author: CONERY, Judge.

text:
    Evrin S. FORD v. BECHTEL O.G.C. CONSTRUCTION SERVICES, INC., et al.
    16-554
    Court of Appeal of Louisiana, Third Circuit.
    OPINIONS RENDERED 12/07/2016

      James J. Hautot, Jr., Judice & Adley, Post Office Drawer 51769, Lafayette, Louisisana 70505-1769, (337) 235-2405, COUNSEL FOR DEFENDANTS/APPELLANTS: Bechtel O.G.C. Construction Services, Inc., Insurance Company of The State of Pennsylvania c/o AIG Claims, Inc.
    Mark Zimmerman, Attorney at Law, 840 West Bayou Pines Drive, Suite B, Lake Charles, Louisiana 70601, (337) 474-1644, COUNSEL FOR PLAINTIFF/APPEL-LEE: Evrin S. Ford
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and John E. Conery, Judges.
   CONERY, Judge.

hBechtel O.G.C. Construction Services, Inc. (Bechtel) and its insurer, Insurance Company of The State of Pennsylvania c/o AIG Claims, Inc. (AIG) (referred to hereafter as Defendants, unless otherwise stated), appeal the judgment of the workers’ compensation judge (WCJ) in favor of Ev-rin S. Ford, who was formerly employed by Bechtel as a journeyman materials handler. Mrs. Ford answers the appeal seeking attorney fees for work done on appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Mrs. Ford filed a 1008 Disputed Claim for Compensation, commonly referred to as a Form 1008, pursuant to La.R.S. 23:1034.2(F)(1) on August 19, 2014, against Defendants for “Penalties and attorney fees, and in addition, claimant is entitled to any medical and indemnity benefits possibly allowed in her claim. Futhermore, claimant also seeks interest on all awards with all costs of this action to be assessed against the defendant.”

Mrs. Ford claimed that on July 12, 2014, she suffered an injury to her lower back while in the course and scope of her employment with Bechtel. Mrs. Ford described the accident and injury in the Form 1008 as, “[Claimant did repetitive bending and lifting of 15-20 lbs. for 8 hrs. Claimant felt soreness in back that evening. On 7/13/2014 claimant woke-up to extreme pain in back and could not move.” Dr. Clark A. Gunderson was designated as Mrs. Ford’s “Choice of Physician.”

Defendants answered Mrs. Ford’s claim for compensation on September 12, 2014, and denied that Mrs. Ford “sustained an injury, resulting in compensable disability out of and in the course of employment, on or about the date stated in her |aclaim for compensation,” despite admitting that she was an employee of Bechtel and was performing services in the course of her employment on the date of the alleged injury. Defendants further denied that Mrs. Ford sustained personal injury by “accident” arising out of employment with Bechtal and while she performed services in the course of employment. Defendants’ briefing to this court relied on the definition of “accident” as defined in La.R.S. 23:1021(1) in denying Mrs. Ford’s claim for benefits

The matter was tried before the WCJ on January 13, 2016, and taken under advisement. The WCJ allowed the parties to file post-trial memoranda and on March 31, 2016, issued its judgment, followed by oral reasons for judgment on April 20, 2016. The WCJ found in the court’s March 31, 2016 judgment that on July 12, 2014, Mrs. Ford, “had a work related accident during the course and scope of her employment with Bechtel,” she was entitled to temporary total disability (TTD) benefits of $619.00 per week, as well as all reasonable and necessary medical benefits, including Dr. Gunderson’s recommendation for a return visit and physical therapy. Further, Mrs. Ford was entitled to penalties of $2,000.00 for Defendants’ failure to pay indemity benefits, $2000.00 for Defendants’ failure to pay medical benefits, and attorney fees in the amount of $12,000,00. Defendants were also assessed costs in the amount of $352.00, and ordered to pay judicial interest on all awards. It is from the March 31, 2016 judgment of the WCJ that Defendants appeal.

ASSIGNMENTS OF ERROR

Defendants assign the following assignments of error on appeal:

1. The Trial Court erred as a matter of law, in finding that the appellee had proved compensable personal injury by accident arising out of and in the course of her employment, where the |sappellee did not identify any precipitous event or acute onset of symptoms while the appellee was at work; appellee’s acute onset of the symptoms which caused her to seek medical treatment occurred at home.
2. The Trial Court erred in ordering appellants to authorize physical therapy and other treatment recommended by appellee’s choice of orthopedic surgeon, where there is no evidence that the procedure required by La.R.S. 23:1203.1 and implementing regulations was attempted.
3. The Trial Court erred in awarding penalties and attorney’s (sic) fees, where the defendants had a reasonable basis — appellee’s own admissions under oath, among other things — to contest the claim.

LAW AND DISCUSSION

Standard of Review

We recently discussed the standard of review to be utilized in workers’ compensation cases in LeBlanc v. Wal-Mart Stores, Inc., 15-558, p. 10-11 (La.App. 3 Cir. 11/4/15), 177 So.3d 1125, 1132-33, noting:

The standard of review in a workers’ compensation claim is well established and was succinctly stated in Bracey v. City of Alexandria, 13-16, pp. 2-3 (La.App. 3 Cir. 6/5/13), 115 So.3d 1211, 1214-15, writ denied, 13-1934 (La. 11/8/13), 125 So.3d 455 (quoting Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La. 6/14/02), 818 So.2d 784):
Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t. of Corrections, 93-1305 (La. 2/28/94); 633 So.2d 129. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, “if the [factfinder’s] findings are reasonable in light of the record | ¿reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).
“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). “[T]he manifest error standard of appellate review applies in workers compensation cases and great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Central Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61)

Mrs. Ford’s Acute Onset of Symptoms Occurred at Home

In their first assignment of error, Defendants argue that the trial court erred in finding that Mrs. Ford’s injury to her back occurred in the course and scope of her employment. They urge that the acute onset of her symptoms of pain from her lower back radiating into her left leg occurred when she attempted to get out of the recliner in her home on the evening of July 12, 2014.

Mrs. Ford is a fifty-three-year-old female. At the time of her alleged work accident on July 12, 2014, she had passed a physical test for the job of journeyman materials handler prior to her employment with Bechtel beginning on January 8, 2014. The pre-employment test included several physical tasks, which required the “lifting of objects, and climbing up and down a few stairs with an object in your hand weighing about 30 pounds or so.”

Mrs. Ford testified that her overtime job duties on Saturday July 12, 2014, included “massive bolt relocation.” Many trucks came to the job site that day and offloaded pallets which contained boxes of materials. Mrs. Ford was required to remove the boxes from the pallets, place the boxes on a table, and verify the 1 ^contents so that the inventoried materials could be transported between two separate warehouses. Mrs. Ford testified that she moved a large number of boxes ranging in weight from fifteen to twenty pounds. The pace and physical exertion required of the workers that Saturday was confirmed in the testimony of Ms. Tamera Rooks, Mrs. Ford’s supervisor. She testified that the estimated weight of some of the boxes was up to fifty pounds, and that she was sure that Mrs. Ford had carried at least some of the boxes weighing fifty pounds that day. Mrs. Ford further testified that the work that day was “very, very, high based physical wise. Yes, we did as much that day as we probably do in a whole week.”

Ms. Rooks explained that there was “a lot going on at that particular time. We had a large bolt relocation going on. We had a lot of large gaskets that were coming in that were in huge crates that required a lot of bending, a lot of squatting, a lot of lifting.” Mrs. Rooks testified that she remembered that Mrs. Ford told her she had general soreness and specifically had back soreness that day, but did not report any shooting pain down her legs. Ms. Rooks told Mrs. Ford to take it easy, however the volume of work required that Mrs. Ford work the full day. Ms. Rooks further testified that Mrs. Ford had never come to her with a complaint of soreness or back pain prior to July 12, 2014.

Mrs. Ford finished out the work day, but claimed she was sore and exhausted when she arrived home. She informed her husband she was worn out, took a shower, and got into her reeliner. She was unable to engage in the families’ usual Saturday night cooking activities, which included grilling outside. She rested in her reeliner, and when she attempted to get up from the reeliner, she felt sharp shooting pains in her back and down her left leg.

Mrs. Ford’s back pain continued to increase on Sunday, July 13, 2014, and Ron Monday, July 14, 2014, her husband took her to the emergency room at the Victory Medical Center (Victory) in Beaumont, Texas. Mrs. Ford texted Ms. Rooks on the same day stating that she would not be in to work, could hardly get out of bed, and was going to the hospital. Mrs. Ford has not returned to work since July 12, 2014.

Mrs. Ford was examined in the Victory Emergency Room by Dr. Sidney Mar-chand. Testimony presented at trial documented Dr. Marchand’s findings under the heading “HPI[.]” The findings stated that the “chief complaint” was “pain to: back” with “onset/duration” being “1 day ago” due to “recent injury possibly from ... lifting, turning/bending for work — journeyman for construction company.” In response to the question where the injury took place, the word “work” is circled. Mrs. Ford further testified in connection with her examination by Dr. Marchand that she was having sharp pains going down her left leg, like “hot needles going all the way down.” After his examination Dr. Marchand ordered a CT scan and prescribed medication which included Toradol, 60 mg, Morphine, 4 mg, and Flexeril, 10 mg.

Mrs. Ford also testified about Question 4 of the documentation filled out and signed by her husband, Richard Ford, at Victory. In Mr. Ford’s response to the question, “Is the hospital care and treatment which you are seeking from Victory Medical Center, at this time, for injuries you suffered during an accident which occurred while you were on the job?” Mr. Ford responded “No[.]”

Mr. Ford testified that the lady at the counter helped him fill out the documents, as Mrs. Ford was already in the back of the emergency room with the doctor. Mrs. Ford confirmed that she was in the examining room with the doctor and had no knowledge of Mr. Ford’s responses to any of the questions posed in the ^Victory documents. When the E.R. nurse asked Mr. Ford if Mrs. Ford’s injury was a work related accident, he responded:

I told her the truth. I’m not sure . I know she came home later on and she was sore. ... I was telling that lady I’m not sure. I don’t know whether she came home — all I know, when she came home her back was hurting and they had her back there and I wasn’t in a position to ask her anything about it.

A few days later, on July 17, 2014, Mrs. Ford again saw Dr. Stanley Marchand, this time in his office at Beaumont Dermatology and Family Practice. Dr. Marchand was Mrs. Ford’s primary care physician. The CT scan ordered by Dr. Marchand was also performed on July 17, 2014 ..at Christus — St. Elizabeth. However, Dr. Marchand declined to continue treating Mrs. Ford as Dr. Marchand did not. see patients for work related injuries. . ..

On July 14, 2014, the day Mrs. Ford reported her back pain to Ms. Rooks by text, Mrs. Rooks did not inform her supervisor, Mr. Norsworthy, of Mrs, Ford’s injury claim. The WC-1007 Form entitled “Employer Report of Injury/Illness” states that Bechtel first learned .of Mrs. Ford’s possible injury on July 30, 2014. However, the WC-1007 Form further indicates under the question “Place of Injury-Employer’s Premises? X Yes,”

After the supervisors at Bechtel learned of the possible work related injury to Mrs. Ford, Ms. Rooks testified that she was questioned about the incident by Mr. Nor-sworthy at the behest of Mr. Lance Mitch-ener, who is involved with safety. She repeated her previous account of the heavy lifting and bending that day and Mrs. Ford’s complaints of back pain while on the job, but was told by Mr. Norsworthy not to discuss Mrs. Ford’s possible workers’ compensation claim with her or inquire about her condition. Ms. Rooks followed the instructions of her | «supervisor, despite the fact that she and Mrs. Ford had worked together in the past on other construction jobs and were occasional social friends.

On July 31, 2014, Mrs. Ford was referred by her employer to Dr. Louis F. Puig at Occupational Medical Care. Dr. Puig’s Work Status Report dated July 31, 2014, has a stated diagnosis of “Low back pain, DJD, bulging disc .., etiology ■ unknown!.]” Dr. Puig stated in his Work Status Report, dated July 31, 2014, that Ms. Ford was able to return to work, but with the following restrictions: zero pounds lifting or pushing/pulling, restricted reaching above the chest, overhead and away from the body, restricted walking, standing, and sitting. Dr. Puig noted: Referred to Specialist: “Neuro Surgery— MRI.” Mrs. Ford also received six physical therapy'treatments at Occupational Medical Care, which did not relieve her pain.

Mrs. Ford returned for a follow up visit with Dr. Puig on August 5, 2014, and reported she was still in a lot of pain with a pain scale of eight out of ten. Dr. Puig’s Work Status Report dated August 5, 2014, has a stated diagnosis of “L-5 sprain back pain, DJD, lumbar spurs[.]” Dr. Puig determined Mrs.' Ford was able to return to work with the following restrictions: lifting ten to fifteen pounds maximum, restricted walking and standing, not continual,, and no crawling, kneeling, squatting, or climbing of ladders. The Medical Referral Form of August 5, 2014, contains the same restrictions, and Dr. Puig certified that Mrs. Ford was able to work a regular forty-eight hour week, but could not work overtime in excess of the forty-eight hour week.

The records of Occupational Medical Care, contained within the records submitted into evidence at trial by Dr. Gunder-son’s office, indicated that Mrs. Ford saw Dr. Puig again on August 21, 2014. Dr. Puig’s Work Status Report dated | ¡August 21, 2014, has a stated diagnosis of “low back pain & herniated disc (L4-L5)[.]” Dr. Puig determined Mrs. Ford was able to return to work with the following restrictions: zero pounds lifting and pushing and pulling, restricted walking and standing, and primary sitting duties with occasional walking/standing. Based on the Dr. Puig’s work restrictions, if Mrs. Ford had returned to work, she would not have been able to perform the duties required of her former position as a Journeyman Material Handler.

On August 5, 2014, Mrs. Ford underwent an MRI at Beaumont MRI, which showed that her Ll-2, L2-3, L3-4 discs all had herniations. The report stated the following under “IMPRESSION: 1. Broad-based posterior disc herniation measuring approximately 4mm at L4-5 creating minimal bilateral foraminal stenosis.[] 2. Small focal leftward disc herniation measuring 3mm at L5-S1 with resulting mild left foraminal stenosis.” In spite of receiving the report, defendants did not refer Mrs. Ford to a neurosurgeon or neurologist.

Mrs. Ford was questioned about two documents which were submitted into evidence by counsel for Defendants prior to her employment with Bechtel. These two reports concerned Mrs. Ford’s complaints of back pain occurring on June 4, 2013 at Christus-St Elizabeth and a follow up visit to Dr. Marchand on June 5, 2013. The records indicated that Mrs. Ford underwent x-rays at the hospital with no acute findings. Both documents indicated she was suffering from degenerative disc disease and low back pain, which kept her off of work for several days, but seemed to have resolved.

In her 1008 Form filed on August 19, 2014, Mrs. Ford named Dr. |10Gunderson as her treating physician and was referred to him by her counsel. Mrs. Ford was examined by Dr. Gunderson on January 20, 2015. Defendants certified Mrs. Ford for one visit with Dr. Gunderson, who prescribed “pain medication, muscle relaxants, and anti-inflammatory agents[,]” and scheduled a return appointment in four weeks. Defendants denied Dr. Gunderson’s LWC-Form 1010 request for authorization for a return appointment on February 5, 2015. Due to the denial of additional medical treatment, Mrs. Ford was unable to return for further treatment with Dr. Gun-derson.

Dr. Gunderson later rendered a medical report on August 4, 2015, in response to her counsel’s request for his impression of Mrs. Ford’s physical condition. The report was also read into the record at trial, and stated:

In answer to your question: it is my impression that this patient’s present diagnosis is multiple lumbar disc hernia-tions. I would recommend that she attend physical therapy, and if she is not improved will probably need epidural steroid injections. When I saw her she was unable to perform gainful employment. I believe that the described work aggravated her pre-existing disc hernia-tions or made them worse, and that is the precipitating cause of her lower back complaints.

Defendants offered no medical documentation or medical expert opinion to dispute the ultimate conclusion of Dr. Gunderson that the work Mrs. Ford performed on July 12, 2014, “aggravated her pre-existing disc herniations or made them worse, and that is the precipitating cause of her lower back complaints.”

Injury in the Course and Scope of Employment

If a worker brings a workers’ compensation claim against her employer, she bears the burden of initially proving that she suffered “personal injury by accident arising out of and in the course of [her] employment.” Bruno v. Harbert Int’l Inc., 593 So.2d 357, 360 (La.1992). Defendants’ briefing to this court indicates they |nrelied on La.R.S. 23:1021(1) in denying Mrs. Ford’s claim for benefits. Louisiana Revised Statute 23:1021(1) states: “ ‘Accident’ means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.”

In Bruno, 593 So.2d at 361, the supreme court stated:

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts 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. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. Corroboration may also be provided by medical evidence. West, [371 So.2d 1146].

Rideaux v. Kohl’s Dept. Stores, Inc., 11-914, (La.App. 3 Cir. 12/7/11), 80 So.3d 703, was cited in the oral reasons issued by the WCJ on April 20, 2016. In Rideaux, a case with a similar factual scenario, a panel of this court found in favor of the claimant, Ms. Rideaux who, although assigned to the jewelry department at Kohl’s, was required to work non-stop in the warehouse for approximately five hours, “removing boxes from a fast-moving conveyer belt, opening the boxes, and hanging the garments on six-foot rolling racks.” Id. at 707. Due to her height of only five feet, she had to stand on her tip-toes to hang the garments on the rack. Id. During the five hours of work in the warehouse, Ms. Ri-deaux testified that she “continuously felt stress and tightening in her right shoulder but, nonetheless continued working.” Id. After the completion of her work she did not feel well, soj^she sat on the floor until she was told to return to the jewelry department. After returning home she attempted to take her “shirt off over her head to take a shower when her right shoulder ‘popped.’ ” Id. Ms. Rideaux had a doctor’s appointment the next morning for another matter and complained to her physician about her right shoulder pain. Her doctor called in one of his colleagues, who “recommended that she undergo an MRI ‘due to the knot’ on her right shoulder.’ ” Id.

Although the alleged injury took place on September 7, 2009, Ms. Rideaux did not report the injury to her supervisor until September 25, 2009, and was given some workers’ compensation paperwork to complete by the store manager. She reported that her arm hurt at home and she heard it pop before taking a shower. However the accident report stated she was cleaning shelves when she heard a popping sound.

Nevertheless, the WCJ awarded and a panel of this court affirmed the workers’ compensation benefits to Ms. Rideaux. Despite the discrepancies in Ms. Rideaux’s reporting, it was clear that after five hours working in the warehouse, she had developed a knot in her right shoulder, which was documented by a physician the next day. Therefore the WCJ found that the accident did occur at work and not at home, as argued by Kohl’s, and was thus compensable. The WCJ found Ms. Rideaux credible, and this court agreed “with the WCJ’s conclusion that the discrepancies noted in the accident report are minor given the big picture.” Id. at 710.

Similarly, in this case, the WCJ found that Mrs. Ford was a credible witness and stated in oral reasons:

In this instance, the claimant, Ms. Ford, pointed to the fact that | isshe felt sore after a massive bolt relocation involving the unloading and lifting of boxes of bolts and valves. The high paced and physical activity required during the work day caused her to feel sore all over at work and ultimately experience acute pain to the point where she had to be taken to the hospital. The testimony of Ford’s supervisor and husband corroborate Ford’s testimony. Further, the medical testimony supports her claim for benefits. Dr. Gunderson believed that Ford’s work activities aggravated her pre-existing disc herniation, or made them worse, and that is the precipitating cause of her lower back complaints. Other medical records support Ford’s claim as the reports mention work related lifting and bending and that claimant worked as a journeyman for a construction company. Ford’s testimony is credible and it is supported by both lay and medical testimony. Therefore, the Court finds that on July 12, 2014, the claimant, Evrin Ford, had a work related accident during the course and scope of her employment with Bechtel O.G.C.

The WCJ thus made a factual finding that the work done by Mrs. Ford for Bechtel on July 12, 2014, aggravated her preexisting disc herniation. The testimony of her supervisor, Ms. Rooks, supports Mrs. Ford’s testimony that the work done on July 12, 2014, was in excess of the usual workday and involved a lot of bending, squatting, and lifting. Mrs. Ford’s testimony concerning her pain and soreness she felt at work and the back pain she experienced later that evening on July 12, 2014, as well as her subsequent admission to the emergency room at Victory on the following Monday, July 14, 2014, was corroborated by her husband and was more than adequately supported by medical documentation submitted into the record. As we previously indicated, Defendants failed to submit any medical documentation to dispute the opinion of Dr. Gunderson that Mrs. Ford had aggravated her degenerative disc disease while performing heavy labor at work.

In Rivers v. Bo Ezernack Hauling Contractor Inc., 09-991, p. 4 (La.App. 3 Cir. 3/10/10), 32 So.3d 1091, 1095, writ denied, 10-807 (La. 6/4/10), 38 So.3d 309, this court held that “a claimant’s recovery under Louisiana’s workers’ compensation laws is not barred by a pre-existing condition because an employed u takes the employee as he finds him.” See also Fontenot v. Wal-Mart Stores, Inc., 03-1570 (La.App. 3 Cir. 4/7/04), 870 So.2d 540, writ denied, 04-1131 (La. 6/25/04), 876 So.2d 843. Therefore, Mrs. Ford’s pre-existing degenerative disc disease would not preclude her from receiving workers’ compensation benefits when her condition was aggravated by an otherwise compensable work related accident. Montou v. Boise Cascade Co., 14-1248 (La.App. 3 Cir. 4/1/15), 160 So.3d 637, 644, writ denied, 15-870 (La. 6/5/15), 171 So.3d 952.

After a review of the entire record before us, we find that the WCJ was not manifestly erroneous in finding that Mrs. Ford suffered a work related injury during the course and scope of her employment with Bechtel on July 12, 2014.

Assignment of Error Two — Failure of Mrs. Ford to Follow the Procedure Required by La.R.S. 23:1203.1

Defendants further claim the trial court erred in ordering them “to authorize physical therapy and other treatment recommended by appellee’s choice of orthopedic surgeon [, Dr. Gunderson] where there is no evidence that the procedure required by La.R.S. 23:1203.1 and implementing regulations was attempted.”

The WCJ’s judgment ordered Defendants to pay for the physical therapy and return visit recommended by Dr. Gunderson, as well as all “reasonable and necessary medical treatment.” In Church Mut. Ins. Co. v. Dardar, 13-2351, (La. 5/7/14), 145 So.3d 271, 277, the supreme court discussed the provisions of La.R.S. 23:1203.1(J)(1) and the “authorization and information” required to be submitted by a medical provider to the payor. La.Admin. Code Tit. 40, pt. I, § 2715 requires that a health care provider file a LWC Form 1010 requesting | ^authorization from the workers’ compensation carrier to provide medical services to the claimant.

Defendants state in their brief to this court, “There was no evidence that Dr. Gunderson or any other provider submitted a formal request for authorization of treatment. Since there was no procedural^ valid request for treatment before the Trial Court, it was error for the Trial Court to order the provision of specific treatment.”

The February 19,2015 Certified Medical Records of Dr. Clark Gunderson submitted into evidence by Mrs. Ford reflect that on January 21, 2015, Dr. Gunderson sent a LWC Form 1010 request to AIG, and their adjuster, Michael Morrison, requesting a return visit for Mrs. Ford on February 19, 2015, at 1:30. On February 5, 2015, Mr. Morrison replied, “In response to the 1010 form from Dr. Gunderson dated 1/21/15 requesting auth [sic] for return visit on 2/19/15, this claim is denied[;] therefore we are unable to authorize the request.”

We find that a valid request for a return visit for Mrs. Ford to Dr. Gunderson was properly before the WCJ, as Defendant’s had only authorized the one examination and denied Dr. Gunderson’s LWC Form 1010 request for a follow-up visit. Louisiana Administrative Code, Title 40, Part I, § 2715(H) (emphasis added) states in pertinent part, “A health care provider, claimant, or claimant’s attorney if represented who chooses to appeal a denial pursuant to this Subparagraph shall file a LWC-WC-1009 pursuant to Subsection J of this Section.”

At the time of the request and denial of the return visit to Dr. Gunderson, in January and early February of 2015, Mrs. Ford had a previously filed 1008 Disputed Claim naming Dr. Gunderson as her treating physician and seeking medical treatment. Therefore, it would have been fruitless for Mrs. Ford to file an | ^additional appeal on Form 1009, as Defendants had answered Mrs. Ford’s 1008 Disputed Claim denying her claim for workers’ compensation medical benefits and the matter had been at issue before the WCJ.

Having found that Mrs. Ford was injured in the course and scope of her work with Bechtel, the WCJ correctly stated in her judgment that “claimant is entitled to all reasonable and necessary medical benefits.” An employer’s duty to furnish medical expenses is governed by La.R.S. 23:1203(A) which provides, in pertinent part:

In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services.

Technically, Defendants are correct that the WCJ’s judgment ordering them to provide Mrs. Ford with the “recommended physical therapy” was not the subject of Dr. Gunderson’s LWC Form 1010 request after her initial visit. On her first visit he prescribed medication, presumably as a first step in the treatment process. However, Dr. Gunderson later made it clear in his August 4, 2015 report that he did recommend physical therapy for Mrs. Ford. Therefore, we find that the recommendation of physical therapy by her treating physician Dr. Gunderson was placed at issue before the WCJ and properly rendered in the WCJ’s March 31, 2016 judgment.

Assignment of Error Three-Penalties and Attorney Fees.

A panel of this court clearly defined the basis for an award of penalties and attorney fees in Landry v. Furniture Center, 05-643, p. 10 (La.App. 3 Cir. 1/11/06), 920 So.2d 304, 311, writ denied, 06-358 (La. 4/28/06), 927 So.2d 290:

117Under La.R.S. 23:1201(F), a claimant in a workers’ compensation claim has the burden of proving his entitlement to statutory penalties for the employer’s refusal or failure to timely pay workers’ compensation benefits. To avoid the imposition of penalties and attorney fees, the employer and its insurer must provide factual and medical evidence to reasonably controvert a workers’ compensation claim. Bolton v. Mike Fleming Construction, 36,521 (La.App. 2 Cir. 12/11/02), 833 So.2d 1177. The employer must have an “articulable and objective reason to deny benefits at the time it took the action,” Authement v. Shappert Engineering, 02-1631 (La. 2/25/03), 840 So.2d 1181, 1188.

“Whether or not the employer is cast with attorney fees and penalties is a question of fact that will not be reversed on appeal absent manifest error.” Alpizar v. Dollar General, 13-1150, p.13 (La.App. 3 Cir. 3/5/14), 134 So.3d 99, 108 (quoting Lambert v. Brookshire Grocery Co., 06-1001, p. 11 (La.App. 3 Cir. 12/20/06), 945 So.2d 918, 927).

Penalties

Defendants urge that they should not be cast for the $2,000.00 in penalties for failing to pay Mrs. Ford workers’ compensation benefits or the $2000.00 in penalties for failing to pay her medical benefits. Defendants claim that this was a close question and that they had a right to ask the court for resolution. See Fontenot v. J.K. Richard Trucking, 97-220 (La.App. 3 Cir. 6/4/97), 696 So.2d 176, 182. Defendants claim that Mrs. Ford did not report an accident or anything more than the usual soreness “all over” and fatigue following her overtime work on July 12, 2014. However, Mrs. Ford did notify her supervisor Ms. Rooks, on July 14, 2014, that she was in pain, was being taken to the hospital, and would not be coming in to work. Ms. Rooks was already aware that Mrs. Ford had complained |18to her on July 12 that her back was sore from all the hard work she had to do that day.

When she did notify Defendants on July 30, 2014, that she thought her lower back pain was work related, Mrs. Ford was sent to the company doctor who noted that the etiology of the complaints was “unknown.” However he recommended that she be referred to a neurologist and an MRI be performed. As previously indicated Mrs. Ford did undergo an MRI which was positive for lumbar disc herniations.

Defendants argue that the onset of pain could have easily occurred when Mrs. Ford attempted to get up from her recliner, as individuals with degenerative disc disease need not exert themselves in order to aggravate the condition. However, in August 2015, Defendants had Dr. Gunderson’s medical opinion which clearly related Mrs. Ford’s back injury to the work done on July 12, 2014. Defendants presented no medical evidence at trial to contradict Dr. Gunderson’s medical opinion. Therefore we find that the WCJ did not commit manifest error in finding that Defendants were liable for penalties in the amount of $2,000.00 for failure to timely provide workers’ compensation benefits to Mrs. Ford. These benefits have since been paid.

Defendants also claim that no penalties should have been assessed for failure to authorize Mrs. Ford’s medical treatment. They claim there was no evidence that any request for treatment via Form 1010 had been denied and that her employer-funded health insurance, or the employer, had paid for treatment up to the point of trial.

As previously addressed, on February 19, 2015, Dr. Gunderson sent a LWC Form 1010 request to AIG, and their adjuster, Michael Morrison, requesting a |19return visit for Mrs. Ford on February 19, 2015, which was denied. Therefore we find that the WCJ did not commit manifest error in finding that Defendants were liable for penalties in the amount of $2,000.00 for failure to provide medical treatment to Mrs. Ford.

Attorney Fees

Although Defendants cite as an error on appeal the award of attorney fees, they fail to brief the issue on appeal. However, after finding that Mrs. Ford is entitled to the penalties awarded for Defendants’ failure to provide her with workers’ compensation benefits and medical treatment, we see no basis under La.R.S. 23:1201 to deny the properly submitted attorney fees in the amount of $12,000.00 for Defendants “failure to reasonably controvert the claim of Mrs. Ford for workers’ compensation benefits stemming from the July 12, 2014 work related accident.” Therefore, we find no manifest error in the WCJ’s award of attorney fees. Accordingly, Defendants’ assignment of error three is without merit.

Attorney Fees on Appeal

Mrs. Ford filed an answer and seeks an additional award of attorney fees for work done on appeal. “An increase in [attorney] fees is awarded on appeal when the defendant appeals, obtains no relief, and the appeal has necessitated more work on the part of the plaintiffs attorney, provided that the plaintiff requests such an increase.” McKelvey v. City of Dequincy, 07-604, pp. 11-12 (La.App. 3 Cir. 11/14/07), 970 So.2d 682, 690. The record before this court reflects that Mrs. Ford’s counsel requested such attorney fees, filed a brief in support of the judgment of the WCJ, and was successful in defending the judgment in its favor on appeal. Therefore, $3,000.00 in attorney fees for work performed on appeal is awarded.

| ^CONCLUSION

For the foregoing reasons, we affirm the March 31, 2016 judgment of the Workers’ Compensation judge in all respects. We also award attorney fees in the amount of $3,000.00 for work done on appeal. All costs of this appeal are assessed to Bechtel O.G.C. Construction Services, Inc., and Insurance Company of The State of Pennsylvania c/o AIG Claims, Inc.

AFFIRMED.

      . A foraminal stenosis is a narrowing of the openings where the spinal nerve roots are located.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Alvin BARTLEY v. SCHLUMBERGER TECHNOLOGY COMPANY and Travelers Insurance Company
    16-538
    Court of Appeal of Louisiana, Third Circuit.
    12/07/2016

      Christopher R. Philipp, Law Office of Christopher R. Philipp, 117 Caillouet Place, Post Office Box 2369, Lafayette, Louisiana 70502, (337) 235-9478, COUNSEL FOR PLAINTIFF/APPELLEE: Alvin Bartley
    Tobin J. Eason, Weiss & Eason, L.L.P., Post Office Box 8597, Mandeville, Louisiana 70470, (985) 626-5358, COUNSEL FOR DEFENDANTS/APPELLANTS: Schlumberger Technology Corporation and Travelers Property Casualty Company of America
    Court composed of Marc T. Amy, Elizabeth A. Pickett, and James T. Genovese, Judges.
   GENOVESE, Judge.

_JjIn this workers’ compensation case, Defendants, M-I LLC d/b/a M-I SWACO, a Division of Schlumberger Technology Corporation, and its workers’ compensation insurer, Travelers Property Casualty Company of America (Travelers) (collectively Schlumberger), appeal the judgment of the Office of Workers’ Compensation in favor of Claimant, Alvin Bartley. Mr. Bartley has answered the appeal. For the following reasons, we affirm and render.

FACTS AND PROCEDURAL HISTORY

Mr. Bartley was employed as a tool technician at Schlumberger when he allegedly sustained injury during the course and scope of his employment on March 23, 2015. The alleged accident causing injury was unwitnessed, and Mr. Bartley never returned to work for Schlumberger after that date.

On the evening of March 23, 2015, Mr. Bartley presented to Lafayette General Hospital (Lafayette General) emergency room with complaints of pain. He also sent a text message to his supervisor, Kevin Bonin, advising that he was at the hospital due to a pulled muscle in his shoulder.

On March 25, 2015, at Mr. Bonin’s request, Mr. Bartley went to Schlumberger’s office and filled out the necessary paperwork to document a work-related accident. Mr. Bartley provided a statement to Gerald Landry while at Schlumberger.

laSchlumberger sent Mr. Bartley to be seen by Dr. Gordon Gidman, an orthopedist, on March 25, 2015. After viewing an x-ray and MRI report, on March 26, 2015, Dr. Gidman immediately referred Mr. Bartley to a neurosurgeon, Dr. Thomas Bertuccini, for evaluation. Mr. Bartley was seen by Dr. Bertuccini on March 26, 2015, and Dr. Bertuccini recommended surgery. Schlumberger paid for these medical examinations and the tests performed in connection with the medical treatment.

On March 27, 2015, Mr. Bartley gave a second statement explaining how the accident happened. This statement was given to Christopher Smith, an adjuster with Travelers.

On April 6, 2015, Schlumberger denied Mr. Bartley’s claim based upon the medical records it had received from Lafayette General. These records documented a history of Mr. Bartley denying the occurrence of trauma and that his pain had been intermittent for over a month. Based upon the contents of the Lafayette General records, Schlumberger did not approve Dr. Bertuccinni’s surgical request and denied Mr. Bartley workers’ compensation benefits. Mr. Bartley then filed a Disputed Claim for Compensation with the Office of Workers’ Compensation.

Following a trial on the merits, the workers’ compensation judge (WCJ) found that Mr. Bartley met his burden of proving that he sustained an accident during the course and scope of his employment with Schlumberger and that he was entitled to workers’ compensation benefits. Additionally, the WCJ ruled that Schlumberger failed to reasonably controvert Mr. Bart-ley’s claim, thereby entitling him to an award of penalties and attorney fees. A formal judgment was signed on | ¡¡March 15, 2016. Schlumberger has appealed said judgment, and Mr. Bartley has filed an answer to appeal.

ASSIGNMENTS OF ERROR

On appeal, Schlumberger argues that the WCJ erred in finding that Mr. Bart-ley “earned his burden of proof proving the course and scope accident and the causal relationship between [his] medical condition to the alleged course and scope accident.” Additionally, Schlumberger contends that the WCJ was manifestly erroneous in finding that Schlumberger “did not reasonably controvert the claim” and in awarding penalties and attorney fees. Also before this court is Mr. Bartley’s answer to appeal wherein he seeks an award of additional attorney fees for work necessitated by Schlumberger’s appeal.

LAW AND DISCUSSION

As in all workers’ compensation cases, Mr. Bartley had the burden of proving the occurrence of a work-related accident by a preponderance of the evidence. Sorile v. Lott Oil Co., Inc., 14-1156 (La.App. 3 Cir. 3/4/15), 160 So.3d 178. With respect to an unwitnessed accident, the manner in which this burden can be met is clearly established in the jurisprudence.

An employee can prove an unwit-nessed accident with her testimony alone if “(1) no other evidence discredits or casts serious doubt upon [her] version of the accident; and (2)[her] testimony is corroborated by the circumstances following the alleged incident.” Marange[ v. Custom Metal Fabricators, Inc., 11-2678, p. 6 (La. 7/2/12), 93 So.3d 1253, 1257]. The employee’s testimony may be corroborated by the testimony of coworkers, spouses, or friends, or by medical evidence. Ardoin v. Firestone Polymers, L.L.C., 10-245 (La. 1/19/11), 56 So.3d 215 (citing Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992)). The WCJ’s determinations that an employee is credible and that she satisfied her burden of proof are factual determinations that should not be disturbed by a reviewing court unless the determinations are “clearly wrong ... absent a showing of manifest error.” Bruno, 593 So.2d at 361.

Franklin v. Calcasieu Parish Sch. Bd., 12-1032, p. 2 (La.App. 3 Cir. 2/6/13), 108 So.3d 907, 909.

In the instant matter, the WCJ stated in his oral reasons that he made “a specific finding that Mr. Bartley’s testimony was sincere and credible.” In such instance, this court has opined:

An appellate court cannot reverse a WCJ’s factual findings that are based on a reasonable credibility evaluation if the record “furnishes [a] reasonable factual basis for the trial court’s finding.” Marange, 93 So.3d at 1258 (quoting Canter v. Koehring Co., 283 So.2d 716, 724 (La. 1973)). When, as here, “there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Id.

Id.

In this case, Schlumberger initially paid for Mr. Bartley’s medical treatment. It later denied his claim when it received the Lafayette General medical records given the history recorded in those records. Schlumberger relies on those medical records and the time sheet introduced into evidence to show a contradiction with Mr. Bartley’s version of the accident. Following a trial on the merits, the WCJ concluded that Mr. Bartley had met his burden of proving a compensable work-related accident.

According to Mr. Bartley, the subject accident occurred on March 23, 2015, between 10:00 a.m. and 11:00 a.m. Mr. Bart-ley and one other employee were working in one part of the Schlumberger facility while the other employees were performing inventory in a different area of the facility. Mr. Bartley was operating an overhead crane moving a magnetic tool. When the magnetic tool attached to another tool, he attempted to pry the tools apart. In doing so, he claims he injured Ifihis neck. Initially, Mr. Bartley thought he had pulled a muscle, and he testified that he did not immediately report an accident because he thought it wasn’t anything significant. After this incident happened, Mr. Bartley took Ibuprofen and later went home for lunch and to rest. He returned to work intending to do paperwork for the remainder of the day.

Schlumberger relies upon time sheets introduced into evidence to dispute Mr. Bartley’s claim that he sustained an accident between 10:00 a.m. and 11:00 a.m. Specifically, Schlumberger argues that the time sheet shows that Mr. Bartley arrived at work at 7:30 a.m., left the shop at 8:30 a.m., returned to the shop at 1:30 p.m., and then clocked out for the day at 5:00 p.m.

Mr. Bartley testified that the time sheet generated by Schlumberger is inaccurate and, further, that he does not know how Schlumberger got those hours because he did not turn in a handwritten time sheet for that pay period since he never returned to work after March 23, 2015.

Mr. Bartley testified that on the day of his accident, the time clock was inoperable. When the time clock was not working, the employees were to prepare a handwritten time sheet. Schlumberger’s Operations Clerk, whose job duties include entering the employees’ time (from either the time clock punch card or the employees’ handwritten time sheet), confirmed that the time clock was inoperable in March 2015. Thus, Mr. Bartley’s time for the day in question would have been documented by a handwritten time sheet for that day. That handwritten time sheet would have been turned in to Schlumberger at the end of the work week. According to protocol, the Operations Clerk would then input the employees’ time, and a computer-generated time sheet would then be produced. It is this computer-generated time sheet that was introduced into evidence.

IfiMr. Bartley maintains that the time sheet does not accurately reflect the hours that he worked on March 23, 2015. Undis-putedly, Mr. Bartley never did return to work after the day of his accident. Thus, according to his testimony, Mr. Bartley never did turn in a handwritten time sheet to be used for the subsequent input of his time and production of the computer-generated time sheet. The Operations Clerk admitted that she did not have Mr. Bart-ley’s handwritten time sheet for comparison and testified that they are maintained for two weeks before they are shredded.

Although it was impossible for the WCJ to compare a handwritten time sheet with the time sheet introduced at trial, Mr. Bartley was adamant that he did not work for one hour on March 23, 2015, and clock out at 8:30 a.m. Additionally, the testimony of his co-employees fails to refute his presence at Schlumberger between 10:00 a.m. and 11:00 a.m. Mr. Bartley and Ethan were the only two employees performing work in this area of the shop at that time. The other employees were performing other duties relative to inventory in different locations. The testimony established that other employees saw Mr. Bartley during the course of that day, but their testimony neither proves nor disproves his presence between 10:00 a.m. and 11:00 a.m. For these reasons, we find that neither the witnesses’ testimony nor the time sheet introduced into evidence cast serious doubt or negate Mr. Bartley’s version of the accident.

Schlumberger contends that the medical records of Lafayette General also cast serious doubt on Mr. Bartley’s account of the accident. Schlumberger argues those records indicate that in relating a history to the hospital staff, Mr. Bartley denied that he experienced a trauma, and he indicated that his pain had been intermittent in nature for over eight weeks. On the other hand, Mr. Bartley ^characterizes the records from Lafayette General as containing a “blatantly obvious error in the electronic medical records!.]”

Mr. Bartley maintains that he related a history to the emergency room nurse that he had pain for eight hours, not eight weeks as was erroneously documented. Mr. Bartley testified he told the nurse that he felt neck pain while at work. He argues that consistent with an accident occurring earlier that day, he also sent a text message to his supervisor, Mr. Bonin, while he was at the hospital to let Mr. Bonin know that he was at the hospital for treatment. Mr. Bartley and Mr. Bonin exchanged more text messages the following day, and, on March 25, 2015, Mr. Bartley went into the office, as requested by Mr. Bonin, to fill out the appropriate paperwork to document his work-related accident.

Mr. Bartley notes that on March 25, 2015, he “gave a detailed recorded statement to American Claims Service, Inc. (ACSI) investigator, Gerald Landry.” According to Mr. Bartley, he gave the same history to Mr. Landry twenty-four hours post accident as he had given to the emergency room nurse. Mr. Bartley also notes that he provided a second statement on March 27, 2015, to the adjuster for Travelers, Christopher Smith, which related a consistent history. According to Mr. Bart-ley, this was the same consistent history he also gave to Dr. Gidman on March 25, 2015, and to Dr. Bertuccini on March 26, 2015. Therefore, Mr. Bartley concludes that the Lafayette General medical records are simply incorrect, and he points to the above information which he contends corroborates his account of how the accident happened.

We have reviewed the evidence that was introduced and find that the Lafayette General records do indeed contradict Mr. Bartley’s version of how the accident occurred; however, the two statements given by Mr. Bartley and the |smedical records from Dr. Gidman and Dr. Bertuecini are consistent and do corroborate Mr. Bart-ley’s testimony. In short, the evidence does not cast serious doubt or negate Mr. Bart-ley’s version of how the accident happened on March 23, 2015. There are two permissive views of the evidence in this ease; as such, the WCJ’s choice between them cannot be manifestly erroneous or clearly wrong. Weaver v. La. Wholesale Drug Co., 15-747 (La.App. 3 Cir. 3/2/16), 186 So.3d 366, writ denied, 16-631 (La. 5/20/16), 191 So.3d 1071. The WCJ made a specific finding of fact that Mr. Bartley’s testimony was “sincere and credible.” Considering the WCJ’s factual findings were based on a reasonable credibility evaluation, we are not permitted to reverse same. Franklin, 108 So.3d 907. Clearly, there is a reasonable factual basis in the record in support of the findings of the WCJ, and we conclude that the WCJ did not manifestly err.

Mr. Bartley also bore the burden of proving a causal connection between the work-related accident and the resultant injury. Broadway v. Shane Mitchell Logging, Inc., 12-810 (La.App. 3 Cir. 12/12/12), 105 So.3d 1041. Schlumberger argues on appeal that Mr. Bartley failed to meet his burden of proving “that he sus tained an injury causally related to his employment postion[.]” Although the WCJ did not make an express finding on the element of causation, implicit in the judgment awarding workers’ compensation benefits is a determination by the WCJ that Mr. Bartley’s injuries were causally related to his March 23, 2015 accident.

Mr. Bartley maintains that while performing work at Schlumberger, he injured his neck. The only evidence contradicting his claims are the medical records from Lafayette General discussed above. Schlumberger also argues that the medical records of Dr. Gidman and Dr. Bertucinni reflect a degenerative condition. However, an aggravation of a pre-existing condition is compensable. Turner v. Lexington House, 14-1264 (La.App. 3 Cir. 4/15/15), 176 So.3d 1071, writ denied, 15-952 (La. 8/28/15), 176 So.3d 405. In this case, based upon the record, we find Mr. Bartley satisfied his burden of proving that his injury was causally related to the work-related accident of March 23, 2015.

On the issue of penalties and attorney fees, Schlumberger argues that it “was more than reasonable after receiving the medical records wherein the employee denied any accident” to deny Mr. Bartley’s claim. We disagree.

Louisiana Revised Statutes 23:1201 governs the award of penalties and attorney fees in workers’ compensation cases. The failure to authorize necessary medical treatment is considered a failure to furnish medical benefits, as required by La.R.S. 23:1203, and will subject the employer to penalties and attorney fees pursuant to La.R.S. 23:1201(F). However, penalties and attorney fees “shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” La.R.S. 23:1201(F)(2).

Prince v. Superior Energy Servs., L.L.C., 15-728, pp. 10-11 (La.App. 3 Cir. 12/16/15), 181 So.3d 961, 968, writ denied, 16-111 (La. 3/4/16), 188 So.3d 1063 (footnote omitted). A WCJ’s finding that the action of an employer warrants the imposition of a penalty is a factual finding which is reviewed by an appellate court for manifest error. Johnson v. Great West Cas. Co., 15-981 (La.App. 3 Cir. 3/16/16), 186 So.3d 1276, writ denied, 16-703 (La. 6/3/16), 192 So.3d 753.

In the instant matter, the WCJ’s oral reasons reflect that the basis for the imposition of penalties was Schlumberger’s denial of benefits after having obtained Mr. Bartley’s medical records from Lafayette General “without any further investigation[.]” We agree with the WCJ.

‘“To avoid penalties and attorney's fees for the nonpayment of benefits, the employer or insurer is under a continuing duty to investigate, to assemble, and to assess factual information before denying benefits.’ ” Ardoin v. Calcasieu Parish Sch. Bd., 15-814, p. 4 (La.App. 3 Cir. 2/3/16), 184 So.3d 896, 900, writ denied, 16-641 (La. 5/27/16), 192 So.3d 738 (quoting George v. Guillory, 00-591, p. 13 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1209, overruled on other grounds, Smith v. Quarles Co., 04-179 (La.10/29/04), 885 So.2d 562). Although the medical records from Lafayette General understandably raised questions about Mr. Bartley’s claim, at that point, Sehlumberger had paid Mr. Bartley’s medical expenses and had additional information corroborating the occurrence of the accident which, at the very least, warranted further investigation, which Sehlumberger failed to conduct.

Mr. Bartley had provided two consistent statements relating the manner in which he was injured. Additionally, the medical records from Dr. Gidman and Dr. Bertuc-cini contained the same history. Thus, we find no manifest error in the WCJ’s determination that based upon the evidence, Sehlumberger did not reasonably controvert Mr. Bartley’s claim when it failed “to investigate, to assemble, and to assess factual information before [discontinuing] benefits.” Id.

Finally, in his answer to appeal, Mr. Bartley seeks an award of additional attorney fees for the work necessitated by the present appeal. “ ‘An increase in attorney’s fees is awarded on appeal when the defendant appeals, obtains no relief, and the appeal has necessitated more work on the part of the plaintiffs attorney, provided that the plaintiff requests such an increase,’” Turner, 176 So.3d at 1087 (quoting McKelvey v. City of Dequincy, 07-604, pp. 11-12 (La.App. 3 Cir. 11/14/07), 970 So.2d 682, 690). In the case at bar, considering our ruling herein in favor of Mr. Bartley, we find that attorney fees in the amount of $3,000.00 are warranted for the work done on the appeal of this case.

| ^DECREE

For the reasons set forth above, the judgment of the Office of Workers’ Compensation in favor of Alvin Bartley is affirmed. Additionally, we render judgment herein in favor of Alvin Bartley against MI LLC d/b/a M-I SWACO, a Division of Sehlumberger Technology Corporation, and Travelers Property Casualty Company of America in the amount of $3,000.00 for the work done on appeal. Costs of this appeal are assessed to M-I LLC d/b/a M-I SWACO, a Division of Sehlumberger Technology Corporation, and Travelers Property Casualty Company of America.

AFFIRMED AND RENDERED.

      . The caption of these proceedings is reflective of the names of the parties as they are named on the Disputed Claim for Compensation instituting this litigation. Defendants answered and formally appeared. as M-I LLC d/b/a M-I SWACO, a Division of Schlumber-ger Technology Corporation and Travelers Property Casualty Company of America.

      . The record reflects that Mr. Landry is an investigator with American Claims Service, Inc.

      . This employee is referred to only as "Ethan.”


author: PETERS, J.

text:
    STATE of Louisiana v. Christopher GOODLEY, a/k/a Christopher Bryant Goodley
    16-512
    Court of Appeal of Louisiana, Third Circuit.
    12/7/2016

      Trent Brignac, District Attorney, Thirteenth Judicial District, Julhelene E. Jackson, Assistant District Attorney, P.O. Drawer 780, Ville Platte, LA 70586, (337) 363-3438, COUNSEL FOR APPELLEE: State of Louisiana
    Chad Ikerd, Louisiana Appellate Project, P.O. Box 2125, Lafayette, LA 70502, (225) 806-2930, COUNSEL FOR DEFENDANT/APPELLANT: Christopher Goodley
    Court composed of Jimmie C. Peters, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   PETERS, J.

hThe defendant, Christopher Bryant Goodley, appeals his conviction of first degree murder, a violation of La.R.S. 14:30. For the following reasons, we affirm his conviction in all respects.

DISCUSSION OF THE RECORD

On January 28, 2015, the State of Louisiana (state) charged the defendant by grand jury indictment with the November 2, 2014 first degree murder of Delsie Williams, his eighty-year-old grandmother. After a four-day trial beginning on February 1, 2016, a jury returned a verdict finding the defendant guilty as charged. Immediately after the jury returned its verdict, the defendant orally moved for both a post-verdict judgment of acquittal and a motion for new trial, and the trial court rejected both motions. The defendant then orally moved for an appeal of his conviction, and the trial court granted that motion. The defendant subsequently filed a written motion for appeal, and the trial court executed a written order to that effect on February 16, 2016. Nine days later, on February 25, 2016, the trial court sentenced the defendant to life in prison at hard labor without the benefit of probation, parole, or suspension of sentence.

In the appeal now before us, the defendant raises the following assignments of error:

1. Christopher Goodley’s appeal is premature because the trial court granted an order appealing his conviction pri- or to the trial court imposing a sentence.
2. The trial court erred by denying Christopher Goodley’s post-trial motion for judgment of acquittal because the state failed to prove beyond a reasonable doubt that Christopher had the requisite specific intent to be found guilty of first or second degree murder because his intoxication vitiated any specific intent.
|e3. The trial court erred by denying Christopher Goodley’s motion [to] suppress his statements to police because they were not freely and voluntarily given due to being highly intoxicated at the time.

OPINION

Assignment of Error Number One

Louisiana Code of Criminal Procedure Article 916 provides the following with regard to when a trial court is divested of jurisdiction to act in a criminal proceeding:

The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:
(1) Extend the return day of the appeal, the time for filing assignments of error, or the time for filing per curiam comments in accordance with Articles 844 and 919.
(2) Correct an error or deficiency in the record.
(3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.
(4) Take all action concerning bail permitted by Title VIII.
(5) Furnish per curiam comments.
(6) Render an interlocutory order or a definitive judgment concerning a ministerial matter not in controversy on appeal.
(7) Impose the penalty provided by Article 844.
(8) Sentence the defendant pursuant to a conviction under the Habitual Offender Law as set forth in R.S. 15:529.1.

Thus, it is clear that the trial court sentenced the defendant after entering an order of appeal and, therefore, after it had been divested of jurisdiction to act on such matters. However, that factual finding does not necessarily require a dismissal of the appeal and remand for resentencing.

|3The fifth circuit faced a similar factual scenario in State v. Lampkin, 12-391 (La.App. 5 Cir. 5/16/13), 119 So.3d 158, writ denied, 13-2303 (La. 5/23/14), 140 So.3d 717, wherein the trial court granted an appeal prior to sentencing. That court recognized the provisions of La.Code Crim.P. art. 916, but concluded that the defendant’s appeal should not be dismissed with the following analysis:

Ordinarily, a premature appeal need not be dismissed when a sentence is imposed after the defendant’s motion for appeal is filed. State v. Washington, 98-69 (La.App. 5 Cir. 1/26/99), 727 So.2d 673, 675 (citation omitted). Here, the trial court lacked jurisdiction to impose sentence pursuant to La.C.Cr.P. art. 916. A defendant can appeal from a final conviction only where sentence has been imposed. State v. Chapman, 471 So.2d 716 (La.1985); State v. London, 316 So.2d 743 (La.1975).
Although this appeal is premature because the trial court lacked jurisdiction to impose sentence, we find State v. Brooks, 633 So.2d 816, 818 (La.App. 4 Cir.1994), writ denied, 94-1939 (La. 9/3/96), 678 So.2d 548, to be applicable in the present case. In Brooks, as in this case, the defendant’s motion for appeal was granted prior to the imposition of sentence. Id. The Fourth Circuit did not dismiss that appeal, quoting State v. Martin, 483 So.2d 1223, 1225 (La.App. 4 Cir.1986):
The Louisiana Supreme Court and this court, in handling similar situations in civil actions where an appeal was granted prior to the signing of the judgment, have refused to dismiss the appeal. Matter of Parker, 399 So.2d 607 (La.1981). Palmer v. Wren, 361 So.2d 1206 (La.1978); City of New Orleans v. Kirzner, 447 So.2d 66 (La.App. 4 Cir.1984), writ denied, 466 So.2d 1303 (La.1985). We choose to follow a similar line of thinking in criminal cases on point with the one at bar. Dismissing the appeal would simply result in a delay of the appellate process, and hinder defendant’s right to appeal. Accordingly, we conclude that where a sentence is imposed after defendant’s motion for appeal is filed and granted, the appeal will not be dismissed.
Under the circumstances of this appeal, defendant’s motion for appeal should not be dismissed as this would only result in a delay of defendant’s right to appellate review.

Lampkin, 119 So.3d at 162.

14We do note that in two more recent cases, State v. Johnson, 13-75 (La.App. 5 Cir. 10/9/13), 128 So.3d 325 and State v. Griffin, 13-701 (La.App. 5 Cir. 3/12/14), 138 So.3d 90, the fifth circuit reached a different conclusion from its holding in Lampkin. In both of these cases, the trial court ruled on a motion for new trial after granting the defendants’ motion for appeal, and in each case, the fifth circuit concluded that the trial court lacked jurisdiction to sentence the defendant, dismissed the appeal, and remanded the matter to the trial court for a ruling on the new trial motion before acting on the motion for appeal. However, as was specifically recognized by the fifth circuit in Johnson, we find the two rulings to be distinguishable from the holding in Lampkin.

In Johnson, 128 So.3d 325, the fifth circuit reiterated the holding in Lampkin that the divesting of jurisdiction in the trial court does not always require the dismissal of an appeal where the dismissal would delay a defendant’s right to an appellate review of his conviction, but held Johnson was distinguishable from Lamp-kin because Johnson involved the trial court’s ruling on a motion for new trial after it had been divested of jurisdiction. This distinction was particularly important in Johnson because one of the issues on appeal was the trial court’s denial of the defendant’s motion for new trial.

Under the particular circumstances of the present case, where the trial court, after having been divested of jurisdiction, denied defendant’s motion for a new trial, the substance of which he then raised on appeal, we find a remand is proper. Before this Court, a court of review, addresses the merits of an issue that the trial court improperly considered, in light of due process considerations, defendant is entitled to have those merits considered by a trial court properly vested with jurisdiction. Although equitable considerations of judicial economy are as pertinent here as in other cases, this case is distinguishable because it presents a definite issue of due process concern. Under such circumstances, we find that defendant’s due process rights should not yield to equitable considerations of judicial economy. Consequently, we are constrained to vacate the sentences imposed on defendant ... and remand this matter to the trial court to |firule on defendant’s motion for a new trial, and, if denied, to resentence defendant.

Id. at 329.

Although we agree with the defendant’s argument that the order of appeal was issued prematurely, we find the ruling in Lampkin to be persuasive given the facts before us. Because the dismissal of the present appeal would only result in a delay of the defendant’s right to appeal, we decline the request to dismiss his appeal.

Assignment of Error Number Two

The defendant does not deny that he killed his grandmother. Instead, he asserts in this assignment of error that the state failed to prove beyond a reasonable doubt that he had the requisite specific intent to commit the offense of first degree murder; and therefore, the trial court erred in denying his motion for post-verdict judgment of acquittal. Specifically, he asserts that his intoxicated state at the time of the offense vitiated any specific intent and that he should have been convicted of a lesser and included responsive offense.

When a defendant asserts an insufficiency of the evidence defense, the standard of appellate review is well settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record Rroust reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

As it applies to this matter, La.R.S. 14:30(A)(5) provides that “[f]irst degree murder is the killing of a human being ... [w]hen the offender has the specific intent to kill or to inflict great bodily harm upon a victim who is under the age of twelve or sixty-five years of age or older.” Thus, the offense does require a specific intent.

The evidence establishes that on November 2, 2014, the defendant resided with his grandmother in her Ville Platte, Louisiana home and that sometime that day he beat her to death with an aluminum baseball bat; removed her blood-stained capri pants and stuffed them into a trash can; loaded her partially clothed body into the trunk of her automobile; and disposed of the body in a field where it was discovered later that day by Mark Tremie, the owner of the field, who immediately reported his finding to law enforcement personnel.

Evangeline Parish Sheriffs Detective Elliot Thomas was called to Ms. Williams’ home on the evening of November 2, 2014, and led the investigation of the homicide. When Detective Thomas arrived on the scene, he observed blood on the trunk of an automobile parked in the carport of the house, and traced a blood trail from the house to the back of the automobile. Once inside the house, he observed a pair of white blood-stained capri pants and a calendar in a garbage can, as well as what appeared to be blood stains on the floor and kitchen counter. Soon after arriving at the scene, he received a telephone call that Ms. Williams’ body had been discovered in Mr. Tremie’s field; and further investigation at that location resulted in the recovery of, among other items, a blood-stained white sheet, a white towel with red and blue stripes, and a plastic bag. Further investigation established 17that Ms. Williams had been pulled from the trunk of the automobile and dragged through the grass into the field.

Using information derived from the investigation at the crime scene as well as the field where the body was found, Detective Thomas quickly determined the defendant to be his prime suspect in the homicide. Law enforcement personnel apprehended the defendant the next day in an abandoned trailer across town from his grandmother’s home.

Once Detective Thomas had the defendant in custody, he began an initial interview of the defendant at 1:30 p.m. on November 3, 2014. However, this interview lasted only moments because Detective Thomas very quickly concluded that the defendant appeared to be confused and under the influence of narcotics or alcohol. Given the communication barrier, Detective Thomas decided to maintain the defendant in custody in order to allow him a period of time to overcome the effects of whatever was in his system.

Two days later, Detective Thomas began a second interview with the defendant and found the defendant’s demeanor to be “much different” from the first interview. Still, although the defendant was able to respond to the questions asked of him and appeared to understand what was going on, Detective Thomas obtained little helpful information. Later that same afternoon, Detective Thomas received a call that the defendant wanted to speak with him. In this third interview, Detective Thomas found that although he was “a little emotional,” the defendant appeared to understand what was going on around him and that “he had decided |sthat he wanted to talk.” In the interview that followed, the defendant provided the detective a full statement concerning his involvement in the homicide.

The defendant told Detective Thomas that he had gone to a neighbor’s house that morning to “smoke a blunt” and the fact that he was still under the influence of the drugs when he returned home made his grandmother upset. When she continued to criticize him, he stated that he retrieved an aluminum baseball bat and hit her on the head as she sat in her recliner. He stated that he continued to hit her until she stopped moving, and he then began to try to clean up the crime scene using a dishtowel. The defendant explained that the white capri pants came off his grandmother’s body as he began dragging her to the door to deposit her in the trunk of the automobile. He simply dumped them in the garbage can and deposited a calendar over them to cover them up. Additionally, he placed a plastic bag over his grandmother’s head to prevent more blood from flowing onto the floor. After dragging her body into the field, the defendant returned to the house to clean the scene. The defendant told Detective Thomas that the aluminum baseball bat he used to kill his grandmother could be found in the closet in her room. The bat was found at that location, and all of the other physical evidence recovered at the field and Ms. Williams’ home was consistent with the defendant’s version of the offense.

With regard to the actual attack, the defendant told Detective Thomas that he blindsided his grandmother with the initial blow and that after he completed the act, he went outside and smoked a cigarette. In fact, he recalled his grandmother |9say “Chris who’s hitting me?” after he first hit her. He told the detective he did not answer his grandmother, and simply continued to hit her.

The defendant testified in his own defense and suggested that he has a severe narcotics addiction with no limit to the type of illegal narcotics he would use. He suggested that he often hallucinated and blacked out when he mixed drugs, which he did on a regular basis. His defense to his grandmother’s murder was that prior to the offense he had consumed all sorts of drugs, including POP, cocaine, and marijuana.

According to the defendant, he only wanted to sleep when he returned to his grandmother’s house but she wanted him to go to church with her. He became irritated and ingested some cocaine to calm himself as she prepared to go to church. As he tried to sleep, she kept waking him and when he left his bed at about 10:00 a.m., he found that she had decided not to go to church. He then returned to his bed and slept until his grandmother woke him again at approximately 1:00 p.m. According to the defendant, he became angry, grabbed the baseball bat, walked down the hallway into the room where his grandmother was sitting, and began striking her with the bat.

The defendant testified that when he was first taken into police custody, he lied about what happened because he did not want to go back to prison. At first, he thought everything that happened was a dream, but after spending two days in custody, he realized it had actually occurred. He then contacted Detective Thomas and confessed to killing his grandmother and dumping her body in the field. Although he claimed that he would not have killed her if he had not been so high | mon illegal drugs, he acknowledged that he had sufficient control to know that he needed to clean the crime scene after disposing of her body.

On cross-examination, the defendant could not remember how many times he struck his grandmother, but he remembered that “she held in there a long time[.]” He also recalled placing a sheet over his grandmother after he placed her body'behind the sofa; and he remembered Ms. Joseph coming to the door and pointing out the blood oh the fender of the automobile. He waited until dark to dispose of his grandmother’s body because he was trying to determine what he was going to do. He acknowledged that he had the presence of mind to put a plastic bag over his grandmother’s head to keep her from bleeding all over the house, to throw her pants in the trash, to take a calendar off the wall and throw it'in the trash can to soak up and cover up the blood, and to put towels in the trunk of the automobile to keep blood from staining the trunk. After dumping the body in the field, he even telephoned a girlfriend and discussed with her how to get away with what he had done. Finally, he acknowledged that the only evidence of his drug use on November 2, 2014, was his own self-serving testimony.

Assuming for purposes of argument that the defendant was under the influence of narcotics at the time he beat his grandmother to death, we note that the supreme court has stated the following concerning the intoxication defense in a murder prosecution:

Voluntary intoxication will not excuse a crime, but it is a defense to a specific intent offense if the circumstances demonstrate that intoxication precluded formation of the requisite intent. See La. R.S. 14:15(2); State v. Legrand, 02-1462, p. 7 (La. 12[/3/03),] 864 So.2d 89, 95-96. The defendant has the burden of proving his intoxication defense; thereafter, it falls to the state to negate that defense by showing beyond a reasonable doubt that specific intent was present despite the defendant’s alleged intoxication. See State v. Smith, 94-2588, p. 5 (La.App. 4 Cir. 3/27/96), 672 So.2d 1034, 1038, citing State v. Davis, 92-1623 (La. 5/23/94), 637 So.2d 1012, 1020. Whether voluntary intoxication in a particular case is sufficient to preclude specific intent is a question to be resolved by the trier of fact. See Davis, 92-1623 at 10, 637 So.2d at 1020.

State v. Mickelson, 12-2539, pp. 6-7 (La. 9/3/14), 149 So.3d 178, 183 (footnote omitted).

A decision from this circuit addressing similar facts is State v. Carroll, 95-859 (La.App. 3 Cir. 1/31/96), 670 So.2d 286. In that case, the defendant and two others were intoxicated at a beach when the victim, who was extremely intoxicated, asked them for a ride. They consented to give him a ride, but became increasingly angry toward him as the trip progressed. The driver pulled to the side of the road and all three men exited the truck in which they were riding, beat the victim severely, and put him back into the truck. When the victim regained consciousness and began hollering, the three men stopped the truck again and, this time only Carroll beat the victim back into unconsciousness. When the driver stopped the next time, the three men brutally beat the victim, put rocks in his shirt, and threw him off a bridge into the water below. Carroll and a co-defendant were found guilty of second degree murder. On appeal, Carroll claimed the jury erred in failing to find that his intoxication precluded him from forming specific criminal intent.

Finding that the jury did not err in rejecting the defendant’s intoxication defense, this court stated the following:

Little evidence was presented in this case on the issue of intoxication as it relates to the preclusion of specific criminal intent of this particular defendant. Much of the evidence adduced to convict Carroll was by way of the confessions of him and his co-defendant Norman Jean. Except for minor differences, mostly self-serving to the person confessing, the two confessions corroborate and substantiate each other. While both Carroll and [the co-defendant] stated in their confessions that all four men had been drinking, the amount of alcohol consumed was not clearly established, nor was the “preclusive” effect of whatever amount that was consumed by Carroll particularized as to him individually.
112In addition, that Carroll was able to recall accurately and clearly the details of a crime scenario that extended over a considerable time period does not go toward proving his point. He was mentally clear enough, and had the motor skills, to savagely beat the victim at three different places and times. Carroll also had the presence of mind to then participate, in concert with the others, in a series of actions to coverup the crime and to deflect suspicion from himself and the others: after finally beating Ar-ceneaux to death, Carroll helped in stuffing the victim’s shirt with rocks and in throwing him off the bridge and into the water below; he also disposed of the log that had been used to batter Arcen-eaux, and he helped in washing Jean’s truck to remove evidence of the victim’s blood.
This crime was deliberately committed over a long period of time in a particularly brutish manner by Carroll and his confederates. Specific criminal intent is a state of mind and need not be proven as fact, but may be inferred from the circumstances present in the case and from the action of the defendant. Carroll confessed that he remembered becoming angry at the victim, continuing to be angry at the victim, and venting that anger in a series of merciless beatings. He also confessed that during that time he had the urge to kill the victim. Essentially, Carroll now asks this court to presume his intent had been negated due to intoxication simply from the fact that he had been drinking, that the victim had a high blood alcohol content at death (thus his must have been similarly elevated), and because his crime was (allegedly) out of character. He, however, cites no legal authority on point in support of such a presumption based on those reasons, nor does he make a compelling legal argument for this court creating one.
It was the role of the jury in this case to weigh the credibility of the witnesses. This it did, to the defendant’s detriment. We refuse to second-guess the credibility determinations of the jury beyond the sufficiency of the evidence evaluations under the Jackson standard of review. Scant testimony was presented regarding the defendant’s intoxicated state as it related to the negation of his specific criminal intent. The confessions of Carroll and Jean, taken together and in tandem, leave no doubt that Carroll actively desired the prescribed criminal consequences, death or great bodily harm, to follow his actions of violence against the victim. The jury believed that Carroll had the specific intent to kill or inflict great bodily harm, and this court will not disturb that finding.

Id. at 289 (citation omitted).

Similarly, in the present case, little evidence was presented on the issue of intoxication as it relates to the preclusion of the defendant’s specific criminal intent. As in Carroll, the defendant in the present case was able to recall details of |1sa crime scenario that lasted several hours; and these details were corroborated by physical evidence. Additionally, the defendant was mentally clear enough and had the motor skills to savagely beat the victim, dispose of the victim’s body, and attempt to clean the murder scene. He asked the jury to presume his intent had been negated due to his drug use, and the jury chose to reject this presumption. See also, State v. Baumberger, 15-1056, p. 9 (La.App. 8 Cir. 6/1/16), 200 So.3d 817, 830 (holding that “specific intent can be formed in an instant”).

Although there was testimony that the defendant had a drug problem and appeared to be under the influence of something when the detectives initially attempted to interview him, the record contains no evidence that the defendant was under the influence to the extent that he could not form specific intent at the time of the offense. Additionally, there was no testimony that the defendant did not consume drugs after the offense and before - ,he spoke to detectives. The jury heard evidence of the defendant’s drug use and rejected his intoxication defense. This court will not disturb that finding. Therefore, we find no merit in this assignment of error.

Assignment of Error Number Three

In this assignment of error,' the defendant asserts that the trial court erred in denying his motion to suppress his three statements to Detective Thomas. He argues that his statements should have been suppressed because they were not freely and voluntarily given due to his highly intoxicated condition. Specifically, he asserts in brief that when he came into the custody of the state, he was under the influence of mind altering drugs “which rendered him unconscious of the consequences of his statements!!,]” and that, his condition did not change.between the first and other two interviews because he ingested more illegal drugs- while in | 14custody. Specifically, he asserts that, he would not have given any of these statements had he been sober. Furthermore, he asserts that the third interview was deeply prejudicial to him because he was forced to testify in order to explain his prior statements. He summarizes his argument in brief as follows:

For these reasons, all three statements during interrogation, made under the influence of heavy drugs, should have been suppressed by the trial court, and the court’s failure to suppress these statements was not harmless error. Without the interrogation statements and Christopher’s testimony at trial, the jury would have only been left with circumstantial evidence that Christopher’s DNA was on a bat stored inside the home in which he resided, and to which he had access, as well as Ms. Williams’ blood in her own car. This Court should now correct the trial court’s error and rule that the three statements should have been suppressed and that Christopher should be given a new trial.

On the other hand, the state argues that the defendant’s statements were given after a knowing and intelligent waiver of his rights and were not the result of any coercion. Additionally, the state notes that the defendant did not confess to killing his grandmother in either of the first two statements, and that the third statement was precipitated by the defendant’s request to speak with the detective, not by the state’s attempt to obtain a third statement. The state further asserts that there exists no evidence to establish that the defendant obtained and consumed illegal drugs while incarcerated between the first and third statements. The state summarizes its argument as follows (alteration in original):

On three separate occasions, appellant is read his Miranda rights and signs a Miranda Rights form, indicating that he was read his rights, that he understood his rights, and that he was not made any promises to get him to answer any questions or under any pressure to give up those rights. The third interview with detectives was as a result of appellant requesting to speak to them, and he voluntarily gave a recorded statement that amounted to a confession. According to the transcription of all three statements, appellant clearly indicated that he understood his rights and he was willing to answer questions posed to him. Therefore, appellant knowingly and intelligently waived his rights three separate times. It was not until the third statement, which occurred two days after appellant was arrested, that he confessed to murdering his grandmother; and only after he | ^requested to speak to detectives. It is clear from the records of the suppression hearing and the trial that appellant knowingly and intelligently waived his rights [emphasis added].

The trial court heard and rejected the motion to suppress before the beginning of the jury trial resulting in the defendant’s conviction. In addressing the merits of this assignment of error, we first note that the statements themselves were not introduced at the suppression hearing or at trial — although a transcript of each statement is included in the appellate record. Still, even without referring to the transcripts, the record is sufficient to review the assigned error as the substance of the statements was discussed in testimony presented at the suppression hearing; and the substance of the third statement in particular was discussed in detail at trial by both Detective Thomas and the defendant.

Detective Thomas testified at the suppression hearing concerning the defendant’s signing of his warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as well as the defendant’s understanding of those warnings and the consequences of any statement. He testified that he explained the Miranda rights to the defendant and caused him to execute a waiver of rights in each of the three interviews.

The record establishes that the first interview was quickly terminated because of the defendant’s apparent intoxicated condition and nothing was gained by the state in that interview. In fact, during that interview, the defendant informed Detective Thomas that he had consumed drugs and alcohol approximately two hours before the interview was attempted.

11fiThe second interview was initiated two days later and terminated because of the defendant’s evasive answers. Between the first and second interview, the defendant remained in custody at the Evangeline Parish jail. The second interview resulted in no information helpful to the state, and the defendant was returned to jail. Later that same day, he initiated the third interview.

In the third interview, the defendant confessed to killing his grandmother and provided the details of the offense which have been previously set forth in this opinion. Although the defendant described his drug addiction in detail during this interview, Detective Thomas did not subject the defendant to drug testing prior to his second and third statements. He chose not to do so because of the defendant’s change in demeanor and his lack of access to illegal drugs while in jail. He did not believe that the defendant’s condition at the time of the second and third interviews had any effect on his ability to understand the questions asked of him or to respond appropriately to those questions.

The defendant’s testimony at the suppression hearing was basically that he had a lack of understanding of the proceedings or of the consequence of his participation. He testified that immediately before being apprehended he had ingested a significant amount of cocaine and smoked a few “wet cigarettes,” and the first statement was taken within two hours of that activity. He suggested that in the first statement he “just went on ahead and agreed with whatever was going on.” Although the defendant stated that he voluntarily gave the statement, he also suggested that he ignored the information concerning his right to a lawyer because |17he did not know how to contact a lawyer and that he thought he had no choice but to give the statement because he “was so scared.”

On cross-examination, the defendant admitted that he contacted Detective Thomas to “tell them the story,” and that when he signed the three separate waiver of rights documents he understood his Miranda rights and knew what Detective Thomas was asking of him. He also acknowledged that he was not forced to give the statements, and that he was not promised anything for cooperating.

With regard to the general standard for reviewing a trial court’s ruling on a motion to suppress, the supreme court, in State v. Blank, 04-204 (La. 4/11/07), 955 So.2d 90, 103, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007), stated that:

A trial court’s finding as to the free and voluntary nature of a statement carries great weight and will not be disturbed unless not supported by the evidence. State v. Benoit, 440 So.2d 129, 131 (La. 1983); State v. English, 582 So.2d 1358, 1364 (La.App. 2nd Cir. 1991), writ denied, 584 So.2d 1172 (La.1991). Credibility determinations lie within the sound discretion of the trial court and its rulings will not be disturbed unless clearly contrary to the evidence.

More particularly, the supreme court stated the following in State v. Thornton, 12-95, pp. 1-4 (La. 3/30/12), 83 So.3d 1024, 1025-26 (alteration in original), with regard to the ever changing requirements of review:

Although in the past this Court rejected the view in other jurisdictions that “a confession may be involuntary in the due process sense only where the declarant has been subjected to police custody, external pressure or coercion,” State v. Glover, 343 So.2d 118, 128 (La. 1976) (on reh’g) (statements made by defendant to his former common-law wife wired for sound by the police rendered involuntary as a result of defendant’s florid undifferentiated schizophrenia), our current jurisprudence subscribes as a matter of state law to the rule of Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986), that “coercive police activity is a necessary predicate to the finding that a confession is not ‘vol-untar/ within the meaning of the Due Process Clause of the Fourteenth | ^Amendment.” ... (“[A]n essential prerequisite for suppressing a statement on voluntariness grounds is misconduct or overreaching by the police.”)
Connelly has therefore also modified our former jurisprudential rule that intoxication may negate the voluntariness of a statement if it is of such a degree that it renders the defendant “unconscious of the consequences of what he is saying.” State v. Simmons, 443 So.2d 512, 516 (La.1983). After Connelly, diminished mental capacity, which may re-suit from intoxication, remains relevant to the voluntariness of a statement only to the extent that it “made mental or physical coercion by the police more effective.” United States v. Chrismon, 965 F.2d 1465, 1469 (7th Cir.1992), see also United States v. Gaddy, 532 F.3d 783, 788 (8th Cir.2008) (test is “whether these mental impairments caused the defendant’s will to be overborne”) ....
Thus, for due process purposes, defendant’s statements were not involuntary, i.e., they were not the products of a will overborne by police coercion. Nor, in purely statutory terms, were they the product of “fear, duress, intimidation, menaces, threats, inducements or promises.” La. R.S. 15:451. While intoxication remains relevant to the question of whether a Miranda waiver is not only voluntary but also knowing and intelligent, ... in the present case, we need not resolve the question of whether defendant, who appeared to the officers to understand the explanation of her Miranda rights, made a valid waiver when she continued to respond to questioning in a coherent and rational manner although she also appeared heavily “narcotized.”

At the suppression hearing, the trial court reached the conclusion that the defendant’s statements were freely and voluntarily given based primarily on Detective Thomas’ testimony, and it is well-settled that “[t]he testimony of the interviewing police officer alone may be sufficient to prove the defendant’s statement was given freely and voluntarily.” State v. Harrington, 12-886, p. 4 (La.App. 3 Cir. 2/13/13), 129 So.3d 38, 40-41 (quoting State v. Roshell, 40,374 (La.App. 2 Cir. 12/14/05), 916 So.2d 1268, writ denied, 06-771 (La. 10/6/06), 938 So.2d 69).

Considering the evidence submitted at the hearing on the motion to suppress the defendant’s three statements, we find no error in the trial court’s determination 113that the statements were voluntary and should not be suppressed. That being the case, we find no merit in this assignment of error.

DISPOSITION

For the foregoing reasons, we affirm the conviction of Christopher Goodley, a/k/a Christopher Bryant Goodley, in all respects.

AFFIRMED.

      . The defendant’s last name is spelled "Goodly” in the grand jury indictment. However, throughout most of the transcript and briefs his name is spelled "Goodley.” We will use the latter spelling in this opinion.

      .This information included statements from Mr. Tremie, from Mary Joseph (Ms. Williams’ neighbor), from Laura Stevens (Ms. Williams’ sister), and from Kimble Tezeno (Ms. Williams' mece). When the three women were unable to contact Ms. Williams by telephone, they went to her home after the homicide (with Ms. Joseph arriving first and the other two women joining her for a second observation), saw the bloody aftereffects of the offense, and contacted law enforcement officials.

      . In all three interview attempts, Detective Thomas provided the defendant with notice of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the defendant executed a written waiver of those rights.

      . The defendant estimated that he struck her for approximately forty minutes.

      .He suggested that his habit included marijuana, cocaine, crystal meth, PCP, and "possibly anything under the moon.” His problem with illegal drugs was confirmed by the testimony of Chantel Estes, his probation and parole officer.

      . The defendant had previously been convicted of simple burglary and sentenced to prison.

      . The girlfriend was not identified by the defendant in his testimony.

      . This case is cited at 200 So.3d 817.

      . It is clear from a reading of the ruling on this issue that the trial court reviewed the actual transcripts in rejecting the motion,

      . The state introduced all three waiver of rights forms executed by the defendant in the suppression hearing.

      .Detective Thomas acknowledged that, on occasion, contraband in the form of illegal narcotics was brought into the local jail, but he asserted that the defendant did not have access to such contraband because he had been isolated from the general jail population.

      ; "Wet cigarettes” are described in the record as marijuana cigarettes dipped into formaldehyde or laced with PCP. According to Detective Thomas, smoking such cigarettes could result in severe side effects, depending on the individual's tolerance.

      . On redirect, the defendant testified that before the third statement, he asked Detective Thomas if he would contact his family to get him some clothes; and that after the statement was completed, Detective Thomas followed through with that promise.