author: WICKER, J.

text:
    Kabrisha ROBINSON, Individually and on Behalf of Her Minor Daughter, Deri'Niya Halbert v. The ST. JOHN THE BAPTIST PARISH SCHOOL BOARD
    NO. 18-CA-510
    Court of Appeal of Louisiana, Fifth Circuit.
    April 17, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, KABRISHA ROBINSON, INDIVIDUALLY AND ON BEHALF OF HER MINOR DAUGHTER, DERI'NIYA HALBERT: George B. Recile, Barry W. Sartin, Jr., Metairie, Walter R. Woodruff, Jr., Mandeville
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   WICKER, J.

The instant matter, involving a claim of negligent supervision of a kindergartner who fractured her arm during recess on the playground of Fifth Ward Elementary School, is before us on appeal of the June 1, 2018 judgment granting St. John the Baptist Parish School Board's (the School Board) Motion for Involuntary Dismissal against appellant, Kabrisha Robinson, and dismissing appellant's suit with prejudice. Finding that the trial court erred in granting the School Board's motion, we reverse the trial court's June 1, 2018 judgment and remand this matter for further proceedings.

BACKGROUND AND PROCEDURAL HISTORY

On December 1, 2015, Deri'Niya Halbert, a kindergartner at Fifth Ward Elementary School in Reserve, Louisiana, fractured her left arm during recess after being pushed by a classmate from a slide platform. Deri'Niya was then taken to the school nurse by the teacher on duty during recess, Chasity Henderson. Deri'Niya's mother - Kabrisha Robinson, appellant - arrived at the school and took her daughter to the hospital where Deri'Niya was diagnosed with a closed displaced fracture of the lateral condyle of the left humerus.

Deri'Niya's arm was placed in a cast and thereafter she underwent two surgeries.

On June 17, 2016, appellant individually and on behalf of her minor daughter, Deri'Niya, filed a Petition for Damages against the School Board. In her petition, appellant alleged that the School Board was vicariously liable for Deri'Niya's injuries caused by its inadequate and negligent supervision of Deri'Niya and the other kindergarten students during recess.

At the May 24, 2018 bench trial, during appellant's case-in-chief, appellant called Kendria Spears, principal of Fifth Ward Elementary at the time of the incident. Ms. Spears testified that on the date of the incident, Chasity Henderson was the teacher on duty and that there were two classes, totaling forty-four students, on the playground during recess. She further testified as to her limited recollection of the incident, as it was relayed to her by the school nurse, Beth Roussell. Ms. Spears also testified as to the school's procedure of having two to three teachers supervising students during recess. However, Ms. Spears was unsure of the exact number of teachers on duty at recess on the date of the incident.

Appellant also called Drenean Brown who became the principal of Fifth Ward Elementary in the year following the incident. Ms. Brown provided testimony regarding her knowledge of the incident and the procedures she implemented for monitoring the school's playground soon after she became principal.

Finally, appellant testified regarding the playground incident as relayed to her by her daughter, Deri'Niya, at the time of the incident. Appellant testified that on the date of the incident, she received a call from the school nurse informing her that five-year-old Deri'Niya "had an accident on the playground." Appellant testified that she went to the school to pick up Deri'Niya to take her to the hospital. The hospital physicians told appellant that Deri'Niya's injury would require surgery. Thereafter, Deri'Niya underwent two surgeries. The first surgery occurred in December of 2015, during which surgeons placed a screw in Deri'Niya's arm. The second surgery, occurring in July of the following year, removed the screw.

Regarding the incident, appellant testified that Deri'Niya was playing a game with another student on top of the "platform on the slide" when the student wanted Deri'Niya to "hurry up and go down the slide, so she pushed her." According to appellant, the platform on which the students played is four feet wide and six feet high. She further testified that while Ms. Henderson was under the breezeway, about fifteen to twenty feet away from the slide, there were more than six students on the slide platform at the time that Deri'Niya fell off of the top, that Ms. Henderson was the only teacher on the playground at the time of the incident, and that Ms. Henderson was using her cellular phone when the accident occurred.

Appellant also introduced into evidence the written stipulations of the parties, the discovery responses of the School Board, Deri'Niya's medical records, the transcripts of the deposition testimony of Kendria Spears and Drenean Brown, the Student Accident Report dated December 1, 2015, and photos of Deri'Niya's injuries.

At the close of appellant's case-in-chief, the School Board moved for a directed verdict under La. C.C.P. art. 1672, arguing that appellant failed to meet her burden of proof to establish a prima facie case of negligent supervision as set forth in Carter v. East St. John Elementary , 12-174 (La. App. 5 Cir. 11/13/12), 105 So.3d 856. Specifically, the School Board argued that appellant failed to present evidence demonstrating that the teacher to student ratio and alleged lack of supervision at recess caused the accident. The trial court, finding that appellant failed to meet her burden of proof as set forth in Carter , supra , granted the School Board's Motion for Involuntary Dismissal on June 1, 2018, and dismissed appellant's case with prejudice. It is from this judgment that appellant filed a timely appeal.

STANDARD OF REVIEW

In a nonjury case, the defendant may move for a dismissal of the action against him/her after the close of the plaintiff's case. Dileo v. Harry , 17-240 (La. App. 5 Cir. 12/13/17), 238 So.3d 549, 556, citing La. C.C.P. art. 1672(B). The appropriate standard in determining whether an involuntary dismissal should be granted is whether the plaintiff has presented sufficient evidence in his case-in-chief to establish his claim by a preponderance of the evidence. Jackson v. Morton , 17-194 (La. App. 5 Cir. 11/15/17), 232 So.3d 685, 687, citing Machado v. Baker Concrete Constr. , 13-273 (La. App. 5 Cir. 10/30/13), 128 So.3d 477, 481 (internal cite omitted). An appellate court may not reserve a ruling on a motion for involuntary dismissal, unless it is manifestly erroneous or clearly wrong. Id.

LAW AND ANALYSIS

In her sole assignment of error on appeal, appellant avers that the trial court committed manifest error in granting the School Board's motion for involuntary dismissal based on the trial court's determination that it was constrained to do so by this Court's ruling in Carter , supra . In support of her assignment, appellant sets forth a two-part argument wherein she first argues that the present matter is materially distinguishable and beyond Carter 's limited reach; and second, appellant argues that through the presentation of evidence and material facts, she met her burden of proof under Carter to establish a claim against the School Board for failure to adequately supervise the safety of its students.

For the following reasons, we find that the trial court committed manifest error in granting the School Board's motion for involuntary dismissal. First, Carter is factually distinguishable from the present case. Second, we find that appellant presented sufficient evidence in her case-in-chief to establish her claim by a preponderance of the evidence that (1) the School Board, its agents, or teachers were negligent in providing supervision; (2) there exists a causal connection between the lack of supervision and the accident; and (3) the risk of unreasonable injury was foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised.

Distinguishing the present case from Carter

In its oral reasons for judgment, the trial court compared the facts presented in Carter with the present case, giving particular focus on this Court's discussion in Carter regarding the student to teacher ratio during recess. In doing so, the trial court stated:

[...] obviously, this Court took a position in a case very, very similar to this several years ago, and whether I am still of that position, and the Fifth Circuit doesn't agree, and they are my boss. And I do believe that this case falls within the same particular ramifications of [ Carter ]. And even the cases [the School Board] cited in [its] argument, the facts of which I'm not familiar with, but basically, that even goes further than this case to suggest that the number of students, the ratio does not necessarily impose liability upon the school board. It says, and I do not know that there has been enough evidence presented in this particular matter to overcome the burden that the plaintiff has to and with respect to this type of cases [sic], and I am compelled to grant the defendant's motion.

While we recognize that the present matter may bear some similarity to Carter - both involve injuries sustained by students during recess as a result of the actions of another student - we find that the present matter is factually distinguishable from Carter for several reasons.

In Carter , a first-grader broke her arm after a classmate grabbed her ankles and flipped her over a bar on a play fire-truck during recess. At the time of the incident, there was only one teacher monitoring over forty first-grade students. The child's mother brought an action for negligent supervision against the School Board. At the conclusion of the bench trial, the trial court rendered judgment against the School Board for negligent supervision and awarded the first-grader monetary damages. On appeal, this Court defined the issue before it as whether the supervision provided to a group of first grade students was reasonable considering the age of the children and the attendant circumstances, and whether the accident/incident could have been prevented. Carter , 105 So.3d at 860.

We began our analysis by discussing the School Board's argument on appeal that the trial court imposed strict liability upon the School Board based on the classroom requirements of a teacher to student ratio. After a detailed examination of the record before us and jurisprudence regarding negligent supervision cases wherein a party alleged the School Board was negligent in its supervision of students, we found that although nothing had been introduced into the record setting forth a required teacher to student ratio for recess, it was more reasonable to rely on the one teacher to every forty student ratio established for physical education classes to guide the amount of supervision needed for recess. However, our analysis did not stop there; we further found that the trial court's judgment was based on several factual inaccuracies and that the trial court was manifestly erroneous in finding the School Board liable for negligent supervision in that the action of the offending student who had no prior disciplinary history was neither foreseeable nor preventable "absent constant supervision, which is not required by the law in order for the School Board to fulfill its duty to provide adequate supervision." Carter , 105 So.3d at 861.

Thus, while we considered the teacher to student ratio in Carter as a factor in determining the issue of negligent supervision as it relates to a School Board, we found that it was not the sole determining factor of whether the supervision provided to a group of students was reasonable considering the age of the children and the attendant circumstances, and whether the accident/incident could have been prevented.

Similar to Carter , the instant case involves two classes of students totaling over forty children coming together to play at recess. While playing, one of the students sustained an injury as a result of the actions of another student. In both cases, a teacher was standing at least fifteen feet away and is alleged to have been the sole teacher monitoring the students. However, unlike in Carter , Fifth Ward Elementary had procedures in place regarding the required number of teachers responsible to monitor students during recess. Ms. Kendira Spears, principal of Fifth Ward Elementary, testified that at the time of the accident there should have been at least two teachers monitoring the students. However, she was unable to recall the exact number of teachers monitoring the students or the names of the teachers who were monitoring students that day.

Furthermore, the present matter is factually distinguishable from Carter in the size and height of the playground equipment where the students sustained their injuries and in the cause of the injury. In Carter , a first grader was injured after falling from a stationary play fire-truck which was no more than one foot off the ground and surrounded by bars. However, in the present matter, Deri'Niya, a kindergartner, was injured after sustaining a fall from a slide platform which unrefuted testimony established was at least six feet high and four feet wide. Unlike in the present case, there were no allegations of overcrowding on the playground equipment in Carter , which may have required more attention from the teacher.

Another area of distinction involves the duration of the incident. In Carter , there were two students involved in seconds long interaction; however, in the instant matter, the testimony indicates that there were at least six kindergarten students gathered on top of the six foot high platform and that another student pushed Deri'Niya because she wanted Deri'Niya to "hurry up and go down the slide." This exchange indicates both that there were multiple kindergartners on top of the platform for longer than a few seconds and that the actual pushing of Deri'Niya took more than a few seconds to unfold, perhaps time enough for an observant teacher to see the evolving and dangerous situation.

Regarding the difference in the cause of the injury in Carter and the instant matter, in Carter , the first grader's arm was fractured after she was grabbed by her ankles by a classmate and flipped over the bar of the fire-truck. However, in the instant case, Deri'Niya was pushed off the platform of a slide. Finally, in Carter , there were no allegations that the teacher's attention was directed away from all of the students on the playground and toward her personal cellular device.

The present case is also factually distinguishable from much of Louisiana jurisprudence involving negligent supervision by a School Board. In the instant case, the teacher's act of using her phone while responsible for monitoring students is a factor to consider in analyzing the School Board's alleged negligence; in other jurisprudence, teachers failed to prevent an injury because they were monitoring other students or the students were high school students and did not require the same level of attention. However, in many of those cases the court looked to the age of the students and the spontaneity of the action by the student causing the injury.

Applying the Carter standard

In recognizing the duty of the School Board to provide reasonable, competent supervision appropriate to the age of the students and the attendant circumstances, as set forth in Wallmuth v. Rapides Parish School Board , 01-1779 (La. 4/3/02), 813 So.2d 341, 346, we recognized, in Carter , that this duty does not require the constant supervision of all students by an educator in order for the educator to discharge his or her duty to provide adequate supervision. Therefore, we examined the issue before us through an analysis of the three requirements necessary to establish a claim against a School Board for failure to adequately supervise the safety of its students set forth in Robinson v. Jefferson Parish School Board , 08-1224 (La. App. 5 Cir. 4/7/09), 9 So.3d 1035, 1046, writ denied , 09-1187 (La. 9/18/09), 17 So.3d 975.

In applying the three-prong test set forth in Robinson , supra , to establish a claim of negligent supervision against a School Board, we stated:

To establish a claim against a school board for failure to adequately supervise the safety of its students, a plaintiff must prove: (1) negligence on the part of the School Board, its agents, or teachers in providing supervision; (2) a causal connection between the lack of supervision and the accident; and (3) the risk of unreasonable injury was foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised.

Carter , 105 So.3d at 859, citing Robinson , supra .

(1) The School Board, its agents, or teachers were negligent in providing supervision

In arguing before the trial court that appellant did not meet her burden of proof of negligence on behalf of the School Board, its agents, or teachers in providing supervision, the School Board focused on this Court's discussion in Carter regarding student to teacher ratios during recess, specifically identifying our discussion of Brooks , infra and Collins , infra .

In Brooks v. Orleans Parish School Board , a five-year-old student fractured her right arm during recess after being pushed from a slide by a fellow student. 560 So.2d 633 (La. App. 4th Cir. 1990). There were thirty to thirty-five students on the school yard and only one teacher who had positioned herself near a piece of playground equipment where students tended to go the fastest. At the time of the incident, the teacher on duty was tending to another child and immediately rushed to the five-year-old's aid when she fell. Although the Fourth Circuit recognized that there is no requirement that the supervisor of a group of children have each child under constant scrutiny, it identified the standard of care required of the board and its supervising teachers as a "reasonable standard of care commensurate with the age of the children under the attendant circumstances." Id. at 635. In reversing the decision of the trial court, the Fourth Circuit found that the evidence failed to show a lack of supervision or negligence in supervision.

In Collins v. Bossier Parish School Board, a kindergarten student suffered a broken femur bone in his left leg when, while at recess, a classmate caused him to fall from the horizontal ("monkey") bars. 480 So.2d 846, 847 (La. App. 2nd Cir. 1985). At the time of the incident, the duty teacher was preventing several children from throwing dirt at each other. The issue before the Second Circuit was whether a teacher/student ratio of one teacher to approximately one hundred students during a recess was "adequate supervision" so as to preclude a finding of liability against the School Board and its employees. In affirming the trial court's findings that the School Board and its employees were not negligent in their supervision of the children during recess, the Second Circuit looked to the trial court's written reasons for decision wherein the court stated, "There is nothing in evidence to show that had there been more teachers on duty this unfortunate incident would not have still occurred." Id. at 848.

However, unlike the present matter where testimony was provided at trial specifically regarding the negligence of the duty teacher who is alleged to have been using her phone at the time of the incident, the appellants in Collins and Brooks did not question the conduct of the teacher at the time of the incidences, only the quality of the supervision. Furthermore, as recognized by the Second and Fourth Circuits, the record in each case was void of any evidence showing lack of supervision or negligence in supervision of the teachers. Importantly, in both Collins and Brooks , the duty teacher was attending to other students at the time of each incident.

Furthermore, we recognize that our determination that the School Board in Carter was not negligent in its supervision of students during recess was not focused solely upon the student to teacher ratio at recess. Instead, it focused on several other factors including the history of the students involved in the incident, the foreseeability of the child's actions, the actions of the teacher at the time of the incident, and the factual inaccuracies identified in the trial court's judgment. Thus, the central question in making a determination of whether the School Board was negligent in its supervision of students is whether the supervision provided was reasonable considering the age of the children and the attendant circumstances, and whether the accident/incident could have been prevented. Carter , 105 So.3d at 861.

Therefore, we find that appellant provided sufficient evidence to establish her claim by a preponderance of the evidence and overcome defendant's motion for involuntary dismissal.

(2) A causal connection between the lack of supervision and the accident

At trial, appellant counsel elicited the testimony of appellant who testified that Deri'Niya was on a slide platform measuring four feet wide by six feet high with more than six other students. Appellant testified that while playing, a classmate wanted Deri'Niya to "hurry up and go down the slide," so she pushed Deri'Niya resulting in Deri'Niya falling off the side of the platform. According to appellant's testimony, the teacher was about fifteen to twenty feet away and using her cell phone. While Ms. Spears testified that there were supposed to be at least two teachers monitoring students, she was unable to say with certainty if there was another teacher aiding Ms. Henderson at the time of the incident. Furthermore, the interrogatories provided by the School Board also do not identify the second teacher whom Ms. Spears attested should have been aiding Ms. Henderson. At trial, the School Board chose to reserve its cross-examination of Ms. Spears choosing, at that juncture, not to address this issue. Thus, testimony indicates that the only known teacher responsible for monitoring students during recess, was attending to her phone. In doing so, she failed to prevent the gathering of multiple students on top of the slide platform, which may have prevented the injury sustained to Deri'Niya.

Thus, appellant met her burden of establishing a causal connection between the lack of supervision and the accident.

(3) the risk of unreasonable injury was foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised.

In arguing that appellant did not meet her burden of proof as to the third prong, that the risk of unreasonable injury was foreseeable, constructive or actually known, and preventable if a requisite degree of supervision had been exercised, the School Board argued before the trial court that appellant failed to introduce evidence to suggest that more supervision would have decreased the risk of injury. At trial, appellant testified that there were more than six students on the slide platform measuring four feet wide and six feet high. She further testified that Ms. Henderson, who was the duty teacher at the time of the incident, was looking at her phone. Appellant also questioned Ms. Spears, who was principal at the time of the incident. Ms. Spears testified that the school's policy was to have more than one teacher monitoring the playground; however, she was unable to remember the names and the number of teachers monitoring students on the day of the incident. When asked about her views on overcrowding on the slide platform, Ms. Spears commented:

Again, teachers that are supervising, or teachers that are on duty are responsible for supervising all students. So if there was crowding on any type of equipment, that teacher would have immediately addressed that situation.

We recognize that while the spontaneous actions like that presented in Carter of a child grabbing another child's leg and flipping him or her over a bar on a stationary fire-truck may not be foreseeable, the act of a child pushing another while on an overcrowded slide is, however, foreseeable. Under certain facts, a jury or fact-finder may determine that a supervising teacher who is attending to her phone may miss the crowd of kindergarten students gathered at the top of a six foot high piece of playground equipment and the opportunity to redirect students to other activities as to prevent the possibility of injury.

Therefore, we find that the trial court erred in finding that appellant did not meet her burden as set forth in Carter , supra , in that appellant set forth unchallenged testimony that the attending, duty teacher was distracted by her phone while supervising two classes of kindergarten students, several of whom gathered at the top of a six foot high play structure. Specifically, appellant presented testimony and evidence regarding the negligence of the duty teacher, Ms. Henderson, who was using her cellular phone at the time of the incident; a causal connection between the lack of supervision and the accident; and the foreseeability of the risk of unreasonable injury and the prevention of the injury with the requisite degree of supervision.

CONCLUSION

For the aforementioned reasons, we find that the trial court was manifestly erroneous in granting the School Board's Motion for Involuntary Dismissal against appellant and reverse the trial court's June 1, 2018 judgment granting the School Board's Motion for Involuntary Dismissal and dismissing appellant's claim with prejudice.

REVERSED; REMANDED

      Prior to and during the bench trial, the appellant alleged that the incident occurred on December 7, 2015; however, the incident report completed by the school nurse is dated December 1, 2015, and the medical records submitted by appellant show that Deri'Niya was seen by doctors and diagnosed with a closed displaced fracture of the lateral epicondyle of humerus on December 1st. For the purpose of this appeal, we will refer to the date of the incident as occurring on December 1, 2015. In either case, the date of the incident is of little significance in aiding our determination of whether the trial court erred in granting an involuntary dismissal in favor of the School Board.

      In the record before us, Ms. Henderson's first name appears in two forms - Chasity or Chastity. For the purpose of this appeal, Ms. Henderson will be referred to as Chasity.

      Ms. Spears was principal of Fifth Ward Elementary from 2007 until 2016.

      Ms. Spears testified that there were twenty students in one class and twenty-four students in another. However, she testified that the number of students participating in recess would have been less as some of the students receive remediation such as speech therapy during this period.

      The School Board cross-examined only Ms. Robinson, reserving its right to examine Ms. Spears and Brown at a later time.

      Under La. C.E. 801(D)(3)(f), a statement by a minor child offered against a party in an action to recover for injury to that child, or against the person responsible for the child in an action to recover damages for losses caused by the child is not hearsay.

      According to the testimony of Ms. Spears, Ms. Henderson escorted Deri'Niya to the office after the incident. The student accident report, completed by the school nurse, states, "Details of Accident: 'Said Ayanna pushed her at recess. I didn't see the push but I did see her on the ground crying.' " However, it is unclear if this is a statement given by the school nurse or by Ms. Henderson.

      The School Board did not file a brief on appeal and did not appear for oral argument in this matter.

      According to Ms. Spears, there are at least two teachers monitoring students at lunch when there are two classes. One teacher will have lunch while the other teacher is on duty and a third person will assist the duty teacher in monitoring students on the playground.

      See Hebert v. Iberville Parish School Board , 13-0177 (La. App. 1 Cir. 11/1/13), 2013 WL 5915240 ; Boston v. Jackson Parish School Board , 50,988 (La. App. 2 Cir. 11/16/16), 210 So.3d 399 ; Brooks , infra ; and Collins , infra .See generally, Glass v. Magnolia School, Inc. , 01-1209 (La. App. 5 Cir. 3/13/02), 815 So.2d 143.

      As previously stated, the School Board filed no brief or memoranda in this Court. Furthermore, the School Board did not present for oral argument.

      In the instant matter, it is unclear from the record whether Fifth Ward Elementary School's procedure regarding the number of teachers monitoring of students during recess was violated; however, even assuming the procedure was not violated, the question before us does not involve the rigid application of the teacher to student ratio in order to determine whether the School Board was negligent in the supervision of students.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    SONIC OF AMBASSADOR v. Damon RICHARD
    18-708
    Court of Appeal of Louisiana, Third Circuit.
    April 24, 2019
    Dennis R. Stevens, Gibbens & Stevens, 222 West St. Peter Street, New Iberia, LA 70560, (337) 367-8451, COUNSEL FOR PLAINTIFF/APPELLEE: Sonic of Ambassador
    Michael B. Miller, P.O. Drawer 1630, Crowley, LA 70527-1630, (337) 785-9500, COUNSEL FOR DEFENDANT/APPELLANT: Damon Richard
    Court composed of Sylvia R. Cooks, Billy H. Ezell, and Candyce G. Perret, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On August 22, 2012, Damon Richard was injured while in the course and scope of his employment with Sonic of Ambassador. Mr. Richard was treated by Dr. John D. Sledge, III, an orthopedist, following the accident. Dr. Sledge stated in a report dated July 8, 2015, that Mr. Richard was capable of sedentary work.

Sonic then requested that Mr. Richard attend vocational rehabilitation services with Ms. Jennifer Jones of GENEX. Mr. Richard rejected the services of GENEX, noting that another employee of GENEX had provided nurse case manager services in this matter.

On January 8, 2016, Sonic filed a motion to compel vocational services with the Office of Workers' Compensation (OWC). In response, on May 18, 2016, Mr. Richard filed a motion to dispute vocational services, penalties and attorney fees under La.R.S. 23:1226.

On June 30, 2016, Sonic filed another motion to allow vocational rehabilitation. In that motion, noting the "Court's ruling that Genex not be allowed to provide vocational rehabilitation services due to the fact that it provided medical management services," Sonic requested that CoreCare Management be allowed to provide vocational rehabilitation services to Mr. Richard. Sonic noted in its motion that counsel for Mr. Richard had sent to the counselor for CoreCare, Shelley Brantley, a letter proposing certain conditions which Ms. Brantley was required to agree with or disagree with before she could meet with Mr. Richard. Ms. Brantley refused to comply, and Sonic also requested the court make a determination as to whether the vocational counselor needed to execute the contract in question.

A hearing was held on February 18, 2017, with evidence and argument of counsel received. Subsequent to the hearing, a judgment was signed on March 1, 2017, holding the "Motion to Compel Vocational Rehabilitation filed by Sonic of Ambassador is denied at this time." Sonic maintained the motion was denied because the trial court felt the testimony of Shelley Brantley, who was not present that day to testify, would be helpful to resolution of the issue. A scheduling order was issued setting October 2, 2017, for a trial on the merits. A telephonic conference was held with the parties and OWC wherein the merits trial scheduled for October 2, 2017, was continued and another hearing on the vocational rehabilitation issue was to be held on that date.

On October 2, 2017, although Shelley Brantley was present and available to testify, the OWC determined the testimony of Ms. Brantley was not necessary. Sonic argued under Hargrave v. State , 12-341 (La. 10/16/12), 100 So.3d 786, because there was no dispute concerning the quality or nature of the services in question of the vocational counselor, Ms. Brantley could not be required to abide by the conditions set forth in the contract presented to her by Mr. Richard. Counsel for Mr. Richard argued it was not a requirement for Ms. Brantley to agree or disagree with any of the conditions that were set forth in the contract, "only that [she] tell me which one [she was] going to follow and which one [she] would not follow." No new evidence, witnesses or documents were introduced at the hearing. The OWC ordered that vocational rehabilitation services were to go forward. The following discussion occurred in open court between the OWC and counsel for Mr. Richard (Mr. Miller):

THE COURT: I'm ordering that the vocational rehabilitation can go forward. Basically what I'm doing today is I'm compelling [Mr. Richard] to meet with the vocational rehabilitation counselor in order that there be an exchange of information. If after that time, he decided not to go forward, that's a different issue, in my mind.
MR. MILLER: Well, its because after an order if he does that then they're going to - they're going to penalize him fifty percent.
THE COURT: Well -

MR. MILLER: That's why the order is so important. And the fact of the matter is, Judge, is if she meets with him I can tell you - I

can't tell you how many voc rehab counselors meet one time with my client. Once. That's it. You know why? They get the information they need and they don't come back.
THE COURT: Right.
MR. MILLER: So what I'm saying is he gets everything she wanted in the first time she meets with him, and there's not a thing I can do about it or my client.
THE COURT: No. What I'm saying, Mr. Miller, is that when she meets with your client if she's not willing to provide you with the answers to questions that comply with the Code of Professional Ethics, that your client is free to say that he doesn't wish to proceed any further. That's a different situation.
MR. MILLER: Well, suppose she comes and I ask her these questions that are in that list and she refuses to answer. I can't stop because I'm under order to undergo to the voc rehab. My client is going to be penalized fifty percent.
THE COURT: Okay. This is what I'm going to do. I'm going to order that instead of having the Motion to Compel Vocational Rehabilitation, I'm going to order that a meeting occur between Mr. Richard, whoever the - I forget who the vocational rehabilitation person is - and Mr. Miller and that the meeting be for the purposes of exchanging information.
At that point in time, Mr. Richard can determine whether he's going to acquiesce in the vocational rehabilitation or not. Okay? But its - up to that point, I don't think that there is a true conflict here. Okay? I'll prepare the judgment.
MR. MILLER: Okay. Thank you, Judge.

Written reasons for judgment were requested by Mr. Richard. On December 6, 2017, a rule to show cause hearing was set for January 19, 2018, to determine why Mr. Richard's case should not be dismissed. On January 5, 2018, the OWC granted the motion to compel vocational rehabilitation and further ruled "the above-captioned matter is dismissed without prejudice." This was done prior to the January 19, 2018 rule to show cause hearing being held. A February 6, 2018 Judgment of Dismissal was entered into the record. Mr. Richard notes on January 16, 2018, counsel for Sonic sent a letter to the OWC, stating as follows:

We are in receipt of a Notice of Hearing on a Rule to Show Cause why the case should not be dismissed. You will recall that this matter was submitted to the court on the motion of Sonic of Ambassador,

specifically a Motion to Compel Vocational Rehabilitation. The court ruled on the motion, granting the motion and subsequently the court issued its written judgement. Counsel for Damon Richard has filed a request for written reasons for judgement.
Accordingly, Sonic of Ambassador suggests this rule to show cause why the case should not be dismissed, was issued in error, and requests that the hearing scheduled on Friday, January 19, 2018, should be rendered moot.

Mr. Richard has appealed the Judgment of Dismissal contending he was deprived of his trial on the merits. He asserts a dismissal, even without prejudice, could have serious consequences for his claim. Mr. Richard asserts the following assignments of error:

1. The workers' compensation judge erred when he dismissed Mr. Richard's case.
2. It was error for the workers' compensation judge to find that vocational rehabilitation was appropriate and should move forward.
3. The workers' compensation judge erred in failing to address Mr. Richard's motion to dispute vocational services.
4. The workers' compensation judge erred in his factual finding that Mr. Richard required that Ms. [Brantley] comply with all the conditions.
5. The workers' compensation judge erred in changing the March 1, 2017 judgment without any new evidence.

ANALYSIS

Louisiana Revised Statutes 23:1226 governs the rehabilitation of injured employees, and provides, in pertinent part:

A. When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. Vocational rehabilitation services shall be provided by a licensed professional vocational rehabilitation counselor, and all such services provided shall be compliant with the Code of Professional Ethics for Licensed Rehabilitation Counselors as established by R.S. 37:3441 et seq.
B. (1) The goal of rehabilitation services is to return a disabled worker to work, with a minimum of retraining, as soon as possible after an injury occurs. The first appropriate option among the following must be chosen for the worker:
(a) Return to the same position.
(b) Return to a modified position.
(c) Return to a related occupation suited to the claimant's education and marketable skills.
(d) On-the-job training.
(e) Short-term retraining program (less than twenty-six weeks).
(f) Long-term retraining program (more than twenty-six weeks but not more than one year).
(g) Self-employment.
(2) Whenever possible, employment in a worker's local job pool must be considered and selected prior to consideration of employment in a worker's statewide job pool.
(3)(a) The employer shall be responsible for the selection of a licensed professional vocational rehabilitation counselor to evaluate and assist the employee in his job placement or vocational training. Should the employer refuse to provide these services, or a dispute arises concerning the work of the vocational counselor, the employee may file a claim with the office to review the need for such services or the quality of services being provided. The employee shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8). The workers' compensation judge shall set a hearing date within three days of receiving the motion. The hearing shall be held not less than ten, nor more than thirty days, after the employer or payor receives notice, delivered by certified or registered mail, of the employee's motion. The workers' compensation judge shall provide notice of the hearing date to the employer and payor at the same time and in the same manner that notice of the hearing date is provided to the employee or his attorney. For the purposes of this Section, an employee shall not be required to submit the dispute on the issue of vocational services to mediation or go through a pretrial conference before obtaining a hearing. The hearing shall be conducted as a rule to show cause.
(b) An employee shall have no right of action against a vocational counselor for tort damages related to the performance of vocational services unless and until he has exhausted the administrative remedy provided for in Subparagraph (a) of this Paragraph. The running of prescription shall be suspended during the pendency of the administrative proceedings provided for in this Paragraph.
(c) Upon refusal by the employee, the employer or payor may reduce weekly compensation, including supplemental earnings benefits pursuant to R.S. 23:1221(3), by fifty percent for each week of the period of refusal. Reduction of benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A) through (E).
C. (1) Rehabilitation services required for disabled workers may be initiated by:
(a) An insurer or self-insured employer by designating a rehabilitation provider and notifying the office.
(b) The office by requiring the insurer or self-insured employer to designate a rehabilitation provider.
(c) The employee, through a request to the office. The office shall then require the insurer to designate a rehabilitation provider.
(2) Rehabilitation services provided under this Part must be delivered through a rehabilitation counselor approved by the office.

In his first assignment of error, Mr. Richard contends the OWC erred when it "dismissed Mr. Richard's case." We note the only 1008 claim filed by the parties in this matter was Sonic's Motion to Compel Vocational Rehabilitation Services. That motion was followed by Mr. Richard's responsive motion to dispute vocational services, penalties and attorney fees. Thus, the only issue in dispute before the OWC was the vocational rehabilitation issue. A complete review of the record shows there was never any discussion, evidence taken, or any ruling on any other issue before the OWC relating to Mr. Richard's injury, entitlement to compensation, etc. The record further shows the OWC only discussed the issue of whether vocational rehabilitation would move forward with Ms. Brantley. The judgment at issue granted the motion to compel vocational rehabilitation and further set forth "the above-captioned matter is dismissed without prejudice." As the only issue before the OWC was resolved, the case was properly dismissed. We will amend the dismissal language to reflect the dismissal was directed only to the vocational rehabilitation issue raised in Sonic's 1008 claim, reserving to the worker all other rights and remedies provided by law.

Mr. Richard also has argued that Sonic advised the OWC that dismissal of the action should not take place. This is not accurate. Sonic wrote the letter, set forth in the facts section above, to suggest to the OWC that the Notice of a Hearing on a Rule to Show Cause as to why the case should not be dismissed was moot, because the claim had already been dismissed by the OWC as evidenced by its oral reasons for judgment and accompanying Judgment of Dismissal of January 6, 2018. Moreover, Sonic notes the letter to the trial court was drafted "after consultation and approval from counsel for Damon Richard."

Mr. Richard's remaining assignments of error involve the trial court's judgment holding vocational rehab would move forward with Ms. Brantley. In this case, counsel for Mr. Richard proposed certain conditions which Ms. Brantley was required to agree with or disagree with before she could meet with Mr. Richard. Ms. Brantley refused, so Sonic filed the motion to compel vocational rehabilitation. Mr. Richard argues the conditions, which are essentially identical to those adopted by this court in Crain Brothers, Inc. v. Richard , 02-1342 (La.App. 3 Cir. 4/9/03), 842 So.2d 523, are a reasonable response to a history of "sham rehabilitation" in workers' compensation cases. The OWC found Ms. Brantley was not required to list what conditions she would or would not agree to, finding the Louisiana Supreme Court in Hargrave v. State , 12-341 (La. 10/16/12), 100 So.3d 786, concluded such conditions were not reasonable nor necessary. The supreme court in Hargrave noted the legislature made several amendments to La.R.S. 23:1226 since the decision in Crain Brothers , which "clearly recognized a right of the employee to challenge the quality of the vocational rehabilitation services and, consequently, set forth a procedure for resolving any disputes concerning the work of the vocational rehabilitation counselor." Id. at 790.

Recently, in Allen v. Affordable Home Furnishings , 14-338 (La.App. 3 Cir. 10/1/14), 149 So.3d 836, writs denied , 14-2285 (La. 1/16/15), 157 So.3d 1132, this court addressed a nearly identical situation. There a vocational rehabilitation counselor was presented with a document requesting she agree to certain conditions and asking that if she did not agree to the conditions, she list the conditions with which she did not agree to follow. In finding that conditions may not be imposed on rehabilitation before vocational rehab services were provided, this court reasoned:

As in Hargrave v. State , 12-341 (La. 10/16/12), 100 So.3d 786, Allen seems to be arguing that the conditions are a reasonable response to the history of sham rehabilitation cases in the past. However, the court in Hargrave addressed the effect of the 2003 and 2005 amendments to 23:1226 on the imposition of conditions on a rehabilitation counselor.
The 2003 amendment therefore allowed the employee to file a claim with the OWC to review the "quality of services being provided" if "a dispute arises concerning the work of the vocational counselor...." Acts 2003, No. 980. The 2003 amendment also added paragraphs 3(b) and 3(c) to grant the counselor limited immunity from tort and to allow the employer to compel the employee's cooperation in the rehabilitation process. If the employee refuses to accept rehabilitation as deemed necessary by the OWC, he shall be subject to a fifty percent reduction in weekly compensation for each week of the period of refusal. La.Rev.Stat. 23:1226(B)(3)(c). The 2005 amendment mandated the counselor be a licensed professional vocational rehabilitation counselor. Acts 2004, No. 257. Thus, the legislature clearly recognized a right of the employee to challenge the quality of the vocational rehabilitation services and, consequently, set forth a procedure for resolving any disputes concerning the work of the vocational rehabilitation counselor.
....
As the Interiano [v. Fernando Pastrana Const. , 04-430 (La.App. 5 Cir. 10/26/04), 887 So.2d 547 ] court reasoned, there is no requirement in La.Rev.Stat. 23:1226 that a vocational rehabilitation counselor must agree to certain conditions prior to providing vocational rehabilitation services. Certainly absent any showing by the claimant that there is an actual dispute as to the provision of services or the quality thereof, requiring the counselor to abide by such conditions, even if intended as a prophylactic measure, necessarily resorts to speculation and conjecture as to the future actions of the counselor.
In other words, since the amendments, a claimant has a means of redress when a rehabilitation counselor does not fulfill the statutory mandate. However, a record of abuse must first be made before a remedy can be fashioned by the WCJ. Therefore, conditions may not be imposed on rehabilitation in advance of the provision of services.

Id. at 840 (alterations in original).

We find no error in the OWC's conclusion that Hargrave controls here. Hargrave requires there be a true dispute as to the provision of rehabilitation services and the quality thereof to require the vocational rehabilitation counselor to submit to such conditions. As no services have yet been rendered, there can be no dispute as to the quality of same. Thus, the judgment ordering that vocational rehabilitation services were to proceed and dismissing Mr. Richard's motion to dispute vocational services was not erroneous.

DECREE

For the foregoing reasons, the judgment of the Office of Workers' Compensation is affirmed. The Judgment of Dismissal is amended to reflect the dismissal was directed only to the vocational rehabilitation issue raised in Sonic's 1008 claim, reserving to the worker all other rights and remedies provided by law. Costs of this appeal are assessed to Appellant, Damon Richard.

AFFIRMED, AS AMENDED.


author: PICKETT, Judge.

text:
    James BURNETT, Sr. v. VILLAGE OF ESTHERWOOD
    18-846
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2019
    Michael Benny Miller, Attorney at Law, P.O. Drawer 1630, Crowley, LA 70527-1630, (337) 785-9500, COUNSEL FOR PLAINTIFF-APPELLANT: James Burnett, Sr.
    Christopher Richard Philipp, Attorney at Law, P.O. Box 2369, Lafayette, LA 70502, (337) 235-9478, COUNSEL FOR DEFENDANT-APPELLEE: Village of Estherwood
    Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and Jonathan W. Perry, Judges.
   PICKETT, Judge.

James Burnett, Sr. appeals the judgment of the workers' compensation judge (WCJ) denying his request for treatment by his choice of pain management physician, denying penalties and attorney fees, and denying prescription medication to the claimant.

FACTS

Mr. Burnett was injured in the course and scope of his employment with the Village of Estherwood in May 2006. Mr. Burnett and Estherwood settled his claim for indemnity benefits, and Estherwood continued paying for certain medical treatment.

On April 18, 2018, Mr. Burnett filed a Motion and Order to Compel Choice of Physician and Motion for Penalties and Attorney's Fees. Mr. Burnett alleged that his only treating physician was Dr. Daniel Hodges, a pain management specialist, but that Dr. Hodges released Mr. Burnett on April 30, 2015. Mr. Burnett then sought treatment with Dr. Michael Haydel, another pain management physician, but Estherwood would not authorize payment for the treatment. Mr. Burnett argued that because he was receiving no other medical treatment, the court should order Estherwood to pay for medical treatment by Dr. Haydel and penalties and attorney fees for failure to timely pay for the treatment. Mr. Burnett attached documents showing that Dr. Hodges requested that Mr. Burnett see a different doctor and a letter from Dr. Haydel dated July 14, 2015 advising that his appointment had been cancelled because of the failure of Estherwood to authorize treatment.

Estherwood responded to Mr. Burnett's motion by denying that Mr. Burnett was entitled to treatment with Dr. Haydel. Estherwood argued that it was not reasonable to allow treatment with a third pain management specialist and because he had a history of misusing prescription medications.

At a hearing on May 31, 2018, Tara Shelton, the claims adjuster for Mr. Burnett's case, testified, as did Mr. Burnett. The medical records of Dr. Fraser Landreneau (who had previously treated Mr. Burnett), Dr. Jyoti Pham, and Dr. Hodges were introduced. Pharmacy records were also introduced, as well as correspondence relating to Mr. Burnett's treatment. The WCJ denied Mr. Burnett's motion to compel treatment and for penalties and attorney fees. The WCJ did note that Mr. Burnett could seek medical treatment with a physician at Estherwood's expense, but that Estherwood is not required to pay for any prescription medication. Mr. Burnett now appeals the judgment of the trial court.

ASSIGNMENTS OF ERROR

On appeal, Mr. Burnett asserts three assignments of error:

1. The workers' compensation judge erred in terminating Mr. Burnett's prescription medication, as the issue was not before the workers' compensation judge or authorized by law.
2. It was error for the workers' compensation judge to fail to order the Village of Estherwood to provide medical treatment by Dr. Haydel.
3. The workers' compensation judge erred in failing to award penalties and attorney fees.

DISCUSSION

Louisiana Revised Statutes 23:1121(B)(1) allows a claimant an initial choice of treating physician in a specialty. It also states, "After his initial choice the employee shall obtain prior consent from the employer or his workers' compensation carrier for a change of treating physician within that same field or specialty." Id. "[F]ailure to consent to the employee's request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty ... together with reasonable attorney fees for each disputed claim[.]" La.R.S. 23:1201(F). However, the employer is not liable for penalties if the claim is reasonably controverted. La.R.S. 23:1201(F)(2). An employer is also subject to a penalty if it is found that discontinuance of payment of claims is arbitrary, capricious, and without probable cause. La.R.S. 23:1201(I). This court reviews the WCJ's factual findings on appeal pursuant to the manifest error -- clearly wrong standard. Poissenot v. St. Bernard Par.Sheriff's Office , 09-2793 (La. 1/9/11), 56 So.3d 170.

Mr. Burnett testified that as a result of his workplace accident, he suffered nerve damage to his left foot, left knee, left shoulder, right shoulder, and his neck and back. He was confined to a wheelchair because he could not use his legs as a result of nerve damage and broken bones. Estherwood stopped paying for his prescription medications in July 2015. Mr. Burnett testified that he had last been treated by a physician about a month before the hearing and that physician prescribed Percocet and Soma. He paid for the services rendered by that physician and the prescriptions with Medicare and his supplemental insurance. He stopped seeing that doctor when the clinic at Lafayette General Hospital closed his office. He did not submit the charges to his workers' compensation carrier for reimbursement. While Mr. Burnett did consult with Dr. Haydel, he never was treated by Dr. Haydel because he could not afford the drug test Dr. Haydel required.

Ms. Shelton testified that Mr. Burnett had presented no requests to her to pay for medical treatment or prescriptions. Dr. Haydel wrote a letter on July 14, 2015, indicating that he cancelled Mr. Burnett's initial visit because Ms. Shelton failed to authorize payment by workers' compensation. Ms. Shelton did not recall the dates of that letter, but indicated she denied the request because Dr. Haydel was Mr. Burnett's third choice of pain management physician. She also testified that she refused to approve treatment with Dr. Haydel because he failed drug screens with both Dr. Pham and Dr. Hodges.

Mr. Burnett, through his attorney, sent a notification that he intended to choose Dr. Haydel to be his pain management doctor by letter dated October 9, 2017. In response, Ms. Shelton sent a fax to Dr. Haydel which stated:

It is my understanding that Mr. James Burnett is choosing to see Dr. Haydel for pain management. I was notified thru Mr. Burnett's attorney, Michael Miller, of this choice. Mr. Burnett has previously treated with Dr. Pham at Neuromedical Center in Baton Rouge and Dr. Daniel Hodges in Lafayette for pain management. Mr. Burnett last treated with Dr. Hodges in July 2015 and was discharged for failing a UDS [urine drug screen], negative for prescribed medications. Mr. Burnett was discharged from Dr. Pham due to a found substance in his urine test. It was reported by Mr. Miller via a letter to the attorney representing the Village of Estherwood and RMI, Christopher Philipps. If Dr. Haydel elects to accept Mr. Burnett as a patient, I can have the records copied and sent to him. Also, if Mr. Burnett is going to start treating with Dr. Haydel, I am requesting that a UDS be completed on each visit.

Estherwood introduced into the record the medical records of Dr. Jyoti Pham, the first pain management specialist who treated Mr. Burnett. Those records indicate Dr. Pham released Mr. Burnett from care on October 10, 2014 after routine drug screenings indicated that Mr. Burnett, on three separate occasions, either took medication not prescribed by Dr. Pham or failed to take the medication prescribed. Estherwood also introduced the records of Dr. Hodges, which indicated that Dr. Hodges discharged Mr. Burnett from his care on July 23, 2015, because a drug test revealed he was not taking the medication prescribed by Dr. Hodges. The records also reflect that Dr. Hodges released Mr. Burnett from his care on April 30, 2015, because he believed he was "a long-term drug seeker." Estherwood also introduced the records of Dr. John Williams, which indicate that in July 2017, Mr. Burnett was prescribed Percocet and Soma, despite not having an employer-provided pain management specialist. Finally, Estherwood attached pharmacy records indicating Mr. Burnett filled prescriptions for Oxycodone on March 25 and April 25, 2015, but tested negative for opiates in Dr. Hodges' office on April 30, 2015.

The record presented by Estherwood supports the WCJ's finding that Mr. Burnett was found by his first two choices of pain management specialists to have misused prescription medications. Having determined that there is no manifest error in that determination, we turn to the assignments of error raised by Mr. Burnett, which concern the legal ramifications of that finding.

In his first assignment of error, Mr. Burnett argues that the WCJ erred by not requiring Estherwood to pay for any prescription medication because that relief was not sought by any party. To support that argument, Mr. Burnett cites several cases for the proposition that issues not raised in the pleadings in the trial court cannot be the subject of a judgment in the court. First, he cites Graham v. Jones Brothers Co. , 412 So.2d 675 (La.App. 2 Cir.1982), where the court of appeal held that a workers' compensation claimant could not be awarded penalties and attorney fees because he had not asked for that relief in his pleadings. The supreme court, though, reversed the second circuit, finding that the pleadings were sufficiently broad to encompass a demand for penalties and attorney fees. Graham v. Jones Bros. Co. , 415 So.2d 938 (La.1982).

In Leland v. Lafayette Insurance Co. , 13-476 (La.App. 3 Cir. 11/6/13), 124 So.3d 1225, writ denied , 13-2814 (La. 2/14/14), 132 So.3d 967, the trial court ordered the defendant to pay three outstanding checks within fifteen days or suffer an interest penalty. These three checks had never been negotiated and were introduced as evidence in the suit record. The court of appeal found that the plaintiff did not ask for that specific relief in his pleadings, so it was error for the trial court to award it. In Succession of Winters , 02-961 (La.App. 3 Cir. 2/5/03), 837 So.2d 1287, the trial court found that in a claim for filiation, a reimbursement claim not raised in the trial court could not be properly raised on appeal. In Concordia Bank & Trust Co. v. Webber , 548 So.2d 61 (La.App. 3 Cir. 1989), a bank sought a writ of mandamus directed to the clerk of court requiring him to modify a mortgage certificate. The mortgage certificate included an encumbrance against a party that had a name similar to, but not necessarily the same as, the parties in whose names the certificate was run. The court of appeal found the trial court erred in issuing the writ of mandamus because the clerk exercised his lawful discretion in choosing what to include on the mortgage certificate, and a writ of mandamus can only be issued to force a public officer to perform a ministerial act. The court of appeal noted that a remedy exists for failure to include an encumbrance on a mortgage certificate, but that issue was not pled in the trial court. In Mix v. Krewe of Petronius , 95-1793 (La.App. 4 Cir. 5/22/96), 675 So.2d 792, the trial court found that the Krewe of Petronius had agreed to indemnify and hold harmless the city of New Orleans. The court of appeal held that New Orleans failed to assert its right for indemnification in the proceeding below, and thus the trial court erred in granting that relief.

We find that Mr. Burnett's motion seeking medical treatment with Dr. Haydel is sufficiently broad to allow the WCJ the latitude to grant only partial relief. The trial court's judgment allows Mr. Burnett to be treated by a physician, including a pain management physician. The judgment does limit the treatment by not requiring Estherwood to pay for prescription medication at this time. In light of our determination that the trial court did not err in finding that Mr. Burnett has a history of misusing pain medications, we find the relief granted by the WCJ is reasonably tailored to address the concerns raised in this case.

In his second assignment of error, Mr. Burnett argues that the WCJ erred in not specifically ordering Estherwood to pay for treatment with Dr. Haydel. The operative language of the judgment signed by the WCJ states (italicized text appears in the original in the WCJ's handwriting):

1.
The Motion and Order to Compel Choice of Physician is denied, except as specified in paragraph 3, below.
2.
The Motion for Penalties and Attorney Fees is denied.
3.
The employee is entitled to medical treatment by a physician, including a pain management physician, but the employer is not required to pay for any prescription medication at this time.

We find the judgment does not preclude treatment by Dr. Haydel, and therefore this assignment of error lacks merit.

In his final assignment of error, Mr. Burnett claims the WCJ erred in failing to award penalties and attorney fees. Estherwood argues that it reasonably controverted Mr. Burnett's claim that medical treatment with Dr. Haydel was medically necessary, given his history of misuse of medication, particularly the fact that he filled prescriptions issued by Dr. Hodges but failed to have that medication in his system when tested.

We note that while the issue of treatment with Dr. Haydel was initially raised to the trial court in 2015, the case was continued and not pursued by Mr. Burnett while he was able to get pain medication from Dr. Williams. When Dr. Williams's office closed, Mr. Burnett, who did not seek reimbursement from Estherwood for his treatment with Dr. Williams, again sought approval for treatment with Dr. Haydel. The fax sent by Ms. Shelton indicates Estherwood approved treatment by Dr. Haydel but sought to inform Dr. Haydel about Mr. Burnett's medical history specifically as it related to misuse of prescription medication while under the care of his previous pain management physicians. Ms. Shelton's fax also requests regular drug screens. There is nothing in the record to show why Mr. Burnett failed to see Dr. Haydel after the October 12, 2017 fax and before the April 18 motion by Mr. Burnett was filed.

To support his claim that penalties and attorney fees are warranted, Mr. Burnett cites Lamartiniere v. Boise Cascade Corp. , 13-1075 (La.App. 3 Cir. 4/9/14), 137 So.3d 119, writ granted in part and rev'd on other grounds , 14-1195 (La. 10/24/14), 149 So.3d 1234, and Dubuisson v. Amclyde Engineered Products Co., Inc. , 12-10 (La.App. 1 Cir. 12/31/12), 112 So.3d 891.

In Dubuisson , the claimant's treating physician dismissed him because he took a Xanax that the physician had prescribed but later discontinued, and Valium given to him by a friend. At about the same time, the physician became ill and closed his practice. The evidence showed that the claimant still needed the services of a pain management physician, and the court of appeal upheld the judgment of the WCJ ordering the employer to pay for the claimant's second choice of pain management physician. In Lamartiniere , the claimant tested positive for cocaine. The claimant denied use of cocaine. The claimant's choice of physician testified that he had reached maximum improvement from a pain management standpoint, but the doctor stated in his note discharging the claimant that he needed to remain under the care of a physician. This court held that the WCJ did not commit manifest error in ordering the employer to pay for a new pain management specialist, given the contradictory evidence about the claimant's medical condition.

While the WCJ allowed the change of physician in both cases, in neither of these cases did the WCJ award penalties and attorney fees because of the employers' failure to approve the change of physician. We find that the WCJ did not err in this case in finding that Estherwood reasonably controverted the claim ( La.R.S. 23:1201(F) ) of Mr. Burnett and was not arbitrary and capricious in denying the claim ( La.R.S. 23:1201(I) ).

CONCLUSION

The judgment of the WCJ is affirmed. Costs of this appeal are assessed to Mr. Burnett.

AFFIRMED.


text:
    STATE of Louisiana v. Trivual A. CHARLES a/k/a Trivual Batiste a/k/a Trivual Charles
    18-222
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2019
    Peggy J. Sullivan, Louisiana Appellate Project, P.O. Box 2806, Monroe, LA 71207-2806, (318) 855-6038, Attorney for Appellant, Trivual A. Charles
    Kim R. Hayes, Assistant District Attorney, Acadia Parish, P.O. Box 288, Crowley, LA 70526, (337) 783-9471, Attorney for Appellee, State of Louisiana
    Court composed of Sylvia R. Cooks, Billy H. Ezell and Phyllis M. Keaty, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

In December of 2015, Officer Crystal Miller (Miller), at that time an officer with the Rayne Police Department (RPD), observed Trivual A. Charles (Defendant) on the front porch of a residence on Holt Street in Rayne, Louisiana. Miller was responding to a call regarding a stolen bicycle. Defendant was not involved with the investigation of the stolen bicycle, but Miller recognized him as a person with an outstanding arrest warrant. She called RPD for backup and waited until three fellow officers arrived.

According to the testimony of the officers, when they informed Defendant he was being placed under arrest pursuant to an outstanding arrest warrant, he responded that if he was going to jail they would be "taking him naked." He then took off his jacket and dropped it to the ground, took off his shirt and dropped his pants. Officer Jacob Venable (Venable) then intervened and pulled up Defendant's pants and handcuffed him. Sergeant Joseph Credeur (Credeur) picked up Defendant's jacket and shirt and placed them in Miller's patrol unit. Defendant was transported to the Rayne police station where he was booked on the outstanding warrant. During the booking process officer Venable placed Defendant's jacket on a table and heard a noise indicative of a solid object in the jacket. He reached into a pocket on the jacket and pulled out a handgun identified as a Taurus .38 caliber revolver. The gun had one live round of ammunition in the chamber and two spent rounds. All items were placed in the evidence locker and then moved to the evidence room where they remained until trial. Shortly before trial, Defendant's attorney was allowed to view the firearm. No ballistic test, no fingerprinting, and no DNA testing of any kind were performed on the weapon.

On February 22, 2016, Defendant was charged by bill of information with one count of possession of promethazine on the premises of a Police Department, and one count of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. The two charges were severed, and the promethazine charge was later dismissed. Defendant was convicted by a unanimous jury verdict of possession of a firearm by a convicted felon. Sentencing was delayed pending a pre-sentence investigation. After several continuances Defendant was scheduled for sentencing on October 12, 2017. On that date Defendant filed a "Motion for Post Verdict Judgment of Acquittal or in the Alternative Motion for New Trial." The trial court held a hearing on the same date and denied the motion. Immediately thereafter the trial court held a sentencing hearing and sentenced Defendant to twenty years without the benefit of probation, parole, or suspension of sentence. On October 25, 2017, Defendant filed a Motion to Reconsider Sentence which was set for hearing on November 7, 2017. The hearing date was reset and according to court minutes the trial court denied the motion on December 4, 2017, at which time Defendant filed a motion for appeal.

Defendant timely filed a brief with this court alleging two assignments of error asserting the trial court failed to rule on his motion to reconsider sentence and asserting his sentence is "unconstitutionally harsh and excessive." Defendant maintains the trial court did not state an adequate basis for the sentence imposed.

On the same date he filed his brief in this appeal, Defendant filed a Motion to Supplement the Record asserting that, although the trial court minutes dated December 4, 2017, indicate the motion to reconsider sentence was denied, the trial transcript of that proceeding does not contain any reference to a denial of the motion to reconsider sentence. In accordance with an order issued by this court the appellate record was supplemented with a transcript dated April 26, 2018, which reflects that the trial court denied Defendant's motion to reconsider sentence on that date.

The record also indicates that, after Defendant was sentenced to twenty years without benefit, the State charged him as an habitual offender based upon his conviction for possession of cocaine. Defendant denied the allegations in the habitual offender bill and was given sixty days to answer the allegations. Based upon information provided by the district court clerk's office a habitual offender hearing was set for February 25, 2019, after being reset seven times. This record contains no further information regarding whether a habitual offender hearing has been held and, if so, the outcome of that hearing.

ANALYSIS

We are mandated by La.Code Crim.P. art. 920 to review all appeals for errors patent on the face of the record. We find there are three errors patent, two of which indicate an illegally lenient sentence for failure of the trial court to impose the sentence be served at hard labor, and failure to impose a mandatory fine of not less than one thousand dollars. We pretermit discussion of these errors because we find that another error patent on the record requires that Defendant's sentence be vacated and the case remanded for further proceedings consistent with this opinion.

Louisiana Code of Criminal Procedure Article 873 (emphasis added) clearly mandates:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

The state supreme court has ruled that this delay may not be implicitly waived but must be explicitly waived on the record. State v. Kisack , 16-797 (La. 10/18/17), 236 So.3d 1201, cert. denied , --- U.S.----, 138 S.Ct. 1175, 200 L.Ed.2d 322 (2018).

The trial transcript and court minutes do not reflect any express waiver of Defendant's right to delay sentencing. Defense counsel did not object to the trial court proceeding with sentencing immediately after denying the motion for new trial and participated in the sentencing hearing by calling a witness, Defendant's father, on Defendant's behalf. But our courts have held that such failure to object and participation do not comply with the statutory requirement of an express waiver. See State v. Kelly , 375 So.2d 1344 (La.1979). In State v. Williams , 96-37 (La.App. 3 Cir. 6/26/96), 677 So.2d 692, this court, relying on State v. Augustine , 555 So.2d 1331 (La.1990), recognized the failure to follow the mandatory delays for sentencing provided in La.Code Crim. P. art. 873 as an error patent . We held there that when a defendant challenges the sentence imposed " Augustine mandates a remand." Id. at 699. In State v. Kisack , 16-797 (La. 10/18/17), 236 So.3d 1201, cert. denied , --- U.S.----, 138 S.Ct. 1175, 200 L.Ed.2d 322 (2018), the state supreme court reversed the appellate court's finding an implicit waiver and expressly held that "[a]n implicit waiver ... runs afoul of the plain language of [La.C.Cr.P. a]rt. 873 that requires that the waiver be expressly made." Id. at 1205.

In Augustine , 555 So.2d at 1333-34 (La.1990) (emphasis added) (alteration in original) (footnote omitted) the supreme court held that the delay provisions of La.CodeCrim.P. art. 873 are mandatory and any sentence imposed in violation of these delay periods is null :

The last issue before us concerns the mandatory delays specified in La.C.Cr.P. art. 873 which must be observed before sentence can be imposed. Art. 873 first provides for a three-day delay between conviction of the defendant and sentencing. (The original provision provided for a 24-hour delay. That was amended to three days in the 1966 Code of Criminal Procedure. 1966 La. Acts No. 310, § 1). The second requires a 24-hour delay between the denial of a new trial or judgment for acquittal and sentencing. These statutorily mandated delays have been respected in a long line of opinions. State v. Mistich , 186 La. 174, 171 So. 841 (1937) called a sentence "premature and therefore void," because the sentence was imposed within the then 24-hour delay required between conviction and sentence. In State v. George , 218 La. 18, 48 So.2d 265 (1950), cert. denied, 340 U.S. 949, 71 S.Ct. 528, 95 L.Ed. 684 (1951), the Court also addressed that same 24-hour delay, and found that "if [defendant] is denied the right to this delay, any sentence so imposed is void."
More recent decisions of this Court include a per curiam opinion in State v. Hampton , 274 So.2d 383 (La.1973), and a pair of decisions authored by Justice Marcus, State v. Young , 337 So.2d 1196 (La.1976) and State v. Hutto , 349 So.2d 318 (La.1977). These cases all involved a violation of the delay between denial of a new trial motion and sentencing. In Hutto and Young , the Court found that the sentence was "illegally imposed" when, just as in this case under review, both of those defendants were sentenced within 24 hours after denial of new trial motions, with neither having waived the delay. These are only a few of such decisions by this Court holding that violation of art. 873 requires remand for resentencing.
" Article 873 uses mandatory language in requiring that twenty-four hours elapse between the overruling of a motion for new trial and sentencing when the defendant is convicted of a felony.... The legislature in effect has said that a failure to comply with article 873 in the absence of an express waiver by the defendant affects substantial rights."

State v. White , 483 So.2d 1005 (La.1986), Dennis, J., dissenting in part.

Only the majority opinion in State v. White , 404 So.2d 1202 (La.1981) can possibly be considered at variance with this rule. But even that case is largely distinguishable from this one. We held in White (over the protest of two dissenting justices) that the statutory mandate of the 24-hour delay was not so imperative as to require a resentencing where the defendant could not show that he suffered prejudice from the violation. State v. White , however, was before us on an errors patent review (no assignments of error urged by the defendant on this issue), and the defendant was not challenging the penalty imposed.
In the case before us, Augustine did not expressly waive the delay as required by art. 873 (nor did he plead guilty); and he does challenge the penalty on this appeal.
Furthermore, there is no assurance that this is a "useless formality for reimposition of sentence," as was the majority's conclusion in White . For all we know, a reimposition might result in a sentence less than 40 years for this man, who was 18 years old at the time of the offense, who robbed his victim with a racing starter's pistol, and who did not have any prior convictions at the time of the offense.
The fact that defendant Augustine has already served 18 of his 40 years before the appeal was reviewed is no reason to deny him the treatment afforded the defendants Hutto, Young, Hampton, Scott, George, Mistich and others (citations to these cases above), who were ordered resentenced shortly after conviction.
The suggestion that the defendant was not harmed because his sentence was in fact not unconstitutionally excessive is not meritorious . Constitutional excessiveness of sentence and illegal imposition of sentence are quite separate and distinct matters. A sentence illegally imposed, even one not constitutionally excessive, is null, and constitutes no valid premise for continued incarceration. Furthermore, the district court (upon resentencing) is not bound by the sentence previously imposed, whereas this Court is bound by a legally imposed sentence which is not unconstitutionally excessive.

Defendant expressly challenges his sentence in this appeal. In Williams we said:

The first error patent involves whether there was proper delay in sentencing defendant. Defendant also claims as an assignment of error that the trial court failed to observe the twenty-four hour sentencing delay provided in La.Code Crim.P. art. 873. Defendant argues this assignment of error in his brief, but it was not formally specified as an error in the trial court in accordance with Uniform Rules-Courts of Appeal, Rule 1-3 and La.Code Crim.P. art. 920(1). However, we will address this error as it is an error patent.
In State v. Dauzat , 590 So.2d 768, 775 (La.App. 3 Cir.1991), writ denied , 598 So.2d 355 (La.1992), this court stated:
La.C.Cr.P. art. 873 requires that there be a 24 hour delay between the denial for a motion for a new trial and the imposition of sentence. Generally, this error, while patent , is not reversible unless the defendant is prejudiced by the lack of a sentencing delay. State v. Gaspard , 441 So.2d 812, 813 (La.App. 3d Cir.1983), citing State v. White , 404 So.2d 1202 (La.1981). However, the Louisiana Supreme Court's most recent pronouncement on this issue has required a strict application of Article 873, particularly where the defendant challenges the penalty imposed . State v. Augustine , 555 So.2d 1331 (La.1990). Because defendant's counsel did not argue the motion for new trial, it is difficult to find any prejudice to the defendant in the trial court's failure to observe the sentencing delay in Article 873. However, as defendant is challenging the penalty imposed, we find Augustine mandates a remand.
In the present case, defendant filed a motion for new trial which was denied by the trial court after a hearing on September 15, 1995. Immediately after denying defendant's motion, the trial court proceeded with the sentencing and sentenced defendant to twenty years at hard labor. Since defendant challenges the sentence on appeal, this error is not harmless . In State v. Augustine , 555 So.2d 1331, 1334 (La.1990), the court held that "[a] sentence illegally imposed, even one not constitutionally excessive, is null, and constitutes no valid premise for continued incarceration. Furthermore, the district court (upon resentencing) is not bound by the sentence previously imposed, whereas this Court is bound by a legally imposed sentence which is not unconstitutionally excessive." Thus, we find the trial court erred by not observing the delay. The sentence should be vacated and the case remanded to the trial court for resentencing.

Williams , 677 So.2d at 699 (emphasis added) (alteration in original).

Defendant's two assignments of error involve the sentence imposed. In the first assignment of error, Defendant alleges the trial court failed to rule on his motion to reconsider sentence. As previously discussed, the trial court denied the motion to reconsider sentence at a hearing held pursuant to this court's order for supplementation of the record. Under the provisions of La.Code Crim.P. art. 916(3) the trial court retained jurisdiction to rule on the motion to reconsider sentence. Thus, assignment of error number one is moot.

In the second assignment of error, Defendant challenges the excessiveness of the sentence imposed and maintains the trial court failed to state an adequate basis for the sentence imposed and failed to give any consideration to the lack of aggravating factors and to the mitigating factors set forth in La.Code Crim.P. art. 894.1 (emphasis added):

A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if any of the following occurs:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime.
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.
(3) A lesser sentence will deprecate the seriousness of the defendant's crime.
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(1) The offender's conduct during the commission of the offense manifested deliberate cruelty to the victim.
(2) The offender knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health.
(3) The offender offered or has been offered or has given or received anything of value for the commission of the offense.
(4) The offender used his or her position or status to facilitate the commission of the offense.
(5) The offender knowingly created a risk of death or great bodily harm to more than one person.
(6) The offender used threats of or actual violence in the commission of the offense.
(7) Subsequent to the offense, the offender used or caused others to use violence, force, or threats with the intent to influence the institution, conduct, or outcome of the criminal proceedings.
(8) The offender committed the offense in order to facilitate or conceal the commission of another offense.
(9) The offense resulted in a significant permanent injury or significant economic loss to the victim or his family.
(10) The offender used a dangerous weapon in the commission of the offense.
(11) The offense involved multiple victims or incidents for which separate sentences have not been imposed.
(12) The offender was persistently involved in similar offenses not already considered as criminal history or as a part of a multiple offender adjudication.
(13) The offender was a leader or his violation was in concert with one or more other persons with respect to whom the offender occupied a position of organizer, a supervisory position, or any other position of management.
(14) The offense was a major economic offense.
(15) The offense was a controlled dangerous substance offense and the offender obtained substantial income or resources from ongoing drug activities.
(16) The offense was a controlled dangerous substance offense in which the offender involved juveniles in the trafficking or distribution of drugs.
(17) The offender committed the offense in furtherance of a terrorist action.
(18) The offender foreseeably endangered human life by discharging a firearm during the commission of an offense which has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and which, by its very nature, involves a substantial risk that physical force may be used in the course of committing the offense.
(19) The offender used a firearm or other dangerous weapon while committing or attempting to commit an offense which has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and which by its very nature, involves a substantial risk that physical force may be used in the course of committing the offense.
(20) The offender used a firearm or other dangerous weapon while committing or attempting to commit a controlled dangerous substance offense.
(21) Any other relevant aggravating circumstances.
(22) The defendant's criminal conduct neither caused nor threatened serious harm.
(23) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm.
(24) The defendant acted under strong provocation.
(25) There were substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense.
(26) The victim of the defendant's criminal conduct induced or facilitated its commission.
(27) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.
(28) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime.
(29) The defendant's criminal conduct was the result of circumstances unlikely to recur.
(30) The defendant is particularly likely to respond affirmatively to probationary treatment.
(31) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
(32) The defendant has voluntarily participated in a pretrial drug testing program.
(33) Any other relevant mitigating circumstance.
C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

We note, as pointed out by defense counsel at the sentencing hearing, that none of the twenty aggravating circumstances enumerated above are present in this case and no other aggravating circumstances were present. Defense counsel also presented mitigating factors that should be considered by the trial court in imposing sentence including Defendant's mental health issues. The only reasoning articulated by the trial court was:

You're charged with La.R.S. 14:95.1. Whoever is found guilty of committing the crime of felon in possession of a firearm shall be imprisoned at hard labor for not less than ten (1) years nor more than twenty (20), without benefit of parole, probation or suspension of sentence. You are a fifth felony offender, which I consider to be a career criminal, and I'm going to sentence you to twenty (20) years without parole, probation or suspension of sentence.
And you have two (2) years post-conviction relief; that's two years from the date this judgment becomes final to appeal anything done here today.

This was the full extent of the trial court's remarks concerning sentencing Defendant. The brevity of the trial court's reasons for imposing the maximum sentence provides no insight or ability for this court to review the propriety of the trial court's sentence and does not reflect that the trial court considered the statutory guidelines mandated by La.Code Crim.P. art 894.1.

La.C.Cr.P. Art. 894.1 enumerates aggravating and mitigating factors to be considered by the trial court in imposing sentence, and requires that the trial judge "state for the record the considerations taken into account and the factual basis therefor in imposing sentence." The purpose of the statute is to afford a reviewing court some insight into the reasoning process of the sentencing judge, so that the propriety of the sentence can be better evaluated. State v. Price , 403 So.2d 660 (La.1981). The trial judge need not state for the record his consideration of each of the aggravating and mitigating circumstances enumerated in the article. However, the record must reflect that the judge did consider these guidelines in particularizing the sentence to the defendant . State v. Quebedeaux , 424 So.2d 1009 (La.1982). The record should reflect that the trial court considered not only the seriousness of the crime and the defendant's criminal history, but also the defendant's personal history (age, mental status, dependents, family ties, employment record, emotional and physical health), and his potential for rehabilitation. State v. Quebedeaux , supra ; State v. Jones , 398 So.2d 1049 (La.1981). The judge should indicate that he considered not only the factors militating for incarceration, but also any factor mitigating against it. State v. Ray , 423 So.2d 1116 (La.1982).

State v. See , 462 So.2d 1369, 1372 (La.App. 3 Cir.1985), writ denied , writ granted in part, judgment set aside in part , 467 So.2d 525 (La.1985) (emphasis added).

We have also said:

It is not necessary for the trial court to articulate every factor presented in Art. 894.1, but the record must reflect that the trial court adequately considered them in particularizing the sentence to the defendant. State v. Cottingin , 476 So.2d 1184 (La.App. 3 Cir.1985). The judge should indicate that he considered not only the factors militating for incarceration, but also any factor mitigating against it. State v. Smith , 426 So.2d 738 (La.App. 3 Cir.1983). Failure to adequately comply with Art. 894.1 does not necessitate vacating the sentence or warrant a remand for resentencing if the record illumines and supports the sentencing choice . State v. Jones , 478 So.2d 764 (La.App. 3 Cir.1985).
The trial judge did not adequately comply with La.C.Cr.P. art. 894.1. Prior to sentencing defendant, the court stated:
"All right.
Mr. Kohl, the Court has ordered a pre-sentence investigation on you, and your record is fairly clean.
There was an arrest back in '79 and another arrest out of state.
However, considering the circumstances of the crime committed, the Court feels that a sentence of four (4) years at hard labor with the Department of Corrections on each case, to run concurrently, would be proper, and the Court will so sentence you."
The court makes reference to a pre-sentence investigation, however, the report from such investigation was not made part of the record. It appears the trial judge considered only two things in sentencing defendant. First, his relatively clean arrest record was given consideration and, second, the circumstances of the crime committed were considered. As the record in the present case is basically devoid of reasons for sentencing, the trial judge failed to comply with Art. 894.1. Therefore, this assignment of error has merit.

State v. Kohl , 524 So.2d 781, 786 (La.App. 3 Cir. 1988).

Likewise, in this case the record indicates a pre-sentence investigation was performed, but the only information the trial court appears to have employed in making its decision is that over the course of Defendant's lifetime he was a five-time felony offender. But it is important to consider the fact that Defendant's first offense was in 1989, some twenty-eight years prior to the imposition of the current sentence. Two prior convictions date back to 1990, and Defendant ended his parole time for those offenses in 1996. Defendant was convicted of being a felon in possession of a firearm in 1995, released on parole in 2006, but his parole was revoked in 2008. The predicate offense upon which Defendant's current conviction for possession of a firearm by a convicted felon was a conviction for possession of cocaine in April 2007, for which he was sentenced to four years at hard labor. When Defendant was convicted on the felon in possession of a firearm charge in 2017, his previous offense was ten years old. We find the record does not "reflect that the judge did consider the[ ] guidelines [provided in La.Code Crim.P. art. 894.1 ] in particularizing the sentence to the defendant," State v. See , 462 So.2d at 1372. We are therefore unable to fully evaluate the propriety of the sentence imposed.

For the reasons stated we vacate Defendant's sentence and remand for further proceedings consistent with this opinion.

SENTENCE VACATED; REMANDED FOR RE-SENTENCING .

      We note that in State v. Baker , 06-2175 (La. 10/16/07), 970 So.2d 948, 958, the state supreme court expressly held:
      ...that a sentence imposed under La. R.S. 14:95.1 may be enhanced under the habitual offender law, as long as the prior felony conviction used as an element in the firearm conviction is not also used as a prior felony conviction in the multiple offender bill of information. To the extent that cases state to the contrary, including State v. Sanders , 337 So.2d 1131 (La.1976) and State v. Firmin , 354 So.2d 1355 (La.1978), they are overruled.
      We further note that the provisions of La.R.S. 15:529.1 are applicable:
      C. (1) Except as provided in Paragraph (2) of this Subsection, the current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than five years have elapsed between the date of the commission of the current offense or offenses and the expiration of the correctional supervision, or term of imprisonment if the offender is not placed on supervision following imprisonment, for the previous conviction or convictions, or between the expiration of the correctional supervision, or term of imprisonment if the offender is not placed on supervision following imprisonment, for each preceding conviction or convictions alleged in the multiple offender bill and the date of the commission of the following offense or offenses. In computing the intervals of time as provided in this Paragraph, any period of parole, probation, or incarceration by a person in a penal institution, within or without the state, shall not be included in the computation of any of the five-year periods between the expiration of the correctional supervision, or term of imprisonment if the offender is not placed on supervision following imprisonment, and the next succeeding offense or offenses.
      (2) The current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed between the date of the commission of the current offense or offenses and the expiration of correctional supervision, or term of imprisonment if the offender is not placed on supervision following imprisonment, for a crime of violence as defined in R.S. 14:2(B) or a sex offense as defined in R.S. 15:541, or between the expiration of correctional supervision, or term of imprisonment if the offender is not placed on supervision following imprisonment, for each preceding conviction or convictions alleged in the multiple offender bill for a crime of violence as defined in R.S. 14:2(B) or a sex offense as defined in R.S. 15:541 and the date of the commission of the following offense or offenses. In computing the intervals of time as provided in this Paragraph, any period of parole, probation, or incarceration by a person in a penal institution, within or without the state, shall not be included in the computation of any of the ten-year periods between the expiration of correctional supervision, or term of imprisonment if the offender is not placed on supervision following imprisonment, for a crime of violence as defined in R.S. 14:2(B) or a sex offense as defined in R.S. 15:541 and the next succeeding offense or offenses.

      [T]he record does not reflect that before sentence was imposed defendant had 'expressly' waived the twenty-four hour delay after his motions for a new trial and in arrest of judgment had been overruled. Hence, the sentence must be vacated and the case remanded to the trial court with instructions to the trial judge to sentence defendant in accordance with law.
      Kelly , 375 So.2d at 1349.

      The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:
      ... (3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.
      La.Code Crim.P. art. 916(3).