author: DREW J.

text:
    Barbara WISE, et vir, Plaintiff-Appellee v. Anil NANDA, M.D., Defendant-Appellant Barbara S. Wise, et al., Plaintiff-Appellee v. Louisiana State University Health Sciences Center, et al., Defendant-Appellant
    No. 50,944-CA, No. 50,945-CA
    Court of Appeal of Louisiana, Second Circuit.
    December 28, 2016

      CLAUDE W. BOOKTER, JR., Special Assistant Attorney General and BRIAN D. LANDRY, Special Assistant Attorney General, Counsel for Appellant
    SUSAN E. HAMM, Counsel for Appel-lee
    Before BROWN, DREW and MOORE, JJ.
   DREW J.

hln this medical malpractice lawsuit, Louisiana State University Health Sciences Center in Shreveport appeals a judgment awarding $1,455,740 for future medical care and related benefits from the date of injury to the date of the verdict, and awarding $517,000 in economic damages.

We reduce the amount awarded for future medical care and related benefits. In all other respects, the judgment is AFFIRMED.

FACTS

After Barbara Wise had been complaining of right shoulder weakness, she was seen by Dr. Anil Nanda, a neurosurgeon who agreed to perform a decompressive cervical laminectomy.

Dr. Nanda first attempted to operate on Barbara on July 6, 2007, but her positioning made it too difficult to continue. A second surgery was attempted on July 9, with Barbara now in a sitting position. During the course of the surgery, Dr. Nanda made a small tear in the dura at level C5-6. The dura is a membrane that covers the spinal cord and the cerebral spinal fluid. Dr. Nanda tried to repair the tear with glue.

Following the surgery, Barbara experienced neurological weakness in her upper and lower extremities. Barbara and her husband, Nathan, were concerned about Barbara’s condition, but Dr. Nanda reassured them that her condition was not unusual and she would soon be back to normal.

On July 23, Barbara was discharged to Promise Specialty Hospital, which treats patients with weak extremities. Dr. Nanda ordered an MRI to be done on August 6. That MRI showed an extensive collection of fluid that was putting pressure on her spinal cord.

| ¡¿Barbara was transferred to Willis— Knighton Hospital on August 7, and two days later, Dr. Nanda performed surgery there to repair the dura tear. Barbara was left with quadriparesis, which is weakness in all four extremities. Barbara returned to Promise on August 31 for continued medical management.

Barbara was admitted to Willis-Knigh-ton on November 7, 2007, for aggressive rehabilitation, and discharged on November 27.

After being home for a few weeks, Barbara took ill on December 15 and was taken to Springhill Medical Center, where she was diagnosed as having blood clots in her legs. She was discharged toward the end of December. Barbara was then admitted to Promise for continued comprehensive medical management and rehabilitation. She was discharged on January 18, 2008.

Lawsuit

The Wises filed separate medical malpractice claims against Dr. Nanda and LSU. The lawsuits were later consolidated. The Medical Review Panel found no violation of the standard of care by Dr. Nanda or LSU.

The matter proceeded to trial by jury in August of 2014. On August 13, the jury found LSU was negligent in the treatment of Barbara and that this negligence was a substantial factor in contributing to the damage she sustained. The jury awarded the following damages: (1) $1,455,740.00 for future medical care and related benefits from the date of injury to the date of the verdict; (2) $1,054,776.00 for future medical expenses and related benefits from the date of the verdict forward; (3) $517,00 for economic loss; and (4) $250,000 for Barbara’s pain and suffering. Those awards were to be |ssubject to the following allocations of fault: LSU-65%, Barbara-10%, and third party-25%.

LSU has appealed, contesting only the award for future medical care and related benefits between the date of injury and the date of the verdict, and the award for economic loss.

DISCUSSION

Regarding the appellate review of an award of general damages, our supreme court has stated:

It is well-settled that vast discretion is accorded to the trier of fact in fixing general damage awards. La. Civ. Code art. 2324.1; Duncan v. Kansas City Southern Railway Co., 00-0066 (La. 10/30/00), 773 So.2d 670. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn, 623 So.2d at 1260.
The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Cone v. National Emergency Serv. Inc., 99-0934 (La. 10/29/99), 747 So.2d 1085, 1089; Reck v. Stevens, 373 So.2d 498 (La. 1979). Only after a determination that the trier of fact has abused its “much discretion” is a resort to prior awards appropriate, and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La. 1976).

Purvis v. Grant Parish School Bd., 2013-1424, pp. 6-7 (La. 2/14/14), 144 So.3d 922, 927-8.

Regarding the appellate review of an award for special damages, our supreme court has stated:

Special damages are those which have a “ready market value,” such that the amount of the damages theoretically may be determined with relative certainty, including medical expenses 14and lost wages. McGee v. A C and S, Inc., 05-1036 (La. 7/10/06), 933 So.2d 770. In reviewing a jury’s factual conclusions with regard to special damages, an appellate court must satisfy a two-step process based on the record as a whole: There must be no reasonable factual basis for the trial court’s conclusions, and the finding must be clearly wrong. Guillory v. Ins. Co. of North America, 96-1084 (La. 4/8/97), 692 So.2d 1029.

Kaiser v. Hardin, 2006-2092, pp.11-12 (La. 4/11/07), 953 So.2d 802, 810.

I. Damages for future medical care and related benefits

LSU argues the jury committed manifest error in awarding the amount of $1,455,740 for future medical care and related benefits from the date of injury to the date of the verdict.

La. R.S. 40:1237.1, formerly cited as La. R.S. 40:1299.39, provides:

(2) “Future medical care and related benefits” for the purposes of this Section, means all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services, including drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services, to which the injured patient is entitled under the provisions of this Section and which each injured patient needs after the date of the injury. “Future medical care and related benefits” as used in this Section shall not be construed to mean nonessential specialty items, or devices of convenience.

“Future medical care and related benefits” encompasses all past, present, and future medical and related care services necessitated by a qualified health care provider’s negligence, not just what is usually thought of as “future” medical needs. Kelty v. Brumfield, 93-1142 (La. 2/25/94), 633 So.2d 1210.

The fact that medical attention and nursing services have been tendered gratuitously will not preclude the injured party from recovering the value of such services. Edwards v. St. Francis Med. Ctr., 623 So.2d 1387 (La. App. 2d Cir. 1993); Tanner v. Fireman’s Fund Ins. Cos., 589 So.2d 507 (La. App. 1st Cir. 1991), writ denied, 590 So.2d 1207 (La. 1992). However, a claim for nursing care rendered gratuitously by nonprofessional family members must be viewed with close scrutiny. The need for services must be shown, the reasonableness of the fee must be established, and the extent and duration of the services must be proven. Edwards, supra; Tanner, supra.

LSU contends there was insufficient evidence of the need for nonprofessional family custodial care, and no evidence to establish a reasonable rate or the extent or duration of such care. LSU concedes that $464,096.88 in past medical expenses were incurred, and argues that the award for future medical care and related benefits up to the date of the verdict should have been limited to that amount.

Need for services

According to Nathan, a lift was used to get Barbara in and out of the bed at Willis-Knighton, as shown by a photo from August 20, 2007. A photo taken the next month at Promise showed Barbara sitting upright on a bed, but Nathan recalled that she still needed help getting in and out of it.

According to Nathan, when Barbara returned home on November 27 by ambulance, all she could do was stay in her bed. She could not get herself into the wheelchair.

When Barbara returned to Promise following the blood clots, she underwent occupational and physical therapy. There, she was able to walk up to 150 feet with stops to rest, someone standing on each side of her, and a third person following her with a wheelchair in case she fell.

The discharge summary from Promise in January stated that Barbara had pro-grossed well in therapy. Her occupational therapy discharge summary reflected that she needed moderate assistance with feeding andlfiinaximum assistance with grooming, upper and lower extremity dress, bathing, and toileting. Her physical therar py discharge summary stated she was independent with wheelchair mobility, needed minimal to moderate assistance with bed mobility, supervision with transfers with proper setup, and supervision and minimal assistance with ambulation. The physical therapy summary further stated that her sitting balance was good to fair and her standing balance was fair.

Nathan testified that he was determined to get Barbara walking again since they were told she would never walk and would have to go to a nursing home. After workers at Promise showed him how to help her, he turned their living room into a gym with ropes and pulleys, weights, and a slide bar fastened to her piano.

Roger Malone, who has known the Wises for about 15 years and sees them almost every day, testified that Barbara walks slowly because she drags or scoots her feet when using her walker. She would sometimes hold onto furniture to steady herself, so Nathan arranged the furniture to allow her to walk from one piece to the next.

Nathan constructed a ramp at their house to make it easier for Barbara to enter and leave. However, he removed the ramp when she expressed fear that she would slip on it. He also lowered each step because she was having trouble handling them. She can ascend and descend the stairs by turning sideways and holding onto the rail with both hands.

Dr. Marco Ramos, a neurosurgeon who examined Barbara on July 16, 2012, noted that her ambulation was very labored and difficult. She needed help getting out of her wheelchair. His diagnosis was incomplete quadriparesis.

17Yolanda Palmer, a former student, saw Barbara pushing a buggy at the grocery store and knew something was wrong with her because Barbara was holding onto the buggy the entire time and was moving slowly. Palmer later saw Barbara at Wal-Mart, possibly in early 2013. Although Barbara appeared to be walking somewhat better, she was still holding onto the buggy and still appeared to have mobility issues.

Karen Luckett, who prepared the life care plan and testified as an expert in life care planning and occupational therapy, found Barbara’s ambulation and standing balance to be impaired. She noted that Barbara needs the walker, and that she walks very slowly with it.

Dr. David Law, Barbara’s treating physician, considered Barbara to be a fall risk because her gait is somewhat weak and unstable, she needs a walker to balance and to walk well, and she has a history of falls. Dr. Law did not think she could get herself up after a fall because of the weakness in her extremities. That weakness also made it difficult for her to get in a protective position as she fell. Luckett thought she had a very high fall risk. Barbara has fallen at night while Nathan was sleeping; outside help often had to be summoned to get her upright again.

Barbara sleeps in a hospital bed placed next to Nathan’s bed. Nathan has to assist her in getting in and out of the bed. Luck-ett noted that Barbara needs a lot of help from Nathan to get her legs into bed. She can move her legs off the bed and let gravity pull them down, but she still needs Nathan to help lift her up from a lying position. She can get up from bed and from a chair if she is put into a sitting position.

When Barbara first returned home from the hospital, she frequently could not control her bowels. Nathan had to clean the floor many times ^because vomiting and diarrhea would follow her spasms and he could not get her from the bed to the bathroom in time. She now wears adult diapers.

Barbara’s deficits were not limited to her lower extremities. Barbara explained that her right hand works pretty well, but her right arm is limited. She can use her left thumb and first two fingers to pick up a few things, and she can lift her left arm if she goes sideways. Luckett found her left hand to be very spastic.

Barbara testified that at first her left hand was closed up like a fist, but Nathan was determined to open it, so he put a pencil in her hand and she carried the pencil or slept with it. He replaced the pencil with subsequently larger items until her left hand could open up somewhat. Also, in order to improve Barbara’s use of her hands and fingers, Nathan would have her search for coins in a bowl of rice or beans. There was another bowl of paper clips, screws, nuts and bolts that she had to separate while blindfolded.

Her impaired left hand affects her daily living activities. She needs help to get completely dressed. Nathan has to help pull up her panties and pants. She cannot get clothes over her head, so Nathan does that for her. She also needs someone to put her shoes and socks on for her.

Barbara needs assistance with going to the bathroom. Nathan has to clean her when she is finished, and pull her pants up for her. Nathan has installed bars next to the toilet help her to rise, but she still needs help getting up. When she uses a public restroom, someone has to accompany her.

Barbara can comb only the front of her hair. Luckett noted that she also needs help with bathing because she cannot get her legs into the tub and has to be careful reaching forward to turn the knobs because of her balance 19issues. Barbara added that she cannot scrub her own back or reach down to scrub her feet.

Barbara can make a sandwich and peel vegetables, but she cannot really function in the kitchen by herself. She can lean against the sink with her stomach to steady herself while standing at it. She can push down on food with a butcher knife, but to prevent cutting herself, she does not otherwise cut food with a knife while preparing it. She has burned herself when trying to take cookies from the oven, when she fell against the oven door. Roger Malone described that Nathan would set a pan out for her, she could add the ingredients, and he would put it in the oven. She is unable to lift a large pot.

Barbara can fold dish towels and bath towels. She can collect the laundry by picking up the dirty clothes with a stick and then placing them on a rolling chair. She can put those clothes in the washing machine along with detergent and turn the machine on, but Nathan has to remove them from the washer and put them in the dryer for her.

Barbara has resumed doing some calligraphy and painting, but she is limited to little postcards instead of big canvases. The painting materials also have to be brought to her.

Once Barbara regained some strength, she decided she wanted to drive again. It took her six to eight months to learn how to turn the steering wheel. Although she was able to start driving again, Dr. Law remarked that driving a ear, and getting in and out of it, are two different things. She needs assistance getting herself and her walker or wheelchair in and out of the car. Her troubles entering and exiting the vehicle come from having limited ability to pivot her legs. Barbara considered it a chore to get in her vehicle. ImShe described how she can pretty much get her feet into the vehicle by lying on the center armrest, and then holding onto the steering wheel to pull herself upright. Nathan replaced her vehicle with a Jeep Cherokee, which was easier for her to get in and out of. She sometimes uses a golf cart to move around outside, and Nathan -will ride in it with her and hold her.

Barbara and Nathan opened a barbeque restaurant for about six months in 2010. She worked there about three days a week, and when she worked depended on how she felt. Her duties were to sit at the order window, take the orders, and collect the cash. The restaurant closed after the landowner sold the property. When she worked at the restaurant, employees would help her to the car, and then she would drive herself home where Nathan would be waiting.

Linda Morgan, Barbara’s sister, testified about Barbara’s limits when she stayed with her within a year of trial. She sometimes Jiad to assist Barbara to the bathroom, but Barbara could often hold onto furniture while walking down the hall to the bathroom. Barbara usually woke her up when she had to go to the bathroom. Linda helped Barbara get dressed, fix her hair, take a bath, and clean up after using the bathroom. Linda noted that when something is handed to Barbara, it must be placed firmly in her hand; when she hands you something, you have to pull it from her hand because she cannot let go of the item.

Dr. Law testified that he thought Barbara has a long-term need for occupational therapy and physical therapy. Luckett testified that Barbara has reduced stamina and needs moderate to maximum assistance for regular everyday self-care. The jury was shown a short video of Barbara at home that was prepared by Luckett as part of her assessment.

Inin determining how much care Barbara would need going forward, Dr. Law thought 4-6 hours per day of assistance was sufficient. He testified that her independent personality—not wanting someone around all the time—was a factor in coming up with that number. He agreed that she really did not need to be left alone. He would defer to Luckett on the number of hours of home assistance needed.

Luckett did not think that Barbara could be left alone for more than a few minutes because of the level of assistance she required. She believed that Dr. Law’s assessment was based on an assumption that her husband would be there for the rest of the time. She thought Dr. Law’s 4-6 hours of daily assistance meant a person being there in addition to Nathan being there the rest of the time.

We disagree with LSU. There was abundant evidence showing Barbara’s need for nonprofessional family custodial care from the date of injury until the date of the verdict.

Reasonableness of the fee

LSU contends that the jury calculated the award for care by using the $18 per hour figure suggested by Luckett. Luckett obtained that figure after calling two agencies in Springhill. One charged $15 per hour, and the other charged $22 per hour. She averaged those estimates to reach $18.

It was unreasonable for the jury to use that figure. Luckett said that in her training as a life care planner, she was taught not to rely on private sitters because they come and go too easily and it is difficult to replace them at a moment’s notice. She found it was better to rely on a company who can ensure someone will be there.

112Luckett also testified that as a life care planner she takes the family out of the picture. She cannot rely on Nathan to be there, but she still valued his time as a caregiver the same as she valued the time of a person assigned by a service.

While those considerations may have been valid when calculating the cost of future care going forward from the date of the verdict, the jury was also tasked with assigning a value to the care largely provided by Nathan, who was a nonprofessional and who was not employed by an agency, from the date of injury to the verdict date. In light of this, we believe $8 per hour would have been the highest reasonable rate to use for the period at issue.

Duration and extent of the care

Although there were times when Barbara was alone during the relevant period, the record shows that was generally not the case.

Linda Morgan testified that she spent about every third night at LSU so Nathan could go home to take care of business and rest. Barbara felt like she was a burden on Nathan when at Promise since he was there day and night.

Dr. Law noted when he saw Barbara on December 6, 2007, she was getting professional home health care from a Springhill agency.

An invoice from Professional Home Health Services of Springhill for services in 2008 reflects that Barbara received four physical therapy visits from January 30 to February 6, three occupational therapy visits between January 29 and February 5, skilled nursing visits on January 31 and February 6, and four home health aide visits between January 30 and February 6.

Nathan was very involved in his wife’s care. He not only met her daily needs, but he also made modifications to the interior and exterior of 11stheir house to make Barbara’s life easier. For example, Nathan lowered part of the kitchen counter so she could prepare food while sitting down, and he also lowered the cabinets so she could reach the first shelf.

Margie Clements, Nathan’s sister, testified that Barbara could not do anything when she was first discharged home. Nathan had to spoon-feed Barbara and clean her after she used the bathroom. He could not leave her alone at the time.

Barbara acknowledged that she would not have developed the strength to walk again without Nathan’s help. Dr. Law testified that Nathan has been very supportive of Barbara, and she made great strides because of his help and her determination. Even Linda Morgan, who was called to testify by LSU, stated that Nathan took good care of her sister and stood by Barbara through all of her therapy and hospitalizations.

Nathan’s morning routine is to awake Barbara and take her straight to the bathroom, clean her up, give her a bath, dress her, and then bring her to the kitchen for breakfast.

Barbara testified that Nathan would usually accompany her when she went shopping, although Palmer thought Barbara was alone the time she saw her at the grocery.

Nathan testified that he would usually hire someone during the day to stay with Barbara if he had to go out or was occupied with the farm. When he worked driving a truck, he would usually leave someone with her. Barbara said she would sometimes stay by herself at those times, but her brother lived next door and could help.

Luckett recalled hearing that a housekeeper went to Barbara’s house once a week for the last five to six years. In addition, a woman would sometimes spend Tuesday nights with Barbara so Nathan could attend a prayer breakfast the next morning.

Friends, family, and even a couple of volunteers would sometimes stay with Barbara. Roger Malone testified that he would miss work if they needed his help.

Linda welcomed her sister into her Plain Dealing home and cared for her for two months in 2013 when Barbara and Nathan separated because of stress. Following Nathan’s back surgery, he asked her to return home to lend emotional support. She returned home before Thanksgiving. A lady then lived with them for a short time.

LSU made the following argument in its appellate brief regarding this issue:

The jury awarded $1,455,740.00 for future medical care and related benefits from the time of injury until the time of trial/jury verdict. If the total past medical expenses [464,096.88] are removed from this total award, there remains $991,643.12. While “past custodial services/expenses” were argued to the jury, there is no other way to explain the amount of the award in this particular item of damage. If the $18 figure for professional services to be rendered to Mrs. Wise in the future is used, the calculation for the six (6) year period between the date of injury and the time of trial/jury verdict gives a figure of approximately $950,000.00. This is within approximately $40,000.00 of the remaining amount of the award for future medical care and related benefits from the time of injury until the jury verdict if the actual past medical expenses are removed. While no one knows exactly what the jury did to arrive at this figure, this is the most logical way to approximate the figure awarded by the jury.

Using LSU’s assumption of an $18 rate, the jury would have awarded that rate for less than 24 hours per day. LSU mistakenly stated there were six years between the date of injury and the date of the verdict. In fact, there were over seven years or 2,592 days between the July 9, 2007, injury and the August 13, 2014, verdict. That works out to an average of 21.26 hours of lificustodial care per day that was provided. We cannot conclude that a finding of that extent or duration of care was unsupported by the record.

Accordingly, using the aforementioned $8 per hour, we amend the award for future medical care and related benefits from the date of injury to the date of the verdict to reduce it to $904,944.24, representing $440,847.36 for the custodial care plus $464,096.88 for past medical expenses.

II. Economic loss

LSU contends that the jury was manifestly erroneous in awarding economic damages of $517,000 when the evidence justified only an award of $46,378, representing one year of economic loss. LSU points out that Barbara, who was born on October 13,1942, and nearly 65 at the time of injury, was already a retired teacher. Referring to section 515" of Title 28, Part CXV of the Louisiana Administrative Code, “Teachers’ Retirement System Part-Time, Seasonal, or Temporary Classroom Teacher,” LSU argues that as a rehired retiree, Barbara could only be employed in areas where there was a certified shortage of qualified teachers.

This section states, in relevant parts:

C. Rehired Retirees
1. Any retired member of TRSL, other than a retired teacher as defined in R.S. 11:710, who returns to active service covered by TRSL, shall have retirement benefits suspended for the duration of reemployment.
2. In order for a person who qualifies as a retired teacher because he teaches in a shortage area to receive benefits during the period of her or his reemployment, the superintendent and the personnel director of the employing school must certify to BESE and the TRSL board of trustees that a shortage of teachers exists in the area in which the retired teacher was hired to teach. For speech therapists, speech pathologists, and audiologists in a shortage area, the employer is required to certify that a shortage of such persons exists.

luiEven if it is assumed that Barbara wanted to be considered a retired teacher so that she would continue to receive her retirement benefits, it must be considered that besides teaching home economics for 42 years, she was also certified in social studies and could teach English and science because she had 30-plus hours in those subjects. This greatly expanded her potential teaching opportunities. In addition, as shown by her teaching stint in Arkansas, Barbara may not have limited herself to Homer High School or the Claiborne Parish District for teaching opportunities.

After retiring in 2005, Barbara wanted to teach again because she missed interacting with the children. She had planned to teach in the fall of 2007 and had obtained a position. She wanted Dr. Nanda to perform the surgery as soon as possible so she would be ready in August for the school year. Margie Clements, who was a teacher and a principal in Natchitoches, testified that they talked about teaching all the time, and Barbara was looking forward to going back to the classroom.

Barbara had been teaching at Homer High School, and she recalled that the principal there, D.B. Mitchell, said that she could have a job there any time that she wanted one. Mitchell wrote to her on July 27, 2007, that the position would still be hers until she was able to return or notified him that she could not return.

Barbara said she wanted to work until she was 75, and she would play it by ear as long as her health was good. She did not pick that age out of the air, but thought she would like to teach until 75 because that would cover the payments for the house they were going to build. She would have considered teaching past the age of 75 if she felt like it.

_JjjAfter reviewing the record, we cannot conclude that the jury was manifestly erroneous in awarding $517,000 in lost wages.

CONCLUSION

We amend the award for future medical care and related benefits from the date of injury to the date of the verdict to reduce it to $904,944.24. In all other respects, the judgment is affirmed. Each party is to bear its own costs.

JUDGMENT AMENDED, AND AS AMENDED, AFFIRMED.

      . The appellate court costs in the amount of $649.00 are to be paid by appellant in accordance with La. R.S. 13:5112.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Veronica Denice JACKSON, Appellant
    No. 51,011-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017.

      RICHARD J. GALLOT, JR., Counsel for Appellant
    JOHN F. BELTON, District Attorney, Counsel for Appellee
    TRACY W. HOUCK, LEWIS A. JONES, Assistant District Attorneys
    Before WILLIAMS, MOORE and STONE, JJ.
   WILLIAMS, J.

hThe defendant, Veronica Jackson, was indicted on the charge of second degree murder, a violation of LSA-R.S. 14.30.1. Pursuant to a plea agreement, the defendant pled guilty to the responsive verdict of manslaughter, LSA-R.S. 14:31, with a sentence of at least 20 years and the possibility of the statutory maximum sentence of 40 years. The district court sentenced defendant to serve the maximum 40 years’ imprisonment at hard labor. The defendant appeals the sentence imposed as excessive. For the following reasons, we affirm.

FACTS

In November 2014, the victim, Grover Brown, was found dead on the floor of his home with two gunshot wounds to the head. In the investigation, defendant became a suspect. She was arrested and charged with second degree murder. After defendant entered a plea of not guilty and not guilty by reason of insanity, the district court ordered a sanity commission. Based on the reports of doctors, the court found that defendant had the mental capacity to assist in her defense.

Pursuant to a plea bargain, defendant pled guilty to manslaughter with a minimum sentence of 20 years and the possibility of the statutory maximum sentence of 40 years. In accepting the guilty plea, the district court expressly stated that defendant was not waiving her right to seek appellate review of her sentence. After a sentencing hearing, the district court sentenced defendant to serve 40 years’ imprisonment at hard labor. The defendant’s motion to reconsider sentence was denied and this appeal followed.

^DISCUSSION

The defendant contends the district court erred in imposing an excessive sentence. Defendant argues that a less harsh sentence is warranted because she has no prior criminal record, she admitted her guilt and she showed remorse for committing the crime.

A defendant cannot appeal or seek review of a sentence imposed in conformity "With a plea agreement which was set forth in the record at the time of the plea. LSA-C.Cr.P. art. 881.2(A)(2). This provision applies to both agreed-upon sentences and sentencing ceilings, ranges and caps. State v. Young, 96-0195 (La. 10/15/96), 680 So.2d 1171; State v. Brown, 50,138 (La.App. 2 Cir. 9/30/15), 181 So.3d 170; State v. Burford, 39,801 (La.App. 2 Cir. 6/29/05), 907 So.2d 873. This Court has allowed review of a defendant’s sentence, even though there was an agreed-upon sentence, sen-fencing range, or sentencing cap, when the trial court mentions the right to appeal the sentence during the plea colloquy. State v. Brown, supra. Otherwise, the issue of whether the advisement of the right to appeal had any effect on the voluntariness of the plea might arise. Id.

Review of the guilty plea colloquy in this case shows that defendant waived her right to appeal her conviction, but did not waive her right to appeal her sentence. Thus, we shall review the sentence imposed for excessiveness.

In reviewing a claim of excessive sentence, the appellate court first considers whether the record shows the trial court took cognizance of the sentencing guidelines in LSA-C.Cr.P. art. 894.1. State v. Taylor, 49,467 (La.App. 2 Cir. 1/14/15), 161 So.3d 963. The trial court is not required to|s list every aggravating or mitigating circumstance so long as the record reflects adequate consideration of those guidelines. Id.

The reviewing court next determines whether the sentence is constitutionally excessive by considering whether the sentence is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. La. Const. Art. I, § 20; State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Lindsey, 50,324 (La.App. 2 Cir. 2/24/16), 189 So.3d 1104. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. Id.

The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams, 2003-3514 (La. 12/13/04), 893 So.2d 7; State v. Washington, 50,337 (La.App. 2 Cir. 1/13/16), 185 So.3d 852. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Jackson, 48,534 (La.App. 2 Cir. 1/15/14), 130 So.3d 993.

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence for the pled offense. State v. Sanders, 49,241 (La.App. 2 Cir. 10/22/14), 151 So.3d 160, writ denied, 2014-2536 (La. 1/16/15), 157 So.3d 1133. The defendant was originally indicted on the charge of second degree murder, which carries a mandatory penalty of life imprisonment at hard labor. LSA-R.S. 14:30.1. ^Manslaughter is punishable by imprisonment at hard labor for not more than 40 years. LSA-R.S. 14:31.

Prior to imposing sentence, the district court reviewed a presentence investigation report and letters submitted on defendant’s behalf. At the sentencing hearing, the court heard the statements of the victim’s family and recalled the facts and circumstances of the case. The court noted that defendant had stated to a witness that she was just going to scare the victim with the gun and then she shot him twice in the head inside his home. The trial court found there was no evidence that defendant had acted under strong provocation and it appeared that her actions were senseless and unprovoked.

In considering the guidelines of Article 894.1, the court determined that there was an undue risk the defendant would commit another crime if not incarcerated, that defendant was in need of correctional treatment in a custodial environment and that a lesser sentence would deprecate the seriousness of her crime. As aggravating factors, the court found that defendant’s crime caused a significant and permanent loss to the victim and the victim’s family, defendant’s actions manifested deliberate cruelty to the victim because she was aware of his vulnerability due to his age, ill health, and disability, defendant used actual violence in committing the crime with a dangerous weapon, and she traveled to the victim’s home late at night knowing there would not be other witnesses around. In addition, the trial court observed that by accepting the plea agreement, defendant had obtained a significant benefit by reducing her potential sentencing exposure.

The record demonstrates that the district court fully complied with Article 894.1 in considering the appropriate sentencing factors and | ^articulating the reasons for sentencing. Based upon the circumstances of this case, in which defendant went to the victim’s house armed with a gun and shot him twice in the head, the district court did not abuse its discretion in imposing the maximum sentence for the offense of conviction. Thus, we cannot say the 40-year sentence imposed is constitutionally excessive. The assignment of error lacks merit.

CONCLUSION

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

AFFIRMED.


author: WILLIAMS, J. DREW, J.,

text:
    Michael Stuart VARNELL, Plaintiff-Appellant v. Cynthia Denise Thomas VARNELL, Defendant-Appellee
    No. 51,147-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017

      PETER D. CAROLLO, Counsel for Appellant
    DOUGLAS L. STOKES, JR., Counsel for Appellee
    Before WILLIAMS, DREW and PITMAN, JJ.
   WILLIAMS, J.

LThe plaintiff, Michael Stuart Varnell, appeals a trial court’s award of $475 per month in permanent periodic spousal support to his former spouse, Cynthia Denise Thomas Varnell. For the following reasons, we reverse the trial court’s judgment and remand this matter for further proceedings.

FACTS

Michael Stuart Varnell (“Michael”) and Cynthia Denise Thomas Varnell (“Cynthia”) were married on September 16, 1978. In late June or early July 2013, Cynthia was diagnosed with breast cancer and subsequently underwent a double mastectomy, chemotherapy and radiation. Michael continued in the marriage during Cynthia’s recovery from surgery and cancer treatments. Cynthia completed her last chemotherapy treatment on August 20, 2014; Michael left the matrimonial domicile on September 20, 2014. He filed a petition for divorce on March 24, 2015. Cynthia did not file a responsive pleading and a judgment of divorce was granted on April 28,2015.

Subsequently, on June 11, 2015, Cynthia filed a petition for spousal support, use of community property and partition of community property. She alleged that she was not at fault for the breakup of the marriage and Michael’s monthly income was twice the amount of hers. She sought spousal support “in the amount of not less than [$750] per month[.]” Michael responded to the petition, asserting, inter alia, that Cynthia was not entitled to permanent spousal support because she was not free from fault in the breakup of the marriage,

|2The trial commenced on October 13, 2015. Cynthia was the first witness called to testify. She was questioned by her counsel and the trial court. During the cross-examination, Michael’s counsel asked the following question: “Isn’t it true that you told Mr. Varnell that you did not love him and hadn’t loved him for probably ten years?” Cynthia’s attorney objected, arguing that the question had not been raised in the parties’ interrogatories; therefore, he had not prepared Cynthia to respond to that line of questioning. The court ordered a recess and met with the parties’ counsel in chambers. Thereafter, the trial reconvened, and the trial court continued the trial to allow Michael’s counsel an opportunity to file “any amended answers to interrogatories.” The court stated, “I am interested in hearing all the evidence that’s applied to the case where I can make an appropriate decision.”

The hearing reconvened on January 7, 2016. After calling the court to order, the trial court stated:

[Tjhe Court has already heard testimony about the situation involving the separation. The Court has also reviewed the additional discovery that [wjas propounded and the answers[.j [Tjhe Court has allowed counsel to tell the Court what would be put forth if we had testimony here, and I informed counsel that ... it was the Court’s opinion, based on what I’ve heard and what I’ve seen and what I’ve been told, that Court would rule that Ms. Varnell was not at fault in causing the separation as far as the law’s concerned.
* * *
So, where we are now is, uh, talking about money. Okay. How much, uh, support should be, uh, paid and for what period of time. [Tjhe Court feels that in this particular case, it would be appropriate to recess for thirty minutes and allow counsel and the parties to talk, uh, to see if some arrangements, agreements can be made with respect to the money.
⅜ ⅜ ⅜
| s[T]he Court is not inclined to tell people they can’t have their say, but in this particular case, there’s not anything else that could be said that hadn’t already been said, or, I haven’t already read or been told. So, uh, having further testimony, uh, involving children and stuff like that in the testimony, I don’t think that’s gonna help anything at all and it wouldn’t change my mind, so, uh, that’s why I’m taking these steps that I’ve taken today.
So, Court will be in recess to allow the counsel to conferf.]

The parties were unable to reach an agreement with regard to the amount of spousal support. Therefore, the trial court allowed the parties to introduce into evidence their respective affidavits of income and expenses. The court then took the matter under advisement and instructed counsel to provide the court with memo-randa, in letter form, setting forth their arguments as to the appropriate amount of spousal support.

Subsequently, the trial court signed a judgment, concluding that Cynthia was not at fault in the breakup of the marriage and ordering Michael to pay $475 per month in permanent spousal support, retroactive to the date of filing. The court also found that Michael owed $4,512.50 in past due spousal support and ordered him to pay that amount “at the rate of $100 per month at the same time the monthly payment of $475.00 is paid[.j”

Michael appeals.

DISCUSSION

Michael contends the trial court erred in refusing to allow him to testify, call witnesses and introduce evidence into the record with regard to the issue of fault. He argues that the only testimony received during the trial was the “one-sided” testimony of Cynthia.

14In a proceeding for divorce or thereafter, the court may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage. LSA-C.C. art. 111. Fault is a threshold issue in a claim for spousal support. Stowe v. Stowe, 49,596 (La.App. 2d Cir. 3/4/15), 162 So.3d 638; King v. King, 48,881 (La.App. 2d Cir. 2/26/14), 136 So.3d 941. The word “fault” contemplates conduct or substantial acts of commission or omission by a spouse violative of his or her marital duties and responsibilities. King, supra. A spouse seeking final periodic spousal support must be without fault and the burden of proof is on the claimant. Stowe, supra; King, supra.

Domestic relations issues, such as the determination of entitlement to spousal support, largely turn on evaluations of witness credibility. King, supra; Hunter v. Hunter, 44,703 (La.App. 2d Cir. 9/30/09), 21 So.3d 1032. The fact finder has the discretion to accept or reject, in whole or in part, the testimony of any witness. Id. The trial court’s finding of fact on the issue of fault will not be disturbed unless it is manifestly erroneous or clearly wrong. Hunter, supra; Carr v. Carr, 33,167 (La. App. 2d Cir. 4/5/00), 756 So.2d 639.

The due process clauses of the Fourteenth Amendment to the United States Constitution and the Louisiana Constitution guarantee litigants a right to a fair hearing. Smith v. Smith, 44,663 (La.App. 2d Cir. 8/19/09), 16 So.3d 643; Goodwin v. Goodwin, 618 So.2d 579 (La.App. 2d Cir. 1993), writ denied, 623 So.2d 1340 (La. 1993). LSA-Const. Art. I, § 22 provides:

All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality or unreasonable delay, for injury to him in his person, property, reputation or other rights.

1rLSA-C.C.P. art. 1631 provides:

The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.

LSA-C.C.P. art. 1632 provides, in pertinent part:

The normal order of trial shall be as follows:
(1) The opening statements by the plaintiff and the defendant, in that order;
(2) The presentation of the evidence of the plaintiff and of the defendant, in that order;
(3) The presentation of the evidence of the plaintiff in rebuttal; and
(4) The argument of the plaintiff, of the defendant, and of the plaintiff in rebuttal, in that order.
This order may be varied by the court when circumstances so justify.

In the instant case, the primary thrust of Michael’s argument is that the trial court committed reversible error in rendering a judgment without allowing him to introduce evidence to contradict or refute Cynthia’s testimony. We agree. As stated above, Cynthia, as the spouse seeking final periodic spousal support, had the burden of proving that she was without fault in the breakup of the marriage. She was allowed to testify in response to questions posed by her counsel and the trial court.

However, as stated above, the trial court did now allow Michael, or any other witnesses, the opportunity to testify, stating:

[T]he Court has allowed counsel to tell the Court what would be put forth if we had testimony here, and I informed counsel that ... it was the Court’s opinion, based on what I’ve heard and what I’ve seen and what I’ve been told, that Court would rule that Ms. Varnell was not at fault in causing the separation as far as the law’s concerned.

| fiThe above comments indicate that the trial court arrived at its decision after hearing only Cynthia’s testimony with regard to the issue of fault. Michael was not allowed to fully cross-examine Cynthia, nor was he allowed to controvert her testimony by testifying on his own behalf and/or calling witnesses. Further, the trial court did not have the opportunity to weigh the credibility of any -witness other than Cynthia. Thus, we find that Michael was deprived of a fair and impartial trial, in that the trial court impermissibly prevented him from testifying and calling witnesses. Accordingly, we reverse the trial court’s judgment and remand this matter to the trial court for further proceedings.

CONCLUSION

For the reasons set forth herein, the trial court’s judgment, ordering permanent periodic spousal support to Cynthia Denise Thomas Varnell, is hereby reversed, and this matter is remanded to the trial court for further proceedings. Costs of the appeal are assessed to Cynthia Denise Thomas Varnell.

REVERSED AND REMANDED.

DREW, J., concurs with written reasons.

DREW, J.,

concurring.

hi respectfully concur in this remand, in fairness to the defendant, though I am troubled by:

• The defendant’s lack of objections to the adverse ruling of the trial court; and
• The defendant’s failure to make a proffer of evidence that he felt was improperly disallowed by the trial court.

      . Two children were born of the marriage. Both children had reached the age of majority by the time the petition for divorce was filed.


author: LOLLEY, J.

text:
    Courtland THOMAS, Plaintiff-Appellant v. Nicky MORRIS and Their Insurer Safeway Insurance Company of Louisiana, Defendant-Appellee
    No. 51,112-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017.
    Rehearing Denied February 9, 2017

      DAVIS LAW FIRM By: S. P. Davis, Counsel for Appellant
    W. BRETT CAIN, Counsel for Appellee
    Before BROWN, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

hCourtland Thomas appeals a judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, which awarded him $5,000.00 in general damages and $6,027.90 in special damages against Nicky Morris and Safeway Insurance Company (“Safeway”). For the following reasons, we amend the trial court’s judgment to increase the general damage award to $10,000.00, and as amended, affirm the judgment.

Facts

On October 2, 2013, Courtland Thomas was a passenger in a vehicle owned and operated by Leonard Williams. They were stopped at a traffic light at the intersection of Youree Drive and Kings Highway in Shreveport, Louisiana. When the light turned green, Williams proceeded forward, but quickly came to a complete stop because of traffic. When Williams stopped his vehicle, it was rear ended by a vehicle driven by Nicky Morris, who was insured by Safeway. As a result, Thomas sustained injuries and eventually sought medical attention from Willis Knighton Medical Center (“Willis Knighton”) on October 7, 2013. He subsequently was treated by Dr. Majdi Dawud, a chiropractor, from October 15, 2013, through January 22, 2014, for headaches and back and neck pain.

Thomas ultimately filed suit against Morris and his insurer, Safeway. The parties stipulated to the medical records and bills of Willis Knighton and Dr. Dawud for a total amount of $6,027.90. Additionally, the parties stipulated that if Dr. Dawud were called to testify, he would state that Thomas’s injuries were “more probably than not” due to the collision caused by Morris. After a trial on the merits, Thomas was awarded the stipulated ^amount of special damages and a general damage award of $5,000.00. Thomas appeals that judgment.

Discussion

On appeal, Thomas raises only one assignment of error, arguing that the trial court abused its discretion in awarding him $5,000.00 in general damages, when he was treated for his injuries for three months and experienced pain from the date of injury (October 2, 2013) until the date of trial (January 21, 2016). According to Thomas, the trial court erred in limiting his general damages to three months of pain, when he had pain for at least 26 months. Thomas argues that the trial court’s reliance on the finding that he had reached “medical maximum improvement” was misplaced because that does not mean he was free from pain or recovered from his injury.

In the assessment of damages, much discretion is vested in the trier of fact. La. C.C. art. 2324.1. General damages include pain and suffering, inconvenience, the loss of physical enjoyment, and other losses of life or lifestyle that cannot be definitively measured in monetary terms. McGee v. AC and S, Inc., 2005-1036 (La. 07/10/06), 933 So.2d 770; Young v. Marsh, 49,496 (La.App. 2 Cir. 11/19/14), 153 So.3d 1245.

There is no mechanical rule for determining general damages. The facts and circumstances of each case control. Guerrero v. Brookshire Grocery Co., 49,-707 (La.App. 2 Cir. 04/29/15), 165 So.3d 1092; Blue v. Donnie Baines Cartemps USA, 38,279 (La.App. 2 Cir. 03/03/04), 868 So.2d 246. The nature, relative severity and bodily extent of injuries are qualitative factors that must first be considered by the trier of fact in awarding general damages. Young, supra. The duration of a plaintiffs | «injury symptoms and the duration of treatment are relevant quantitative factors that must also be taken into account. Id.; Caldwell v. ANPAC Ins. Co., 50,333 (La.App. 2 Cir. 01/13/16), 185 So.3d 846, 848.

Before an appellate court may disturb such an award of general damages, the record must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and individual circumstances peculiar to the case under consideration. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); Pittard v. Lewis, 45,412 (La.App. 2 Cir. 08/11/10), 46 So.3d 202, 204.

There is no dispute that Thomas sustained injuries as a result of the collision. At trial, Thomas, 28 years old at the time of the accident, testified that he was starting a new job that day and felt he needed to report to work despite the collision; thus he did not immediately seek medical attention. However, he testified that he woke up the next day feeling lower and mid-back and neck pain, along with headaches. On October 7, he sought treatment at Willis Knighton, complaining of “throbbing” pain, which he rated a 5 out of 10 on a pain scale. He was diagnosed with mus-culoskeletal pain. He was released with prescriptions for Flexeril (a muscle relaxant) and Ketorolac (an anti-inflammatory).

Subsequently, Thomas was treated by Dr. Dawud, a chiropractor, from October 15, 2013, through January 22, 2014, for headaches and back and neck pain. His medical records were admitted into evidence and considered by the trial court. Dr. Dawud’s initial evaluation noted that since the collision, Thomas “has had problems with squatting, bending, twisting, carrying, lifting, and pushing.” The initial evaluation also showed that the | ¿intensity of Thomas’s pain was moderate to severe. A review of the records shows that Thomas’s symptoms improved gradually over time, until the final evaluation on January 22, 2014. At that time, Dr. Dawud noted that the intensity of Thomas’s complaints was minimal; however, his symptoms were still “bothersome.” His physical examination showed him to be within normal limits, and Dr. Dawud released him at “Maximum Medical Improvement.”

Thomas testified that as of the date of trial he was still feeling symptoms of his injuries, even though he was not being currently treated. Notably, prior to the accident, Thomas had no physical ailments: he was employed and was active in community theatre as a hip-hop dancer. In addition to the pain he continued to experience at the time of trial, Thomas also testified he still was unable to dance or lift heavy objects.

In assessing Thomas’s general damages, the trial court correctly noted the duration of time for which Thomas received medical treatment for his injuries. In fact, at the trial’s conclusion, the trial court thoroughly reviewed Thomas’s medical history in great detail. Then, specifically noting that Thomas had been treated for his symptoms for three months, the trial court awarded general damages in the amount of $5,000.00 in addition to his special damages. However, duration of treatment is only one relevant consideration in awarding general damages. Here, the trial court did not take into consideration the duration of time for which Thomas continued to experience symptoms. Thomas testified that he was still in pain and affected by his injuries more than two years after the collision. Whereas the trial court noted that Thomas was sometimes inconsistent in describing his pain level, the record shows that Thomas complained of some level of pain | ^consistently after the incident. Moreover, the trial court did not specifically find Thomas to be unbelievable, and there was no evidence tending to disprove Thomas’s testimony that he continued to experience pain at the time of trial.

Considering Thomas’s injuries and diagnosis, the extent and duration of his medical treatment, as well as the extent and duration of his pain and suffering post-treatment, we find the general damage award of $5,000 to be an abuse of discretion. We pay specific attention to this Court’s prior opinion, Caldwell, supra, which made a comprehensive and exceedingly thorough review of prior awards in similar cases. Of particular note are the following cases: Smith v. Escalon, 48,129 (La.App. 2 Cir. 06/26/13), 117 So.3d 576, 582 (plaintiff injured in rear-end collision; prior back and neck problems aggravated by accident; soft tissue injuries that were mostly resolved after six months; several weeks of physical therapy; and, at trial, more than two years later, still experienced pain “at times”-$20,000); and, Martin ex rel. Lee v. Walker, 47,483 (La.App. 2 Cir. 10/10/12), 107 So.3d 102, 105-6 (neck and back spasms; four months treatment; on last day of treatment, chiropractor’s release form indicated “maximum medical benefit” from her treatment; and, no more pain eight months post-accident-$17,000). Considering both the duration of treatment as well as duration of symptoms for this plaintiff, we conclude $10,000.00 is the lowest reasonable amount within the trial court’s discretion that will compensate this plaintiff for his general damages.

Conclusion

For the reasons set forth above, we affirm the judgment of the trial court awarding a general damage award to plaintiff, Courtland Thomas, and | fiwe amend the judgment by increasing the general damages to $10,000.00. Costs of this appeal are assessed to Nicky Morris and Safeway Insurance Company.

AFFIRMED, AS AMENDED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, MOORE and LOLLEY, JJ.

Rehearing denied.

MOORE, J., would grant rehearing.


text:
    Kimberly JIMERSON, Plaintiff-Appellant v. Jake MAJORS, M.D., Defendant-Appellee
    No. 51,097-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017

      SUSAN ELIZABETH HAMM, Counsel for Appellant
    CRAIG JAMES SABOTTKE, Counsel for Appellee

      Before DREW, LOLLEY and STONE, JJ.
   LOLLEY, J.

(rIn this medical malpractice case, plaintiff, Kimberly Jimerson, appeals a judgment from the First Judicial District Court, Parish of Caddo, State of Louisiana, wherein the trial court sustained a peremptory exception of prescription in favor of defendant, Jake Majors, M.D. For the following reasons we affirm the judgment of the trial court.

FACTS

Kimberly Jimerson was under the care of Dr. Jake Majors for obstetrics and gynecology treatment since 2005. She was diagnosed with endometriosis with biopsy-proven pathology obtained by laparoscopy on August 8, 2005. Dr. Majors referred Jimerson to an infertility specialist in 2005 due to problems with oligomennorrhea (i.e., infrequent menstruation), endome-triosis, pelvic pain, and desired conception. Having had two successful Cesarean births, Jimerson elected to undergo a bilateral tubal sterilization, which prevents future pregnancy by blocking the fallopian tubes. The procedure was performed May 22, 2007. Jimerson continued to complain to Dr. Majors of pelvic pain, even after her sterilization surgery.

On August 18, 2008, after presenting in the emergency room, Jimerson, then 24 years old, was admitted to the hospital for pelvic pain. According to Jimerson she signed a consent form for surgery while in pain and under the influence of pain medication. The next day, Dr. Majors performed a hysterectomy including removal of the fallopian tubes and ovaries. Post-surgery, Jimerson developed complications, specifically, bladder issues. Jimerson continued treatment with Dr. Majors until October 13, 2009, but in an attempt to determine the cause of her pelvic pain, she was also treated by numerous other doctors and specialists during that time.

|2On November 10, 2009, Jimersón had an office visit with Dr. Joseph Pineda, another specialist in obstetrics and gynecology. Jimerson claims that during this office visit Dr. Pineda informed her, in his opinion, it was “negligent for Dr. Majors to perform a hysterectomy on a 24-year-old woman.” On September 2, 2010, more than two years after the hysterectomy was performed, Jimerson filed a complaint against Dr. Majors requesting a medical review panel (“MRP”) to review her claim. Dr. Majors filed a peremptory exception of prescription in the trial court, which declined, to rule on the exception while the matter was pending before the MRP. Jim-erson failed to submit the requested materials to the MRP for over three years— missing six reset deadlines. In May 2014, Dr. Majors-submitted his materials to the MRP in order to proceed with the matter.

Ultimately, the MRP issued a unanimous opinion that Dr. Majors had properly obtained informed consent from Jimerson for the hysterectomy and, further, had not deviated from the standard of care in his treatment of her. Subsequently, Jimerson filed a petition for damages in the trial court. Dr. Majors requested his exception of prescription be reset for hearing, and in the alternative, summary judgment. After a hearing, the trial court granted the exception of prescription, dismissing Jimer-son’s claim with prejudice. She now appeals the judgment of the trial court.

DISCUSSION

Jimerson sets forth five assignments of error all related to the granting of the exception of prescription. Jimerson generally argues the trial court erred in granting the exception of prescription and dismissing her petition for damages. More specifically, she argues that the trial court erred in not finding the continuing treatment doctrine applied, not finding the discovery Rrule applied to suspend prescription and not referring the exception to the merits of the case. Here, the alleged malpractice is that Dr. Majors performed the surgery without first attempting more conservative measures. Jimerson argues that she did not consent to the surgery, specifically because Demerol, a pain medication, was administered to her one hour before she signed an informed consent form, which, consequently, she does not remember signing. Jimerson claims she did not discover that the 2008 hysterectomy should not have been performed by Dr. Majors until November 10, 2009, when Dr. Pineda mentioned this to her during an office visit. She also claims that continued post-surgery treatment by Dr. Majors suspended prescription. We disagree.

The prescriptive period for medical malpractice is set forth in La. R.S. 9:5628, in relevant part, as follows:

A. No action for damages for injury or death against any physician ... whether based in tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

This statute sets forth two prescriptive limits within which to bring a medical malpractice action: one year from the date of the alleged act or one year from the date of discovery, with a single qualification that the discovery rule is expressly made inapplicable after three years from the act, omission or neglect. Campo v. Correa, 2001-2707 (La. 06/21/02), 828 So.2d 502. Both the one-year and three-year limitation periods of La. R.S. 9:5628 are prescriptive. Borel v. Young, 2007-0419 (La. 11/27/07), 989 So.2d 42; Holmes v. LSU/E. A. Conway Med. Ctr., 43,662 (La. App. 2d Cir. 10/22/08), 997 So.2d 605, 608.

The prescriptive period in medical malpractice claims will not begin to run at the earliest possible indication that a patient may have suffered some wrong. Guitreau v. Kucharchuk, 1999-2570 (La. 05/16/00), 763 So.2d 575. Rather, in order for the prescriptive period to commence, the plaintiff must be able to state a cause of action—both a wrongful act and resultant damages. Id.; In re Med. Review Panel ex rel. Rachal, 48,984 (La.App. 2d Cir. 06/25/14), 144 So.3d 1199, 1203, writ denied, 2014-1887 (La. 11/14/14), 152 So.3d 886. The law of prescription does not require that the patient be informed by a medical practitioner or an attorney of possible malpractice before the prescriptive period begins to run. Dixon v. Louisiana State Univ. Med. Ctr., 33,036 (La.App. 2d Cir. 01/26/00), 750 So.2d 408, writ denied, 2000-0627 (La. 04/20/00), 760 So.2d 350.

A health care provider against whom a claim has been filed before a MRP may raise the exception of prescription in a court of competent jurisdiction and proper venue at any time without need for completion of the review process by the MRP. La. R.S. 40:1299.47(B)(2)(a). The plea of prescription must be specifically pleaded and may not be supplied by the court. La. C.C.P. art. 927(B); Carter v. Haygood, 2004-0646 (La. 01/19/05), 892 So.2d 1261.

On the trial of the prescription exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931; Holmes, supra. The general rule regarding the exceptor’s burden of proof as stated in Campo, supra, is that “a petition IfiShould not be found prescribed on its face if it is brought within one year of the date of discovery and facts alleged with particularly in the petition show that the patient was unaware of malpractice prior to the alleged date of discovery, and the delay in filing suit was not due to willful, negligent, or unreasonable action of the patient.” Id. at 509.

Discovery Rule

Jimerson argues the discovery rule suspended prescription because she did not learn until November 2009 that the surgery should not have been performed. Jimerson claims that the post-surgery complications did not put her on notice that Dr. Majors negligently performed a hysterectomy, because it is the fact that the hysterectomy was performed at all, not the manner in which it was performed, that is medical malpractice. We disagree.

Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception, but when it appears on the face of the petition that prescription has accrued, the plaintiff must allege and prove facts indicating that the injury and its causal connection were not apparent or discoverable until within the year before the suit was filed. Carter, supra; Abbott v. La. State Univ. Med. Ctr. Shreveport, 35,-693 (La.App. 2d Cir. 02/27/02), 811 So.2d 1107, 1111, writ denied, 2002-0952 (La. 05/31/02), 817 So.2d 104.

Under the discovery rule, prescription begins when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Campo, supra. A prescriptive period begins to run even if the' injured party does not have actual knowledge of facts that would entitle him to bring a suit, as long as he has constructive knowledge of such facts. Id. Constructive knowledge is “whatever notice is enough to excite attention and put the injured person on guard and call for | (¡inquiry.” Id. at 510. The ultimate issue in determining constructive knowledge is the “reasonableness of the patient’s action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct.” Id. at 511; Watson v. Glenwood Reg’l Med. Ctr., 49,661 (La.App. 2d Cir. 04/15/15) 163 So.3d 817, 823-24, writ denied, 2015-0945 (La. 08/28/15), 176 So.3d 404.

Here, the petition on its face has prescribed; therefore, Jimerson had the burden to show that prescription was suspended because she lacked actual or constructive knowledge of the alleged malpractice. To determine if Jimerson lacked constructive knowledge of the possible malpractice the trial court considered her specialized education. Jimerson is a registered nurse by profession and worked in the labor and delivery unit at Willis-Knighton South Hospital during the time immediately surrounding her hysterectomy surgery. Following her surgery, Jimerson’s symptoms continued to be severe and she claims she was advised by several physicians that she was suffering from post-surgery complications.

In granting Dr. Majors’ exception, the trial court concluded that Jimerson’s entire argument for application of the discovery rule hinged on her self-serving hearsay statement of what she claimed Dr. Pineda told her; therefore, the trial court declined to consider the hearsay statement as evidence. In its oral reasons for judgment, the trial court stated:

She went to at least four other specialists, and in this case a urologist, Dr. Gomelsky, who told her, according to her deposition, approximately three weeks after surgery, which took place August 19, 2008, that her complications were related to her hysterectomy. That should tell a person, certainly a healthcare provider and someone who is a registered nurse ... who works in a hospital setting, and the Court is of the opinion she knew or should have known ... that a complication has taken place in this matter that could have been medical 17malpractice, and should have investigated the matter at that time. But additionally, there is absolutely nothing in the record other than the plaintiffs statement supporting that Dr. Pineda told her November 10 of 2009 that the hysterectomy should not have been performed.

The trial court further pointed out that after Dr. Pineda allegedly alerted Jimer-son that the hysterectomy should not have been performed, she waited almost another full year from the date of alleged discovery to file her action. It also noted that Jimerson could have sought a second opinion on her situation at any time—she did not lack access to medical treatment or the knowledge necessary to understand her medical condition.

Here, the trial court was within its discretion in determining that a reasonable person with Jimerson’s education and intelligence would have been put on notice under these circumstances long before the office visit with Dr. Pineda. From August 2008 to June 2009, Jimerson made 24 visits to other specialists. In her deposition, Jim-erson stated that three weeks after the hysterectomy, she was informed by Dr. Alexander Gomelsky, a specialist in urology, that her current condition was due to complications from the hysterectomy surgery. She also stated that Dr. Charles Byrd, specialist in general surgery, whom she saw before Dr. Pineda, also told her Dr. Majors did something wrong. However, none of these statements are substantiated. Jimerson had ample opportunity to take the depositions of Dr. Pineda and Dr. Byrd or obtain affidavits confirming those alleged statements. However, she did neither. Further, Jimerson’s medical records from Dr. Pineda do not contain the alleged statement relied on by her.

The trial court was not manifestly erroneous in not crediting the hearsay testimony of Jimerson and finding that she failed to carry her evidentiary burden. Based on the record before us, Jimerson did not prove |sthe discovery rule is applicable in this instance, and this assignment of error has no merit.

Continuous Treatment Doctrine

In another assignment of error, Jimerson claims it was not until she left Dr. Majors’ care and sought a second opinion from Dr. Pineda that she realized a hysterectomy should not be performed on a patient as young as she was at the time. Jimerson argues that as a longtime patient of Dr. Majors she trusted him and followed his treatment plan. Jimerson claims that because she continued to be treated by Dr. Majors until October 2009, the continuous treatment doctrine suspended prescription of her action against him. We disagree.

Prescription is suspended when there is a continuation of a special relationship in the providing of services or continued reliance on that relationship. In re Med. Review Panel of Moses, 2000-2643 (La. 05/25/01), 788 So.2d 1173. This is because the special relationship of trust might hinder a patient’s inclination to sue. Taylor v. Giddens, 618 So.2d 834 (La. 1993); Nichols v. Patwardhan, 48,170 (La. App. 2d Cir. 06/26/13), 120 So.3d 322, 325. The continuing treatment rule requires a plaintiff to establish the existence of (1) a continuing treatment relationship with the physician, which is more than perfunctory, during which (2) the physician engaged in conduct which served to prevent the patient from availing herself of her cause of action, such as attempting to rectify an alleged act of malpractice. Carter, supra at 1271. The continuous treatment rule is within a category of the contra non valen-tem rules, which “allow the courts to weigh the equitable nature of the circumstances in each individual case to determine whether prescription will be tolled.” Id. at 1268.

|9In the instant matter, Jimerson argues that Dr. Majors continued to refer her to other specialists in an attempt to make her infer that her situation was the result of some other organ system or some other problem other than the hysterectomy. The trial court found that this was not the case stating, “Dr. Majors referred Ms. Jimer-son to multiple experts in this matter ... she had the ability to consult, on her own, other physicians, and she in fact, did consult another expert and specialist in this matter ... and [this matter] is clearly distinguishable from the Carter case.”

In Carter, supra, the defendant, a dentist, was the only medical professional treating the plaintiff and he refused to give her medical records to her, representing that he would fix the problem he caused. After unsuccessfully correcting his mistake, the dentist suddenly severed the doctor-patient relationship leaving the patient with ill-fitting partial dentures. In the Carter case it was clear that the dentist had taken deliberate steps to prevent the patient from seeking the opinion of another professional; thus, preventing her from availing herself of her cause of action.

Here, Dr. Majors treated Jimerson for over three years before he recommended a hysterectomy. According to Jimerson’s medical records and Dr. Majors’ deposition, the possibility of a hysterectomy had been discussed in July 2008, a month before the surgery was performed. Medical records and deposition testimony also show discussion of other conservative treatment, such as birth control, which Jimerson declined to attempt. In her deposition, Jimerson explained her histoiy of pelvic pain, her decision to undergo sterilization, and her constant admits to the emergency room for pelvic pain. She also described years of dependence on pain medications for her pelvic pain, which were not adequately ameliorating her issues.

110Evidence presented by Jimerson at the hearing, did not show that Dr. Majors took any steps to prevent Jimerson from seeking a second opinion, or any conduct which served to prevent her from availing herself of her cause of action. To the contrary, the evidence shows he encouraged her to seek the opinions of other physicians and specialists.

At the time the hysterectomy was performed, Jimerson was a registered nurse on the labor and delivery unit at Willis-Knighton South Hospital. In addition to her education, she had ample access to medical knowledge above and beyond the average woman. Jimerson could have sought a second opinion before the hysterectomy was performed. Her medical records show that she and Dr. Majors discussed the option of a hysterectomy to address her pelvic pain issues in July 2008, a month before the surgery was performed. Any reasonable woman understands the gravity of undergoing a hysterectomy procedure, especially one with Jimerson’s specialized knowledge of medical procedures and personal experience with medical decisions, such as her sterilization a year previous to the hysterectomy.

Nothing in this record indicates that Dr. Majors in any way abused the physician-patient relationship so as to prevent Jim-erson from discovering the alleged malpractice of performing a hysterectomy on a 24-year-old patient or without first attempting more conservative treatment. Based on this record, we find the trial court was not manifestly erroneous in weighing the equitable nature of the circumstances of this case. This assignment of eiTor has no merit.

| ^Reference to the Merits

In another assignment of error, Jimerson argues that the trial court erred by not referring the exception of prescription to the merits of the case. Jimerson contends that the fact-intensive nature of the question of prescription in this case necessitates a trial on the merits, arguing that testimony and evidence exist to sufficiently defeat the exception of prescription. We find these facts have been considered by the trial court; therefore, we disagree.

Louisiana Code of Civil Procedure article 929 states:

A. The declinatory exception, the dilatory exception, and the peremptory exception when pleaded before or in the answer shall be tried and decided in advance of the trial of the case.
B. If the peremptory exception has been filed after the answer, but at or prior to the trial of the case, it shall be tried and disposed of either in advance of or on the trial of the case. If the peremptory exception has been pleaded after the trial of the case, the court may rule thereon at any time unless the party against whom it has been pleaded desires and is entitled to introduce evidence thereon. In the latter event, the peremptory exception shall be tried specially.

The Louisiana Supreme Court has interpreted article 929 together with La. C.C.P. art. 1001, which supplies the delay for filing an answer, to mean that a peremptory exception pleaded before an answer must be scheduled for trial in advance of the trial on the merits, but that the trial court has discretion in deciding the trial of the exception, including referring the exception to the merits in appropriate cases. Short v. Griffin, 1995-0680 (La. 06/16/95), 656 So.2d 635, 636. The principal purpose of article 929, with respect to peremptory exceptions, is to prevent a defendant from employing dilatory tactics by filing a peremptory exception after the answer and demanding a trial of the exception in order to delay the trial on the merits. Id. The | ^Louisiana Supreme Court has recognized the trial court’s discretion to refer to the merits of the case when ruling on a peremptory exception as being a function of judicial efficiency. Id.

Here, the trial court allowed Jimerson to testify at the hearing on Dr. Majors’ initial exception of prescription. It declined to rule on Dr. Majors’ exception at the initial hearing; instead, it allowed the MRP process to continue and additional discovery to be conducted. After the MRP returned an opinion, Jimerson filed a petition for damages. Dr. Majors answered and requested summary judgment predicated on the fact that, at the time of answering, Jimerson could not prove all the elements of her malpractice claim, because she did not disclose an expert to testify on her behalf. Jimerson then requested, and was granted, more time for discovery over Dr. Majors’ objection.

The purpose of the trial court’s discretion to refer to the merits of the case when ruling on a peremptory exception is a function of judicial efficiency intended to prevent unnecessary delay. The only delay in this instance has been caused by Jimerson missing deadlines and requesting additional time for discovery. Jimerson was continuously delinquent on the deadlines to move the MRP process forward, causing a delay of almost four years. The trial court granted Jimerson’s requests for additional time, and allowed her a full and fair opportunity to conduct discovery and present all her evidence.

The trial court allowed Jimerson to present the merits of her case against Dr. Majors through pleadings and during the hearing on the exception of prescription. In granting the exception of prescription, the trial court explained the facts on which it relied to determine that prescription 11sbarred Jimerson’s action and that no exception existed to suspend the running of prescription. We find the trial court has considered the merits of this case and was within its discretion in doing so; therefore, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court sustaining the exception of prescription in favor of Jake Majors, M.D., and dismissing the claim of Kimberly Jimerson with prejudice. All costs of this appeal are assigned to Jimer-son.

AFFIRMED.


text:
    Darren CRAWFORD, Plaintiff-Appellee v. TOWN OF GRAMBLING, Defendant-Appellant
    No. 51,090-WCA
    Court of Appeal of Louisiana, Second Circuit.
    January 11, 2017

      JOHNNY R. HUCKABAY, II, Counsel for Appellant
    GREGORY G. ELIAS, Counsel for Ap-pellee
    Before WILLIAMS, LOLLEY and GARRETT, JJ.
   WILLIAMS, J.

hln this workers’ compensation case, the employer, the Town of Grambling, refused to pay for the claimant’s recommended surgery. The workers’ compensation judge (“WCJ”) rendered judgment in favor of the claimant, ordering the Town of Gram-bling to pay for the claimant’s surgery. For the following reasons, we affirm.

FACTS

The claimant, Darren Crawford, was employed as a sanitation worker for the Town of Grambling. On October 9, 2001, the claimant was injured on the job when he lifted a garbage can. The claimant testified that he reported to his treating physician that he was experiencing pain in his right arm, neck and back.

Six weeks after the accident, the claimant was referred to Dr. Michael Ehrlich, a neurologist, for treatment. Initially, the claimant’s cervical complaints were the sole focus of his medical treatment. Over time, the claimant was evaluated and treated by a number of physicians, including Dr. David Cavanaugh, a neurosurgeon. In a document dated May 29, 2003, Dr. Cava-naugh noted the claimant’s cervical complaints and added that the claimant was experiencing “some low back pain with walking.” In a reported dated September 26, 2003, Dr. Cavanaugh noted that the claimant “states when he is walking, he’ll have some increased low back pain, and wonders if that is connected to his neck.”

In 2003, the claimant was referred to another neurosurgeon, Dr. Anil Nanda. Dr. Nanda recommended that the claimant undergo a cervical laminectomy. However, the claimant declined to do so, opting, instead, to continue conservative treatment.

^Meanwhile, the claimant’s lumbar issues worsened. The claimant testified that he informed Dr. Ehrlich that he was experiencing back pain; however, Dr. Ehrlich did not note the claimant’s lumbar complaints in the medical records until 2005, when, according to the claimant, his back pain substantially worsened. More specifically, on August 3, 2005, the claimant stated that he awakened with severe back pain. He presented • to Dr. Ehrlich; he reported that he had not lifted any heavy objects or injured himself in any way. Initially, Dr. Ehrlich considered the complaint of back pain to be “acute” and/or “age related.” However, he later concluded that the claimant’s lumbar complaints were “definitely related” to post-accident decon-ditioning.

The employer initially paid for medical treatment related to the claimant’s lumbar complaints. However, in 2008, a new claims adjuster, Della Hildebrand, was assigned to the claimant’s case. Hildebrand scrutinized the claimant’s medical records and concluded that his lumbar issues were not related to his work injury. Hildebrand instructed the case manager “to inform Dr. Nanda that [the claimant’s] lumbar issues were not related to the work accident.” Consequently, the employer ceased payments for medical treatment related to the claimant’s lumbar complaints.

Over the years, the claimant continued to be evaluated by Dr. Nanda at intermittent intervals. Although Dr. Nanda had recommended a cervical laminectomy, he noted that the claimant could continue conservative treatment until he could no longer tolerate the symptoms. In 2007, Dr. Nanda began evaluating the claimant for both cervical and lumbar complaints. In 2012, Dr. Nanda recommended that the claimant undergo both cervical and lumbar laminectomies. Again, the claimant opted to ^continue conservative treatment instead. As the claimant’s symptoms worsened, he decided to undergo the cervical and lumbar surgeries. The employer agreed to pay for the cervical surgery, but denied payment for the lumbar surgery.

On January 25, 2013, the claimant filed a disputed claim for compensation, seeking a judgment compelling the employer to pay for the lumbar surgery. Prior to the trial, the parties stipulated as to the following facts: the claimant sustained a compensa-ble injury on October 9, 2001; the claimant sustained cervical injuries as a result of the accident; surgery for the cervical injuries was recommended; the claimant elected not to have the cervical surgery at that time; the employer did not deny payment for the cervical injuries; the employer initially paid for the treatment of the claimant’s lumbar complaints; the employer stopped payment for further treatment when it determined that the claimant’s lumbar complaints were not caused by the work accident; and the claimant’s treating physician had recommended surgery for the claimant’s lumbar complaints.

During the trial, the claimant testified as follows: on October 9, 2001, he attempted to lift a garbage can and “went numb in [his] right arm and under [his] neck”; his “lower back was kind of bothering” him, but the back pain “wasn’t as severe” as the pain in his neck; he thinks he may have told Dr. Ehrlich about his back injury when he began treatment; however, Dr. Ehrlich “wouldn’t treat [him] for it yet”; the pain in his lower back became more severe “as time went on”; he began experiencing numbness in his leg and “all up under the bottom of [his] feet”; Dr. Nanda provided treatment for his neck and back; Dr. Nanda informed him that he needed surgery on his neck and back; he believed the pain in his back is related to the accident at | ¿work; he was not having any back problems prior to the work accident; and he has not done anything to injure his back since the work accident.

On cross-examination, the claimant testified that he did not report that he was experiencing back pain on the day of the accident. He also stated that he told Dr. Ehrlich about his back pain and Dr. Ehrlich should have noted the back pain in his medical records. The claimant testified that he does not know why his back pain was not mentioned in Dr. Ehrlich’s notes until 2005.

The claimant also responded to questions posed by the WCJ. The colloquy was as follows:

[WCJ]: [W]hen did you first start complaining about your back?
[CLAIMAINT]: I might have told Dr. Ehrlich about it[.] ... [I]t hadn’t got[ten] severe like it was[.] As time went on, it got worse, you know, during morning and like that, if I just couldn’t hardly move or walk.
[WCJ]: But that wasn’t [until] 2005?
[CLAIMAINT]: Yes, ma’am.
[WCJ]: So four years later?
[CLAIMANT]: Yes, ma’am.
I had been having a little symptoms. When I walked, it was numb and I was telling Dr. Ehrlich about it, you know, when I walked it kind of was getting numb down in my legs and in my feet area. But ... as time got on and when I woke up one morning it was just like I couldn’t get up out the bed[.] So that’s when I went on to Dr. lsEhrlich and told Dr. Ehrlich about the problem[.]

Della Hildebrand also testified at trial. She testified as follows: she was assigned to the claimant’s case in 2008; when she conducted a review of his file, she noticed that, in 2005, Dr. Ehrlich noted that the claimant had begun experiencing severe back pain when he got out of bed one morning; prior to that notation, there was nothing in the claimant’s medical records concerning his lower back; she believes the other claims adjusters “totally disregarded” the medical reports in the claimant’s file; and after she reviewed the records, she instructed the nurse case manager to inform Dr. Nanda that the claimant’s lumbar issues were not related to the work accident.

The deposition testimony of Drs. Ehrlich and Nanda was introduced into evidence. Dr. Nanda testified that he began treating the claimant in 2003 for neck pain and numbness in his right arm; over time, he began treating the claimant for back pain. Dr. Nanda stated that by 2013, the claimant had “a ten-year history of back and neck pain” and had long been a candidate for surgery. He also stated, “[B]ased on the veracity of the claimant,” both the lumbar and cervical injuries were related to the claimant’s work accident.

Dr. Ehrlich testified that the claimant’s lumbar complaints were “definitely related” to the work accident “[i]n an indirect way.” He explained as follows:

[Tjhere’s that whole story of the leg bone’s connected to the knee bone’s connected to the ankle bone. And I’m talking about it in that way. Obviously, the human body, all the parts are connected. If somebody hurts their neck, a lot of | fitimes their shoulder hurts. If somebody has a headache, their neck hurts, also. So, in a way, that his original injury was lifting a garbage pail where he kind of wrenched his neck and got a herniated disc and has nerve pain down his arm. You know, although he didn’t mention to me the first day anything about his back, a few years later, for unknown reason, because he said he didn’t have an injury, he awoke with severe back pain to this day, occurring in an overweight, debilitated, former worker with a work injury. And so in a debilitated, obese, pooped-out, easy-to-injure type way, it’s related, but not in a direct way. In an indirect way,
⅝ ⅝ ⅜ „
It’s definitely related, in my opinion. It’s not directly related.

The WCJ found that the claimant’s lumbar complaints were related to the work accident and ordered the employer to cover the costs of the lumbar laminectomy as recommended. The WCJ stated, “Both of the physicians who treated the claimant for the greatest length of time found a causal relationship between the recommended neck and lumbar surgery and the accident of October 9, 2001.” The WCJ denied the claimant’s request for penalties and attorney fees.

The employer now appeals.

DISCUSSION

The employer contends the claimant did not meet his burden of proving a causal relationship between the work accident and his lumbar symptoms. According to the employer, the claimant’s medical records indicated that he did not begin to complain of back pain until August 3, 2005, nearly four years after the work accident. The employer also argues that Drs. Ehrlich and Nanda were unable to definitively testify that the lumbar injury was related to the work accident.

[7An employee is entitled to workers’ compensation benefits if he “receives personal injury by accident arising out of and in the course of’ his employment.. LSA-R.S. 23:1031(A). The claimant is not required to prove the exact cause of his disability, but he must demonstrate, by a preponderance of the evidence, that the accident has a causal connection with it. Iberia Medical Ctr. v. Ward, 2009-2705 (La. 11/30/10), 53 So.3d 421; Hill v. IASIS Glenwood Regional Medical, 50,531 (La. App. 2 Cir. 5/18/16), 195 So.3d 536, writ denied, 2016-1357 (La. 11/7/16), 2016 WL 6780038, 209 So.3d 104. Disability may be presumed to have resulted from an accident if, before the accident, the claimant was in good health, but commencing with the accident, the symptoms- of the disabling condition appear and continuously manifest themselves afterward, provided that there is sufficient medical evidence to show a reasonable possibility of a causal relation between the accident and disability, or the nature of the accident, combined with the other facts of the case, raises a natural inference of causation. Doucet v. Baker Hughes Prod. Tools, 93-3087 (La. 3/11/94), 635 So.2d 166; Hill, supra.

Factual findings in workers’ compensation cases are subject to the manifest error rule. Buxton v. Iowa Police Dept., 2009-0520 (La. 10/20/09), 23 So.3d 275; Hill, supra. Under this rule, the reviewing court does not decide whether the WCJ was right or wrong, but only whether its findings are reasonable. Id. When there are two permissible views of the evidence, the WCJ’s choice between them can never be manifestly erroneous or clearly wrong. Id. The reviewing court is emphatically not permitted to reweigh the evidence or reach its own factual conclusions from the record. Marange v. Custom Metal Fabricators Inc., 2011-2678 (La. 7/2/12), 93 So.3d 1253; Hill, supra.

In the instant case, it is undisputed that the claimant sustained an injury arising out of and in the course of his employment. The employer stipulated that the claimant’s cervical injury was causally connected to the accident. However, the issue in dispute is whether the claimant met his burden of proving that his lumbar injury has a causal connection to the work accident.

The claimant s medical records reveal that his significant cervical injury was the initial primary focus of his medical treatment. The claimant provided uncontrovert-ed testimony that his lower back “was kind of bothering” him after the accident, but the back pain was not as severe as the pain in his neck. He also testified that he initially began experiencing “little symptoms”; however, the pain in his back and numbness in his legs worsened over time. Further, he testified that he had never experienced back pain prior to the work accident in 2001, and he had not suffered any injury, other than the work-related injury.

Additionally, Dr. Ehrlich opined that the claimant’s lumbar symptoms were “definitely related,” albeit indirectly, to the work accident. Dr. Ehrlich clearly explained the dynamics of the human body and provided a reasonable explanation as to how the back injury was causally related to the claimant’s work accident.

The employer contends that the claimant did not begin to complain of back pain until 2005, as noted by Dr. Ehrlich. However, that contention is contradicted by the claimant’s medical records. Although Dr. Ehrlich did not note the claimant’s lumbar complaints until 2005, the medical records 19reveal that the claimant was complaining of lower back pain as early as 2003, while being treated by Dr. Cavanaugh.

Based on this record, we find that the WCJ was not manifestly erroneous in concluding that the claimant’s lumbar injury was causally related to the work accident. As stated above, the claimant testified that he was not experiencing back pain prior to the accident. He stated that his back pain developed soon after his work accident and worsened over time. Moreover, the medical evidence, particularly Dr. Ehrlich’s testimony, showed a reasonable probability of a causal relation between the work-related accident and the claimant’s lumbar symptoms.

CONCLUSION

For the reasons set forth herein, the WCJ’s judgment is affirmed. Costs of this appeal are assessed to the appellant, the Town of Grambling, in the amount of $672.98, in accordance with LSA-R.S. 13:5112(A).

AFFIRMED.