text:
    Kathryn FLOYD v. LA. DEPT. OF PUBLIC SAFETY.
    No. WCA 2008-899.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.

      Mark Terrance Hoyehick, Hoychick & Aguillard, Eunice, LA, for Plaintiff/Appellant: Kathryn Floyd.
    Leanne Broussard, State of Louisiana, Alexandria, LA, for Defendant/Appellee: La. Dept, of Public Safety.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

_JiThe plaintiff, Kathryn Floyd, appeals the judgment of the workers’ compensation judge denying her total and permanent disability benefits. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Floyd was employed as a motor vehicle officer with the Louisiana Department of Public Safety beginning in June 1991. Her job of issuing drivers’ licenses entailed testing and photographing applicants. Floyd claims that the photo processing chemicals leaked on a regular basis and that she was not provided any protective clothing to wear when working with them. In 1994, the office was treated for a cockroach infestation. The commercial pesticide company first sprayed when all of the employees were out of the office. However, Floyd claims that the second application was done when she was present. Shortly thereafter, Floyd alleges that she began experiencing pain in her upper extremities and began to see various physicians, some of her own choosing and others chosen by the State. Floyd began receiving benefits for carpal tunnel syndrome. Floyd was ultimately diagnosed with fibro-myalgia and multiple chemical sensitivity (MCS).

Beginning in February 1995, Floyd received $238.94 per week in temporary total indemnity benefits. The temporary total indemnity benefits were terminated by the State on January 30, 2005.

In August 2004, Floyd filed a disputed claim for compensation claiming that she was suffering from an illness with flu-like symptoms with pain progressing to the neck, shoulders, arms, and later, all of her extremities and her spine. In January 2005, Floyd amended her claim requesting total and permanent disability status. |.¿Following a trial in September 2007, the workers’ compensation judge issued a judgment in February 2008, denying an award of benefits for total and permanent disability, various other claims for treatment, penalties for failure to approve treatment and for discontinuance of indemnity benefits, and attorney’s fees. Floyd now appeals.

ISSUES

Floyd assigns as error:
1. The trial court committed manifest error in its interpretation of the medical evidence.
2. The trial court committed legal error in failing to apply the presumption of causation.
3. The trial court committed legal error in failing to give the proper weight to her unrebutted testimony.
4. The trial court erred in finding that the State acted in good faith in its refusals to provide the several medical referrals made by physicians that both she and the State chose.
5. The trial court erred in finding that the State acted in good faith in discontinuing her indemnify benefits, and
6. The trial court committed legal error in failing to award penalties and attorney’s fees in her favor.

STANDARD OF REVIEW

In a workers’ compensation case, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard. Thus, we will not set aside a workers’ compensation judge’s factual findings if they are reasonable in light of the record reviewed in its entirety. See Lollis v. Shaw Global Energy Servs., 07-395 (La.App. 3 Cir. 10/3/07), 966 So.2d 1118; Rosell v. ESCO, 549 So.2d 840 (La. 1989).

| .OCCUPATIONAL DISEASE

An employee claiming an occupational disease is entitled to the same benefits in workers’ compensation as she would be if she had suffered personal injury by accident. La.R.S. 23:1031.1(A). An occupational disease is defined as “only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” La. R.S. 23:1031.1(B).

In order to recover benefits as the result of an occupational disease, Floyd must prove she developed fibromyalgia and MCS as a result of her employment with the Louisiana Department of Public Safety. See Lollis, 966 So.2d 1118. She must show a connection between her condition and her work-related duties by a reasonable probability. Id. See also Williams v. Saint Gobain Containers, 39, 313 (La.App. 2 Cir. 1/26/05), 893 So.2d 144. Proof of the possibility of a relationship between the two does not satisfy this burden. Id. Additionally, whether Floyd has proved the existence of a disabling occupational disease is a question of fact subject to the manifest error/clearly wrong standard of review. Having reviewed the evidence we find no error in the worker's’ compensation judge’s finding that Floyd failed to carry her burden of proof that her fibromyalgia and MCS were caused by her workplace.

Presumption of Causation

The workers’ compensation judge found that the presumption of causation does not apply in occupational disease cases, only accident cases. Floyd argues that the presumption of causation has been applied in fibromyalgia cases and that she should have been given the benefit of the presumption. We disagree. In both |4of the cases cited by Floyd, the employee left the workplace to seek treatment immediately or shortly thereafter. In Theus. v. Schumpeyi Medical Center, 25,750 (La. App. 2 Cir. 4/5/95), 653 So.2d 178, writ denied, 95-1442 (La.9/22/95), 660 So.2d 475, the workers’ compensation judge found that the plaintiffs fibromyalgia was caused by a sprained ankle which occurred at work. In Winch v. Double M, Inc., 99-1793 (La.App. 3 Cir. 4/5/00), 764 So.2d 1055, unit denied, 00-1271 (La.6/16/00), 765 So.2d 339, a roustabout experienced difficulty breathing, weakness, lighthead-edness, and began to vomit blood while he was at work. His ensuing six-month long illness was found to have been caused by his workplace. In both of these cases, the workers’ compensation judge found that events occurring at the workplace led to the resultant conditions. We find these cases to be inapplicable to the one at hand. Here, the workers’ compensation judge specifically found that the tennis elbow condition, which undoubtedly arose at work, had no relation to the fibromyalgia and MCS as discussed further below. Accordingly, we find no error in the workers’ compensation judge’s refusal to apply a presumption of causation in favor of Floyd.

Floyd testified that the machine that created the drivers’ licenses used five bottles of chemicals which were normally replaced every five weeks or so. She testified that on some occasions there would be one or two bottles that leaked all over the box and that she would have to retrieve replacement bottles from other boxes of chemicals. Floyd said that they always had three or four extra boxes of chemicals on hand at all times. She stated that the chemicals would get on her hands and that there was no place to wash her hands.

Floyd testified that beginning in 1991, she moved to a new building where she “cleared” licenses or handled issues involving DWIs, tickets, insurance | ^cancellations, and driving under suspension. She testified that the stress level at this job was extremely high because there were lines of people waiting to be seen everyday and they were unable to assist everyone. Floyd stated that the customers were always unhappy and constantly complaining and talking about the staff.

Floyd stated that the photographic chemicals were present right across the hall from her and that every time a new person started working they would develop twitches in their eyes. She further stated that people often quit due to the stress. She also discussed the cockroach infestation, stating that roaches were running up and down the walls and across the counters and desks. She further testified that there were rats running between people’s legs. Floyd said that shortly thereafter, in late 1993 or early 1994, the commercial pesticide application was administered, first when no employees were present and the second time, while she was sitting at her desk. She described the spray treatment as extensive, including her desk drawers. Floyd stated they “saturated” the area.

Floyd stated that many people in the office began getting sick and that three other people were taken off work. She left work in 1995.

The medical records show that Floyd was initially treated for arm, hand, and elbow complaints by Drs. D.A. Waldman, an orthopedic surgeon, and Michael Ge-noff, a hand specialist, from 1994 to 1995. She was treated for carpal tunnel syndrome and tennis elbow. In October 1994, Dr. Waldman diagnosed her with mild right lateral epicondylitis (carpal tunnel), with postural strain secondary to working conditions. She was advised to procure furniture at her workplace made to prevent repetitive stress injuries associated with carpal tunnel syndrome.

Dr. Genoff evaluated Floyd in January 1995. He diagnosed her with | (imild right lateral epicondylitis and minimal left lateral epicondylitis. He noted her disability status as continuing total temporary disability for a duration of two weeks. At a follow-up visit on January 25, 1995, Floyd was diagnosed with bilateral tennis elbow and early cervical degenerative joint disease. Dr. Genoffs report indicated that easily remedied conditions at work were contributing to her symptoms. He released Floyd to full duties with the caveat that the recommended modifications be made at work. A follow-up visit on February 13, 1995, indicated that Dr. Genoff assessed Floyd as having improved bilateral tennis elbow. By June 1995, Dr. Genoff released Floyd from his care having diagnosed her with tennis elbow.

Floyd began treating with Dr. L. Lazaro in March 1995, who treated her for arm and neck pain. He did not feel that surgical management of her symptoms was indicated at that time. An April 25, 1995 progress report indicates that Dr. Lazaro found that Floyd had improved and that her neck had improved “markedly.” By May 1995, Floyd continued to complain of pain, but she refused injections of a local anesthetic and an anti-inflammatory.

In June 1995, Floyd met with Dr. C. Babson Fresh and indicated on an intake form that she was experiencing back, neck, leg, arm, shoulder, and hand pain. Dr. Fresh concluded that Floyd did not have clinical evidence of carpal tunnel syndrome, but had a probable soft tissue inflammatory condition of the right wrist.

In November 1995, Floyd saw Dr. Gregory Stewart. Floyd continued to complain of moderate chronic pain in both of her elbows that radiated into her shoulders. Dr. Stewart originally diagnosed her with bilateral epicondylitis. By March 1996, Dr. Stewart noted that Floyd’s right elbow felt significantly better, but that she had some generalized pain. He noted that she was undergoing aquatherapy. |7By June 1996, Dr. Stewart noted that Floyd possibly had fibromyalgia. Floyd reported that her symptoms had worsened, but that the aquatherapy had been very beneficial. Dr. Stewart indicated a significant number of restrictions and job site modifications that would be appropriate. However, he was also of the opinion that she would not be able to type for longer than three to five minutes at a time with a significant break of twenty to thirty minutes. By August 1996, Dr. Stewart noted fibromyalgia as his impression. Floyd indicated the onset of low back pain. By January 1997, Dr. Stewart indicated that Floyd should be able to begin work trials. In June 1998, the State sent Floyd to see Dr. Gerald Leglue, whom she last saw in 2003. He diagnosed her with “fibromyalgia pain syndrome.” He testified via deposition that it was possible that some exposure in her environment was causing her to have diffused pain syndrome. He stated that he could say that in good faith because he had seen more than one person come out of that particular office with similar problems. Dr. Leglue further stated that fi-bromyalgia can be related to isolated events, to cumulative trauma, or to exposure. Dr. Leglue continued the aquather-apy and recommended acupuncture. Dr. Leglue testified that Floyd seemed to receive the most benefit from the acupuncture.

In October 1999, it was recommended that a functional capacity examination (FCE) be conducted. However, Dr. Le-glue was of the opinion that Floyd could not undertake an FCE due to the lifting, moving, twisting, and bending required of the test. He feared this would worsen her symptoms, and it was not conducted. Dr. Leglue testified that he saw Floyd three times in 2000, and that she was improving with acupuncture. That year, Dr. Leglue noted that Floyd complained that she was having problems with odors and smells. He stated that she was very Insensitive. By October 2001, Dr. Leglue stated that Floyd was stable with acupuncture treatment.

Following the last visit in October 2001, Dr. Leglue did not see Floyd again until July 2003, at which time she complained of neck and shoulder pain of a different sort than had previously bothered her. She also indicated inability to control her bowels on occasion. Dr. Leglue recommended an MRI at that point, but the State denied the testing. Dr. Leglue testified that the State had been helpful and amenable to the treatment he recommended for Floyd up until that point.

As of July 2003, Dr. Leglue diagnosed Floyd with fibromyalgia pain syndrome. He opined that based on Floyd’s subjective history, the cause of her condition was more probably than not toxic exposure in the workplace, although he had no record of what the toxic substances were. Dr. Leglue further reported on a form to Kala Crowe, a state risk claims adjuster, that Floyd was capable physically of doing sedentary activities, but that he was not sure she could handle any job psychologically.

In January 2002, Floyd began treating with Dr. Jonathan Forrester, who continued to be her treating physician at the time of trial. Floyd complained of fibro-myalgia and multiple chemical sensitivities. He stated that fibromyalgia is one of his specialities, but that he has no expertise in MCS. He further stated that he has no test available to confirm MCS. Dr. Forres-ter opined that most chemically sensitive patients are also allergy patients. He further stated that a person who has MCS does not necessarily have fibromyalgia and vice versa. But, he testified that there is no known cause for fibromyalgia; that it is a set of symptoms.

Dr. Forrester testified that, in general, allergies are genetic and are not ^caused by environmental factors. He treated Floyd for allergies and stated that they were not work-related. However, he testified via deposition that, more probably than not, Floyd would be unable to return to work. He further testified that the cause of her fibromyalgia was employment-related based on the history she provided.

In 2005, after benefits had been terminated, Floyd testified that she went to see an expert in environmental exposure, Dr. Kaye Kilburn, in Pasadena, California at her own expense. Following an examination in February 2005, Dr. Kilburn diagnosed Floyd with chemical encephalopathy, airways obstruction, peripheral neuropathy, and intolerance (hyper-sensitivity) to many chemicals due to exposure to organophosphates, photo chemicals, cigarette smoke, and other chemicals. Dr. Kilburn found that Floyd required a protected environment to avoid many chemicals. Dr. Kilburn noted Floyd’s exposure history as follows:

During your period of employment you were frequently exposed to pesticide/insecticide spray from fellow employees and from professional agents. Your building was overrun with cockroaches. After one particular spray incident by a professional you arrived at work to see a dead dog and skunk near the building. You had a small office that was sometimes sprayed while you worked at your desk. You also developed instant driver’s license photos and handled 5 different photo chemicals to do this. You performed in this job for 6 years. On one occasion one of the 5 bottles leaked and you inhaled the fumes. These were stored near your desk and you were never advised to wear protective equipment. An additional exposure was cigarette smoke from fellow workers. It was so thick as to look like a blue fog in your office. You complained to the State Fire Marshall after voicing your concern did not stop the indoor smoking.

Dr. William J. Nassetta had the opportunity to examine Floyd on July 12, 2006. Dr. Nassetta provided an extensive sixteen page report detailing Floyd’s medical history and list of complaints. He provided laboratory results for a variety of tests including an allergen respiratory panel. He further discussed MCS stating (citations omitted):

| ^Individuals who respond to varied exposures or odors, usually at levels less than would be expected to cause harm, in a variety of non-specific symptomatic ways without objective findings on physical exam or on laboratory evaluation have in the past been labeled as having “multiple chemical sensitivity.” Recently, the term “idiopathic environmental intolerance” (IEI) has been suggested to replace multiple chemical sensitivity (MCS) and older terms that describe the same process. Idiopathic environmental illness is defined as an acquired disorder with multiple recurrent symptoms associated with diverse environmental factors tolerated by the majority of people and not explained by any known medical or psychiatric disorder.
Because MCS is controversial, many practitioners are now avoiding the more colorful names, and often refer to MCS as not as a condition per se, but as a symptom complex resulting from a primary diagnosis, such as organic brain dysfunction or toxic encephalopathy. All of this is on the list of Dr. Kilburn’s “diagnoses.”
In many ways, IEI is a belief system. Promoted by clinical ecologists and those sympathetic to their views, and followed by medically naive lay persons, the belief is reinforced by referring patients to a network of similarly minded clinicians, and establishing support groups, hotlines, journals, and clinics to support and reinforce these beliefs. Some have called this phenomenon a medical subculture.
Many experts have studied “MCS” patients and concluded that their basic problem is psychologic rather than physical. The best current data suggest that certain psychological factors predispose individuals to develop symptoms and to seek out someone who will provide a “physical” explanation of them symptoms, as Ms. Floyd did with Dr. Kilburn. Additionally, Ms. Floyd had been identified as being at strong risk for somatization, which certainly plays some part in her condition.

IEI is considered one of a multitude of so-called functional somatic syndromes. These syndromes are characterized more by symptoms, suffering and disability than by consistently demonstrable tissue abnormality.

Dr. Nassetta was asked if he agreed with the diagnosis of MCS and, if so, whether it was related to Floyd’s work environment to which he responded:

No, I do not concur with the diagnosis of MCS. MCS is not recognized as a clinical syndrome by mainstream medical practitioners. Given that MCS is not even agreed to exist among mainstream medical practitioners, its “causes” would be speculative. Therefore, it is my professional opinion that Ms. Floyd does not have multiple chemical sensitivity and therefore, it could not be related to any exposure in her |„work environment.

Dr. Nassetta was further asked about Floyd’s fibromyalgia diagnosis to which he opined:

Fibromyalgia, on the other hand, is an accepted medical diagnosis. However, as stated above, it is considered one of the overlap syndromes. The syndrome of fibromyalgia (FMS) has been defined as a constellation of complaints including diffuse chronic pain and the presence of tender points. The syndrome is often debilitating, frustrating physicians and patients alike. The frustration stems from the chronic nature of the symptoms, the multiplicity of possible etiologies, the vague boundaries of definitions, and the lack of treatments that reliably and completely treat the symptoms. Due to the non-specific and subjective nature of FMS, there has been controversy focusing on three primary issues: 1) whether fibromyalgia is a “garbage-bin” diagnosis for all unexplained complaints, 2) whether fibromyalgia is primarily a psychiatric disease, and 3) whether fibromyalgia is a non-disease of malingerers or hypochondriacs.

Dr. Nassetta went on to state that he had no reason to doubt the diagnosis of fibro-myalgia. However, he stated, “there are no known, generally accepted causes of this condition, therefore I do not believe it to be directly related to her work environment.” Dr. Nassetta summarized his opinion as follows:

Kathryn Floyd is a woman who worked for the State of Louisiana for periods of time in the 1980’s and 1990’s who developed bilateral lateral epicondylitis. The development of this condition was most likely related to her work and the lack of an ergonomically designed workspace. Over time, however, as symptoms in her elbows improved, Ms. Floyd began to develop non-specific somewhat diffuse somatic complaints. She has been given diagnoses including multiple chemical sensitivity and fibromyalgia. Various practitioners have questioned the etiology of these conditions as being related to chemical exposures in the work place. It is important to highlight that at no time did Ms. Floyd describe adverse acute health effects to chemical exposures in the workplace, as would be expected in most cases of those who would proceed on to develop chronic problems. There seems to be some degree of recall bias in this case. That is, once a physician suggested that chemicals might have contributed to her problems, Ms. Floyd tried to recall any chemicals that she may have been exposed to in her employment. However, at no time did any practitioner consider the exact nature of the chemicals, their dose, or them potential for causing disease. Further, there was no mention of chemicals as a potential cause until some years |12after her leaving work for the state and no visits to doctors for acute exposures to chemicals form her workplace. One must also consider the psychological contribution to Ms. Floyd’s overlap syndrome. Specifically, Dr. Quillan’s finding of Ms. Floyd being at strong risk for somatization. The common feature of somatoform disorders is the presence of physical symptoms that suggest a general medical condition (hence the term somatoform) and are not fully explained by a general medical condition, by the direct effects of a substance, or by another mental disorder. It would appear then that Ms. Floyd has somatization at the present time that is unrelated to any possible exposure in her workplace with the State of Louisiana.

Following the presentation of the evidence, the workers’ compensation judge issued extensive detailed oral reasons for judgment that encompass thirty-one legal typed pages. Having reviewed all of the evidence, we find no manifest error in the workers’ compensation judge’s ruling that Floyd’s workplace did not cause her fibro-myalgia and MCS.

We find that it was reasonable for the workers’ compensation judge to conclude that Floyd’s employment with the State and her eventual diagnosis of fibromyalgia and MCS were not causally connected. Every doctor testified that there is no known cause of fibromyalgia or MCS. The workers’ compensation judge found the first mention of fibromyalgia was more than two years following her leave from work.

Floyd strenuously argues that the fibro-myalgia resulted from the original diagnosis of epicondylitis and that it should be presumed that her fibromyalgia resulted from this condition. We disagree. In his oral reasons for judgment, the workers’ compensation judge specifically found:

If the indication is that the fibromyal-gia was a result of the epicondylitis, we have introduced on Ms. Floyd’s behalf proposed to the experts in fibromyalgia Dr. Leglue and Dr. Forrester. Dr. Le-glue said in his opinion fibromyalgia— well, he didn’t say fibromyalgia was a result of the symptomatic problems associated with epicondylitis. He felt like it was an-related to a toxic work environment. Dr. Forrester did |13not say that the fibromyalgia was a result of any symptomatology associated with her epi-condylitis. He said fibromyalgia was a result of stressors from multiple chemical sensitivity.
So both Dr. Forrester and Dr. Leglue destroyed any presumption that could be argued on Ms. Floyd’s behalf with regai-d to fibromyalgia being certainly associated with epicondylitis.

We find no manifest error in these findings.

The workers’ compensation judge went on to discuss Floyd’s MCS. He noted that the first claim of chemical sensitivity from odors was in 2001, some six years after the alleged exposure and that Floyd was not diagnosed with MCS until February of 2005 by Dr. Kilburn. Dr. Nassetta testified that the majority of medical professionals do not even accept MCS as a legitimate medical condition. The testimony regarding the “exposure” was scant. Floyd testified and reported to Dr. Kilburn that one bottle of fluid used in making driver’s licenses spilled. She testified to one event in which a bug spray treatment was conducted while she was in the office. There simply was insufficient evidence to suggest that these isolated events led to Floyd’s fibromyalgia and MCS. Clearly, the workers’ compensation judge found Dr. Nassetta’s testimony more credible; a finding which was in his purview. Dr. Nassetta had the benefit of having all of Floyd’s medical records for review whereas Dr. Kilburn did not review any medical records. Both doctors saw Floyd on only one occasion. Accordingly, assignments of error one through three are without merit.

PERMANENT TOTAL DISABILITY

Although we need not address this claim because we found no error in the workers’ compensation judge’s finding that causation was not proven, we note that the workers’ compensation judge further found that, even accepting as true that 114Floyd’s fibromyalgia and MCS were caused by her workplace, she still failed to prove that she was totally and permanently disabled. We agree based on our review of the record. There was testimony that Floyd was capable of sedentary to light duty work. Accordingly, this assignment of error is without merit.

PENALTIES AND ATTORNEY’S FEES

In these assignments of error Floyd argues that the State was not in good faith and was arbitrary and capricious in its refusal to approve and/or provide certain medical tests and treatment and that the State should pay penalties and attorney’s fees for its refusals. We disagree. A workers’ compensation judge’s decision to award penalties and attorney’s fees is factual in nature and will not be reversed on appeal absent manifest error. Odom v. Kinder Nursing Home, 06-1442 (La.App. 3 Cir. 4/25/07), 956 So.2d 128.

The State refused to pay for the following treatments/referrals:

1) Treatment at the Dallas Environmental Health Center and a referi'al to Dr. Donna Breen as recommended by Dr. Forrester for concerns about mold. We find no error in the workers’ compensation judge’s finding that this referral was not for a work-related illness.
2) Payment for Dr. Kilburn’s services. Floyd visited Dr. Kilburn in California at her own expense following the termination of her benefits. Considering our foregoing findings, we find no error in the workers’ compensation judge’s finding that the State was not in bad faith in refusing to pay for this visit as it was not for a work-related illness.
3) Dr. Leglue’s recommendation that Floyd undergo an MRI in regard to suspicion of a cervical disc injury. Again, we find no error in the workers’ | ^compensation judge’s finding that the State was in good faith in denying this claim as it had no relation to a work injury. Further, there were claims for unpaid bills owed to Dr. Leglue; however, no evidence was introduced regarding any unpaid bills. 4) Dr. Forrester’s recommendation that Floyd be evaluated by Dr. Tom Calendar, an environmental specialist. Although Dr. Leglue testified that he discussed the possibility of a consultation with Dr. Calendar, no referral was actually made. Moreover, for the same reasons as above, the workers’ compensation judge did not manifestly err in refusing to award penalties. Additionally, considering the lengthy

amount of time that Floyd was paid benefits for a tennis elbow condition, we certainly find no error in the State’s termination of benefits after nearly ten years of payment.

Based on our foregoing findings, we find no error in the workers’ compensation judge’s refusal to award penalties or attorney’s fees. Assignments of error four through six are without merit.

CONCLUSION

The judgment of the workers’ compensation judge in favor of the Louisiana Department of Public Safety terminating the benefits of Kathryn Floyd is affirmed. All costs of this appeal are assessed against Floyd.

AFFIRMED.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    STATE of Louisiana v. James M. BAKER.
    No. KA 2008-898.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.

      William E. Tilley, District Attorney-Thirtieth Judicial District Court, Leesville, LA, for Plaintiff/Appellee: State of Louisiana.
    Mary Constance Hanes, Louisiana Appellant Project, New Orleans, LA, for Defendant/Appellant: James M. Baker.
    Terry Wayne Lambright, Attorney at Law, Leesville, LA, for Plaintiff/Appellee: State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

hThe Defendant, James M. Baker, was charged by bill of information with simple burglary of an inhabited dwelling, in violation of La.R.S. 14:62.2 and with theft over $500, in violation of La.R.S. 14:67. On March 5, 2008, the Defendant pled guilty to the simple burglary charge in exchange for the dismissal of the theft charge. The State also agreed to recommend a concurrent sentence to any sentence he was currently serving and not to charge the Defendant as a habitual offender.

The Defendant was sentenced on May 27, 2008, to serve ten years at hard labor, with credit for time served. A timely motion to reconsider sentence was filed on June 6, 2008, and was summarily denied, without reasons, on June 9, 2008. The Defendant is now before this court on appeal, asserting that his sentence is excessive.

FACTS

At the Defendant’s guilty plea, the State established that on August 26, 2007, the Defendant entered the residence of Ellen Tilley, without her consent, and stole a Browning shotgun and DVDs belonging to Ms. Tilley.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent, but the minutes of sentencing require correction.

The court minutes of sentencing state that the Defendant’s “sentence is to run concurrent with any other sentences the defendant is subject”; however, this is not reflected in the sentencing transcript. Accordingly, the district court is instructed to amend the minutes of sentencing to correctly reflect the sentence imposed.

|,ASSIGNMENT OF ERROR

In his sole assignment of error, the Defendant argues that his ten-year sentence is excessive under the circumstances of this case. The Defendant asserts that he fully cooperated with the authorities, confessed to the crime, showed them where he had hidden the items taken from the Ms. Tilley’s residence, and as such, Ms. Tilley was made whole. The Defendant also contends that in the absence of his cooperation, it is unlikely that the authorities could have convicted him. Lastly, the Defendant maintains that at the time of the offense, he was experiencing extreme economic hardship.

In his motion to reconsider sentence, the Defendant requested the trial court to reconsider his sentence “... because it is excessive.” “Failure to ... include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” La.Code Crim.P. art. 881.1(E). Because defense counsel clearly failed to allege in the motion to reconsider sentence that the trial court should have considered Defendant’s cooperation, confession, and economic status at the time of the offense, this court is relegated to a bare claim of excessiveness.

As stated by this court in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59 (first two alterations in original):

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[m]aximum sentences are reserved for the most [.¡serious violations and the worst offenders.” State v. Far hood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
The fifth circuit, in [State v.] Lisotta, [98-646 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:
1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same comb and other courts.

See also State v. Semien, 06-841 (La.App. 3 Cir. 1/31/07), 948 So.2d 1189, 1197, writ denied, 07-448 (La.10/12/07), 965 So.2d 397.

The sentencing range for simple burglary of an inhabited dwelling as stated in La.R.S. 14:62.2 is one to twelve years at hard labor, without benefit of parole, probation, or suspension of sentence. Thus, the Defendant received an upper range sentence. The Defendant, however, derived significant benefit from his plea agreement. Prior to his plea, he faced a possible sentence for theft of up to ten years, with or without hard labor, or fine of up to three thousand dollars, or both. La.R.S. 14:67. Additionally, the State agreed not to charge the Defendant as a habitual offender, significantly decreasing his sentencing exposure.

With regard to the nature of the offense, the trial court noted at sentencing that Ms. Tilley was in the process of moving into her residence when she saw the Defendant walk around the corner of her home as she pulled up with a load of items. The Defendant then walked back around to the front of her home, asked for a place to wash his hands, washed his hands under a faucet on the outside of the house and then left. As the Defendant drove off, Ms. Tilley recorded his license plate number. |4She later discovered that a shotgun and DVDs were missing from her home and noticed that the bedroom door had been broken. After identifying the Defendant in a lineup, the Defendant was questioned and voluntarily took the deputies to the place where he had hidden the items.

The trial court also considered the information contained in the Defendant’s pre-sentence investigation report and observed several factors which reflect the nature and background of the Defendant. First, the trial court noted that the thirty-six-year-old Defendant was married, had four children, and was in fat health. He completed eleventh grade and subsequently obtained his GED. The Defendant’s employment history indicated that he was employed by the Department of Transportation and Development as a maintenance worker. He admitted to using marijuana but denied the use of hard drugs or having received drug treatment in the past.

The Defendant’s criminal history indicates that he is a third-felony offender. In August 1989, the Defendant was convicted of attempted murder and sentenced eleven years at hard labor. He was paroled in August 1991. The Defendant’s parole was then revoked in June 1992. Next, in October 2004, the Defendant was convicted of theft over five hundred dollars and received a five-year suspended sentence and was placed on supervised probation. His probation was revoked in September 2007, following the offense at issue.

Considering same, the trial court concluded that the Defendant would likely commit another crime while on probation and then noted that he was, nonetheless, not eligible for a suspended sentence as a third-felony offender. The trial court declared that there were no substantial grounds to excuse or justify the Defendant’s actions and that he acted on his own free will, with no provocation to commit the offense. Lastly, the trial court opined that the Defendant was in need of correctional treatment and a |.desser sentence would deprecate the seriousness of the offense.

Recent jurisprudence was reviewed for sentences involving similar crimes, the third and last factor to consider under Lisotta, 726 So.2d 57. In State v. Alsup, 42,636 (La.App. 2 Cm. 10/24/07), 968 So.2d 1152, twit denied, 07-2252 (La.4/25/08), 978 So.2d 363, the defendant was charged with simple burglary of an inhabited dwelling and was subsequently convicted following trial. The facts indicate that he entered the victim’s home without permission and removed checks from the home. The defendant subsequently used the stolen checks to purchase items, including clothing, computers, and auto parts. The defendant, a first felony offender, was sentenced to eight years at hard labor which was affirmed on appeal.

In State v. Johnson, 03-150 (La.App. 1 Cir. 9/26/03), 857 So.2d 586, the defendant was charged with simple burglary of an inhabited dwelling and possession of cocaine. The facts indicate that the defendant entered the victim’s home without her consent. When the victim discovered the defendant in her home, he fled the residence. The victim discovered that her purse was missing. When the defendant was apprehended, the victim’s purse, her identification; and her credit cards were recovered from a garbage bag in the pantry of the defendant’s residence. Two rocks of cocaine and a pipe were also found in the residence. The defendant pled guilty to the charges, and the State agreed not to charge him as a habitual offender. He was sentenced for simple burglary to nine years at hard labor, one year without benefit of probation, parole, or suspension of sentence, and for the cocaine possession, he received four years at hard labor. The sentences were ordered to run concurrently, but consecutively to the sentence remaining on an aggravated burglary offense for which the defendant was on parole at the time of the instant offenses. The defendant’s sentences were affirmed on appeal.

pin light of the jurisprudence, the Defendant’s sentence in the instant case does not appear to be disproportionate to other sentences imposed in similar circumstances. Considering the facts of the case and the Defendant’s criminal history, his sentence is not constitutionally excessive. Additionally, the record clearly reflects that the trial court considered the sentencing guidelines set forth in La.Code Crim.P. art. 894.1 in sentencing the Defendant. Accordingly, the Defendant’s sentence is affirmed as it does not shock the sense of justice nor does the term of imprisonment imposed constitute an abuse of the trial court’s sentencing discretion.

CONCLUSION

The Defendant’s sentence is affirmed; however, the district court is instructed to amend the minutes of sentencing to correctly reflect the sentence imposed.

AFFIRMED.

      . The trial judge mentioned at sentencing that in conjunction with the plea, it was recommended that he impose a sentence that would run concurrently with any other sentence the Defendant may be serving. However, during ihe court's imposition of the sentence, the judge did not state that the sentence would run concurrently with any other sentence the Defendant was serving, as reflected in the court minutes.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Gregory John RUIZ.
    No. KA 2008-867.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.
    James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant/Appellant: Gregory John Ruiz.
    Hon. J. Phillip Haney, District Attorney, New Iberia, LA, for Plaintiff/Appellee: State of Louisiana.
    Gregory John Ruiz, ALC Earth C-l, Kinder, LA, Defendant/Appellant: Gregory John Ruiz.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

11 Gregory John Ruiz, the Defendant, was charged by bill of information with possession of cocaine, second offense, and distribution of cocaine, second offense, in violation of La.R.S. 40:967 and 40:982. After his first trial ended in a mistrial, Defendant was retried and found guilty as charged on March 16, 2005. Defendant was subsequently adjudicated a second habitual offender and sentenced to five years at hard labor for possession of cocaine, second offense, and thirty years at hard labor for distribution of cocaine, second offense.

On appeal of Defendant’s convictions, this court held:

Pursuant to Skipper, La.R.S. 40:982 does not state a substantive crime. However, the second-offense portions of the convictions are severable from the portions of the convictions that relied upon the more recent criminal conduct, pursuant to La.R.S. 40:967. Further, although it was error under Skipper to expose the jury to the fact of Defendant’s prior conviction, said error was harmless because of the strong evidence regarding the more recent criminal conduct at issue, i.e., Defendant’s sale of cocaine to an undercover officer.
Therefore, Defendant’s convictions for second-offense possession and second-offense distribution of cocaine and the attendant sentences, including the adjudication and sentence under La.R.S. 15:529.1, are vacated. However, we order the entry of convictions for the lesser offenses of possession of cocaine and distribution of cocaine, both in violation of La.R.S. 40:967. The case is remanded for further proceedings, in accordance with this opinion.

State v. Ruiz, 06-30, pp. 17-18 (La.App. 3 Cir. 5/24/06), 931 So.2d 472, 483-84.

In the error patent section of the opinion, this court stated:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed on the face of the record for errors patent. After reviewing the record, we find that there are several errors patent involving the habitual offender adjudication and sentences. We find, however, that these errors are mooted by our finding, based on an assigned error, that the Defendant’s convictions are vacated only as to his second offender status. Therefore, Defendant’s habitual offender adjudication and sentences are vacated and the case is remanded for further proceedings.

¡■¿Id. at 474.

On June 19, 2006, the State filed a habitual offender bill requesting that Defendant be sentenced in conformity with the provisions of La.R.S. 15:529.1.

On April 11, 2007, the supreme court affirmed this court’s decision, but held that we erred in conducting a harmless error review where Defendant waived his right to raise the Skipper error. The supreme court, finding an error in the trial court’s double enhancement of Defendant’s sentences, remanded the case for resentenc-ing, stating:

We further observe that although the State charged the defendant as a second offender pursuant to La.Rev.Stat. 40:982, after trial the State filed an habitual offender bill under La.Rev.Stat. 15:529.1. After finding the defendant a second offender subject to the provisions of La.Rev.Stat. 15:529.1 A(l)(a), the court calculated the applicable sentencing range by doubling the maximum penalty provided for the underlying offenses pursuant to La.Rev.Stat. 40:982, and then applying to those enhanced penalties the formula for sentencing a second offender under La.Rev.Stat. 15:529.1A(l)(a), to find a sentencing range of 5 to 20 years for possession of cocaine and 30 to 120 years for distribution of cocaine. Under this formula, the trial court imposed sentences of 5 years at hard labor for possession of cocaine as a second and subsequent offender and 30 years at hard labor for distribution of cocaine as a second and subsequent offender. These sentences equate to the maximum penalties statutorily provided for the underlying offenses of possession and distribution and thus, the court imposed sentences which do not exceed the maximum un-enhanced terms of imprisonment provided by the underlying substantive crimes. However, we must caution the trial court that the double enhancement formula it used, ie., enhancing the penalties provided for the underlying offense as a matter of La.Rev.Stat. 40:982 and then enhancing those enhanced penalties under La. Rev stat 15:529.1, on the basis of the same prior convictions, violated this court’s rule in State v. Sanders, 337 So.2d 1131, 1134 (La.1976) (the State may not seek multiple enhancement of a defendant’s sentence on the basis of the same set of prior convictions). See, e.g., State v. Murray, 357 So.2d 1121, 1124 (La.1978), reversed on other grounds. Therefore, although we reverse that part of the court of appeal’s decision, which severed the second-offense portions of the convictions from the underlying substantive offenses of possession and distribution of cocaine, we find this matter must be remanded for re-sentencing to correct the trial court’s erroneous use of Louisiana’s |;.Habitual Offender Law, La.Rev. Stat. 15:529.1, where the defendant was already subject to an enhanced penalty pursuant to La.Rev.Stat. 40:982.
DECREE
The defendant’s convictions for possession of cocaine and distribution of cocaine, in violation of La.Rev.Stat. 40:967, are affirmed. Because the trial court has found the defendant to be a second offender, having previously been convicted of two counts of distribution of cocaine, this matter is remanded for sentencing pursuant to either the sentencing enhancement provisions of La.Rev. Stat. 40:982 or Louisiana’s Habitual Offender Law, La.Rev.Stat. 15:529.1. The State may not validly seek multiple enhancement of the defendant’s sentence based on the same set of prior convictions.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

State v. Ruiz, 06-1755, pp. 12-13 (La.4/11/07), 955 So.2d 81, 88-89 (Footnote omitted).

On March 20, 2008, a hearing was held before the trial court at which the State offered the transcript of witnesses’ testimonies from the original multiple offender hearing, along with exhibits from the prior proceeding. The trial court again found Defendant to be a second offender and sentenced him to fifteen years at hard labor for distribution of cocaine, and two and one-half years at hard labor for possession of cocaine, to run concurrently.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we reviewed this appeal for errors patent on the face of the record. After reviewing the record, we find there are no errors patent regarding Defendant’s sentences.

1.ASSIGNMENT OF ERROR

On appeal, Defendant contends the errors patent concerning the habitual offender proceeding mentioned, but not discussed, in this court’s prior opinion still exist as they would not have been corrected by the refiling of the same evidence from the original habitual offender hearing. He contends that because this court specifically found errors patent in the prior habitual offender proceeding and the State did not alter anything done in the prior proceeding, the errors patent must still exist, requiring vacation of the March 20, 2008 adjudication. The State, in its brief, essentially points out that Defendant was sentenced in accordance with the supreme court’s ruling.

Indeed, our prior opinion mentioned several errors patent involving the habitual offender adjudication and sentences. However, there was only one error concerning the habitual offender proceeding, i.e., the failure of the trial court to inform Defendant of his rights prior to the original habitual adjudication proceeding. The other errors concerned sentencing.

In State v. Coleman, 96-525, pp. 12-13 (La.App. 3 Cir. 10/7/98), 720 So.2d 381, 387, this court explained in pertinent part:

Although the right to remain silent is not specifically set forth in La.R.S. 15:529.1, in State v. Johnson, 432 So.2d 815 (La.1983), writ granted on other grounds, 438 So.2d 1113 (La.1983); appeal after remand, 457 So.2d 1251 (La. App. 1 Cir.1984), appeal after remand, 471 So.2d 1041 (La.App. 1 Cir.1985), the Louisiana Supreme Court held this statute clearly recognizes the defendant has the right to remain silent, and the statute implicitly provided defendant should be advised by the court of his right to remain silent. The court in Johnson, relying on State v. Martin, 427 So.2d 1182 (La.1983), further stated La.R.S. 15:529.1(D) specifically provides defendant shall be advised of his right to a formal hearing and to demand that the state prove its case.

| .-This court has found such error to be harmless when the defendant is adjudicated a habitual offender after a full hearing, and the defendant does not testify or acknowledge his status as a habitual offender. See State v. Alexander, 05-276, 05-277 (La.App. 3 Cir. 11/2/05), 916 So.2d 303. In this case, although Defendant was not apprised of the foregoing rights prior to his original habitual offender proceeding, a full hearing was held, and Defendant did not testify or acknowledge his status as a habitual offender. Accordingly, the sole procedural error concerning the original habitual offender hearing was harmless. Further, we interpret the supreme court’s ruling as implicitly “reinstating” Defendant’s second offender status and remanding the case for sentencing only. The second hearing of March 20, 2008 was superfluous. Thus, it is unnecessary to address any potential issues regarding the re-adjudication in that proceeding.

Additionally, we make two other points. First, defense counsel did not assign any error regarding the subsequent proceeding. Second, the March 20, 2008 hearing resulted in Defendant’s sentences being slashed in half — obviously a good result for Defendant. Thus, we fail to see any prejudice to Defendant as a consequence of that second hearing and his sentences are affirmed.

AFFIRMED.

      . The supreme court, in the body of its opinion, stated it was reversing this court’s decision insofar as it severed the second-offense portions of the convictions from the underlying substantive offenses; however, its decree language stated it affirmed and remanded the case.


author: GENOVESE, Judge.

text:
    CITY OF JEANERETTE v. Robert HAMILTON.
    No. 08-1248.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.

      Joy C. Rabalais, John F. Wilkes, III, Lana G. Duhon, Borne & Wilkes, L.L.P., Lafayette, LA, for Plaintiff/Appellant, City of Jeanerette.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Defendant/Appellee, Robert Hamilton.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Iiln this workers’ compensation case, the City of Jeanerette appeals the trial court’s ruling in favor of the Defendant/Appellee, Robert Hamilton, sustaining his peremptory exception of no right of action. For the following reasons, we reverse and remand.

STATEMENT OF THE CASE

On May 9, 2008, a Disputed Claim for Compensation, commonly referred to as a 1008, was filed by the City of Jeanerette (City) against Mr. Robert Hamilton. This 1008 form was both signed and filed by the adjuster for the self-insured risk fund covering the City. The City’s claim alleged that Mr. Hamilton had violated La.R.S. 23:1208 through his misrepresentation of certain travel expenses, i.e., mileage, in a pending but separate claim which had been filed by Mr. Hamilton following a November 2005 work-related knee injury.

On June 17, 2008, Mr. Hamilton filed an exception of prematurity and/or no right of action. In support of his position that the City’s claim should be dismissed, Mr. Hamilton asserted in his exception:

[T]he adjuster, who is not licensed to practice law in the state of Louisiana has filed this [disputed [c]laim and does not possess any right to act as the defen-dantf’s] legal counsel in this matter. The adjuster ... has engaged in the unauthorized practice of law and should be sanctioned by this court. Due to the unauthorized practice of law by [the adjuster], the [disputed [c]laim for [workers’ [compensation [b]enefits must be dismissed.

A hearing was held on the exceptions filed by Mr. Hamilton on August 13, 2008. In support of his exception of no right of action, Mr. Hamilton relied upon 12La.R.S. 23:1314 and LAC 40:1.5545 to argue that the City’s claim should be barred because its claim was filed by an insurance adjuster instead of an attorney. The City countered, alleging that a dismissal of its claim on the basis of it not being filed by an attorney would, in effect, be a denial of its right to equal access to the courts since an injured claimant is not required to have an attorney in order to file a disputed claim for compensation. The City also argued that La.R.S. 23:1310(A) allows the filing 13of a claim by an employer or an insurer; however, there is no legislation requiring an attorney to file a disputed claim for compensation on behalf of an employer or an insurer.

The Workers’ Compensation Judge (WCJ) ruled in favor of Mr. Hamilton solely on the exception of no right of action. On August 15, 2008, the WCJ signed a judgment which decreed “that [Mr. Hamilton’s] Exception of no Right of Action is granted” and which ordered that the City’s 1008 “be dismissed with prejudice.” The City appeals.

ASSIGNMENTS OF ERROR

The City asserts the following:

1. The WCJ unconstitutionally applied and/or misinterpreted La.R.S. 23:1314;
2. The WCJ unconstitutionally applied and/or misinterpreted LAC 40:1.5545;
3. The WCJ signed a judgment without waiting the proper time period to allow defendant time to object to the proposed judgment, as allowed by Rule 9.5 of the Rules of Court;
4. The judgment against [the City] should be without prejudice, to preserve the City’s right to present its affirmative defense of mileage fraud at the trial of [Mr.] Hamilton’s 1008. (Docket No. 0704265).

|4LAW AND DISCUSSION

Whether a right of action exists is a question of law requiring a de novo review. Guidry v. East Coast Hockey League, Inc., 02-1254 (La.App. 3 Cir. 3/5/03), 844 So.2d 100, writs denied, 03-1457, 03-1469, 03-1471 (La.11/21/03), 860 So.2d 543 (citing Mississippi Land Co. v. S & A Properties II, Inc., 01-1623 (La.App. 3 Cir. 5/8/02), 817 So.2d 1200).

In its brief, the City argues that the WCJ’s acceptance of Mr. Hamilton’s argument that LAC 40:1.5545 requires that an attorney file a claim is erroneous. We agree. Louisiana Administrative Code 40:1.5545 clearly states that the presence of an attorney is required “[i]n all hearings.” The use of these specific words rules out any generalization that could be interpreted to entail the requirement of an attorney for filings.

It is clear from our review of the record that the trial court took a rather result-oriented approach, instead of one based upon existing statutory law or jurisprudence, in its decision-making process as evidenced in the transcript of the August 13, 2008 hearing as follows:

MR. BURDETTE [Attorney for Mr. Hamilton]:
Judge, I’ve also filed an Exception of No Right of Action in that the adjuster has no right of action to file the 1008. [THE COURT]:
And he doesn’t in this case. Because if you let an adjuster do this, then the next thing we’re going to know they’re going to be checking this other block down here where it says, “Penalties and Attorney’s Fees,” which I think would cause a problem, too. This is just one of those things if we let it drift too far, it’ll get totally out of control; and then we’ll end up with some crazy legislative act. So we need to try and fix this thing pleasantly and quietly, and we’re going to get to the same end anyway. We’re still going to have a trial on whether or not this guy got hurt right?

| .-Louisiana Revised Statutes 23:1310(A) allows an employer or an insurer to file a 1008 without the specific requirement that it be filed by an attorney. However, LAC 40:1.5545 requires that an attorney appear on behalf of corporate entities, unincorporated associations, insurance companies and own-risk carriers. The WCJ failed to note the distinction that La.R.S. 23:1310(A) is a procedural statute relative to the “filing” of a 1008 and that LAC 40:1.5545 is an administrative guide for “all hearings” which result from the filing of a 1008. In applying the correct principles of La.R.S. 23:1310(A) and LAC 40:1.5545, an adjuster may file the 1008 on behalf of the insurer, but counsel shall be present and represent the company or the insurer at all hearings before the WCJ. Consequently, we find that the WCJ erred by sustaining Mr. Hamilton’s peremptory exception of no right of action. Having found that the WCJ erred by ruling that a 1008 must be filed by an attorney, we need not address the other assignments of error raised by the City.

DECREE

The judgment of the trial court is reversed, and the matter is remanded for further proceedings consistent herewith. Costs of this appeal are assessed against the Defendant/Appellee, Robert Hamilton.

REVERSED AND REMANDED.

      . Under La.R.S. 23:1208(A) and (E), a "willful[ ] false statement or representation" made "for the purpose of obtaining ... any benefit or payment under the provision of this Chapter” can result in the forfeiture of "any right to compensation benefits under this Chapter.”

      . Louisiana Revised Statutes 23:1314 provides:
      A. The presentation and filing of the petition under R.S. 23:1310.3 shall be premature unless it is alleged in the petition that:
      (1)The employee or dependent is not being or has not been paid, and the employer has refused to pay, the maximum percentage of wages to which the petitioner is entitled under this Chapter; or
      (2) The employee has not been furnished the proper medical attention, or the employer or insurer has not paid for medical attention furnished; or
      (3) The employee has not been furnished copies of the reports of examination made by the employer’s medical practitioners after written request therefor has been made under this Chapter; or

        (4) The employer or insurer has not paid penalties or attorney's fees to which the employee or his dependent is entitled.
      B. The petition shall be dismissed when the allegations in Subsection (A) of this Section are denied by the employer and are shown at a time fixed by the workers' compensation judge to be without reasonable cause or foundation in fact.
      C. The workers’ compensation judge shall determine whether the petition is premature and must be dismissed before proceeding with the hearing of the other issues involved with the claim.

      .Louisiana Administrative Code 40:1.5545 provides:
      In all hearings before the Workers' Compensation Judge the parties may appear in person or by counsel licensed to practice law in the State of Louisiana. Corporate entities, unincorporated associations, insurance companies and own-risk carrier shall appear only by such counsel. Counsel who will appear before the Workers’ Compensation Judge on behalf of a party in any proceeding shall notify the Office of Workers' Compensation of their appearance by filing an entry of appearance or other appropriate pleading and shall be bound by Code of Civil Procedure Article 371.

      . Louisiana Revised Statutes 23:1310(A) provides:
      If, at any time after notification to the office of the occurrence of death or injury resulting in excess of seven days lost time, a bona fide dispute occurs, the employee or his dependent or the employer or insurer may file a claim with the state office, or the district office where the hearing will be held, on a form to be provided by the director.

      . The judgment did not contain the WCJ's disposition on Mr. Hamilton's exception of prematurity; thus, the exception of prematurity is presumed to have been denied by the WCJ and said denial has not been appealed nor is it before this court for review. See MJ. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La.7/1/08), 998 So.2d 16.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Dallas TAYLOR, Appellant.
    No. 43,901-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 2009.

      Louisiana Appellate Project, by: James E. Beal, Jonesboro, for Appellant.
    Jerry L. Jones, District Attorney, J. Michael Ruddick, Shirley M. Wilson Davis, Josephine P. Heller, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS and DREW, JJ.
   STEWART, J.

11 Defendant, Dallas Taylor, was charged with one count of aggravated rape, one count of armed robbery, one count of possession of a firearm by a convicted felon, and one count of aggravated burglary. A unanimous jury found Taylor guilty as charged on all four counts. The trial court sentenced the defendant to serve the mandatory term of life imprisonment without the benefit of probation, parole, or suspension of sentence for the aggravated rape charge, thirty years at hard labor, to run consecutively, without the benefit of probation, parole, or suspension of sentence, for the armed robbery charge, twelve years at hard labor, to run concurrently, without the benefit of probation, parole, or suspension of sentence, for the possession of a firearm by a convicted felon charge, and fifteen years at hard labor, to run concurrently, on the aggravated burglary charge. Taylor now appeals, urging one assignment of error. For the reasons stated herein, we affirm the defendant’s convictions and sentences as amended.

FACTS

During the defendant’s jury trial, the following evidence was adduced. On the morning of September 7, 2006, 84-year-old J.R. was cleaning inside her home when she heard a knock at the door. J.R.’s husband was not at home, so she went to the front door and saw a man whom she did not know. She said that the man said he was there to do some yard work; J.R. told the man that he would have to return when her husband was at home. The man left, but returned a while later and asked if her phusband had returned. She informed the man that her husband was not back yet and he needed to come back when her husband returned. He also asked if anyone else was at home. J.R. told him “no” and closed the door. She noticed that the man was driving a green pickup truck. The victim admitted that she was unsure as to whether she locked the door back. A Monroe city worker operating a tractor near the victim’s home saw the green truck driving by and saw that there was only one person in the truck.

J.R. went back to work inside her home. As she was walking down her hallway, she heard someone coming inside the home and believed that it was her husband. As she turned around, she saw that the man who had asked her about the yard work had entered her home and was coming toward her. J.R. screamed, but the stranger told her to stop screaming or else he would kill her. The man put a pistol on J.R.’s neck, grabbed her by the hair and ordered her not to look at him. The man asked J.R. if she had a safe or any money in her house. J.R. retrieved $100 in cash from her purse in a front bedroom, and then the stranger forced J.R. into the master bedroom at the end of the hall.

When they arrived at the master bedroom, the stranger ordered J.R. to take off all her clothing, lie on the bed, and spread her legs. The assailant then got on top of J.R. and raped her vaginally. He also forced his penis in her mouth and then raped her anally. After rummaging around on the victim’s dresser where she kept her jewelry, the attacker raped her again.

Shortly before 10:00 a.m., a city worker from the beautification department observed the defendant leave the victim’s home in a green Dpickup truck. The defendant was the sole occupant of the truck. At approximately 10:00 a.m., the victim called 911 and the Monroe Police Department (“MPD”). When police arrived, the victim described her assailant as a black male with a stocky build wearing a white T-shirt, long shorts and white tennis shoes with a red design on them.

Within a few minutes of the victim’s 911 call, the Monroe police searched the area around the victim’s home. A MPD officer, Sergeant Roderick Jackson, saw a truck matching the description given by the victim being driven by a black male wearing a white T-shirt. At 10:07 a.m., Jackson stopped the truck. The driver of the truck was the defendant, Dallas Taylor. Taylor was wearing a white shirt, long blue-jean shorts, and white tennis shoes with red bottoms. Taylor got out of the truck and approached the officer, but as the defendant heard the sirens of other MPD units arriving, the defendant ran away. The officers apprehended Taylor after a brief chase on foot.

As he was being apprehended, Taylor dropped a checkbook belonging to the victim. A MPD officer, Detective Rhodes, searched Taylor and found $104.00 in cash and a spice jar containing dimes. Rhodes also found other items in Taylor’s right front pocket, which included $45.00 in cash, several rings, and pairs of earrings. These items belonged to either the victim or her husband. On the back seat of the defendant’s truck, the police found two rifles, a pistol and two boxes of ammunition belonging to the victim’s husband. After the defendant was arrested, two officers transported the defendant to the Monroe police station in a marked patrol car. On ^September 13, 2006, a MPD officer found a credit card holder under the back seat of the same patrol car that was used to transport the defendant. The credit card holder contained the victim’s driver’s license, credit cards, store loyalty cards, and other various identification cards.

The police also searched the victim’s home for physical evidence. An investigator found a fingerprint on a little white jewelry box lid that was found on the master bedroom floor by the door. The fingerprint came from the defendant’s left thumb.

At the police station, the defendant agreed to speak with police. Sergeant Heath and Sergeant Huggins interviewed the defendant. Before they revealed to him that his fingerprint had been found on an object in the house, the defendant admitted that he was in possession of stolen firearms, jewelry, and a checkbook, but denied any other wrongdoing and denied ever being in the victim’s home. The defendant claimed that he had bought the items from someone named “Steve” who had himself stolen the items. The defendant stated that earlier that morning, he was running an errand when he met with Steve, who told the defendant that he planned to “hit a lick uptown on the north side” and needed a ride afterward. The defendant agreed to meet Steve on the street where the victim lived, and the defendant said that when he located Steve on that street later, Steve was already in possession of the stolen items. The defendant said that he picked up Steve and bought the guns and jewelry from Steve before dropping Steve off at the shelter; he said that Steve retained the victim’s credit cards. After being ^confronted with the fingerprint evidence, the defendant vehemently maintained that he had not been inside the victim’s home.

After this interview transpired, Detective Nappier and Detective Baw transported the defendant to a local hospital for forensic analysis of his body. A nurse used a swab to obtain potential serological evidence from the defendant’s penis. Additionally, the nurse used a comb on the defendant’s pubic hair. A long straight white hair was found on the defendant’s penis. When the defendant saw this hah’, he made a motion toward the hair, but he was ordered to stop. This ham was inconsistent with the defendant’s pubic hair.

The victim was also examined at the hospital by Patti Taylor McFadden, who is a nurse specializing in sexual assault cases. McFadden described the victim’s pubic ham as long and white.

After the defendant was transported back to the police station, Detective Heath and Detective Nappier interviewed him a second time. In this interview, the defendant admitted that he had been inside the victim’s home. However, he claimed that he went into the house after “Steve” went inside and denied that he was armed. The defendant said that Steve, who was wearing black tennis shoes, had taken the victim into the master bedroom of the house. The defendant informed the detectives that, while Steve was with the victim in the back bedroom, he found a pair of the victim’s panties on the hallway floor and used them to masturbate. The defendant said that he never saw the victim and never went into the master bedroom. He claimed that Steve was the only person in the master bedroom | ^with the victim and also was the person who took the jewelry. The defendant further explained that he and Steve discussed where to meet after the crime, and then Steve fled the house on foot while he drove away. The defendant admitted that he kept the victim’s checkbook, guns and jewelry but said that Steve kept the victim’s credit cards.

J.R. picked two men out of a photo lineup that she described as similar in appearance to her attacker and who appeared to her to look similar to each other; the defendant was one of the men she picked. The city worker witness viewed a photo lineup and identified the defendant as the driver he saw leaving the victim’s home.

Although technicians sampled and tested DNA evidence from the bodies of the defendant and the victim, the quantity of biological material present was insufficient to permit identification through currently available techniques. Troy Kendall Stra-cener, an employee with the North Louisiana Criminalistics Laboratory whose primary duty is DNA analysis, testified that the analysis of the sample from the defendant’s penis did reveal the presence of material from a person other than the defendant. He further testified that the white hair found on the defendant’s penis could not be linked to the victim through DNA analysis because no DNA profile could be obtained from the hair. Stracener reported that this complication is common when analyzing grey hair.

The defendant’s former fiance, Lashon-da Hill, testified that she had been with the defendant on the morning of these events until sometime after 9:00 a.m., when the defendant left her mother’s home. The defendant’s |7current fiance, Teshetta Mock, testified that the defendant picked her up from her father’s house at approximately 9:30 a.m. and took her to the food stamp office. She said that the defendant dropped her off at approximately 9:45 a.m. Mock alleges that she changed her mind about applying for food stamps after filling out an application. After informing a food stamp office employee that she changed her mind, Mock left. She testified that her application was not processed. The food stamp office has no record of her visit on September 7, 2006.

On February 14, the jury unanimously convicted the defendant of aggravated rape, armed robbery, aggravated burglary and possession of a firearm by a convicted felon. The trial court imposed a mandatory term of life imprisonment without the benefit of .probation, parole, or suspension of sentence for the aggravated rape charge. For the armed robbery charge, the trial court sentenced the defendant to serve 30 years’ imprisonment, without the benefit of probation, parole, or suspension of sentence. For the aggravated burglary charge, the trial court sentenced the defendant to serve 15 years’ imprisonment at hard labor, with credit for time served. For possession of a firearm by a convicted felon, the court sentenced the defendant to serve 12 years’ imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence, and fined the defendant $1,000, in default of which he must serve 60 days in jail. The trial court ordered all of these sentences to run concurrently except for the armed robbery sentence, which the court imposed consecutively to the other terms. Taylor now appeals.

|SLAW AND DISCUSSION

In the defendant’s sole assignment of error, he argues that the evidence was not sufficient to convict him of the charges of aggravated rape and armed robbery, or of any other verdict responsive thereto. More specifically, the defendant urges that the state failed to prove that he was the person who committed these offenses.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in 13part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Parker, 42,311 (La.App. 2d Cir.8/15/07), 963 So.2d 497; State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La. App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, _|_10 41,981 (La.App. 2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App. 2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. This rule is applicable to the testimony of victims of sexual assault. State v. Robinson, 36,147 (La.App. 2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App. 2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490. See also State v. Simpson, 39,268 (La.App. 2d Cir.1/26/05), 892 So.2d 694. Indeed, such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, supra; State v. Ponsell, supra. See also State v. Johnson, 96-0950 (La.App. 4th Cir.8/20/97), 706 So.2d 468, writ denied, 1998-0617 (La.7/2/98), 724 So.2d 203, cert. denied, 525 U.S. 1152, 119 S.Ct. 1054, 143 L.Ed.2d 60 (1999).

When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentifieation. State v. Hughes, 2005-0992 (La.11/29/06), 943 So.2d 1047; State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297. Fingerprint evidence has been upheld as sufficient to sustain a conviction. State v. Lee, 39,969 (La.App. 2d Cir.8/17/05), 909 So.2d 672, writ denied, 2006-0247 (La.9/1/06), 936 So.2d 195; State v. Grissom, 467 So.2d 858 (La.App. 2d Cir.1985).

In his second police interview, the defendant admitted to the police that he had gone into the victim’s home and stolen firearms and ammunition. He also claimed to have masturbated with the victim’s panties. I^However, he told police that he never saw the victim or went into her bedroom. He said that another man, Steve, was the only person with the victim in her bedroom. The question on appeal is whether the state proved beyond a reasonable doubt that the defendant, rather than some other person, was the perpetrator of the rape.

In her testimony, the victim described only a single assailant. She said that the man who attacked her had twice come to her door that morning asking about yard work. She explained that as she walked down the hallway of her home, she heard a sound, turned around and saw that “it was him,” the man who had asked her about yard work. She testified that this was the man who raped her and, during the course of the rape, rummaged through the jewelry on the top of her bedroom dresser. Although the defendant claimed never to have entered the victim’s bedroom, his fingerprint and no one else’s was found on the lid of the little white jewelry box, which was found by the door of the master bedroom where the rape occurred. As the victim described the events of that morning, she recalled only one armed man who entered her house, took her property and raped her.

The victim saw and described the defendant’s truck. A city worker likewise saw that same truck hurriedly leaving the victim’s house. The city worker positively identified the defendant as the driver and sole occupant of the truck, and the worker saw no one else at the scene. It is undisputed that the defendant was in possession of a wide variety of the victim’s belongings. He told police that his purported accomplice, Steve, had kept |12the victim’s credit cards, but those cards were later found in the patrol car used to transport the defendant to jail. The defendant’s alibi witnesses did not testify that they were with him at the time when these events took place, and there is no record of Ms. Mock ever having been at the food stamp office on the morning of the rape as the witness claimed.

The victim testified that her attacker was a black male of medium height and medium weight; the defendant is a black male who is 5 feet 9 inches tall and heavyset. The victim initially described her rapist as a stocky black male. In addition, the victim said that the man was wearing a white T-shirt, long shorts and white tennis shoes with a red design; photos of the defendant taken at the time of his arrest show that this description was entirely accurate.

The DNA evidence in this case neither links the defendant to the rape nor excludes the defendant as the perpetrator. However, a long white hair was found on the defendant’s penis shortly after the rape, and this hair had similar characteristics to the victim’s pubic hair as described by the nurse who examined the victim. The defendant explained to police his belief that the hair might have come from the victim’s panties when he used the underwear to masturbate, but the plausibility of that story was for the jury to decide.

Considering the testimony and evidence presented, we can determine that the direct evidence when viewed in the light most favorable to the state was sufficient to establish that the defendant was the perpetrator of the rape, robbery, burglary and possession of firearms by a convicted felon. All of | ,sthe evidence, particularly the fingerprint evidence, proved that the defendant and only the defendant was the perpetrator of the rape, robbery, burglary and possession of firearms by a convicted felon. The defendant’s fingerprint was found in the victim’s bedroom. Additionally, the victim and the city worker described the defendant when they described the man who was present at the victim’s house on the morning of the crimes. There is no reasonable probability of mis-identification in this case. The state proved beyond a reasonable doubt that the defendant was the person who committed these crimes.

ERROR PATENT

We observe that the trial court fined the defendant $1,000 on the felon with a firearm conviction, in default of which the defendant would serve an additional 60 days in jail. An indigent defendant may not be subjected to imprisonment because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991); State v. Kerrigan, 27,846 (La.App. 2d Cir.4/3/96), 671 So.2d 1242. A defendant’s claim of indigence in such a situation may be discerned from the record. State v. Conway, 604 So.2d 205 (La.App. 2d Cir.1992); State v. Williams, 484 So.2d 662 (La.1986). The record indicates that the defendant is indigent, as he is represented on appeal by the Louisiana Appellate Project. Therefore, we vacate the portion of the sentence providing for additional jail time in the event of default of payment of the fine amounting to $1,000, relating to the felon with a firearm conviction.

|„,CONCLUSION

The defendant’s convictions are affirmed. We vacate the portion of the sentence providing for additional jail time in the event of default of payment of the fine and affirm the sentences as amended.

AFFIRMED AS AMENDED.

      . Due to the victim's poor health and impending move out of state, she was unable to appear at the trial. However, by stipulation of the state and the defendant, the victim's video recorded testimony was played for the jury. The victim was subject to cross-examination by the defendant’s attorney.