author: BROWN, Chief Judge.

text:
    Timothy Clark GILBERT and Karen Rockett Gilbert, Plaintiffs-Appellants, v. ROBERT ANGEL BUILDER, INC., Defendant-Appellee.
    No. 45,184-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.

      Bodenheimer, Jones and Szwak, by David A. Szwak, Shreveport, for Appellants.
    Hailey, McNamara, Hall, Larmann, & Papale, LLP, by Sean P. Mount, Justin A. Alsterberg, Metairie, for Appellee.
    Before BROWN, WILLIAMS, and DREW, JJ.
   BROWN, Chief Judge.

Lin April 2003, plaintiffs, Timothy and Karen Gilbert, contracted with defendant, Robert Angel Builder, Inc., for the construction of a home on their lot at 209 Evangeline Walk in the Oak Alley Subdivision in Bossier City, Louisiana. The residential construction contract contained an arbitration clause requiring the parties to arbitrate all claims arising under the contract. Plaintiffs found defects and problems in their home and after unsatisfactory attempts by defendant to address and remedy these concerns, plaintiffs filed suit alleging that defendant had breached the parties’ contract. Angel filed an exception of prematurity urging that the Gilberts’ claim was required to be submitted to arbitration in accordance with the terms of the parties’ contract. Defendant also filed a separate suit alleging that plaintiffs were in breach of contract for failing to pay the balance due under the contract. Plaintiffs moved for consolidation of the two actions and filed an exception of prematurity, urging that defendant’s claim also fell under the contract’s arbitration clause. The trial court denied the motion for consolidation and the exception. This court reversed and remanded for consolidation and submission of the entire matter to arbitration. See Robert Angel Builder, Inc. v. Gilbert, 42,340 (La.App.2d Cir.08/15/07), 962 So.2d 1162.

In accordance with the arbitration clause of the construction contract, an arbitrator with Construction Arbitration Services, Inc., was appointed to arbitrate the case. Arbitration was held at the Gilberts’ home in Oak Alley on January 23 and February 23, 2008. On April 10, 2008, the arbitrator, Ben DeVries, found that there was a mutual breach of contract in that 12defendant failed to timely repair both major and minor construction items that fell within his first year warranty obligation and that plaintiffs withheld from defendant funds due under the parties’ contract. The arbitrator then made an award in favor of plaintiffs in the amount of $184,531.65 for miscellaneous warranty repairs, repairs to the master bathroom shower, and repairs to the wood floors, part of the attorney fees requested, and litigation expenses. Defendant was awarded $20,416.88, the balance due under the parties’ contract. The net amount thus due the Gilberts was $114,114.77.

Thereafter, on June 27, 2008, plaintiffs filed a motion to vacate and/or modify and correct the arbitrator’s award. This motion was denied by the trial court on July 1, 2009. Plaintiffs filed a motion and order for a devolutive appeal from the July 1, 2009, judgment on July 13, 2009. On July 9, 2009, plaintiffs filed a motion for judgment based on the arbitrator’s award, and a judgment confirming that award was signed on September 24, 2009. On October 7, 2009, a motion and order allowing plaintiffs to take a devolutive appeal from the September 24, 2009, judgment was signed. On November 13, 2009, plaintiffs requested a writ of fieri facias directing the Bossier Parish Sheriff to seize and sell defendant’s assets necessary to satisfy the September 24, 2009, judgment. Plaintiffs also requested a garnishment of defendant’s bank account. A writ of fieri facias was issued on November 18, 2009, and on December 2, 2009, a check for the amount of the judgment was sent to plaintiffs, and the writ was withdrawn on December 10, 2009. The instant appeal was filed by plaintiffs on December 7, 2009. Defendant filed a motion to dismiss plaintiffs’ appeal on | .-¡December 28, 2009. This motion to dismiss was denied, as was defendant’s request for sanctions, by this court on January 28, 2010.

Discussion

Before analyzing any of plaintiffs’ assignments of error related to the arbitration award, we will address those in which plaintiffs attack the validity of the parties’ contract and the arbitration clause contained in the parties’ contract.

As noted by this court in Farmers Cotton Company, Inc. v. Savage, 30,289 (La.App.2d Cir.06/26/98), 714 So.2d 926, 929, writ denied, 98-2322 (La.11/20/98), 728 So.2d 1288, a party may not seek annulment of the underlying contract after going to arbitration and receiving an adverse judgment. See also Mt. Airy Refining Company v. Clark Acquisition, Inc., 470 So.2d 890 (La.App. 4th Cir.1985), writ denied, 476 So.2d 351 (La.1985). The issue of the validity of the underlying contract is not properly raised either by a petition for confirmation of an arbitration award or by a reconventional demand seeking vacation or modification of an award. Farmers Cotton Company, Inc., supra. Furthermore, the enforcement of the right to arbitration presupposes the existence of a valid contract as a basis for invoking arbitration. George Engine Co., Inc. v. Southern Shipbuilding Corp., 350 So.2d 881 (La.1977); Sun Drilling Products Corp. v. Rayborn, 97-2112 (La.App. 4th Cir.12/03/97), 703 So.2d 818, writ denied, 98-0278 (La.03/13/98), 713 So.2d 475, cert, denied 525 U.S. 1000, 119 S.Ct. 508, 142 L.Ed.2d 422 (1993).

|4The arbitration process was initiated by plaintiffs. The construction contract was signed by plaintiffs after consultation with an attorney. The contract specifically stated in Section 12 that the home was to be built in accordance with the standards set forth by the Louisiana NHWA, and provided further that the NHWA standards were to be supplemented, not supplanted, by those set forth in the “2-10 Home Buyer’s Warranty Booklet” sections entitled “Construction Standards” and “Builder/Warrantor Responsibility.” Section 12 further specified that in the event there was any conflict between the standards, the NHWA standards were controlling and would apply. The arbitrator found that all items at issue in the arbitration fell under defendant’s warranty obligation under both the Louisiana NHWA and the 2-10 warranty. His awards were made accordingly. Furthermore, the trial court found no violation of the NHWA in the arbitrator’s consideration of the 2-10 warranty, and we agree.

Louisiana’s binding arbitration law is set forth in La. R.S. 9:4201, et seq. Arbitration is favored in Louisiana, and arbitration awards are presumed to be valid. Farmers Cotton Co., Inc., supra; Dicorte v. Landrieu, 08-0249 (La.App. 4th Cir.09/10/08), 993 So.2d 799. An arbitration award must be affirmed unless grounds are established by the party attacking the award, in accordance with Louisiana arbitration law, for the vacation, modification or correction of the award. Farmers Cotton Co., Inc. supra; Leon Angel Constructors, Inc. v. Kirk Knott Electric, Inc., 36,752 (La.App.2d Cir.01/31/03), 837 So.2d 743; Wittich v. Wittich, 06-418 (La.App. 5th Cir.11/28/06), 948 So.2d 195.

|<jThe grounds for vacating an arbitration award are: (A) where the award was procured by corruption, fraud, or undue means; (B) where any of the arbitrators evidenced partiality or corruption; (C) where the arbitrators refused to postpone the hearing, upon sufficient cause shown, refused to hear evidence pertinent and material to the controversy, or are guilty of any other misconduct prejudicial to the rights of any party; or (D) where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. La. R.S. 9:4210.

The grounds under which a district court may modify or correct an arbitration award are: (A) miscalculation of figures or incorrect description of any person, thing or property in the award; (B) where an award is rendered upon matters not subject to arbitration; or (C) imperfect form of the award. La. R.S. 9:4211.

A district court reviewing an arbitration award does not sit in an appellate capacity, but confines its determination to whether there exists one or more specific grounds to modify, vacate or correct provided for in La. R.S. 9:4210 or 9:4211. A judicially created ground for vacating an arbitration award is “manifest disregard of the law,” requires more than a simple error of law; instead, it implies that an arbitrator has knowledge and appreciation of a clearly governing legal principle yet decides to pay no attention to it. Leon Angel Constructors, Inc., supra.

Manifest error is not a judicially recognized ground for vacating or modifying an arbitration award. Id. Errors of fact or law do not invalidate Ran arbitration award. National Tea Co. v. Richmond, 548 So.2d 930 (La.1989); Leon Angel Constructors, Inc., supru; Dicorie, supra. Absent the existence of any of the statutory or jurisprudential grounds for vacating or modifying an arbitration award, a reviewing court is prohibited from reviewing the merits of the arbitrator’s decision. Webb v. Massiha, 08-226 (La.App. 5th Cir.09/20/08), 993 So.2d 345, writs denied, 08-2834, 08-2845 (La.02/06/09), 999 So.2d 780, 781 (citations omitted). An appellant may not actually seek review of the merits of the case by couching its argument in terms of arbitrators having exceeded their authority. Wittich, supra; P & M Equities, Inc., v. Latter & Blum, Inc., 96-940 (La.App. 5th Cir.03/25/97), 692 So.2d 1255. Furthermore, a reviewing court may not substitute its own conclusions for that of the arbitrator. Id. As stated by the supreme court in National Tea Co., 548 So.2d at 932-33, judges are not entitled to substitute their judgment for that of the arbitrators chosen (or agreed to) by the parties.

Plaintiffs first assert that the trial court failed to apply the proper standard in reviewing the arbitrator’s award. According to plaintiffs, the arbitrator had a conflict of interest; the award (which is less than that sought by plaintiffs) was procured by undue means; the arbitrator was partial; the arbitrator exceeded his powers by awarding a lesser amount than that established by the evidence and as provided for by Louisiana law; the arbitrator cast aside the applicable New Home Warranty Act standards and remedies and used standards set forth in the Construction Arbitration Services, Inc., (“CAS”) manual and 2-10 Warranty document; and the | arbitrator engaged in sanctionable conduct, resulting in a finding of contempt.

There is no merit to plaintiffs’ claim that the trial court applied an erroneous standard of review. In his written opinion, the trial judge noted that: there was no judicial review of the merits; the arbitration award was conclusive and the district court does not sit in an appellate capacity, but must confine its determination to whether one of the specific statutory grounds (La. R.S. 9:4210, 9:4211) for modifying or vacating applied, or whether the arbitrator’s award reflected a “manifest disregard of the law.” The trial court then analyzed the various grounds for modifying or vacating the arbitration award and the arguments raised by plaintiffs before concluding that none were applicable.

We can summarily address and dismiss plaintiffs’ contentions regarding the arbitrator’s alleged conflict of interest and bias. The record is completely devoid of any objection (prior to the arbitration award’s rendering) by plaintiffs to the arbitrator appointed in this matter. Furthermore, there is absolutely no evidence of any relationship, improper or otherwise, between the arbitrator, Ben DeV-ries, and defendant. While DeVries does serve as a CAS arbitrator, his fee is paid by the parties, and the CAS arbitration rules which, as agreed to by the parties, governed this arbitration, clearly state that CAS shall appoint arbitrators from its panel of persons knowledgeable in residential construction. There is likewise no evidence of bias in this record.

|sAs for plaintiffs’ claims that the arbitrator’s award was procured by “undue means,” the arbitrator exceeded his powers by awarding a lesser amount than that established by the evidence and as provided by applicable law, and the arbitrator did not use standards and remedies set forth in the NHWA but used those set forth in the CAS manual and 2-10 Warranty document, we find these to be nothing more than attacks on the merits of the case which were recognized and addressed as such by the trial court. “Undue means” denotes use of misconduct or other gross deviation from normal arbitration to procure an award, and does not embrace a questionable conclusion drawn from conflicting evidence. See, Firmin v. Garber, 353 So.2d 975 (La.1977). As noted by this court in Leon Angel Constructors, Inc., 837 So.2d at 746, an arbitrator’s award may not be modified or vacated on the basis of the arbitrator’s resolution of disputed facts. Likewise, our review of the arbitrator’s decision shows that he made his findings and awards based upon the NHWA and other applicable legal principles.

19PIaintiffs next urge that the trial court erred in failing to vacate and/or modify and correct the arbitrator’s award in the following respects: by failing to award all proven damages; by failing to award plaintiffs all of their requested attorney fees, litigation expenses, expert witness fees, court costs and judicial interest; and by failing to vacate the award in favor of defendant due to his lack of substantial completion and noncompliance with the contract.

Again, these are all arguments which attack the merits of the arbitrator’s decision, and we will not review the award for errors of law or fact. For each of the above issues raised by plaintiffs, i.e., the proper amount of damages, the amount of attorney fees, expenses, court costs and interest to be awarded, and whether there was substantial completion and/or compliance with the contract by defendant, there was testimony and evidence presented by both parties, and the arbitrator’s findings clearly have basis in the record. This was a very complex and complicated case, and the evidence submitted by both parties was considerable. After reviewing this evidence, a court may well have reached different conclusions as to certain aspects of the case, but we emphasize that a court may not substitute its conclusions for those of the arbitrator. See MMR-Radon Constructors, Inc. v. Continental Insurance Co., 97-0159 (La.App. 1st Cir.03/03/98), 714 So.2d 1, writ denied, 98-1485 (La.09/04/98), 721 So.2d 915.

11flConclusion

For the reasons set forth above, the trial court’s judgment denying plaintiffs’ motion to vacate and/or modify and correct the arbitration award is AFFIRMED. Costs are assessed to plaintiffs, Timothy and Karen Gilbert.

      . We note that following the second day of arbitration and submission of the matter for decision by the arbitrator, for some undisclosed reason and apparently pursuant to his misinterpretation of the CAS Rules of Arbitration and applicable evidentiary rules, the arbitrator destroyed the entirety of the exhibits submitted by both parties. This was prejudicial to both parties; the arbitrator's award in favor of plaintiffs, while attacked by plaintiffs as inadequate, could have also been challenged by defendant. Plaintiffs were required, at their own cost, to recreate the evidentiary submissions and to obtain a transcript of the arbitration proceeding in conjunction with their motion to vacate or modify and correct the arbitrator’s award. This post-arbitration mistake which affected both parties, however, does not negate the fact that the arbitration process itself was fundamentally fair. In other words, the arbitrator afforded the parties with an opportunity to be heard and present relevant and material evidence and argument before the arbitrator. See Pennington v. CUNA Brokerage Securities, Inc., 08-0589 (La.App. 1st Cir. 10/01/08), 5 So.3d 172, writ denied, 08-2600 (La.01/09/09), 998 So.2d 723, citing Sheldon v. Vennonty, 269 F.3d 1202 (10th Cir.(Kan.) Oct. 31, 2001).


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    Julius WHITE Plaintiff-Appellant, v. BHB OIL and/or M & M OIL, Defendant-Appellee.
    No. 45,173-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.

      Judi Milke, for Appellant.
    Rabalais, Unland & Lorio by John J. Rabalais, Janice B. Unland, Gabriel E.F. Thompson, Robert T. Lorio, Mandeville, for Appellee, BHB Oil, Inc.
    Before STEWART, GASKINS and LOLLEY, JJ.
   GASKINS, J.

| )This appeal concerns an employee/inmate who was injured while participating in a work-release program. The workers’ compensation judge (WCJ) denied the claimant’s motion to compel and granted summary judgment in favor of the employer, dismissing the claimant’s suit. The claimant appealed. We affirm the WCJ’s decision.

FACTS

The claimant, Julius White, was an inmate at the Caddo Correctional Center (CCC) on drug charges. He was allowed to work outside CCC pursuant to the sheriffs work-release program. He assisted in a drilling operation for BHB Oil, Inc., for seven dollars an hour. On March 7, 2007, a pipe fell on his right hand, resulting in an amputation of the right index finger between the first and second joints. He was off work for about a week, then returned to light duty. In May 2007, the claimant was released to full-duty employment. However, on May 25, 2007, he was terminated by BHB Oil. In November 2007, after he was sent to a halfway house, the claimant was hired as a pallet worker by Nelson & Son; he was paid the same rate he earned for BHB Oil. The claimant was released from incarceration on April 14, 2008.

In February 2008, the claimant had filed a disputed claim for compensation with the Office of Workers’ Compensation (OWC). On March 14, 2008, the employer filed a general denial.

On July 29, 2008, the employer filed a motion for summary judgment. It sought dismissal on the basis that, pursuant to La. R.S. 23:1201.4, the claimant forfeited any entitlement to indemnity benefits during the 56 weeks | ahe remained incarcerated after the injury. It also maintained that the claimant admitted in his deposition that he suffered no subsequent functional limitations as a result of the injury and that he required no further medical treatment. The employer noted that the claimant was released to full employment within a short time after the injury. Accordingly, it maintained that the claimant was not entitled to any benefits.

On August 5, 2008, the claimant filed a request for admission, interrogatories and production of documents. On August 25, 2008, he filed a motion to compel the employer to respond to his discovery requests. In opposition, the employer asserted that the claimant was “fishing” to support an already pending concurrent tort claim.

On September 12, 2008, the claimant filed an opposition to the motion for summary judgment. At a hearing held that same day, the WCJ denied the claimant’s motion to compel. However, he granted the employer’s motion for summary judgment. He also directed that the claimant was to see Dr. Barron O’Neal at the employer’s expense; the employer had already authorized the visit. The WCJ ordered a full dismissal with prejudice.

On October 6, 2008, the claimant filed a notice of intent to seek writs and a motion for a stay. The WCJ stayed the proceedings. In pleadings to this court, the claimant argued that the OWC erred in denying the motion to compel and in denying him a reasonable time for a loss assessment. On | November 6, 2008, this court denied the writ on the showing made and stated that the claimant could seek review in conjunction with an appeal from a final judgment dismissing his compensation claim. On April 24, 2009, the WCJ lifted the stay order he previously granted.

In the meantime, in March 2009, the claimant filed a motion for reconsideration of the proposed judgment. He also submitted a report from Dr. O’Neal assessing impairment percentages to the claimant as a result of the loss of half of his index finger. The employer opposed the motion for reconsideration on the basis that there was no statutory authority for it and proposed that the claimant should be sanctioned for filing a frivolous motion. Additionally, the employer argued that Dr. O’Neal’s report did not change the WCJ’s prior ruling. The doctor assessed an impairment rating of 50 percent to the right index finger, which would allow for an award of 15 weeks of compensation benefits. However, since the claimant was incarcerated for those 15 weeks, the employer contended that the benefits were forfeited.

A hearing was held on May 8, 2009. The claimant’s motion for reconsideration was denied. Judgment reflecting the WCJ’s rulings on September 12, 2008 was signed; it denied the claimant’s motion to compel, granted the employer’s motion for summary judgment, and dismissed the claimant’s petition. On May 20, 2009, the claimant requested written reasons for judgment. On June 1, 2009, the WCJ issued written reasons wherein he adopted the oral reasons he gave at the hearings on September |412, 2008, and May 8, 2009, as well as the arguments made by the employer on those dates. The claimant appealed the May 8, 2009, judgment.

MOTION TO COMPEL

The claimant argues that the WCJ erred in denying his motion to compel. He maintains that he should have been allowed more time to depose the owner of BHB Oil and obtain a loss assessment from Dr. O’Neal. In workers’ compensation cases, discovery shall be governed by La. C.C.P. art. 1421, et seq. L.A.C. 40:1.5915. A party generally may obtain discovery of any information that is relevant to the subject matter involved in the pending action. La. C.C.P. art. 1422. The court has broad discretion in ruling on discovery matters, including the discretion to deny discovery. La. C.C.P. art. 1426; Laburre v. East Jefferson General Hospital, 555 So.2d 1381, 1385 (La.1990). In its discretion, a court can refuse or limit discovery of matters not relevant, unreasonably vexatious, or tardily sought. Lehmann v. American Southern Home Insurance Company, 615 So.2d 923 (La.App. 1st Cir.1993), writ denied, 617 So.2d 913 (La.1993); Guillory v. Bofinger’s Tree Service, 2006-0086 (La.App. 1st Cir.11/3/06), 950 So.2d 682.

The information sought by means of the motion to compel — deposition testimony by the owner of the employer on a possible retaliatory discharge claim — was not relevant to the issues being litigated before the WCJ. Also, Dr. O’Neal’s report merely corroborated the information already in the record in the claimant’s deposition that he had lost half of his | findex finger. Therefore, we find that the WCJ did not abuse his broad discretion in denying the claimant’s motion to compel.

FORFEITURE OF BENEFITS DURING INCARCERATION

Law

The appellate court’s review of a grant or denial of a summary judgment is de novo. Independent Fire Insurance Company v. Sunbeam Corporation, 1999-2181, 1999-2257 (La.2/29/00), 755 So.2d 226; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

In pertinent part, La. R.S. 23:1221 establishes the basis for awarding permanent partial disability (PPD) benefits:

(4) Permanent partial disability. In the following cases, compensation shall be solely for anatomical loss of use or amputation and shall be as follows:
(b) For the loss of a first finger, commonly called the index finger, sixty-six and two-thirds percent of wages during thirty weeks.
(o) In all cases involving a permanent partial anatomical loss of use or amputation of the members mentioned herein-above, compensation shall bear such proportion to the number of weeks provided for herein for the total loss of such members as the percentage loss or impairment to such members bears to the total loss of the member, [ (¡provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.

Work-release inmates are employees of their private employers and are entitled to workers’ compensation benefits. See Clinton v. Reigel By-Products, Inc., 42,497 (La.App.2d Cir.9/19/07), 965 So.2d 1006, writ not considered, 2007-2239 (La.2/15/08), 976 So.2d 168; Rogers v. Louisiana Department of Corrections, 43,000 (La.App.2d Cir.4/30/08), 982 So.2d 252, writ denied, 2008-1178 (La.9/19/08), 992 So.2d 931; Reynolds v. Louisiana Plastic, 44,803 (La.App.2d Cir.10/28/09), 26 So.3d 149.

La. R.S. 23:1201.4, which pertains to forfeiture of workers’ compensation benefits during an employee’s incarceration, states:

The employee’s right to compensation benefits, including medical expenses, is forfeited during any period of incarceration, unless a workers’ compensation judge finds that an employee has dependents who rely on a compensation award for their support, in which case said compensation shall be made payable and transmitted to the legal guardian of the minor dependent or other person designated by the workers’ compensation judge and such payments shall be considered as having been made to the employee. After release from incarceration, the employee’s right to claim compensation benefits shall resume. An employee who is incarcerated but is later found to be not guilty of felony criminal charges or against whom all felony charges have been dismissed by the prosecutor shall have the prescriptive period for filing a claim for benefits under this Chapter extended by the number of days he was incarcerated. [Emphasis added.]

In Clark v. Mrs. Fields Cookies, 1997-0397 (La.1/21/98), 707 So.2d 17, 19, the supreme court stated that the statute provided for the temporary forfeiture of the right to receive benefits so that inmates will not be receiving compensation checks while incarcerated.

In Jowers v. Liberty Construction Company, 32,068 (La.App.2d Cir.6/16/99), 740 So.2d 735, this court stated:

[TJhere can be little doubt that the legislature’s intent in enacting the statute was not to punish an injured worker for being incarcerated, but to recognize that, during a term of incarceration, a worker requires no upkeep and maintenance because the state is providing the worker’s needs through the correctional facilities. To do otherwise would allow an individual whose basic needs were already being supplied by the state to receive additional compensation benefits. Such a result would be a windfall for the incarcerated worker and would run counter to the general principle underlying our wage-loss benefit coordination laws, designed in part to preclude an employee from contemporaneously collecting duplicative wage-loss benefits.

The court then went on to mention the exception in La. R.S. 23:1201.4 for situations where the WCJ finds that the incarcerated person’s dependents rely on a compensation award for support; it noted that such an exception was in harmony with the statute’s previously discussed rationale.

The words of a law must be given their generally prevailing meaning. La. C.C. art. 11. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9.

| ⅝Discussion

Application of the provisions of La. R.S. 23:1221(4)(b) and (o) to the facts of the instant case would result in the claimant — who suffered amputation of 50 percent of his index finger — being entitled to PPD benefits of 66¾ percent of his wages for a period of 15 weeks. In argument before this court, counsel for the claimant asserted that these benefits would total slightly more than $3,000.00.

While the claimant was generally entitled to workers’ compensation benefits, that right was limited by the provisions of La. R.S. 23:1201.4, which called for the forfeiture of his right to compensation benefits while incarcerated. Although the claimant argues that his right to compensation is merely suspended, the statute uses the word “forfeited.” Forfeiture is defined as “[t]he divestiture of property without compensation” or “[t]he loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of. duty.” Black’s Law Dictionary (8th ed.2004). The claimant was entitled to only 15 weeks of compensation for the partial amputation of his finger. Since he remained incarcerated for 56 weeks after the injury, he became divested of his right to the entire award. While the statute provides for the resumption of an employee’s right to claim benefits after his release from incarceration, it does not indicate that the claimant is allowed to go back and recoup benefits that would have accrued while he was incarcerated.

|3Under the plain wording of the statute, this claimant’s right to compensation benefits was forfeited during his period of incarceration. Accordingly, like the WCJ, we find that summary judgment in favor of the employer is appropriate in the instant case.

Because we affirm the WCJ’s granting of summary judgment in favor of the employer, the claimant’s requests for penalties and attorney fees are pretermitted.

CONCLUSION

The WCJ’s denial of the motion to compel is affirmed. Additionally, the WCJ’s decision to grant summary judgment in favor of the employer is affirmed.

Costs of this appeal are assessed against the appellant, Julius White.

AFFIRMED.

      . Counsel for the claimant stated that the motion to compel was primarily aimed at deposing Mark Wooldridge, the owner of BHB Oil, about the reasons for the termination of the claimant's employment.

      . The issue considered in the Clark case was whether incarceration suspended the running of prescription for filing a workers' compensation claim while an injured worker remained confined. The court held that it did not. The last sentence of the current version of La. R.S. 23:1201.4 was added in 1999 to legislatively overrule that holding for inmates later acquitted or against whom all felony charges were dismissed. In Gobert v. S.W.D.I., L.L.C., 2008-1598 (La.App. 1st Cir.5/5/09), 13 So.3d 608, the first circuit found that the inmate employee in that case was not in the group entitled to a suspension of prescription during incarceration. The court concluded that while Gobert could not collect workers' compensation benefits while incarcerated, he had the right to file his cause of action while incarcerated.

      . We interpret this portion of the statute as meaning that had the claimant been entitled to 15 weeks of compensation but remained incarcerated for only five weeks, he would have been entitled to claim the right to benefits for the 10 weeks remaining upon his release from confinement.

      . According to his deposition testimony, the unmarried claimant had no children. The exception to forfeiture in La. R.S. 23:1201.4 for dependents relying upon a compensation award for support is inapplicable in this case.


text:
    STATE of Louisiana, Appellee, v. John E. JACKSON, Appellant.
    No. 45,114-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.
    James E. Beal, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Robert N. Anderson, John T. Pham, Assistant District Attorneys, for Appellee.
    Before BROWN, PEATROSS, and LOLLEY, JJ.
   BROWN, Chief Judge.

| defendant, John E. Jackson, was charged by an amended bill of information with possession of cocaine, possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, possession of methamphetamine with intent to distribute, and aggravated flight from an officer, all offenses taking place on July 22, 2006. A jury found him guilty on all counts. The court imposed concurrent and consecutive sentences amounting to 37 years at hard labor. Defendant now appeals. Defendant’s convictions and sentences are affirmed.

Facts

Officer Dean Baugh and Officer Jeremy Kent from the Monroe Police Department attempted to stop defendant because of a traffic violation; however, defendant fled and was pursued in a high speed chase through a residential neighborhood. Defendant drove his car at 70 m.p.h. through children’s play zones and residential yards, finally stopping in a field. He then abandoned his vehicle and fled on foot. Officer Baugh was able to corner defendant under a car, and when defendant refused to come out, the officers were forced to use pepper spray. Once defendant was removed from under the car, he was read his Miranda rights and searched. The ^search was performed by Officer Craig. Honeycutt, who found a small bag of cocaine and $2,201 in cash on defendant’s person.

Defendant was arrested and transported to the Ouachita Correctional Center. Defendant later confessed that the cocaine belonged to him. A passenger in defendant’s car, Audrey Hannon, gave the police the address of defendant’s family home, 3913 Carver Avenue, and told them that she had seen defendant’s stash of drugs in one of the bedrooms. Defendant admitted to the police that he had a key to the house and had been there the day before his arrest, but said he did not reside there. Upon arriving at the address the officers obtained consent to search the home from one of the residents, James Jackson. Once inside the home, the officers found crack cocaine, methamphetamine, cocaine, and marijuana stuffed inside a recliner in the bedroom referred to by Ms. Hannon.

Discussion

Jury Venire

Prospective juror Sammie Staten allegedly told three other members of the Panel Two venire, Casey Tripp, Shannon Wise, and Timothy Lewis, that defendant “had a rap sheet as long as his arm and he’s been in trouble his whole life. [Staten] doesn’t know why he’s having a trial.” Tripp immediately reported these remarks to the court, prompting defense counsel to move to have the entire Panel Two venire quashed. The court questioned Wise and Tripp. Wise told the court that the remarks had been made to two or three other people, and that there were other members of the venire panel in the hall but they weren’t listening. Tripp stated that “there were other |speople that were walking to and from the bathroom but they-if they caught any part of that conversation it was just a few words.” The court then spoke to Staten and asked him what he had told the other jurors and who might have heard him. Staten stated that he had said what he knew about defendant from growing up with him.

Tripp, Wise, and Staten were all told not to mention the prejudicial remarks to the other potential jurors. Lewis was not examined because he had already been removed by a peremptory challenge before the remarks were reported. The trial court denied the motion to quash the entire panel, but Tripp, Wise, and Staten were excused for cause. Thus, the only remaining members of the Panel Two veni-re who could have heard the comments were Paula Gates and Grace King, both of whom served on the jury. The court, the state, and defense counsel discussed the matter and the defense declined to have Gates and King examined:

Mr. Anderson: And Mr. Walker had made a motion to quash the entire panel and then that was denied, and then made a motion for mistrial which was denied and I just wanted to make clear that the opportunity existed for us to question those two remaining witness— two remaining jurors. I think it was Ms. Watson maybe — I may have mixed them up.
The Court: I understand.
Mr. Anderson: But those two remaining jurors but that has not been done, nor was it requested.
The Court: I agree. The record will reflect — I don’t know if the record reflects that but that’s what happened so now the record will reflect it. If I’m correct, Mr. Walker, you declined to insist upon a re-examination of those two?
Mr. Walker: Right. I’d already made my motion on grounds that I wanted.

|/There is no indication from the record that either Gates or King heard the remarks. Tripp, Wise, and Staten all reported that they did not believe anyone else heard Staten’s comments. The defense could have examined Gates and King, but chose not to do so. In addition, the court instructed the jury at the beginning of the trial not to discuss the trial stating, “do not permit any person to discuss the case in your presence and if anyone does so despite your telling that person not to, report that fact to the court as soon as you can.” The court also instructed the jury at the close of trial on the presumption of innocence.

A petit jury venire “shall not be set aside for any reason unless fraud has been practiced, some great wrong committed that would work irreparable injury to defendant, or unless persons were systematically excluded from the venires solely upon the basis of race.” La. C. Cr. P. art. 419.

Defendant bears the burden of proving the grounds for setting aside the venire. State v. Carmouche, 01-0405 (La.05/14/02), 872 So.2d 1020; State v. Lee, 559 So.2d 1310 (La.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991).

The defense failed to meet its burden of proving that this particular venire panel should have been set aside because no showing of prejudice has been made, much less a showing that the prejudice was so severe a fair trial was impossible. Therefore, the trial court did not abuse its discretion in failing to set aside this particular venire panel.

| ^Defendant next contends that he was prejudiced because he used peremptory challenges on jurors who could have been challenged for cause, including Lewis and all of the Panel Two jurors who were dismissed by a peremptory challenge. The defense, however, did not ask to chai-lenge the prospective jurors for cause. Therefore, the trial court was not given the opportunity to deny the challenge, erroneously or otherwise.

Excessive Sentence

The defense argues that defendant’s sentence is grossly disproportionate to the severity of the crime, and serves no useful purpose. The defense argues that defendant is 55 years old and a 37-year sentence amounts to a life term.

The trial court considered defendant’s extensive criminal history, spanning thirty-three years, with four felonies and three pending cases at the time of sentencing. The court noted that the only significant break in defendant’s criminal activity was a fifteen-year term he spent in prison. The court concluded that, “[t]he criminal record is the main factor that has resulted in me imposing the maximum sentences that may be imposed in connection with these cases.... ”

The trial court throughly articulated the factual basis for sentencing when he outlined defendant’s substantial criminal activity over the past three decades. It is clear from the record that defendant is a career criminal. He spent fifteen years in prison for the distribution of drugs only to be arrested four years after his release for the instant offenses, which include possession with intent to distribute cocaine, marijuana, and | (¡methamphetamine. Though defendant’s age may be a mitigating factor, it is outweighed by defendant’s refusal to adhere to the law. Further, three 30-year sentences were ordered to be served concurrently. The concurrent and consecutive sentences are not constitutionally excessive, and do not shock the sense of justice. The trial court did not abuse its discretion. State v. Smith, 01-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980).

Conclusion

For the foregoing reasons, defendant’s convictions and sentences are affirmed.

      . Defendant was sentenced to five years at hard labor on count one (possession of cocaine); thirty years at hard labor on each "possession with intent to distribute” count (count two-possession of cocaine with intent to distribute-the first two years to be served without benefits; count three-possession of marijuana with intent to distribute; and count four-possession of methamphetamine with intent to distribute); and two years at hard labor on count five (aggravated flight from an officer). Counts two, three, and four were ordered to run concurrently; counts one and five are to run consecutively to each other and to the thirty-year concurrent sentence imposed on the "possession with intent to distribute” counts, for a total sentence of thirty-seven years.


author: DREW, J.

text:
    STATE of Louisiana, Appellee, v. Tiffany Nicole JOHNSON, Appellant.
    No. 45,111-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.

      Stephen Adger Glassell, Shreveport, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, Dale Newton Montgomery II, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   DREW, J.

11Tiffany Johnson entered a plea of guilty to aggravated second degree battery. She was sentenced to five years at hard labor. She now appeals, predicated upon the trial court’s failure to properly consider her claim of self-defense and upon her receipt of an excessive sentence. We affirm in all respects.

FACTS

Appellant was involved in a fight with Anntarri Vinson over Labroderick Wilson. Johnson and Vinson had a confrontation and began fighting in the CVS Pharmacy parking lot on East Texas Street in Bossier City. At some point Johnson pulled out a knife and stabbed Vinson multiple times in the face, upper chest, and hands. An officer stopped the fight. Vinson was taken to LSU Medical Center, where she spent three days being treated for the wounds and for internal bleeding. Vinson has several scars including a prominent scar on her cheek. Her medical bills were $8,727.40, of which she paid $800 out of her pocket.

The original bill of information charged Johnson with attempted second degree murder. The charge was later amended down to aggravated second degree battery. La. R.S.14:34.7. In full compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), she entered her plea, subject to a presentence investigation report.

A sentencing hearing was held on May 19, 2009. The trial court informed Johnson of the considerations it took when determining her sentence, including:

• the physical and economic harm the victim suffered;

12* Johnson’s age (22 years old when the incident occurred);

• Johnson’s clean criminal record; and

• the fact that she had a job and was working on her GED.

The court carefully reviewed La. C. Cr. P. art. 894.1. In particular, it stated that:

• the crime caused significant permanent injury to the victim;

• a dangerous weapon was used in the crime;

• there were no grounds to justify or excuse this crime;

• it reviewed letters from Johnson’s mother and pastor;

• it was troubled by this crime, but the victim was seriously injured;

• the victim wanted Johnson to receive the maximum sentence;

• although the two young people were engaged in a fight, Johnson went too far when she pulled out a knife; and

• a lesser sentence would deprecate the seriousness of the offense.

On June 17, 2009, the defense filed a motion to reconsider the sentence and requested that consideration be given to the fact that the defendant was acting in self-defense. On July 15, 2009, the motion to reconsider the sentence was denied. The appeal was then filed.

DISCUSSION

The defendant’s first assignment of error is that the trial judge did not fully consider her claim of self-defense, which would have been her argument had the case gone to trial. According to the defendant, the facts show that the victim was the aggressor, and that after the fight, the victim got a knife. Defendant refers the court to La. C. Cr. P. art. 894.1.

_[oLa. C. Cr. P. art. 894.1 pertinently states:

A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if any of the following occurs:
* * *
(8) A lesser sentence will deprecate the seriousness of the defendant’s crime.
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(9) The offense resulted in a significant permanent injury or significant economic loss to the victim or his family.
(10)The offender used a dangerous weapon in the commission of the offense.
(24) The defendant acted under strong provocation.
(25) There were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense.
(26) The victim of the defendant’s criminal conduct induced or facilitated its commission.

La. R.S. 14:34.7(B) pertinently states:

Whoever commits the crime of aggravated second degree battery shall be fined not more than ten thousand dollars or imprisoned, with or without hard labor, for not more than fifteen years, or both.

There are no facts which support the claim of self-defense in the record or in the PSI. Further, even if there were, La. C. Cr. P. art. 894.1 clearly states that no single factor is dispositive. Therefore, this assignment is without merit.

Her second assignment is that the defendant’s sentence is excessive. She argues that she is a first offender and a responsible member of society who showed remorse by apologizing in court, though her actions were in self-defense.

|4Our law relative to the review of exces-siveness claims is well settled.

The trial court in this case clearly took cognizance of La. C. Cr. P. art. 894.1, noting that the crime caused significant permanent injury and economic loss to the victim. A dangerous weapon was used to commit the crime. There were no grounds to justify or excuse this crime.

The defendant was initially charged with attempted second degree murder, a crime with an exposure of 10 to 50 years at hard labor, without benefits. The aggravated second degree battery guilty plea exposed the | sdefendant to 15 years, with or without hard labor. This benefit alone is significant. The five years at hard labor is one-third of the maximum possible penalty. This low range sentence is not disproportionate when considering the seriousness of the crime.

DECREE

For the foregoing reasons, the defendant’s sentence and conviction are AFFIRMED.

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.
      Also, a sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 92-3120 (La.9/10/93), 623 So.2d 1276. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992). A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792, State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.