuries; the pri- or injury from |fithe auto accident, because the E.A. Conway record and coworker testimony proved this had resolved by October 2006; and the preexisting stenosis, because Dr. McHugh stated it could be aggravated by trauma. The court assessed a penalty of $2,000 and attorney fee of $5,000.

Chase has appealed, raising three assignments of error.

Discussion: Failure to Report Accident Timely

By its first assignment of error, Chase urges the WCJ was clearly wrong to find no prejudice to its investigation of the claim by Ms. Louis’s é/Lmonth delay in reporting the alleged work injury. Chase cites La. R.S. 23:1301, which prohibits any proceeding for compensation “unless notice of the injury has been given to the employer within thirty days after the date of the injury[.]” Chase reiterates that Ms. Louis did not report it to the manager until March 2007, and none of the medical records reflected that her neck pain was work-related. Chase also shows that it interviewed several coworkers in May 2007, thus satisfying its duty to investigate. It also cites various inconsistencies in Ms. Louis’s testimony, chiefly her inability to pinpoint the date of the incident. It concludes that all these facts combined to create prejudice.

Ms. Louis responds that under La. R.S. 23:1305, a delay in reporting an incident will not defeat a claim unless it prejudices the employer. Hammock v. Weyerhaeuser, 40,464 .(La.App. 2 Cir. 12/14/05), 917 So.2d 733. Long delays may be excused when the claimant does not initially appreciate the severity of her injury. West v. Bayou Vista Manor, 371 So.2d 1146 (La.1979). She submits that she should not be penalized for her 17reasonable effort to work through the pain or for Chase’s failure to publish its reporting policy.

As it pertains to this case, notice of accident or injury is regulated by three sections of the Workers’ Compensation Act. Under La. R.S. 23:1301, “No proceeding under this Chapter for compensation shall be maintained unless notice of the injury has been given to the employer within thirty days after the date of the injury or death.” Under La. R.S. 23:1302, the employer must print and post at some convenient and conspicuous point in its place of business a notice advising employees of these reporting requirements; further, “If the employer fails to keep such a notice posted, the time in which the notice of injury shall be given as provided in R.S. 23:1301 shall be extended to twelve months from the date of injury.” Finally, La. R.S. 23:1305 provides, “Lack of notice or delay in giving notice shall not be a bar to proceedings under this Chapter if it is shown that the employer, or his agent or representative, had knowledge of the accident or that the employer has not been prejudiced by such delay or lack of notice.”

Provisions regarding notice of injury are liberally construed in favor of the claimant unless the rights of the employer are prejudiced. Miller v. Christus St. Patrick Hosp., 2003-1631 (La.App. 3 Cir. 4/21/04), 872 So.2d 574, writ denied, 2004-1196 (La.10/1/04), 883 So.2d 1010. Lack of prejudice may be inferred from medical reports linking the claimant’s condition to a work-related accident and eyewitnesses confirming that a work-related accident occurred. James v. Express Marketing Inc., 42,740 (La.App. 2 Cir. 12/5/07), 973 So.2d 125, writ denied, 2008-0062 (Laj3/7/08),g 977 So.2d 910. The WCJ’s findings as to sufficiency of notice are subject to manifest error review. Hammock v. Weyerhaeuser, supra.

Chase correctly shows that Ms. Louis did not formally report her accident and injury until % months after it occurred; hence, she was technically in violation of R.S. 23:1301. However, Chase also showed that even with this delay, it interviewed four of Ms. Louis’s coworkers and obtained her complete E.A. Conway record, none of which strongly showed a work-related injury. Chase has not suggested what, if anything, it could have done differently with a 30-day notice that complied with R.S. 23:1301.

Moreover, there was conflicting evidence as to how Chase advised employees of the reporting requirements. Ms. Squyres testified that this information was “available” on the website, posted on a placard downstairs and given to all new hires, but there was no documentary evidence of compliance with R.S. 23:1302, such as a copy of the notice. Without proper notice to employees, the reporting period is extended to 12 months. Moreover, Ms. Crockhom and Ms. Burrell testified that supervisors did not directly convey reporting requirements to their employees, and Ms. Louis herself claimed to be completely unaware of it. On this equivocal record, we cannot say the WCJ was plainly wrong to find no prejudice. Hammock v. Weyerhaeuser, supra; Holcomb v. Bossier City Police Dept, 27,095 (La.App. 2 Cir. 8/25/95), 660 So.2d 199. This assignment of error lacks merit.

Finding of a Compensable Work Injury

By its second assignment of error, Chase urges the WCJ was plainly wrong to find a compensable work injury requiring surgery. Citing La. R.S. |323:1031.1, Chase argues that stenosis is a degenerative condition and not compensable. It also argues that Dr. McHugh attributed her need for surgery to the stenosis, not to the work incident. It concludes that the medical evidence was insufficient to prove that any work-related injury necessitated the surgery.

Ms. Louis responds that although the date of injury was uncertain, Ms. Louis’s testimony, along with that of her coworkers, proved that she injured her neck by moving heavy boxes at work. In addition, Dr. McHugh established causation by agreeing that this activity could aggravate the preexisting condition and contribute to the need for surgery. She submits that the WCJ’s findings are not plainly wrong.

An occupational disease, for purposes of the Workers’ Compensation Act, is defined in La. R.S. 23:1031.1 B:

An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related and perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

The claimant asserting an occupational disease must prove, by a preponderance of evidence, a disability related to an employment-related disease, that it was contracted during the course of employment, and that it is the result of the work performed. Lee v. Christus Schumpert, 36,733 (La.App. 2 Cir. 1/29/03), 836 So.2d 1214, and citations therein. Moreover, when a claimant suffers from a preexisting medical condition, she may still 1 lf)prevail if she proves that an accident “aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed.” Peve-to v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689; Smith v. Morehouse General Hosp., 27,117 (La.App. 2 Cir. 6/21/95), 658 So.2d 232. The preexisting condition is presumed to have been aggravated by the accident if the employee proves (1) the disabling symptoms did not exist before the accident; (2) commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and (3) either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and the activation of the disabling condition. Peveto v. WHC Contractors, supra; Smith v. Morehouse General, supra.

Even though stenosis and degenerative disc disease are excluded from the definition of occupational injury under R.S. 23:1031.1 B, the courts have awarded compensation for the aggravation of those conditions when the claimant satisfies the criteria of Peveto v. WHC Contractors. Doucet v. Baker Hughes Production Tools, 93-3087 (La.3/11/94), 635 So.2d 166; Smith v. Morehouse General, swpra; Hayes v. Louisiana State Pen., 2006-0553 (La.App. 1 Cir. 8/15/07), 970 So.2d 547, unrit denied, 2007-2258 (La.1/25/08), 973 So.2d 758; Begue v. Crossover Inc., 2003-0267 (La.App. 1 Cir. 11/21/03), 868 So.2d 100.

Ms. Louis’s showing is far from the “clear” case of causation that the WCJ seemed to perceive, but on close review it sufficed to meet the burden of a preponderance of the evidence. Chase proved her preexisting stenosis, |nwhich was obviously not compensable under R.S. 23:1031.1 B, and that she aggravated it in the April 2006 auto accident. However, there is no evidence to contradict the E.A. Conway clinic record that as of October 12, 2006, she had no complaint with her neck. She testified that serious pain began with the accident at work and continued thereafter. She did not report a work-related accident to any healthcare provider (or to Chase) for 4 % months, but she continued to work through this time and apparently did not appreciate the severity of her injury. Admittedly, Dr. McHugh did not state that her job may have aggravated the stenosis until he was cross-examined in a deposition in March 2008, and yet Chase offered no positive medical evidence to contradict this. Notably, Ms. Louis testified that the insurer sent her to a Dr. Puaranton in Shreveport, but Chase did not call this witness to testify. In short, the medical evidence supported a reasonable possibility of causation between the work-related activity and the aggravation.

On this conflicting evidence, we cannot say the WCJ was plainly wrong to find that Ms. Louis proved, by a preponderance of the evidence, that her employment at Chase aggravated a preexisting condition of stenosis, requiring an intracervical dis-kectomy and fusion as recommended by Dr. McHugh. This assignment lacks merit.

Penalty and Attorney Fee

By its third assignment of error, Chase urges the WCJ was plainly wrong to assess a penalty and attorney fee, in light of the fact that Chase investigated the claim and filed a Form 1008 to seek the court’s assistance |12in resolving the matter. It reiterates that no witness actually saw her hurt herself and the medical records are silent as to whether her condition was work-related. It concludes that Chase acted in good faith in handling the claim, thus negating the penalty and attorney fee.

Ms. Louis responds that acting in good faith is not the standard; to avoid a penalty and attorney fee, the employer is required to “reasonably controvert” the claim. La. R.S. 23:1201 F. She submits that merely filing a Form 1008 and relying on the late report of injury will not suffice. Hammock v. Weyerhaeuser, supra; Elswick v. Highway Transport, 96 0014 (La. App. 1 Cir. 9/27/96), 680 So.2d 1364. Finally, she argues that the coworker interviews and medical records fully supported her account of sustaining a work-related injury. She concludes the WCJ did not abuse its discretion in assessing the penalty and fee.

Failure to provide payment of benefits will result in a penalty and attorney fee “unless the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” La. R.S. 23:1201 F(2); McCarroll v. Airport, Shuttle Inc., 2000-1123 (La.11/28/00), 773 So.2d 694. The phrase “reasonably controvert” means that the defendant must have “some valid reason or evidence on which to base his denial of benefits.” Brown v. Tex-LA Cartage Inc., 98-1063 (La.12/1/98), 721 So.2d 885; Williams v. Mark Johnson Plumbing, 38,954 (La.App. 2 Cir. 9/22/04), 882 So.2d 1193. Awards of penalties and attorney fees in compensation cases are essentially penal, and are imposed to deter indifference and undesirable conduct by employers and their | ^insurers toward injured workers. Trahan v. Coca Cola Bottling Co., 2004-0100 (La.3/2/05), 894 So.2d 1096; Langley v. Petro Star Corp. of La., 2001-0198 (La.6/29/01), 792 So.2d 721. Although the benefits in the Workers’ Compensation Act are to be liberally construed, penal statutes are strictly construed. Trahan v. Coca Cola Bottling, supra; Langley v. Pe-tro Star Corp. of La., supra. Penalties should not be imposed in doubtful cases, where a bona fide dispute exists as to the claimant’s entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative. J.E. Merit Constructors Inc. v. Hickman, 2000-0943 (La.1/17/01), 776 So.2d 435; James v. Express Marketing, supra.

On close review, we are constrained to find that Chase reasonably controverted this claim by providing a bona fide dispute as to Ms. Louis’s entitlement to benefits. Shortly after it received Ms. Louis’s belated report of injury, Chase investigated by questioning at least four of her coworkers. According to their trial testimony, not one of them saw Ms. Louis hurt herself; Ms. Wiggins said Ms. Louis ascribed her back pain to her work; the rest recalled Ms. Louis complaining of back pain but never saying anything about how it arose. Chase also obtained medical records from Dr. McHugh, E.A. Conway and Dr. Harvey, none of which ascribed her current complaints to a work-related injury; only Dr. McHugh’s deposition, over a year later, suggested a possibility of medical causation. The medical records also proved a preexisting condition very similar to her current one.

In short, this is not a case in which the employer indifferently and undesirably refused to pay, or relied on willful ignorance of the facts of the 114claim. Chase plainly conducted an investigation which turned up some, but precious little, evidence to verify Ms. Louis’s claim, and much to refute it. While her showing was ultimately sufficient to prove her entitlement to benefits, it was by no means strong. It was truly a “doubtful case.” James v. Express Marketing, supra. Chase offered factual and medical evidence commensurate with Ms. Louis’s showing; in so doing, it reasonably controverted the claim under R.S. 23:1201 F(2) and negated the penalty and attorney fee. This assignment of error has merit.

Conclusion

For the reasons expressed, the judgment is affirmed insofar as it found a compensable injury and ordered J.P. Morgan Chase and Liberty Mutual to provide the surgery recommended by Dr. McHugh. The assessment of a penalty and attorney fee, however, is reversed. Each side is to pay its own costs.

AFFIRMED IN PART AND REVERSED IN PART.


author: BROWN, Chief Judge.

text:
    Michelle Repass BINGHAM, Plaintiff-Appellant v. Donald Jason BINGHAM, Defendant-Appellee.
    No. 44,292-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      James L. Carroll, Columbia, for Appellant.
    Jill Binford Goudeau, Monroe, for Ap-pellee.
    Before BROWN, DREW, and MOORE, JJ.
   BROWN, Chief Judge.

L Michelle Repass Bingham Smith (“Michelle Smith”) appeals the trial court’s judgment denying a second request to relocate with the two minor children of her previous marriage with Donald Jason Bingham (“Donald Bingham”). Donald Bingham answered the appeal objecting to the trial court’s denial of his motion for sanctions. Considering the trial court’s thorough scrutiny of the factors involved and the great discretion given to the lower court, we affirm.

Facts and Procedural History

Michelle Smith and Donald Bingham divorced in 2000. They agreed to joint custody of the two children, Harmony and Vanessa (now aged 11 and 9). In 2004, Michelle filed an action to modify the original judgment of custody and for child support. After considering the best interest of the children, the trial court modified the original custody judgment to award Michelle physical custody during the school year and Donald physical custody during the summer break subject to specified visitation. Child support was also awarded. At that time, both parties lived in north Louisiana. This judgment was affirmed on appeal. Bingham v. Bingham, 42,140 (La.App. 2d Cir.04/04/07), 954 So.2d 842.

After the divorce, Michelle married Michael Smith, and they had a child, Rachel Smith. Donald also remarried, and he and his new wife, Melissa, had two children, Kaitlin and Rowan. In addition, Melissa Bingham had a son from a previous marriage, Gavin, whom Donald adopted.

| ¡.By letter dated May 11, 2007, Michelle Smith notified Donald Bingham of her intention to relocate to Pinedale, Wyoming, due to her husband’s employment. Donald Bingham filed an objection to the relocation on June 1, 2007. The trial court found in favor of Donald Bingham, denying the relocation request, and judgment was signed on September 19, 2007.

Approximately one year later, on.May 20, 2008, by certified mail, Michelle Smith again notified Donald Bingham of her intention to relocate with the children to Pinedale, Wyoming. Donald filed an objection to the relocation, as well as an exception of res judicata based upon the previous denial of relocation and a motion for sanctions. The trial court denied the exception of res judicata.

A hearing was held on September 8, 2008, and the trial court again denied Michelle’s request to relocate the children. The trial court also denied Donald’s motion for sanctions. The judgment was signed on September 29, 2008. Michelle Smith filed an appeal on October 3, 2008, and Donald Bingham answered the appeal concerning the denial of sanctions.

Discussion

Relocation of the Children

Michelle asks this court to find that the trial court erred in denying her request to relocate the children to Wyoming. She specifically argues that the trial court refused to consider the impact of a separation on Rachel Smith, that is, that Rachel would either be separated from her father or her |3two half-sisters if the relocation was denied. Michelle also argues that the trial court erred in evaluating the 12 factors set forth in La. R.S. 9:355.12(A) as they applied to the facts of this case.

A trial court’s determination in a relocation matter involving children of parties to a divorce is entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion. Curóle v. Curóle, 02-1891 (La.10/15/02), 828 So.2d 1094. The parent seeking relocation has a two-part burden: (1) that the proposed relocation is made in good faith; and (2) that the proposed relocation is in the best interest of the child. La. R.S. 9:355.13.

La. R.S. 9:355.12 provides:

A. In reaching its decision regarding a proposed relocation, the court shall consider the following factors:
(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life. (Emphasis added).
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
14(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.
B. The court may not consider whether or not the person seeking relocation of the child will relocate without the child if relocation is denied or whether or not the person opposing relocation will also relocate if relocation is allowed.

Although the statute mandates that all of the factors set forth be considered in making a determination regarding a proposed relocation of a child, it does not require a court to give preferential consideration to any certain factor or factors. La. R.S. 9:355.12; Blackburn v. Blackburn, 37,006 (La.App. 2d Cir.01/29/03), 836 So.2d 1222. Custody determinations are made on a case-by-case basis, with each being decided based on the best interest of the child. Kyle v. Kyle, 34,696 (La.App. 2d Cir.02/28/01), 780 So.2d 1241.

| ¡¡As stated above, this is the second time this trial court has heard the matter of relocation of these children to Wyoming. At the first hearing, the trial court gave an extensive, detailed, and thoughtful review of the facts of the case, and of the 12 factors provided by La. R.S. 9:355.12. The facts and circumstances at issue in this second attempt to relocate have not changed substantially since the first judgment.

In rejecting this second request to relocate, the trial court stressed that the area of Louisiana where the children currently live is a “cocoon of love and protection” with grandparents and wider family living close, which cannot be duplicated in Wyoming. In addition, the trial court noted that the children are happy, healthy, and doing exceptionally well in school. An expert testified that in conversation with the children stated that they preferred not to move to Wyoming.

The trial court noted that the driving force behind both motions to relocate is that Michael Smith took a job out-of-state and that “he has chosen a field of work where absences from home is common; it’s usual; it’s the nature of the field (oil and gas).”

Michelle Smith argues that the trial court erred in not considering the best interest of Rachel Smith, Michelle’s daughter from her new marriage. In relocation determinations it is the best interest of the child of the dissolved marriage that the court must focus on. La. R.S. 9:355.1(A)(1) states that a trial court must consider the nature, quality, extent of involvement, and duration of the child’s relationship with the child’s siblings, not necessarily the impact on the sibling(s). (See Blackburn, \ (¡supra, holding that the relocation of the child of the previous marriage will enhance his quality of life by the relationship he will continue to have with his younger half-sister.) In the present case, Harmony and Vanessa have a good relationship with not only Rachel but also with the three children of their father’s marriage to Melissa.

The trial court repeatedly focused on the best interest of Harmony and Vanessa and concluded that they would fare better, and continue to excel, if the request for relocation was denied. The trial court emphasized that an “overall analysis” of all factors supports the denial of relocation. The trial court’s determination to deny relocation was thoughtful and firmly supported by the record. Given the great weight owed to the trial court’s determination, we affirm the denial of the request for relocation.

Sanctions

Donald asks this court to find that the trial court erred in denying sanctions against Michelle as allowed by La. R.S. 9:355.16, which provides in part that:

A. After notice and a reasonable opportunity to respond, the court may impose a sanction on a parent proposing a relocation of the child or objecting to a proposed relocation of a child if it determines that the proposal was made or the objection was filed:
(1) To harass the other parent or to cause unnecessary delay or needless increase in the cost of litigation.
(Emphasis added)

|7The language of La. R.S. 9:355.16 is clearly permissive, and the trial court decided against imposing sanctions. Further, we note that the slightest justification for the exercise of a legal right precludes sanctions. Woods v. Woods, 43,182 (La.App. 2d Cir.06/11/08), 987 So.2d 339. Accordingly, we find that this assignment of error is without merit.

Conclusion

For the reasons set forth herein, we affirm the trial court’s judgment. Costs of this appeal are assessed to the appellant, Michelle Smith.

AFFIRMED.

      . The parties' custody arrangement now provides that the children be with the mother during the school year and with the father during the summer subject to specific visitation. We note that Pinedale, Wyoming, is a short distance from Jackson Hole (Grand Tetons and Yellowstone National Parks). Considering the harsh winters and picturesque summers in Wyoming, a happy medium might be obtained.


text:
    STATE of Louisiana, Appellee v. Lawrence MORRIS, Appellant.
    No. 44,166-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.
    Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Paul J. Carmouche, District Attorney, for Appellee.
    F. Stanford Hardee, III, Ben Langford, John Ford McWilliams, Jr., Assistant District Attorneys.
    Before BROWN, DREW and MOORE, JJ.
   MOORE, J.

liThe defendant was charged with aggravated battery and simple criminal damage to property. A jury returned guilty verdicts to the lesser included charge of simple battery and simple criminal damage to property. The trial court imposed a sentence of 6 months imprisonment in the parish jail for the simple battery conviction and 18 months imprisonment at hard labor for the simple criminal damage to property conviction. The court mandated that the sentences should run concurrently and suspended all but 9 months of the sentence for simple criminal damage to property. The court also imposed $1,000 as restitution for the damage to property, and $200 in court costs.

The defendant now appeals, alleging that the evidence was insufficient to support the verdict with regard to the charge of simple criminal damage to property in excess of IhOO. Because we conclude that the evidence at trial was sufficient to allow a rational jury to find the defendant guilty of the charge of simple criminal damage to property beyond a reasonable doubt, we affirm.

Facts

On August 28, 2008, the defendant entered the Family Dollar Store at 3730 Lakeshore Drive in Shreveport. The store manager, Roosevelt Mitchell, noticed that the defendant was carrying bags in the store that were not from the Family Dollar Store. He also recognized that the defendant was the same person who, on a previous occasion, he had asked to leave his other shopping bags at the cash register when shopping in the store. On this pearlier occasion, Mitchell waited until the defendant was in the register line to advise him that next time he came in the store, he must leave his bags at the register.

The defendant reacted angrily to Mitchell’s admonishment. He told Mitchell to go “fuck himself,” and said, “Take them, Little Nigger” and “Fuck you, Little Nigger.”

Because the defendant was using foul language, Mitchell asked the defendant to leave the store. The defendant responded that he was not leaving until he paid for his items.

Mitchell then instructed the cashier not to wait on the defendant. In response, the defendant threw a bottle of bleach into a merchandise stand near the checkout line.

Mitchell then went to call the police. The defendant followed him and said, “I’m going to show you what a real man would do.” As Mitchell turned, the defendant punched him, knocking him back. Mitchell ducked a second punch, and slashed at the defendant with a small knife or box cutter. The blade found its mark, cutting the defendant on the neck. Mitchell testified at trial that he was trying to get the defendant to “back off.”

Mitchell then ran away from the defendant, who proceeded to hurl merchandise at Mitchell, including canned goods and a glass paperweight that struck Mitchell in the head. At this point, the fight apparently ended.

The fire department apparently arrived first and attended to the defendant until the police arrived. The defendant was taken to the hospital where he required 12 stitches to mend the neck wound.

13The police arrived at the scene, finding the store in disarray as they obtained information about the incident.

On October 30, 2006, the defendant was charged by bill of information with one count of aggravated battery in violation of La. R.S. 14:34, and one count of simple criminal damage to property in violation of La. R.S. 14:56.

After trial, the jury returned guilty verdicts to the lesser included charge of simple battery and simple criminal damage to property. Prior to sentencing, the defense filed a motion for post verdict judgment of acquittal, which was denied by the trial court. Following sentencing, the defendant filed a motion to reconsider sentence, which the trial court denied.

The defendant filed this appeal, alleging the sole error that there was insufficient evidence to support the conviction of simple criminal damage to property in excess of $500.

Discussion

The defendant contends that the evidence does not establish that he damaged property valued in excess of $500 because there is no conclusive proof or calculation as to who actually caused what damage and how much its value was.

At trial, the defendant contradicted Mitchell’s account of the incident. He testified that he was acquainted with the manager of the store, referring to the manager as “Mr. Homer.” He stated that Mitchell was the assistant manager of the store. In June of 2008, he said Mitchell had stopped him in the store and “yelled” at him to leave his bags at the register. The defendant |4stated that Mr. Homer had told Mitchell at that time to “let him alone” and that store policy did not require the defendant to surrender his belongings. The defendant testified that Mitchell had threatened the defendant during this prior incident: “He told me if I come back in there again, don’t turn it in to him. It’s gonna be he and I out on the floor[.]”

The defendant testified that on August 28, 2006, he had entered the store with three bags in his shopping cart; two of the bags were from another grocery store, and contained food items. After he had selected the items he wished to purchase, Mitchell came from the back of the store to reprimand the defendant about bringing other bags into the store. According to the defendant, Mitchell pursued the defendant to the front of the store, with a box cutter in one hand and a knife in the other.

The defendant denied threatening, punching, or throwing the paperweight at Mitchell. He said he asked Mitchell, “What have I done for you to keep harassing me or threatening me? You do bodily harm. You the one [sic ] with the knife.” The defendant testified that Mitchell cut him “continuously,” all over his hands, arms, and neck. He testified that he had thrown things at Mitchell in self-defense, also stating that Mitchell had thrown objects at the defendant.

Although a video surveillance tape was shown to the jury that tended to support Mitchell’s account, the defendant contends that the tape is inaccurate and shows only one angle of the incident although there were | ¡¡other cameras. Finally, he argues that since much of the damage was the result of blood contamination, and it was Mitchell who started the fight and who cut the defendant which caused the blood contamination, he is not responsible.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2 Cir. 8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La. App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404,158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltclier, [ r;41,981 (La.App. 2 Cir. 5/9/07), 956 So.2d 769; State v. Burd, 40,-480 (La.App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

La. R.S. 14:56(A) states that: “[s]imple criminal damage to property is the intentional damaging of any property of another, without the consent of the own-erf.]” The crime of simple criminal damage to property requires only general criminal intent. State v. Shaw, 37,168 (La. App. 2 Cir. 6/25/03), 850 So.2d 868. General criminal intent is present “when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the proscribed criminal consequences as reasonably certain to result from his act or failure to act.” La. R.S. 14:10(2). In this case, the defendant’s conviction and the extent of the damage was supported by the testimony of the police, store manager Roosevelt Mitchell, district manager Gary Faircloth, and the physical evidence, including a videotape of the incident.

Gary Faircloth had worked for the company for five years, and was often required to assess the value of damaged merchandise and store property. According to Faircloth, damage to the store was extensive. Fixtures had to be replaced at a cost of $800. He stated that merchandise worth $1,500 was destroyed because of the incident, and much of the merchandise had to be disposed of because of blood contamination. His testimony alone was sufficient for the jury to find that the property damage had amounted to over $500.

17Shreveport Police Officer Melissa Crow, the first police officer at the scene, described what she saw in the store. There were two bottles of bleach opened and food soaked in it. There was a shelf on the floor and a piece of metal off the side of the shelf. The paperweight that the defendant used to strike Mitchell was on the floor. There was also blood from the cash register to the front door.

Photographs of the condition of the store were taken and identified by Officer Crow. These were shown to the jury. The defendant’s blood was spattered in the front of the store and in two store aisles, supporting Mitchell’s account that the defendant had continued to pursue Mitchell even after being cut. Mitchell had sustained injuries consistent with his testimony that the defendant had punched Mitchell and thrown merchandise at Mitchell. The defendant must have adverted to the damage to the store as reasonably certain to follow his action of running through the store while bleeding copiously, throwing merchandise and breaking shelves.

Corporal Michael Armstrong of the Shreveport Police Department reviewed the video surveillance tape of the incident. Armstrong testified that the video was a “multiplex” video, meaning that several camera views were flashed all at once. Armstrong used a computer program to isolate a camera view of the incident. Armstrong indicated in testimony that the camera had only captured the front of the store. This video surveillance recording of the incident was shown to the jury.

The defendant’s account contradicted the testimony given by Mitchell; however, the defendant’s testimony was rife with inconsistencies |8and illogical statements. The defendant did admit to having damaged merchandise (by throwing objects at Mitchell), but stated that he had done so in self-defense, because Mitchell was pursuing the defendant and throwing objects at the defendant. Given the fact that inconsistencies in the defendant’s testimony indicate a lack of credibility, a rational finder of fact could have chosen not to lend weight to the defendant’s version of events.

After viewing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have found that the state proved all essential elements of simple criminal damage to property over $500 beyond a reasonable doubt. The defendant’s assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of the defendant, Lawrence Morris, of simple criminal damage to property is affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . The defendant does not appeal his conviction or sentence for simple battery.

      . The defendant stated that Homer had not received a subpoena because he would have lied under oath, because “[h]e can’t go against his store. He can’t go against Roosevelt Mitchell[.)”


author: WILLIAMS, J.

text:
    Joann BREITLING and Sam Breitling, Plaintiff-Appellant v. The CITY OF SHREVEPORT, Defendant-Appellee.
    No. 44,112-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Daniel D. Holliday, III, Charles B. Brown, Mansfield, for Appellant.
    S.P. Davis, Andrew L. Randall, Jr., for Appellee.
    Before BROWN, WILLIAMS and MOORE, JJ.
   WILLIAMS, J.

| ,TIie plaintiffs, Joann and Sam Brei-tling, appeal a judgment in favor of the defendant, City of Shreveport (“the City”). The trial court dismissed the plaintiffs’ claims, finding that the City did not have custody of the sidewalk where the accident occurred and did not have actual or constructive notice of the dangerous condition. For the following reasons, we affirm.

FACTS

At approximately 4:00 a.m. on the morning of July 26, 2004, Joann and Sam Brei-tling were walking between two casinos on a sidewalk located along the east side of Clyde Fant Parkway in Shreveport. The Breitlings had traveled to Shreveport to gamble and as they were walking toward the Hollywood Casino, Joann Breitling (“Breitling”) tripped on a part of the sidewalk where the bricks had settled approximately one and one-half inches below the concrete. She fell to the pavement, injuring her right knee and elbow. Breitling later sought medical treatment for her injuries.

The sidewalk where Breitling fell was located on land owned by the City, which leased the premises on May 19, 1999 to QNOV, a general partnership, for the construction of a casino-hotel project. The lease provided that the lessee “shall construct and maintain sidewalks within the premises adjacent to Clyde E. Fant Memorial Parkway.” The sidewalk was built by a contractor hired by Hollywood Casino (“the casino”) and designed in compliance with the “Streetscape” design standard established by the City in the 1990’s for use in the downtown area. The Streetscape standard specified that the sidewalk be built using rectangular concrete sections with brick pavers around the edge.

^Subsequently, the plaintiffs, Joann and Sam Breitling, filed a petition for damages against the defendants, City of Shreveport and the casino. The plaintiffs later settled their claim against the casino. After a trial limited to the issue of liability, the court concluded that the City was not liable for the plaintiffs’ injuries, finding that the City did not design, build or maintain the sidewalk and did not have actual or constructive notice of the dangerous condition. The court rendered judgment dismissing plaintiffs’ claims. The plaintiffs appeal the judgment.

DISCUSSION

The plaintiffs contend the trial court erred in finding that the City did not have actual or constructive notice of the defect in the sidewalk. Plaintiffs argue that the City was aware of the dangerous condition that caused Breitling’s injury because there had been problems with differential settlement of bricks in a number of sidewalks built according to the Streetscape design. For the purpose of addressing this assignment of error, we shall assume that the City exercised control over the sidewalk at issue.

No person shall have a cause of action against a public entity for damages caused by the condition of things within its care and custody unless such entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so. LSA-R.S. 9:2800. In order to recover against a public entity for damages due to a defective thing, the plaintiff must prove by a preponderance of evidence that: (1) the thing that caused her damages was |3in the defendant’s custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (8) the defendant possessed actual or constructive notice of the defect, yet did not take corrective action within a reasonable period of time; and (4) the defect was a cause in fact of plaintiffs harm. Jones v. Hawkins, 98-1259 (La.3/19/99), 731 So.2d 216; Johnson v. City of Bastrop, 41,240 (La.App. 2d Cir.8/1/06), 936 So.2d 292. Failure to meet any one statutory element will defeat a negligence claim against a public entity. Williams v. City of Mansfield, 42,319 (La. App. 2d Cir.8/15/07), 962 So.2d 1187.

Under LSA-R.S. 9:2800, constructive notice is defined as the existence of facts which imply actual knowledge. This definition allows for the inference of actual knowledge to be drawn from the facts demonstrating that the defective condition had existed for such a period of time that it should have been discovered and repaired if the public entity had exercised reasonable care. Johnson, supra; Lutz v. City of Shreveport, 25,801 (La.App. 2d Cir.5/4/94), 637 So.2d 636, writ denied, 94-1487 (La.9/23/94), 642 So.2d 1294. The trial court’s findings of fact are subject to the manifest error standard of review. The appellate court must determine whether the trial court’s conclusion is reasonable based upon the record as a whole. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566.

In the present case, Christopher Hicks testified that in July 2004 he was working as an emergency medical technician and security guard for the casino. Hicks stated that he observed Breitling sitting on the sidewalk after her fall and completed an accident report. Hicks testified that an accident |4had previously occurred on the sidewalk near the casino. However, he did not say what caused that accident and he had not called the City to report any prior accident. Hicks testified that he had never seen any city employees working on that sidewalk.

Tanita Baker, who was accepted as an expert in civil engineering, testified that in August 2004 the City requested that she view the sidewalk located between the casinos on Clyde Fant Parkway and give an opinion as to the cause of the differential settlement of bricks. Baker stated that she took photographs of the soil beneath the bricks, measured the elevation of different locations along the sidewalk and prepared a report. Based on her investigation, Baker opined that the inadequate slope of the sidewalk prevented proper drainage and allowed rainfall to percolate through the brick joints, saturating the base material and causing the bricks to settle. Baker testified that this process would have occurred over a certain period of time, but she did not know the length of time involved in the present situation. Baker stated that she was told by Robert Westerman, an engineer employed by the City, that there had also been a problem with differential settlement of bricks at a walkway near the Texas Street bridge.

Ron Norwood, the engineer for the City, testified that his duties included publishing specifications for the construction and maintenance of streets and sidewalks. Norwood stated that the sidewalk where Breitling fell was a public sidewalk located on city-owned land subject to the casino lease. Norwood testified that since approximately 2000, he had been aware of “isolated areas” of differential settlement of bricks at various sidewalk |5locations downtown. He stated that the City would make repairs when a problem with a sidewalk was made known to the City and that there had been sporadic incidents of settling bricks, but no widespread problem. Norwood testified that no person had previously complained to the City about a tripping hazard at the sidewalk location where Breitling fell. In addition, he stated that the casino had never contacted the City Engineer’s office concerning any pri- or accidents or uneven bricks on that sidewalk.

Jim Holt testified that in 2004, he was deputy director of the City’s Department of Operational Services responsible for the operation of the divisions of solid waste, streets and drains. Holt stated that he was familiar with the Streetscape design used for sidewalks in the downtown area. Holt testified that in some areas of downtown, bricks became dislodged when heavy trucks rode onto the sidewalk while turning. Holt stated that he was aware that some years after bricks were installed along Texas Avenue, the City received phone calls concerning “one or two” places where bricks had settled and those had been replaced. He acknowledged that his department budget included a specific line item for the repair of sidewalk bricks.

Additionally, Holt testified that there were no work orders showing that the City had performed any work on that part of the sidewalk where Breitling fell; nor had anyone complained to his department about a problem with the bricks at that location prior to her accident. Holt stated that in April 2004, the City had repaired bricks on the sidewalk at the intersection of Clyde Fant Parkway and Milam Street, approximately two blocks from the casino.

| ñJoann Breitling testified that after her fall she was assisted by Hicks, who told her that others had previously fallen in front of the casino. Breitling acknowledged that she could not identify anyone else who had fallen at that location before her accident and that she did not know of any previous complaints to the City about a defect in that part of the sidewalk.

Samuel Breitling testified that he was walking with Joann when she tripped and fell on the sidewalk. Mr. Breitling stated that he later took photographs of the accident site showing that bricks had settled below the concrete, creating an uneven place where his wife caught her foot. He testified that Hicks commented that other accidents had occurred on that sidewalk. Mr. Breitling stated that he did not personally know of anyone else who had fallen at that location prior to his wife’s fall in July 2004.

In their brief, the plaintiffs argue that the City possessed constructive knowledge of the dangerous condition of the sidewalk at issue because the City was aware that a similar problem with excessive settling of bricks had affected a number of sidewalks built in conformity with the Streetscape design. However, the plaintiffs’ argument is not supported by the applicable law. LSA-R.S. 9:2800 expressly provides that a public entity will be liable for damages caused by things in its care only when it has actual or constructive notice of “the particular vice or defect” which caused the damage. Thus, the evidence that other sidewalk bricks had settled at various locations downtown does not impute to the City knowledge of the particular defect in the sidewalk that caused Breitling’s injuries.

In addition, the testimony of city employees demonstrated that the 17City had not received any prior complaints about uneven bricks in the sidewalk at issue. Although Hicks indicated that other persons previously had fallen in front of the casino, there was no showing that the City had been notified of any prior accidents or that any such accident had involved the same defective condition which caused Breitling’s fall. Nor did the evidence show that the defective condition had existed for a sufficient period of time to have been discovered in the exercise of reasonable care. The expert engineer was unable to determine the length of time required for the settling of the bricks in the sidewalk at issue.

Based upon the evidence presented, the plaintiffs failed to establish that the City received any notice of the specific defect in the sidewalk where Breitling fell. Consequently, we cannot say that the trial court was clearly wrong in finding that the City did not possess actual or constructive notice of the dangerous condition prior to the accident and was not liable for the plaintiffs’ damages. Thus, the assignment of error lacks merit. In reaching this conclusion, we pretermit a discussion of the remaining assignments of error.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellants, Joann and Samuel Breitling.

AFFIRMED.