author: KYZAR, Judge.

text:
    Mirla Gonzalez MARTINEZ v. David Andrew MARTINEZ
    17-74
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017

      Andrew B. Freyer, Law Office of Bryce Denny, L.L.C., 209 Polk Street, Mansfield, LA 71052, (318) 871-5007, COUNSEL FOR DEFENDANT/APPELLANT: David Andrew' Martinez
    Robert C. Owsley, Murchison and Murchison, L.L.C., P.O. Box 226, Natchitoches, LA 71458-0226, (318) 352-2302,-..COUN-SEL FOR PLAINTIFF/APPELLEE: Mirla Gonzalez Martinez
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar, Judges.
   KYZAR, Judge.

JjThe defendant, David Andrew Martinez, appeals from a trial court.judgment denying. his motion to modify his child support obligation. For the following reasons, we affirm. ,

DISCUSSION OF THE RECORD

David Andrew Martinez and'Mirla Gonzalez Martinez were married on May 19, 2004. The parties have one child, Andrew Allen Martinez, who was bom on December 15, 2010. On February 5, 2014, Mirla filed a petition for divorce, in which she requested that she and David be granted joint custody- of their son, with her being designated as the domiciliary parent. David answered and filed a reeonventional demand in which he ■ also requested that joint custody of their son. be awarded him and Mirla, with him being designated the domiciliary parent. Both parties alleged the need for child support from the opposing party. An interim judgment was rendered on May 1, 2014, which awarded joint custody of the child to both parties, named Mirla as the domiciliary parent, subject to David’s reasonable visitation rights, and ordered David to pay child support of $188.00 on the first and fifteenth of April and May 2014.

Thereafter, the parties entered into a consent judgment in open court on July 22, 2014. The parties agreed that they would share joint custody of their son, with Mirla being designated the domiciliary parent, subject to David’s visitation rights. They further agreed that David-would pay child support to Mirla in the amount of $750.00 per month, beginning on August 1, 2014. A written judgment was rendered by -the trial court and filed of record on January 22, 2015. A judgment of divorce was further rendered by the trial court on April 14, 2015. ■

On August 2, 2016, David moved to modify his child support obligation due to a significant change in, his circumstances caused by his change of employment | ¡¡from an associate professor to a real estate agent. He stated that as of September 1, 2015, he was no longer employed by the University of Texas—rPan American, but was currently residing in Michigan, where his gross monthly income was based solely on the commissions he earned selling real estate. He claimed that he experienced a drastic decrease in his income as a result, which warranted a modification in his child support obligation. Hé further requested that Mirla be ordered to court to show cause why the child support obligation should not be set according to Louisiana’s uniform child support guidelines.

In response to this' motion, Mirla presented her child support award to the State of Louisiana, Department of, .Children and Family Services, which filed, an ex parte motion to have the trial court’s January 22, 2015 child support order transferred to the state for enforcement and modification pursuant to La. R.S. 46:236.2(A)(1). An order transferring the matter to the state was .issued by the trial court on September, 19, 2016, The state then filed an ex parte motion for entry of an immediate income assignment pursuant to La. R.S. 46:236.3. This order was issued by the trial court on September 22, 2016.

Following an October 12, 2016 hearing, the trial court, denied David’s motion to modify his child support obligation, finding that he was voluntarily underemployed. A written judgment was rendered by the trial court on October 24, 2016. It is from this judgment that David appeals.

David raises three assignments of error on appeal:

1. The trial court erred in determining that Mr. Martinez was [vjoluntarily underemployed.
2. The trial court erred in declining to reduce Mr. Martinez’s child support obligation to a level consistent with the income offered by Arkansas State University.
3. The trial court exceeded its authority to question Mr. Martinez.

JjOPINION

The law and jurisprudence pertaining to modification of child support awards was set out in Bonnecarrere v. Bonnecarrere, 09-1647, pp. 9-10 (La.App. 1 Cir. 4/14/10), 37 So.3d 1038, 1045-46, writ denied, 10-1639 (La. 8/11/10), 42 So.3d 381, as follows:

The party seeking modification of a child support award bears the burden of proving that .a material change in circumstances has occurred since the time of the previous award and the’time of the rule for modification of the award. La. R.S. 9:311(A); see La. C.C. art. 142; see also Barton v. Barton, 05-1190, p. 5 (La.App. 1st Cir. 6/9/06), 938 So.2d 779, 781. Louisiana jurisprudence distinguishes between voluntary and involuntary changes in circumstances. An involuntary change in circumstances results from fortuitous events or other circumstances beyond a person’s control, such as loss of one’s position or illness and may support a modification of child support. A voluntary change in circum- . stances, however, generally does not justify a reduction in the support obligation. When a parent voluntarily terminates his or her employment upon which the original, support obligation- was based, the child support obligation may be reduced if the obligor parent can show that: (1) a change in circumstances has occurred; (2) the voluntary change in circumstances is reasonable and justified; (3) the parent is in good faith and not attempting to avoid his or her alimentary obligation; and. (4) the action will not deprive the child of continued reasonable financial support. Strange v. Strange, 42,318, p. 7 (La.App. 2nd Cir.6/20/07), 960 So.2d 1223, 1228-1229.
The trial court is afforded wide discretion in determining whether the facts of a particular case warrant modification of an obligor parent’s child support obligation. Accordingly, such determinations will not be disturbed on appeal absent a clear abuse of discretion. See Folse v. Folse, 01-0946, p. 4 (La.App. 1st Cir. 5/10/02), 818 So.2d 923, 925; Strange, 42,318 at p. 8, 960 So.2d at 1229.

David testified that he currently lives in Milan, Michigan, where he is licensed to sell real estate and health insurance. He said that he has only had these licenses for five and six months, respectively, and that previously, he received weekly unemployment benefits of $428.00 for four and one-half months. After these benefits ran out, David testified that he lived off of $12,000.00 he realized from selling his home in Texas. He stated that he is now paid strictly by ^commission and that he will soon receive $3,500.00 from a house closing. He stated that his expenses in Michigan include his vehicle insurance, food, office fees, and a $1,000.00 per year realtors’ fee. He said that he lives with his mother and does not pay rent; although he does help with the utilities. He stated that he is paying a $13,000.00 credit card bill from-his and Mirla’s marriage. Additionally, he admitted that he has a retirement account in Texas, with a balance of $167,000.00, and an inactive retirement account in another state, which has a balance of approximately $5,000.00.

Prior to moving to Michigan, David testified that he was employed as a tenured associate professor of graphic design at the University of Texas-Pan American (UTPA), where he earned approximately $60,000.00 per year. He said that he has taught for fourteen years at four or five universities.' David testified that both he and Mirla were teaching at UTPA when they decided to move to Natchitoches and teach at Northwestern State University (NSU). He stated that he taught at NSU for one semester and then returned to UTPA, while waiting for NSU to offer him a permanent position. While teaching at NSU, he said that he taught online courses for UTPA, with the approval of his dean. However, when he returned to UTPA, David stated that he lost his position there because he failed to fill out paperwork in regards to the number of hours he worked. It was at this time that he also received notice that Mirla, who was still teaching at NSU, had filed for divorce. He stated that NSU never offered him a position.

After he was let go by UTPA, David testified that he applied for teaching positions at approximately twenty universities, including UTPA. He stated that he was offered a one-year position at Arkansas State University for $42,000.00, but that he declined the position because it was not a tenured position and was only for a one year contract at the time it was offered. Instead, David testified that he ^decided to move to Michigan in order to spend time with his father, Who had lung cancer. Although he admitted that he would have been closer to his son had he taken the position in Arkansas, he said that he felt that it was more important for him to be with his father in Michigan. He stated that he moved in with his parents and helped care for his father, who passed away a week prior to the hearing.

Although he had no previous experience selling either real estate or health insurance, David testified that he decided that he wanted to be his own boss. He stated that he did not want to run the risk that he would build up a program and then be dropped from it after he acquired tenure, as happened at UTPA.

At the close of evidence, the trial court denied David’s motion due to the fact that he left a tenured position with UTPA for a speculative position with NSU, and then after losing his position at UTPA, he turned down a position with Arkansas State University. The trial court held that even though the school offered David a non-tenured track position for one year at a lower salary, this position could have led to further employment based on his job performance. It further held that David’s child support obligation would remain at $750.00 per month.

After reviewing the record, we find that the trial court did not abuse its discretion by finding that David was voluntarily underemployed and that his underemployment was neither reasonable nor justified. Although David’s loss of his position with UTPA was involuntary, it resulted from his failure to fill out paperwork required by UTPA prior to or during his one-semester position at NSU. See Anderson v. Anderson, 11-864 (La.App. 5 Cir. 5/31/12), 96 So.3d 1278. Moreover, he turned down a teaching position paying $42,000.00, because it was based on a one year contract and was a non-tenured position, and chose instead to move fifteen hours away from his son and live off of unemployment benefits while he pursued real estate and insurance licenses. Based on the foregoing, we affirm | fithe trial court’s judgment denying David’s motion to modify his child support obligation and maintaining his child support payment at $750.00 per month. Accordingly, we find no merit in his first and second assignments of error.

We further find no merit in David’s third assignment of error.

Under Louisiana Code of Evidence Article 614, a judge may question witnesses. Generally, a judge, in order to maintain the impartiality which proper trial technique demands, should be very careful, not only as to the number and type of questions propounded by him to witnesses, but also as to the manner in which they are propounded. Texas Pacific-Missouri Pacific Terminal R. of New Orleans v. Welsh, 179 F.2d 880 (5th Cir.1950); Patin v. DeStevens, 415 So.2d 1011 (La.App. 4th Cir.1982). In order to adjudicate a matter fairly, the trial court is well within the scope of its duty when it initiates questions from the bench. La. C.C.P. art. 1631; Midyett v. Midyett, 32,208, (La.App. 2nd Cir.9/22/99), 744 So.2d 669; LaPierre v. Gibson, 420 So.2d 990 (La.App. 4th Cir.1982), writ denied, 423 So.2d 1150 (La.1982); Williams v. Western Preferred Casualty Insurance Company, 465 So.2d 191 (La. App. 3rd Cir.1985). As noted by the Third Circuit in Williams:
[I]n a bench trial, as in this one, the dangers inherent in questions from the bench are greatly mitigated because there is no jury to confuse or mislead. The trial judge was merely enabling himself to better understand the crucial testimony of the claimant.

Ledet v. Ledet, 04-509, pp. 4-5 (La.App. 5 Cir. 3/29/05), 900 So.2d 986, 988 (quoting Williams v. Western Preferred Cas. Ins. Co., 465 So.2d 191, 194 (La.App. 3 Cir. 1985)).

Although David claims that the trial court exceeded its authority by asking him thirty-one questions as opposed to the thirty questions asked by his own counsel, we find, by our own count, that the trial court asked approximately fifteen questions. The difference in numbers arises from the fact that David appeared at the hearing via Skype from Michigan and experienced difficulty in hearing the trial court’s questions, which required the trial court to ask the same questions multiple times. No matter the difference in the number of questions, the trial judge, in this bench trial, certainly acted within her discretion by asking questions in order to clarify the evidence in her mind. State v. Layssard, 310 So.2d 107 (La.1975). Accordingly, we find no merit in this assignment of error.

DISPOSITION

Based on the foregoing, the judgment of the trial court is affirmed. The costs of this appeal' are assessed to David Andrew Martinez.

AFFIRMED.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Shawn CORMIER, et al. v. CITGO PETROLEUM CORPORATION, et al.
    CA 17-104
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017
    Rehearing Denied November 22, 2017

      Robert E. Landry, Kevin P. Fontenot, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, Suite 900, Lake Charles, LA 70601, (337) 433-9436, COUNSEL FOR DEFENDANT/APPELLANT: CITGO Petroleum Corporation
    Kirk Albert Patrick, III, Donahue, Patrick & Scott, 450 Laurel St., Suite 1600, Baton Rouge, LA 70801, (225) 214-1908, COUNSEL FOR DEFENDANT/APPEL-LEE: R & R Construction, Inc.
    Wells Talbot Watson, Jake D. Buford, Bagget, McCall, Burgess, Watson & Gau-ghan, P.O. Drawer 7820, Lake Charles, LA 70605-7820, (337) 478-8888, COUNSEL FOR PLAINTIFFS/APPELLEES: Far-ren Wayne McClelland, Tyrone Whotte, Joshua David Moneeaux, Shawn Cormier, David Paul Savoie, Matthew Aaron Fruge, Wilber Joseph Istre, Chris Robert LaBou-ve
    Marshall Joseph Simien, Jr., Simien Law Firm, 2129 Fitzenreiter Road, Lake Charles, LA 70601, (337) 497-0022, COUNSEL FOR DEFENDANT/APPELLANT: CITGO Petroleum Corporation
    Richard Elliott Wilson, Cox, Cox, Filo, Camel & Wilson, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFFS/APPEL-LEES: Joshua David Moneeaux, David Paul Savoie, Farren Wayne McClelland, Chris Robert LaBouve, Wilber Joseph Is-tre, Tyrone Whotte, Shawn Cormier, Matthew Aaron Fruge

      Craig Isenberg, Kyle W. Siegel, Joshua 0. Cox, Barrasso Usdin Kupperman Freeman & Sarver, L.L.C., 909 Poydras, 24th Floor, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT/APPELLANT: CITGO Petroleum Corporation
    Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
   EZELL, Judge.

| ¶ This appeal involves another group of Plaintiffs who were affected by the slop oil release from the CITGO refinery in Lake Charles on June 19, 2006. These particular seven Plaintiffs were working in different capacities at the Calcasieu Refining Company. After several days of trial in January, 2016, before a judge, the trial court ruled that the Plaintiffs’ injuries were caused by the slop oil release. The trial court then awarded damages to the individual Plaintiffs based on their particular injuries. CITGO Petroleum Corporation appeals the award of damages to the Plaintiffs claiming they were an abuse of discretion and should be reduced.

FACTS

On June 19, 2006, CITGO experienced a slop oil release from its Wastewater Treatment Unit. Slop oil is the waste product that comes from all over CITGO’s refinery. Approximately four million gallons of slop oil was released due to an overflow in the stormwater tanks, and about one-third of that reached the Calcasieu River. Seventeen million gallons of hazardous wastewa-ter was released, with a significant amount of wastewater also reaching the Calcasieu River.

At the time of the spill, CITGO’s Material Safety Data Sheet required minimum protective equipment of safety goggles or glasses, a rain coat or chemical suit, and fresh air. Many hazardous chemicals are contained in slop oil, including benzene, which has been known to cause cancer at very low concentrations. Polyaromatic hydrocarbons are also a component of slop oil and are also hazardous to one’s health.

Calcasieu Refinery is located downriver from CITGO. Fifteen days after the release, heavy oil was still located around Calcasieu Refinery. The seven Plaintiffs in the present case were working at the Cal-casieu Refinery at the time of the spill. |2Not all of the Plaintiffs were working for the same employer at the time, but many of their symptoms following exposure to the spill were very similar.

A trial was held in January 2016. After trial, the trial judge found that “the slop oil spill from the Waste Water [sic] Treatment Unit ... and storage facility surrounded the work area of the Calcasieu Refinery.” “[C]lean up lasted approximately two months and for the most part, the plaintiffs were exposed on a daily basis.” Finding that the Plaintiffs’ injuries were caused by the slop oil spill, the trial judge further stated:

Taking the evidence as a whole, the Plaintiffs have established that more probably than not, the admitted negligence of the spill was a cause-in-fact of their various injuries. While the symptoms varied for each Plaintiff, the related symptoms included health issues identified on CITGO’s own Material Safety Data Sheet .... All of the Plaintiffs were examined by Dr. Robert Looney, and his opinion based on a reasonable medical probability is that all of the Plaintiffs [sic] symptoms were a result of their exposure.

The trial judge then went on to award damages to each individual Plaintiff as follows:

David “Shawn” Cormier

Medical Expenses $428.00

General Damages (pain and suffering) $24,500.00

General Damages (fear of developing disease) $10,000.00

General Damages (loss of enjoynpit of life) $5.000.00

Total $39,928.00

Farren Wavne McClelland

Medical Expenses $280.00

General Damages (pain and suffering) $25,000.00'

General Damages (fear of developing disease) $15,000.00

General Damages (loss of enjoyment of life) $7,500.00

Total $47,780.00

Christoplier LaBouve

Medical Expenses $367.00

General Damages (pain and suffering) $21,000.00

General Damages (fear of developing disease) $15,000.00

General Damages (loss of enjoyment of life) $5,000,00

Total $41,367.00

Matthew Joseph Fruge

Medical Expenses $455.00

'General Damages (pain and suffering) $38,500,00

General Damages (fear of developing disease) $15,000.00

General Damages (loss of enjoyment of life) $5,000.00

Total $58,955.00

Tyrone Hollis Whotte

Medical Expenses r .$1,002.00

General Damages (pain and suffering) , $21,000.00

General Damages (fear of developing disease) $10,000.00

General Damages (loss of enjoyment of life) . $5,000.00

Total ' $37,002.00

David Paul Savoie

Medical Expenses $567.00

General Damages (pain’and suffering) $24,500.00

General Damages (fear of developing disease) $15,000,00

General Damages (loss of enjoyment of life} $7,500,00

Total . . $47,567.00

Joshua David Monceaux

Medical Expenses ■ o o ,s ⅛ ■⅜-

General Damages (pain and suffering) o O o' o q vi in

General Damages (fear of developing disease) o © o o m ⅞—i

General Damages (loss'of enjoyment of life) o o' o © o •—*

$80,467.00 Total

CITGO then filed the present appeal complaining about the amount of the award of general damages to each of the Plaintiffs.

DAMAGES

‘ CITGO claims that the trial judge abused her discretion in her awards of general damages to each of the Plaintiffs because .the awards were significantly higher than the awards previously affirmed by'this court in Arabie v. CITGO Pet. Corp., 10-334 (La.App. 3 Cir. 10/27/10), 49 So.3d 985, writ denied, 10-2618 (La. 5/4/12), 88 So.3d 449, and Arabie v. CITGO Pet. Corp., 15-324 (La.App. 3 Cir. 10/7/15), 175 So.3d 1180, writ denied, 15-2040. (La. 1/8/16), 184 So.3d 694. CITGO also claims that the Plaintiffs’ awards were grossly.out of proportion to the medical expenses they incurred as a result of their exposure .to the slop oil. CITGO also argues that the Plaintiffs’ damages were calculated using a mathematical formula proposed by Plaintiffs.

“General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty.” Bouquet v. Wal-Mart Stores, Inc., 08-309, p. 4 (La. 4/4/08), 979 So.2d 456, 458.

The standard of review applicable to a general damage award is the abuse of discretion standard. The trier of fact is afforded much discretion in assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. An appellate court may disturb a damages award only after an articulated analysis of the facts reveals an abuse of discretion. The role of an appellate court in reviewing a general damages award 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. To determine whether the fact finder has abused its discretion, the reviewing court looks first to the facts and circumstances of the particular case.
Only if a review of the facts reveals an abuse of discretion, is it appropriate for the appellate court to resort to a review of prior similar awards. In a review of the facts, the test is whether the presept award is greatly disproportionate to the mass of past awards for truly similar injuries. Prior awards, however, are only a guide.

Id. at 459 (citations omitted).

Therefore, we will first look at the particular injuries these particular - Plaintiffs faced as a result of their exposure to the CITGO slop oil release in 2006. Only if we find an abuse of discretion in the awards for their injuries, will we then resort to a review of the awards in the prior cases before this court as urged by CITGO.

| .-¡Dr. Robert Looney examined all the Plaintiffs. At the time he practiced in the fields of general, occupational, and environmental medicine. The tuning of the onset of the symptoms and similarity of symptoms was very strong evidence that the release of the slop oil by CITGO caused injury to the Plaintiffs. He recognized that the Plaintiffs had normal lab and test results but explained that the normal results only helped rule out other causes for the symptoms the Plaintiffs were experiencing.

Most of the Plaintiffs experienced symptoms for about half a year with the exception of Mr. Monceaux who experienced symptoms for almost two years. While Dr. Looney agreed that the Plaintiffs returned to their baseline health and that most of the Plaintiffs would have no long-lasting effects from the exposure, he explained that there is still a possibility that one or more of them could have some future issues that might develop as a result of the exposure. This is due to the fact that the Plaintiffs were exposed to a toxic substance which contained benzene, a well-known carcinogen. Dr. Looney stated that there is no treatment for benzene exposure.

The evidence in the record revealed that the individual Plaintiffs suffered with following problems following their exposure to the slop oil release.

Shawn Cormier

Mr. Cormier was a mechanic for Philip Services Corporation (PSC), an environmental cleanup company and was sent by PSC to Calcasieu Refinery to help clean up the oil off the boats, rocks, barges, and docks. He was out there for thirteen days. Mr. Cormier worked eighteen hours the first day. He testified that there was a very strong smell of a mixture of chemicals and a muggy odor, which lasted the entire job. He wore-a slicker suit, rubber boots, and -rubber gloves. |fiHowever, he did get slop oil on himself when he changed into his regular clothes. He was not given a respirator until the middle of the job.

Mr. Cormier experienced sinus headaches and allergy and sinus problems for six to seven months after the exposure. He also had dry skin, redness on his arms, and could not sleep at night. He also experienced fatigue. He did not want to get up and go to work. Mr. Cormier stated that he had none of these problems before the exposure to the slop oil. As a result of his exposure, he is afraid he might get cancer in the future.

Farren Wayne McClelland

Mr. McClelland worked for Thermal Insulation installing scaffolding at Calcasieu Refinery at the time of the slop oil release. He could smell a strong chemical smell the whole time he was out there. As a result of his exposure to the slop oil, he had headaches, trouble sleeping, sinus problems, burning eyes, nausea and vomiting, diarrhea, dizziness, and exhaustion. Mr. McClelland had none of these issues prior to his exposure to the slop oil and experienced these problems for nine to ten months after his exposure.

He had to wake up in the mornings and force himself to go to work. It was difficult for him to perform tasks at work. Mr. McClelland was concerned about his future health due to his exposure to the slop oil and does not want his family to watch him die from cancer.

Christopher LaBouve

-At the time of the slop oil release, Mr. LaBouve was working for Ron Williams Construction at Calcasieu Refinery as general foreman. His first encounter with the release was when he turned onto Big Lake Highway and he could smell a petroleum-like smell. He had no symptoms before the slop oil 17release, but after the release, he suffered with headaches, sinus problems, burning eyes, burning nose, dizziness, nausea, and vomiting for six months. The sinus problems made it hard to sleep at night and hard to get through the work day. Headaches made it hard for him to do his job.

Mr. LaBouye testified that he was worn out in the evenings when he got home and just wanted to sleep. He couldn’t help his wife or do his chores. He knows.he was exposed to chemicals that cause cancer which is one of the biggest fears of his life because his stepfather recently died from cancer.

Matthew Joseph Fruge

Mr, Fruge worked for PSC cleaning up the slop oil at Calcasieu Refinery at the time of the slop oil release. He noticed a strong chemical ancl oil smell at the time. Mr. Fruge worked at Calcasieu Refinery for a week-and-a-half to two weeks. He suffered with fatigue, problems sleeping at night, coughing, sinus problems, and diarrhea. Mr. Fruge also had shortness of breath which lasted eleven months. His fatigue and sleeping issues lasted six to seven months.

Mr. Fruge explained that he wanted to sleep all the time because he was not getting any rest. He also was concerned about getting cancer in the future.

Tyrone Hollis Whotte

Mr. Whotte was building scaffolding for Thermal Insulation at Calcasieu Refinery at the time of the slop oil release. He testified' that there was an ongoing smell that lasted several weeks to a month. He experienced nausea and vomiting the first - day, Mr. Whotte also suffered with dizziness, severe headaches, and sinus problems, in addition to insomnia. The sinus issues and headaches lasted six to seven months. These problems affected his ability to perform his daily activities. He too has major concerns about his future health due to his exposure to slop oil.

IgDavid Paul Savoie

At the time of the slop oil release, Mr. Savoie was working for Thermal Insulation at Calcasieu Refinery erecting scaffolds and operating a fork lift. He remembers a strong odor in the air. He experienced headaches worse than he had experienced in the past, trouble breathing, sinus problems, dizziness, nausea, anxiety, and depression. He éxperienced these issues for about seven months.

As a result of these issues, Mr. Savoie had a lot of family issues and could not sleep. He missed four days of work. Additionally, Mr. Savoie had a cousin who contracted leukemia from exposure to Benzene, so he is concerned about getting cancer also.

Joshua David Monceaux

-Mr. Monceaux worked for Thermal-Insulation at Calcasieu Refinery at the time of the slop oil release. He testified that he smelled an oily smell when he went to work on Monday morning. At the end of the day, he was sent to CITGO to build a scaffold and saw oil inside the levy where it had spilled out of the tank. He was not provided with a respirator when he went to CITGO.

The smell lasted a little more than a month and caused headaches, nausea, sinus problems, shortness of breath, sleep issues, and fatigue. The headaches and sinus' problems lasted two years.

Mr. Monceaux testified that he had none of these problems before the slop oil release. Additionally, he was active before the release but tired all the time after the release.

•' Mr. Monceaux testified that he is concerned about his future health because he knows slop oil exposure can cause leukemia. His sister died of leukemia and it is something he does not want to go through.

laWhile the awards are on the high end for the injuries suffered by the Plaintiffs, we cannot say that the amounts awarded by the trial judge were an abuse of her discretion. Her reasons for judgment indicated that she considered each individual case and awarded damages accordingly. Therefore, there is no need for us to review awards made in other cases..

We also do not find ‘ the awards unreasonable because they are grossly disproportionate in relation to the medical expenses incurred. In Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70, the supreme court was faced with a situation in which a fact finder determined that a defendant was legally at fault for a plaintiffs injuries and liable for medical expenses incurred, but declined to make an award for general damages. In addressing this issue, the supreme court had to determine whether the awards were inconsistent and whether the fact- finder, abused its discretion. The supreme court determined that it is possible that a plaintiff may prove entitlement to recovery of certain medical costs, yet fail to prove that he has suffered any general damages as a result of defendant’s fault such that an abuse of discretion by the trier of fact has not occurred'.

Obviously, there is not necessarily a connection between an award of medical expenses and an award of general damages. It depends orí the facts of each case. As such, the present case is clearly one in which there -are -evidently injuries -that present- many objective symptoms that lasted from six months to twenty-two months. Medical -testimony necessarily confirmed the Plaintiffs symptoms were caused by exposure to the release. As testified to by Dr.. Looney, only time would relieve the symptoms experienced by the Plaintiffs. No medical treatment would help. Therefore, medical expenses would be low in comparison to the general damages suffered by the Plaintiffs,.

ImWe do not find that the trial court’s awards of general damages to the Plaintiffs were an abuse of discretion in comparison to the awards of medical damages when only’ time would ease the many symptoms and problems experienced by the Plaintiffs.

Finally, CITGO argues- the trial judge abused her discretion in her award of physical pain and suffering damages because she used a mathematical formula of $3,500.00 a month for five of the seven plaintiffs as suggested by Plaintiffs’ counsel in closing arguments.

The use of a mathematical formula by the trial court judge is mere speculation on the part of CITGO. The trial judge set forth specific reasons as to. the award of damages made to each individual Plaintiff. There is no indication she used a mathematical formula. We find no merit to. CIT-GO’s argument and therefore, find no abuse of discretion in the trial court’s award of .damages.

For the reasons set forth in this opinion, the judgment of the trial court is affirmed. Costs of this appeal are assessed to CIT-GO.

AFFIRMED.

      . The petition refers to "Matthew Aaron Fruge” while the judgment and briefs on appeal refer to "Matthew Joseph Fruge.” Therefore, we refer to Plaintiff as "Matthew Joseph Fruge" for in this opinion.


author: SAUNDERS, JUDGE.

text:
    STATE of Louisiana v. Raymond Daniel LOWREY
    17-399
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017

      Asa Allen Skinner, District Attorney, Thirtieth Judicial District, Terry W. Lam-bright, First Assistant District Attorney, P. 0. Box 1188, Leesville, LA 71446, (337) 239-2008, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Chad M. Ikerd, Louisiana Appellate Project, P.O. Box 2125, Lafayette, LA 70502, (225) 806-2930, COUNSEL FOR DEFENDANT/APPELLANT: Raymond Daniel Lowrey
    Court composed of John D. Saunders, John E. Conery, and D. Kent Savoie, Judges.
   SAUNDERS, JUDGE.

| defendant, Raymond Daniel Lowrey, was charged by bill of information filed on August 9, 2016, with failure to comply with the conditions of supervised release, a violation of La.R.S. 15:561.7. On December 9, 2016, Defendant pled guilty to the offense, and was sentenced on February 14, 2017, to serve four years at hard labor. The sentence was to be served without benefit of probation, parole, or suspension of sentence and concurrently to any other sentence Defendant was subject to receiving. A motion to reconsider sentence was filed on March 2, 2017, and was denied. A motion for appeal and designation of record was filed on March 7, 2017. The motion was granted the following day.

Defendant is now before this court asserting two claims: 1) his conviction for failure to comply with supervised release conditions constituted double jeopardy, and 2) his sentence is excessive.

FACTS:

Defendant is a convicted sex offender, as he previously pled guilty in Vernon Parish to two counts of indecent behavior with juveniles. The victims of the offenses were under the age of thirteen. Therefore, Defendant was placed on supervised release with various conditions at the time he was discharged from prison. Defendant later failed to comply with the conditions of his supervised release when he committed a criminal act in Calcasieu Parish.

ASSIGNMENT OF ERROR NO. 1 h

Defendant contends his conviction for failure to comply with supervised release conditions constitutes double jeopardy in this case because he had already pled guilty to the same act that resulted in his conviction for violating a different statute in another case. We find merit to this contention.

|2The State argues a double jeopardy claim is not an error patent, and because Defendant improperly labeled the claim an error patent and not an assignment of error, the claim should not be addressed. The State cites State v. Arnold, 01-1399 (La. 4/12/02), 816 So.2d 289, in support of its claim.

In State v. Sanders, 93-01, p. 14 (La. 11/30/94), 648 So.2d 1272, 1284, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996), the supreme court stated: “the title of a pleading does not matter, but rather ‘courts should look through the caption of pleadings in order to ascertain their substance and to do substantial justice ... ’ Smith v. Cajun Insulation, 392 So.2d 398 (La.1980).” In Lomont v. Myer-Bennett, 16-436, p. 5 (La. App. 5 Cir. 12/14/16), 210 So.3d 435, 441, writ denied, 17-88 (La. 2/24/17), 216 So.3d 59, the fifth circuit stated:

[I]n situations where a mistitled pleading clearly identifies the issue being raised, and adequately sets out the mover’s arguments on that issue and the relief requested, such that notice and due process requirements are sufficiently satisfied, this Court, in the interest of justice, will routinely look beyond the title of the pleading and address the merits of the issue raised.

Based on these cases, we look beyond Defendant’s classification of the error as an error patent to address Defendant’s claim.

Double jeopardy stands for the proposition that no person shall twice be put in jeopardy of punishment for the same offense. U.S. Const, amend. V. The clause protects against three distinct double jeopardy situations: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

State v. Thomas, 14-820, pp. 5-6 (La.App. 3 Cir. 3/4/15), 159 So.3d 1115, 1119, writ denied, 15-729 (La. 3/14/16), 189 So.3d 1064.

This court has employed the “same evidence” test. State v. Solomon, 379 So.2d 1078 (La.1980); State v. Smith, 323 So.2d 797 (La.1975); State v. Didier, 262 La. 364, 263 So.2d 322 (1972); State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972); State v. Knowles, 392 So.2d 651, 654 (La.1980).
The “same evidence “test is used to determine whether double jeopardy has occurred.
The “same evidence” test depends upon the proof required to convict, not the evidence actually introduced at trial. State v. Doughty, supra, [379 So.2d 1088 (La.1980) ]. Thus, if the evidence necessary to support the second indictment would have been sufficient to support the former indictment, double jeopardy prohibits the second prosecution. State v. Richardson, 220 La. 338, 56 So.2d 568 (1951); State v. Foster, 156 La. 891, 101 So. 255 (1924); State v. Roberts, 152 La. 283, 93 So. 95 (1922).

State v. Knowles, 392 So.2d 651.

This court must look to the charging documents, plea colloquy, and the applicable statutes to analyze Defendant’s claim. The bill of information charging Defendant with a violation of La.R.S. 15:561.7 states: “on or about November 9, 2015, defendant did fail to comply with the conditions of supervised release ....” At the time Defendant entered'his plea, the following factual basis was provided:

[B]ack on November the 9th,- 2015, this defendant, did fail to comply with the conditions of supervised release. State would show that back on September the 2nd, 2009, this defendant pled guilty to two counts of indecent behavior with a juvenile where the victim-in the case— one was eight and the other count, the victim was nine. On August the 26th, 2011, this defendant signed conditions of his supervised release. He was to remain on supervised release for life and this defendant is aware of that. One of his conditions stated that he would live and remain at liberty and refrain from engaging in any type pf criminal activity. State would be prepared to show that on November the 9th of 2015, that in the Fourteenth Judicial District down in Lake Charles, Louisiana this defendant pled guilty to failure to carry sex offender identification' card in violation of R.S. 14:1321J [sic], which is a violation of condition number eleven of the supervised release form to which he signed. The State would assert that this all occurred in Vernon Parish, State of Louisiana, and asks that all of the answers to discovery be made a part of my factual recitation.

The offense of failure to comply with the conditions of supervised release is governed by several statutes. In State v. Trosclair, 11-2302, pp. 6-10 (La. 5/8/12), 89 So.3d 340, 344-47 (footnotes omitted), the supreme court discussed those statutes as follows:

[W]e begin our discussion with an overview of the regulatory scheme of supervision and the statutory provisions governing this scheme, La.Rev.Stat, §§ 15:561 through 15:561.7, added by Acts 2006, No. 242, § 1, effective August 15, 2006, provide for supervised release of certain sex offenders who committed their crimes .upon children under thirteen years of age. In Section 561, the Legislature sets forth its findings associated with the enactment of the supervised release laws:
Under Section 561,1, the supervised rer lease provisions apply to any person convicted, on or after the effective date pf the act, of a sex offense as defined in La.Rev.Stat. § 15:541, when the victim is under thirteen years of age. According to Section 561.3, supervised release is administered by the Department of Public Safety and Corrections, division of probation and parole, and supervised release officers have the powers and duties of parole officers. Section 561.4 directs the trial court at sentencing as well as the Department of Public Safety and Corrections to inform the offender he will bé placed on supervised release and of the conditions of supervision.
Section 561.6 directs the Department of Public Safety and Corrections to adopt rules necessary to implement these provisions, and Section 561,7 provides the penalties for failing to comply with the conditions of supervised release, which include fines up to three thousand dollars and imprisonment with hard labor from two to twenty years “without benefit.”
[Of particular relevance herein, Section 561.2 governs the commencement and duration of supervision]

In its present form, La.Rev.Stat. § 15:561.2 now provides:

B. Any person placed on supervised release pursuant to the provisions of this Section shall be on supervised release for life from the date of release from incarceration. Notwithstanding any other provision of law to the contrary, any person who was placed upon supervised release pursuant to the provisions of this Section, may petition the sentencing court for a termination of the supervision.

For double jeopardy purposes, the second offense at issue herein is failure to comply With the conditions of supervised release, by failing to carry a sex offender identification card; which is a violation of the conditions of supervised release. | ^Louisiana Revised Statutes 40:1321(J) provides for the issuance of special identification cards to sex offenders as follows:

(1) • Any person required to register as a sex offender with the Louisiana Bureau of Criminal Identification and-Information, as required by R.S. Í5:542 et seq., shall obtain a special identification card issued by the Department of Public Safety and Corrections which shall contain a restriction code declaring that the holder is a sex offender. This special identification card shall include the words “sex offender” in all capital letters which are orange in color and shall be valid for a period óf one year from the date of issuance. This special identification card shall be carried on the person at all times by the individual required to register as a sex offender.
(2) Each person required to carry a special identification card pursuant to this Subsection shall personally appear, annually, at a field office of the office of motor vehicles to renew his or her special identification card but only after he or she has registered as an offender pursuant to R.S. 15:542 et seq. Reregistration shall include the submission of current information to the department and the verification of this information, which shall include the street address and telephone number of the registrant; the name, street address arid telephone number of the registrant’s employer, and any registration information that may need to be verified by the bureau. ■ No special identification card shall be issued or renewed until the office of motor vehicles receives confirmation from the; bureau, electronically or by other means,, that the .reregistration of the sex offender has been completed.
(3) The provisions of this Subsection shall apply to all sex offenders required to register pursuant to R.S. 15:542-et seq., regardless of the date of conviction.
(4) Whoever violates this Subsection shall be fined not less than one hundred dollars and not more than five hundred dollars, or imprisoned for not more than six months, or both.

Louisiana Revised, Statutes 15:542 states, in pertinent part:

A. The following persons shall be required to register and provide notification as a sex offender or child predator ih accordance with the provisions of this Chapter: -
(1) Any adult residing in this state who has pled guilty to, has been convicted of, or where adjudication has been deferred or withheld for the perpetration or attempted perpetration of, or any conspiracy to' commit either of the following:
|fi(a) A sex offense as, defined in R.S. 15:541, with the exception of those convicted of felony carnal knowledge of a juvenile as provided in Subsection F of this Section.

The bill of information indicates the violation of La.R.S. 15:561.7 occurred on about November 9, 2015, which was the date Deferidant pled guilty to failing to carry his sex offender card in Calcasieu Parish. The failure to carry his sex offender card in Calcasieu Parish-was a violation of the conditions of supervised release in Vernon Parish. Thus, Defendant’s Calca-sieu Parish plea was used as the factual basis for his plea in Vernon Parish. Defendant argues that his- conviction for failing to comply with the provisions of supervised release in Vemon Parish constitutes double jeopardy since the same act had already been punished through his conviction for failing to carry his sex offender identification card in Calcasieu Parish. Consequently, Defendant argues the trial court did not have the power to enter the conviction at issue herein.

We review Defendant’s claim under the “same evidence” test. Under the same “same evidence” test, Defendant argues he was twice placed in jeopardy for failing to carry his identification card for sex offenders on one particular occasion in Calcasieu Parish. He alleges his failure to carry the card was necessary to convict him under both statutes.

We find that the single act Defendant committed, failing to carry his sex offender identification card in Calcasieu Parish, was the determinative factor, in a successful prosecution of failure to carry a sex offender identification card and failure to comply with the conditions of supervised release in Vernon Parish. In other words, without the failure to carry his sex offender identification card, both charges would have failed. Accordingly, after considering State v. McMooain, 95-2103 (La.App. 1 Cir. 9/27/96), 680 So.2d 1370, State v. Knowles, 392 So.2d 651, 654 (La.1980), and State ex rel. Bradley v. State, 08-346 (La. 2/13/09), 1 So.3d 459, we find that the prosecution of Defendant for failure to comply with the conditions of supervised release in Vernon Parish constituted double jeopardy.

In McMooain, 680 So.2d at 1375, the first circuit discussed the remedy for a double jeopardy violation:

The procedure for remedying a violation of double jeopardy is to vacate the conviction and sentence of the less severely punishable offense, and affirm the conviction and sentence of the more severely punishable. State ex rel. Adams v. Butler, 558 So.2d 552, 553-554 (La.1990).

This court also notes that in Bradley, 1 So.3d 459, the supreme court set aside the defendant’s conviction for armed robbery and ordered his discharge from custody because he had already been convicted of a misdemeanor arising from the same act.

The Defendant’s conviction for failure to comply with the conditions of supervised release constitutes double jeopardy. Thus, his conviction and sentence should be vacated.

ASSIGNMENT OF ERROR NO. 2:

Defendant asserts that the four-year sentence in this case' is excessive. Our finding in Assignment of Error # 1 pretermits this Assignment.

CONCLUSION:

For the foregoing reasons, we vacate the trial court’s February 14, 2017, judgment sentencing Defendant to serve four years at hard labor for failure to comply with the conditions of supervised release. Defendant’s sentence is hereby vacated as his conviction constitutes double jeopardy.

REVERSED AND VACATED.


author: Judge Edwin A. Lombard

text:
    Robert SCHIFF v. Lawrence G. PUGH, III, Frederick T. Haas, III, Alexander L. Burns, and Pugh, Accardo, Haas, Radecker & Carey, LLC
    NO. 2017-C-0529
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 4, 2017

      R. Joshua Koch, Jr., Caitlin Morgen-stern, Jennifer E. Barriere, 650 Poydras Street, Suite 2415, New Orleans, Louisiana 70130, COUNSEL FOR PLAINTIFF/RESPONDENT
    James H. Gibson, Stacy N. Kennedy, ALLEN & GOOCH, A Law Corporation, 200 Kaliste Saloom Rd, Suite 400, Lafayette, Louisiana 70508, & Brent M. Maggio, One Lakeway Center, 3900 N. Causeway Blvd, Suite 1450, Metairie, Louisiana 70002, COUNSEL FOR DEFENDANTS/RELATORS
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Roland L. Belsome)
   Judge Edwin A. Lombard

hln this legal malpractice lawsuit, the defendant/relator attorneys have filed an application for supervisory writ asserting that the district court erred in denying its motion for summary. Pursuant to La. Code Civ. Proc. art. 966(H), the parties were afforded the opportunity to request oral argument and, upon their subsequent request, oral argument was granted.

Our review of the writ application, including all attached exhibits reveals, that the pleading underlying this writ application is a “Peremptory Exception of No Right of Action” filed by the defendant/relator. Throughout the proceedings, the pleading was clearly titled and argued as an exception. Moreover, all references in the pleadings and exhibits before us, including cover letter (dated March 13, 2017) attached to exception, the memorandum attached in support of the exception, and documentation related to service of the pleading refer to it only as a “Peremptory Exception of No Right of Action.” The defendant/relator attached excerpts of the plaintiffs deposition testimony in support of the defendant/relator’s exception of no right of action.

The plaintiff filed a response, entitled “Memorandum in Opposition to Peremptory Exception of No Right of Action,” arguing that an exception was not|a the proper vehicle for raising judicial estoppel and submitted affidavits in support of his memorandum in opposition to the exception. At the hearing on May 19, 2017, the district court agreed, ruling that a peremptory exception of no cause of action was not the proper procedural vehicle to raise the affirmative of judicial estoppel and, thereby, denying the defendant/relator’s exception of no cause of action.

The relator/defendant argued orally that the plaintiff, by attaching exhibits to his opposition to the exception, had converted the defendant/relator’s exception of no right of action into a motion for summary judgment. In response, the district court stated:

But if it’s a motion for summary judgment, it’s a hotly disputed issue of fact as to when Mr. Schiff was aware. And it doesn’t have to be a suspicion. I mean, it’s got to be something more than a suspicion. But when he determined that he did, in fact, have this right to sue the attorneys, the defendants in this case, that’s an issue of fact that on the showing made in the—so far it precludes summary judgment because that a hotly disputed issue of fact, (emphasis added).

The district court ordered counsel to prepare a judgment and, subsequently, signed 'a judgment denying the defendant/relator’s exception with the added proviso: •

' The Court, also having considered and grahted, Defendant’s request that its Peremptory Exception of No Right of Action be converted into a motion for summary judgment, together with mem-oranda, facts, exhibits, and oral argument submitted by respective counsel, and for the reasons orally assigned and dictated into the record:
IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that Defendants’ Motion for Summary Judgment is DENIED.

| aAfter review of the arguments of the parties and the record before us in light of the applicable law, we find that under the circumstances of this case, a motion for summary judgment was not properly before the district court and, accordingly, is not properly before us. Therefore, the defendant/relator!s writ application is denied to part and granted' in part. We find no error in the district court denying the defendant/relator’s exception of no right of action and affirm that judgment. Because a motion for summary judgment was not properly before the court, the district court judgment denying the defendant/relator’s motion for summary judgment is vacated. >

WRIT GRANTED IN PART; DENIED IN PART; JUDGMENT AFFIRMED IN PART; VACATED IN PART

      . The transcript indicates that “Mr. Cook” was ordered to prepare the judgment; we assume that refers to R. Joshua Koch, attorney for the defendanVrelator.


author: Judge Regina Bartholomew-Woods

text:
    Abe LOWE III v. EXXON MOBIL REFINING & SUPPLY, Exxon Mobil Risk Management, Inc.
    NO. 2017-CA-0125
    Court of Appeal of Louisiana, Fourth Circuit.
    10/04/2017

      Leo Caillier III, CAILLIER & ASSOCIATES, LLC, 711 Second Street, Gretna, LA 70053, COUNSEL FOR PLAINtiff/app'ellant
    B. Scott.Cowart, TAYLOR, WELLONS, POLITZ & DUHE, APLC, 8550 United Plaza Boulevard, St. 101, Baton Rouge, LA 70809, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Rosemary Ledét, Judge Regina Bartholomew-Woods, Judge Paula A. Brown)
   Judge Regina Bartholomew-Woods

JjAppellant, Abe Lowe, III, appeals the September 23, 2016 judgment of the Louisiana Office of Workers’ Compensation (the “OWC”) pursuant to La. R.S. 23;1310.5(A)(2). Therein, the OWC held that Appellant failed to meet his burden of proving he was disabled from work, as a result of injuries sustained in a March 30, 2015 work-related- accident. Accordingly, the OWC denied Appellant’s request for additional medical care for his injuries, and rendered judgment in favor of Appellees, Exxon Mobil Refining & Supply and Exxon Mobil Risk Management, Inc. (“Exxon”). For the reasons that follow, we affirm the judgment against Appellant and in favor of Appellees.

FACTUAL BACKGROUND

On March 30, 2015, Appellant was working for .Exxon at its Chalmette Refinery as an Operations Supervisor. At the end of a twelve-hour shift, Appellant tripped on railroad tracks at his worksite, causing injury to his left shoulder. On January 15, 2016, Appellant filed a “Disputed Claim for Compensation” that alleged he was entitled to wage benefits (which his employer terminated on December 15, 2015), medical treatment to include physical therapy and epidural [{.steroid injections, and disability. Exxon disputed the claims as unrelated to Appellant’s fall at work.

Trial proceeded before the OWC on June 29, 2016. The parties stipulated that the March 30, 2015 accident occurred in the course and scope of Appellant’s employment with Exxon. Additionally, the parties agreed that Exxon had paid all of Appellant’s medical expenses through June 23, 2015.

Appellant testified that he was a supervisor at the refinery and that his position was designated as “safety sensitive,” thus requiring drug restrictions and regular drug testing. Before his fall on March 30, 2015, he worked the 4 a.m. to 4 p.m. shift. After his shift, which ran later than normal because his relief showed up late to work, he walked. across on-site railroad tracks, causing him to trip and fall. He explained that he instantly felt pain, and immediately called his shift supervisor. He testified that he was most concerned about his shoulder after the fall because he had recently undergone shoulder surgery, but was also experiencing neck, back, and hip pain. However, he declined medical treatment at the time of the incident because he would have been required to stay on-site several more hours and he had pain medicine at home. A few days after the fall, he visited his medical provider, Dr. Carey Winder, who had performed Appellant’s prior shoulder surgery. Appellant testified that Dr. Winder recommended he take pain medication and undergo some physical therapy. About a month later, Appellant’s treatment graduated to epidural steroid injections into his shoulder. Appellant described experiencing burning sensations in his back, sharp pain in his legs, pain in his neck, and headaches. When he was not at work, Appellant would take, pain medication as prescribed, but relied on over-the-counter treatment when he was working because of the restrictions placed on him by his employer due to the Rsafety-sensitive nature of his job-related duties. Appellant also .visited Dr. David Ferachi, an orthopedic spine surgeon, after a referral from Dr. Winder.

On June 23, 2015, Appellant was involved in a motor-vehicle accident. He explained that the motor-vehicle accident exacerbated the pain he was feeling before as a result of the fall at work, to include expansion of pain to his entire back. After the motor-vehicle accident, he visited his chiropractor, Dr. David Corbin, and Dr. Alexis Waguespack, an orthopedic surgeon. Appellant testified that he had informed Dr. Corbin of his fall at work. Dr. Corbin had Appellant undergo a magnetic resonance imaging test (“MRI”) of the lumbar spine, which revealed a bulging disc. Dr. Corbin provided physical therapy treatment to Appellant, while Dr. Wagues-pack prescribed narcotic medication. As a result, if Appellant was experiencing pain to the point that he required the narcotic medication, he would not go into work. After the motor-vehicle accident, he eventually also received epidural steroid injections in his neck and back from another medical provider, Dr. Comeaux.

On cross-examination, Appellant again acknowledged that in late 2014, Dr. Winder had performed surgery for his torn rotator cuff, which was due to a non-work related injury, resulting in the occasional need for narcotic pain medication. He also acknowledged that Dr. Winder had placed him under the same work restrictions before and after his fall at work in March of 2015. He was asked whether he told his chiropractor, Dr. Corbin, about his fall at work, and Appellant represented- that he had. Defense counsel referenced Dr. Cor-bin’s medical records 14and suggested that Appellant had not told Dr. Corbin about the fall, but stopped short of full impeachment.

Appellant visited numerous medical professionals from the time of the work .accident and following his involvement in the motor-vehicle accident. At trial, the depositions of these medical professionals and Appellant’s medical records were admitted without objection per stipulation of the parties.

Appellant first visited Dr. Winder’s office following the work accident. Dr. Winder had previously treated Appellant for his torn rotator cuff prior to his March 30, 2015 fall at work. He explained that Appellant had visited him on March 25, 2015— about' six months after his rotátor cuff operation—and that he was progressing, but still experiencing some symptoms. At this visit, Dr. Winder reported that Appellant’s condition had improved significantly. Six days later, Appellant returned to Dr. Winder’s office following his accident at work, complaining of increased pain and stiffness in his shoulder. Dr. Winder’s initial assessment of the injuries suggested Appellant had experienced a contusion and he did not prescribe narcotic medication, as he opined the injury would heal on its own.

Appellant returned to Dr. Winder’s office on April 20,2015, at which time he was experiencing “increased symptoms,” to wit: limited range of motion, some popping, and radiating pain from his shoulder to his elbow. However, Dr. Winder found “no detectable weakness,” and found the pain to be “not anything that was |Breal significant.” However, Dr. Winder did provide Appellant with a cortisone injection prior to the motor-vehicle accident, but only to his shoulder on that date. He testified that Appellant was allowed to return to work with limitations on his ability to lift,.climb, and turn things.. Dr. Winder also referred Appellant to Dr. Ferachi during the. April 20th visit, for “neck and back issues.”

Appellant again visited -Dr. Winder on June 18, 2015, before the motor-vehicle accident, and on August 5, 2015, after the motor-vehicle accident. On June 18th, Appellant reported that his symptoms were much better and that his pain was steadily improying, although he did not think he had the strength to do regular work activities. On August 5th, Appellant reported that he continued to experience similar symptoms, but failed to mention the motor-vehicle accident. Dr. Winder did note his observations of Appellant’s neck and back, but he noted nothing that would indicate the need for surgery. Furthermore, Dr. Winder’s report revealed that Appellant’s pain, which had been reported by Appellant as having steadily improved on the June 18th visit, had worsened by the time of the August 5th appointment. Dr. Winder stated that he observed “more symptoms than at least what [he] had documented previously,” noting that Appellant seemed to be having more symptoms, leading him to think there was “some other source ... of the pain.” He described the symptoms as more prominent despite Appellant’s standard progression prior to the August 5th visit. Dr. Winder concluded that he did not believe Appellant reinjured his torn rotator cuff but ordered an MRI for further assessment. Dr. Winder also contradicted the trial testimony of Appellant, as the doctor denied being informed of any other intervening traumatic ' event. He [^explained that he “certainly” would havé noted the motor-vehicle accident had Appellant told him of it. ■

On August 26,2015, Appellant again saw Dr. Winder. During this visit, Dr. Winder reviewed the MRI, which indicated that Appellant had only contused his arm during his March 30, 2015 fall at work. Dr. Wincler concluded that there was no significant damage to-his shoulder,-and he did not anticipate any long-term problems. Again, Appellant did not mention the motor-vehicle accident at this appointment.

During Appellant’s final visit on October 7, 2015, Dr. Winder noted that his shoulder was “okay” but that he also described pain radiating down to his hand and pain in his neck. Dr. Winder described these complaints as “different” than what Appellant had previously experienced. He opined that he did not believe the neck pain was related to Appellant’s fall at work. Appellant did not mention the motor-vehicle accident at this visit.

Appellant also visited Dr. Ferachi following the work accident. On April 21, 2015, Appellant reported pain in his left hip, lower back, and neck. Dr. Ferachi noted normal cervical spine, neurological, and-lumbar spine exams. He further noted that Appellant had no tenderness in his neck, no pinched nerves, no spinal cord compression, and normal and full range of motion in all planes in his back. He also noted full and painless range of motion in Appellant’s hips and knees, no |7nerve compression in the legs, arid no spinal cord dysfunction. He did note, however, that Appellant was experiencing left side hip pain, which Dr. Ferachi thought could be due to:pain in his left buttocks. At the time, because Dr. Ferachi could fmd no objective signs of injury, he recommended physical therapy and prescribed muscle relaxers.. .

Appellant returned to Dr. Ferachi’s office on May 12, 2015, complaining of persisting neck pain, lower back pain, and pain in his right leg. Dr. Ferachi noted tenderness and limited range of motion in the lower back. Dr. Ferachi assessed the pain as cervitealgia, or low back pain with lumbar radiculopathy, and ordered an MRI of the cervical and lumbar spine to further evaluate Appellant’s symptoms. An MRI from May 26, 2015, showed largely normal discs but also some degenerative change. Dr. Ferachi reviewed additional MRIs during a June 4th. visit, recommending exercise at home and the use of anti-inflammatories,' At this appointment, Dr. Ferachi released Appellant from his care and permitted him to return to work with no restrictions-: However, Appellant returned to Dr. Ferachi’s office on November 6, 2015, expressing neck, back, left-side shoulder, and radiating pains. Dr. Ferachi’s notes, however, indicated nothing about Appellant’s involvement in a motor-vehicle accident in the interim period. Additionally, an MRI from October revealed disc herniation in a new area compared to Appellant’s May, 2015 MRI.

Following the motor-vehicle accident, on September 10, 2015, Appellant visited Dr. Corbin’s office. He complained of neck and back pain and reported that [she had been involved in a motor-vehicle accident, but failed to mention the work accident. Dr. Corbin ordered a lumbar sacrum MRI and diagnosed Appellant with a cervical sprain and a lumbar sprain with radiculitis and spasrhs; Appellant’s treatment plan-'consisted of physical therapy twice weekly for four to eight weeks.

Appellant. also visited Dr. Waguespaek after the motor-yehicle accident, on December 4, 2015, complaining of lower back and leg pain beginning after the motor-vehicle accident. Appellant did not mention his involvement in a work-related, accident at this appointment. Appellant reported that the physical therapy provided by Dr. Corbin was helpful, but the pain still returned. Dr. Waguespaek reported abnormal results from an x-ray of Appellant’s lumbosacral spine and diagnosed him with lumbar post-laminectomy syndrome, prescribing narcotic medications and muscle- relaxers. Appellant returned to Dr. Waguespack’s office on January 25, 2016, complaining, of lower back and leg pain, indicating that the pain worsened in the mornings. Dr. Waguespaek instructed Appellant to continue pain medications and muscle relaxers. Appellant did - not mention the work-related accident to Dr. Waguespaek untiLhis third visit on- February 26, 2016. At this appointment, Appellant stated that the motor-vehicle accident exacerbated the injuries sustained after the work-related accident.

STANDARD OF REVIEW

In workers’ compensation cases, the standard of review to be applied by an appellate court to the OWC’s findings of fact is the manifest error-clearly wrong standard. Orozco v. Aries Bldg. Sys. Inc., 16-0187, p. 6 (La. App. 4 Cir. 9/28/16), 202 So.3d 1018, 1022, writ denied, 16-1949 (La. 12/16/16), 212 So.3d 1173 (citing Dean v. Southmark Constr., 03-1051, p. 7 (La. 7/6/04), 879 So.2d 112, 117). “ ‘When legal error interdicts the fact-finding process in a workers’ compensation proceeding, the de novo, rather than the manifest error, standard of review applies.’ ” Orozco, 16-0187 at p. 5, 202 So.3d at 1023 (quoting MacFarlane v. Schneider Nat’l Bulk Carriers, Inc., 07-1386, p. 3 (La. App. 4 Cir. 4/30/08), 984 So.2d 185, 188).

ANALYSIS

The Workers’ Compensation Law provides that an employer shall pay compensation benefits to an employee who suffers personal injury through an accident arising out of and in the course of employment. La. R.S. 23:1031(A). The Supreme Court has- stated that this statute requires a claimant to show personal injury that is the result of an accident, which accident arises out of and in the course of employment. Buxton v. Iowa Police Department, 09-0520, pp. 11-12 (La. 10/20/09), 23 So.3d 275, 283. The chain of causation required by the statutory scheme as adopted by the legislature in La. R.S. 23:1031 is that the employment causes the accident, the accident causes injury, and the injury causes disability. Id. The employee’s burden requires proving by a preponderance of the evidence that the resulting disability is related to an on-the-job injury. Id. at 283. In Prim v. City of Shreveport, 297 So.2d 421, 422 (La. 1974), the Supreme Court stated:

Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has h failed to carry the burden of persuasion. Likewise, the plaintiffs case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture.

The issues before this Court are the medical causation regarding Appellant’s complaints of neck and lower back pain and his resulting inability to work. Subsequent to the accident at work, which gave rise to his initial claim for benefits, Appellant was involved in a motor-vehicle accident unrelated to his employment duties. The parties submitted medical records and depositions from numerous physicians detailing the treatment for Appellant’s injuries following both the work-related accident and. the motor-vehicle accident. The OWC found that Appellant’s back and neck complaints were as a result of the motor-vehicle accident that occurred several months after the work-related accident. The record reasonably supports this finding.

When Appellant first visited Dr. Winder after the work accident, Dr. Winder believed Appellant’s injuries only consisted of a contusion to his shoulder that would heal on its own. On a follow-up visit, Appellant complained of increased pain; and Dr. Winder opined that he believed those symptoms developed due to inflammation related to the contusion. ’ Appellant complained of different injuries to Dr. Ferachi, specifically, neck and back complaints; but Dr. Ferachi’s evaluation contained no objective findings of any back or neck injury. On June 4, 2015, Appellant reported to Dr. Ferachi that his back and neck pain persisted but that it had improved. As a result, Dr. Ferachi discharged Appellant from his care on the same date with no work restrictions and no scheduled appointment for a progress report. Dr. Fera-chi’s only recommendation was over-the-counter anti-inflammatory medication, indicating that he did not believe the injury required further treatment.

hi During a follow-up appointment with Dr. Winder on June 18, 2015, Appellant reported that his symptoms were much better and his pain had steadily improved. Additionally, the MRIs administered to Appellant prior to the motor-vehicle accident reveal that the neck and back pain Appellant had been experiencing was likely related to the degenerative disc disease identified by Dr. Ferachi.

Although Appellant visited Dr. Winder after the motor-vehicle accident, complaining of worsening symptoms, Dr. Winder concluded that the neck pain was not related to the work-related accident. When Appellant visited Dr. Ferachi after the motor-vehicle accident, the MRI results revealed a new herniated disc that was not present before the work-related accident. According to the record, Appellant did not inform either Dr. Winder or Dr. Ferachi of his involvement in the motor-vehicle accident at any subsequent appointments.

Further, Appellant had only been given cortisone injections to his shoulder after his work-related accident, but prior to the motor-vehicle accident. Only after the motor-vehicle accident was Appellant given epidural steroid injections to his neck and back from Dr. Comeaux.

Lastly, Appellant’s medical records from Dr. Waguespack’s office reveal that Appellant himself stated that his back pain began in June of 2015, after his involvement in the motor-vehicle accident. Appellant reported that he had no pain prior to the motor-vehicle accident. The record further reveals that Appellant did not mention the work-related accident to Dr. Waguespaek until his third visit and reported that the motor-vehicle accident exacerbated the pain from the work-related accident.

CONCLUSION

112In light of the foregoing, and considering the credibility determinations made by the OWC, we cannot say that the OWC erred in finding that Appellant failed to meet his burden to show a causal connection between the work-related accident and his lower back and neck injury. The decision of the OWC is hereby affirmed.

AFFIRMED

      . In lieu of live testimony, Dr. Corbin’s deposition testimony and Appellant’s medical records from Dr. Corbin’s office were admitted without objection per stipulation of the parties.

      . Dr. Winder testified that he is board certified in orthopedic medicine and surgery and was admitted as an expert in that regard.

      . Dr. Winder noted that Appellant thought his shoulder was just bruised but that he wanted to have it checked as a precaution.

      . Dr. Winder noted that he believed Appellant's symptoms developed due to inflammation related to the contusion.

      . Though October 7th was Appellant’s last visit,- Dr, Winder also reviewed , an MRI from October 16, 2015, which revealed multilevel degenerative disc disease, disc herniation, disc extrusion into the neuroforma, and possible radiculopathy, ,

      . Dr. Ferachi testified that he is- a board Certified orthopedic spine surgeon and was admitted as an expert as such,

      .An x-ray of the lumbar spine showed evidence of a previous L5-S1 fusion but was otherwise normal. An x-ray of- the cervical spine revealed evidence of cervical degenerative disc disease and cervical spondylosis.

      . Dr, Ferachi’s assessment included a cervical disc herniation, cervical radiculopathy, and cervicalgia and recommended epidural steroid injections.

      . Dr. Waguespack’s assessment of Appellant at this visit included spinal stenosis of the lumbar ‘ region, sacroiliac disorder, and degeneration of lumbar intervertebral disc.

      .Dr. Waguespaek noted that Appellant was awaiting approval from his attorney for lumbar- injections. Appellant was instructed to ’ continue medical treatment,