author: Judge Tiffany G. Chase

text:
    Nathaniel SMITH v. H & E TUGS LLC and Lawson Environmental Service LLC
    NO. 2018-CA-0424
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 24, 2018
    Gary A. Hemphill, Jeremy T. Grabill, PHELPS DUNBAR LLP, 365 Canal Street, Suite 2000, New Orleans, LA 70130--6534, COUNSEL FOR APPELLANT
    James D. Bercaw, Douglas Pugh Matthews, KING & JURGENS, LLC, 201 St. Charles Avenue, 45th Floor, New Orleans, LA 70170, COUNSEL FOR APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Tiffany G. Chase, Judge Dale N. Atkins )
   Judge Tiffany G. Chase

Appellant, O'Brien's Response Management Inc. (hereinafter "ORM"), appeals the trial court's judgment granting the Appellee, Center for Toxicology and Environmental Health, L.L.C.'s (hereinafter "CTEH") motion for summary judgment, dismissing with prejudice the third party demand filed by ORM. For the reasons that follow, we reverse the trial court's judgment and remand the matter for further proceedings.

Relevant Factual and Procedural History

On April 20, 2010, the Deepwater Horizon drilling rig exploded, spilling millions of gallons of oil into the Gulf of Mexico. As a result, BP Exploration and Production, Inc., and/or BP America Production Company, (hereinafter "BP") engaged numerous companies to assist in performing response services. Ultimately, thousands of vessels participated. One such entity, Lawson Environmental Service, L.L.C. (hereinafter "Lawson"), was contracted by BP to assist. BP also engaged ORM to provide personnel and oil spill response services. ORM then subcontracted with CTEH, who supplied workers for the cleanup effort. CTEH employed Plaintiff, Nathanial Smith (hereinafter "Smith"), to work as a safety observer. On October 7, 2010, while working aboard the vessel, Captain Cristo (hereinafter "Cristo"), Smith was injured when the Boomer II rear ended the Cristo.

Smith filed a petition for damages alleging claims under general maritime law against Lawson. In response, Lawson filed a third party demand against ORM, seeking indemnification. Although ORM agreed to indemnify Lawson, it filed a third party demand against CTEH, pursuant to a separate contractual indemnity agreement and sought contractual defense, indemnity, and insurance coverage. Smith subsequently reached a settlement and dismissed all claims against all parties with prejudice. Only ORM and CTEH's claims against each other remain.

CTEH filed a motion for summary judgment, seeking a determination that Smith is an employee under 33 U.S.C. § 901 et seq. , the Longshore Harbor Workers' Compensation Act (hereinafter "LHWCA"), and requesting that the indemnity agreement between ORM and CTEH be declared void. After taking the matter under advisement, the trial court granted CTEH's motion for summary judgment, finding Smith was an employee under the LHWCA and dismissed ORM's third party demand. In the trial court's reasons for judgment, it concluded that Smith failed to meet the requirements to qualify as a Jones Act seaman for the following reasons: (1) Smith did not contribute to the function of the vessel; (2) Smith was not a Jones Act seaman connected to a fleet of vessels under common control of the U.S. government; (3) Smith had no substantial connection to the vessel in duration and nature, based upon Smith's statement "that his work as a safety observer was done on the beaches that were being cleaned." This appeal followed.

Applicable Law

An appellate court reviews a trial court's disposition on a motion for summary judgment using the de novo standard of review. Navarre v. Kostmayer Const. Co., Inc. , 2010-0490, p. 2 (La.App. 4 Cir. 11/24/10), 52 So.3d 921, 922. Summary judgment "is designed to secure the just, speedy, and inexpensive determination of every action."

La. C.C.P. art. 966(A)(2). Therefore, after adequate discovery, "a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). Initially, the burden of proof rests with the mover. La. C.C.P. art. 966(D)(1). Once the mover presents prima facie evidence that there is no genuine issue as to material fact, the burden shifts to the nonmoving party. Atkinson v. Harbor Homeowners Ass'n, Inc. , 2016-1141, p. 5 (La.App. 4 Cir. 5/24/17), 221 So.3d 185, 188.

Both the LHWCA and the Jones Act were developed to provide compensation coverage to maritime employees injured during the course and scope of their employment. Orgeron v. Avondale Shipyards, Inc. , 561 So.2d 38 (La.1990). Both statutes offer mutually exclusive recovery procedures. Id. at 40-41. Accordingly, factual disputes often arise regarding which statute applies. Notably, the Jones Act requires a more heightened burden than that needed to qualify as a LHWCA employee. While the term "seaman" is not defined in the Jones Act, the United States Supreme Court in Chandris, Inc. v. Latsis , 515 U.S. 347, 368, 115 S.Ct. 2172, 2190, 132 L.Ed.2d 314 (1995), articulated a two part test. To find Smith was a seaman under the Jones Act, the evidence must demonstrate: (1) the employee's duties contributed to the function of the vessel or to the accomplishment of its mission; and (2) the employee must have a connection to a vessel in navigation, or to an identifiable group of such vessels, that is substantial in both duration and nature. Id. The purpose of the Jones Act test is to limit recovery under the Act to employees whose work "regularly expose[s] them to the perils of the sea." Id. "Jones Act coverage should not be withheld because the vessels are not under the employer's common ownership or control, when claimants are continuously subjected to the perils of the sea and engaged in classical seaman's work." Wisner v. Prof'l Divers of New Orleans, 98-1755 (La. 3/2/99), 731 So.2d 200, 203. Further, "[t]he duration of a worker's connection to a vessel and the nature of the worker's activities, taken together, determine whether a maritime employee is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel's crew or simply a land-based employee who happens to be working on the vessel at a given time." Chandris , 515 U.S. at 370, 115 S.Ct. at 2190-91. The general rule for making this determination is that "a worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman. This figure is only a guideline that allows a court to take the question from the jury when a worker has a clearly inadequate temporal connection to the vessel." Id. at 349, 115 S.Ct. at 2180. Even if a maritime employee's assignment on a vessel is brief, that fact alone does not preclude seaman status. Id. at 372, 115 S.Ct. at 2191-92. "[S]eaman status ... should not be some immutable characteristic that maritime workers who spend only a portion of their time at sea can never attain." Id. , 115 S.Ct. at 2192.

The determination as to seaman status is a mixed question of law and fact. Waller v. Am. Seafoods Co. , 97-0302, p. 2 (La.App. 4 Cir. 10/1/97), 700 So.2d 1306, 1307. Thus, the inquiry is inherently fact specific, depending on the particular circumstances of each case. Id. , p.3, 700 So.2d at 1308. Additionally, a court's interpretation of statutory terms is a question of law. Id. , p. 2, 700 So.2d at 1307. If reasonable persons applying the proper legal standard could differ as to seaman status, it then becomes a question for the trier of fact. Id. , p. 2, 700 So.2d at 1307-08. Only when it can be said that the undisputed facts demonstrate a "maritime worker has a clearly inadequate temporal connection to the vessel, may the court take the question away from the jury." Id. , p. 2, 700 So.2d at 1308 (Emphasis supplied).

Discussion

The issue before this Court is whether the trial court erred in granting summary judgment, finding that Smith's employment falls under the LHWCA rather than the Jones Act. In its motion for summary judgment, CTEH argues ORM's potential recovery against it for contractual defense, indemnity, and insurance coverage is contingent on Smith's status as an LHWCA employee or a Jones Act seaman. CTEH contends the trial court was correct in granting summary judgment and dismissing ORM's third party demand because the undisputed facts prove Smith was an employee under the LHWCA as a matter of law. According to CTEH's theory of the case, Smith qualifies as an employee under the LHWCA for two reasons. First, there were no facts to suggest Smith worked on a fleet of vessels under common ownership or control. Lawson chartered both the Cristo and the Boomer II. Further, CTEH attached deposition testimony of their employee, Smith, who stated that his assignment to the Cristo was controlled by the Cristo alone. Second, CTEH argues that Smith did not have a substantial connection in duration and nature to a vessel. To support these arguments, CTEH notes Smith worked only one day aboard the Cristo, falling far below the required thirty percent threshold needed to establish seaman status. The vessels Smith worked on were not under common control, according to CTEH's theory; thus, only the one day Smith worked on the Cristo should be used in determining how much time Smith worked on vessels. According to the timesheets for Smith, he worked aboard numerous vessels for nineteen days and worked on land eighteen days. Since CTEH calculates that Smith spent only six percent of his time on the Cristo, CTEH argues he could not qualify as a seaman as a matter of law.

In opposition to CTEH's motion, ORM maintains there are material factual disputes regarding whether Smith worked on a fleet of vessels under common ownership or control. In support, ORM produced an affidavit of ORM's CEO Tim Whipple (hereinafter "Whipple"); Smith's deposition testimony and Smith's timesheets. Whipple attested that ORM and its subcontractors were at all times subject to the authority of the U.S. government, through the incident command system and the federal on-scene coordinators. Whipple noted that "response efforts followed the specific instructions relayed in the incident action plans, which contained detailed instructions concerning the authorized response activities that were to occur each day and which were approved by the federal on-scene coordinators, representatives and/or other federal officials at all times." In Smith's deposition, he testified that "it wasn't his business to know actually what company owned which boats. I was there just to be a safety observer." ORM attached the joint stipulations of fact submitted in In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico . MDL 2179, 2016 WL 614690, at 9 (E.D. La. Feb. 16, 2016) (unpublished), which it argues demonstrated ultimate control of the vessels rested with the U.S. government for all response activities. ORM maintains vessel ownership is irrelevant; rather the determinative issue is control.

ORM also contends that Smith met the thirty percent threshold, noting the threshold is only a guideline, as the unique facts of each case control the ultimate determination. According to ORM, Smith's deposition testimony and timesheets prove he worked aboard vessels for nineteen days, or over thirty-nine percent of his employment with CTEH. Specifically, Smith's timesheets reflected the time spent on the water each day, which supported his deposition testimony that he worked about forty percent of the time aboard vessels. Finally, Smith's deposition testimony was that he served aboard hundreds of vessels as a safety observer in the water, demonstrating a sufficient connection to vessels for seaman status.

Based upon our review of the record, we find there is a genuine issue of material fact regarding the applicable maritime workers' statute under which Smith falls. Factual inferences on these issues are germane to the issue of seaman status. Thus, it requires the weighing of evidence which is improper on a motion for summary judgment. Becnel v. Chet Morrison, Inc. , 2010-1411, pp. 14-15 (La.App. 4 Cir. 8/31/11), 73 So.3d 1002, 1010. Different factual inferences could be drawn by the trier of fact regarding who controlled the vessels. The only evidence CTEH submitted in support of their argument that each vessel ultimately controlled operations for the day, was the deposition of Smith, which offered little insight. ORM offered Whipple's affidavit, which attested the U.S. government ultimately controlled the mission, which creates a genuine issue of material fact. Further, the question of which entity ultimately controlled the vessels upon which Smith worked necessarily touches upon the appropriate method to calculate Smith's total time spent aboard vessels. Therefore, the record before this Court does not provide the necessary undisputed facts as to Smith's seaman status which would justify the grant of summary judgment.

Conclusion

There is a genuine issue of material fact as to Smith's status as a seaman under the Jones Act or under the LHWCA. Accordingly, we reverse the judgment of the trial court granting summary judgment in favor of CTEH and remand the matter for further proceedings consistent with this opinion. Finding that the trial court erred in granting summary judgment, we pretermit discussion of ORM's additional assignments of error.

REVERSED AND REMANDED

      ORM is an organization which provides emergency preparedness and response management services to the oil industry.

      Lawson chartered both the Cristo and the Boomer II to assist in cleanup.

      CTEH argues that the indemnity agreement violated 33 U.S.C. § 905(b).

      CTEH appears to concede that reasonable minds could differ regarding Smith's contribution to the vessel's mission, focusing their argument on whether Smith served on a fleet of vessels under common ownership or control.

      CTEH objected in their reply brief, and at the hearing, to the affidavit. The trial court received it into evidence, subject to the objection, but did not exclude it from consideration or deem it inadmissible. In Moridani v. Stone Clinical Laboratories, LLC., 2017-0519, (La.App. 4 Cir. 11/22/17), 231 So.3d 803, the appellant argued that a trial court's failure to specifically address an objection to documents submitted in support of a motion for summary judgment under La. C.C.P. art. 966(D)(2) constituted reversible error. La. C.C.P. art. 966(D)(2) provides that: "[a]ny objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider." In Morindani, like in the case sub judice, an objection was made on the record to documents submitted on the summary judgment motion. However, in both cases, the trial court failed to state on the record, or in writing, that any of the documents submitted were inadmissible or would not be considered. This Court in Morindani found that the appellant's objection to the documents submitted in support of the motion for summary judgment were without merit, thus the trial court was not required to make any specific statements regarding their admissibility. Specifically, the Morindani court noted that the "if any" language in La. C.C.P. art. 966(D)(2) only requires the trial court to address the admissibility of documents if it deems the documents inadmissible or otherwise declined to consider them. In the case sub judice, CTEH argues that the affidavit is inadmissible because Whipple does not have personal knowledge, as required by La. C.C.P. art. 967. However, Whipple, the CEO of ORM indicated he is familiar with the records and business of ORM and, as CEO, would have personal knowledge of the business operations. In his affidavit, he attested that vessels were ultimately subject to the authority of the U.S. government. Whipple, in his capacity as the CEO of ORM "had the requisite knowledge to attest to the contents of his affidavit." Chavers v. Bright Truck Leasing , 2006-1011, p. 8 (La.App. 3 Cir. 12/6/06), 945 So.2d 838, 845.

      The Clean Water Act, 33 U.S.C.§ 1321, addresses the chain of command in oil spill emergencies like the Deepwater Horizon. 33 U.S.C.§ 1321(2)(A) provides that the "President shall direct all Federal, State, and private actions to remove the discharge or to mitigate or prevent the threat of the discharge."

      In re Oil Spill by the Oil Rig"Deepwater Horizon" , the court noted that the federal on-scene coordinator retained ultimate decision-making power during the cleanup response, with no action to be taken without approval of the federal on-scene coordinator. MDL 2179, 2016 WL 614690, at 8 (E.D. La. Feb. 16, 2016) (unpublished).


source: Caselaw Access Project

author: JUDGE SANDRA CABRINA JENKINS

license: Public Domain

text:
    Angela JACKSON v. FAMILY DOLLAR STORES OF LOUISIANA INC., S & S Janitorial Services, LLC, SMS Assist, LLC
    NO. 2017-CA-0712
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 24, 2018
    William R. Mustian, III, STANGA & MUSTIAN, PLC, 3117 22nd Street, Suite 6, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLEE
    Richard J. Richthofen, Jr., RICHTHOFEN & ASSOCIATES, LLC, 3900 Canal Street, New Orleans, LA 70119, COUNSEL FOR DEFENDANTS/APPELLANTS
    (Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods )
   JUDGE SANDRA CABRINA JENKINS

This is a workers' compensation case. Family Dollar Stores of Louisiana, Inc. ("Family Dollar"); S & S Janitorial Services, LLC ("S & S"); and SMS Assist, LLC ("SMS") (collectively, "Employers"), appeal the January 30, 2017 judgment of the Workers' Compensation Judge ("WCJ") awarding wage and medical benefits, penalties and attorney's fees to appellee, Angela Jackson. Employers also appeal the WCJ's March 22, 2017 judgment denying the Employers' Motion for New Trial. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 12, 2015, Ms. Jackson filed a Disputed Claim for Compensation (the "Claim") with the Office of Workers' Compensation ("OWC"). Ms. Jackson reported that, on October 22, 2014, between 10:30 and 11:00 p.m., she was injured at a Family Dollar store in New Orleans. Ms. Jackson stated that a shelf of bottled water fell on her ankle causing a fracture and requiring surgery. The Claim identified Family Dollar as her statutory employer, and alleged that Family Dollar had not paid wage benefits, and had not authorized medical treatment. Ms. Jackson sought penalties and attorney's fees for Family Dollar's arbitrary and capricious denial of benefits.

On July 20, 2015, Family Dollar filed an Answer to Claim and Third-Party Demand against S & S, seeking a defense and indemnity pursuant to an "Affiliate Master Service Agreement" (the "Agreement") in which S & S contracted to provide floor care services to Family Dollar stores in Louisiana. According to the Third-Party demand, S & S was obligated under the Agreement to obtain workers' compensation insurance for its employees who performed floor preparation and cleaning. In the Answer, Family Dollar denied that Ms. Jackson was an employee at the time of the accident.

On August 28, 2015, Ms. Jackson filed a Supplemental Disputed Claim for Compensation ("Supplemental Claim") naming S & S and SMS as additional defendants. Ms. Jackson alleged that S & S was her employer at the time of the accident, and that SMS was the general contractor of the work.

On September 18, 2015, SMS filed an Answer to Ms. Jackson's Supplemental Claim, along with a Third-Party Demand against S & S based on the Agreement's provision requiring S & S to obtain workers' compensation insurance. In the Answer, SMS also denied that Ms. Jackson was an employee on the date of the injury.

On October 5, 2015, S & S filed an Answer to Ms. Jackson's Claim and Supplemental Claim, also denying that Ms. Jackson was an employee of S & S at the time of the accident.

A trial was held on January 4, 2017. On January 30, 2017, the WCJ rendered the following judgment:

• On October 22, 2014, Ms. Jackson was a direct employee of Becky Tolito and Tolito Services Company, LLC; and a statutory employee of S & S, SMS, and Family Dollar.
• Ms. Jackson was injured on October 22, 2014 at the Family Dollar store on S. Carrollton Avenue in New Orleans in the course and scope of her employment, and suffered a compensable workplace accident.
• Ms. Jackson sustained and suffered a compensable workplace injury to her ankle after a shelf full of packaged water on the premises of the Family Dollar store on S. Carrollton Avenue fell on top of her leg and ankle.
• Ms. Jackson properly sought and received medical treatment for the ankle injury after the accident at Biloxi Regional Medical Center and follow-up treatment at Bienville Orthopedic Specialists, LLC with Dr. Yakaterina Karpitskaya, and again at Memorial Hospital in Gulfport.
• The employers shall pay all outstanding medical bills for services rendered to Ms. Jackson as they relate to the injuries she received on October 22, 2014 totaling $92,278.00.
• Ms. Jackson was a recipient of Medicaid benefits at the time of her injury on October 22, 2014, and that those Medicaid benefits were utilized during her treatment for the injuries sustained on October 22, 2014. Employers are liable under La. R.S.23:1205 to reimburse Medicaid for any and all amounts paid for services rendered to Ms. Jackson as a result of the October 22, 2014 accident.
• Ms. Jackson was paid $50.00 per store as compensation for working. As a result of the accident, Angela Jackson was rendered temporarily total disabled ("TTD") from October 22, 2014 until April 30, 2015 pursuant to La. R.S. 23:1221(1). The minimum compensation rate in effect at the time of the accident was $168.00/per week. The total TTD figure for 27.28 weeks at $168.00/per week is $4,584.00.
• Ms. Jackson carried her burden of proof that she was entitled to supplemental earnings benefits ("SEBs") pursuant to La. R.S. 23:1221(3) and she is entitled to SEBs until such time as earning capacity is demonstrated at the rate of $168/per week from May 1, 2015 and until such a time not to exceed a maximum of five hundred and twenty weeks.
• Employers failed to reasonably controvert this claim and/or establish that there were conditions over which they had no control when they failed to pay this claim; penalties are assessed against the employers in the amount of $2,000.00 pursuant to La. RS. 23:1201(F) for failure to timely pay indemnity benefits.
• Employers failed to reasonably controvert this claim and/or establish that there were conditions over which they had no control when they failed to pay this claim; penalties are assessed against the employers in the amount of $2,000.00 pursuant to La. RS. 23:1201(F) for failure to timely pay medical benefits.
• Employers are assessed attorney's fees in the amount of $3,000.00 pursuant to La. R.S. 23:1201(F) for their failure to pay indemnity benefits and medical benefits timely or otherwise. Employers failed to establish they reasonably controverted this claim and/or that there were conditions over which they had no control when they failed to pay this claim.
• This matter shall be dismissed with prejudice, reserving all of Ms. Jackson's future rights.

On February 9, 2017, Employers filed a Motion for New Trial, which the WCJ denied on March 22, 2017. Employers appealed.

On August 28, 2017, Ms. Jackson filed a Motion to Dismiss Appeal, pursuant to La. R.S. 23:1310.5(C), because Employers did not post an appeal bond, which is required when there has been an award of workers' compensation benefits. On January 5, 2018, this Court granted Ms. Jackson's motion, dismissed the appeal, and remanded this matter for the setting of a bond. Jackson v. Family Dollar Stores of Louisiana, Inc. , 17-0712 (La. App. 4 Cir. 1/5/18), --- So.3d ----, 2018 WL 304386. After Employers posted the necessary appeal bond, they filed a Motion to Reinstate Appeal, which this Court denied because of lack of jurisdiction.

Thereafter, Ms. Jackson filed a writ of certiorari and/or review with the Louisiana Supreme Court, which granted the writ. Jackson v. Family Dollar Stores of Louisiana, Inc. , 18-0170 (La. 4/18/18), 247 So.3d 727. On June 27, 2018, the Supreme Court affirmed this court's finding that it could not entertain the appeal until a bond was posted. Jackson v. Family Dollar Stores of Louisiana, Inc. , 18-170 (La. 6/27/18), 251 So.3d 368. The Supreme Court found that, because Employers had submitted evidence that the bond had been set and posted, there was no longer an impediment to consideration of the appeal. Accordingly, the Supreme Court remanded this matter to this Court for consideration of the appeal on the merits.

DISCUSSION

Standard of Review

In workers' compensation cases, "it is well-settled that the appropriate standard of appellate review is the manifest error or clearly wrong standard." Blair v. Wal-Mart Stores, Inc. , 01-2211, p.7 (La. App. 4 Cir. 5/15/02), 818 So.2d 1042, 1047. Under that standard, "[t]he trial court's determinations as to whether the worker's testimony is credible and whether the worker has discharged his burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error." Id. (quoting Bruno v. Harbert Int'l, Inc ., 593 So.2d 357, 361 (La. 1992) ). However, "[w]hen legal error interdicts the fact-finding process in a workers['] compensation proceeding, the de novo , rather than manifest error, standard of review applies." Tulane Univ. Hosp. & Clinic v. Lockheed Martin Corp. , 11-0179, p. 3 (La. App. 4 Cir. 6/29/11), 70 So.3d 988, 990(citing MacFarlane v. Schneider Nat'l Bulk Carriers, Inc. , 07-1386, p. 3 (La. App. 4 Cir. 4/30/08), 984 So.2d 185, 188 ). "Likewise, interpretation of statutes pertaining to workers' compensation is a question of law and warrants a de novo review to determine if the ruling was legally correct." Id.

Assignments of Error

Employers list five assignments of error.

(1) The WCJ erred, as a matter of law, in finding that Ms. Jackson's accident was during the course and scope of her employment.
(2) The WCJ erred, as a matter of law, in finding that Ms. Jackson was rendered temporarily totally disabled from October 22, 2014 until April 30, 2015.
(3) The WCJ erred, as a matter of law, in finding that Ms. Jackson was entitled to supplemental earnings benefits under La. R.S. 23:1221(3).
(4) The WCJ erred, as a matter of law, when it ordered Employers to pay outstanding medical bills totaling $92,278.80 on the evidence presented.
(5) The WCJ erred, as a matter of law, when it found that Employers were liable for penalties and attorney's fees under La. R.S. 23:1201(F).

Assignment of Error No. 1: Course and Scope of Employment

Employers argue that Ms. Jackson did not prove by a preponderance of the evidence that she was employed "by anyone" on October 22, 2014, the date of the accident. According to Employers, Ms. Jackson's testimony that she was employed by Tolito Services Company, LLC ("Tolito") was contradicted by the testimony of Becky Tolito, the managing member of Tolito. Employers also assert that the corroborating testimony of Amos Mays, Ms. Jackson's boyfriend at the time of the accident, was biased and not credible. Employers further contend that Ms. Jackson's statement in the emergency room was inconsistent with her later trial testimony.

A threshold requirement in a workers' compensation case is that a plaintiff establish "personal injury by accident arising out of and in the course of employment." Dow v. Chalmette Restaurant, Ltd ., 15-0336, p. 17 (La. App. 4 Cir. 5/18/16), 193 So.3d 1222, 1232 (citing Merrill v. Greyhound Lines, Inc. , 10-0834, p. 6 (La. App. 4 Cir. 6/29/11), 70 So.3d 991 ; La. R.S. 23:1031 ). "The employee has the burden of proving, by a preponderance of the evidence, that the resulting disability is related to an on-the-job injury." Id. In deciding whether the claimant has discharged her burden of proof, the fact-finder "should accept as true a witness's uncontradicted testimony, although the witness is a party, absent circumstances casting suspicion on the reliability of the testimony." Bruno, 593 So.2d at 361. Where, however, there is contradictory testimony, the fact-finder's "reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal even though the appellate court may feel that its own evaluations and inferences are more reasonable." Merrill, 10-0834, pp. 5-6, 70 So.3d at 995.

At trial, there was contradictory testimony as to whether Ms. Jackson was in the course and scope of employment when the accident occurred. Ms. Jackson testified that she was an employee of Tolito and was being paid $50.00 in cash per job. Amos Mays, Ms. Jackson's boyfriend who worked for Tolito, testified that Ms. Jackson was working for Tolito on October 22, 2014 sweeping the floors when the shelf of bottled water fell on her. Ms. Jackson's initial evaluation at the Therapy Center at Biloxi Regional Medical Center dated December 16, 2014 states that "[p]atient was sweeping at work when a shelf full of packaged water fell on top of her leg and ankle causing tibial/fibula fracture that required surgical repair." On the other hand, in the medical records from the emergency room at Biloxi Memorial Hospital, the nurse's notes state that Ms. Jackson said she was shopping at Family Dollar at the time of the accident. At trial, however, Ms. Jackson denied ever making this statement.

In the WCJ's Written Reasons for Judgment, she stated that the "facts surrounding this matter will turn on the credibility of the parties." According to the WCJ, she gave "great weight and credibility" to Ms. Jackson in determining the issue of whether she was in the course and scope of employment at the time of the accident. The WCJ noted Ms. Jackson's testimony that:

• In May 2014, Ms. Jackson was in search of employment and asked Mr. Mays' employer, Becky Tolito, about employment.
• Approximately one week before the accident, she accompanied Mr. Mays and Ms. Tolito to a jobsite in Mississippi to learn and observe the work necessary for employment.
• Although Ms. Jackson was only supposed to observe and learn, she ended up working and was paid $50.00 for the job.
• There was no paperwork executed at the beginning of Ms. Jackson's employment, only the oral agreement to work and get paid per store cleaned.
• On October 22, 2014, Ms. Jackson accompanied Ms. Tolito, Mr. Mays, and another individual to New Orleans to start a job at the Family Dollar store on S. Carrollton Avenue.
• When they arrived at the store, Ms. Jackson went to the back of the store and began to sweep the floors to prepare them for cleaning.

To refute Ms. Jackson's testimony, the Employers rely on the trial testimony of Ms. Tolito, who said that she was with Ms. Jackson on October 22, 2014, and that Ms. Jackson was a visitor who was shopping in the Family Dollar store at the time of the accident. Ms. Tolito denied that Ms. Jackson was an employee of Tolito.

In the court's reasons for judgment, the WCJ discredited Ms. Tolito's testimony, stating that she was "unwilling to believe that Angela Jackson traveled all the way from Mississippi to shop at the Family Dollar Store in New Orleans, Louisiana." The WCJ also pointed out that Ms. Tolito "could provide no further evidence to prove that Angela Jackson was a customer on the night of October 14, 2014 in the Family Dollar Store." Without any corroboration of Ms. Tolito's testimony, the WCJ concluded that Ms. Jackson was an employee of Tolito on October 22, 2014.

We find that the WCJ's evaluations of credibility are reasonable. Where, as here, the trial court's "findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse." Hall v. Global Solution Servs., LLC , 18-0060, p. 3 (La. App. 4 Cir. 6/20/18), 249 So.3d 895, 897. Furthermore, we are satisfied that Ms. Jackson discharged her burden of proving that she was in the course and scope of employment by a preponderance of the evidence. This assignment of error lacks merit.

Assignment of Error No. 2: TTD

Employers contend that the trial court erred in finding that Ms. Jackson was rendered temporarily totally disabled (TTD) from October 22, 2014 until April 30, 2015. According to Employers, Ms. Jackson is not entitled to TTD benefits because she offered no expert medical testimony on whether she sustained any disability from her injury.

The workers' compensation statute provides that an employee who suffers a workplace injury shall be awarded TTD benefits only when the employee proves by clear and convincing evidence that the employee "is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment." La. R.S. 23:1221(1)(C). We decline to follow the First Circuit cases cited by Employers, which require that the employee offer expert medical testimony. This Court only requires that an employee seeking TTD benefits introduce "objective medical evidence" to sustain his or her claim by clear and convincing evidence. Marti v. City of New Orleans , 12-1514, p. 30 (La. App. 4 Cir. 4/10/13), 115 So.3d 541, 560. In determining whether an employee has met her burden of proving by clear and convincing evidence her entitlement to TTD benefits, the WCJ must weigh both medical and lay evidence. Id. , 12-1514, pp. 30-31, 115 So.3d at 560.

The medical records reflect that Ms. Jackson underwent an open reduction and internal fixation of her right ankle on October 30, 2014. She was discharged following her surgery on heavy pain medication. The records show that Ms. Jackson continued with physical therapy until February 3, 2015, at which time she had to discontinue therapy because of lack of insurance coverage. When therapy ended on February 3, 2015, Ms. Jackson was continuing to have significant problems. The physical therapy notes from February 2, 2015 state: "Pt ambulates without AD today with normal gait pattern but will demonstrate antalgic gait pattern after prolong[ed] walking." The therapist's note on the last day of therapy, February 3, 2015, indicates that the pain goal was to decrease pain during functional activities once Ms. Jackson became weight bearing. The therapist's examination on February 3, 2015 reflects that Ms. Jackson was still experiencing moderate pain with palpation, that her strength in the right ankle was 4 out of 5, and that she had decreased range of motion, strength, and functional mobility, and had edema and pain. On February 3, 2015, Ms. Jackson was still on crutches. The therapist noted on this last visit that exacerbating factors included walking and that her standing and dynamic gait balance could not be assessed because she was still non-weight bearing on the right foot.

At trial, Ms. Jackson testified that she had not worked since the accident, but had tried to find work in Gulfport and Biloxi, Mississippi, and in California. She stated that she had applied at fast food restaurants such as McDonald's and KFC, and she also went to a labor staffing agency. Ms. Jackson said that she continued to have problems with her ankle, including hurting and throbbing, especially during cold weather. She testified that she can barely walk on the ankle, which swells when she walks too much. Ms. Jackson said that she has to walk everywhere because she does not have a car. She tries not to put weight on the foot when standing.

Based on this medical and lay evidence, the WCJ found that Ms. Jackson had met her burden of proof with respect to her claim for TTD benefits. We give great weight to this factual finding, and see no manifest error. Bolton v. Grant Parish Sch. Bd., 98-1430, p. 4 (La. 3/2/99), 730 So.2d 882, 885.

Assignment of Error No. 3: SEBs

Employers contend that Ms. Jackson is not entitled to SEBs because she presented no expert medical testimony or medical records supporting her assertion that she suffers from any disability at all.

"The purpose of SEBs is to provide compensation to an injured employee for [her] lost wage-earning capacity." Doane v. Omni Royal Orleans Hotel , 16-0144, p. 5 (La. App. 4 Cir. 10/26/16), 204 So.3d 615, 618. An employee is entitled to SEBs if, as a result of a work-related injury, she is unable to earn at least 90 percent of her pre-injury wages. Id. ; La. R.S. 23:1221(3)(a).

Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case. Doane , 16-0144, p. 5, 204 So.3d at 619. "In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee's ability to earn a wage." Id. (quoting Poissenot v. St. Bernard Parish Sheriff's Office , 09-2793, p. 5 (La. 1/9/11), 56 So.3d 170, 174 ).

Once the employee has established that she is entitled to SEBs by showing that she is unable to earn at least 90 percent of her pre-injury wage, the burden shifts to the employer who, in order to defeat the employee's claim for SEBs, must prove, by a preponderance of the evidence, that: (1) the employee is physically able to perform a certain job; and (2) the job was offered to the employee or that the job was available to the employee in her or the employer's community or reasonable geographic region. Doane , 16-0144, pp. 5-6, 204 So.3d at 619 ; La. R.S. 23:1221(3)(c)(i). The employer can discharge this burden by establishing: (1) the existence of a suitable job within claimant's physical capabilities; (2) the amount of wages an employee with claimant's experience and training can expect to earn in that job; and (3) an actual position available for the particular job at the time the claimant received notification of the job's existence. Doane , 16-0144, p. 6, 204 So.3d at 619.

Finally, if the employer is successful in sustaining its burden, the burden shifts back to the employee to show by clear and convincing evidence, unaided by any presumption of disability, that she is unable to perform the employment offered solely as a consequence of substantial pain. Id. ; La. R.S. 23:1221(3)(c)(ii).

"In determining whether a hearing officer's finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the employee's inability to earn 90% or more of his pre-injury wages." Seal v. Gaylord Container Corp. , 97-0688, p. 8 (La. 12/02/97), 704 So.2d 1161, 1166 (emphasis in original).

The record shows that, after she was forced to discontinue physical therapy, Ms. Jackson continued to experience significant problems with her ankle. On March 1, 2016, almost a year after her last therapy, Ms. Jackson was seen at Memorial Hospital in Gulfport, where she reported that her ankle was so painful that she could not touch it. On that date, the emergency room physician noted that the ankle was swelling. Ms. Jackson reported that she had experienced worsening pain over the last two months, and she described her pain as 7 out of 10, and that it increased with walking.

Ms. Jackson testified that she had attempted to find work, but because of her ankle injury, she found it difficult to stand on her feet for long periods of time. She stated that she does not have a car, and that her ankle swells when she walks too much looking for work. Ms. Jackson said that, although she thinks that she can work part-time, no one would hire her due to her ankle because "they say [she's] a risk." Ms. Jackson testified that although her prior work included housekeeper, welder, pipefitter, painter, and janitor, which required her to be on her feet for long periods of time, she now cannot put a lot of weight on her ankle. Ms. Jackson's eleventh-grade education further restricts her employability. See Peveto v. WHC Contractors , 630 So.2d 689, 693 (La. 1994).

The WCJ stated that she "believe[d] Angela Jackson when she testified that she attempted to secure employment but [was] unable to because of her injury." The WCJ was not clearly wrong in finding that Ms. Jackson established by a preponderance of the evidence that she was unable to earn 90 percent of the wages she was earning at the time of the injury.

After the burden shifted, Employers failed to come forward with information about employment offered to Ms. Jackson or available to Ms. Jackson in a reasonable geographic region. Accordingly, the WCJ was not manifestly wrong in awarding Ms. Jackson SEBs.

Assignment of Error No. 4: Medical Bills

Employers argued in their Motion for New Trial that Ms. Jackson was not entitled to an award of $92,278.80 in medical expenses because Ms. Jackson received benefits from Medicaid which were used to treat her injuries from the October 22, 2014 accident. Employers argue that any claim against them for payment of medical expenses was extinguished by the Medicaid payment.

When the WCJ denied Employers' Motion for New Trial, the WCJ stated in her Reasons for Judgment that, in the January 30, 2017 original judgment, she had not awarded any medical expenses directly to Ms. Jackson. The WCJ also referred to her original judgment, in which she decreed that Employers were liable to reimburse Medicaid for all amounts paid for services rendered to Ms. Jackson as a result of the accident. The WCJ cited La. R.S. 23:1212(B), which provides:

Payments by Medicaid or other state medical assistance programs shall not extinguish these claims and any payments made by such entities shall be subject to recovery by the state against the employer or insurer . (Emphasis added).

This statute gives Medicaid and other state agencies the right to recover from the employer any payments made. Blair , 01-2211, p. 17, 818 So.2d at 1052. The WCJ correctly found that Ms. Jackson was not entitled to direct payment of medical benefits to her. The WCJ also properly ordered Employers to reimburse Medicaid for the amount it paid. This assignment of error is without merit.

Assignment of Error No. 5: Penalties and Attorney's Fees

"A workers' compensation claimant is entitled to penalties and attorney's fees if benefits are withheld arbitrarily, capriciously, or without probable cause by employer." Janneck v. LWCC , 12-0316, p. 6 (La. App. 4 Cir. 10/17/12), 102 So.3d 239, 243 ; La. R.S. 23:1201 ; La. R.S. 23:1201.2. According to this Court:

In determining whether an employer acted arbitrarily, capriciously or without probable cause in denying payment of compensation and medical benefits to trigger the imposition of attorney fees, arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation.

Id.

Penalties and attorney's fees, however, are precluded if the claim is "reasonably controverted." La. R.S. 23:1201(F)(2).

Employers contend that Ms. Jackson was not entitled to penalties and attorney's fees because Ms. Jackson's workers' compensation claim was reasonably controverted. La. R.S. 23:1201(F)(2). "A claim is reasonably controverted when the employer has sufficient factual and/or medical information to reasonably counter evidence presented by the claimant." Thibodaux v. Grand Isle Shipyard, Inc. , 16-0583, p. 18 (La. App. 4 Cir. 12/21/16), 207 So.3d 459, 471. As this Court has found:

"To determine whether a claimant's right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether an employer or its insurer engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time it refused to pay all or part of the benefits owed."

Id. , 16-0583,p. 19, 207 So.3d at 471-72 (quoting Verges v. AmTrust N. Am. Community Leaders Advocacy for Success , 16-0203, p. 5 (La. App. 4 Cir. 8/31/16), 198 So.3d 1267, 1271 ). To reasonably controvert a claim, employers must demonstrate that they made reasonable efforts to ascertain the worker's exact condition before denying benefits. Seal v. Sewerage & Water Bd. of New Orleans , 03-0880, p. 8 (La. App. 4 Cir. 9/17/03), 857 So.2d 1065, 1070. "An employer also has a duty to investigate and make every reasonable effort to assemble and ascertain whether a claim is compensable before denying benefits." Janneck, 12-0316, p. 3, 102 So.3d at 241.

"Whether an employer has failed to reasonably controvert a claim is a question of fact and is subject to the manifest error standard of review." Thibodaux , 16-0583, p. 19, 207 So.3d at 471.

Employers contend that Ms. Jackson's claim was reasonably controverted because Employers reasonably relied on: (1) Ms. Tolito's representation that Ms. Jackson was not employed by Tolito at the time of the accident; and (2) the lack of any evidentiary documents that would support a different conclusion. We disagree.

The WCJ found Ms. Jackson more credible than Ms. Tolito, who said that Ms. Jackson was in the store as a shopper, and not as an employee. The WCJ also took note that Ms. Tolito could provide no further evidence that Ms. Jackson was a customer on the night of October 22, 2014. The WCJ pointed out that, although counsel for Employers referred to a videotape that purportedly showed that Ms. Jackson was shopping, the videotape was not introduced at trial. The WCJ further stated that "[i]t would have been helpful if the other individual present on the night of October 22, 2014 would have provided testimony as to the events occurring that night and the status of [Ms.] Jackson's employment with ... Tolito."

Other than Ms. Tolito's discredited testimony, Employers have failed to produce any testimony to reasonably controvert Ms. Jackson's workers' compensation claim. Employers also failed to produce any documentation indicating that an investigation of the incident occurred. As such, we find that the WCJ was not clearly wrong in awarding Ms. Jackson $2,000.00 in penalties for failure to pay medical benefits, and $2,000.00 in penalties for failure to pay indemnity benefits. We further find the WCJ was not manifestly erroneous in awarding Ms. Jackson $3,000.00 in attorney's fees for the arbitrary and capricious denial of Ms. Jackson's claim.

CONCLUSION

In this matter, conflicting evidence was presented on the issue of whether a work-related accident occurred. The WCJ resolved this conflict in Ms. Jackson's favor.

Based on our review of the record, we cannot say the WCJ was clearly wrong in finding that Ms. Jackson proved by a preponderance of the evidence that she sustained a work-related accident and injury.

We also find the WCJ did not manifestly err in awarding TTD benefits, SEBs, and penalties and attorney's fees based on Employers' arbitrary and capricious denial of Ms. Jackson's claim. We also find no error in the WCJ's judgment directing Employers to reimburse Medicaid for the amount it paid for medical services rendered to Ms. Jackson. Thus, we affirm the WCJ's judgments in their entirety.

AFFIRMED

BELSOME, J., CONCURS IN RESULT

      The record shows that Family Dollar had a janitorial contract with S & S. S & S, in turn, entered into a subcontract with SMS for the work. The WCJ found that Tolito was a subcontractor of SMS.

      Corroboration of a claimant's testimony may be provided by the testimony of fellow workers, spouses, friends, and by medical evidence. Ardoin v. Firestone Polymers, L.L.C. , 10-0245, p.5 (La. 1/19/11), 56 So.3d 215, 219.

      We also note that, at trial, Ms. Jackson testified that Ms. Tolito picked up her and Mr. Mays at their Mississippi apartment on the day of the accident and drove them to New Orleans. Ms. Jackson also testified that Ms. Tolito drove her to the hospital after the accident, and gave Ms. Jackson $200.00 in cash as "pay" when she got out of surgery. This is further circumstantial evidence that Ms. Jackson was in the course and scope of her employment by Tolito when the accident occurred. See Baker v. City of New Orleans , 555 So.2d 659, 661 (La. App. 4th Cir. 1989).

      An antalgic gait is "[a] gait pattern specifically modified to reduce the amount of pain a person is experiencing[.]" Antalgic Gait , McGraw-Hill Concise Dictionary of Modern Medicine (2002), https://medical-dictionary.thefreedictionary.com/antalgic+gait (last visited October 11, 2018).

      La. R.S. 23:1212 prior to its amendment effective August 15, 2001, provided, in part:
      Payment by any person or entity, other than a direct payment by the employee, a relative or friend of the employee, of medical expenses that are owed under this Chapter shall extinguish the claim against the employer or insurer for those medical expenses.... ( Emphasis added.)

      Although the WCJ does not identify that individual, Ms. Tolito testified that her daughter (who worked for Tolito) was in the store on the night of the accident.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Brian Michael HUGHES
    17-458
    Court of Appeal of Louisiana, Third Circuit.
    November 29, 2017
    James P. Lemoine, District Attorney, Thirty-Fifth Judicial District, Jimmy D. White, Assistant District Attorney, Thirty-Fifth Judicial District, P. O. Box 309, Colfax, LA 71417, (318) 627-2971, COUNSEL FOR APPELLEE: State of Louisiana
    Paula C. Marx, Louisiana Appellate Project, P. O. Box 80006, Lafayette, LA 70598, (337) 991-9757, COUNSEL FOR APPELLANT: Brian Michael Hughes
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and Shannon J. Gremillion, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On April 20, 2016, Sergeant Robert Murphy of the Louisiana State Police was traveling southbound on Highway 167 when he noticed Defendant, Brian Michael Hughes, leaning against a vehicle in the teacher's parking lot of Grant Junior High School, near Dry Prong, Louisiana. Sergeant Murphy turned around and approached Defendant. It appeared to Sergeant Murphy that Defendant was under the influence of something, and a field investigation was conducted. Mr. Smith, the principal of the school, arrived on the scene and indicated he wanted Defendant, who did not have permission to be at the school, charged with criminal trespassing. Defendant was arrested, and during a search incident to the arrest, Grant Parish Sheriff's Officer Danny Hebert, located a clear, plastic baggy containing a hard, clear substance which appeared to be crystal methamphetamine in Defendant's pocket.

The seized substance was weighed at the Grant Parish Sheriff's Office on scales at the station. The clear, plastic baggy, later identified in evidence as S-1, was determined to weigh 2.3 grams. In a later weighing of S-1 at the North Louisiana Crime Lab (hereafter Crime Lab), it was determined to weigh 1.73 grams. The substance was also tested by the Crime Lab and determined to be methamphetamine.

Defendant was subsequently charged by bill of information with possession of methamphetamines, a violation of La.R.S. 40:967(C). He was found guilty as charged and was sentenced to five years at hard labor. Defendant is before this court seeking review of his conviction. For the following reasons, we find merit in Defendant's contention that the weight discrepancy of the substance measured by the Grant Parish Sheriff's Department (2.3 grams) and the weight recorded by the analyst at the Crime Lab (1.73 grams) provided reasonable doubt as to whether the lab received and analyzed the same evidence taken from Defendant's pocket. Thus, we reverse Defendant's conviction.

ANALYSIS

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

Defendant was convicted of possession of methamphetamine, which required the State to prove that he was in possession of the methamphetamine and he knowingly possessed it. In his lone assignment of error, Defendant contends the State presented insufficient evidence to prove him guilty of the charged offense, in that the weight discrepancy of the substance measured by the Grant Parish Sheriff's Department (2.3 grams) and the weight recorded by the analyst at the crime lab (1.73 grams) amounted to reasonable doubt that the lab received and analyzed the same evidence taken from Defendant's pocket and weighed at the Sheriff's office.

The analysis for claims concerning sufficiency of the evidence is well settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979) ; State ex rel. Graffagnino v. King , 436 So.2d 559 (La.1983) ; State v. Duncan , 420 So.2d 1105 (La.1982) ; State v. Moody , 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino , 436 So.2d 559 (citing State v. Richardson , 425 So.2d 1228 (La.1983) ). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt. (Emphasis added.)

State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Defendant elicited testimony at trial as to the discrepancy in the weights taken by the Sheriff's Office and at the Crime Lab. Sergeant Hebert of the Grant Parish Sheriff's Office testified that he seized a hard, clear substance in a small, clear, plastic bag from Defendant's front pocket on April 20, 2016, introduced as State's Exhibit # 1 at trial. Sergeant Hebert placed the seized bag inside an evidence bag to be sent to the Crime Lab in Alexandria, where it was determined to be crystal methamphetamine. Sergeant Hebert testified that the substance in the small bag weighed 2.3 grams on the office scale provided by the Crime Lab .

Alana Brauer, a forensic chemist with the Crime Lab, testified that the substance, determined to be methamphetamine, weighed 1.73 grams with the "inner bag" included. This weight discrepancy between the seizing agency total and that of the Crime Lab amounts to slightly more than a twenty-five percent (25%) difference. The State, in an attempt to explain the weight discrepancy, called Ms. Brauer to the stand, who testified concerning the different weights, and how such a result could occur, explaining as follows:

Q Okay, uh, do you know whether or not they field tested the substance out on the field and-and used part of it for that color test that you describe[d] earlier?
A I do not know that.
Q If that happened, that could be a re-cause for the reduction in the weight, is that correct?
A That much of a change, no. That would be a bit excessive for a field test but it's probably the balance itself.
Q What do you mean by that?
A Um, I don't know what kind of balances they have at the station, so our balances per our accreditation standards, they have to be calibrated yearly. Um, and we do monthly checks on them to ensure that they still weigh, if we put a two hundred (200) gram known weight that it weighs two hundred (200) grams.
Q Okay.
A So, it could be whether or not their balances are maintained as to the-to the extent that ours are.

We find this testimony, even when viewing it in a light most favorable to the prosecution, falls short in explaining such a significant weight difference. We find it unreasonable to accept as evidence the mere hyperbolized offering of Ms. Brauer that perhaps the weight discrepancy in excess of twenty-five percent can be explained by a failure to maintain balance and calibration in the scales. This explanation is particularly lacking when considered against the backdrop that the scales in question were provided to the Grant Parish Sheriff's Department by the Crime Lab. Further, the burden to establish the chain of evidence rests with the State. The State failed to present any credible evidence to substantiate Ms. Brauer's attempt, after being pressed for an explanation, to provide a good guess. The State did not offer testimony from or documents prepared by the Sheriff's Office custodian of evidence attesting to the fact that the scale was improperly balanced during the relevant time period, or that there were other similar discrepancies of evidence weighed during the period, all suggestive that the scale was not properly balanced. Ms. Brauer was not the custodian of the weight scale once it was delivered to the Sheriff's Office.

We find very instructive the concurring opinion of Justices Tate and Dennis in State v. Francis , 345 So.2d 1120 (La. 1977). In that case, the substance in question, purchased from the defendant, was initially listed to be 6.53 grams, but was later determined to be 10.79 grams when weighed by a trained chemist. Noting this discrepancy in weight, the concurring justices felt "a serious issue was presented as to whether the chain of custody [was] adequately proved." Id. at 1127. In addressing the pertinent law surrounding a situation such as was presented here where there was a marked discrepancy in weight between the substance originally seized from a defendant and later tested in the lab, the justices stated:

[A] different issue is presented where the evidence suggests substantial doubt as to the identity or connexity between the incriminating object purchased and the object offered for introduction into evidence.
As stated by McCormick on Evidence, Section 212 at pp. 527-28 (2d ed. 1972): "... if the offered evidence is of such a nature as not to be readily identifiable, or to be susceptible to alteration by tampering or contamination, sound exercise of the trial court's discretion may require a substantially more elaborate foundation. A foundation of the latter sort will commonly entail testimonially tracing the 'chain of custody' of the item with sufficient completeness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with."
In the present case, substantial doubt that the substance introduced in evidence (analyzed as containing heroin) is the identical substance purchased from the accused may well arise: The evidence shows that the substance analyzed at the laboratory had a gross weight of 10.79 grams, while the allegedly illegal substance purchased had a gross weight of only 6.53 grams.
Upon the trial court's noting this gross discrepancy in weight, or upon proper objection by the accused, the evidence should have been excluded as not having been shown more probably than not to be relevant; or else, before its admission, the state should have been at least required by way of further foundation to reasonably explain the discrepancy so as preponderantly to show the requisite connexity.

In Francis , the justices concurred because trial counsel did not object to or explore the issue of whether the weight discrepancy cast doubt upon the identity of the substance introduced in evidence as that purchased from the accused. Thus, they felt the State was denied the opportunity to "[produce] a satisfactory explanation for the discrepancy." Id. at 1128. In this case, Defendant explored this issue at trial, and as set forth above, we find the testimony of Alana Brauer does not offer a reasonable, plausible explanation for the weight discrepancy. Her only explanation was that she "[did not] know what kind of balances they have at the station ... [s]o it could be whether or not their balances are maintained as to the-to the extent that ours are." The record establishes the scales at the Grant Parish Sheriff's Office were provided by the Crime Lab .

We find the State failed to reasonably explain the weight discrepancy between the substance seized and weighed at the Sheriff's Office and the substance tested at the Crime Lab and introduced into evidence. Evidence is not relevant unless identified or authenticated as connected with the case. State v. Foret , 196 La. 675, 200 So. 1 (1941). If prejudice results from the trial court's erroneous admission of irrelevant evidence, the defendant upon appeal is entitled to a reversal of his conviction. Id. As the concurring justices noted in Francis , 345 So.2d at 1128, "[u]pon the trial court's noting this gross discrepancy in weight, ... the evidence should have been excluded as not having been shown more probably than not to be relevant."

As Defendant notes, the concurrence in Francis recognized that weight discrepancy can present a relevancy issue separate from chain of custody when the evidence suggests substantial doubt as to the identity or connexity between the item seized and what is introduced into evidence.

In this case, the State presented testimony as to the handling of the evidence. Despite this, the significant weight discrepancy creates reasonable doubt that the Crime Lab received and analyzed the same evidence Sergeant Hebert testified he seized from Defendant's pocket and weighed at the Sheriff's office. Ms. Brauer testified that the substance she examined had a weight of only 1.73 grams, not the 2.3 grams Sergeant Hebert testified he seized from Defendant.

For the reasons expressed above, we find the lack of a reasonable or legally plausible explanation regarding the weight discrepancy between the substance seized from Defendant and what was offered into evidence establishes reasonable doubt that the original item was either exchanged with another or was tampered with in some untoward way. Thus, we find Defendant's guilty verdict must be set aside because the State failed to prove his guilt beyond a reasonable doubt.

DECREE

For the foregoing reasons, Defendant's conviction and sentence on possession of methamphetamines is reversed and vacated.

REVERSED; CONVICTION AND SENTENCE VACATED.


author: PERRET, Judge.

text:
    Bobby MOSES v. WAL-MART STORES, INC.
    CW 17-566
    Court of Appeal of Louisiana, Third Circuit.
    November 29, 2017
    Philip Andre Fontenot, Hallie P. Coreil, Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, L.L.P., P. O. Drawer 2908, Lafayette, LA 70502-2908, (337) 237-1660, COUNSEL FOR DEFENDANT APPLICANT: Wal-Mart Louisiana, LLC
    Renee Yvette Roy, Cory Paul Roy, Brandon J. Scott, Roy & Scott, P. O. Box 544, Marksville, LA 71351, (318) 240-7800, COUNSEL FOR PLAINTIFF RESPONDENT: Bobby Moses
    Benjamin D. James, Roy & Scott, 107 North Washington Street, Marksville, LA 71351, (318) 240-7800, COUNSEL FOR PLAINTIFF RESPONDENT: Bobby Moses
    Court composed of Phyllis M. Keaty, Van H. Kyzar, and Candyce G. Perret, Judges.
   PERRET, Judge.

This case involves a slip and fall in an aisle of Wal-Mart's Mansura location store. Relator, Wal-Mart Stores, LLC, which was sued as Wal-Mart Stores, Inc. ("Wal-Mart"), seeks supervisory review of the trial court's judgment denying its motion for summary judgment. For the following reasons, we hereby grant Relator's writ, reverse the trial court's judgment, and dismiss Respondent's suit with prejudice.

STATEMENT OF THE CASE

Bobby Moses ("Respondent") alleges that he slipped and fell in the Mansura, Louisiana, Wal-Mart on October 21, 2015. In its reasons for ruling, the trial court summarized the facts as follows:

The parties agree, as per video surveillance evidence, at approximately 9:57 a.m., an unidentified companion of plaintiff is seen holding a Subway cup and turns down the condiment aisle. At approximately 9:59:22[,] this unidentified companion of plaintiff exits the condiment aisle on the other end without the Subway cup. Plaintiff enters the condiment aisle at approximately 10:00 a.m. and slips in the area of the spilled Subway soda. It appears that these facts are not in dispute.

Respondent subsequently filed suit against Wal-Mart. Wal-Mart filed a motion for summary judgment alleging that Respondent could not meet his burden of proof regarding Wal-Mart's actual or constructive notice of the spill. In support of its motion, Wal-Mart submitted Respondent's deposition with two still photographs from the surveillance video, the incident report, a picture of the spilled cup attached as exhibits to the deposition; Wal-Mart's asset protection manager's affidavit, with the surveillance video itself as an exhibit to the affidavit; and three time-stamped still photographs from the surveillance video.

In opposition, Respondent argued that he had "met his burden of providing circumstantial factual support for all elements of his claim" and that there existed a genuine issue of material fact "as to whether the period of time that the cup at issue lay on the floor of Wal-Mart's store was sufficiently lengthy" to constitute constructive notice. Respondent did not introduce any evidence to support his claim.

The matter was heard and taken under advisement. On May 5, 2017, the trial court issued written reasons for ruling and denied summary judgment finding "that a genuine issue of material fact exists as to whether Wal-Mart, in the exercise of reasonable care and in accordance with its own internal policies and procedures, would have had constructive notice of the presence of the Subway cup on the floor of its store."

Wal-Mart timely sought supervisory writs, which this court granted in accordance with La.Code Civ.P. art. 966(H) and this court's Internal Rule 30.

LAW AND DISCUSSION

The disposition of a motion for summary judgment is reviewed de novo, "under the same criteria governing the trial court's consideration of whether summary judgment is appropriate." Brown v. Diagnostic Imaging Servs., Inc. , 15-207, p. 3 (La.App. 4 Cir. 8/12/15), 173 So.3d 1168, 1169 (citations omitted). "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3). The mover bears the initial burden of proof; but the burden shifts as follows:

Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

La.Code Civ.P. art. 966(D)(1).

To succeed in a negligence claim against a merchant, La.R.S. 9:2800.6 requires a plaintiff prove that:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Wal-Mart's first assignment of error is that the trial court erred in determining the spill existed for a legally sufficient period of time to impose constructive notice on Wal-Mart, despite the Louisiana Supreme Court's opinion in the factually similar case, Guillot v. Dolgencorp, L.L.C. , 13-2953 (La. 3/21/14), 135 So.3d 1177. In Guillot , the supreme court reversed the lower courts' rulings, and granted summary judgment to defendant for the reasons in Chief Judge Thibodeaux's appellate dissent. Chief Judge Thibodeaux's dissent opined:

I conclude Mr. Guillot failed to prove that Dolgencorp had constructive notice of the allegedly hazardous McDonald's cup. Absent Ms. Ragsdale's deposition testimony, the only evidence in the record regarding the temporal element is the video surveillance indicating the cup was on the floor for roughly two minutes prior to Mr. Guillot's accident. Unlike Broussard [v. Wal-Mart Stores, Inc. , 98-813 (La.App. 3 Cir. 1/20/99), 741 So.2d 65], even if the cup was full of water as stated in Mr. Guillot's testimony, there is no evidence as to the size, state, and scope of a spill that would indicate the cup was there for any more time than the two minutes in the video. While I recognize this was a busy time of year given the Easter season, two minutes, without more, is not a "sufficiently lengthy" time to put a merchant on notice of hazardous conditions. To hold otherwise is unreasonable because it forces a merchant to constantly monitor the physical state of his place of business rather than engage in the primary goal of selling goods.

Guillot v. Dolgencorp, LLC , 13-587, pp. 1-2 (La.App. 3 Cir. 11/27/13), 127 So.3d 124, 131, writ granted , 13-2953 (La. 3/21/14), 135 So.3d 1177 (emphasis added).

Additionally, in Richard v. Liberty Mutual Insurance Co. , 13-26, pp. 6-7 (La.App. 3 Cir. 10/9/13), 123 So.3d 345, 349 (emphasis in original)(citations omitted), this court recognized that " 'whether the time period is sufficiently lengthy ... is [ ] a fact question,' " and upheld the trial court's grant of summary judgment finding that the plaintiff "offered no factual support that the condition which caused her to fall existed for such a 'period of time that it would have been discovered if the merchant had exercised reasonable care.' "

Respondent raises only one disputed "material fact" in his opposition: whether the spill existed for a sufficiently lengthy time that Wal-Mart had constructive notice of the spill. "When constructive notice is at issue, the claimant must come forward with positive evidence showing that the damage causing condition existed for some period of time, and that such time was sufficient to place the merchant on notice of its existence." Hazelett v. Louisiana-1 Gaming , 16-297, p. 5 (La.App. 5 Cir. 12/21/16), 210 So.3d 447, 452 (emphasis added). Respondent did not offer positive evidence that the spill existed for such a period of time that Wal-Mart, in exercising reasonable care, would have discovered it.

Instead, the facts show the spill existed for approximately one minute before Respondent's fall, and that no Wal-Mart employee went down that aisle during that time. The surveillance video shows that Respondent's unidentified companion exited the aisle at 9:59:22 a.m. and that Respondent entered the same aisle at 10:00 a.m. Also, in his deposition, Respondent testified that there was ice on the floor when he fell. The surveillance video does not show any Wal-Mart employee entering that aisle between the time the unknown person left the Subway cup on the floor and the time of the accident. Respondent presented no evidence or testimony to the contrary. Applying the Guillot dissent, "without more," we conclude the spill did not exist for a "sufficiently lengthy" time to impose constructive notice on Wal-Mart. Guillot , 127 So.3d at 131. Therefore we find that Respondent failed to prove he would meet his evidentiary burden of proof at trial regarding Wal-Mart's constructive notice of the spill. This failure results in a finding of no genuine issue of material fact. Richard , 123 So.3d 345.

In its second assignment of error, Wal-Mart asserts the trial court erred in determining there was the possibility of factual issues regarding reasonable care. Similarly, Wal-Mart's third assignment of error argues the trial court erred because it ignored the undisputed video surveillance and, instead, bootstrapped evidence of Wal-Mart's policies from an unrelated case, into the record of this case.

Relying on Sheffie v. Wal-Mart Louisiana, LLC , 13-792 (La.App. 5 Cir. 2/26/14), 134 So.3d 80, writ denied , 14-881 (La. 6/20/14), 141 So.3d 813, the trial court in the instant matter determined there was a possibility that Wal-Mart has policies and procedures, which may require employees to look for hazards. The trial court found this possibility created a genuine issue of material fact regarding whether Wal-Mart, in exercising reasonable care in accordance with those policies and procedures, would have had constructive notice of the spill. The trial court distinguished Guillot because "this disputed fact, if proven, would constitute the 'without more' language ...."

In Sheffie , the plaintiff not only produced testimony regarding Wal-Mart's policies and procedures, but the surveillance video showed five employees walk by the hazardous area. Sheffie , 134 So.3d 80.

In Tate v. Outback Steakhouse of Florida , 16-93, p. 7 (La.App. 1 Cir. 9/16/16), 203 So.3d 1075, 1079, the court affirmed summary judgment and distinguished Sheffie stating: "In this case, Ms. Tate did not present any evidence that anyone noticed or should have noticed, the presence of the clear liquid substance on the floor at any time prior to her fall." As in Tate , Respondent in this case did not present any evidence of Wal-Mart's policies, or any evidence that a Wal-Mart employee should have noticed the spill before Respondent's fall.

For the foregoing reasons and based on the uncontroverted video surveillance evidence of the amount of time that the spill was on the floor before Respondent's alleged fall, the Louisiana Supreme Court's pronouncement in Guillot , 135 So.3d 1177, and this court's ruling in Richard , 123 So.3d 345, we grant the motion for summary judgment filed by Wal-Mart. The trial court's judgment is reversed and Respondent's suit is dismissed with prejudice. Costs of this writ are assessed to Respondent, Bobby Moses.

WRIT GRANTED AND MADE PEREMPTORY. THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. RULE 2-16.3, UNIFORM RULES-COURTS OF APPEAL.

      "Constructive notice" requires Respondent prove "the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care." La.R.S. 9:2800.6(C)(1).