author: CHUTZ, J.

text:
    Robert CHERAMIE and His Wife Emma Cheramie v. PORT FOURCHON MARINA, INC
    2016 CA 0895
    Court of Appeal of Louisiana, First Circuit.
    FEBRUARY 17, 2017

      James L. Hannon, George P. Vourvouli-as, III, New Orleans, Louisiana, Counsel for Plaintiffs-Appellants, Robert and Emma Cheramie
    Lloyd Joseph Tabary, II, Michael P. Schillage, Baton Rouge, Louisiana, Counsel for Defendants-Appellees, Port Four-chon Marina, Inc. and Chris Moran Marina, LLC
    BEFORE: HIGGINBOTHAM, THERIOT AND CHUTZ, JJ.
   CHUTZ, J.

| gPlamtiffs-appellants, Robert Cheramie and his wife, Emma, appeal the trial court’s grant of summary judgment dismissing their lawsuit against defendants-appellees, Port Fourchon Marina, Inc. (PFM) and Chris Moran Marina, LLC (CMM), based on the conclusion that the premises in which Cheramie sustained personal injuries did not constitute an unreasonable risk of harm for which defendants were liable. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 28, 2012, Cheramie was working as a support supervisor for Team Labor Force, LLC, at marina premises owned by PFM, leased to its sister company, CMM, and sublet to BP Exploration & Production Inc. (BP) in conjunction with BP’s oil spill clean-up operation after the Deepwater Horizon oil rig explosion. As he changed a lightbulb in a boat shed used for storage, which was located on the marina premises, Cheramie fell from an extension ladder he had braced against a rafter in the shed. As a result, Cheramie fell at least 12 feet onto the cement floor and sustained injuries.

Cheramie and his wife subsequently sued PFM and, by amended petition, added CMM as the parties responsible for the premises. The Cheramies contended that because the roof of the boat shed leaked, it caused the wooden | ¡¡rafter that Cheramie had braced the ladder against to become wet. They maintained that as Cheramie reached the top of the ladder, either as a response to the wetness of the wood or due to a slickness created onto the wood because of its wet condition, the rafter shifted or moved, causing the ladder to become unstable.

After discovery, PFM and CMM filed a joint motion for summary judgment averring that the Cheramies failed to establish the premises presented an unreasonable risk of harm so as to constitute a defect for which liability could be imposed. After a hearing, the trial court granted summary judgment on this basis and rendered judgment dismissing the Cheramies’ claims against PFM and CMM. The Cheramies devolutively appealed.

DISCUSSION

A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Temple v. Morgan, 2015-1159 (La.App. 1st Cir. 6/3/16), 196 So.3d 71, 76, writ denied, 2016-1255 (La. 10/28/16), 208 So.3d 889.

The burden of proof rests with the mover. See La. C.C.P. art. 966C(2). But if the moving party will not bear the burden of proof at trial, the moving party’s burden is satisfied by pointing out an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish that they will be bable to satisfy their evidentiary burden of proof at trial. If they fail to do so, there is no genuine issue of material fact. See La. C.C.P. art. 966C(2); Temple, 196 So.3d at 76.

The general rule is that the owner or custodian of property has a duty to keep the property in a reasonably safe condition. The owner or custodian must discover any unreasonably dangerous condition on the premises and either correct the condition or warn potential victims of its existence. Pryor v. Iberia Par. Sch. Bd., 2010-1683 (La. 3/15/11), 60 So.3d 594, 596. This duty is the same whether based on custodial liability under La. C.C. arts. 2317, 2317.1 and 2322, or negligence under La. C.C. art. 2315A. See Jackson v. Brumfield, 2009-2142 (La.App. 1st Cir. 6/11/10), 40 So.3d 1242, 1243.

Under either theory, the plaintiff has the burden of proving that: (1) the property which caused the damage was in the “custody” of the defendant; (2) the property had a condition that created an unreasonable risk of harm to persons on the premises; (3) the unreasonably dangerous condition was a cause in fact of the resulting injury; and (4) the defendant had actual or constructive knowledge of the risk. Graupmann v. Nunamaker Family Ltd. P’ship, 2013-0580 (La.App. 1st Cir. 12/16/13), 136 So.3d 863, 867. Additionally, before custodial liability may be | ¿imposed, our jurisprudence requires that the property or its defective component part create an unreasonable risk of harm. See Broussard v. State ex rel. Office of State Bldgs., 2012-1238 (La. 4/5/13), 113 So.3d 175, 183.

In determining whether a defect presents an unreasonable risk of harm, the trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Reed v. Wal-Mart Stores, Inc., 97-1174 (La. 3/4/98), 708 So.2d 362, 365. To aid the trier-of-fact in making this unscientific determination, the courts have adopted a risk-utility balancing test, which requires consideration of four factors: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs activities in terms of its social utility or whether they are dangerous by nature. Broussard, 113 So.3d at 184.

The question of whether a defect presents an unreasonable risk of harm is “a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of the facts.” Broussard, 113 So.3d at 183 (citing Reed, 708 So.2d at 364). Thus, whether a defect presents an unreasonable risk of harm is “a matter wed to the facts” and must be determined in light of facts and circumstances of each particular case. Broussard, 113 So.3d at 183.

Our jurisprudence does not preclude the granting of a motion for summary judgment in cases where the plaintiffs are unable to produce factual support for their claim that a complained-of condition or thing is unreasonably dangerous. Allen v. Lockwood, 2014-1724 (La. 2/13/15), 156 So.3d 650, 653. Therefore, once the defendants point out a lack- of factual support for an essential element in the plaintiffs’ case, the burden then shifts to the plaintiffs to come forward with evidence to demonstrate that they will be able to meet their burden at trial. Id.

|fiIt is undisputed that PFM and/or CMM had custody of the boat shed located on the marina premises. And at the summary judgment hearing, PFM and CMM conceded that, based on the evidence gathered through discovery, there remained issues of fact. These included: how the accident occurred; how Cheramie had placed the ladder; whether the rafter was wet; and how the rafter responded to the placement of the ladder. But PFM and CMM maintained that none of thesé issues were material so as to preclude summary judgment.

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are material if they, potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751.

Therefore, for purposes of our review of the summary judgment dismissing the Cheramies’ claims against PFM and CMM based on the conclusion there was no unreasonable risk of harm in the premises, we must resolve these factual issues in favor of the Cheramies. Thus, solely for purposes of this review, we presume that the ladder was placed as Cheramie described: in a safe manner. Likewise, we presume the roof leaked, the rafter was wet, and,that it moved or shifted when Cheramie reached the top of the ladder.

It is undisputed' that PFM and/or CMM bore the responsibility of changing the lightbulbs in the boat shed. At BP’s request, a lighting system was installed into the boat shed. The record fails to establish that PFM was notified that the lightbulb had burned out and needed to be replaced. According to Cheramie’s deposition testimony, he felt that changing the lightbulb was in the scope of his | /‘generalized daily upkeep and maintenance” duties. He believed a DEQ inspection was imminent and since he wanted to pass inspection, he sent his crew to tend to other duties while he changed the lightbulb by himself. Chera-mie conceded, however, that he was unaware of whether a burnt out lightbulb in the boat shed would have resulted in a failed inspection.

Describing in detail his presumably safe placement of the ladder against the wet rafter, Cheramie stated that the ladder was stable as he began his ascent, which was at least 12 feet high. It seemed to him as he climbed to the top “and the weight was put on [the rafter], it seemed that it bowed out.” The ladder became unstable, and he fell off to the right side. Cheramie explained that only the right leg of the ladder continued to make full contact with the rafter; the left leg was “barely on it.” He did not know whether the rafter cracked or broke; was in good condition before he used it; or was regularly wet from the leaks in the roof. According to crew coworker Shain Voisin’s deposition testimony, as he returned to the boat shed, he heard grunting and witnessed Chera-mie holding onto the wooden rafter. Although Voisin could tell the rafter was wet because it had dark spots, he did not know whether the wood was rotten.

■ Turning to the first consideration under the risk-utility balance test, the parties do not dispute the roof has social utility in providing cover for the building, and that the rafter’s utility consists in providing support for the tin roof affixed to it. But the Cheramies point out that because the roof leaked, it was not fully accomplishing its purpose of providing cover for the contents stored in the building or for the effectiveness of the building’s structure which will obviously weaken with an extended exposure to moisture. Voisin testified that the leaky roof interfered with his ability to dó his job because some of the BP storage materials, Rsuch as peat moss, were not supposed to become wet. And in this regard, Cheramie téstified some of the storage material regularly had to be covered to protect it from becoming wet. Although the record established that the roof of the boat shed was repaired at BP’s request in September 2011 after a tropical storm caused the ends to detach, the Cher-amies offered nothing that suggested issues with leaks in the roof created any subsequent problems for BP as it conducted business as the lessee who was utilizing the premises. And the record is devoid of any evidence that the rafter in its condition on the day of the accident did not provide sufficient support to the tin roof in accordance with the purpose for which it was designed. Thus, even if the roof leaked and the rafters were wet, the record establishes they provided ample utility.

Insofar as the cost of preventing the harm, nothing in the record establishes the amount that replacement of the rafter Cheramie utilized (or all the rafters in the boat shed) and the tin roofing would have cost. Similarly, there is no evidence establishing the cost required for Cheramie to have changed the lightbulb in the boat shed without using the rafter as a brace. Although the record is devoid of any evidence to establish the actual monetary cost of avoiding the harm, Cheramie admitted that nothing prevented him from waiting for another worker to assist him in the lightbulb changing project. Therefore, the record shows that delaying the undertaking would not have cost anything and may have prevented the harm.

Turning to the likelihood and magnitude of harm created by the leaky roof and the wet rafter, PFM and CMM urge they were minimal. They buttress this 13assertion by pointing to a lack of evidence of any complaints by BP. PFM and CMM suggest that when used in the intended manner, neither the roof nor the rafters created an unreasonably dangerous condition. It was when the rafter was used as a brace for an extension ladder that the likelihood of harm increased.

The record’ contains no evidence of any prior accidents in the boat shed and specifically none as a result of the leaky roof or a wet rafter. Only Voisin’s testimony suggested the leaky roof created any sort of problem in that it “interfered” with his job. But there is no evidence that the leaky roof regularly created a dangerous condition to anyone using the boat shed. According to Cheramie, and confirmed by Voisin, the rafters were wet whenever it rained. And Cheramie recalled that it had rained the night before the accident. Looking at photographs taken inside the boat shed shortly after his fall, Cheramie pointed out at least four buckets that he stated were used to collect water when it rained. Therefore, while the Cheramies clearly produced factual support for a finding that the roof leaked, they offered no evidence showing that water puddled or that the leaky roof and wet rafter(s) otherwise caused a hazard to anyone inside or outside of the boat shed. Thus, the record establishes that the likelihood and magnitude of harm from the leaky roof and wet rafter was minimal to visitors regularly using the boat shed.

Lastly, we examine the record insofar as the fourth prong of the risk-utility analysis, i.e., the social utility and extent of dangerousness of Cheramie’s activity of changing a lightbulb by using an extension ladder braced against the wet rafter. The record established that Cheramie violated safety policy when he undertook use of the ladder without another person present. According to Christopher Smith, a worker at the BP oil spill clean-up site who investigated the accident, the presence of a spotter was standard policy for use of any ladder over six feet in height. He also noted that Cheramie had not used the standard job safety analysis before he | )0changed the lightbulb, which would have recounted the proper safety measures for him to follow when using a ladder. Kovas-ka Robinson, another worker at the BP oil spill clean-up job site testified in conformity with Smith, additionally indicating that as part of his training, Cheramie would have received safety awareness advising him how to properly use a ladder. ■

While it is obvious that changing a light-bulb is high in utility, PFM and CMM showed that use of any ladder over six feet in height is inherently dangerous. And the use of an extension ladder braced against a rafter in order to access a height of at least 12 feet with no one else present to support the ladder is inherently more perilous.

In light of the evidence in this record, we believe that PFM and CMM established the leaky roof and wet rafter were high in utility and that the likelihood and magnitude of harm from the regular ordinary use of them were minimal. Thus, any defect in the leaky roof or wet rafter did not constitute an unreasonable risk of harm to those in and around the boat shed when used in an ordinary, non-dangerous manner.

Based on all of the evidence admitted at the motion for summary judgment hearing, the trial court correctly concluded that PFM and CMM established any defect in the boat shed did not present an unreasonable risk of harm and that the Cheramies failed to counter this showing by producing factual support sufficient to sustain their evidentiary burden of proof at trial. And since neither the leaky roof nor the wet rafter constituted an unreasonable risk of harm, the trial court correctly determined that PFM and CMM did not owe a duty to warn Cheramie of any risk of harm under the facts of this case. Accordingly, the trial court properly dismissed the Cheramies’ claims for damages.

hDECREE

For these reasons, the trial court’s grant of summary judgment and dismissal of the Cheramies’ claims against PFM and CMM is affirmed. Appeal costs are assessed against Robert and Emma Cheramie.

AFFIRMED.

Theriot, J., concur

      . PFM entered into an intercompany commercial sublease of the premises with CMM, and CMM subsequently sublet the premises to BP. The marina premises were leased to BP in this manner to facilitate consummation of the lease agreement because CMM was already a BP-approved vendor.

      . The exact distance that Cheramie fell and the heights of the roof, rafter, and ladder were not established by the evidence admitted in this summary judgment. Because the petition avers that Cheramie fell between 12 and 15 feet onto a concrete floor and in their appellate brief PFM and CMM allege he fell 16 feet, it is undisputed Cheramie fell at least 12 feet.

      .The workers’ compensation insurance company for Team Force Labor, LLC intervened in the litigation seeking to recover payments it had made to Cheramie. PFM filed third party demands against its own liability insurers for errors and omissions in securing coverage; and against CMM for indemnity under the intercompany agreement. Additionally, although the Cheramies named the insurers of PFM and CMM as defendants, the trial court dismissed their claims against CMM’s insurer. A third party demand by PFM against BP for indemnity was also dismissed.

      . La. C.C.P. art. 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of Article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act; therefore, we refer to the former version of the article in this case. See Acts 2015, No. 422, §§ 2 and 3.

      . La. C.C, art. 2317 provides in part, "We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” According to La. C.C. art. 2317.1, "The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.” La. C.C. art. 2322 states:
      The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

      .See La. C.C. art. 2315A, which states, "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

      . Photographs of the boat shed, taken shortly after the accident, do not show any visibly cracked or broken rafters.

      . Cheramie maintained that he reported the leaky roof directly to Christopher J. Moran, the president of PFM and a member of CMM, in August 2011 approximately six months before his fall. Moran stated that he subsequently had the roof repaired. While Moran admitted the area above the rafter upon which Cheramie braced the extension ladder was not the site where the roof was repaired, nothing shows that PFM and/or CMM had actual notice that the roof continued to leak after the repair. But the issue of whether PFM and/or CMM had actual or constructive notice of a defect containing an alleged unreasonable risk of harm as a result of the leaky roof was not before the trial court in this motion for summary judgment and, thus, is not before us in this appeal. See La. C.C.P. art. 966F,


source: Caselaw Access Project

author: CARAWAY (ad hoc), J. GARRETT, J.

license: Public Domain

text:
    Michael W. ALLEN Plaintiff-Appellee v. GRAPHIC PACKAGING INTERNATIONAL, INC. Defendant Appellant
    No. 51,080-WCA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017
    Rehearing Denied February 10, 2017

      JUGE, NAPOLITANO, GUILBEAU, RULI & FRIEMAN, By: Keith E. Pittman John V. Quaglino, Counsel for Appellant
    STREET & STREET, By: C. Daniel Street, Counsel for Appellee
    Before MOORE, GARRETT, and CARAWAY (ad hoc), JJ.
   CARAWAY (ad hoc), J.

liThe workers’ compensation judge (“WCJ”) awarded benefits to the employee after finding that he had succeeded in his burden of proving that a work-related mosquito bite infected him with the West Nile virus which resulted in total and permanent disability. The defendant attempted to show that the large outbreak of the West Nile virus at the time demonstrated that plaintiff could not prove a work-related injury. For the following reasons, we affirm in part and reverse in part.

Facts

Appellee Michael Allen worked as an assistant operator at Graphic Packaging International, Inc.’s (“Graphic”) packaging plant in Monroe, Louisiana. Pursuant to his duties an assistant operator, Allen assisted in the operation of a “roll-back” machine that produced cardboard beer cartons. On August 9, 2013, Allen was sitting in the break room of the plant when he recalls being bitten by a mosquito on his left leg. On August 11, Allen began displaying fatigue and fever-related symptoms. On August 12, Allen sought medical treatment and was eventually diagnosed with West Nile Encephalitis (“West Nile”). As a result, Allen is no longer able to work.

On July 14, 2014, Allen filed a disputed claim for compensation. In its answer, Graphic asserted that the injury did not occur' within the course and scope of Allen’s employment. At trial, Graphic did not dispute that Allen contracted West Nile. Graphic disputed whether Allen’s West Nile was the result of the single mosquito bite he allegedly sustained while sitting in the break room on August 9, 2013.

| ¡Allen testified that on August 9, 2013, he was in an enclosed break room of plant 70 between the hours of 10:00 a.m. and 1:00 p.m. when he specifically remembers being bitten on his left leg by a mosquito. Allen was wearing shorts on the day in question. He testified that he received two 10-minute breaks during the day but does not recall during which of those breaks he was bitten. He further testified that his coworker, Juvelle Williams, was in the break room during one of the breaks when Allen sustained the mosquito bite. However, it was shown during the cross-examination of Williams and from the introduction of his employee timecard that Williams was not at work on August 9. Nevertheless, Allen maintained that he was bitten on August 9 in the break room. There were, however, no eyewitnesses to observe the alleged isolated mosquito bite. Allen’s employee time card shows that during the workweek of August 5-9, he worked 12-hour days at the plant, with the exception of Friday, August 9, when he worked eight hours.

Eddie Wilhite, a machine operator for Graphic, testified that he was familiar with the general work area of the plant and had seen many mosquitos flying in the area. He reported that he knew of a number of complaints from other coworkers about mosquitos. Despite the prevalence of mos-quitos in the general work area, he testified on cross-examination that he had never seen a mosquito in the break room. Lastly, he testified that a month after Allen’s release from the hospital, Allen told him that the mosquito bite that hospitalized him had occurred at Graphic.

Kimmey Ray Adams, a Graphic employee and a first cousin to the claimant, testified that he noticed mosquitos in the work area and has, at 13times, seen a “mosquito or two” in the break room. However, he also testified that he had never seen swarms of mosquitos at Graphic. He further testified that he visited Allen several times in the hospital and during one of those visits, Allen told him that he was bitten by a mosquito at work.

Allen’s supervisor, Olu Fasheyide, testified that, at times, there are mosquitos “everywhere” throughout the plant and insect repellant is provided to employees. Fasheyide noted that during the summer months, the plant is exposed to the outdoors. He explained that the plant’s large factory doors remain open while fans blow continuously throughout to keep the inside of the unair-conditioned plant from becoming too warm. He also reported that he had seen two or three mosquitos every now and then in the break room, noting that it was nothing out of the ordinary.

Juvelle Williams testified on behalf of the claimant. Williams was a coworker and regularly interacted with Allen. Williams also contracted West Nile in 2013, which he attributes to a bite he sustained at work. Although, similar to Allen, Williams testified that he does not know the particular mosquito which resulted in West Nile.

On direct examination of Williams, Allen’s attorney made no reference to Allen’s break room bite on August 9, 2013. Instead, claimant’s attorney elicited testimony regarding Williams’s general familiarity with the shared break room and work area, the primary focus being to establish a connection between his West Nile diagnosis and Allen’s. On cross-examination there was testimony from Williams about the specific day of the alleged bite. During cross-examination, Williams admitted that he was not working on the day he claimed to have been in the break room with Allen. [4In fact, the record reveals that Williams did not work from August 6 to August 9. As such, his last day of work for that week was on Monday, August 5. Williams never testified about any details regarding a specific mosquito bite of Allen and therefore Williams did not corroborate the specific incident in question.

Karen Collins testified as a fact witness for Graphic. She testified that she is the former girlfriend of Allen and was dating him at the time he contracted West Nile. She testified that when Allen returned home from work on August 9, 2013, he told her that he was going to cut his grass, presumably exposing himself to a higher risk of mosquitos. She further noted transporting Allen to the hospital on August 14. She provided admission information on behalf of Allen because he was unable to do so. The intake report from Glenwood Medical Center states that the chief complaint was a fever. The report also contains a statement made by Collins that “[h]is friend states that he was out in the yard two days ago and may have gotten overheated.” Collins testified that Allen was out in his yard cutting his grass two days earlier. The report further contains a statement suggesting that Allen had gone to a restaurant shortly before his hospitalization. Collins also testified that months after his release from the hospital, claimant had told her that “he had heard that someone else at the job had gotten bitten [sic]” and believed that he “could have gotten bitten also.” In addition, Collins testified that Allen told her that he believed he had been bitten by the same mosquito.

Allen was called on redirect to testify as to the allegations made by Collins. Allen asserted that he had not told Collins that he would mow his |Byard and, additionally, that his yard, and hers, had been mowed by a Mr. Brown.

The director of the Ouachita Parish Mosquito Abatement District, Shannon Rider, testified for the claimant in reference to the prevalence of mosquitos in Ouachita Parish during the summer of 2013. Notably, she provided no opinion as to how Allen contracted West Nile other than to say that one is more likely to contract West Nile during the early morning or early evening hours. As director of the program, it was her job to oversee, among other things, the control of mosqui-tos and related diseases throughout the parish. Rider testified that her Department places mosquito traps at random locations throughout Ouachita Parish. Mos-quitos are collected in these traps and are tested for the presence of West Nile. Much testimony was elicited in reference to the location and the function of the mosquito tops. Specifically, there were traps in locations near both the Graphic Packaging plant and Allen’s house, both of which tested positive for West Nile. Additionally, Rider noted that the only way to tell if a mosquito is infected with West Nile is to have that particular mosquito tested for the virus.

Rider testified that the mosquito traps will be designated as positive for West Nile if at least one of the mosquitos in the top tests positive for West Nile. Aerial spraying of mosquito repellent occurs when the outbreak of the virus reaches an infection rate of seven mosquitos. Rider explained that the presence of at least 7 infected mosquitos in the trap per 1,000 caught meets the minimum threshold for abatement measures, which includes aerial spraying of infected areas. A map introduced a trial reveals the locations of | Ball traps that tested positive for West Nile in Ouachita Parish in 2013 as well as trapping dates. Rider testified that based on the number of positive traps throughout the area, Ouachita Parish sustained a “significant outbreak” of West Nile with the Parish being one of the higher level of incidents in the state.

Dr. Brobson Lutz was called to testify as a medical expert by Graphic Packaging. He was accepted as an expert in the field of epidemiology. Lutz was asked to comment on the testimony of Shannon Rider. Lutz agreed with the Rider testimony that it is very unlikely for a person that contracts West Nile to have been bitten during the daytime. Lutz noted that the Southern House mosquito, the most common West- Nile infected mosquito identified in the Ouachita area, is not active during the middle of the day. While Lutz testified that people can be bitten during the middle of the day, he noted that those mosquitos were unlikely to transmit West Nile. He agreed with Rider that the only way to determine if a particular mosquito bite is the one to cause an ■ infection of West Nile is to have the particular mosquito tested. Lutz testified that most people report multiple mosquito bites rather than a specific bite. Further, he noted that the typical incubation period for the virus is 3-5 days but it can be 2-14 days.

With respect to the mosquito traps and their respective locations, Lutz testified that the relation of those positive traps to the packaging plant are not significant. He testified that the collection sites are very diverse and further apart around where Allen lived. He explained that positive traps are just the “tip of the iceberg” and a positive trap does not mean that the location is the only place where infected mosquitos exist. Additionally, Lutz |7was asked to comment on the fact that Williams, another Graphic employee, contracted West Nile around the same time that Allen did. Lutz testified that it would not be unusual for two people to work together to have West Nile related symptoms to have acquired it at different places. With respect to the number of reported cases, Lutz testified that “based on the number of reported neuroinvasive cases you had over a thousand people in Monroe who were infected with the virus during this time period.” He stated that based on the size of the outbreak and the fact that around 95% of infected persons show no symptoms at all, the fact that two people contracting West Nile around the same time and working for the same company does not meet the epidemiological definition of a single source outbreak.

On February 17, 2016, the WCJ provided extensive oral reasons for a judgment in favor of Allen, finding him totally and permanently disabled and awarding him all reasonable and necessary medical treatment related to West Nile. The judge also found that Allen was entitled to penalties and attorney fees. She found Allen’s testimony to be credible and also found that no other evidence discredited or cast into serious doubt his version of the incident. The judge placed considerable emphasis upon several pieces of circumstantial evidence. Namely, the judge noted that 1) Allen’s development of the symptoms occurred within the 2-14 day incubation period; 2) testimony was provided concerning the prevalence of mosquitos at the plant; 3) Allen’s coworker, Williams, contracted the virus around the same time as Allen ; and 4) there were mosquitos that tested positive for West Nile near the packaging plant. Further, the judge noted that the Isdefendants acted arbitrarily and capriciously in choosing to “ignore these facts” and were therefore ordered to pay penalties and attorney fees.

Discussion

A threshold requirement in a workers’ compensation case is that a plaintiff establish “personal injury by accident arising out of and in the course of his employment.” Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 361 (La. 1992) (quoting La. R.S; 23:1031). Although the workers’ compensation laws are liberally construed in favor of coverage, the plaintiffs burden of proving personal injury by an accident is not relaxed and must be proven by a preponderance of the evidence. Coats v. American Tel. & Tel. Co., 95-2670 (La. 10/25/96), 681 So.2d 1243, 1245.

In a workers’ compensation case, the appropriate standard of review to be applied by the appellate court to the WCJ’s finding of fact is the manifest error or clearly wrong standard. Dean v. South-mark Const., 03-1051 (La. 7/6/04), 879 So.2d 112; Dunlap v. Madison Parish Sch. Bd., 46,139 (La.App. 2 Cir. 4/13/11), 61 So.3d 833. Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Dunlap; supra; Harris v. Casino Magic, 38,137 (La.App. 2 Cir. 1/28/04), 865 So.2d 301, writ denied, 04-0502 (La. 4/8/04), 870 So.2d 275.

A plaintiffs testimony alone may be sufficient to establish an accident provided that “(1) no other evidence discredits or easts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Bruno, 593 So.2d at 361. In determining whether the Bruno elements are I «satisfied, the commentators have articulated six pertinent factors the courts have considered: (1) late report, (2) supervisor and coworker testimony, (3) family and friends’ testimony, (4) medical evidence, (5) continuing to work, and (6) prior injuries. See 13 H. Alston Johnson III, Workers’ Compensation Law and Practice: Malone & Johnson, Louisiana Civil Law Treatise § 253 (3d ed.1994);- 1 Denis Paul Juge, Louisiana Workers’ Compensation, § 8:1 (2d ed.2002).

Work-related insect bites or stings have been held compensable as “accidents” under the workers’ compensation law. Oalmann v. Brock and Blevins Co., Inc., 428 So.2d 892 (La. App. 1st Cir. 1983); Easly v. D & O Contractors, Inc., 04-877 (La. App. 5th Cir. 1/25/05), 895 So.2d 23, writ denied, 05-0440 (La. 4/22/05), 899 So.2d 572; Graham v. Nissan, 39,656 (La.App. 2 Cir. 6/29/05), 907 So.2d 213.

In Oalmann, the claimant contracted typhus fever at the iron works factory where he was employed. Typhus, a relatively rare condition, is an infectious disease transmitted by fleas, usually on rats. Several coworkers testified to the large presence of rats and fleas at the factory and further testified to occasional flea bites sustained while working. While the plaintiff could not state the exact date that he was bitten, the appellate court nevertheless found that he had established a causal relationship between the employment accident and the disability. Oalmann, supra.

In Easly, the claimant - contracted West Nile Virus in Kenner, Louisiana, in the summer of 2002. The claimant had been working outside as a carpenter doing , construction work on a box culvert when he alleged that he was bitten multiple times by “swarms” of mosquitos. He could not, Imhowever, remember the exact date that he was bitten but was certain that he was bitten while working construction. Several coworkers testified to the presence of mos-quitos at the construction site. The claimant also testified that he would visit his friend’s home several times a week to help with renovation work around dusk, a time during which exposure to West Nile is highest. Expert testimony revealed that the alleged mosquitos surrounding the box culvert construction site were not the type of mosquitos that could carry West Nile and thus the conditions at the site were less favorable for exposure to West Nile. In addition, the expert noted that Kenner, Louisiana in the summer of 2002 was a “hot spot” for West Nile, explaining that it had one of the highest number of reported cases in the state. As such, the appellate court found that the plaintiff had not proven by a preponderance that he contracted West Nile while working for his employer and was more likely bitten at his friend’s house. Easly, supra.

First, it is important to emphasize that the “accident” in this case rests upon circumstantial evidence. The widespread outbreak of West Nile throughout Ouachita Parish and the summer conditions supporting the mosquito population generally demonstrate that Allen was exposed to other mosquitos in the days before and after the accident. Allen did not prove by direct evidence that the break room mosquito carried the disease and was the cause of his “accident.” He did not, therefore, from that perspective, witness an accident and attempt to establish it by his own testimony. He faced a burden of proof to show circumstantially that the break room mosquito carried the disease.

|uThe circumstances Allen emphasizes were his lack of exposure to mosquitos elsewhere and his definitive remembrance of only one mosquito bite in the days before the accident. Allen also showed that from August 5th to August 9th he was working at Graphic. Thus, in an effort to show his lack of exposure outdoors, he asserted that during that work period, his time was mainly spent at home and at work. Finally, Allen emphasized that Williams’s claim of West Nile contamination on the job is circumstantial evidence that the break room mosquito was likely a carrier of the disease.

Allen’s case for his contamination by the break room mosquito is reviewable on appeal with the manifest error standard and with the legal measure of Allen’s burden of proof for a circumstantial evidence case. We can accept that the trier-of-fact determined that he was bitten in the break room on some day in close proximity to August 11, when his symptoms first began. We note, however, that, his version of that incident in the workplace was shown not to have occurred on August 9. The bite could not have occurred on August 9 with Williams present because Williams was not working on that day. With Williams’s last day of work being August 5, the bite reported by Allen would have occurred approximately 6 days before his resulting symptoms. Thus, the WCJ was not manifestly wrong in concluding that Allen was bitten in the break room with Williams present. Nevertheless, the length of time between that bite and Allen’s hospitalization casts some doubt circumstantially on whether the break room mosquito caused Allen’s West Nile due to the incubation period for West Nile. This doubt is based upon the circumstantial body of evidence asserted by the defense which will now be reviewed.

112Graphic presented its own circumstantial evidence case in defense attempting to show that it was very likely another mosquito away from the Graphic plant caused Allen’s West Nile. The factors demonstrated by Graphic for its position were:

• The incubation period before symptoms occur is 2-14 days, with the typical time being 2-5 days after a person is bitten.
• The Ouachita Parish outbreak was widespread with contaminated mosqui-tos trapped throughout the area and over 1,000 people contracting the virus.
• Allen’s hospital admittance report showed that he had overheated during outside work 2 days before his hospitalization.
• Allen had exposure outside to mosqui-tos in other places away from the Graphic plant during the 14 days before his symptoms.

Concerning Allen’s potential for exposure throughout the 14 days before his symptoms, Allen could not completely deny that he never left his home during that time for activities other than work. The hospital record also revealed that he had dined out on one occasion before his hospitalization. Graphic’s expert emphasized that a mosquito bite can occur without a person’s knowledge. Additionally, Allen’s recollection after some passage of time of all his activities during that two-week period would not be expected to include every particular activity that occurred in his life during that critical two weeks. Thus, we agree that there is established from the record and common sense that Allen had exposure to mosquitos in other places away from the Graphic plant during the 14 days before his symptoms. Nevertheless, in that same vein, the lengthy time Allen expended on his job in the plant in the week before hospitalization exposed him to mosquitos other than the culprit break room mosquito.

|1sWith these two circumstantial cases regarding where Allen’s contamination with the disease originated—whether at the jobsite or elsewhere—the WCJ’s conclusion can be affirmed if the possibility of Allen’s exposure at work is more probable than not. The most probable time for contracting the disease was the two to five-day period before Allen’s initial symptoms which began on August 11. This would allow Allen’s mosquito bite in the break room on August 5th at 5-6 days as the possible contaminating event. More importantly, however, Allen’s time in the Graphic plant during the entire week before August 11 allows for the conclusion that he was probably bitten during that 56 hours on the job. The testimony indicated that the large doors to the plant were open allowing for exposure of mosquitos to workers. Also, during that week, Allen’s time records showed that he was in the plant, early in the morning and late in the afternoon. These are the times that mos-quitos are the most active as confirmed by the experts.

Accordingly, from this analysis, we find that Allen showed that it was more probable than not that he was bitten on the job by a mosquito carrier of West Nile. We therefore affirm the WCJ’s ruling that a work-related accident occurred.

Graphic’s next assignment of error contests the finding that Allen is totally and permanently disabled. Graphic argues that both parties after trial advised the WCJ that permanent and total disability under La. R.S. 23:1221 |14was not an issue for decision after the recent deposition of Allen’s treating physician, Dr. Boykin. In his deposition, Dr. Boykin stated that a neuropsychological examination was necessary to “determine severity of his memory loss to make a final decision about what he can and can’t do.” While Dr. Boykin originally testified that Allen was permanently and totally disabled, he subsequently stated that he was not specifically treating him to give a disability opinion. Dr. Boykin further testified that he had seen some improvement in Allen and could not say whether Allen could potentially work at a “light capacity” sometime in the future.

Based on both the understanding at trial that (1) a neuropsychological exam was necessary following a finding of causation and (2) the fact that claimant’s treating physician recommended further testing to determine the future disability, Graphic avers that a finding of permanent and total disability is not supported by clear and convincing evidence. As such, Graphic maintains that the WCJ committed manifest error. In addition, Graphic argues that an award of permanent and total disability is inappropriate based on the statutory requirements of La. R.S. 23:1226(D), which provides, in part, that the WCJ must find a reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment. Graphic notes that the WCJ did not make a determination regarding any reasonable probability that Allen could be rehabilitated sufficient to achieve gainful employment and thus erred in awarding permanent and total disability.

La. R.S. 23:1221(2) provides in pertinent part:

I i,-(a) For any injury producing permanent 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 was customarily engaged when injured, and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds percent of wages during the period of such disability.
(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment, (emphasis added)

The clear and convincing standard in a workers’ compensation case is an intermediate standard falling somewhere between the ordinary preponderance of the evidence civil standard and the beyond a reasonable doubt criminal standard. Hatcherson v. Diebold, Inc., 00-3263 (La. 5/15/01), 784 So.2d 1284; Young v. Physicians & Surgeons Hosp., 39,348 (La.App. 2 Cir. 3/2/05), 895 So.2d 723. To prove a matter by clear and convincing evidence means to demonstrate that the existence of the disputed fact is highly probable or much more probable than its nonexistence. Young, supra.

Absent any evidence to support the notion that a workers’ compensation claimant will be forever disabled, or is unable or unwilling to learn a new compensable skill or polish the old one he already has, every procedural precaution must be taken to ensure that claimant is not prematurely declared permanently and totally disabled. Comeaux v. City of Crowley, 2000-928 (La.App. 3 Cir. 12/6/00), 773 So.2d 899, writ granted, 787 So.2d 1004, aff'd on other grounds, 2001-0032 (La. 7/3/01), 793 So.2d 1215. In the supreme court Comeaux opinion, the court held La. R.S. 23:1221(2)(c) requires consideration of the claimant’s physical condition, wage earning ability, and unsuccessful rehabilitative efforts including the claimant’s educational level and ability to be educated. Comeaux v. City of Crowley, 2001-0032, (La. 7/3/01), 793 So.2d 1215. In addition to La. R.S. 23:1221, La. R.S. 23:1226(D) provides:

D. Prior to the hearing officer adjudicating an injured employee to be permanently and totally disabled, the hearing officer shall determine whether there is reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.

The requirement of La. R.S. 23:1226 must be construed in pari materia with La. R.S. 23:1221(2); Comeaux, supra, Jones v. Walpole Tire Service, Inc., 38,206 (La.App. 2 Cir. 3/3/04), 867 So.2d 927. Unsuccessful rehabilitation attempts, including the lack of ability to be educated or retrained, along with physical incapacity, are proper factors to consider in determining whether a claimant proved his permanent and total disability. Comeaux, supra, Dennis v. Boh Bros. Const. Co., 39,548 (La.App. 2 Cir. 4/6/05), 899 So.2d 761, writ denied, 05-1178 (La. 11/28/05), 916 So.2d 145.

In this case, the WCJ, in the oral reasons for judgment, found that the claimant is entitled to permanent and total disability benefits based upon the findings of Dr. Micheál Boykin. In addition, the WCJ stated that the claimant is also entitled to all reasonable and necessary medical treatment | ,7related to the West Nile “including the neuro-psychiatric [sic] evaluation as recommended by Dr. Boykin.”

Under these facts, we find that the WCJ erred in awarding the claimant permanent and total disability benefits prior to a proper evaluation of rehabilitation possibilities. The WCJ’s finding that Allen is entitled to a neuropsychological evaluation in the future suggests that the true extent to Allen’s disabilities and potential ability to work have yet to be determined. The medical evidence and lay testimony established that Allen was totally disabled at the time of trial, but the record contains no evidence of evaluation of rehabilitation possibilities. For this reason we cannot say that Allen is totally permanently disabled. Consequently, we find that Allen is temporarily totally disabled until the requirements of La. R.S. 23:1226(D) have been satisfied or Allen is otherwise found to be able to perform some work activities.

Graphic’s final assignment of error challenges the finding that the defendants were arbitrary and capricious in their denial of benefits. Penalties and attorney fees are recoverable under La. R.S. 23:1201(F) if the employer or insurer fails to commence payments of benefits timely or to pay continued installments or medical benefits timely, unless the claim is reasonably controverted. The statutes providing for imposition of penalties and attorney fees are to discourage indifference and undesirable conduct by employers and insurers, and are essentially penal in nature. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Jackson v. Wal-Mart Stores, Inc., 03-1054, (La.App. 5th Cir. 2/10/04), 868 So.2d 813, citing Cooper v. St. Tammany Parish School Bd., 02-2433 (La. App. 1 Cir. 11/7/03), 862 So.2d 1001. The issue of whether or not an employer reasonably controverts a claim for benefits is a question of fact. Jackson, supra, citing Sterling v. Asplundh Tree Expert Co., 03-266 (La.App. 3 Cir. 10/1/03), 856 So.2d 125. In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Jackson, supra, citing Brown v. Texas-LA Cartage, Inc., 98-1063 (La. 12/1/98), 721 So.2d 885, 890.

In this case, there were numerous factors sufficient to validate Graphic’s reasonable controversion of Allen’s claim, including Allen’s late filing of his disputed claim, the lack of any direct evidence linking his break room bite to West Nile, the fact that Ouachita Parish sustained a significant parish-wide outbreak of the virus during the summer of 2013, and the general existence of two probable hypotheses regarding causation. Accordingly, we find that penalties and attorney fees provided in La. R.S. 23:1201.2 are not warranted in this case.

Conclusion

For the foregoing reasons, the ruling of the WCJ finding a work-related accident and injury is affirmed. The WCJ’s finding of a total and permanent disability is reversed. Allen’s disability is hereby adjudged and decreed to be temporary total disability. The WCJ’s ruling for penalties and attorney fees is reversed. Costs of this appeal are assessed to Graphic.

AFFIRMED IN PART; REVERSED IN PART; RENDERED.

GARRETT, J.

hln its rehearing application, the employer contends that this court misapplied the burden of proof and made some inappropriate factual inferences. I disagree with many of the observations made in the application. I also point out some matters that perhaps were not clear from our original opinion, which reached the correct result.

The employer strenuously maintains that the WCJ committed manifest error in her factual findings. The employer basically contends that Mr. Allen’s testimony must be disregarded in its entirety because the employer showed that the coworker, Mr. Williams, was not in the break room with the claimant on August 9, 2013. The WCJ, unfortunately, did not address this issue in her extensive oral reasons for ruling. Nevertheless, she had the opportunity to observe Mr. Allen during his live testimony, obviously found him to be a credible witness, and believed he proved he was bitten by a mosquito while at work, which caused the West Nile virus. The exact date is not critical to the outcome of this case. At the time, the legal significance of the bite would not have been apparent to anyone because the symptoms are delayed. The record reflects that Mr. Allen has experienced some memory impairment as the result of the West Nile virus. He became extremely ill with the devastating illness within the incubation period and recalled very little from his hospital stay. His time records clearly established he worked many hours at Graphic during the week of August 5-9. Coworkers who visited him, either in the hospital or after he was released, testified he told them he had been bitten at work.

Mr. Allen received some short-term disability benefits and was separated from his employment on February 12, 2015, because he was not ^physically able to work. He testified he later qualified for some social security disability benefits. When he eventually filed the disputed workers’ compensation claim on July 14, 2014, he alleged the bite occurred “on or about August 9, 2013.” While he may have been mistaken during the trial about the exact date or who was in the break room with him, this does not necessarily mean that he was being untruthful or that the WCJ was obligated to totally disregard his testimony. The WCJ found him to be credible and we must respect that. The result reached by this court in our original opinion is correct and a rehearing is not warranted.

      . It is unclear from the record whether Williams filed a disputed claim for compensation.

      . Graphic claims error that the WCJ did not allow Dr. Lutz’s expert opinion that the daytime mosquito bite in the break room was probably not by the Southern House mosquito which was the primary carrier of West Nile. We find that the facts regarding dusk and dawn activities of that mosquito were fully established by Dr. Lutz in his testimony and the inference weighing against Allen’s infection during the day by the break room mosquito was fully established and before the WCJ. We, therefore, find no merit in Graphic's objection to the WCJ’s evidentiary ruling.


author: BROWN, CHIEF JUDGE.

text:
    Lisa MIDDLEBROOKS o/b/o Mark A. Middlebrooks, Plaintiff-Appellant v. CITY OF BASTROP, Defendant-Appellee
    No. 51,073-WCA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017.

      BROUSSARD, HALCOMB & VIZZIER By: Daniel E. Broussard, Jr., Counsel for Appellant
    HUDSON, POTTS & BERNSTEIN, LLP By: Johnny R. Huckabay, II, Counsel for Appellee
    Before BROWN, MOORE, and PITMAN, JJ.
   BROWN, CHIEF JUDGE.

| iMark Middlebrooks was a fireman with the City of Bastrop Fire Department for 19 years and seven months. On May 10, 2014, when he was returning home from work, he blacked out. Middlebrooks began having seizures two or three times a day and was subsequently diagnosed with a brain tumor, Grade III astrocytoma. He sought workers’ compensation benefits for a service-connected occupational disease as set forth under La. R.S. 33:2011, the Cancer Act. The Workers’ Compensation Judge (“WCJ”) denied the claim and Mid-dlebrooks’s wife has appealed. For the following reasons, we reverse and remand.

Discussion

Middlebrooks’ tumor was removed by neurosurgeon Dr. Bernie McHugh on July 3, 2014. After the surgery, Middle-brooks was treated by oncologist Dr. Scott Barron. Middlebrooks was completely disabled from engaging in any employment at the time of the trial and was drawing Social Security disability benefits. Middle-brooks testified that his work with the Bastrop Fire Department exposed him to heat, smoke, fumes, and carcinogenic substances.

Middlebrooks sought workers’ compensation benefits under La. R.S. 33:2011, which affords firemen diagnosed with certain types of cancer who have completed ten or more years of service the benefit of a presumption of causation. The statute states that the cancer is presumed to have been caused |2by a fireman’s work. The statute also states that the presumption is rebuttable by evidence meeting judicial standards.

The Act embodies the social policy of the state which recognizes that firemen are subjected during their career to the hazards of smoke, heat, and nauseous fumes from all kinds of toxic chemicals. The legislature recognized that this exposure could cause a fireman to become the victim of cancer (in this case, one originating in the brain) based upon a claimant’s occupation as a firefighter, and the presumption relieves the claimant from the necessity of proving an occupational causation of the disease. The presumption switches the burden of proof from the claimant to the employer and may be overcome by evidence meeting judicial standards that the disease neither developed during nor was caused by the employment. Rothell v. City of Shreveport, 626 So.2d 763 (La.App. 2d Cir. 1993), writ denied, 93-3191 (La. 02/11/94), 634 So.2d 379. Whether the presumption |3has been rebutted is a question of fact and the WCJ’s finding will not be disturbed in the absence of manifest error. Coats v. City of Bossier City, 31,164 (La.App. 2 Cir. 10/30/98), 720 So.2d 1283, writ denied, 99-0019 La. 2/12/99, 738 So.2d 581.

It is not disputed that Middlebrooks, who worked in the service, was entitled to the presumption. Evidence presented by defendant to rebut the presumption at trial included only a questionnaire sent from the City of Bastrop, through its third- party administrator, to Dr. McHugh, the neurosurgeon who removed Middlebrooks’ tumor. One of the questions asked, “Do you believe medically, that this condition is related in any way, to his being a firefighter?” It provided two spaces, one for “YES” and the other for “NO.” The space for “NO” was checked. No evidence was submitted to show that Dr. McHugh was given a description of Middlebrooks’ duties as a firefighter or what substances or conditions Middlebrooks was exposed to during his employment. No one sought to question Dr. McHugh further to determine the reasons for this conclusion.

Middlebrooks objected to this questionnaire based on lack of foundation, hearsay, and that it was not a medical record. The WCJ overruled Middlebrooks’ objection and allowed the written question and Dr. McHugh’s check mark to be admitted.

Middlebrooks submitted the medical records of Dr. Barron, his treating oncologist. Dr. Barron said of the type of cancer Middlebrooks had, “Etiology of such tumors (Grade III astrocytoma) is unknown, idiopathic, but there may be a genetic component as well as an increase incidence in patients with previous head trauma.”

|4The WCJ determined that the check marked answer of “NO” to the one sentence question was sufficient to rebut the presumption of causation and then, referring to Dr. Barron’s statement that “etiology of such tumors (Grade III astrocytoma) is unknown, idiopathic,” found that Middle-brooks was not able to show that his cancer was caused by his employment as a firefighter. The WCJ dismissed the case with prejudice and assessed all costs to claimant. Middlebrooks perfected the instant appeal.

Defendant argues that Dr. McHugh’s checking the “NO” space was sufficient to rebut the presumption, thereby placing the burden upon the claimant to prove that his cancer was caused by or resulted from his work as a fireman. Defendant argues that claimant was not able to meet that burden.

To reverse a fact-finder’s determination under the manifest error standard, an appellate court must engage in a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine that the record establishes a finding that is clearly wrong. McMillan v. City of Monroe, 47,700 La.App. 2 Cir. 1/16/13, 108 So.3d 869.

There is a paucity of cases regarding the Cancer Act.. However, La. R.S. 33:2581, the Heart and Lung Act, involves a similar presumption in favor of firemen who develop a disease or infirmity of the heart or lungs after having been employed as a fireman for more than five years. The Heart and Lung Act offers guidance for the Cancer Act.

In Richards v. St. Bernard Parish Government, 11-1724 (La.App. 4th Cir. 05/02/12), 91 So.3d 524, 528, writ denied, 12-C-1203 (La. 09/21/12), 98 So.3d 340, a Heart and Lung Act case, the court wrote:

|RWe recognized, and essentially reiterated, on rehearing [in Vincent v. City of New Orleans, 326 So.2d 401, 403 (La.App. 4th Cir. 1975) ] that “the force of the presumption” in favor of the employee is such that although “it is termed • rebuttable it is, in fact, almost impossible to rebut.” Vincent v. City of New Orleans, 326 So.2d at 405 (on rehearing). The employer “is placed in the difficult position of being obliged to prove a negative,” which is that the heart-related disease “could not have resulted from his service as a firefighter.” Id. But we concluded “that the statute cannot fairly be construed in any other way.” Id.

In Coats, supra, the fireman’s treating cardiologist testified via deposition that the fireman’s arteriosclerotic disease was likely started by his exposure to smoke. Defendant, the City of Bossier City, failed to offer expert medical testimony that the fireman’s condition did not develop during and as a result of his work as a firefighter. Id. The WCJ and this Court agreed that evidence was insufficient to rebut the presumption that the fireman’s heart disease was caused by his work and this Court affirmed the WC J’s decision. Id.

In City of Bossier City v. Colvin, 45,278 La.App. 2 Cir. 5/19/10, 36 So.3d 1207, another Heart and Lung Act case, Bossier City offered medical evidence in which the experts said that they were unaware of any correlation between firefighting and heart disease and offered no opinion on what caused the fireman’s heart disease. This Court found such expert medical evidence insufficient to rebut the presumption stating, “[T]he expert medical testimony was essentially neutral as to causation.” Colvin, 36 So.3d at 1212. This Court found that the WCJ did not commit manifest error in finding that Bossier City had not sufficiently rebutted the presumption. Id.

Here, Dr. Barron’s statement that “Etiology of such tumors (Grade III astro-cytoma) is unknown, idiopathic, but there may be a genetic component as well as an increase incidence in patients with previous head trauma” unessentially neutral as to causation. Dr. Barron does not link Mid-dlebrooks’ tumor to his work as a firefighter, but states only that there is no known cause for such tumors, and then offers two possible sources, neither of which is related to claimant’s work.

We find that the employer was unable to overcome the Act’s presumption despite the offhand, unexplained opinion of Dr. McHugh. The medical opinion did not rule out “that a job or lifestyle could be an aggravating factor in an existing disease.” Thus, we find the physicians’ opinions “insufficient to overcome the presumption.” Dr. McHugh is a neurosurgeon experienced in treating brain cancer and as such, could have offered credible medical evidence as to whether Middlebrooks’ cancer was work-related. Neither party chose to depose Dr. McHugh to determine the reasoning behind the “NO” checkmark that the cancer was not work-related. Considering Dr. Barron’s statement there should have been a third choice, “DON’T KNOW.”

In a Heart and Lung Act case, this Court found that the administrative hearing officer had erred as a matter of law in applying the Act’s presumption and reversed the decision to deny benefits to a retired firefighter who suffered a heart attack where “[t]he evidence presented to the hearing officer is very detailed about the other factors, major and minor, which did or could have contributed to Rothell’s heart attack.” Rothell, supra, at 767. The Court explained that “[hjowever, there is no evidence which states that the employment did not precipitate, accelerate, aggravate, or otherwise cause or contribute to Rothell’s atherosclerosis which caused the heart attack.” Id. (Emphasis in original). The Court further noted that 17“[e]ven Dr. Brown agreed that he could not exclude stress as having played some role in this case.” Id.

This Court also reversed an administrative hearing officer’s denial of benefits in a case where “the medical opinion (more probably than not), that generally negates that the fireman’s work was the cause of the heart disability, is tempered by acknowledgments, agreements, or concessions that the work may have been a cause, even though remote, or possibly a contributing factor.” McCoy v. City of Shreveport Fire Dept., 26,181 La.App. 2 Cir. 1/25/95, 649 So.2d 103, 108. (Emphasis in original). Because the Act requires the employer to prove that the heart disease “could not have resulted from his service as a fireman,” the Act’s presumption is not overcome when the physician is unable or unwilling to totally rule out that the heart disease is related to the firefighter’s job.

Defendant argues that this case is similar to Gilliland v. City of Monroe, 42,458 (La.App. 2 Cir. 10/10/07), 968 So.2d 270, 274. In Gilliland, this Court found that the legal presumption contained in the Act is an evidentiary presumption, bringing into play Code of Evidence Articles 301, et seq., which define the foundation, weight and other effects of such presumption. Further, this court stated:

There being no conclusive presumption given by the Act, dictum in the jurisprudence of the “almost impossible burden of proving a negative” does not accurately comport with the evidentiary considerations that were before the WCJ after the clarifying 1997 legislation in Articles 304 and 306 providing for the evidentia-ry treatment of rebuttable presumptions. That dictum in many of the cases was expressed in a context where the fireman was disabled by the manifestation of the heart or lung disease during employment or immediately after retirement. Yet, with the passage of time after termination of work as a fireman, controverting evidence, circumstantial or otherwise, can arise that may alter the evidentiary equation allowing the statutory classification of the diseases as inferentially occupational to be overcome.

|sIn Gilliland, there was extensive medical testimony, and the claimant had been retired several years before the manifestation of the disease. In Middlebrooks’ case, no one chose to take Dr. McHugh’s testimony, and Middlebrooks was still working as a fireman when the disease became manifest.

In the case sub judice, the single “NO” answer does not address its foundation or Dr. Barron’s “DON’T KNOW” option. The Third Circuit found that the unrebutted medical evidence of several cardiologists that a firefighter’s work had not contributed to his condition was insufficient to overcome the Act’s presumption because the same physicians testified that the cause of the firefighter’s condition was “unknown.” See Meche v. City of Crowley Fire Dept., 96-577 La.App. 3 Cir. 2/12/97, 688 So.2d 697, 702, writ denied, 97-0632 La. 4/25/97, 692 So.2d 1088. The court in Meche characterized the cardiologists’ testimony as “equivocal,” concluded that the employer had not sustained its burden of proving by affirmative evidence that the employment had not contributed to the firefighter’s condition, and reversed. Id. The court expressed the view that the presumption is “almost irrebuttable,” but that “this was the obvious intention of the legislature when it drafted the Heart and Lung Act.” Id.

When the physician’s “testimony does not exclude the possibility that plaintiffs disease developed over a period of years and does not clearly establish that plaintiffs employment had nothing to do with the development of his heart disease,” the employer fails in its burden to rebut the Act’s presumption. Attaway v. City of Natchitoches, 94-813 La.App. 3 Cir. 2/1/95, 651 So.2d 306, 308. See also Devall v. Baton Rouge Fire Dept., 07-0156 La.App. 1 Cir. 11/2/07, 979 So.2d 500.

|flThe WCJ’s choice to credit the simple check mark was manifest error.

Conclusion

For the reasons expressed above, the judgment of the WCJ is reversed, and the matter is remanded for the rendering of a judgment in accord with this opinion and the law. Further, the WCJ should consider and rule on the issue of attorney fees and costs. All costs are taxed against defendant, City of Bastrop.

Reversed and Remanded.

      . Middlebrooks died on April 28, 2016, during these proceedings and his wife, Lisa, has continued pursuing his claim.

      . The Cancer Act, La. R.S, 33:2011, states:
      A.Because of exposure to heat, smoke, and fumes or carcinogenic, poisonous, toxic, or chemical substances, when a firefighter in the classified service who has completed ten or more years of service is unable to perform his regular duties in the fire service in this state by reason of a disabling cancer, such cancer shall be classified as an occupational disease or infirmity connected with the duties of a firefighter. The disease or infirmity shall be presumed to have been caused by or to have resulted from the work performed. This presumption shall be re-buttable by evidence meeting judicial standards, and shall be extended to a member following termination of service for a period of three months for each full year of service not to exceed sixty months commencing with the last actual date of service.
      B. The disabling cancer referred to in Subsection A shall be limited to the types of cancer which may be caused by exposure to heat, smoke, radiation, or a known or suspected carcinogen as defined by the International Agency for Research on Cancer. The disabling cancer shall also be limited to a cancer originating in the bladder, brain, colon, liver, pancreas, skin, kidney, or gastrointestinal tract, and leukemia, lymphoma, and multiple myeloma.
      C, The affected employee or his survivors shall be entitled to all rights and benefits as granted by state law to which one suffering an occupational injury is entitled as service connected in the line of duty.


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. William Allen FONTENOT, Appellant
    No. 51,072-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017.

      LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, HOLLY McGUINESS, ERICA N. JEFFERSON, AMANDA SULLIVAN, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, DREW & PITMAN, JJ.
   PITMAN, J.

| ^Defendant William Allen Fontenot pled guilty to hit-and-run driving resulting in a death. The trial court sentenced him to nine years at hard labor. Defendant appealed. This court vacated his sentence for noncompliance with La. C. Cr. P. art. 894.1 and remanded for resentencing. The trial court again sentenced Defendant to nine years at hard labor and to 30 days in parish jail in lieu of paying court costs. Defendant appeals, arguing that the sentence is excessive. For the following reasons, we amend Defendant’s sentence to vacate the portion ordering jail time in default of payment of court costs and affirm his sentence as amended.

FACTS

On November 13, 2013, the state filed a bill of information charging Defendant with hit-and-run driving in that, on September 13, 2013, he operated a motor vehicle involved in or causing an accident, when a death was a direct result of the accident. The state alleged that Defendant knew or should have known that death or serious bodily injury had occurred and that he intentionally failed to stop his vehicle at the scene of the accident, to give his identity and to render reasonable aid. On January 15, 2014, Defendant pled guilty to the charge, and the state agreed that it would not file a bill charging him as a habitual offender. On February 10, 2015, the trial court sentenced Defendant to nine years at hard labor and to 30 days in lieu of paying court costs and stated that the sentences were to run concurrently. Défendant appealed, arguing that the sentence was excessive.

On appeal, this court determined that the trial court failed to consider any mitigating and/or contributory factors when determining Defendant’s sentence and, thex-efore, did not comply with La. C. Cr. P. art. 894.1. State v. Fontenot, 49,835 (La.App. 2d Cir. 5/27/15), 166 So. 3d 1215. Accordingly, this court vacated Defendant’s sentence, ordered the trial court to conduct a presentence investigation (“PSI”) and remanded for resentencing. Id.

On July 6, 2015, the trial court ordered a PSI report.

On November 9, 2015, the state filed a supplemental response to Defendant’s motion for discovery. The state included an email to the trial corni from a friend of the victim; a lab report from AIT Laboratories; and a letter to the trial court from Lt. Michael Wayne Gray of the Caddo Parish Sheriffs Office. On December 8, 2015, Defendant filed a motion in limine and argued that the lab report and the letter from Lt. Gray should not be entered as evidence into the record or considered in sentencing.

A sentencing hearing was held on December 8, 2015. Counsel for the state and Defendant provided arguments regarding the motion in limine. Although the trial court did not make a formal ruling on the motion in limine, it noted that it did not consider the documents Defendant sought to exclude. The trial court noted that it reviewed the PSI report. It considered the factors listed in La. C. Cr. P. art. 894.1 and found that Defendant was in need of correctional treatment and a custodial environment and that a lesser sentence would deprecate the seriousness of the offense. It also noted that Defendant tested positive for THC at the time of the accident and that two other vehicles were able to maneuver around the victim. It considered Defendant’s criminal history and the seriousness of the offense. As a mitigating factor, it stated that the victim was sitting on a dark road and texting or consuming a beer. It sentenced Defendant to nine years at hard labor, to be served concurrently with any other sentence, and also to 30 days in the parish jail in lieu of court costs, to be served concurrently with the | snine-year sentence. It further stated that Defendant was to receive credit for time served.

On January 6, 2016, Defendant filed a motion to reconsider sentence and argued that the sentence imposed is excessive; the trial court denied the motion.

Defendant appeals his sentence.

DISCUSSION

Defendant argues that the trial court erred by imposing the harsh and excessive sentence of nine years at hard labor when the maximum sentence for hit- and-run driving is ten years at hard labor. He contends that the trial court failed to adequately consider the La. C. Cr. P. art. 894.1 factors, specifically the mitigating factor that he expressed remorse and accepted responsibility by pleading guilty. He argues that the trial court did not fully consider his history, including his age, family ties, marital status, health or employment record. He finds fault with the trial court’s focus on his criminal history and that the trial court did not consider his likelihood of rehabilitation. He also argues that the trial court should not have considered the lab report that stated he tested positive for THC because there was no evidence that the influence of THC contributed to the accident.

The state argues that the trial court did not err in sentencing Defendant to nine years at hard labor and that this sentence is not constitutionally excessive. It notes that the trial court complied with the orders of this court when resentencing Defendant by ordering the PSI report and considering any mitigating factors. It also contends that, considering Defendant’s lengthy criminal history, he received a lenient sentence because the state agreed not to file a habitual offender bill in exchange for his guilty plea.

|4When reviewing an excessive sentence claim, the appellate court uses a two-prong test. First, the record must demonstrate that the trial court complied with La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating and mitigating circumstance, but the record must reflect that the trial court adequately considered the guidelines of La. C. Cr. P. art. 894.1. State v. Smith, 433 So.2d 688 (La. 1983). The trial court should consider the defendant’s personal history and prior criminal record, the seriousness of the offense, the likelihood that the defendant will commit another crime and the defendant’s potential for rehabilitation. State v. Jones, 398 So.2d 1049 (La. 1981). The trial court is not required to assign any particular weight to any specific matters at sentencing. State v. Quiambao, 36,-587 (La.App. 2d Cir. 12/11/02), 833 So.2d 1103, writ denied, 03-0477 (La. 5/16/03), 843 So.2d 1130.

Second, the appellate court must determine if the sentence is constitutionally excessive. A sentence is excessive and violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La. 1980). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Id.

A trial court has wide discretion in imposing a sentence within the statutory limits, and a sentence should not be set aside absent a showing of abuse of discretion. State v. Square, 433 So.2d 104 (La. 1983); State v. Black, 28,100 (La.App. 2d Cir. 2/28/96), 669 So.2d 667, writ denied, 96-0836 (La. 9/20/96), 679 So.2d 430. On review, an appellate court does not determine whether another sentence may have been more appropriate, Rbut whether the trial court abused its discretion. State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7; State v. Free, 46,894 (La.App. 2d Cir. 1/25/12), 86 So.3d 29.

La. R.S. 14:100(0(2) states:

Whoever commits the crime of hit-and-run driving, when death or serious bodily injury is a direct result of the accident and when the driver knew or should have known that death or serious bodily injury has occurred, shall be fined not more than five thousand dollars or imprisoned with or without hard labor for not more than ten years, or both.

The trial court complied with the requirements of La. C. Cr. P. art. 894.1 and considered aggravating and mitigating factors prior to imposing Defendant’s sentence. As aggravating factors, the trial court specifically stated that Defendant was in need of correctional treatment and a custodial environment and that a lesser sentence would deprecate the seriousness of the offense. The trial court also noted that Defendant tested positive for THC at the time of the accident, that other vehicles were able to see and avoid the victim and that Defendant had an extensive criminal history. As a mitigating factor, the trial court stated that the victim was sitting on a dark road and texting or consuming a beer at the time Defendant struck her with his vehicle. Further, the PSI report reviewed by the trial court provides information about Defendant’s personal history, including that he has two young children with his current wife and one adult child with a previous wife, completed high school, received training from the Shreveport Job Corps, was unemployed at the time of the offense and had a history of drug abuse. The PSI report also details Defendant’s extensive criminal history, including charges of simple battery, domestic abuse battery, thefts possession of marijuana and a Schedule II CDS and various driving offenses.

Although the trial court did not specifically state that it considered the factor that Defendant expressed remorse and accepted responsibility by pleading guilty, the PSI report it reviewed stated that Defendant thought he hit a white dog with his vehicle and included a statement from Defendant that he was “very sorry for what happened to [the victim]” and had “learned alot [sic] about [him]self and [had] grown to be a better person and father” since his imprisonment.”

Although Defendant contends that the trial court improperly considered the lab report showing a positive result for THC, the trial court specifically stated that it did not consider that report when sentencing Defendant. The positive test was noted by a law enforcement officer during the preliminary exam. When previously before this court in State v. Fontenot, supra, we noted:

Whether drugs or alcohol had any role in this tragic accident is inconclusive as the toxicology test results are not in the record. All we know, from testimony at the preliminary examination, is that defendant had a blood alcohol content of .000% and that his blood tested positive for THC, THC metabolites and Xanax. We do not know, however, whether defendant was criminally under the influence of drugs on the night of the accident, or if he had possibly consumed those drugs days before the accident. These facts might have bearing on this case and defendant’s sentence. The trial court used defendant’s possible impairment as an aggravating factor in sentencing him, yet we note that he was not charged with driving while intoxicated. The questions that arise relative to defendant’s criminal record and his use of aleohol and drugs are ones that we are unable to answer based upon our review of the record. The trial court, which seemingly used defendant’s criminal record, possible impairment, and its belief that defendant should have seen the victim as aggravating factors in its sentencing, likewise was operating with a very thin set of facts. To rely upon this as a factual basis to sentence defendant to an almost maximum | sentence was erroneous, especially when coupled with the fact that the trial court ostensibly failed to consider any mitigating and/or contributory factors.

Without the consideration of the lab report by the trial court, we do not know the amount, time and proximity of the alleged use of drugs. However, the trial court did not err in considering Defendant’s possible impairment as one aggravating factor. When resentencing Defendant, the trial court considered several aggravating factors; reviewed the PSI report, which detailed Defendant’s personal and criminal history; and specifically addressed mitigating factors.

Further, Defendant’s sentence is not constitutionally excessive. The sentence is within the statutory range, is not grossly out of proportion to the severity of the crime and does not shock the sense of justice. The trial court did not abuse its discretion in imposing this sentence. A substantial advantage obtained by means of a plea bargain is a legitimate consideration in sentencing. State v. Hebert, 50,163 (La.App. 2d Cir. 11/18/15), 181 So.3d 795. Had Defendant been adjudicated a second felony habitual offender, he would have faced a possible sentence of 5 to 20 years. La. R.S. 15:529.1(A)(1). Therefore, he obtained a substantial benefit through his guilty plea.

Accordingly, this assignment of error lacks merit.

ERROR PATENT

On error patent review, we find that the trial court erred in ordering Defendant to serve 30 days in jail in default of payment of court costs. An indigent defendant cannot be subjected to default time in lieu of the payment of a fine, costs or restitution. State v. Davenport, 43,101 (La.App. 2d Cir. 3/19/08), 978 So.2d 1189, writ denied, 08-1211 (La. 1/30/09), 999 So.2d 748. Indigence may be discerned from the record. Id. Where a defendant is represented by the Indigent Defender’s Office, a court-appointed attorney and the Louisiana Appellate Project, this court has considered it error for a trial court to impose jail time for failure to pay court costs. State v. Lewis, 48,373 (La.App. 2d Cir. 9/25/13), 125 So.3d 482.

In the case sub judice, Defendant’s indigence is apparent in the record. He was represented at trial by a public defender and represented on appeal by the Louisiana Appellate Project.

Accordingly, the portion of Defendant’s sentence ordering 30 days’ jail time in default of payment of court costs is vacated.

CONCLUSION

For the foregoing reasons, we amend Defendant William Allen Fontenot’s sentence to vacate the portion of the sentence ordering 30 days’ jail time in default of payment of court costs and affirm Defendant’s sentence as amended.

SENTENCE AMENDED AND AFFIRMED AS AMENDED.