author: CHEHARDY, C.J.

text:
    Demetris HAYNIE and Curtis Young, Sr. v. TWIN OAKS NURSING HOME, INC. and Annie Alford
    NO. 17-CA-192
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, DEMETRIS HAYNIE AND CURTIS YOUNG, SR., Pete Lewis, Barrett R. Stephens, Sarah D. Call
    COUNSEL FOR DEFENDANT/AP-PELLEE, TWIN OAKS NURSING HOME, Guy C. Curry, Douglas R. Kraus, Laura C. Cocus
    Panel composed of Judges Susan M. Chehardyl Jude G. Gravois,- and Robert A. Chaisson
   CHEHARDY, C.J.

| ¶ Plaintiffs, Demetris Haynie and Curtis Young, Sr., appeal the summary judgment dismissing their suit for injuries against defendant, Twin Oaks Nursing Home, Inc. For the following reasons, we vacate and reverse the summary judgment.

Facts and Procedural History

On April 4, 2012, Annie Alford, co-defendant herein, while working as a Certified Nursing Assistant at Twin Oaks Nursing Home in LaPlace, struck her supervisor, Demetris 'Haynie. According to the record before us, Ms. Haynie, as the supervisor, approached Ms. Alford to instruct her to report to Ms. Haynie’s office. When Ms. Haynie turned, .around, Ms. Alford attacked her from behind, striking her three to four times, in the head and neck. When questioned by the authorities, Ms. Alford, who had been written up for prior work-related problems, reported that she “knew they were going to fire me so I gave them a damn good reason to.” Ms. Haynie suffered bruises, scratches, a black eye, and soft tissue injuries.

On March 21, 2013, Ms. Haynie filed suit against Ms. Alford and their employer, Twin Oaks Nursing Home, Inc. (hereinafter- “Twin Oaks”) for the damages that she sustained. On July 27, 2016, Twin Oaks filed a motion for summary judgment on the basis that Twin Oaks is not vicariously liable for Ms. Alford’s actions. The matter was heard on September 22, 2016 and taken under advisement. -In an Order dated September 28, 2016, the trial judge granted the motion and dismissed the petition against Twin Oaks. In that Order, the trial judge opined that Ms. Haynie failed to establish that the tortious act was primarily employment rooted and that the action .was not incidental to the performance of Ms. Alford’s duties:

I ¿The likelihood that a subordinate (while feeding an aged patient in the employer’s cafeteria) would leave a patient and repeatedly strike her supervisor is simply not a risk fairly attributable to the performance of the employee’s duties. The subordinate’s duties do not include severely attacking a supervisor or any other employee. Likewise, it is not foreseeable for the employer to foresee such conduct on the job-site [sic] during working hours. Alford’s actions were therefore not reasonably incidental to the performance of her employment.

On October 13, 2016, the trial judge issued a judgment, reiterating its earlier dismissal and declaring the judgment final under La. C.C.P. art. 1915.

On appeal, Ms. Haynie raises four assignments of error: first, the trial court erred- in failing to conclude that remaining genuine issues of material fact prohibit summary judgment in this case; second, the trial court erred in determining that there were no genuine issues of material fact regarding whether the altercation, at issue was employment rooted; third, the trial court- erred in determining that there were no genuine issues of material fact regarding whether the altercation at issue was reasonably incidental to the performance of the employee’s duties; and fourth, the trial court erred in drawing a conclusion on the predominant motive of the tortfeasor, Annie Alford. In essence, Ms. Haynie argues that this matter was not ripe for summary judgment.

Law and Discussion

Appellate courts review summary judgments de novo using th.e same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Guillory v. Interstate Gas Station, 94-1767 (La. 3/30/95), 653 So.2d 1152; Reynolds v. Select Properties Ltd., 93-1480 (La. 4/11/94), 634 So,2d. 1180. A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and 13that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). Further, La. C.C.P. art. 966(D)(1), provided:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, áction, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of-a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

La. C.C. art. 2320 provides that, “masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” An employer is liable for a tort committed by his employee if the employee was acting within the course and scope of his employment at the time of the incident. Baumeister v. Plunkett, 95-2270 (La. 5/21/96), 673 So.2d 994, 996. The course of employment refers to time and place, whereas the scope of employment examines the employment-related risk of injury. Id.

For an employer to be vicaiiously liable for the tortious acts of its employee, the “tortious conduct of the [employee must be] so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest.” Baumeister, supra, at 996; LeBrane v. Lewis, 292 So.2d 216, 217 (La. 1974).

. “An employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours.” Baumeister, supra, at 996. “Vicarious liability .will attach in such a case only if the ^employee is acting within the ambit of his assigned duties and also in furtherance of his employer’s objective.” Id.

In LeBrane v. Lewis, supra, the Louisiana Supreme Court set out four factors to consider in determining whether the employer is hable for the employee’s acts: (1) whether the tortious act was primarily employment rooted; (2) whether the violence was reasonably incidental to the performance of the employee’s duties; (3) whether the act occurred on the employer’s premises; and (4) whether it occurred during the hours of employment. See also, Baumeister, supra, at 996-997.

The Baumeister court noted, however, that all four of these factors needn’t be met before vicarious liability may be found. Id.) Miller v. Keating, 349 So.2d 265, 268 (La. 1977). The particular facts of each case must be analyzed to determine whether the employee’s tortious conduct was within the course and scope of his employment. Baumeister, supra, at 997. There must additionally be at least some evidence that the intentional act was reasonably incidental to the performance of the employee’s duties or that the tor-tious act was primarily employment rooted. Id. at 1000.

On de novo review, we find that the altercation occurred during business hours on the employer’s premises while Ms. Hay-nie was attempting to perform her duties as the CNA supervisor for Twin Oaks, which satisfies two of the four factors to be considered in finding vicarious liability. More importantly, our de novo review reveals that there is at least a genuine issue of material fact regarding whether Ms. Alford’s actions were primarily employment rooted or reasonably incidental to the performance of her duties.

A finding of scope of employment hinges on the predominant motive of the tortfeasing employee, whether the purpose of serving the employer’s business actuated the employee to any appreciable extent. Ermert v. Hartford Ins. Co., 559 So.2d 467 (La. 1990). “The fact that the predominant motive.of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment.” Miller, supra, at 269. Summary judgment may be inappropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice. Jones v. Estate of Santiago, 03-1424 (La. 4/14/04), 870 So.2d 1002, 1006.

The depositions attached to the motion for summary judgment and the opposition reveal several statements regarding Ms. Alford’s attitude toward her supervisor, Ms. Haynie, which emerged from their employment at Twin Oaks. Ms. Alford stated that she felt that Ms. Haynie picked on her and felt jealous of Ms. Alford, which would indicate that the conflict was personal. Conversely, Ms. Alford also reported that she “knew they were going to. fire me so I gave them a damn good reason to.” Thus, we find that Ms. Haynie presented factual support sufficient to establish the existence of a genuine issue of material fact regarding whether Ms. Alford’s actions were primarily employment rooted or reasonably incidental to the performance of her duties.

For the purposes of La. C.C.P. art. 966, this creates a genuine issue of material fact sufficient to preclude summary judgment. See, Felix v. Briggs of Oakwood, Inc., 99-721 (La. App. 5 Cir. 12/15/99), 750 So.2d 1091. We find, therefore, that the trial judge erred in granting summary judgment. Accordingly, the judgment of the trial court is hereby reversed. Costs of appeal are assessed against Twin Oaks Nursing Home, Inc.

REVERSED.

      . On July 27, 2016, when defendant's motion for summary judgment was filed, La. C.C.P. art. 966 had been amended by Acts 2015, No. 422, § 1, effective January 1, 2016.

      . Seefn. 1,.supra.

      . Cf Pye v. Insulation Techs., 91-237 (La. App. 5 Cir. 9/17/97), 700 So.2d 892, 893 (plaintiff failed to rebut defendant’s evidence by submitting any evidence in opposition to defendant’s motion for summary judgment).


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    STATE of Louisiana v. Monroe WILSON
    NO. 17-KA-4
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gretna, Anne M. Wallis, Seth W. Shute
    COUNSEL FOR DEFENDANT/APPELLANT, MONROE WILSON, Katherine M. Mattes
    Panel composed of Judges Robert M. • Murphy, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

hOn July 18, 2016, defendant, Monroe Wilson, pled, guilty to one count of possession .of twenty-eight grams or more, but less than two hundred grams of cocaine. Defendant was sentenced to five years imprisonment at hard labor and ordered to pay a $50,000.00 fíne. For the reasons that follow, we affirm defendant’s conviction and sentence.'

Procedural History

On October 5, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant, Monroe Wilson, with possession of a firearm while in possession of cocaine in violation of La. R.S. 14:95(E) (count one). Defendant was arraigned on October 20,2016, and pled not guilty.

On July 18, 2016, the State amended count one of the bill of information to possession of cocaine, “28g — 200g, a felony” in violation of La. R.S. 40:967F. On the same date, defendant withdrew his not guilty plea and pled guilty to possession of twenty-eight grams or more, but less than two hundred grams of cocaine. Thereafter, the trial court sentenced defendant to imprisonment at hard Tabor for five years and ordered defendant to pay a $50,000.00 fine. The trial court ordered his sentence to run concurrently with case number 15-5568.. .

On. August 17, 2016, defendant filed a motion, to reconsider the mandatory fine. After. a hearing, the trial court denied defendant’s motion. This appeal followed.

12Facts

Because defendant pled guilty, the underlying facts were not fully developed at a trial. Nevertheless, the State alleged in the amended bill of information that defendant violated La. R.S. 40:967F in that he possessed cocaine, “28g — 200 g.” During the guilty plea colloquy, the trial court asked defendant what occurred on August 26, 2015 that caused him to plead guilty, and defendant responded that he was in possession of cocaine. Defendant further stated that the cocaine was in the amount of twenty-eight grams or more, but less than two hundred grams. Additionally, the trial court stated to defendant, ‘You understand that by pleading guilty you are telling the Court that you have in fact committed the crime to which you are pleading guilty; is that correct?” Defendant replied, ‘Yes, ma’am.”

Discussion

In his sole assignment of error, defendant contends that the mandatory $50,000 fíne was constitutionally excessive as applied to him. He contends that the fíne is unconstitutional under the tests for exces-siveness set forth by the United States Supreme Court and the Louisiana Supreme Court because it is (1) disproportionate to the gravity of the offense; (2) significantly harsher than fines imposed on other indigent people convicted of the same crime in the same jurisdiction, (8) significantly harsher than fines imposed on people convicted of the same crime in neighboring jurisdictions, (4) does not fit the nature of this offense and this offender, and (5) fails to advance any legislative purpose of punishment. He asserts that not only does this fine fail to contribute to legitimate goals of | ^punishment, it actively works against the key goal of rehabilitation by hindering his re-entry into society. Defendant further contends that even without the well-established tests for constitutional excessiveness, the $50,000 fine imposed on him is unconstitutional because he will not be able to pay it.

Defendant pled guilty to possession of cocaine in the amount of twenty-eight grams or more, but less than two hundred grams in violation of La. R.S. 40:967F(l)(a), which provides:

Any person who knowingly or intentionally possesses twenty-eight grams or' more, but less than two hundred grams, of cocaine ..., shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand .dollars, nor more than one hundred fifty thousand dollars.

The transcript reflects that on July 18, 2016, defense counsel stated that defendant was going to withdraw his not guilty plea and plead guilty to possession of twenty-eight grams or more, but less than two hundred grams of cocaine. Defense counsel added that she and defendant reviewed and executed his guilty plea form and submitted it to the trial court. During the guilty plea colloquy, the trial court stated to defense counsel, ‘You realize I have to impose a fifty thousand dollar fine?” Defense counsel responded, “I know that. I saw that, Judge. I know. I understand.” Defense counsel added that it was “ridiculous,” after which -the trial court stated that it did not have an opinion on the mandatory fine and the court only enforced the statute. During the colloquy, the trial court stated to defendant, “In addition to that you understand that I have to impose a fine of fifty thousand dollars?” Defendant replied, ‘Yes, ma’am.” The trial court further asked defendant if he understood that in the event his guilty plea was accepted, he would be fined fifty thousand dollars, and defendant replied, “Yes, ma’am.” The trial court accepted defendant’s guilty plea and sentenced him to imprisonment at hard labor for five years and imposed a fine of $50,000.

j4The waiver of rights form shows that defendant was pleading guilty to the crime of “R.S. 40:967 poss [sic] of over 28 grams but less than 200 grams of cocaine $50,000 fine.” The form also indicates that in the event the trial court accepted this guilty plea, defendant would be sentenced to five years “DOC” and “$50,000.” The form further provided that the State agreed not to file a habitual offender bill of information against defendant. It was signed by defendant, his attorney, and the trial court.

La. C.Cr.P. art. 881.2A(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Washington, 05-211 (La. App. 5 Cir. 10/06/05), 916 So.2d 1171, 1173. Defendant’s sentence was imposed in accordance with the terms of the plea agreement set forth in the record at the time of the plea. Both the guilty plea colloquy and the waiver of rights form show that defendant understood and agreed that a $50,000 fine would be imposed if his guilty plea was accepted. Defendant is precluded from seeking review of his sentence, which includes the fine. See State v. Laroux, 93-719 (La. App. 3 Cir. 02/02/94), 631 So.2d 730, 731-32, writ denied, 94-0577 (La. 06/03/94), 637 So.2d 498.

Error Patent Discussion

The record was reviewed for errors patent, according to the mandates of La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Welland, 556 So.2d 175 (La. App. 5 Cir. 1990). Our review reveals no errors patent in this case which require correction.

Conclusion

For the reasons stated above, defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED

      . Glenn M. Williams and Samantha Williams were charged with possession of cocaine in violation of La. R.S. 40:967C in count two'of the bill of information,

      . At the same time, defendant also pled guilty to possession of less than fourteen grams of marijuana in case number 15-5568 (misdemeanor offense),

      . The trial judge also sentenced defendant to fourteen days in the Jefferson Parish Correc- ' tional Center on the misdemeanor marijuana conviction, in case number 15-5568.

      . After this appeal was filed, defendant filed a "Motion to Correct Mistaken Case Number” in the trial court in this case and in 15-5568. In those motions, the defendant noted that the incorrect case numbers were used on the waiver of rights forms in this case and in 15-5568. The trial court ordered that the incorrect case numbers on the waiver of rights forms in this case and in 15-5568 be corrected in the records. The trial court further ordered that the case number in this case on defendant's waiver of rights form be amended to' 15-5287, and that the case number in the misdemeanor marijuana waiver of rights form be amended to 15-5568. The corrected waiver of rights forms were ordered to be placed in the appropriate records. On April 4, 2017, defendant filed a motion to supplement the appellate record with the trial court’s order regarding the correction of the case numbers on the waiver of rights forms and the corrected waiver of rights form for this case (15— 5287). The motion was granted and the record was supplemented.

      . Defendant also stated that he was in possession of marijuana as it relates to his guilty plea in case number 15-5568.


author: CHAISSON, J.

text:
    STATE of Louisiana v. Donald BARDELL
    NO. 17-KA-274
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017

      ‘ COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Anne M. Wallis, Michael D. Smith, Jr., Molly Massey
    COUNSEL FOR DEFENDANT/APPELLANT, DONALD BARDELL, Jane L. Beebe
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson
   CHAISSON, J.

| t Defendant, Donald Bardell, appeals his conviction and sentence for possession with intent to distribute cocaine and specifically challenges the trial court’s denial of his motion to suppress evidence. Having found nó merit to the arguments presented on appeal, we affirm defendant’s conviction and sentence and remand the matter to the district court for correction of the commitments.

PROCEDURAL HISTORY

On May 4, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession with intent to distribute cocaine, in violation of La. R.S. 40:967(A). At his arraignment, defendant pled not guilty. Following resolution of some pretrial motions, defendant proceeded to trial before a twelve-person jury on November 29, 2016, and was found guilty as charged.

Defendant thereafter filed a motion for postrverdict judgment -of acquittal, arrest of judgment, and alternatively, a motion for new trial. On December 13, 2016, the trial court denied defendant’s motion and sentenced him to four years in the Department of Corrections with the first two years of the sentence to be served without benefit of probation, parole, or suspension of sentence. Defendant now appeals.

FACTS

In the evening hours of March 9, 2016, pursuant to information received from a confidential informant, Detective Christopher Cade and other officers with the Jefferson Parish Sheriffs Office Narcotics Division set up surveillance in the area of East William David and Ursuline Street in Metairie. Specifically, the informant relayed that a narcotics transaction involving a black male known as “Donald” would occur in that area and that the subject would be driving a dark blue Acura sedan with dark tinted windows.

12At approximately 9:45 p.m., during the time frame specified by the informant for the transaction, Detective Cade observed a car matching the description arrive in the area and pull to the side of the road. Shortly thereafter, a white female approached, leaned into the vehicle for about twenty seconds, and then departed. The Acura also left the area, at , which point assisting detectives picked up surveillance of the vehicle. Detective Randy Picarella, one of the officers following the car, relayed on the radio that the driver of the car was making “countersurveillance movements,” including driving at a slow rate of speed, signaling to turn but then failing to turn, and taking an indirect route. Further, Detective Picarella observed that the driver failed to use his turn signal.

Based on the' officers’ observations and the traffic violation, Detective 'Cade initiated a traffic stop and approached the driver’s side of the vehicle. After explaining to defendant, the driver and sole occupant, the reason for the stop, Detective Cade asked defendant to exit the vehicle. As defendant stepped out, the dome light illuminated the interior of the vehicle, and Detective Cade observed a small off-white rock-like object consistent with cocaine wrapped in a clear plastic bag in the center console. Defendant was then handcuffed and advised of his Miranda rights.

Thereafter, the officers searched his vehicle, and in the back ashtray of the center console, discovered a bag containing fourteen individually packaged off-white rock-like objects and seven individually wrapped bags of white powder substance. In addition, a search of defendant yielded $240.00 and a cell phone. As a result of this stop, defendant was arrested for possession with intent to ^distribute cocaine and was issued traffic citations for failure to use a turn signal, illegal window tint, failure to have proof of insurance, and no driver’s license on person.

MOTION TO SUPPRESS EVIDENCE

In his sole assignment of error, defendant challenges the trial court’s denial of his motion to suppress evidence. He specifically contends that prior to stopping him, the police officers did not sufficiently corroborate the confidential informant’s tip and further did not observe any criminal activity. Therefore, he was illegally detained, and the evidence recovered as a result of that illegal detention should have been suppressed by the trial court. For the reasons that follow, we find no merit to defendant’s arguments.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution protect individuals against unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is to exclude the evidence from trial. State v. Burton, 11-1023 (La. App. 5 Cir. 5/22/12), 98 So.3d 375, 379, writ denied, 12-1422 (La. 1/11/13), 106 So.3d 547.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. La. C.Cr.P. art. 703(D). The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Lewis, 12-902 (La. App. 5 Cir. 6/27/13), 121 So.3d 128, 134, writ denied, 13-1926 (La. 4/17/14), 138 So.3d 618.

The right of law enforcement officers to stop and interrogate those reasonably suspected of engaging in criminal activity is recognized by La. C.Cr.P. |4art. 215.1, as well as by state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La. 1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). The Terry standard, as codified in La. C.Cr.P. art. 215.1, authorizes police officers to stop a person in a public place whom they reasonably suspect is committing, has committed, or is about to commit an offense and demand that the person identify himself and explain his actions. State v. Lewis, 121 So.3d at 135. Reasonable suspicion is something less than probable cause to arrest, though it is more than an officer’s mere unparticu-larized suspicion or hunch of criminal activity. In making the determination of whether a police officer had reasonable suspicion, a reviewing court must take into consideration the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person. State v. Molette, 11-384 (La. App. 5 Cir. 11/29/11), 79 So.3d 484, 489.

An informant’s tip may provide reasonable suspicion for an investigatory stop if the tip accurately predicts the suspect’s future conduct in sufficient detail to support a reasonable belief that the informant possessed reliable information regarding the suspect’s illegal activity. The ability to predict the suspect’s future behavior goes towards reliability because it demonstrates inside information and a special familiarity with the suspect’s affairs. Moreover, in applying the totality of the circumstances analysis, independent corroboration by police investigation of the details of an informant’s tip is valuable. State v. Francois, 04-1147 (La. App. 5 Cir. 3/29/05), 900 So.2d 1005, 1010; State v. Sierra, 11-161 (La. App. 5 Cir. 12/28/11), 83 So.3d 239, 246.

At the suppression hearing, Detective Cade testified about the circumstances surrounding the stop of defendant. According to Detective Cade, on March 9, 2016, defendant became the target of a narcotics investigation based on | ^information received by a registered and reliable confidential informant, who in the past had provided information leading to the arrest of drug traffickers and the seizure of narcotics. Specifically, the informant advised Detective Cade that “Donald” would arrive in the area of East William David and Ursuline Street in Metairie at approximately 9:45 p.m. to conduct a drug transaction. The informant also relayed that defendant would arrive in a dark blue Acu-ra with four doors and tinted windows. Pursuant to this information, Detective Cade and assisting officers established surveillance in the described location and observed the described vehicle arrive within the approximated time frame. They then observed activity consistent with that described by the confidential informant. Specifically, Detective Cade described that a white female approached and leaned into defendant’s car though he did not know what had transpired between the two.

Detective Cade and other detectives continued surveillance of the blue Acura as it departed the area. According to Detective Cade, Detective Picarella was located behind defendant’s vehicle and observed activities consistent with countersurveil-lance movements, including driving lower than the average speed limit, signaling to turn but then failing to turn, and making several unnecessary turns. Detective Cade recalled that in addition to observing the vehicle’s evasive maneuvering, Detective Picarella observed that defendant failed to use a turn signal. At this point, the officers conducted a traffic stop.

Defendant now contends that this stop was not justified because the officers did not sufficiently corroborate the informant’s tip aná did not observe any criminal activity prior to stopping him. He asserts that the tip was vague and lacked any specific details except the description of the car and its location and further notes that the officers did not observe any criminal activity when the white female approached defendant’s car.

| (jHaving reviewed the applicable law and jurisprudence, as well as the circumstances surrounding defendant’s stop as presented at the suppression hearing and the trial, we find no error in the trial court’s denial of defendant’s motion to suppress 'evidence. In the present case, the informant advised Detective Cade that at approximately 9:45 p.m., “Donald” would arrive in the area of East William David and Ursuline Street in Metairie in a dark blue Acura with four doors and tinted windows to conduct a drug transaction. We find that this tip contained predictive information from which the officers could reasonably determine that the informant had inside information or special familiarity with defendant’s affairs; Further, the record shows that the information provided by the informant was sufficiently corroborated by the officers during, surveillance when they observed the described vehicle arrive at the specified location, and time and further,observed a white female approach and lean into defendant’s car though they did not see what occurred inside the car. ;

Despite this corroboration of the informant’s tip, the officers did not stop defendant at this point. Rather, they conducted mobile surveillance of defendant as he left the area. Detective Pi’carella, who was located behind defendant’s vehicle, observed' activities ' consistent with countersurveil-lance movements, including driving lower than the speed limit, signaling to turn but then failing to turn, and making several unnecessary turns. In addition to this evasive maneuvering, Detective Picarella observed defendant commit a traffic violation when he failed to use a turn signal. See La. R.S. 32:104.

It is well settled that a violation of a traffic regulation provides reasonable suspicion to stop a vehicle. Police officers may make an. initial traffic stop after |7observing a traffic infraction, even if the stop is a pretext to investigate for controlled dangerous substances. State v. Lewis, 121 So.3d at 135. Generally, the decision to stop a vehicle is reasonable where the police have probable cause' to believe that a traffic violation has occurred, and the standard is purely objective, without taking into consideration the subjective beliefs or expectations- of the detaining officer. State v. Cole, 13-540 (La. App. 5 Cir. 12/12/13), 131 So.3d 931, 937. Although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining .the vehicle and its occupants. State v. Davis, 09-452 (La. App. 5 Cir. 1/26/10), 31 So.3d 513, 517, writ denied, 10-2201 (La. 10/21/11), 73 So.3d 373. Thus, in the present case, even without corroboration of the informant’s tip, the violation of a traffic violation alone provided the officers with a reasonable basis to stop- defendant. See State v. Cole, supra, and State v. Turner, 12-855 (La. App. 5 Cir. 5/16/13), 118 So.3d 1186, 1191 (where, the defendants’ failure to use a turn signal-provided the officers with reasonable cause to stop the vehicles for traffic violations).

Following the lawful traffic stop, the officer was authorized to order defendant to exit the vehicle. State v. Cole, 131 So.3d at 938. When defendant exited the vehicle, Detective Cade observed what he believed to be narcotics in, plain view in the center console. Under the plain view exception to the warrant requirement, if the police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers- have a lawful right of access to the object, they may seize it without a warrant. State v. Wolff, 09-508 (La. App. 5 Cir. 12/29/09), 30 So.3d 897, 903. Because the cocaine was in plain view, Detective. Cade - lawfully seized - it and thereafter had .probable cause to arrest defendant for a narcotics violation. The officers were then |¿justified-in searching defendant’s vehicle pursuant to either the automobile or search incident to a lawful arrest exception to the warrant requirement, and thus, the evidence seized as a result of the search of the vehicle was legally obtained.

In his appéllate brief, defendant relies on State v. Robertson, 97-2960 (La. 10/20/98), 721 So.2d 1268, to support his. argument that the police were not justified in stopping him because they did not sufficiently corroborate the informant’s tip and did not observe any criminal activity. In that case, the Louisiana Supreme Court reversed the trial court’s denial of the defendant’s motion to suppress finding that the police officers lacked reasonable grounds to believe that the informant possessed reliable information about the defendant’s illegal activities and thus lacked reasonable suspicion to detain the defendant based on information received in an anonymous tip. The circumstances presented in the Robertson case are clearly distinguishable from those presented herein. In Robertson, the tip by an anonymous ■ informant failed to contain predictive information, whereas in the instant case, the tip came from a reliable confidential informant that “Donald” would arrive in a blue Acura at a specified location and time to engage in a narcotics transaction. Further, unlike Robertson, the officers in this case corroborated certain aspects of the informant’s tip and then conducted surveillance of the vehicle, during which the officers observed unusual or suspicious behavior when defendant performed countersurveillance movements and further observed defendant commit a traffic violation.

Based on the foregoing, we find that defendant’s detention and the subsequent seizure of evidence from his vehicle were justified; therefore, the trial court properly denied his motion to suppress evidence.

I ERRORS PATENT REVIEW

We have reviewed the record for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d-175 (La. App. 5th Cir. 1990). We first note that the transcript indicates that the trial court failed to advise defendant of the two-year prescriptive period for filing an application for post-conviction relief as required by La. C.Cr.P, art. 930.8. By means of this opinion, we correct this error and inform defendant that no application for post-conviction relief, including applications, which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. State v. Oliver, 14-428 (La. App. 5 Cir. 11/25/14), 165 So.3d 970, 978, writ denied, 14-2693 (La. 10/9/15), 178 So.3d 1001.

Second, we note that the minute entry/commitment and the.State of Louisiana Uniform Commitment Order are inconsistent with the transcript. Specifically, the sentencing transcript reflects that defendant’s sentence for possession with intent to distribute cocaine was imposed without benefit of probation, parole, or suspension of sentence for the first two years; however, neither the commitment nor the Uniform Commitment Order reflects the restriction of parole. While the statutory restriction of benefits is self-activating, we nonetheless remand'the matter and direct the district court to correct the minute entry/commitment and the Uniform Commitment Order to' reflect that two years of defendant’s sentence is to be served without benefit of parole, probation, or suspension of sentence as required by La. R.S. 40;967(B). We further instruct the Clerk of Court for the 24th Judicial District Court to transmit the original of the amended commitments to the officer in charge of the institution to which defendant has been sentenced and the Department of Corrections’ Legal | ^Department. See State v. Griffin, 14-251 (La. App. 5 Cir. 3/11/15), 169 So.3d 473, 492.

Based on the foregoing, we affirm defendant’s conviction and sentence and remand the matter to the district court for correction of the commitments.

AFFIRMED; REMANDED FOR CORRECTION OF THE COMMITMENTS

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

      . Detective Cade conducted chemical field testing on the substances found in defendant’s car, which yielded positive- results for the presence of cocaine. In addition, Brian Schulz, a forensic drug analyst with the Jefferson Parish Sheriff’s Office Crime Lab, analyzed the substances recovered from defendant’s vehicle; At trial, Mr. Schulz testified that the substances tested positive for cocaine.

      .At trial, Sergeant , Joshua Cqllins, • accepted as an expert in the field of possession, distribution, packaging, and pricing of narcotics, testified that the quantity of the narcotics in this case and the manner of packaging were .consistent with street level distribution.

      . In determining whether the trial court’s ruling on a defendant’s motion to suppress is correct, an appellate court is not limited to the evidence adduced at the suppression hearing but may also consider the evidence presented at trial. State v. Robinson, 11-12 (La. App. 5 Cir. 12/29/11), 87 So.3d 881, 903, writ denied, 12-279 (La. 6/15/12), 90 So.3d 1059. In this case, the trial testimony regarding the circumstances surrounding the stop of defendant was consistent with that presented at the suppression hearing.

      . The Fourth Amendment allows police to search a vehicle absent a warrant if a car is readily mobile and probable cause exists to believe it contains contraband. State v. Molette, 79 So.3d at 491.

      , In a search incident to a lawful arrest, the police officer can search the suspect's person and thé area within his immediate control in order to remove weapons and prevent destruction of evidence, State v. Leonard, 11-363 (La. App. 5 Cir. 11/15/11), 80 So.3d 535, 544,
        writ denied, 12-14 (La. 8/22/12), 97 So.3d 356.

      . La. R.S.. 15:301.1; State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 799


author: JOHNSON, J. CHAISSON, J.,

text:
    Candido PERDOMO v. RKC, LLC and LWCC
    NO. 17-CA-112
    Court of Appeal of Louisiana, Fifth Circuit.
    November 29, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, CANDIDO PERDOMO, D. Steven Wanko, Jr., Chase T. Villeret, Graham Brian, Covington
    COUNSEL FOR DEFENDANT/AP-PELLEE, RKC, LLC AND LWCC, M. Jeremy Berthon, Baton Rouge
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Jessie M. LeBlanc, Judge Pro Tempore
   JOHNSON, J.

|, Plain tiff/Appellant, Candido Perdomo, appeals the reduction of his workers’ compensation indemnity benefits as motioned by Defendants/Appellees, RKC, L.L.C. (hereinafter referred to as “RKC”) and Louisiana Workers’ Compensation Corporation ‘(hereinafter referred to as “LWCC”), in the Office of Workers’ Compensation (hereinafter ' referred to as “OWC”), District “7”. For the following reasons, we reverse in part.

FACTS AND PROCEDURAL HISTORY

On September 25, 2015, Mr. Perdomo filed a Disputed Claim for Compensation against RKC and its insurer, LWCC, disputing the reduction of his benefits by Defendants on September 1, 2015, In his claim, Mr, Perdomo alleged he sustained multiple crushing injuries when he was pinned under a garbage truck on May 11, 2010 after the collapse -of a road. He claimed he was entitled to retroactive payments of indemnity benefits, and penalties, costs and interests for the arbitrary and capricious reduction and untimely payments of his benefits.

In an Answer filed on November 9, 2015, Defendants admitted Mr. Perdomo was performing services arising out of and in the course and scope of his employment at the time of the accident, and they paid him medical and indemnity benefits. Defendants contended that Mr. Perdomo’s average weekly wage at the time of the accident was $630, and his compensation rate was $420; however, they asserted that his post-accident weekly wage earning capacity of $145 had been established, and his compensation rate was $323.33. Defendants asserted all rights to reduce Mr, Perdomo’s benefits as provided for in La. R.S. 23:1206 and 1225.

The trial on the merits for Mr. Perdo-mo’s disputed claim was held on July 20, 2016. The OWC judge took the matter under advisement and allowed post-trial memoranda. In a judgment rendered on October 4, 2016, the OWC found that 12Mr. Perdomo’s benefits were properly reduced on September 1, 2015 from $420 to $323.33. The OWC also found that Defendants did not act arbitrarily and capriciously and did not subject them to penalties, attorney’s fees, interests and costs. In its written reasons for judgment, although it acknowledged that Mr. Perdomo -could not secure employment at any of the recommended jobs, the OWC found that Defendants’ burden was to, show that Mr. Perdomo was physically able to perform a certain job, and that the job was offered to him or that the job was available to him in his community or geographic location. Despite Mr. Perdomo’s inability to secure employment, the OWC further found that “allowing otherwise would require an employer to pay indemnity benefits indefinitely due to a Claimant’s undocumented status.” The OWC also reasoned that Mr. Perdomo failed to meet his. burden of proving that his injury, resulted in his inability to earn wages, and that he could not rely on. his undocumented status as a reason for not obtaining employment. Mr. Perdo-mo’s appeal of that judgment followed.

ASSIGNMENTS OF ERROR

On appeal, Mr. Perdomo alleges the OWC was legally and manifestly erroneous in determining Defendants’ reduction of his indemnity benefits was proper, and the OWC was. manifestly erroneous in determining the he was not entitled to costs, interests, penalties, and attorney’s fees for Defendants’ arbitrary and capricious reduction of and failure to. timely pay his compensation. -

LAW AND ANALYSIS

Reduction of Indemnity Benefits

Mr. Perdomo alleges the OWC erred in finding that his workers’ compensation benefits were properly reduced by Defendants from $420 to $323.33 on September 1, 2015.' Mr. Perdomo argues that Defendants failed to properly prove his earning capacity under the standard set forth in Banks v. Indus. Roofing & Sheet Metal Works, 96-2840 (La. 7/1/97); 696 So.2d 551. He contends that |anone of the jobs identified for him by Defendants through their vocational rehabilitation counselor, Allan Crane, were suitable for him because of his undocumented status, and that his particular situation does not apply to the “one-size-fits-all” check list used by the OWC. Mr. Perdomo further argues the OWC erroneously deemed the reduction of his -benefits as proper because it conflicted with the noted recognition by the court that he could not secure any employment at any of the recommended jobs. He maintains that RKC benefited from his labor while turning a blind eye towards his undocumented status for four years.

Notwithstanding his undocumented status, Mr. Perdomo also argues that the jobs presented by the vocational counselor were not suitable because his physician, Dr. William Knight, opined that he could not work at all and did not approve of any of the jobs. Additionally, he maintains that the description of the Taco Bell job, in particular, was not suitable for him because it involved duties contrary to his medical restrictions, e.g., sweeping, and was not clarified with Dr. Karen Orten-berg, Mr. Perdomo’s physician of choice, prior to her approval of the job.

Conversely, Defendants aver that the evidence presented to the OWC demonstrated their compliance with the standards set forth in Banks. They assert that Mr. Crane’s testimony verified that he took the proper steps to confirm a suitable job for Mr. Perdomo. They argue that Mr. Perdomo never attempted to apply for the Taco Bell food service worker position that indicated only rare-to-occasional bending or stooping and failed to present anything other than self-serving testimony suggesting that his pain precluded him from working at any of the sedentary jobs identified on his behalf. In addition to Mr. Crane’s testimony, Defendants assert that the testimony of Ravena Budwine, LWCC’s Senior Claims Adjuster, showed that they properly reduced Mr. Perdomo’s benefits based upon the lowest paying physician-approved job, the Taco Bell position.

|4“The purpose of the Workers’ Compensation Act is to set up a court-administered system to aid injured workmen by relatively informal and flexible proceedings that are to be interpreted liberally in favor of workmen.” Rhodes v. Lewis, 01-1989 (La. 5/14/02); 817 So.2d 64, 69. One of the primary purposes of the Workers’ Compensation Act is to provide protection to workers; and a policy behind the Act is to keep the injured employee and his or her family from destitution. Breaux v. Hoffpauir, 95-2983 (La. 5/21/96); 674 So.2d 234, 237. Undocumented workers/illegal aliens are not excluded from securing worker’s compensation benefits, when justified, under the Louisiana Workers’ Compensation Act. Artiga v. M.A. Patout & Son, 95-1412 (La. App. 3 Cir. 4/3/96); 671 So.2d 1138, 1139.

Entitlement to supplemental earning benefits is governed by La. R.S. 23:1221(3) and is awarded for a maximum of 520 weeks. In order to recover, the employee must first prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent (90%) or more of the wages he earned before the accident. Tuckerson v. Holiday Ret. Corp., 04-957 (La. App. 5 Cir. 12/28/04); 892 So.2d 626, 631-32. “Initially, the injured employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his or her inability to earn that amount under the facts and circumstances of the individual case.” Id. at 632, citing Freeman v. Poulan/Weed Eater, 93-1530 (La. 1/14/94); 630 So.2d 733, 739.

Once the employee’s burden is met, the burden of proof then shifts to the employer, who, if he wishes to contend that the employee is earning less than he is able to earn so as to defeat or reduce supplemental earnings benefits, bears the burden of proving by a preponderance of the evidence that the employee is physically able to perform a certain job and that the job was offered to the employee, or that a job was available to the employee in his or the employer’s | Bcommunity or reasonable geographic region. Id. at 633, citing Seal v. Gaylord Container Corp. 97-688 (La. 12/2/97); 704 So.2d 1161, 1166. An employer may discharge its burden of proving job availability by establishing, at a minimum, the following by competent evidence: 1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region; 2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and 3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence. Banks v. Industrial Roofing & Sheet Metal Works, 96-2840 (La. 7/1/97); 696 So.2d 551, 557. “Suitable job” means a job that the claimant is not only physically capable' of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless of course, the employer or potential employer is willing to provide any additional necessary training or education. Id. As part of the determination of whether an employer has carried its burden under La. R.S. 23:1221(3)(c)(i) of proving work is available to the 'claimant, courts must consider all factors that affect the claimant’s ability to engage in the offered or available employment. Daugherty v. Domino’s Pizza, 95-1394 (La. 5/21/96); 674 So.2d 947, 953.

The appellate court’s review of the worker’s compensation judge’s -findings of fact is governed by the manifest error or clearly wrong standard. Tuckerson, 892 So.2d at 631. A court of appeal may not overturn a judgment of the worker’s compensation judge absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. Id. .

Here, the OWC found in its judgment that Mr. Perdomo suffered an injury as a result of the accident, and his average weekly wage at the time of the accident was $630. The OWC also found that Mr. Perdomo’s benefits were properly reduced from $420 to $323.33, and that Defendants did not act arbitrarily and | r,capriciously in their reduction of the benefits. In its “Written Reasons for Judgment,” the OWC acknowledged Mr. Perdomo’s undocumented status and the fact that he could not secure employment at any of the. recommended jobs because of his .status. The court then focused on the evidence presented by Defendants to prove their entitlement for a reduction of Mr. Perdomo’s benefits. The OWC found that Mr. Perdo-mo could not rely upon his undocumented status as the reason he cannot obtain employment, he was not entitled to TTD benefits, and his benefits were properly reduced.

Because there was an assertion that there were jobs available for Mr. Perdomo in his community or reasonable geographic region that were suitable under his eircum-, stances, we will consider whether Defendants presented any suitable jobs for Mr. Perdomo.

Undocumented Status and Job Suitability

In addressing Mr. ••Perdomo’s undocumented status, Defendants assert that Mr. Perdomo’s position amounts to arguing his own turpitude-in order to obtain a greater compensation benefit than that to which a lawful citizen is entitled. Contrary to Mr. Perdomo’s argument, Defendants contend that the OWC’s decision actually treats him, an undocumented worker, as any other employee by holding him to the same vocational rehabilitation process and job search analysis.

At trial, Allen Crane, the licensed vocational rehabilitation counselor assigned to Mr. Perdomo, was accepted as an expert in the field of vocational rehabilitation. Mr. Crane testified that three labor market surveys were conducted, and he offered Mr. Perdomo assistance with applying for the approved job from the first survey; however, he did not meet with Mr. Perdo-mo-to discuss the jobs approved by Mr. Perdomo’s choice of physician';' Dr. Karen Ortenberg, from the |7second labor market survey. Mr-. Crane stated he assessed the continued availability of the jobs and sent Mr. Perdomo’s attorney correspondence advising him of the jobs that were approved and additional job assistance. A third labor market survey was performed for Mr. Perdomo, but Mr. Crane neither received any medical approvals for that survey nor met with Mr. Perdomo to discuss the jobs.

Mr. Crane testified that he gathered from Dr. Ortenberg’s notes in the January 27, 2015 functional capacities evaluation (“FCE”) that Mr. Perdomo’s capabilities/physical demand was sedentary, and he completely deferred to Dr. Ortenberg’s opinion regarding Mr. Perdomo’s physical abilities and restrictions. In his opinion, Mr. Crane thought that “sedentary” was somewhat unclear in terms of Mr. Perdo-mo’s functional - capabilities because Mr. Perdomo may have had a greater physical ability due to his submaximal efforts.

When questioned about Mr. Perdomo’s undocumented status, Mr. Crane verified that Mr; Perdomo informed him that he did not have a green card and was not eligible to work in the United States; however, he attested Mr. Perdomo’s attorney indicated Mr. Perdomo had a tax identification card and advised Mr. Perdomo was legally able to-work in the United States.

Defendants introduced labor market surveys, one of which was completed by Mr. Crane and dated September 1, 2015. The survey listed five descriptions of job openings identified! on the behalf of Mr. Perdomo and noted that “Mr. Perdomo’s employability in these positions is contingent upon his ability to legally work in the United States.” The survey was sent to Dr.- Karen Ortenberg, Ravena Budwine, and Mr. Perdomo’s attorney. One of the positions identified was a Food Service Worker at Taco Bell. The position was described as having a sedentaryH slight physical demand level requiring lifting up to ten pounds, frequent standing/short distance walking, rare to occasional bending and stooping,, and cleaning of the kitchen area. The position also considered Spanish as a first language candidates. The survey stated that the Food Service Worker position, was approved by Dr. Ortenberg on June 24, 2015.

Ravena Budwine, a Senior Claims Adjuster for LWCC, testified that Mr. Perdo-mo’s indemnity benefits had been reduced from $420 to $323.33. based upon a calculation that used the lowest paying job on the list approved by Dr. Ortenberg, which was the Taco Bell position. Although the job description listed that a rare occasion of bending or stooping was required, Ms. Budwine did not clarify with Mr. Crane whether the job complied with Dr.- Orten-berg’s physical restrictions for Mr, Perdo-mo. She stated that she did not personally ensure the job was available prior to reducing Mr. Perdomo’s benefits but relied upon Mr. Crane’s report of available jobs.

Mr. Perdomo testified he did not have a social security card or green card, and he had not applied for U.S. citizenship. He also testified that he had been employed with RKC for four years and suffered a broken pelvis as a result of the accident on May 11, 2010. Although Dr. Ortenberg gave the opinion that he did not need further therapy, Mr. Perdomo attested that he needed additional therapy to help him walk. He stated that he still used the assistance of a wheelchair and crutches to move around daily. Mr. Perdomo testified that he attempted to find work but was unsuccessful. When asked about the Taco Bell position, Mr. Perdomo did not recall being told about the position and stated he had not gone to Taco Bell to inquire about applying for work.

In reviewing the laws applicable to these facts, we have found that Louisiana | flcourts have yet to address the issue before us. However, we have found similar cases from other jurisdiction to glean guidance.

In Campos v. Daisy Constr. Co., 107 A.3d 570 (Del. Super. 2014), the Delaware Supreme Court considered a case where an undocumented worker, Jose Campos (hereinafter referred to as “Campos”), who spoke almost no English, was hired by Daisy Construction Company (hereinafter referred to as “Daisy”). Daisy did not verify his ability to legally work in the United States prior to Campos’ hiring. After Campos sustained permanent injuries as a result of being thrown off the back of a truck while working on a traffic crew and initially receiving workers’ compensation benefits, Daisy investigated Campos’ immigration status. Subsequently, Daisy discharged Campos after he could not provide a valid social security number. Daisy hired a doctor to re-evaluate Campos’ condition, and the doctor concluded that although. Campos was still impaired, he was physically capable of returning to light duty work with restrictions. Daisy then filed a petition with its workers’ compensation board seeking the termination of Campos’ total disability benefits because he was physically capable of returning to work. Id. at 573.

The board in that matter found Daisy met its burden to show that- Campos had no decrease in earning capacity because Daisy’s risk manager testified that light duty jobs were available at the same wage rate that Campos had previously earned, and that Campos would be eligible for these jobs- if he could provide a' social security number. The board found that Campos was not entitled to partial disability benefits because Campos could have returned to Work at the same wage rate but for his status as an undocumented worker, and immigration status was not to be taken into account when determining his entitlement to benefits^ The appellate court affirmed the workers’ compensation board’s decision. Id. at 573-74.

ImOn appeal to the Delaware Supreme Court, Daisy argued that the appellate court was correct in concluding Campos was ineligible for partial disability benefits because a job was available to him at his pre-injury wage-if he could get a valid social security card; thus, Daisy demonstrated ■ that work was available within Campos’ restrictions. Daisy contended that allowing Campos to collect partial disability benefits would allow him to receive a windfall because of his status as an undocumented worker. Conversely, Campos argued he was' being denied partial disability benefits due to his immigration status. Id. at 574 and 580.

In reversing the appellate court and the board, the Delaware Supreme Court held that the “theoretically available” employment argument was unavailing for employers seeking to meet their burden to terminate benefits under Delaware’s workers’ compensation act. In determining whether Daisy met its burden of proving whether Campos had no decrease in earning power following his'workplace injury in order to avoid paying Campos’ partial disability payments, the court stated:

In light of Campos’ inability to secure new work legally, Daisy may find it difficult to demonstrate job availability, as a labor market survey or some other form of proof may not identify jobs that are actually available to Campos. But any difficulty in proving job availability is properly borne by the employer, who must take the worker as it hired him. We thus hold that if Daisy cannot prove by reliable evidence that jobs are in fact available to Campos as an injured undocumented worker, then Daisy must continue to pay partial benefits until it shows that Campos has been re-employed.

Id. at 577-78. (Emphasis added).

When discussing the factors considered in its decision, the court found:

First and most important, this interpretation is the one most faithful to the Worker’s Compensation Act, as reflected in its plain terms and the judicial precedent applying the Act over many decades. Second, by ensuring that undocumented workers are given equal treatment under the Workers’ Compensation Act, this interpretation |nreduces the incentives for employers to hire undocumented workers, and thus minimizes the overall incentive for illegal immigration, which is the primary goal of federal immigration law. Third and finally, this reading of the Act ensures that all workers in Delaware are not exposed to excessive risk because employers are required to bear the full cost of operating an unsafe workplace.

Id. at 578.

Disagreeing with Daisy’s argument concerning windfalls to undocumented workers, the court further found, “[allowing Daisy to avoid making payments that would otherwise be required under the Workers’ Compensation Act would award Daisy itself a windfall for hiring an undocumented worker....” Id. at 581. The Delaware Supreme Court further found that

Placing the burden of proving job availability on employers of undocumented workers following a workplace injury is thus most consistent with the purpose of the IRCA [“Immigration Reform and Control Act of 1986”] itself. The IRCA seeks to “close the back door on illegal immigration” through the use of employer sanctions, which Congress determined was the “most human, credible and effective way to respond to the large-scale influx of undocumented aliens.”

In another case, Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, 303 P.3d 802, the Supreme Court of New Mexico considered a case involving an undocumented worker, Jesus Gonzalez (hereinafter referred to as “Gonzalez”) who was hired to be a painter’s helper-by Performance Painting, Inc. (hereinafter referred to as “Performance Painting”). Gonzalez fell off of a ladder while at work, injured his shoulder, and became temporarily totally disabled and unable to work. Gonzalez eventually reached maximum medical improvement and was assigned permanent restrictions in the type of work he could perform. He briefly returned to work but had to stop working, which was partially due to Performance Painting’s inability to accommodate his injury-related work restrictions. Gonzalez subsequently filed a workers’ compensation complaint against Performance Painting. Id. at 803.

11?After the filing of the complaint, Performance Painting offered Gonzalez employment for modified duty, taking into account his injury-related restrictions; however, the new position required him to fill out a new application that included verification of his eligibility for employment. Upon being unable to produce a social security card for the application, Gonzalez left Performance Painting’s office and never returned. Id. at 803-04.

During the proceedings before New Mexico’s Workers’ Compensation Administration, Performance Painting argued that Gonzalez’s failure to prove eligibility to work constituted an unreasonable refusal to return to work, thereby limiting his benefits to the base impairment rating without any modifier benefits. The workers’ compensation judge in that matter agreed with Performance Painting and found Gonzalez was only entitled to the basic impairment rating because he ‘“could not accept a bona fide, return to work offer made by [Performance Painting]’ due to his immigration status, and therefore ‘[Gonzalez] unreasonably refused a return-to-work offer, from [Pérformance Painting].’ ” The court of appeal affirmed the workers’ compensation judge’s decision in that matter for slightly different reasons, and Gonzalez appealed. Id. at 804.

In reversing of the lower courts’ decisions, the New Mexico Supreme Court focused on whether Gonzalez’s status as an undocumented immigrant prevented him from receiving permanent partial disability modifier benefits. The court found that refusing modifier benefits to undocumented workers would create a perverse incentive for employers to hire undocumented workers, knowing that in the event of injury, they would likely pay a much lower amount in workers’ compensation benefits due to undocumented workers’ ineligibility for modifier benefits; and ultimately, that result would upset the balance the legislature created in the workers’ compensation-laws — tipping the law in favor of the employer as opposed to the worker. Id. at 807. -

haThe Supreme Court of New Mexico then elaborated,

Whether an employer knew or should have known, before the worker was injured, that a worker was undocumented determines whether an employer’s [employment offer] was legitimate and should be the focus of our inquiry and the basis of determining whether the injured worker is entitled to modifier benefits. Such a focus maintains the appropriate neutrality between employers and workers and in doing so stays true to the original intent of the Legislature.

The court went on to state that the Immigration Reform and Control- Act of 1986 seeks to discourage illegal immigration by making it unlawful to hire undocumented workers, and an employer who does not properly comply with the federal requirements either should have known or is deemed to have known that the worker would likely be undocumented and ineligir ble for rehire in the, event of injury and is imputed with knowledge of the worker’s immigration status for purposes of workers’ compensation. The court further held that under the circumstance where an employer knowingly hired an undocumented worker and that worker is injured on the job, the employer should- fairly bear the responsibility for that predicament and fairly.owe modifier benefits to the worker; and in any.case, an employer can protect itself from owing modifier benefits to an undocumented worker by simply following the law. Id. at 807-08.

In the case at bar, the OWC found that Mr. Perdomo’s workers’ compensation benefits were properly reduced by Defendants. In its written reasons for judgment, the OWC recognized Mr. Perdomo’s inability to legally secure employment and found that he could not rely upon his undocumented status for his inability to obtain employment. Defendants’ argument to this Court mainly focuses on whether Mr. Per-domo is physically capable to perform the duties of the Taco Bell position coupled with the facts that Dr, Ortenberg (the choice of physician) approved the position, the position was within Mr. Perdomo’s geographic region, and Spanish as a first language candidates were accepted. How>ever, discussion of whether Mr, Perdomo may be able to physically perform |14the duties of the Taco Bell position (or -any other position on the labor market survey) would be wholly - superfluous because we would ultimately have to discuss whether that job was actually suitable for Mr. Per-domo after■ considering all of.the factors affecting his ability to engage in the available employment, particularly his undocumented status.

Similar to the undocumented workers in Campos and Gonzalez, Mr. Perdomo cannot legally obtain employment in the United States, and employers are prohibited from hiring- him due to his immigrant status. Defendants in this matter failed to present any- evidence that Mr. Perdomo was eligible to work in the United States or that he fraudulently represented he could legally work at the time he was hired. Thus, like the employer in Gonzalez, supra, because Defendants failed to show that RKC. properly complied with the requirements of the IRCA, 8 U.S.C. § 1324a and La. R.S. 23:992, we find that RKC is imputed with having knowledge of Mr. Perdomo’s undocumented status upon hiring. Since RKC knew of Mr, Perdomo’s undocumented status, it also had knowledge or should have known of Mr. Perdo-mo’s ineligibility for rehiring in the event of an injury within the scope and course of his employment. Accordingly, Defendants should fairly |1sbear the responsibility for Mr. Perdomo’s current predicament. Thus, placing the burden of proving job availability, for Mr. Perdomo on Defendants is consistent with the purpose of the IRCA. See Campos, supra.

Placing the burden of proving job availability on Defendants also encompasses the purpose of the Louisiana. Workers’ Compensation Act and the protections intended for injured workers.. Employers should not be allowed to profit from .illegally hiring undocumented workers by not being required to pay substantiated workers’ compensation benefits for those employees. Obligating Defendants .to bear fair responsibility for Mr. Perdomo’s current predicament prevents him from being denied the same benefits other workers -are entitled to when suitable jobs are not available for them.

After review of the applicable laws, jurisprudence and facts of this ease, we find that Defendants failed to discharge their burden of proving job availability for Mr. Perdomo. Considering all of the factors that affect Mr. Perdomo’s ability to engage in the offered or available employment pursuant to Daugherty, supra, we find that Defendants failed to present suitable jobs for Mr. Perdomo, primarily due to the fact that all of the jobs on the labor market survey (and any other job that could have possibly been listed on the survey) required that Mr. Perdomo be legally eligible to work in the United States. Mr. Perdomo’s injury and continued heed for workers’ compensation benefits are substantiated ' by the record. Consequently, Defendant will be required to pay benefits to Mr. Perdomo until either they can prove valid job availability for Mr. Perdomo (ie., he becomes legally eligible to work in the United States) or the expiration of the 520 weeks for his supplemental benefits.

| ^-.Therefore, we find that the OWC was manifestly erroneous, in finding the Defendants properly reduce the benefits of Mr. Perdomo on September 1,2015.

Denial of Costs, Interests, Penalties and Attorneys Fees

Mr. Perdomo alleges he is entitled to costs, interests, penalties and attorney’s fees because Defendants failed to timely pay his compensation. He contends that Defendants were unreasonable in relying upon the vocational rehabilitation performed by Mr. Crane because Mr. Crane did not consider Mr. Perdomo’s unique circumstance in his assessment. Additionally, Mr. Perdomo contends Mr. Crane failed to clear up the discrepancies between Dr. Ortenberg’s approval and her work restrictions for Mr. Perdomo with the jobs presented. Because of these dilemmas, he maintains that Defendants did not make a good-faith, legitimate attempt to secure work for him.

Defendants assert that the facts of this matter do not warrant the imposition of any penalties and attorney’s fees because the reliance on the vocational efforts of Mr. Crane was not arbitrary, capricious or without probable cause.

The determination of whether an employer or insurer should be cast with penalties and attorney’s fees in a worker’s compensation action is essentially a question of fact. Authement v. Shappert Eng’g, 02-1631 (La. 2/25/03); 840 So.2d 1181, 1188. Factual findings are subject to the manifest error or clearly wrong standard of review. Id. at 1188-89.

In its judgment, the OWC found that Defendants did not act arbitrarily and capriciously and did not subject them to penalties, attorney’s fees, interest and costs. Although we have found that Defendants improperly reduced Mr. Perdomo’s from $420 to $323.33, we cannot find that the OWC was erroneous in its denial of costs, interests, penalties and attorney’s fees to Mr. Perdomo. The evidence does not support Mr. Perdomo’s assertion that Defendants acted arbitrarily and capriciously in reducing Mr. Perdomo’s benefits.

J^DECREE

For the foregoing reasons, we reverse the judgment of the OWC, in part, and reinstate Mr. Perdomo’s workers’ compensation benefits to the weekly amount of $420, retroactive to September 1, 2015 (the date the benefits were erroneously reduced). Defendants are assessed the costs of this appeal.

REVERSED IN PART

CHAISSON, J., CONCURS IN PART WITH REASONS

LEBLANC, J., CONCURS IN PART WITH REASONS ASSIGNED BY JUDGE CHAISSON

CHAISSON, J.,

CONCURS IN PART WITH REASONS

hi concur in the decision to reverse the trial court’s October 4, 2016 judgment regarding the reduction of Mr. Perdomo’s benefits, but for reasons different from those stated in the opinion.

Under a simple application of the test set forth in Banks v. Indus. Roofing & Sheet Metal Works, 96-2840 (La. 7/1/97), 696 So.2d 551, the defendants failed to show by a preponderance of the evidence the existence of a suitable job in the geographic region that met Mr. Perdomo’s physical limitations. A “suitable” job is one that the claimant is clearly physically capable of performing, as evidenced by approval of the job by the claimant’s treating physician. Mr. Perdomo’s benefits were reduced based on his alleged earning capacity at a position which would have him work in food service at a Taco Bell restaurant. The evidence and testimony in this case that Mr. Perdomo was physically capable of performing the work required under the Taco Bell job is controverted and insufficient to meet the requirements set forth in Banks.

Mr. Allen Crane, the vocational rehabilitation counselor, testified that, prior to conducting a labor market survey to identify suitable jobs, he reviewed Mr. Perdo-mo’s file, including his functional capacity evaluation and Dr. Ostenberg’s notes. According to the functional capacity evaluation, Mr. Perdomo’s injuries from his work related accident were debilitating enough for the following permanent work restrictions: no lifting greater than 20 pounds; no pushing or Lpulling of more than 25 pounds; no operating heavy equipment or dangerous machinery; no standing or walking'for more than two and one-half hours a day;' no bending or stooping; no use of ladders;- no crouching or kneeling; only occasional climbing of stairs; and walking only with crutches or a cane.

Following the labor market survey, Mr. Crane crafted a description of the Taco Bell job based on his discussion with the employer and his knowledge of what food service workers do at Taco Bell. The job description crafted by Mr. Crane is inconsistent with some of the notes from his discussion with the employer: it fails to mention trash removal or sweeping as part of the job duties. The job description notes that rare to occasional bending or stooping is required, as would frequent standing or walking for a four to six hour shift, which is inconsistent with the permanent work restrictions noted in the functional capacity evaluation. Mr. Crane did not point out this discrepancy to Dr. Ostenberg. .Additionally, the claimant provided evidence from another treating physician, Dr. William Knight, that Mr. Perdomo was not physically capable of performing the jobs identified by Mr. Crane due to the permanent disabilities from his work injury.

Both sides make much of Mr. Perdomo’s immigration status, and more specifically, whether he is legally authorized to work in the United States. Mr. Perdomo argues that the vocational rehabilitation counselor should consider a claimant’s legal authorization to work when determining whether a job is “suitable” for the claimant and/or whether the jobs identified are, in fact, “available” to the claimant as required under Banks. Defendants argue that the use of an immigrant’s undocumented status to preclude the applicability of the Banks’ test would result in an undocumented claimant obtaining greater benefits than those to which a United States citizen or documented immigrant would be entitled.

Though dealing with disputes over payments of workers’ compensation benefits for employees unauthorized to work, the cases cited by Mr. Perdomo in | ssupport of his position are factually distinct from the case sub judice. In Campos v. Daisy Construction Co., 107 A.3d 570 (Del. 2014), the employer cut off the injured employee’s benefits, then purported to itself offer a light duty job that was contingent upon the employee producing a Social Security number. The Delaware court in that case found that offer to be a disingenuous attempt by the employer to reduce the injured worker’s benefits, knowing that the employee could not legally accept the offer.

Similarly, in Gonzalez v. Performance Painting, Inc., 2013-NMSC-021, 303 P.3d 802, the Supreme Court of New Mexico considered a case where the employer made an offer of employment for modified duty, taking into account the ■ employee’s injury-related restrictions, but required a new job application that included verification of his eligibility for employment. In that case, the court held that the worker’s benefits had been improperly reduced because the employer knowingly hired an unauthorized worker and,- when that work-, er was injured on the job, the employer should fairly bear the responsibility for that predicament which it would not otherwise be in had it followed the law.

In Visoso v. Cargill Meat Solutions, 285 Neb. 272, 826 N.W.2d 845 (2013), the employer attempted to use labor market data from Chichihualco, Mexico as a basis for the injured employee’s reduction in benfits even though the claimant resided in Shuyler, Nebraska at the time of the injury.

In disputes of this kind, to allow consideration of an injured employee’s undocumented status by either the employee or the employer could result in unwarranted advantages and disadvantages to either the employee or employer. On the one hand, a claimant unauthorized to work in the United States could use his status to his advantage to prevent the termination or reduction of benefits by arguing that a job that otherwise meets all of the criteria for availability, is nonetheless “unavailable” to him because of his undocumented status. On the bother hand, an employer could obtain the termination or reduction of benefits by fictitiously creating a job for the employee that meets all of his physical limitations, .and is thus “available,” with full knowledge that the employee cannot accept .the job. because of his undocumented status.

Consequently, the Louisiana Worker’s Compensation Act makes no distinction between workers authorized to work in the United States and those who are not authorized. Its provisions, and the jurisprudence interpreting them, including,Banks, are applicable to all workers injured'in the course and scope of their employment, -re-, gardless 'of immigration status. For the purposes of applying the test set forth in Banks, a claimant may not use his lack of authorization to work in the United States to prevent a termination or reduction in benefits, by arguing that an otherwise available job is not available to him because ■ of his undocumented status. Conversely, an employer may not use an injured worker’s unauthorized work status to reduce or deny payment of benefits by offering an otherwise suitable job to the worker conditioned upon his ability to legally accept the job. In other words,,Mr. Perdomo’s legal status to work in the United States is irrelevant for purposes of application of the Banks’ test.

Finally, I take note of the following language from the trial .court’s written reasons for judgment:

Claimant bears the burden of proving, by a preponderance of the evidence that the injury resulted, in his inability to earn wages. The Court listened to the testimony and observed the demeanor of the Claimant and the witnesses. After considering the pleadings, testimony, and the law and the evidence, the Court finds that the Claimant was unable to meet his burden. Claimant cannot rely on his undocumented status as the reason he cannot obtain employment. Claimant cannot prove that he is disabled from work and as such, he is not entitled to TTD benefits. Claimant- is entitled to SEB benefits- as calculated using the jobs located and approved by his treating physician. Claimant’s benefits were properly reduced...

IpAs stated above, I agree that a claimant may not use his unauthorized status' as a why of obtaining unemployment benefits to which a similarly situated citizen or work-authorized immigrant would not be entitled. However, despite this corréct statement of the law, it appears that the trial court misapplied the Banks’ test and placed an undue burden on Mr. Perdomo to prove he is authorized to work in the United States in order to prevent reduction of his benefits. The purpose of the Workers’ Compensation law is to 'compensate an injured employee for his injuries.

Defendants concede that Mr. Perdomo suffered severe injuries when a garbage truck fell on top of him and crushed his legs and pelvis, and that he was working in the course and scope of his employment while that injury occurred.- Following his accident, Mr. Perdomo, was disabled from work, and at that time, he was entitled to temporary total disability benefits. Under La. R.S. 23:1221(l)(d), “[a]n award of benefits based on temporary total disability shall cease when the physical condition of th'e employee has resolved. itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.” Here, the employer is seeking to convert Mr. Perdo-mo’s temporary total disability benefits to supplement earnings benefits. When reducing benefits, the burden of proof shifts to the employer. The burden is not on the employee' to prove that he still suffers from his injuries and therefore cannot work, but rather on the employer to show that the claimant has recovered sufficiently from his injuries to return to work and the employer has made meaningful, considered efforts to secure gainful employment for the injured employee commensurate with his physical capabilities, education, and skills; In my opinion, a proper application of the Banks’ test clearly shows that the defendants did not meet their burden of proof in this case, and, for that reason, the trial court erred in reducing Mr. Perdo-mo’s benefits.

| BWith regard to the assignment of error concerning the denial of costs, interests, penalties, and attorney’s fees, I agree with the trial court’s finding that the defendants did not act arbitrarily and capriciously in reducing the claimant’s benefits. I agree also with, the decree reversing the judgment of the OWC in part, reinstating Mr. Perdomo’s worker compensation benefits to the weekly amount of $420, retroactive to September 1, 2015, the date on which they were erroneously reduced, and assessing defendants the costs of this appeal.

      . ■ Mr. Crane testified that he also sent a copy of the second labor market survey to Dr. William Knight, a physician Mr, Perdomo also treated with but was not the choice of physician. However, Mr. Crane- did- not receive a response to the survey from Dr,. Knight.

      . Dr, Ortenberg placed the physical limitations of no bending, stooping, crouching or kneeling on Mr, Perdomo. These were permanent restrictions.

      ’. The other positions identified-were a Custodial Worker Level I, Housekeeper, Room Attendant, and Cashier.

      . On the June 24, 2015 description of job openings, Dr. Ortenberg checked "Yes” when answering the question “Is Mr. Perdomo physically capable of performing this job on a full time basis?”

      . This position paid $7,25 per hour.

      . Similar to Louisiana courts’ determination of job suitability, Delaware courts determine “earning power” by considering other relevant factors in addition to the claimant’s injury, including the claimant’s age, education, general background, occupational and general experience, the nature of the work that can be performed by a worker with the physical impairment, and the availability of that work. Campos, 107 at 575.

      . Under the IRCA, it is illegal for an employer “to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien....’’ 8 U.S.C. § 1324a(a)(l)(A); Campos, supra.

      . La. R.S. 23:992 states, "No person, either for himself or on behalf of another, shall employ, hire, recruit, or refer, for private or public employment within the state, an alien who is not entitled to lawfully reside or work in the United States."

      . The Louisiana Legislature has contemplated penalties and exceptions for the hiring of undocumented workers. While there is no law directly addressing the issue before this Court, we are guided by La, R.S. 23:995 in considering whether fault or sanctions should imposed for employers who knowingly hire an undocumented worker. La. R.S, 23:995 provides, in pertinent part:
      A. No -person, either for himself or on behalf of another, shall employ, hire, recruit, or refer, for private or public employment within the state, an alien who is not entitled to lawfully reside or work in the United States.
      B, No person shall be subject to civil penalties pursuant to the provisions of this Part upon a showing of either of the following:
      (1) The citizenship or work authorization status of every employee has been verified by the United States Citizenship and -Immigration Services E-Verify systepi, hereinafter referred to as E- . Verify.
      (2) Each employee has provided a picture identification and one of the following documents of which the employer has retained a copy for his records:

        (a) United States birth certificate or certified birth card.
      (b) Naturalization certificate.
      (c) Certificate of citizenship.
      (d) Alien registration receipt card.
      (e) United States immigration form 1-94 (with employment authorized stamp).
      C. Any employer who has utilized the E-Verify system to determine the employ- - ment eligibility of an employee is presumed to have been in good faith and is not subject to any penalty as a result of the reliance on the accuracy of the E-Verify system.

      . Although Defendants argue that the OWC’s decision holds Mr. Perdomo to the same standard as any other employee by holding him to the same vocational rehabilitation process and job search analysis, that contention completely disregards the fact that the vocational rehabilitation process and job search analysis are totally inapplicable to the circumstances of undocumented workers.