text:
    STATE of Louisiana v. Roger Wayne NASH aka Roger Nash
    KA 17-683
    Court of Appeal of Louisiana, Third Circuit.
    January 31, 2018
   Phillip Terrell, Jr., 9th JDC DA, Parish of Rapides, P. O. Box 1472, Alexandria, La 71309-1472, (318) 473-6650, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

Willard Trichel Armitage, Jr., 9th JDC ADA, P. O. Box 1472, Alexandria, LA 71309-1472, (318) 445-3127, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

Mary Constance Hanes, Louisiana Appellate Project, P.O. Box 4015, New Orleans, LA 70178-4015, (504) 866-6652, COUNSEL FOR DEFENDANT/APPELLANT: Roger Wayne Nash

Roger Wayne Nash, General Delivery, Louisiana State Penitentiary, 17544 Tunica Trace, Angola, LA 70712, COUNSEL FOR DEFENDANT/APPELLANT: Roger Wayne Nash

Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perret, Judges.

KYZAR, Judge.

The Defendant, Roger Wayne Nash, a.k.a. Roger Nash, entered a guilty plea in 1982 to second degree murder in violation of La.R.S. 14:30.1, when he was 15 years old. He was originally sentenced to serve life in prison without the benefit of parole, probation, or suspension of sentence. Following the filing and consideration of numerous post-conviction motions throughout the years, as will be discussed below, this court granted an appeal related to the Defendant's sentence. Appellate counsel has filed a brief pursuant to Anders , together with a motion to withdraw. For the following reasons, we affirm the Defendant's sentence. Further, we grant appellate counsel's motion to withdraw.

Facts and Procedural Background

On or about May 15, 1982, Defendant, who was fifteen years old at the time, murdered Avy Johnson. The Defendant was charged with second degree murder in an indictment filed on May 27, 1982. He entered a plea of guilty on October 4, 1982, and was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence.

On November 13, 2012, the Defendant filed a "Motion to Correct an Illegal Sentence." Therein, the Defendant asserted his sentence was illegal under the ruling in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which declared unconstitutional a sentencing scheme that mandated a life sentence without the possibility of parole for those under the age of eighteen at the time of the commission of a homicide. Therefore, he asserted that he should be resentenced in accordance with the penalty provision for the lesser included offense of manslaughter.

On March 14, 2013, the trial court denied the Defendant's request to vacate his life sentence and to resentence him to the penalty for manslaughter. However, the trial court did amend the Defendant's sentence to life imprisonment with eligibility for parole.

On April 8, 2013, the Defendant filed a "Notice of Intent to Seek Supervisory Writ and Order Setting Return Date" and thereafter filed a writ application with this court on April 15, 2013. We issued the following ruling in State v. Nash , 13-425 (La.App. 3 Cir. 7/31/13) (unpublished opinion):

WRIT DENIED: Relator filed a writ application with this court seeking review of the trial court's March 14, 2013, ruling on Relator's November 13, 2012, motion to correct illegal sentence. This court has recently held that Miller v. Alabama , 567 U.S. [460], 132 S.Ct. 2455 [183 L.Ed.2d 407] (2012) does not apply retroactively. See State v. Huntley , 13-127 (La.App. 3 Cir. 7/10/13), [118] So.3d [95]. Accordingly, Relator's writ application is denied.

The State sought review of this court's ruling, and the supreme court subsequently issued the following per curiam in State ex rel. Nash v. State , 13-2032, pp. 1-2 (La. 9/19/14), 147 So.3d 1111, 1111 :

Granted; relief denied; sentence corrected. The district court erred in granting relator's motion to correct an illegal sentence by amending his sentence to reflect that it is no longer without parole eligibility and ordering the Louisiana Department of Corrections to revise relator's prison master accordingly. The court further erred by directing the Department to calculate an eligibility date for parole consideration according to the criteria provided by La.R.S. 15:574.4(A)(2). Although relator seeks review because the district court did not provide him the remedy he sought-resentencing according to the applicable range for the next responsive verdict of manslaughter-the district court erred in granting relator any relief. The decision in Miller v. Alabama , 567 U.S. [460], 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), is not retroactive to final sentences. State v. Tate , 12-2763 (La. 11/5/13), 130 So.3d 829, cert. denied , Tate v. Louisiana , --- U.S. ----, 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014). The district court's order is therefore vacated in its entirety. Relator's original sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence is reinstated. See La.C.Cr.P. art. 882 (an appellate court may correct an illegal sentence "at any time"); see also State v. Williams , 00-1725 (La. 11/28/01), 800 So.2d 790. The Department of Corrections is directed to maintain relator's prison master in conformity with the terms of the sentence required by law.

On April 1, 2016, the Defendant filed another "Motion to Correct an Illegal Sentence." Therein, he asserted the rulings in Miller , 567 U.S. 460, 132 S.Ct. 2455, and Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), rendered his life sentence without parole unconstitutional. In Montgomery , the United States Supreme Court found Miller , 567 U.S. 460, 132 S.Ct. 2455, announced a new substantive constitutional rule that applied retroactively on state collateral review.

On August 29, 2016, the State moved to amend the Defendant's sentence to provide for parole eligibility. The trial court granted the motion, and there was no objection by the Defendant.

A "Motion to Reconsider Sentence" was filed on September 23, 2016. In that motion, the Defendant asserted the sentence of life with parole was not authorized by law, he was entitled to immediate release, and the trial court did not comply with the sentencing guidelines set forth in State v. Montgomery , 13-1163 (La. 6/28/16), 194 So.3d 606. In Montgomery , the Louisiana Supreme Court held that the statutory provisions regarding prospective sentencing of juveniles were applicable to resentencing hearings. The motion to reconsider was denied.

That same day, September 23, 2016, the Defendant filed a "Notice of Intent to Seek Supervisory Writ and Order Setting Return Date." He also filed a "Motion and Order for Designation of Record." The notice of intent and designation of record were denied on December 29, 2016.

The Defendant filed a writ application with this court on January 27, 2017. In State v. Nash , 17-59 (La.App. 3 Cir. 4/28/17) (unpublished opinion), this court stated:

WRIT GRANTED AND MADE PEREMPTORY : Relator filed a writ application with this court seeking review of the trial court's August 29, 2016 ruling that added the possibility of parole to his life sentence. This court considers that ruling a resentencing of Relator, review of which shall be by appeal. See State ex rel. Wise v. State , 15-224 (La. 2/17/17), 211 So.3d 378 ; State ex rel. Gaskin v. State , 15-225 (La. 2/17/17), 211 So.3d 381 ; State v. Montgomery , 13-1163 (La. 6/28/16), 194 So.3d 606 ; La.Code Crim.P. art. 912(C)(1). As such, the matter is remanded to the trial court for further proceedings consistent herewith. The trial court is to consider Relator's notice of intent as a motion to appeal, to grant Relator an appeal, to appoint Relator appellate counsel, and to order the preparation of an appellate record for the purposes of the appeal.

On May 16, 2017, the trial court issued an order granting the Defendant an appeal. The Defendant's appellate counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging the record contains no non-frivolous issues for appeal, and requests this court grant her accompanying motion to withdraw. The Defendant was advised, via certified mail, that counsel filed an Anders brief. The Defendant was given until October 10, 2017, to file a pro se brief, and he has not done so. For the following reasons, we affirm the Defendant's sentence and grant appellate counsel's motion to withdraw.

Discussion

Errors Patent

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

Anders Analysis

Appellate counsel has filed a brief pursuant to Anders, alleging that there are no non-frivolous issues upon which to base an appeal. Further, she has also filed a motion to withdraw as the defendant's appellate counsel. The Defendant was given the opportunity to file a pro se brief, but has failed to do so.

The Anders procedure used in Louisiana was discussed in [State v. ] Benjamin , 573 So.2d [528] at 529-31 [ (La.App. 4 Cir. 1990) ], sanctioned by the Louisiana Supreme Court in [State v. ] Mouton , [95-981 (La. 4/28/95),] 653 So.2d [1176] at 1177, and expanded by the Louisiana Supreme Court in [ State v. ] Jyles [, 96-2669 (La. 12/12/97), 704 So.2d 241 ]. According to Anders [v. California ], 386 U.S. [738] at 744, 87 S.Ct. [1396] at 1400, 18 L.Ed.2d 493 [1967) ], "if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." To comply with Jyles , appellate counsel must not only review the procedural history of the case and the evidence, but his brief also must contain "a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." Jyles , 704 So.2d at 242 (quoting Mouton , 653 So.2d at 1177 ). When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous.

State v. Thomas , 12-177, p. 5 (La.App. 1 Cir. 12/28/12), 112 So.3d 875, 878.

Appellate counsel's brief contains no assignments of error and a motion to withdraw. In accordance with Anders , 386 U.S. 738, 87 S.Ct. 1396, and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241, counsel has reviewed the procedural history and record of the case following resentencing of the Defendant and indicated that after a "conscientious and thorough review of the trial court record," she could find no non-frivolous issues to raise on appeal and seeks permission to withdraw.

In her Anders brief, appellate counsel notes this appeal relates only to the resentencing of the Defendant and limited her discussion to issues pertaining thereto. Appellate counsel discusses the relevant decisions of the United States Supreme Court, the Louisiana Supreme Court, and legislation enacted as a result thereof. In 2012, the United States Supreme Court, in Miller , 567 U.S. 460, 132 S.Ct. 2455, held the eighth amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders. In response to that decision, the Louisiana Legislature enacted La.Code Crim.P. art. 878.1 and La.R.S. 15:574.4(E) in 2013. Louisiana Code of Criminal Procedure Article 878.1 required district courts to conduct a hearing in such cases to determine whether a defendant's sentence would be imposed with or without parole eligibility pursuant to the provisions of La.R.S. 15:574.4(E), and provided as follows:

A. In any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense, a hearing shall be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).
B. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender's level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without
parole eligibility should normally be reserved for the worst offenders and the worst cases.

Louisiana Revised Statutes 15:574.4(E) provided the conditions under which juvenile homicide offenders could become eligible for parole consideration:

(1) Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) who was under the age of eighteen years at the time of the commission of the offense shall be eligible for parole consideration pursuant to the provisions of this Subsection if a judicial determination has been made that the person is entitled to parole eligibility pursuant to Code of Criminal Procedure Article 878.1 and all of the following conditions have been met:
(a) The offender has served thirty-five years of the sentence imposed.
(b) The offender has not committed any disciplinary offenses in the twelve consecutive months prior to the parole eligibility date.
(c) The offender has completed the mandatory minimum of one hundred hours of prerelease programming in accordance with R.S. 15:827.1.
(d) The offender has completed substance abuse treatment as applicable.
(e) The offender has obtained a GED certification, unless the offender has previously obtained a high school diploma or is deemed by a certified educator as being incapable of obtaining a GED certification due to a learning disability. If the offender is deemed incapable of obtaining a GED certification, the offender shall complete at least one of the following:
(i) A literacy program.
(ii) An adult basic education program.
(iii) A job skills training program.
(f) The offender has obtained a low-risk level designation determined by a validated risk assessment instrument approved by the secretary of the Department of Public Safety and Corrections.
(g) The offender has completed a reentry program to be determined by the Department of Public Safety and Corrections.

These provisions became effective August 1, 2013.

On November 5, 2013, the Louisiana Supreme Court issued a ruling in State v. Tate , 12-2763 (La. 11/5/13), 130 So.3d 829, cert. denied , --- U.S. ----, 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014), abrogated by Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), finding that Miller , 567 U.S. 460, 132 S.Ct. 2455, was not subject to retroactive application, and that La.Code Crim.P. art. 878.1 and La.R.S. 15:574.4(E) applied prospectively only.

The United States Supreme Court decided Montgomery , 136 S.Ct. 718, on January 25, 2016. Therein, the Court found Miller , 567 U.S. 460, 132 S.Ct. 2455, announced a substantive rule of constitutional law that applied retroactively:

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g. , Wyo. Stat. Ann. § 6-10-301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.

Id. at 736.

Montgomery , 136 S.Ct. 718, remanded the case to the Louisiana Supreme Court for further proceedings. On June 28, 2016, in Montgomery , 194 So.3d at 607-09, the Louisiana Supreme Court held that absent legislation to the contrary, courts should utilize La.Code Crim.P. art. 878.1 and La.R.S. 15:574.4(E) when conducting resentencing hearings for juvenile homicide offenders sentenced prior to Miller , 567 U.S. 460, 132 S.Ct. 2455, to determine whether they should be granted or denied parole eligibility.

The Louisiana Legislature amended La.Code Crim.P. art. 878.1, effective August 1, 2017, and it now states, in pertinent part:

B.....
(2) If an offender was indicted prior to August 1, 2017, for the crime of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense and a hearing was held pursuant to this Article prior to August 1, 2017, the following shall apply:
(a) If the court determined at the hearing that was held prior to August 1, 2017, that the offender's sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G).
(b) If the court determined at the hearing that was held prior to August 1, 2017, that the offender's sentence shall be imposed without parole eligibility, the offender shall not be eligible for parole.

Louisiana Revised Statutes 15:574.4 was also amended in 2017 and now provides:

G. (1) Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) who was under the age of eighteen years at the time of the commission of the offense and whose indictment for the offense was prior to August 1, 2017, shall be eligible for parole consideration pursuant to the provisions of this Subsection if a judicial determination has been made that the person is entitled to parole eligibility pursuant to Code of Criminal Procedure Article 878.1(B) and all of the following conditions have been met:
(a) The offender has served twenty-five years of the sentence imposed.
(b) The offender has not committed any major disciplinary offenses in the twelve consecutive months prior to the parole hearing date. A major disciplinary offense is an offense identified as a Schedule B offense by the Department of Public Safety and Corrections in the Disciplinary Rules and Procedures for Adult Offenders.
(c) The offender has completed the mandatory minimum of one hundred hours of pre-release programming in accordance with R.S. 15:827.1.
(d) The offender has completed substance abuse treatment as applicable.
(e) The offender has obtained a GED certification, unless the offender has previously obtained a high school diploma or is deemed by a certified educator as being incapable of obtaining a GED certification due to a learning disability. If the offender is deemed incapable of obtaining a GED certification, the offender shall complete at least one of the following:
(i) A literacy program.
(ii) An adult basic education program.
(iii) A job skills training program.
(f) The offender has obtained a low-risk level designation determined by a validated risk assessment instrument approved by the secretary of the Department of Public Safety and Corrections.
(g) The offender has completed a reentry program to be determined by the Department of Public Safety and Corrections.
(2) For each offender eligible for parole consideration pursuant to the provisions of this Subsection, the board shall meet in a three-member panel, and each member of the panel shall be provided with and shall consider a written evaluation of the offender by a person who has expertise in adolescent brain development and behavior and any other relevant evidence pertaining to the offender.
(3) The panel shall render specific findings of fact in support of its decision.

Appellate counsel goes on to discuss the procedural history of the case. She notes the Defendant, in his notice of intent, stated his sentence of life with parole was illegal. Appellate counsel asserts that, after reviewing the matter, she has determined that a sentence of life with parole is not an illegal sentence. Counsel then addresses the claims asserted in the Defendant's pro se motion to reconsider sentence. Therein, he asserted a sentence of life with parole eligibility was not authorized by statute and requested that he be sentenced to the next lesser included penalty, that for manslaughter. Alternatively, the Defendant requested immediate release on parole; however, his sentence had not been commuted to a fixed term of years as required by La.R.S. 15:574.4(B).

The Defendant cited Funchess v. Prince , 14-2105 (E.D. La. Feb. 25, 2016) (unpublished order), in support of his claims. In Funchess , the petitioner's "guilty plea to second degree murder required that he receive a sentence of life in prison without eligibility for parole for a period of forty years and that, if he ever actually hoped to receive parole after 40 years, the governor commute his sentence." Id . at p. 5. The court concluded Louisiana's "two-step parole procedure" violated Miller in its application to juvenile offenders. Id.

Appellate counsel asserts Funchess is inapplicable to the Defendant, as he did not receive a life sentence with eligibility for parole after forty years. Appellate counsel further notes that the second circuit, in State v. Jackson , 51,527 (La.App. 2 Cir. 8/9/17), --- So.3d ----, found the defendant's claim that, pursuant to La.R.S. 15:574(B)(1), he was not eligible for parole unless his sentence was converted to a term of years was without merit. The court noted the defendant's argument failed to recognize that La.R.S. 15:574.4(B)(1) had provided exceptions for juvenile homicide offenders since 2013. Appellate counsel points out that the trial court reached the same conclusion in denying the Defendant's motion to reconsider sentence.

Appellate counsel asserts the Defendant's argument that the only legal sentence he could receive was that for manslaughter has been repeatedly rejected by courts. She notes the Defendant's claim is based on State v. Craig , 340 So.2d 191 (La.1976). In Craig , the defendant had been convicted of aggravated rape, which carried a mandatory sentence of death. The Louisiana Supreme Court held that, since the mandatory death penalty for first degree murder had been found unconstitutional in Roberts v. Louisiana , 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the mandatory death penalty for aggravated rape was likewise unconstitutional. At the time the rape was committed, the legislature had abrogated the responsive verdict of guilty without capital punishment. Therefore, the appropriate remedy to correct the defendant's illegal sentence was to remand for resentencing to the most serious penalty for the next lesser responsive verdict, simple rape.

Appellate counsel notes the second circuit, in State v. Keith , 51,389, pp. 5-6 (La.App. 2 Cir. 6/21/17), 223 So.3d 767, 770-71 (footnotes omitted), explained why Craig , 340 So.2d 191, did not apply in cases like that of the Defendant herein:

Keith maintains he should be resentenced under Craig , [340 So.2d 191], to the next lesser included offense of manslaughter-a maximum
sentence of 40 years at hard labor. In 1976, the Louisiana Supreme Court held in Craig that Louisiana's mandatory death penalty for aggravated rape is unconstitutional. The Craig court concluded the appropriate remedy to correct this now illegal sentence was to remand the case for resentencing of the defendant to the most serious penalty for the next lesser included offense. Id. , at 193-94. Craig followed a prohibition of mandatory death sentences by the United States Supreme Court, which applied to all offenders currently sentenced to death without a hearing in which to present mitigating factors, and not exclusively to juveniles like Miller , [567 U.S. 460, 132 S.Ct. 2455]. Thus, Craig eliminated the possibility of a mandatory death sentence entirely, necessitating vacating those now illegal sentences and resentencing to the most severe sentence for the next lesser included offense. Conversely, Miller did not eliminate the possibility of a life sentence for juvenile homicide offenders; it simply held sentencing to life imprisonment at hard labor, without parole eligibility, is unconstitutional if the defendant is denied a meaningful opportunity to present mitigating factors-such as, the attendant qualities of youth.
The application of the Miller and Montgomery [, 136 S.Ct. 718,] decisions is far more analogous to the Louisiana Supreme Court's response to Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), in which the United States Supreme Court held that the United States Constitution's Eighth Amendment precludes sentencing a juvenile to life imprisonment without the possibility of parole for a non-homicide offense. In State v. Shaffer , 2011-1756 (La. 11/23/11), 77 So.3d 939, three defendants sought relief from their life sentences following Graham , and claimed their convictions for aggravated rape committed while juveniles were now illegal. The Louisiana Supreme Court rejected the defendants' argument that they should be sentenced under the lesser included offense of attempted aggravated rape as was done in Craig , supra . Further, instead of remanding the cases for resentencing, the Louisiana Supreme Court amended the defendants' life sentences to delete the restriction on parole eligibility. Accordingly, Craig relief is inapplicable to Keith's circumstances, and the trial court did not err in following Montgomery .

For the reasons asserted in Keith , appellate counsel states the Defendant is not entitled to be sentenced under the penalty provision for manslaughter.

The Defendant also cited State v. Roberts , 568 So.2d 1017 (La.1990), in his motion to reconsider sentence. In Roberts , relators filed petitions for writs of habeas corpus after the state executed their nine-year sentences over six years after the sentences had been affirmed on appeal. The district court denied relief. However, the supreme court ordered relators released on parole. Counsel maintains the Defendant's circumstances are distinguishable, and we agree.

Appellate counsel additionally notes the Defendant argued the trial court failed to consider mitigating evidence during the Miller hearing. Counsel acknowledges the truthfulness of the Defendant's claim, but points out the trial court granted the only relief possible in this case, parole eligibility. We agree with Appellate counsel. The sole purpose of the hearing is to consider both aggravating and mitigating evidence such as to allow the trial court to sentence the offender to life imprisonment with parole or to life imprisonment without parole eligibility. In resentencing the Defendant to a life sentence with parole eligibility, there was no necessity for any hearing.

In support of her assertion, appellate counsel cites the current version of La.Code Crim.P. art. 878.1(D) which provides, "The sole purpose of the hearing is to determine whether the sentence shall be imposed with or without parole eligibility." She also notes that La.Code Crim.P. art. 878.1(C) mandates the allowance of aggravating and mitigating evidence by the prosecution and the defense that is relevant to the charged offense or the character of the defendant, but such is not necessary where the trial court grants the only relief possible. In support of her contentions, appellate counsel cites State v. Sumler , 51,324 (La.App. 2 Cir. 5/2/17), 219 So.3d 503. Therein, the second circuit stated (emphasis in original):

Eligibility for parole is the sole question to be answered in a Miller hearing. State v. Montgomery , [194 So.3d] at 610. As noted by Justice Crichton in his concurrence to the opinion, "[U]ntil there is further action taken by the Legislature or further developments in the United States Supreme Court, the district courts are faced with one and only one task here: to distinguish between 'the rare juvenile offender whose crime reflects irreparable corruption' and 'the juvenile offender whose crime reflects unfortunate yet transient immaturity.' " State v. Montgomery , [Id. ] at 609, quoting, Miller , 567 U.S. 460, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407. Accordingly, in a Miller hearing there is no consideration of whether there should be a downward departure from the mandatory sentence of life imprisonment at hard labor. Rather, the court only considers whether that mandatory sentence should include parole eligibility.

Id. at 509. Furthermore, in Jackson , --- So.3d ----, the second circuit rejected the defendant's claim that he did not receive an individualized sentence. The court stated:

To the extent that the defendant argues that he was entitled to a hearing and the imposition of an individualized sentence, Miller did not impose such a requirement in cases where parole eligibility was permitted. In Miller , the Supreme Court explained that the Eighth Amendment does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender, nor does it require the court to consider the mitigating factors of youth before imposing such a sentence. Instead, a sentencing court's obligation to consider youth-related mitigating factors is limited to cases in which the court imposes a sentence of life, or its equivalent, without parole. State v. Plater , [51,338 (La.App. 2 Cir. 5/17/17), 222 So.3d 897] ; State v. Calhoun , [51,337 (La.App. 2 Cir. 5/17/17), 222 So.3d 903].

Id. at p. 11.

Appellate counsel's brief more than adequately demonstrates by full discussion and analysis that she reviewed the sentencing proceeding and the Defendant's motion to reconsider sentence and cannot identify any basis for a non-frivolous appeal.

We have performed an independent and thorough review of the pleadings triggering resentencing, the minutes and the transcript of resentencing, and the motion to reconsider sentence and ruling thereon. The Defendant was present and represented by counsel at resentencing, and the sentence imposed is legal.

A Miller violation may be remedied by permitting juvenile homicide offenders to be considered for parole. Montgomery , 136 S.Ct. at 736. Additionally, the Defendant was not entitled to be sentenced to the penalty in effect for manslaughter at the time of the offense, and the trial court need not consider mitigating factors because it did not impose a life sentence without parole. See State v. Straub , 12-270 (La.App. 1 Cir. 9/21/12), 111 So.3d 38 ; State v. Walder , 12-51 (La.App. 1 Cir. 9/24/12), 104 So.3d 137, writ denied , 12-2534 (La. 4/19/13), 111 So.3d 1032 ; State v. Graham , 14-1769 (La.App. 1 Cir. 4/24/15), 171 So.3d 272, writ denied , 15-1028 (La. 4/8/16), 191 So.3d 583 ; State v. Dupre , 16-1352 (La.App. 1 Cir. 4/12/17)

(unpublished opinion) ; State v. Shaw , 51,325 (La.App. 2 Cir. 5/17/17), 223 So.3d 607 ; State v. Plater , 51,338 (La.App. 2 Cir. 5/17/17), 222 So.3d 897 ; State v. Calhoun , 51,337 (La.App. 2 Cir. 5/17/17), 222 So.3d 903 ; State v. Brown , 51,418 (La.App. 2 Cir. 6/21/17), --- So.3d ---- ; State v. Harper , 51,539 (La.App. 2 Cir. 8/9/17), --- So.3d ----. Furthermore, by way of the 2017 amendments to La.Code Crim.P. art. 878.1 and La.R.S. 15:574.4, the Louisiana Legislature explicitly applied those provisions to the Defendant and ratified the decision of the trial court granting the Defendant parole eligibility.

Decree

For these reasons, the Defendant's sentence is affirmed and appellate counsel's motion to withdraw is granted.

SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.

      Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      At the time the Defendant filed his motion to reconsider, La.R.S. 15:574.4 (B)(1) provided: "Except as provided in Paragraph (2) of this Subsection, and except as provided in Subsections D and E of this Section, no prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years." Subsection E provided for juveniles convicted of first or second degree murder.

      2016 WL 756530.

      2017 WL 3400648.

      2017 WL 1376526.

      2017 WL 2665128.

      2017 WL 3400624.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Chelsea JACKSON v. ARAMARK HEALTHCARE SERVICES
    17-503
    Court of Appeal of Louisiana, Third Circuit.
    February 7, 2018 Rehearing Denied May 9, 2018
    Michael B. Miller, Jacqueline K. Becker, Attorneys at Law, P. O. Drawer 1630, Crowley, LA 70527-1630, (337) 785-9500, COUNSEL FOR PLAINTIFF/APPELLANT: Chelsea Jackson
    John J. Rabalais, Matthew D. Crumhorn, Rabalais Unland, 1404 Greengate Drive, Ste. 110, Covington, LA 70433, (504) 893-9900, COUNSEL FOR DEFENDANT/APPELLEE: Aramark Healthcare Services
    Court composed of Sylvia R. Cooks, John D. Saunders, and Candyce G. Perret, Judges.
   SAUNDERS, Judge.

In this case, we must decide whether the Employee's disputed claim for the rate of workers' compensation benefits paid was incorrect. We must also decide whether Employer improperly suspended Employee's medical and indemnity benefits, and if so, whether Employee is entitled to penalties, attorney fees, and legal interest.

Employee alleges that she suffered injuries to her head, neck, right shoulder, right arm and hand, and back as the result of a work-related accident. Following the accident, Employer initially paid Employee indemnity and medical benefits. However, Employee's medical benefits were suspended when she refused to submit to a neuropsychological evaluation. Likewise, Employee's indemnity benefits were suspended when an independent medical examiner's report indicated that Employee had reached maximum medical improvement and Employee was able to return to work. As a result, Employee filed a disputed claim form, seeking medical and indemnity benefits, penalties, attorney fees, expenses, and legal interest. Following a hearing, the workers' compensation judge found in Employer's favor.

Employee now appeals the workers' compensation judge's ruling. Her argument is that the workers' compensation judge erred in failing to rule as to the proper amount of weekly wage and workers' compensation rate, and in failing to award penalties, attorney fees, expenses, and legal interest for the alleged improper suspension of her medical and indemnity benefits.

FACTS AND PROCEDURAL HISTORY:

Chelsea Jackson ("Employee") was injured in the course of scope of her employment with Aramark Healthcare Services ("Employer") when she fell down a small flight of steps, hit her head on the wall, and fell on her right side. At the time of her work accident, Employee was employed as a full-time pod server and runner. Her job duties included fixing orders and delivering food to patients' rooms. Employee worked six days a week, occasionally worked overtime, and due to a recent promotion and pay raise was allegedly earning $10.00 per hour.

Prior to her work accident, Employee allegedly had no physical problems performing her job duties and did not miss any time from work for any physical injury or pain. However, Employee suffered from numerous pre-existing conditions, including a low back injury in 2005, which caused her to quit her job in 2006, a subsequent motor vehicle accident in which Employee suffered from "whiplash" to her neck and back, and a light stroke in 2008. In addition, Employee has a history of a heart murmur, bipolar disorder, and depression.

Following her work accident, Employee received indemnity benefits, albeit allegedly at an incorrect rate, as Employer allegedly failed to factor in Employee's recent promotion and pay raise and occasional overtime hours in calculating her average weekly wage to determine her compensation rate. In addition, Employee's medical benefits were suspended in November 2014, when she refused to submit to a neuropsychological examination. In response, Employee filed multiple motions, seeking authorization for a one-time evaluation with an orthopedic surgeon of her choice, and an order lifting the suspension of her medical benefits. Ultimately, Employee's request was granted, and the medical suspension was lifted. At that time, Employee was also ordered to attend a neuropsychological evaluation, which she did. Next, at Employer's request, Employee presented to a second orthopedic surgeon for a second medical opinion in response to that of Employee's chosen orthopedic surgeon. Finally, Employer requested the appointment of an independent medical examiner to provide a third, independent medical opinion as to the nature and extent of Employee's injuries.

Employee's indemnity benefits were suspended when the independent medical examiner's report indicated that Employee had reached maximum medical improvement and was able to return to work. At that time, Employee filed suit. Consequently, Employer filed an exception of prematurity and answer, alleging that Employee's suit was premature, that she was not disabled as a result of her work accident, and that Employee's medical and indemnity benefits were properly suspended.

After oral arguments, the workers' compensation judge rendered judgment finding that some, but not all, of Employee's injuries were causally related to her work accident; that Employee was not disabled as of February 1, 2016; that Employee is not entitled to payment of non-emergency care for which pre-approval was not obtained; and that Employee is not entitled to penalties and attorney fees. Employee timely filed a motion for devolutive appeal. Pursuant to that motion, Employee is presently before this court alleging six assignments of error.

ASSIGNMENTS OF ERROR:

1. The workers' compensation judge legally erred in failing to rule as to the proper amount of Ms. Jackson's average weekly wage and worker's compensation rate when this amount was an issue in dispute.
2. The workers' compensation judge legally erred in failing to award any indemnity benefits when Chelsea Jackson had a compensable work accident and was disabled after her accident.
3. The workers' compensation judge erred in finding that Ms. Jackson's right arm and low back complaints are not casually related to her work accident of May 5, 2014, and in not addressing her right shoulder and hand injury.
4. The worker's compensation judge erred in allowing into evidence and in relying upon the IME report of John Budden, M.D., which did not comply with the mandatory requirements of La.R.S. 23:1317.1 and lacks reliability and trustworthiness.
5. The workers' compensation judge erred in failing to award any penalties, attorneys fees, and expenses.
6. The workers' compensation judge legally erred in failing to award legal interest on all amounts owed.

ASSIGNMENT OF ERROR NUMBER ONE:

In her first assignment of error, Employee contends that the workers' compensation judge legally erred in failing to rule as to the proper amount of her average weekly wage and workers' compensation rate when this amount was an issue in dispute. We find merit to this contention.

When an issue raised on appeal posits a question of law, the standard of review is de novo wherein the appellate court determines whether the lower court was legally correct. Tran v. Williams , 10-1030 (La.App. 3 Cir. 2/9/11), 56 So.3d 1224.

Louisiana Revised Statutes 23:1221 provides, in pertinent part, as follows:

Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
(1) Temporary total.
(a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.

Louisiana Revised Statutes 23:1021(13)(a)(i) provides as follows:

(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater.

In Driscoll v. Stucker , 04-0589, pp. 18-19 (La. 1/19/05), 893 So.2d 32 (citations omitted), our supreme court noted:

An adverse presumption exists when a party having control of a favorable witness fails to call him or her to testify, even though the presumption is rebuttable and is tempered by the fact that a party need only put on enough evidence to prove the case. Explaining that adverse presumption, the Fourth Circuit recently noted " '[w]hen a defendant in a civil case can by his own testimony throw light upon matters at issue, necessary to his defense and particularly within his own knowledge, and fails to go upon the witness stand, the presumption is raised and will be given effect, that the facts, as he would have them do not exist.' " This adverse presumption is referred to as the "uncalled witness" rule and applies "when 'a party has the power to produce witnesses whose testimony would elucidate the transaction or occurrence' and fails to call such witnesses." Despite the advent of modern, liberal discovery rules, this rule remains vital, especially in cases, such as this one, in which a witness with peculiar knowledge of the material facts is not called to testify at trial.

Employee subpoenaed Employer to testify concerning the hours she worked and her rate of pay during the requisite time. Inasmuch as Employer failed to produce any witness, and the testimony of Employee that she received an increase to $10.00 per hour, we hold that Employee was a full-time, hourly employee earning $10.00 per hour, plus overtime. Therefore, pursuant to statute, her compensation is determined by taking sixty-six and two thirds percent (66 2/3%) of her average weekly wage from the average actual hours worked in the four full weeks preceding the accident, or forty hours, whichever is greater. Accordingly, we use the following computation to determine her compensation rate:

1. April 5, 2014 to April 11, 2014 = 40 regular hours; 3.12 overtime
2. April 12, 2014 to April 18, 2014 and April 19, 2014 to April 25, 2014 = 80 regular hours; 2.28 overtime
3. April 26, 2014 to May 2, 2014 = 40 regular hours; 1.42 overtime

Using these figures, Employee's average weekly wage is calculated as follows:

Total regular hours/four full weeks = 160 ÷ 4 = 40 hours per week
Regular pay: 40 hours × $10.00 = $400.00
Total overtime hours/four full weeks = 6.82 ÷ 4 = 1.72 hours per week
Overtime pay: 1.72 hours × $15.00 = $25.65
$400.00 + $25.65 = $425.65 average weekly wage
$425.65 × 66 2/3% = $283.77 workers' compensation rate

We note that the final judgment fails to address the issue of La.R.S. 23:1021(13)(a)(i) calculation of Employee's weekly compensation rate, although Employee's attorney indicated that it was an issue for trial. This court held in Danzey v. Evergreen Presbyterian Ministries , 95-167 (La.App. 3 Cir. 6/7/95), 657 So.2d 491, that a written judgment silent as to an issue was to be construed as a rejection of the relief requested on that issue. The workers' compensation judge's failure to address the issue of the Employee's correct compensation rate in the final written judgment is, therefore, considered a denial of Employee's request for the difference in what she should have been paid versus what she was paid. The record supports a finding, however, that Employer failed to properly calculate Employee's average weekly wage and to properly pay Employee's workers' compensation rate. Accordingly, we reverse the Office of Workers' Compensation judgment on this issue, as Employee's workers' compensation rate is $283.77 per week.

ASSIGNMENT OF ERROR NUMBER TWO:

In her second assignment of error, Employee contends that the workers' compensation judge committed legal error in failing to award any indemnity benefits when Employee had a compensable work accident and was disabled after her accident. We find no merit to this contention.

When an issue raised on appeal posits a question of law, the standard of review is de novo wherein the appellate court determines whether the lower court was legally correct. Tran v. Williams , 10-1030 (La.App. 3 Cir. 2/9/11), 56 So.3d 1224.

There is a legal presumption that Employee's disability was caused by the accident. This court in Ware v. Allen Par. Sch. Bd. , 01-1011, p.3 (La.App. 3 Cir. 5/21/03), 854 So.2d 374, 378, citing Walton v. Normandy Village Homes Assoc., Inc. , 475 So.2d 320 (La.1985), held:

An injured worker's disability is presumed to have resulted from an accident, if before the accident he was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing either that there is sufficient medical evidence to show there to be a causal connection between the accident and disabling condition, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection.

In Richardson v. Lil' River Harvesting , 09-1090, p. 2 (La.App. 3 Cir. 3/10/10), 33 So.3d 418, 419 this court held:

An IME's medical conclusions should be given significant weight because the IME is an objective party. Scott v. Wal-Mart Stores, Inc. , 03-858 (La.App. 1 Cir. 2/23/04), 873 So.2d 664 ; see also La. R.S. 23:1123. However, the opinion of the IME is not conclusive, and the workers' compensation judge must evaluate all of the evidence presented in making a decision as to a claimant's medical condition. Mosley v. Pennzoil Quaker State , 37,199 (La.App. 2 Cir. 7/23/03), 850 So.2d 1100 [, writ denied , 03-2412 (La. 11/21/03), 860 So.2d 553 ].

In Richardson , this court further held that "as a general rule, while the trier of fact is required to weigh the testimony of all medical witnesses, the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice." Richardson , 33 So.3d at 419-420.

Pursuant to the judgment signed November 9, 2016, the workers' compensation judge found that the suspension of Employee's indemnity benefits, based upon the independent medical examiner's report indicating that Employee had reached maximum medical improvement and was able to return to work, was proper.

Prior to Employee's work accident, Employee worked for Employer for several years, in different capacities, first as a seasonal employee serving customers at the Minute Maid park in Houston during baseball season, and later, doing home health work, and at no time did she ever have problems physically performing her job duties. During her last tenure with Employer-the period in which she was injured-Employee worked as a pod server and runner at Lafayette General Medical Center, where her job duties included pushing and/or pulling four foot and six foot carts filled with food trays to deliver them to patients' rooms. Her work was fast-paced, and she did a lot of standing, bending, and walking. However, Employee suffered from numerous pre-existing conditions, including a lower back injury in 2005, which caused her to quit her job in 2006, a subsequent motor vehicle accident in which Employee suffered from "whiplash" to her neck and back, and a light stroke in 2008. In addition, Employee has a history of a heart murmur, bipolar disorder, and depression.

David W. McManus, M.D.

On May 5, 2014, immediately after her work accident, Employee was admitted to Lafayette General Medical Center by Elizabeth Watson, M.D. During her three-day hospital stay, Employee was seen by neurologist, David W. McManus, M.D. ("Dr. McManus"), to whom she reported injuries to her neck and shoulder. Employee was discharged with a diagnosis of post-concussion syndrome, in combination with an underlying psychiatric disorder. Upon discharge, Employee was advised to follow-up with a neurologist of her choice, and psychiatrist Scott Mayers. Thereafter, Employee was seen by several health care professionals over the course of the next two years, where she complained of a multitude of symptoms. Employee has not worked or earned any wages since the date of her accident.

Wael Alabulkarim, M.D. (Neurologist)

On June 2, 2014, Employee presented to 21, 2014, Wael Alabulkarim ("Dr. Karim") for treatment, with added complaints of confusion, dizziness, and an inability to walk since the accident. She also complained of bruising on both thighs, pain in her shoulders and low back, vision difficulty, and headaches. Dr. Karim diagnosed Employee with a concussion, chronic headaches, neck pain, right arm pain and numbness, insomnia, dizziness, and short-term memory loss. He prescribed Topamax 25 mg., and Mobic at that time, and recommended an electroencephalogram ("EEG"). Dr. Karim also made a notation to consider an electromyography ("EMG") and a Nerve Conduction Study ("NCS") for her alleged right arm pain, and a neuropsychiatric evaluation. The EEG was abnormal due to the presence of two episodes of intermittent slowing, which is a non-specific sign, but can be found in intericatal event. Next, Dr. Karim recommended a magnetic resonance image ("MRI") of the cervical spine, which was performed at Laborde Diagnostics. That test result was negative for herniations, protrusions or disc bulges, with the exception of a minimal central tissue disc bulge at C3-4. Employee continued to treat with Dr. Karim until May 12, 2015.

James N. Domingue, M.D. (Neurologist)

On October 21, 2014, Employee presented to James N. Domingue, M.D. ("Dr. Domingue") with complaints of headaches that involve the entire head, often accompanied by dizziness, as well as pain in her low back, neck, and upper right extremity. After examining Employee and reviewing her medical records, Dr. Domingue opined that it is likely that Employee has right shoulder pathology and recommended that she consult with an orthopedic surgeon for further evaluation. Dr. Domingue further opined that his neurological examination contained so many inconsistencies and suggestions of exaggeration that it was difficult to discern which of Employee's responses were real, and, as such, recommended a neuropsychological battery examination on November 18, 2014, with neuropsychologist, Dr. Lynn Aurich; however, Employee refused to attend. As a result, Employer suspended Employee's medical benefits. At that time, Employee filed motions seeking authorization to treat with an orthopedic surgeon of her choice. The motions were set for hearing on January 13, 2015, at which time Employee was awarded a one-time evaluation with John Sledge, III, M.D. In addition, Employee was compelled to attend a neuropsychiatric evaluation, and Employer was compelled to lift the suspension of Employee's medical benefits.

Angela Traylor, M.D. (Psychiatrist)

On February 7, 2015, Employee presented to psychiatrist Angela Traylor ("Dr. Traylor") with complaints of "mood instability". Dr. Traylor concluded that Employee suffered from bipolar disorder /manic depression, and Ambien was prescribed. On March 28, 2015, Employee presented for a follow-up, with related symptoms, at which time Employee was prescribed Ambien 5MG, at bedtime.

John B. Sledge, III, M.D. (Orthopedic Surgeon)

On February 25, 2015, Employee presented to John B. Sledge, III, M.D. ("Dr. Sledge") with complaints of neck and right shoulder pain. At that time, Employee reported to Dr. Sledge that following her accident she did not return to work. In his reports dated February 25, 2015, April 8, 2015, and October 7, 2015, as well as in his correspondence dated November 11, 2015, Dr. Sledge noted that Employee is unable to work pending treatment. In his deposition taken on January 8, 2016, Dr. Sledge testified that without having a Functional Capacity Evaluation ("FCE"), any release of Employee would be light-duty, and would be on a trial basis. In that correspondence, Dr. Sledge also noted that he would want to see a job description of any jobs offered to review prior to his approval of Employee to do the job. Dr. Sledge also indicated that he would have restrictions from overhead activities, limiting bending, twisting, rotational activities, and that Employee would need to be able to sit or stand as well. No functional capacity evaluation ("FCE") was ever performed, no job or vocational rehabilitation was ever offered to Employee in accordance with the restrictions of Dr. Sledge, and Dr. Sledge never approved Employee for any jobs.

Douglas A. Bernard, M.D. (Orthopedic Surgeon-Second Opinion)

On April 1, 2015, Employee presented to Douglas A. Bernard, M.D., ("Dr. Bernard"), for a second opinion as requested by Employer. Overall Dr. Bernard diagnosed Employee with a contusion to the head. Dr. Bernard also opined that Employee had reached maximum medical improvement. Dr. Bernard further opined that Employee had mental issues that needed to be evaluated, and recommended that she undergo a thorough neuropsychiatric evaluation. Furthermore, Dr. Bernard agreed with Dr. Domingue, that there were obvious signs of exaggeration and symptom magnification with regards to Employee's complaints of right arm/shoulder, neck, and lower back pain.

John Budden, M.D.-Independent Medical Examiner

On August 26, 2015, Employee presented to John R. Budden, M.D. ("Dr. Budden") for a court ordered independent medical examination ("IME"). Dr. Budden issued a report stating that Employee had reached maximum medical improvement and was able to return to work. Dr. Budden later testified that there was no indication of any diagnostic testing or treatment needed, and he alluded to Employee's pre-existing psychological condition(s) as an explanation for Employee's ongoing complaints of pain.

In the instant case, our review of the record reveals that at the time of trial, Employee had been in the workers' compensation system for nearly two years, and according to her testimony, which was contrary to the objective medical findings, she remained unable to return to work due to her injuries. During the course of her treatment, both Dr. Karim and Dr. Sledge had taken Employee off of work. And although Dr. Domingue opined that Employee should not work pending the results of a neuropsychological evaluation, he also opined that it was hard to determine whether Employee was exaggerating her symptoms. Contrary to those medical opinions, Dr. Bernard and Dr. Budden found that Employee was able to work. Significantly, Dr. Domingue, Dr. Bernard, Dr. Traylor, and Dr. Budden all concluded that Employee had an underlying psychiatric disorder. Moreover, Dr. Bernard and Dr. Budden concluded that Employee's alleged inability to work was likely due to her pre-existing psychological condition, and not her physical injuries. Applying the legal presumption and giving greater weight to Employee's treating physicians over the IME physician, any disability Employee might have had was likely due to her pre-existing psychological condition, and not her physical injuries. Accordingly, the workers' compensation judge did not err in failing to award indemnity benefits, as Employee's indemnity benefits were properly terminated when the IME report indicated that she had reached maximum medical improvement and was able to return to work, the Employee failed to prove that she is disabled due to her work-related injuries, and the objective medical findings confirmed the same.

ASSIGNMENT OF ERROR NUMBER THREE:

In her third assignment of error, Employee contends that the workers' compensation judge erred in concluding that her right arm and low back complaints are not causally related to her work accident, and in not addressing her right shoulder and hand injury. We find no merit to this contention.

When reviewing a WCJ's findings of fact, appellate courts do not review the findings of fact to determine whether they are right or wrong but whether they are reasonable based on the record. Dean v. Southmark Constr. , 03-1051 (La. 7/6/04), 879 So.2d 112. Unless the WCJ's findings of fact are found to be manifestly erroneous or clearly wrong, those findings will not be set aside. Id. A factfinder's choice can virtually never be wrong if the evidence presents two reasonable views of the facts. Rosell v. ESCO , 549 So.2d 840 (La.1989).

In Rosell , 549 So.2d at 844-45 (citations omitted), our supreme court stated:

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

At the time of trial, Employee continued to allege a total disability as a result of multiple injuries sustained in her work accident. For a claimant to prove that she is entitled to benefits of any kind, solely because of pain, her burden is raised to clear and convincing. Futch v. Horseshoe Casino , 49,144, p.10 (La.App. 2 Cir. 7/23/14), 146 So.3d 818, writ denied, 14-1934 (La. 11/21/14), 160 So.3d 973. He/She cannot sustain that burden of proof if evidence casts doubt and discredits his/her version of events. Bruno v. Harbert Int'l Inc., 593 So.2d 357 (La.1992).

In the instant case, our review of the record reveals that prior to Employee's work accident, Employee suffered from numerous pre-existing conditions, including a low back injury in 2005, which caused her to quit her job in 2006, a subsequent motor vehicle accident in which Employee suffered from "whiplash" to her neck and back, and a light stroke in 2008. In addition, Employee has a history of a heart murmur, bipolar disorder, and depression. Furthermore, Employee testified at trial that she has racing thoughts, symptoms of paranoia, and auditory and visual hallucinations. A neuropsychological evaluation of Employee noted emotional factors or symptom malingering. Most importantly, however, the objective medical findings and testimony corroborated Dr. Bernard's second medical opinion, as well as Dr. Budden's IME opinion, that Employee's symptoms and alleged inability to work were likely due to her pre-existing psychological condition, and not her physical injuries. Accordingly, the workers' compensation judge did not err in finding that Employee's right arm and low back complaints are not causally related to her work accident, and in not addressing her right shoulder and hand injury, as Employee had a multitude of pre-existing injuries, was deemed not to be credible at trial, and her allegations of total disability are contrary to the objective medical findings.

ASSIGNMENT OF ERROR NUMBER FOUR:

In her fourth assignment of error, Employee contends that the workers' compensation judge erred in allowing into evidence and relying upon the IME report of Dr. Budden which did not comply with the mandatory requirements of La.R.S. 23:1317.1, and lacks reliability and trustworthiness. We find no merit to this contention.

A trial court has broad discretion in handling discovery matters and an appellate court should not upset a ruling absent an abuse of discretion. Arterburn v. Arterburn , 15-22 (La.App. 3 Cir. 10/7/15), 176 So.3d 1163, 1176, writ not considered , 15-2064 (La. 1/8/16), 184 So.3d 689.

Louisiana Code of Evidence Article 402 provides "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation." Louisiana Code of Evidence Article 401 defines "Relevant Evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Louisiana Code of Evidence Article 403 provides "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time." Moreover, "[a] trial court is vested with much discretion in determining whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect." State v. Henry , 11-1137, p. 9 (La.App. 4 Cir. 10/24/12), 102 So.3d 1016, 1022writ denied, 12-2520 (La. 4/26/13), 112 So.3d 838. Thus, "ultimately, questions of relevancy and admissibility of evidence are discretionary calls for the trial court." State v. Gorman , 14-1108, p.17 (La.App. 1 Cir. 3/6/15), 166 So.3d 356, 369, writ denied , 12-2520 (La. 2/19/16), 186 So.3d 1173. Moreover, an "OWC judge has the discretion to admit evidence that would otherwise be inadmissible under the Louisiana Code of Evidence." La. Commerce & Trade Ass'n, SIF v. Williams, 14-1680 (La.App. 1 Cir. 6/5/15), 174 So.3d 696, 699. In other words, workers' compensation judges are not strictly bound by the technical rules of evidence and have the discretion to determine the admissibility of the evidence in a workers' compensation proceeding. La. R.S. 23:1317(A).

In the instant case, we find no abuse of the vast discretion afforded the workers' compensation judge in admitting Dr. Budden's report into evidence despite its alleged technical deficiencies, as Dr. Budden's opinion was reiterated in his deposition, the admissibility of which was not in question. As noted above, "The workers' compensation judge shall not be bound by technical rules of evidence ...." La.R.S. 23:1317(A). Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE:

In her fifth assignment of error, Employee contends that the workers' compensation judge erred in failing to award any penalties, attorney fees, and expenses. We find merit to this contention.

When an issue raised on appeal posits a question of law, the standard of review is de novo wherein the appellate court determines whether the lower court was legally correct. Tran v. Williams , 10-1030 (La.App. 3 Cir. 2/9/11), 56 So.3d 1224.

Employee alleges that Employer improperly suspended her indemnity and medical benefits, and as such, she is entitled to penalties and attorney fees.

In Futch v. Horseshoe Casino , 146 So.3d at 827, the second circuit noted:

The penalty statute, R.S. 23:1201 F, is strictly construed Williams v. Rush Masonry , 98-2271 (La. 6/29/99), 737 So.2d 41, and penalties are not allowed if the employer has "some valid reason or evidence upon which to base his denial of benefits," Brown v. Texas-La. Cartage Inc. , 98-1063 (La. 12/1/98), 721 So.2d 885.
....
The penalty claim is therefore based on a finding of termination and regulated by R.S. 23:1201 I:
I. Any employer or insurer who at any time discontinues payment of claims due and arising under the Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.
The award of a penalty and attorney fee under R.S. 23:1201 I is penal in nature, being imposed to discourage indifference and
undesirable conduct by employers and insurers. Iberia Medical Ctr. v. Ward , 2009-2705 (La. 11/30/10), 53 So.3d 421. Although the Workers' Compensation Act is liberally construed as to benefits, its penal provisions are strictly construed. Id. Arbitrary and capricious behavior consists of "willful and unreasoning action, without consideration and regard for the facts and circumstances presented, or of seemingly unfounded motivation." Id. ; Brown v. Texas-La. Cartage, supra ; Henderson v. Graphic Packaging Int'l , 48,491 (La.App. 2 Cir. 11/20/13), 128 So.3d 599.

In the instant case, our review of the record reveals that Employer's suspension of Employee's medical and indemnity benefits was not arbitrary and capricious, or without probable cause, as Employee's medical benefits were properly suspended in accordance with La. R.S. 23:1124 due to Employee's refusal to submit to a neuropsychological evaluation, and that those benefits were later reinstated, and Employee was ordered to submit to a neuropsychological examination, which she did. Likewise, Employee's indemnity benefits were properly suspended when the IME's report indicated that Employee had reached maximum medical improvement and was able to return to work. Accordingly, the workers' compensation judge did not err in failing to award penalties, attorney fees, and expenses relative to the suspension of Employee's medical and indemnity benefits. The record further shows that the workers' compensation judge properly denied Employee's request for penalties and attorney fees relative to the alleged improper payment of Employee's medical bills and alleged underpayment of mileage, as the record does not support a finding that the workers' compensation judge committed manifest error in failing to find that outstanding medical bills and mileage are owed.

However, our review of the record indicates that Employee is entitled to an award of penalties and attorney fees based on Employer's failure to properly calculate Employee's weekly wage and to properly pay Employee's workers' compensation rate.

Louisiana Revised Statutes 23:1201F provides, in pertinent part:

F. Except as otherwise provided in this Chapter, failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid ... together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars....

In the instant case, our review of the record reveals that Employee's check stubs were introduced at trial to show that at the time of her work accident Employee was earning $10.00 per hour. The workers' compensation insurer's payment records that Employer paid Employee at the incorrect worker's compensation rate of $226.68 weekly from May 23, 2014 through August 28, 2015, rather than at the correct rate of $283.77. The workers' compensation judge did not address this failure in the judgment. Thus, we find it was error for the judgment not to include an award for penalties and attorney fees based on Employer's failure to properly calculate Employee's average weekly wage and to properly pay Employee's workers' compensation rate. Accordingly, we find that an award of penalties in the sum of $2,000.00 is warranted. We further find that it was error for the judgment not to include an award of attorney fees for Employer's failure to properly calculate Employee's weekly wage and to properly pay Employee's workers' compensation rate. The record shows Employee's attorney was required to devote considerable time and effort at trial arguing this matter, as well as in preparing a brief for this appeal. Accordingly, we find an award of attorney fees in the sum of $6,000.00 is warranted.

ASSIGNMENT OF ERROR NUMBER SIX:

In her sixth assignment of error, Employee contends that the trial court erred in failing to award legal interest on all amounts owed. We find merit to this contention.

When an issue raised on appeal posits a question of law, the standard of review is de novo wherein the appellate court determines whether the lower court was legally correct. Tran v. Williams , 10-1030 (La.App. 3 Cir. 2/9/11), 56 So.3d 1224.

Louisiana Revised Statutes 23:1201.3 provides "Any compensation awarded and all payments thereof directed to be made by order of the workers' compensation judge shall bear judicial interest...." Louisiana Revised Statutes 23:1310.5(B) provides "[t]he decision of the workers' compensation judge shall be final unless an appeal is made to the appropriate circuit court of appeal."

In the instant case, our review of the record shows that Employee's medical benefits were properly suspended as a result of her failure to submit to a neuropsychological evaluation. Those benefits were later reinstated, and Employee was ordered to submit to a neuropsychological evaluation, which she did. Accordingly, no legal interest is owed relative to this matter. Likewise, Employee's indemnity benefits were properly suspended when the IME report indicated that Employee had reached maximum medical improvement and was able to return to work. Accordingly, no legal interest is owed relative to this matter. Moreover, the record further shows that Employee's medical benefits and mileage were properly paid. Accordingly, no legal interest is owed relative to these matters.

However, legal interest is owed as a result of Employer's failure to properly calculate Employee's average weekly wage and to properly pay her workers' compensation rate. Accordingly, we render an award of legal interest for Employer's failure to properly calculate Employee's average weekly wage and to properly pay Employee's workers' compensation benefits.

CONCLUSION:

Chelsea Jackson asserts six assignments of error as to why the workers' compensation judge erred in finding that some, but not all, of her injuries were causally related to her work accident of May 5, 2014; that she is not disabled as of February 1, 2016; that she is not entitled to payment of non-emergency care that was not pre-approved; and that she is not entitled to penalties, attorney fees, expenses, and legal interest. We find merit to Ms. Jackson's first assignment of error that the workers' compensation judge erred in failing to make a finding as to Ms. Jackson's average weekly wage and correct workers' compensation rate, as Aramark failed to properly calculate Ms. Jackson's average weekly wage and failed to properly pay her the correct workers' compensation rate. Accordingly, we reverse the Office of Workers' Compensation judgment on this issue, as Employee is entitled to the payment of benefits at the correct workers' compensation benefits rate. We do not find merit to Ms. Jackson's second assignment of error, that the worker's compensation judge erred in failing to award indemnity benefits, as Ms. Jackson's indemnity benefits were suspended when a court appointed IME issued a report that indicated that she had reached maximum medical improvement and was able to return to work, and Ms. Jackson's continued subjective complaints of pain are contrary to the objective medical findings. We do not find merit to Ms. Jackson's third assignment of error, that the workers' compensation judge erred in finding that her right arm and low back complaints are not causally related to her work accident of May 5, 2014, and in not addressing her right shoulder and hand injury, as Ms. Jackson had a multitude of pre-existing injuries, was reasonably deemed not to be credible at trial, and her continued subjective complaints of pain are contrary to the objective medical findings. We do not find merit to Ms. Jackson's fourth assignment of error, that the workers' compensation judge erred in allowing into evidence and in relying upon the IME report of Dr. Budden, as workers' compensation judges are not strictly bound by the technical rules of evidence and have the discretion to determine the admissibility of the evidence in a workers' compensation proceeding, the evidence was relevant, and all relevant evidence is admissible. We do not find merit to Ms. Jackson's fifth assignment of error, that the workers' compensation judge erred in failing to award penalties, attorney fees, and expenses relative to the suspension of Ms. Jackson's medical benefits, as those benefits were properly suspended when Ms. Jackson failed to present for a neuropsychological examination. Further, Ms. Jackson's indemnity benefits were properly suspended when the IME report indicated that she had reached maximum medical improvement and was able to return to work. Moreover, we do not find that the workers' compensation judge erred in failing to award penalties, attorney fees, and expenses relative to the alleged improper payment of Ms. Jackson's medicals and the alleged underpayment of mileage, as the record does not support a finding that outstanding medicals and mileage are owed. However, we find that the workers' compensation judge erred in failing to award penalties and attorney fees for Aramark's failure to properly calculate Ms. Jackson's average weekly wage and to properly pay her workers' compensation rate when it was within Aramark's control to do so. Accordingly, we render an award of penalties in the sum of $2,000.00, for Aramark's failure to properly calculate Ms. Jackson's average weekly wage and to properly pay her correct workers' compensation rate. We render an award of attorney fees in sum of $6,000.00, as Ms. Jackson's attorney expended time arguing this matter at trial and in preparing a brief for this appeal. We find merit to Ms. Jackson's sixth assignment of error that the workers' compensation judge erred in failing to award legal interest relative only to Aramark's failure to properly calculate Ms. Jackson's average weekly wage and to properly pay her workers' compensation rate when it was within its control to do so. Accordingly, we render an award of legal interest for Aramark's failure to properly calculate Ms. Jackson's average weekly wage and to properly pay her workers' compensation rate.

Costs of these proceedings are assessed to Aramark.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.