author: AMY, Judge. THIBODEAUX, Chief Judge,

text:
    Judy DAVIS v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, OFFICE OF RISK MANAGEMENT.
    Nos. 09-288.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2009.
    Rehearing Denied Jan. 13, 2010.

      George A. Flournoy, Flournoy & Dog-gett, Alexandria, LA, for Plaintiff/Appellant, Judy Davis.
    Leanne M. Broussard, Assistant Attorney General, State of Louisiana, Alexandria, LA, for Defendant/Appellee, State of Louisiana, through the Department of Transportation and Development, Office of Risk Management.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

| ]Although the claimant’s employer provided workers’ compensation benefits due to a series of work-related accidents, the claimant filed a disputed claim form due to the employer’s denial of benefits related to fibromyalgia. After a hearing, the workers’ compensation judge found insufficient proof of causation between fibromyalgia and the claimant’s work-related accident. It denied benefits related to that diagnosis and denied other requested relief. Subsequently, the claimant filed another disputed claim form which was dismissed upon a granting of the employer’s exception of res judicata. The claimant appeals both judgments. For the following reasons, we affirm the denial of further benefits. However, we reverse the granting of the exception of res judicata.

Factual and Procedural Background

The claimant, Judy Davis, was employed as a laborer for the Department of Transportation and Development when she allegedly sustained injuries to her right hand, wrist, arm and shoulder while shoveling asphalt in May 2000. Subsequently, in September 2000, Ms. Davis fell from a dump truck and allegedly sustained injury to her right side, neck, shoulder, back, and her hip. Finally, the claimant alleges that she slipped while exiting her truck and injured her right shoulder.

Although DOTD provided workers’ compensation indemnity and medical benefits, it denied benefits related to fibromyalgia as diagnosed by the claimant’s internal medicine and rheumatology physician, Dr. Miguel Garcia. The claimant filed the disputed claim for compensation instituting this matter in December 2004. She designated the following issues for consideration: 1) Extent and duration of disability; 2) Failure to pay indemnity benefits; 3) Failure to pay for medical treatment; 4) Failure to provide vocational rehabilitation; 5) Failure to provide |2treatment for fibromyalgia; and 6) Penalties and attorney fees. At the time of the December 2007 hearing, the employer continued to provide indemnity benefits.

During the hearing, the workers’ compensation judge excluded various exhibits offered by both the claimant and the defendant due to the parties failure to follow a pre-trial scheduling order. In light of the evidence presented, the workers’ compensation judge found that the claimant failed to carry her burden of proving entitlement to benefits related to the fibro-myalgia diagnosis. The judgment, signed on April 17, 2008, ordered “that claimant’s request for workers’ compensation benefits, as related to fibromyalgia, is denied[.]” The workers’ compensation judge also denied the claimant’s remaining requests.

On the same day as the hearing, December 7, 2007, the claimant filed a new disputed claim for compensation asserting that, among other things, the previous compensation rate was incorrect and again asserting that Dr. Garcia’s treatment should be provided. DOTD filed an exception of res judicata arguing that the causes of action alleged in the new claim form arose out of the same transaction or occurrence that was the subject matter of the April 17, 2008 judgment and were, therefore, extinguished. The workers’ compensation judge granted the exception and dismissed the claimant’s claim.

The claimant appeals both the merits of the April 17, 2008 judgment and the granting of the exception of res judicata. On appeal of the merits, the claimant assigns the following as error in her brief:

|aI. Did the WCJ err, as a matter of law, in disregarding the unopposed and uncontradicted opinions of plaintiffs treating physician that she suffered from fibromyalgia as a result of her work-related injuries?
II. Should the WCJ decision terminating all indemnity and medical benefits be reversed as a result of the WCJ’s abuse of discretion in disallowing plaintiffs exhibits and refusing to allow a proffer, thereby necessitating a remand for a determination of (1) plaintiffs AWW, (2) whether plaintiff is totally or partially disabled and (3) the propriety of an award of penalties and attorney fees.

With regard to the granting of the exception of res judicata, the claimant asserts that the ruling was inappropriate as the April 17, 2008 judgment was not yet final. She also asserts that certain aspects of the subsequently filed claim form had not been ruled upon by the workers’ compensation judge.

Discussion

Motion to File a Late Reply Brief

The claimant filed a motion to file a late reply brief, which the employer opposed. The filing was referred to this panel for consideration with the merits. We deny the claimant’s motion pursuant to Uniform Rules — Courts of Appeal, Rule 2-12.7, which provides that “[t]he reply brief, if any, of the appellant shall be filed not later than 10 calendar days after the ap-pellee’s brief is filed.” In this case, the employer filed its appellee’s brief on May 5, 2009. Yet, the claimant’s motion to file a late reply brief was not filed until May 26, 2009, after the ten-day period set forth in the rule. Further, the claimant did not set forth reasons for the delay.

Causation

In her first assignment, the claimant argues that the workers’ compensation judge erred in rejecting what she contends was the uncontradicted evidence of causation offered by her treating physician, Dr. Garcia. She asserts that there was no JjSound reason for the workers’ compensation judge to disregard Dr. Garcia’s opinion that the fibromyalgia diagnosis was related to the work-related accidents.

It is the claimant’s burden to establish, by a preponderance of the evidence, a causal link between the work-related accident and the subsequent disabling condition for which benefits are sought. Guilbeaux v. Office of Dist. Attorney, 07-89 (La.App. 8 Cir. 5/30/07), 957 So.2d 959. With regard to causation of fibromyalgia, the claimant presented only Dr. Garcia’s deposition testimony. The workers’ compensation judge’s reasons for ruling indicate full consideration of the testimony in his three depositions. The workers’ compensation judge explained:

As to causation, Dr. Garcia found that based on her history and official findings, claimant has fibromyalgia, secondary to the accident of September, 2000.
Dr. Garcia’s deposition was taken again on October 29th, 2003. It was taken in an effort to, “clear up” defendant’s contention that Dr. Garcia’s findings of causation is not supported by the medical community. Dr. Garcia noted he arrived at the diagnosis of fibromyal-gia by ruling out other diseases. He noted that fibromyalgia is an entity that is completely clinical. There is not a test that diagnoses fibromyalgia. “What causes fibromyalgia? We don’t know. We know things that go to a basic pattern seem to cause the symptomatology. That is why it is a syndrome, not a disease.”
Dr. Garcia further found that “anything that will make a person maintain— and maintain that patient without having stage three and four sleeping, sooner or later that person will develop symptoms of fibromyalgia no matter who it is.” Dr. Garcia went on to say, “after she had the accident she had problems sleeping, which is the main road to develop fibromyalgia in every patient that has it.” He further notes, “one thing is to say that trauma causes fibromyalgia. The other thing is to say that fibromyal-gia can be caused by the inability to sleep, caused by the pain that an accident or trauma has caused.” Dr. Garcia opined that the only thing that we know that causes fibromyalgia is sleep pattern disturbance. He found that the fibro-myalgia is secondary to the pain and the inability to sleep that claimant reported after the injury as a result of the accident.
|fiCounsel for defendant noted literature indicating fibromyalgia did not exist. It was a fallacy. Dr. Garcia acknowledged literature indicating there is no such thing as traumatic fibromyalgia. He notes his agreement with that literature. In an effort to explain that agreement versus his findings of causation in reference to claimant, he notes “It is not the trauma that causes the fibromyalgia. What causes fibromyalgia is injuries to a patient that prevents them from sleeping.”
Lyme Disease and Hypersensitivity Syndrome to pain were discussed as alternative diagnoses for claimant’s symptoms. However, testing for those problems were not performed. There are no laboratory tests available for diagnosing fibromyalgia. Doctors must rely on patient’s histories and self-reported symptoms.
Dr. Garcia admitted fibromylgia symptoms overlap with other symptoms and conditions and diseases of the body. He also acknowledged that fibromyalgia is a chronic, painful musculoskeletal dis-
order of unknown etiology and/or physiology. There is no consensus on fibro-myalgia in terms of causation. There is no professional scientific consensus.
Dr. Garcia’s deposition was taken for a third time on November 29th, 2007. Once again he acknowledged that fibro-myalgia is a syndrome that can be caused by different factors. The most frequent factor is disturbance in the sleep process. He felt claimant’s accident caused her to be depressed, which led to a sleep disturbance. He also noted that claimant is five feet and three inches tall and weighs 197 pounds. Those factors place her at risk of having sleep apnea which will exacerbate fibro-myalgia.
Dr. Garcia was shown a report generated by defendant’s choice of physician, Dr. Merlin Wilson. Dr. Wilson found claimant had tender points that were suppose to be negative which were control points. In Dr. Wilson’s opinion, claimant had “something else.”
Claimant has been diagnosed with fi-bromyalgia. According to her own treating physician, fibromyalgia is a syndrome, not a disease. It is a diagnosis of exclusion. According to Dr. Garcia, a syndrome is, “you don’t know what causes it. It can be multiple things.” He arrived at the diagnosis by ruling out other things, but he admits claimant was never tested for diseases including Lyme Disease and Hypersensitivity Syndrome to Pain. According to Dr. Garcia’s testimony, fibromyalgia is related to sleep disturbance and may be caused by pre and post |f,menopause. Dr. Garcia noted fibromyalgia is a chronic, painful musculoskeletal disorder of unknown etiology.
The findings of an unknown etiology prevents claimant from meeting her burden of proof in this case. The medical evidence falls short of a finding that claimant’s injuries of May 16th, 2000 and September 14th, 2000, caused her to have fibromyalgia, a syndrome which is questionable even in its form, nature and existence. Any finding that claimant has fibromyalgia and that the fibro-myalgia is related to her work accident would be based on speculation and conjecture. Jurisprudence has held where evidence leaves the probabilities evenly balanced or shows only a possibility of a causative accident or leaves it to speculation or conjecture, then the claimant’s case must fail.
Furthermore, defendant’s choice of physician, Dr. Merlin Wilson, disagreed with Dr. Garcia’s diagnosis as noted in the deposition of Dr. Garcia.
For these reasons, claimant’s request for workers’ compensation benefits, as related to fibromyalgia, is denied. Medical evidence demonstrating a causally related disability due to claimant’s work accident was not presented to this Court, and her requests are denied.

In Winford v. Conerly Corp., 04-1278, pp. 15-16 (La.3/11/05), 897 So.2d 560, 569-70, the supreme court set forth the standard of review as follows:

It is well settled that factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97) 696 So.2d 551, 556. (citations omitted). In applying the manifest error-clearly wrong standard, the appellate court must determine whether the factfinder’s conclusion was reasonable, not whether the trier of fact was right or wrong. Banks, 696 So.2d at 556 (citing Stobart v. State, 617 So.2d 880, 882 (La.1993)). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. (citations omitted). Thus, even where the appellate court is convinced it would have weighed the evidence differently if it had been sitting as trier, the court of appeal may not reverse if the factfinder’s findings are reasonable in light of the record reviewed in its entirety. Id.

Under this review, we find no manifest error in the workers’ compensation judge’s denial of benefits related to fibromyalgia. The workers’ compensation judge considered Dr. Garcia’s testimony at length, reproducing much of his testimony in the nine-pages of written reasons. Although Dr. Garcia opined that the claimant’s 17condition is secondary to her work-related accident, he also explained that the condition is a syndrome rather than a disease, is a diagnosis of exclusion, and can be caused by various factors. We find no manifest error in the workers’ compensation judge’s determination that this type of explanation was insufficient to meet the claimant’s burden of proving causation. This is true even in light of Dr. Garcia’s further statement that the fibromyalgia diagnosis was secondary to the work-related accident. It is clear that a trier of fact is charged with the evaluation of expert testimony and that the trier of fact may accept or reject an expert’s opinion in whole or in part. Ryan v. Zurich American Ins. Co., 07-2312 (La.7/1/08), 988 So.2d 214. Dr. Garcia’s testimony as a whole regarding the circumstances surrounding a diagnosis of fibromyalgia provide a sufficient basis for the workers’ compensation judge’s rejection of Dr. Garcia’s ultimate conclusion that the claimant’s condition was secondary to her work-related accident.

Finally, the claimant points out that fi-bromyalgia has been found to be a com-pensable workers’ compensation claim. However, each of the cases cited by the claimant are ones in which the workers’ compensation judge initially found that the claimant demonstrated causation under the facts of that case. That determination was affirmed on appeal under the applicable deferential standard of review. This case is distinguishable as the workers’ compensation judge determined that the plaintiff failed to meet her burden of proof. The workers’ compensation judge considered, evaluated, and weighed the evidence before finding Dr. Garcia’s testimony as to | ^causation insufficient to meet the claimant’s burden of proof. We do not find this determination manifestly erroneous under the deferential standard of review.

This assignment lacks merit.

Termination of Benefits

Next, the claimant addresses the workers’ compensation judge’s exclusion of certain exhibits for violation of the pretrial scheduling order as well as testimony regarding the inclusion of fringe benefits in the calculation of the claimant’s average weekly wage. The claimant contends these rulings were in error and asserts that the lack of evidence prevented her from demonstrating entitlement to continued benefits, notwithstanding the benefits claimed for fibromyalgia.

The workers’ compensation judge excluded the evidence at issue for three reasons. First, the workers’ compensation judge excluded evidence regarding fringe benefits as the issue was not listed on the claimant’s disputed claim form. Second, the workers’ compensation judge excluded payroll documents as the claimant’s subpoena for the evidence was untimely served. Third, exhibits of both the claimant and the employer were excluded as neither properly produced a pretrial statement as required by the pretrial scheduling order.

With regard to the issue of fringe benefits, the workers’ compensation judge observed that the issue was not raised in the claimant’s 1008 form, which lists the following issues to be determined:

a. Extent and duration of disability
b. Failure to pay indemnity benefits
c. Failure to pay for medical treatment
d. Failure to provide vocational rehabilitation
e. Failure to provide treatment for fi-bromyalgia
f. Penalties and attorney fees

No mention is made of the calculation of the claimant’s average weekly wage. Further, the Scheduling Conference Order of February 2, 2006 lists these same issues |9and directed the parties “to submit a pretrial statement within 7 days. Failure to do so may result in exclusion of evidence and/or testimony.” In excluding the evidence as to fringe benefits, the workers’ compensation judge observed that neither the 1008 listed the fringe benefit issue and noted the claimant’s failure to file a pretrial statement. The judge also referenced 40 La.Admin.Code tit, I, § 6007, which relates to the pretrial statement and provides:

A. The pretrial statement shall include:
1. Stipulations agreed to by all parties;
2. issues to be litigated;
3. contentions;
4. a list and brief description of all exhibits to be offered at trial;
5. a list of all witnesses to be called at trial;
6. desirability of mediation.
B. Amendments to the pretrial statement shall only be by written motion and permitted only for good cause shown.

(Emphasis added.)

Although La. R.S. 28:1317 provides that “[t]he workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided,” we find no abuse of the workers’ compensation judge’s discretion in its enforcement of the rules of its office. We conclude that the limited contents of both the 1008 and the pre-trial scheduling order, as well as the claimant’ failure to file a pretrial statement, support the exclusion of evidence regarding fringe benefits.

Similarly, the workers’ compensation judge enforced its scheduling order in excluding the exhibits of both parties due to their failure to file a pretrial statement. The exclusion of the claimant’s evidence effectively prevented the claimant from presenting her case regarding her entitlement to disability benefits for conditions other than fibromyalgia and prevented the employer from rebutting evidence regarding the causation of fibromyalgia. The workers’ compensation judge did, however, tailor its ruling and permitted the claimant to present evidence on which the ^employer lodged no objection. This evidence included Dr. Garcia’s depositions. As above, we find no abuse of discretion in the workers’ compensation court’s enforcement of its rule.

Finally, the claimant disputes the exclusion of payroll records produced by the employer and the workers’ compensation judge’s refusal to allow the proffer of the records. The exclusion of these records was based on the claimant’s failure to abide by the office’s rule that “[i]n order to be enforceable, subpoenas for hearing shall be served seven (7) days prior to the scheduled hearing date[.]” 40 La.Admin.Code tit. I, § 5909. Instead, the claimant filed the subpoena involving the payroll records only two days prior to hearing. Given the clear language of the order, we find no abuse of discretion in the workers’ compensation judge’s exclusion of the records and, since they were improperly produced, its refusal to allow a proffer of the records. Additionally, the workers’ compensation judge permitted the claimant’s attorney to provide a statement setting forth the nature of the evidence pursuant to La.Code Civ.P. art. 1686(A)(which provides that “[wjhen the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence”).

This assignment lacks merit.

Exception of Res Judicata

As explained above, the claimant filed an additional disputed claim form on the day of the December 7, 2007 hearing on the merits of this case. The employer filed an exception of res judicata on the basis that the issues contained therein were adjudicated at the initial hearing. The workers’ compensation judge granted the exception, ordering “that the 1008 form, docket number 07-09286, filed on December |n7, 2007, is dismissed with prejudice^]” The claimant disputes the dismissal of the claim form on appeal.

While La. R.S. 13:4281 generally addresses res judicata, workers’ compensation cases have an even more specific reference in La. R.S. 23:1310.8(E) which provides that “[a] judgment denying benefits is res judicata after the claimant has exhausted his rights of appeal[.]” Accordingly, as the initial judgment denied benefits and appellate rights had not yet been exhausted, the exception of res judi-cata was improperly granted. We reverse the granting of the exception of res judicata.

DECREE

For the foregoing reasons, the workers’ compensation judge’s judgment of April 17, 2008 is affirmed. All costs of this proceeding are assessed to the appellant, Judy D. Davis.

MOTION TO FILE LATE REPLY BRIEF DENIED. JUDGMENT AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

hi dissent. While an appellate court must be deferential to the reasonable findings of a trier of fact, it is not compelled to slavishly adhere to those findings when the record, read as a whole, dictates otherwise. See Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099 (La.7/5/94), 639 So.2d 216. This is such a case. A careful reading of the entire record cries out for a reversal of this judgment.

Exclusion of Exhibits

The workers’ compensation judge (WCJ) erred in several procedural rulings that resulted in the exclusion of almost all of the parties’ evidence at trial.

At trial, Ms. Davis’ attorney examined Kayla Crowe regarding the inclusion of fringe benefits in the DOTD’s calculation of AWW. Ms. Crowe’s answer was uncertain, and the WCJ specifically instructed her to review the file and to be ready to answer the question regarding fringe benefits at the end of trial. Subsequently, when Ms. Davis’ attorney began examining Kenneth Morris, the DOTD’s business manager, regarding the inclusion of fringe benefits in the calculation of Ms. Davis’ wage benefits, the DOTD objected on the basis that the subpoena of those records had not been served timely. The WCJ then excluded [aevidence of fringe benefits on the basis that “fringe benefits” was not a specifically listed dispute on the 1008 claim form, rejecting Ms. Davis’ arguments that a correct calculation of average weekly wage (AWW) necessarily included consideration of fringe benefits such as paid leave and medical insurance contributions by the employer. Ms. Davis was correct. See Johnson v. Louisiana Container Co., 02-382 (La.App. 3 Cir. 10/2/02), 834 So.2d 1052, writ denied, 02-3099 (La.5/9/03), 843 So.2d 394 (whether the employer provided the claimant fringe benefits is relevant to the issue of the proper calculation of his wage rate).

In the present case, the WCJ made this ruling after allowing earlier testimony on the issue and instructing adjuster Kayla Crowe to report at the end of trial whether fringe benefits were included in her calculation of AWW. Wage benefits were a major issue at the trial, and it was unreasonable and inconsistent to remove the issue based upon the absence of the specific words, “fringe benefits,” on Ms. Davis’ 1008, particularly when the DOTD did not object to the earlier examination of their adjuster, Kayla Crowe, on the issue, and where the WCJ had on several prior occasions stated that AWW was an issue to be determined at trial.

After the WCJ removed the issue of fringe benefits from the trial, and sustained the DOTD’s objection to the untimely subpoena of the payroll records, the WCJ agreed to a proffer and left the courtroom in order for Ms. Davis’ attorney to receive the records and testimony of Mr. Morris. However, the DOTD stopped Mr. Morris from handing over the payroll records. The WCJ then returned to the courtroom, agreed with the DOTD, and disallowed the proffer of the actual records.

The exclusion of the payroll records was based upon Louisiana Administrative Code (LAC) 40:1:5909, which provides in pertinent part:

B. In order to be enforceable, subpoenas for hearing shall be served seven days prior to the scheduled hearing date; ^subpoenas to compel attendance of medical experts shall be served 10 days prior to hearing. Subpoenas for hearing may be issued after expiration of these time limits only by leave of court for good cause shown or upon written consent of all parties.

In the present case, the subpoena of the payroll records for 2000 and 2001 was issued two days before trial. However, Mr. Morris was present at the trial and had the records with him. Moreover, Ms. Davis’ attorney had been trying to get the records since at least February 2002, having requested payroll records and evidence of fringe benefits, specifically, in discovery requests and correspondence. The DOTD’s 2002 responses to discovery indicated that they attached partial records and would forward the remainder when they were received. The DOTD was not surprised or prejudiced by this request where they had known for at least five years that fringe benefits would be an issue in determining AWW and had allowed Mr. Morris to appear and bring the payroll records with him.

Moreover, it is well-settled that in workers’ compensation proceedings technical rules of evidence and procedure are materially relaxed. While the majority recognizes this concept, it refuses to apply it. Our jurisprudence has repeatedly held that the courts are not bound by technical rules of evidence or procedure in workers’ compensation suits. See Leson Chevrolet, Inc. v. Triche, 98-1328 (La.App. 5 Cir. 9/28/99), 742 So.2d 1047; Lummus v. Shoney’s, 99-90 (La.App. 5 Cir. 6/1/99), 738 So.2d 117; Louisiana Clinic v. Patin’s Tire Service, 98-1973 (La.App. 3 Cir. 5/5/99), 731 So.2d 525. In fact, this concept is statutory in Louisiana, pursuant to La. R.S. 23:1317, which provides in pertinent part as follows:

[R.S. 23:]1317. Hearing on the merits; rules of procedure; effect of judgment; costs; fees of medical witnesses
A. If an answer has been filed within the delays allowed by law or granted by the workers’ compensation pudge, or if no judgment has been entered as provided in R.S. 23:1316 at the time for hearing or any adjournment thereof, the workers’ compensation judge shall hear the evidence that may be presented by each party. Each party shall have the right to be present at any hearing or to appear through an attorney. The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself. The workers’ compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be.

(Emphasis added.)

The WCJ refused to allow the attorney for Ms. Davis to proffer the payroll records that were there and available in the courtroom. Louisiana Code of Civil Procedure Article 1636(A) provides: “When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.” The opportunity to proffer the excluded evidence is mandatory, “but the trial court has the discretion to receive the proffer in full, or to require a statement setting forth the nature of the evidence.” Mitchell v. Limoges, 05-832 (La.App. 3 Cir. 3/1/06), 923 So.2d 906, 909, writ denied, 06-0723 (La.6/16/06), 929 So.2d 1285. In this case, the WCJ did allow a statement setting forth the nature of the evidence, indicating a fulfillment of La.Code Civ.P. art. 1636(A). However, under the facts of this case, where the witness was testifying with the documents in his possession, the WCJ violated the letter and the spirit of La. R.S. 23:1317 by excluding evidence that would have helped resolve the issues summarily and simply.

Ijn another procedural ruling, the WCJ, on her own initiative, interrupted the examination of Ms. Davis’ husband, stating that Mr. Davis could not testify because Ms. Davis had not filed a pre-trial statement listing him as a witness. The WCJ then allowed a proffer of this testimony. When Ms. Davis’ attorney attempted to enter his twenty-five exhibits into the record, the DOTD objected, stating that it had just gotten Ms. Davis’ exhibit list that morning. Except for the three depositions of Dr. Garcia, Ms. Davis’ exhibits, including her medical records, were excluded from trial for failure to list them in a pretrial statement. This included the deposition of Dr. Quillin, which was taken by the DOTD. Each exhibit was described individually and proffered by Ms. Davis’ attorney, who then had no choice but to rest his case. When the DOTD attempted to call their adjuster, Kayla Crowe, as their witness, Ms. Davis’ attorney objected on the grounds that the defendant had not timely filed its pre-trial statement. The record indicates that the defendant’s pre-trial statement was faxed the day before trial but was file stamped on the morning of trial. Accordingly, the DOTD’s witness testimony was excluded, then proffered, and the trial was concluded.

The exclusion of evidence for failure to file a pre-trial statement, or an untimely filing of a pre-trial statement was based upon the Louisiana Administrative Code’s hearing rules at LAC 40:1:6005 and 6007. Again, our courts have often | (found that the requirement to file a pre-trial statement is a technical requirement that the courts are not bound to apply.

In Douglas v. Grey Wolf Drilling Co., 03-515 (La.App. 3 Cir. 11/5/03), 858 So.2d 830, the claimant failed to file a pre-trial statement. He then offered his testimony and that of his wife, as well as several exhibits. The WCJ allowed the evidence, given that the employer had taken the claimant’s deposition and that his documentary evidence was either generated by or otherwise available to the employer. Similarly, in the present case, the excluded deposition of Dr. Quillin was taken by the DOTD, and it clearly had this evidence in its possession, as well as Ms. Davis’ medical records, employer reports, and payroll information which constituted the exhibits sought to be introduced by Ms. Davis. See also Parrish v. Van-Tel Communications, 07-454 (La.App. 3 Cir. 10/10/07), 967 So.2d 592.

In Meche v. Foremost Management Corp., 93-1390, p. 5 (La.App. 3 Cir. 5/4/94), 640 So.2d 585, 587, writ denied, 96-152 (La.3/15/96), 669 So.2d 429, we quoted Keyes v. Rockwood Ins. Co., 502 So.2d 223, 228 (La.App. 3 Cir.1987), stating that La. R.S. 23:1317 reflected the legislature’s intent in compensation cases to “materially relax evidentiary and procedural rules and subordinate procedural considerations to the discovery of the truth and the protection of substantive rights.” As the second circuit explained in Vernon v. Wade Correctional Institute, 26,053, p. 5 (La.App. 2 Cir. 8/19/94), 642 So.2d 684, 688, “[t]he theory inherent in pretrial procedure is the avoidance of surprise and the allowance of the orderly disposition of the case.”

In the present case, where the excluded evidence caused no prejudice and no surprise, the WCJ’s procedural rulings had the opposite effect. They prevented the resolution of the issues by prohibiting both parties from presenting witnesses and 17exhibits necessary to discover the truth regarding benefits. Accordingly, the WCJ again committed legal error by violating the letter and spirit of La. R.S. 23:1317 and by inflexibly binding the parties to procedural rules, excluding competent evidence available at trial, and preventing the resolution of the issues; i.e., the nature and extent of disability, whether temporary or permanent, whether partial or total, and the amount of indemnity/wage benefits due the claimant. Therefore, I would consider all proffered evidence by both parties in an attempt to resolve the issues susceptible of resolution, given the record before us.

Fibromyalgia

The judgment of the WCJ stated that Dr. Garcia noted that fibromyalgia was a chronic, painful musculoskeletal disorder of unknown etiology, and that such findings prevented Ms. Davis from meeting her burden of proof in this case. The majority agrees. The WCJ further stated that the medical evidence fell short of proving that Ms. Davis’ injuries of May and September 2000 caused her to have fibromyalgia. The majority again agrees. The record reveals otherwise. The record shows that Dr. Garcia was deposed three times, and each time he testified that Ms. Davis’ fibromyalgia was a result of her work injuries in 2000. The record further reveals that Dr. Garcia’s opinion on the relatedness of fibromyalgia is supported by Louisiana jurisprudence, and was supported in this case by Dr. David Levin-sohn, Ms. Davis’ first orthopedist; Dr. Michael Dole, Ms. Davis’ pain management specialist; Dr. James Quillin, Ms. Davis’ psychologist; and, Dr. Baer Rambach, a second orthopedist who treated Ms. Davis.

Dr. Levinsohn saw Ms. Davis in June 2000 after the May 2000 accident. His impression was right wrist extensor tendinitis. In early November, he opined that all of her problems were related to her work injuries: neck pain, right mild rota-tor | scuff tendinitis, possible right cervical radiculopathy, right lateral epicondylitis, low back pain, deQuervain’s tenosynovitis, and extensor tendinitis of the right wrist, exacerbated by depression. Dr. Levin-sohn suspected fibromyalgia in December 2000 and a month later reported that there was “[cjertainly evidence of fibromyalgia.” In March 2001, his impression was fibro-myalgia. Dr. Levinsohn’s impression of fibromyalgia did not change, and it existed before Ms. Davis slipped again, while on “light duty” on the truck, pulling and re-injuring her shoulder in June 2001. Dr. Levinsohn referred Ms. Davis to Dr. Miguel Garcia.

Dr. Miguel Garcia is board-certified in internal medicine and rheumatology, diseases that involve muscles, bones, joints, and pain-causing illnesses. He was accepted at trial as an expert in internal medicine, rheumatology, and fibromyalgia. Having been referred to Ms. Davis by Dr. Levinsohn and Dr. Coney, Dr. Garcia began seeing Ms. Davis in March 2001. His treatment for fibromyalgia consists of medication, injections into soft tissue, tendons, or joints, and infusions into the veins. He testified that there was no surgical remedy for fibromyalgia.

Dr. Garcia explained that patients who have fibromyalgia generally feel as if they have the flu 365 days a year. They are tired, achy, sore, stiff, fatigued; they exhibit mood changes, depression, and tenderness to palpitation over muscular areas. Dr. Garcia indicated that the diagnosis of fibromyalgia currently describes eighteen tender points with control points to rule out malingering. Dr. Garcia testified that the first time he examined Ms. Davis, she exhibited eighteen of the eighteen tender points and was negative for all of the control points. He stated categorically that there was no doubt in his mind that she had fibromyalgia and that there was no differential diagnosis.

|9Pr. Garcia further testified that fibro-myalgia patients are not normal in three aspects: (1) an electroencephalogram will indicate changes in brain waves; (2) there are changes in sleep patterns with markedly decreased sleep in stages three and four where muscle rest takes place; (3) there are decreased levels of growth hormone and active compounds that help muscles to regenerate. He further stated that fibromyalgia patients have increased levels of Substance P, which primes the central nervous system to feel pain. Dr. Garcia admitted that the diagnosis is one of exclusion (ruling out other diseases), but stated that the common denominator for distinguishing fibromyalgia from other problems with similar symptoms is the inability to sleep. He stated that some symptoms are subjective, such as fatigue and achiness, but depression is diagnosed by the physician, and tenderness to palpitation is tested using control points. Dr. Garcia diagnosed Ms. Davis as having fibromyalgia and restless leg syndrome, which she developed shortly after the third DOTD accident in June 2001.

The WCJ stated that at the time of Dr. Garcia’s examination, “no physical injuries were identified or diagnosed from claimant’s fall” and that the medical evidence fell “short of a finding that claimant’s injuries of May 16, 2000 and September 14, 2000 caused her to have fibromyalgia....” However, this is not supported in the record. Dr. Garcia testified that Ms. Davis did not have a fracture, but after the accidents, she started with pain that did not stop, causing her to wake up every thirty minutes. He stated that her history indicated that she fell from a dump truck five feet straight down to her right side, hitting her shoulders, neck and low back, and that there was no pain or symptoms before the accident. The WCJ also stated that Dr. Garcia’s testimony that fibromyalgia was of an “unknown etiology” prevented Ms. Davis from carrying her burden of proof. The testimony of Dr. Garcia, |10while stating that fibromyalgia was not a disease but a syndrome, thereby providing little in the way of causation except for the history of the patient, clearly presented evidence that the fall at work caused the pain that caused Ms. Davis’ sleep deprivation, which was the cornerstone symptom of fibro-myalgia.

With regard to the relatedness of Ms. Davis’ condition to her work injuries, Dr. Garcia repeatedly testified that she developed fibromyalgia after the September 2000 accident and therefore had classic fibromyalgia secondary to the September 2000 accident.

The WCJ in her reasons for judgment intimated that other symptoms of fibro-myalgia could have been caused by weight gain or menopause. However, Dr. Garcia testified that Ms. Davis was post-menopausal, that the symptoms were not of the same degree, and that since she had already been on a regimen of hormones, symptoms of menopause would not be expected. He further testified that two of her medications, Miropex and Zanoflex, could cause weight gain, and those were therefore switched out for others. The DOTD did not object to the admission of Dr. Garcia’s three depositions, and his testimony clearly related Ms. Davis’ work injuries to her pain, depression, sleep loss, and fibromyalgia. Dr. Garcia was still treating Ms. Davis at the time of trial. About mid-way through his treatment, Dr. Garcia referred Ms. Davis to Dr. James Quillin, a psychologist, for her ongoing depression.

Dr. Baer Rambach, an orthopaedic surgeon "with Mid-South Orthopaedics, saw Ms. Davis in November 2001. His impression was fibromyalgia secondary to the September 2000 accident. He ordered an MR.I in December 2001 wherein the radiologist reported no significant disc bulge or herniation. In February 2002, Dr. Ram-bach’s records indicate that Ms. Davis’ symptoms upon examination |nwere consistent with fibromyalgia, and that she could not return to her former occupation.

In May 2003, Dr. Merlin Wilson, a rheu-matologist, examined Ms. Davis on behalf of the DOTD. Dr. Wilson’s impressions were soft tissue injuries to wrist, neck, and back, while working in a highway crew in 2000. He also diagnosed osteoarthritis. Dr. Wilson reported that Ms. Davis may have fulfilled the criteria for fibromyalgia on previous visits to Dr. Garcia but did not fit the criteria according to his examination. Dr. Wilson stated that, upon his examination, Ms. Davis was positive for all eighteen tender points found in fibromyal-gia patients (eleven of eighteen is sufficient for the diagnosis). However, Dr. Wilson also stated that Ms. Davis was positive for eight of the ten control points that should have been negative. Dr. Wilson did not offer narrative detail on the control points that led him to discount a diagnosis of fibromyalgia. Nor do Ms. Davis’ medical records appear to provide the locations of the eighteen tender points or the locations of the ten control points. Therefore, while Ms. Davis commented during one visit with Dr. Garcia that Dr. Wilson only touched her neck in four places, we cannot know whether that was sufficient or insufficient. However, we do know that Dr. Wilson saw Ms. Davis one time only and for non-treatment purposes.

Dr. James Quillin, the psychologist referred to Ms. Davis by Dr. Garcia, for Ms. Davis’ ongoing depression, first saw her in October 2003. During his treatment, Dr. Quillin’s impression was that she had chronic pain syndrome related to her occupational injuries. Fibromyalgia is a chronic pain syndrome. Dr. Quillin testified in his deposition that Mrs. Davis was never pain free from her first accident, that she had severe depression due to the chronic pain; she could not sleep, had crying spells and low energy. He further reported that she was improving at one point until 11Pher medication was stopped, due to non-approval by the adjuster, and that without medications, her condition deteriorated.

In June of 2006, Dr. Quillin reported that Ms. Davis was in more pain and was more tearful than in the previous visit, and this required a bump up in her medication. Dr. Quillin described Ms. Davis as a tough, sweet lady who usually tried to smile but was weeping at their visit, and he thought she had “passive death wishes.... ” That is, she was not suicidal but did not care if she died. He stated that she did not have day-to-day garden variety depression, but suffered from neurovegetative changes affecting her sleep, appetite, sexual function and energy level. Dr. Quillin stated that diffuse pain is a cardinal symptom of fibro-myalgia, which is a very painful condition. He stated that he had training in physiology, but would defer to Dr. Garcia on the diagnosis of fibromyalgia, as that is a rheu-matologieal diagnosis. He was still treating Ms. Davis at the time of trial. Dr. Quillin referred Ms. Davis to Dr. Michael Dole for pain management.

Dr. Michael Dole is board certified in internal medicine and physical medicine and rehabilitation. His pain management records indicate that on her first visit with him in November 2005, Ms. Davis’ chief complaint was diffuse pain, a symptom of fibromyalgia, and Dr. Dole listed his first impression as fibromyalgia with thirteen positive tender points out of eighteen. Over the next two years, Dr. Dole reported a diagnosis of fibromyalgia at least sixteen times. His records indicated eighteen out of eighteen tender points in November of 2006, sixteen out of eighteen in October 2006 and May of 2007. These fluctuations are consistent with Dr. Garcia’s testimony that the symptoms wax and wane with the level of pain and with time. On July 13, 2006, Dr. Dole stated that Mrs. Davis’ symptoms were consistent with fi-bromyalgia and were secondary to her work injury in September 2000. In July |1sof 2007, five months before trial, he reported her pain level at eight out of ten (8/10), with ten being the highest pain indicator. Dr. Dole’s clinical impression at that time was fibromyalgia “with an acute flair,” neck pain, and bilateral upper extremity pain. Dr. Dole was still treating Ms. Davis at the time of trial.

The above medical evidence overwhelmingly outweighs the report of Dr. Wilson, the rheumatologist who examined Ms. Davis once on behalf of the DOTD. In a recent case, we articulated as follows:

As a general rule, the testimony of a treating physician should be given greater weight than that of a physician who examined a claimant for diagnostic purposes only. Winch v. Double M, Inc., 99-1793 (LaApp. 3 Cir. 4/5/00), 764 So.2d 1055, writ denied, 00-1271 (La.6/16/00), 765 So.2d 339. This is because the treating physician has the advantage of familiarity, since he or she is more likely to know the claimant’s symptoms and complaints due to repeated examinations and sustained observations. Alexander v. Autozone, Inc., 04-871 (La.App. 3 Cir. 12/8/04), 889 So.2d 366. Additionally, positive findings of medical experts are to be afforded greater weight than the negative findings as to the existence of a particular condition. Campbell v. Luke Const. Co., 465 So.2d 688 (La.1985).

Fontenot v. Wal-Mart, 08-158, p. 14 (La. App. 3 Cir. 3/4/09), 5 So.3d 298, 307, writ denied, 09-0770 (La.5/29/09), 9 So.3d 165. The majority refuses to recognize this well-settled rule in its analysis.

While the WCJ intimated, by her reference to an “unknown etiology,” that fibro-myalgia is not a compensable illness, Louisiana jurisprudence has held otherwise. Our courts have consistently held that fi-bromyalgia is compensable under a rebut-table presumption theory “if there is evidence of the injured person’s good health before the accident and medical testimony showing a reasonable possibility that the accident caused the disability.” Maddox v. City of Oakdale, 99-726, pp. 6-7 (La.App. 3 Cir. 11/3/99), 746 So.2d 764, 769, writ denied, 99-3388 (La.2/11/00), 754 So.2d 936. Fibromyalgia has also been found compensable under the rebuttable presumption theory in: Herren v. State, 25, 564 (La.App. 2 Cir. 2/23/94), 632 So.2d 880; Theus v. Schumpert Med. Ctr., 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; and Woodrum v. Olive Garden Restaurant, 99-130 (La.App. 5 Cir. 5/19/99), 735 So.2d 911. Fibromyalgia was also compensable in Malbrue v. St. Landry Parish School Bd., 95-1426 (La.App. 3 Cir. 1996), 673 So.2d 1157 (compensability not challenged); Lizana v. Gulf Coast Pain Institute, 03-1672 (La.App. 1 Cir. 5/14/04), 879 So.2d 763; and Frith v. Riverwood, Inc., 03-1340 (La.App. 1 Cir. 4/2/04), 878 So.2d 595, writ granted, 04-1086 (La.1/19/05), 892 So.2d 7 (reinstated and increased attorney fees; addressed applicability of 1990 Amendments; reversed award of permanent total disability).

In addition to the above medical reports, Ms. Davis’ husband of twenty-eight years testified that prior to the DOTD accidents Ms. Davis was extremely hearty and active, bailing hay and mowing the yard. Before the accidents, she did not have pain all over her body, weakness, fatigue, depression, crying spells, and was not up and down all night, as she was after the accidents. The symptoms of fibromyalgia began very shortly after Ms. Davis’ work injuries in 2000. The DOTD attempted to rebut the presumption by arguing that the symptoms of fibromyalgia could be caused | ir.by hormonal imbalances or weight gain, but those arguments fail, as explained by Dr. Garcia’s testimony discussed above. Accordingly, based upon the jurisprudence above, and the overwhelming record evidence, Ms. Davis has established the existence and the relatedness of fibromyalgia to her DOTD work injuries in 2000.

The WCJ’s Termination of All Benefits

The record contains the medical reports and deposition testimony indicating that five of Ms. Davis’ physicians related her symptoms to her DOTD accidents: Drs. Levinsohn, Rambach, Quillin, Garcia, and Dole. Dr. Michael Brunet of Tulane University Hospital treated Ms. Davis for ro-tator cuff injury and burning sensations in her right shoulder. In October 2001 he ordered a functional capacity evaluation (FCE) from a MISS-LOU Physical Therapy in Natchez, Mississippi. The results indicated that Ms. Davis put forth consistent maximum voluntary effort. She could lift up to ten pounds (considered light lifting), could sit or stand for approximately a half hour of each; could occasionally carry sixteen pounds, could push and pull twenty-two and twenty-four pounds respectively; and her dominant right hand was thirty-five to sixty percent (35%-60%) weaker than her non-dominant left hand. In referring to the report, Dr. Brunet opined that Ms. Davis’ condition was permanent and not likely to change with time. In February 2002, Dr. Rambach assessed Ms. Davis with a twenty-five percent (25%) permanent partial disability, and indicated that she would be relegated to sedentary work. A June 2006 FCE indicated that Ms. Davis could only lift up to ten pounds occasionally, and that her complaints of increased pain in her back, neck and right shoulder correlated with an increased heart rate during testing. On a continuum of job classifications, from Very Heavy, Heavy, Medium (her DOTD job), Light, and Sedentary, Ms. Davis was assessed with a functional capacity for Sedentary work only.

hfiln July of 2006, Dr. Dole provided a disability evaluation indicating that Ms. Davis had a ten percent (10%) whole person impairment and was extremely limited in her functional abilities for lifting, reaching, and stooping, pursuant to the FCE performed two weeks prior. Dr. Dole reported that Ms. Davis’ prognosis for returning to work was extremely guarded, that she would likely need vocational counseling and re-education. He further reported that, given her rural residential area and limited education (11th grade), it would be difficult to find employment that met her physical limitations.

During the December 2007 trial, Ms. Davis’ attorney called as a witness the employer’s adjuster, Kayla Crowe. Ms. Crowe reviewed Dr. Dole’s medical records and effectively testified that she did not consider his impression of fibromyalgia one that rendered it a compensable condition, but she agreed that Dr. Dole’s other two impressions, of neck pain and upper extremity pain, were matters “that without controversy” were “part of Mrs. Davis’ injuries.” At the time of trial, adjuster Kayla Crowe was still paying wage benefits to Ms. Davis based upon DOTD’s own calculations, and was approving and paying for Dr. Michael Dole’s services for pain management and Dr. Quillin’s treatment of Ms. Davis for depression. She was also paying the medical bills of Dr. Clark Gun-derson, the orthopaedic surgeon who had performed a cervical fusion on Ms. Davis prior to trial.

Dr. Gunderson first saw Ms. Davis in May 2007 and reported possible cervical radiculopathy, pain with axial compression of head and neck, diminished grip strength on the right and diminished sensation in both thumbs. A June 2007 cervical MRI was abnormal, and Dr. Gunder-son reported disc bulging at C5-6. A 117discogram reproduced Mrs. Davis’ pain at C4-5. Our review indicates that this result is consistent with “tiny bulges” seen at C4-5 on Ms. Davis’ November 2000 MRI. In 2007, Ms. Davis had tenderness from C5-C7, and her range of motion was two thirds (2/3) of normal. Dr. Gunderson recommended surgery, which was approved by adjuster Kayla Crowe on October 29, 2007. Dr. Gunderson explained to Ms. Davis that she would not be pain free after the surgery but could have significant improvement. On November 15, 2007, Dr. Gunderson performed an anteri- or cervical fusion at C4-5 with anterior plate. Ms. Davis was also put on a bone stimulator. She appeared at trial three weeks later, on December 7, 2007, still wearing a neck brace.

Given the above evidence in the record, the WCJ manifestly erred in terminating Ms. Davis’ wage benefits and in terminating all of her medical payments. The majority errs in deciding otherwise. Even the defendant’s medical expert, Dr. Wilson, opined that Ms. Davis could not return to her former job and would likely be able to do only clerical-type work.

For the foregoing reasons, I dissent.

      . The appeals of the separate, final judgment were consolidated for dispositional purposes only by order of this court. Both appeals are discussed under Docket Number 09-228, which is an appeal of the merits of the claim and contains the decretal language for the merits of the claimant's suit. The decree relating to the claimant’s appeal of the granting of the exception of res judicata is set forth in the companion case, Judy Davis v. Louisiana Dep't of Transp. & Dev., et al., 09-672 (La. App. 3 Cir. 11/10/09), 27 So.3d 986.

      . As will be discussed below, the workers’ compensation judge excluded certain exhibits by both the claimant and the defendant for failure to follow a pre-trial scheduling order.

      . Although Dr. Wilson's report was excluded at the hearing, the workers' compensation judge's references are to the discussion regarding Dr. Wilson’s findings during Dr. Garcia's deposition.

      . The claimant cites to the following: Frith v. Riverwood, Inc., 03-1340 (La.App. 1 Cir.4/2/04), 878 So.2d 595; Lizana v. Gulf Coast Pain Inst., 03-1672 (La.App. 1 Cir. 5/14/04), 879 So.2d 763; Woodrum v. Olive Garden Rest., 99-130 (La.App. 5 Cir. 5/19/99), 735 So.2d 911; Theus v. Schumpert Med. Ctr., 25,750 (La.App. 2 Cir. 4/5/95), 653 So.2d 178; Herren v. State, 25,564 (La.App. 2 Cir. 2/23/94), 632 So.2d 880.

      . § 6005. Pretrial Conference: A. When requested by the court, each party to the dispute shall file a pretrial statement with the appropriate district office within the time frame designated by the court....
      § 6007. Pretrial Order: A. The pretrial statement shall include: 1. stipulations agreed to by all parties; 2. issues to be litigated; 3. contentions; 4. a list and brief description of all exhibits to be offered at trial; Exhibits to be used for impeachment or rebuttal need not be included in the list ...; 5. a list of all witnesses to be called at trial.... Except for the witnesses listed, no other witnesses may be called to testify except for good cause shown. This requirement shall not apply to impeachment and rebuttal witnesses; 6. outstanding discovery and depositions to be taken. ...

      . The DOTD cites the clearly distinguishable case of Floyd v. Louisiana Dept. of Public Safety, 08-899 (La.App. 3 Cir. 2/4/09), 3 So.3d 657, writ denied, 09-519 (La.4/17/09), 6 So.3d 798. There, the claimant alleged an occupational disease due to chemical exposures at work and failed to prove that her fibromyal-gia diagnosis was related to her work injuries. Mrs. Floyd struggled with two negatives that do not exist herein: the lack of immediacy inherent in occupational diseases, as opposed to identifiable accidents, as in Ms. Davis’ case; and the timing of the diagnoses. In Floyd, the first mention of fibromyalgia was more than two years after the claimant's leave from work; the claims of MCE, multiple chemical exposures, did not appear until six years after the alleged exposure, and there were no visits to doctors for acute exposure to chemicals in the workplace. Moreover, two physicians testified that the fibromyalgia derived from the chemical exposures and not from claimant’s epicondylitis, as the claimant asserted. In the present case, Ms. Davis had symptoms of fibromyalgia shortly after her five foot drop from the asphalt dump truck onto her side in September 2000. Dr. Levin-sohn suspected fibromyalgia in December 2000 and confirmed his impressions of fibro-myalgia in January 2001, just four months after the fall. Additionally, Drs. Quillin, Ram-bach, Dole, and Garcia related Ms. Davis’ symptoms to her work accidents.

      . In fact, Ms. Davis’ attorney subsequently argued that most of the benefits being paid were not even being disputed by the DOTD. At one point during the proceedings, the WCJ herself stated that "entitlement to benefits is not an issue because she's receiving them.”


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Judy DAVIS v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, OFFICE OF RISK MANAGEMENT.
    Nos. 09-672.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2009.

      George A. Flournoy, Flournoy & Dog-gett, Alexandria, LA, for Plaintiff/Appellant, Judy Davis.
    Leanne M. Broussard, Assistant Attorney General, State of Louisiana, Alexandria, LA, for Defendant/Appellee, State of Louisiana, through the Department of Transportation and Development, Office of Risk Management.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

For the reasons expressed in the consolidated ease of Judy Davis v. State of Louisiana, through the Department of Transportation and Development, Office of Risk Management, 09-288 (La.App. 3 Cir.11/10/09), 27 So.3d 969, the judgment granting the exception of res judicata is reversed. All costs of this proceeding are assessed to the appellee, Louisiana Department of Transportation and Development.

REVERSED.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Brian STEPHENS. State of Louisiana v. Brian Stephens.
    Nos. 2009-KA-0631, 2009-KA-0632.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 24, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for State.
    Michael H. Idoyaga, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

I,On appeal, defendant/appellant Brian Stephens challenges the sufficiency of the evidence to support his convictions for aggravated assault against a police officer in violation of La.Rev.Stat. 14:37.2 and for being a felon in possession of a firearm in violation of La.Rev.Stat. 14:95.1. After review of the record in light of the applicable law and arguments of the parties, the defendant’s convictions are affirmed and the matter is remanded back to the trial court for imposition of a fíne as mandated by La.Rev.Stat. 14:95.1(B).

Relevant Facts and Procedural History

The defendant, arrested in September 2007, was charged in separate bills of information in November 2007 with aggravated assault on a peace officer and for being a felon in possession of firearm. He pleaded not guilty on both charges and, after waiver of this right to a jury trial, the trial court consolidated the cases for trial, finding him guilty of both crimes on January 21, 2009. Shortly thereafter, the defendant’s motion for a new trial was denied and, after waiving all delays, he was sentenced to concurrent sentences of five years at hard labor for aggravated assault of a police officer and ten years at hard labor for being a felon in possession pof a firearm. The defendant appeals both convictions which, pursuant to his motion, are consolidated before this court.

Applicable Law

La.Rev.Stat. 14:37.2 defines aggravated assault on a peace officer as “an assault committed upon a peace officer who is acting in the course and scope of his duties with a firearm.” An assault is “is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” La. Rev.Stat. 14:36. Thus, in order to convict a defendant of aggravated assault upon a peace officer with a firearm, the State must prove that the defendant (1) with a firearm, (2) attempted to commit a battery or intentionally placed a peace officer in reasonable apprehension of receiving a battery, (3) while the peace officer was acting in the course and scope of his duties. State v. Noil, 08-278, p. 9 (La. App. 5 Cir. 10/28/08) 997 So.2d 621, 626.

In order to establish the crime of possession of a firearm by a convicted felon, the State must prove the following elements: (1) possession of a firearm; (2) conviction of an enumerated felony; (3) absence of the ten year statutory period of limitation; and (4) general intent to commit the offense. La.Rev.Stat. 14:95.1; State v. Husband, 437 So.2d 269, 271 (La.1983); State v. Jones, 544 So.2d 1294, 1295 (La.App. 4th Cir.1989).

Pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), this “court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier |sof fact, is sufficient to support a factual conclusion. State v. Robinson, 2002-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79; State v. Jones, 97-2591, p. 7 (La.App. 4 Cir. 9/8/99), 744 So.2d 165, 169.

Discussion

In his sole assignment of error, the defendant challenges the sufficiency of the evidence. The following evidence was adduced at trial.

Officer Chad Perez of the New Orleans Police Department (NOPD) testified that on the evening of September 7, 2007, he and his supervisor, Sergeant Bryan Lam-pard, were in the vicinity of Annette Street and Claiborne Avenue after receiving information that a red pickup truck located in the 1600 block of Annette Street may have been involved in the shooting that occurred earlier that evening. When they arrived at the location, the officers observed two black males seated inside the truck and one black male on a bicycle adjacent to the driver’s side. The officers exited their vehicle and, as Officer Perez came around the rear of the truck, he observed the defendant exit the passenger side of the truck holding a grey semiautomatic handgun with an extended magazine protruding from the bottom of the grip. As he exited the truck, the defendant raised the weapon and pointed it directly at Officer Perez. Officer Perez withdrew his service weapon from its holster and ordered the defendant to drop the weapon. The defendant disregarded the command and continued to point his weapon at Officer Perez. Believing that his life was in danger, Officer Perez fired several rounds at the defendant. The defendant ran into a nearby alley with Officer Perez in pursuit and, as the police officer entered the alley, the defendant discharged two rounds in his direction. Officer Perez related that he observed the muzzle flash from the weapon and the defendant’s arm raise each of the two times the gun was fired in his direction. |4Officer Perez returned fire but lost sight of the defendant when he ran towards the rear of the house. Accordingly, Officer Perez got on the radio, contacted the dispatcher, and requested units to the area to assist in setting a perimeter. Officer Perez then ran to the intersection of Annette and North Robertson where he observed several citizens running from the front of a house in the 1600 block of North Robertson Street, were screaming and looking scared. Officer Perez spotted the defendant hiding behind a garbage can next to the residence but, upon seeing the officer, the defendant ran back into the block. At this point, Officer Perez advised the dispatcher that he had discharged his weapon and that the individual was armed with a Ruger semi-automatic handgun. Officer Perez explained that because Rug-er pistols have a distinctive matted grey color he was able to specifically identify the make of the weapon.

After the perimeter was established, an NOPD canine unit arrived on the scene and began a search of the block. As the search was proceeding, the defendant appeared from a balcony of an abandoned building and announced that he had been shot. Officer Perez, along with several other officers, entered the building and secured the defendant. The defendant had sustained a single gunshot to his right leg.

Officer Perez identified the gun, a Ruger semi-automatic pistol, and the forty-round capacity clip that were recovered at the scene. In addition, the State played the 911 tape from the incident and introduced into evidence the incident recall, a transcript of Officer Perez’s radio call to the dispatcher.

Sergeant Lampard’s testimony corroborated that of Officer Perez. Specifically, Sergeant Lampard stated that on the evening in question he and his partner received information regarding an incident that happened earlier in the day ] 5that led them to a red truck parked in the 1600 block of North Claiborne. Upon seeing the truck, they exited their vehicle and approached it. There was a gentleman on a bicycle on the driver’s side and a subject in the driver’s seat of the truck. The defendant was a passenger in the truck. As the officers approached, the defendant exited the truck and began running toward an alley while pointing a large caliber handgun with an extended magazine at Officer Perez. Officer Perez fired several shots and ran towards the alley. Just prior to his entering the alley, two shots came from the alley towards Officer Perez. Officer Perez took cover at the corner of the residence and then went around to Annette Street in an attempt to cut the defendant off.

Sergeant Lampard detained the subject on the bicycle and the driver of the truck. He broadcast a description of the defendant and set up a perimeter. It was a few minutes before he saw Officer Perez again. Once the perimeter was set up, they waited for a canine unit to arrive. While searching the block, they observed the defendant on a second story balcony. Sergeant Lampard assembled a team to enter the building and apprehended the defendant without incident. Prior to turning the defendant over to the homicide division, Sergeant Lampard advised the defendant of his rights and questioned him, specifically asking him where he threw the gun. According to Sergeant Lampard, the defendant initially responded “in the alley” but subsequently stated, “No, No, I threw it in the lot behind the house.”

Sergeant Lampard asserted that he was part of the team that searched the area with the assistance of Agent Scanlan and her dog, Yahtzee, and that the gun was found along a chain link fence between the alley and the backyard.

Sergeant Anthony Caprera testified that as a supervisor in the homicide division he was called to the scene because it was a police-involved shooting. [ (-According to Sergeant Caprera, when he arrived the defendant was in the ambulance with his leg bandaged. He spoke briefly to the defendant, informing him that a detective would meet him at the hospital for questioning and then turned his attention to processing the scene. Because night had fallen and the area was not particularly well lit, Sergeant Caprera obtained the assistance of a specialty trained dog who could detect guns, bullets, and casings, and who subsequently located the gun and a nearby cell phone.

Sergeant Caprera returned to the scene the following day with two additional officers to look for additional evidence. They recovered a bullet fragment and several forty millimeter casings which were consistent with Officer Perez’s weapon but found no casings attributable to the nine millimeter Ruger. Although Sergeant Caprera requested that the crime lab process the gun for latent prints, none were recovered. A human hair found on the gun was submitted to the State Police crime lab for DNA analysis, but Sergeant Caprera testified that to his knowledge the test had not been performed.

Officer Joseph Pollard, a latent print examiner with the criminal records division, testified that earlier that day he came to court and fingerprinted the defendant. He testified that the defendant’s fingerprints matched the fingerprints from a “cert pack” of a 2003 conviction for possession with intent to distribute cocaine of a person named Brian Stephens who had the same date of birth as the defendant.

Officer Nicolas Gernon testified that on the night of the incident he met with the defendant at the Tulane Hospital’s emergency room and obtained his statement, which he recorded. The statement was played for the court. In his statement, the defendant admitted being in possession of a weapon; however, he identified his |7gun as being a .357 revolver. He stated several times that he did not fire the weapon and asked whether his hands could be tested to confirm that fact. Officer Ger-non confirmed that neither he nor, to his knowledge, any other officer performed a gun shot residue test.

Harry Howard testified for the defense. He stated that on the night in question he was seated in a red Dodge Ram pickup truck along with the defendant. Damien, a mutual friend of theirs, was on a bicycle along the driver’s side of the vehicle. Mr. Howard stated that he observed the police approaching the vehicle and informed the defendant, who related that he had a warrant out for his arrest. When the police pulled up, the defendant jumped out of the truck and tried to run, and the police opened fire on him. The defendant ran to the alley located between 1688 and 1686 Annette Street. The officer who fired at the defendant ran up to the alley but no further. No shots were fired once the defendant entered the alley. Mr. Howard stated that the defendant did not have a gun but did have a cell phone with him. Mr. Howard identified the cell phone recovered at the scene as being the defendant’s cell phone.

The defendant testified on his own behalf. He stated that he jumped out of the truck as soon as he saw the police and started running. He told his companion that there was a warrant out for his arrest. He stated that he was holding a cell phone in his hand. Stephens identified the cell phone that was recovered as being his own.

As soon as he exited the vehicle, the police started shooting at him, and he ran down an alley while holding his hands over his head. He was shot in the leg but kept running until he reached a safe spot in an abandoned house where he wrapped his leg up. The defendant testified that he waited until he could see |8people on the street before surrendering. After he emerged on the balcony, the police ordered him to remove his shirt, and he complied. According to the defendant, after the police entered the building and handcuffed him they kicked him and used a taser on him while asking him where his gun was. The defendant told the officers that he did not have a gun.

The defendant claimed that the police would not allow him to be treated by EMS but kept him in a police car as they continued to urge him to admit to having a gun. The defendant acknowledged that he gave the statement at the hospital that he had a weapon, but contended that he only gave the statement so that he would be treated. According to the defendant, he did not receive any treatment until after Detective Gernon left the hospital. The defendant denied shooting at anyone that night, asserting that he was not armed.

On cross examination, the defendant admitted having two previous felony convictions, one for possession of crack cocaine and one for possession with intent to distribute crack cocaine. The defendant related that when he was apprehended by the police he was kicked so many times that he could not even count the number. He stated that one officer had his foot over his face and that they kicked him in the face as well.

In rebuttal, the State called Dr. Stephen Mallerne who treated the defendant at Tulane University Medical Center. Dr. Mal-lerne stated that the defendant was treated for a gun shot wound to his right lower leg. From the best of his recollection and his review of the emergency room records, there were no signs of physical abuse. He noted that antibiotics were administered at 9:30 p.m. and that Vicodin was administered at 1:10 a.m. the next morning.

|9The State recalled Detective Gernon who stated that, when interviewed, the defendant showed no signs of physical abuse other than the gunshot wound. Detective Gernon identified a booking photograph of the defendant from the night in question and stated that the photograph depicted how the defendant looked on the night he interviewed him.

The defendant argues, however that the evidence is insufficient to support his convictions because the State did not introduce into evidence any fingerprints or DNA evidence from the hair recovered from the gun which link him to the gun, nor did the State introduce any evidence pertaining to whether the gun had been recently fired or whether any bullets were missing from the magazine. In addition, the defendant points out that no spent nine millimeter casings were recovered to indicate that the Ruger pistol that was found was fired at that location. Finally, the defendant notes that even though he requested that a test be performed, no test for gunshot residue was performed on him and, thus, no physical evidence was introduced at trial which links him to the weapon at issue.

Unless it is clearly contrary to the evidence, the credibility decision of the trier of fact will not be disturbed on appeal, State v. Harris, 99-3147, p. 6 (La.App. 4 Cir. 5/31/00), 765 So.2d 432, 435, and, accordingly, under our standard of review, the police officers’ testimony which the trier of fact found credible is sufficient to establish the defendant’s possession of a weapon beyond a reasonable doubt even without physical or scientific evidence that conclusively establishes he possessed the Ruger semi-automatic pistol. See State v. Womack-Grey, 99-0416, p. 17 (La.App. 4 Cir. 5/17/00), 764 So.2d 108, 119 (“If credible, the testimony of a single witness may establish the elements of a crime beyond a reasonable doubt.”). Moreover, Sergeant Lampard’s testimony substantively corroborated Officer | inPerez’s testimony and the testimony of the officers was not in irreconcilable conflict with the physical evidence. Accordingly, the State’s evidence establishing the common element to both crimes of possession of a firearm is constitutionally sufficient. The remaining requisite elements to support the aggravated assault on a peace officer conviction were established by the testimony of Officer Perez when he related that the defendant’s refusal to lower his weapon when so ordered, as well as when the defendant discharged the weapon from the alley, caused Officer Perez to fear for his life. The remaining requisite elements to support the felon in possession of a firearm were established through the testimony and evidence adduced by the State during the testimony of Officer Pollard. Accordingly, viewing all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have found all of the essential elements of the crimes of aggravated assault on a police officer and possession of a firearm by a convicted felon were satisfied beyond a reasonable doubt.

Errors Patent

Our review of the record reveals two patent errors. First, the trial court sentenced the defendant under La.Rev. Stat. 14:95.1 only to imprisonment although that statute mandates that a person convicted of this offense shall be sentenced to imprisonment and “fined not less than one thousand dollars nor more than five thousand dollars.” La.Rev.Stat. 14:95.1(B). Accordingly, we must remand the matter to the trial court to rectify this omission. See State v. Williams, 2003-0302 (La.App. 4 Cir. 10/6/03), 859 So.2d 751, following State v. Legett, 2002-0153 (La.App. 4 Cir. 5/22/02), 819 So.2d 1104 and State v. Hall, 2002-1098, pp. 5-6 (La. App. 4 Cir. 3/19/03), 843 So.2d 488.

|nA second error patent in the sentence concerns the trial court’s failure to prohibit parole as mandated by La.Rev. Stat. 14:95.1. However, paragraph A of La.Rev.Stat. 15:301.1 provides that in instances where the statutory restrictions are not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court, State v. Williams, 2000-1725, p. 10 (La.11/28/01), 800 So.2d 790, 798-799, and, accordingly, this Court need take no action to correct the trial court’s failure to specify that the defendant’s sentence be served without benefit of parole, probation or suspension of sentence because the correction is statutorily effected. La.Rev.Stat. 15:301.1(A).

Conclusion

In accordance with the foregoing, both convictions are affirmed. The matter is remanded for imposition of a fine in accordance with La.Rev.Stat. 14:95.1(B).

AFFIRMED; REMANDED.


author: LOMBARD, Judge.

text:
    Joseph "Smokey" JOHNSON and Wardell Quezergue v. TUFF-N-RUMBLE MANAGEMENT, INC., Boutit, Inc., DBA No Limit Records, Priority Records LLC, and Sony Music Entertainment, Inc.
    No. 2009-CA-0739.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 2009.

      Gregory P. Eveline, Eveline Davis & Phillips, and Ashlye M. Keaton, Law Office Of Ashlye M. Keaton, Esq., New Orleans, LA, for Plaintiffs/Appellees. *
    Edgar D. Gankendorff, Christophe B. Szapary, Provosty & Gankendorff, L.L.C., New Orleans, LA, for Defendant/Appellant, Tuff-N-Rumble Management, Inc.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD).
   LOMBARD, Judge.

| T This appeal filed by Tuff-N-Rumble Management d/b/a Tuff City Records (Tuff City) is from the judgment of the trial court granting the plaintiffs’ motion for partial summary judgment. After de novo review, the judgment of the trial court is affirmed.

Relevant Facts and Procedural History

The matter arises out of a copyright dispute over “It Ain’t My Fault,” a song co-written in 1964 by two legendary New Orleans musicians, Mr. Joseph “Smokey” Johnson and Dr. Wardell Quezergue a/k/a the “Creole Beethoven.” The song was subsequently incorporated into work by a rap artist in the 1990s without payment to the musicians and, as a result, the musicians filed a federal lawsuit in 1999 against Tuff City, as well as Vyshon Miller a/k/a Silkk the Shocker, No Limit of New Orleans, LLC, Big P Music, LLC, No Limit Productions, LLC, and Boutit, Inc. (collectively referred to as “No Limit”), alleging nonpayment for the use and ownership of their song. In addition, the musicians alleged copyright ^infringement of their song in three new songs by Silkk the Shocker. Tuff City filed its own cross-claim against No Limit for copyright infringement of the song. The federal court dismissed the musicians’ claims against Tuff City on summary judgment based on its finding that pursuant to contracts dated June 17, 1997, and February 12, 1998, Tuff City was contractually 50% owner of the song and co-owners of a copyright cannot sue each other.

Subsequently, pursuant to a settlement agreement between Tuff City and No Limits, it was agreed that (1) No Limit would credit Johnson and Quezergue as songwriters on the new songs; (2) attribute 50% of the copyright in and to the new songs to the copyright of the original Johnson and Quezergue song; (3) pay Tuff City 50% of all future income and royalties stemming from the new songs, from which Tuff City would be responsible for making payments to Quezergue and Johnson; (4) pay Tuff City an agreed upon amount of money from which Tuff City will be responsible for payments to Quezergue and Johnson; and (5) make payment to Tuff City of an agreed upon amount of money for all previous exploitation of the new songs from which Tuff City will be responsible to make payments to Quezergue and Johnson. Pursuant to this settlement agreement, the federal lawsuit was dismissed.

Tuff City attempted to pay the musicians only a minimal amount of the proceeds from their song, alleging a deduction of $99,546.21 in legal fees from the musicians’ earnings on their song. Tuff City offered no documentation in support of this deduction except a half page computer printout of fees purportedly accrued by a law firm. Accordingly, the musicians filed the instant lawsuit on May 1, 2002, in the Civil District Court of Orleans Parish, naming as defendants Tuff-N-Rumble Management, Inc., d/b/a Tuff City Records d/b/a Night Train Records and Boutit, Inc, d/b/a No Limit Records, Priority Records, LLC, and Sony Music Entertainment, Inc. The musicians allege that Priority Records, the exclusive | ¡¡distributor for No Limits Records, has sold more than three million records and CDs of the plaintiffs’ song “It Ain’t My Fault” and, additionally, that pursuant to a licensing agreement with No Limit, Sony included the musicians’ song on Mariah Carey’s Rainbow CD which has sold in excess of 3 million units. After the district court dismissed some of the claims, three claims remain in this lawsuit: (1) a breach of contract claim on behalf of Mr. Johnson, alleging that Tuff City breached his contract by failing to provide timely accountings relative to his songs, for failing to pay him royalties for the use of his songs and, without contractual basis, for withholding monies due to Mr. Johnson for legal fees incurred by Tuff City; (2) a breach of contract claim on behalf of Dr. Quezergue; and (3) an unjust enrichment claim on behalf of both musicians, alleging that No Limit, Sony, and Priority Records were unjustly enriched by the inclusion of the musicians’ song on the Mariah Carey CD without payment to the musicians.

In July 2004, the musicians issued their first discovery requests for documents pertinent to their claims. In October 2004, the musicians filed a motion to compel Tuff City to respond to pertinent discovery requests. The initial motion hearing date was continued, but on April 14, 2005, the musicians’ counsel sent a letter to Tuff City elaborating on the documentation sought through discovery, including a request for proof regarding the attorney fees that Tuff City claimed from the royalties due to the plaintiffs. On June 1, 2006, Tuff City produced a single half page computer printout with a column of legal fees amounting to $99,546.21 which Tuff City alleges were accrued on behalf of the musicians. This documentation of the legal fees purportedly expended on behalf of the musicians contained no explanation as to specific dates, attorneys billing information, services rendered, or other relevant data. Accordingly, at a hearing in June 2006 |4on the musicians’ motion to compel, the trial court ordered Tuff City to produce clarification and certification of the alleged attorney fees within 20 days. Tuff City failed to do so and, accordingly, on September 12, 2008, the musicians filed the instant Motion for Partial Summary Judgment on Attorney Fees.

After a hearing in December 2008, the trial court granted partial summary judgment in favor of the musicians on January 5, 2009, finding that Tuff City failed to submit any credible evidence for the claimed attorneys’ fees. Tuff City filed a motion for reconsideration, submitting that after the December 2008 hearing evidence had been discovered “which Tuff City could not, without [sic] due diligence, have obtained before the hearing.” Tuff City asserted that its in-house counsel responsible for locating any and all documents supporting Tuff City’s claim had abruptly left its employ in November 2006 and his replacement passed away from cancer in November 2008 as Tuff City was preparing its opposition to the musicians’ motion. In support of its motion for reconsideration, Tuff City attached the following documents: (1) Invoice # 19302 from the law offices of Cobrin & Gittes dated January 1, 2000, showing a balance due of $6,069.64 for professional services rendered 12/01/99 through 12/31/99 for professional services (but with no notation as the subject matter of the services rendered); (2) Invoice # 19304 from the law offices of Cobrin & Gittes dated January 1, 2000, showing a balance due of $9,029.34 for professional services rendered 12/01/99 through 12/31/99 (again with no notation as to the subject matter of the services rendered); and (3) a Quick Books extract from the law office of Cobrin & Gittes listing invoice numbers and amounts for various accounts (again with no notation as to|sthe subject matter underlying the various invoices; (4) affidavit by the owner and President of Tuff City stating that these documents were only discovered in a cross-search of business records after the December 2008 hearing and that the documents were related to payments made by Tuff City to the law firm of Corbin & Gittes for the legal service of Oren J. Warshavsky in connection with the enforcement, defense and settlement of the pertinent copyright claims.

Tuff City filed a supplemental memorandum in support of its motion for reconsideration with another affidavit from the owner and President of Tuff City stating that he had uncovered additional evidence of payments made by Tuff City to the law offices of Corbin & Gittes and attaching copies of 7 checks: (1) Check No. 1012, date October 13, 1198, in the amount of $1500.00 (but no notation referencing either a legal matter or invoice number); (2) Check No. 1037 dated October 30, 1998, in the amount of $2000.00 (but no notation referencing either a legal matter or invoice number); (3) Check No. 1072 dated November 23, 1998, in the amount of $500.00(but no notation referencing either a legal matter or invoice number); (4) Check No. 1086 dated December 2, 1998, in the amount of $500.00 (but no notation referencing either a legal matter or invoice number); (5) Check No. 1088 dated December 3, 1998, in the amount of $500.00 (but no notation referencing either a legal matter or invoice number); (6) Check No. 1124 dated December 29, 1998, in the amount of $1500.00 ((but no notation referencing either a legal matter or invoice number); and (7) Check No. 2485 dated December 29, 2001, in the amount of $15,000.00 (but no notation referencing either a legal matter or invoice number).

After a hearing, the trial court denied Tuff City’s motion for reconsideration on March 13, 2009, reiterating its partial summary judgment on the issue of | ^attorneys’ fees and dismissing with prejudice all claims pertaining to whether the plaintiffs owed Tuff City attorney fees relative to the current action and the federal copyright infringement lawsuit. Tuff City appeals this judgment.

Applicable Law

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd. 93-1480 (La.4/11/94), 634 So.2d 1180, 1182. Because summary judgment is favored in Louisiana, the rules regarding such judgments are liberally applied. Id.

Summary judgment is appropriate when there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966 C(l). When, as in this case, the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, the burden shifts to the nonmoving party to produce factual support sufficient to satisfy his evidentiary burden at trial. La.Code Civ. Proc. art. 966(c)(2). The failure of the non-moving party to meet this shifting burden and produce evidence of a factual dispute mandates the granting of the motion. Davis v. Bd. Of Sup’rs of La. State Univ. 97-0382, p. 8 (La. 4 Cir.App. 3/18/98), 709 So.2d 1030, 1034. Accordingly, an adverse party to a supported motion for summary judgment may not rest on the mere allegations but, rather, his response must set forth specific facts showing that there is a genuine issue of material fact for trial. Id. Specifically, similar to the federal standard, summary judgment shall be granted where the evidence is such that it would require a directed verdict for the moving party. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Thus, when as in this case the motion is based on the lack |7of proof of a material fact, the court must ask itself whether a fair-minded jury could return a verdict for the non-moving party on the evidence presented. Id. at 8-9, 709 So.2d at 1034. Accordingly, the mere existence of a scintilla of evidence in support of the non-moving party’s position is insufficient; there must be evidence on which the jury could reasonably find for that party. Id. (citations omitted) (emphasis added).

Discussion

In their motion for partial summary judgment, the musicians assert that Tuff City is unable to prove that legal fees were paid on behalf of the musicians that may be deducted from the monies contractually owed to the plaintiffs or in accordance with the settlement agreement. Tuff City responds by arguing that it has produced sufficient evidence by affidavit and in the form of invoices, cancelled checks, the computer printout of accounts receivable, and a QuickBooks extract to satisfy its evidentiary burden at trial that it incurred attorney fees relative to the current and previous lawsuit.

We have reviewed the documents submitted by Tuff City in opposition to the plaintiffs’ motion, as well as the documents submitted in support of its motion for reconsideration but find that Tuff City has failed to sustain its burden on motion for summary judgment. Tuff City claims it incurred legal expenses on behalf of the musicians but nothing in the computer printout, invoices, cancelled checks, or Quickbook extract submitted by Tuff City makes any reference to actions taken on behalf of the musicians in this case. Accordingly, “It Ain’t My Fault” if Tuff City’s documents are insufficient to sustain their burden on summary judgment. Moreover, Exhibit H attached to the musicians’ opposition to Tuff City’s motion for reconsideration, a copy of Tuff-N-Rumble Management, Inc. v. Sugarhill Music Publishing, Inc., 99 F.Supp.2d 450 (S.D.N.Y.2000), clearly | ^indicates that Tuff City was involved in at least one other legal action in the same time it is claiming legal fees were paid on behalf of the musicians. Moreover, even accepting arguendo that legal fees are deductible from the money owed to the musicians or that the meager and unreferenced documentation submitted by Tuff City, including the can-celled checks to the law firm totally $20,500.00, is evidence of payment for legal work done on behalf of Tuff City, the meager documentation submitted by Tuff City after 4 years of discovery requests is clearly insufficient to support a finding that Tuff City expended legal fees on behalf of these musicians which are deductible from the royalties due to the musicians for the use of their song. Moreover, in the initial lawsuit, the musicians were forced to find their own counsel to file suit to protect their song from use without payment and from copyright infringement and named Tuff City and others as defendants. Only then did Tuff City, claiming 50% ownership of the song, file a cross-claim against No Limits, presumably to protect at least in part their own 50% ownership. Thus, again accepting arguen-do that attorney fees expended on behalf of the musicians are deductible from the money owed to the musicians, there is no indication in the documents submitted by Tuff City or in the arguments made by Tuff City that any portion of the purported fees expended on behalf of the song were deducted from the proceeds collected by Tuff City’s for its 50% ownership of the song. Additionally, the musicians were dismissed from the federal lawsuit and were not parties to the settlement agreement even though the settlement agreement included a specific provision wherein Tuff City agreed to pay the musicians their portion of the royalties for the song. After four years of discovery requests, Tuff City has not come forward with evidence to support their claim of legal fees paid on behalf of and therefore deductible from the musicians’ ownership of their song. Moreover, lflTuff City concedes, in effect, that despite searching their own records for more than four years they have been unable to find anything other than a few generic invoices and checks that appear to have no connection with the musicians or song in this case. On the basis of this record, it is difficult to perceive any scenario wherein Tuff City could legitimately deduct the legal fees from the monies due to the musicians and, accordingly, because there is no genuine issue of material fact to be resolved as trial, partial summary judgment on this issue is appropriate. The issue of Tuff City’s fiduciary responsibility to the musicians is not before us and we cannot, of course, comment on the morality of a corporation choosing to withhold the substantial funds due to two elderly musicians who lost everything in Hurricane Katrina. We do note, however, that the circumstances of this case are very disturbing.

Conclusion

Tuff City failed to meet its burden on motion for partial summary judgment and, accordingly, we find that there is no genuine issue of material fact pertaining to the claimed attorney fees. Accordingly, the musicians’ motion for partial summary judgment is granted and the trial court judgment is affirmed.

AFFIRMED.

      . Loyola University awarded an honorary doctorate in music to Mr. Quezergue for his commitment to public service and the arts.

      . The court can only assume that the appellants meant to argue that, searching with due diligence, they could not have found the evidence before the hearing, although based upon the evidence submitted it appears that the document search was, in fact, done “without due diligence."