author: GUIDRY, J. PETTIGREW, J.,

text:
    Zaidra Ardith GRIMES, individually and on behalf of her minor child, Zavian S. Walker, and Paul W. Walker v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY; Karen Kay Solar, M.D.; Timothy George Andrus, M.D.; and Woman’s Hospital of Baton Rouge/Woman’s Hospital Foundation.
    No. 2009 CA 0292.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 11, 2009.
    Rehearing Denied Dec. 9, 2009.

      Charles H. Munsterman, Alexandria, LA, for Plaintiffs/Appellees Zaidra A. Grimes, individually and on behalf of her minor child Zavian S. Walker, and Paul Walker.
    Mary H. Thompson, Baton Rouge, LA, for Defendant/Appellee Woman’s Hospital Foundation.
    Tara S. Bourgeois, Herbert Mang, Jr., Baton Rouge, LA, for Defendants/Appellants Karen Kay Solar, M.D. and Timothy George Andrus, M.D. and Louisiana Medical Mutual Insurance Company.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

Lin this medical malpractice action, defendants, Karen Kay Solar, M.D., Timothy George Andrus, M.D., and Louisiana Medical Mutual Insurance Company, appeal from a judgment of the trial court granting summary judgment in favor of defendant, Woman’s Hospital Foundation (Woman’s Hospital). For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On January 19, 2003, Zaidra Grimes was admitted to Woman’s Hospital in labor under the care of obstetrician/gynecologist Dr. Karen Solar. During the course of delivery, a complication of shoulder dysto-cia occurred whereby the baby’s shoulder became lodged on Ms. Grimes’ pubic bone. Alter the McRobert’s maneuver was performed, suprapubic pressure was applied, and assistance was requested, a baby girl, Zavian Walker, was born. It was later determined that Zavian suffered a brachial plexus injury during the delivery.

Thereafter, Zaidra Grimes, individually and on behalf of her minor child, Zavian, and Paul Walker, Zavian’s father, filed a complaint with the Commissioner of Administration requesting formation of a medical review panel, asserting that Dr. Solar and Woman’s Hospital failed to meet the appropriate standard of care in delivering Zavian. They also alleged that Dr. Solar and Dr. Andrus, the obstetrician/gynecologist who oversaw Ms. Grimes’ prenatal care, failed to fully inform Ms. Grimes of the known risk factors of shoulder dystocia and failed to inform her of her right to elect a cesarean section when it was known that she was carrying a large baby and was at significant risk for the occurrence of a shoulder dystocia. On October 5, 2005, the medical review panel issued an opinion finding that there was no breach in the standard of care by Dr. Solar, Dr. Andrus, or Woman’s Hospital.

|sOn January 17, 2006, Ms. Grimes, individually and on behalf of Zavian, and Mr. Walker filed a petition for damages, naming- Dr. Solar, Dr. Andrus, Louisiana Medical Mutual Insurance Company (LAMMI-CO) and Woman’s Hospital as defendants. In their petition, plaintiffs asserted that defendants failed to assess the risk of a shoulder dystocia complication, applied inappropriate and excessive traction and/or rotation on the head and neck of Zavian during delivery, and ordered and/or permitted an obstetrical nurse employed by Woman’s Hospital to apply inappropriate pressure on Ms. Grimes’ stomach in an attempt to deliver Zavian’s left shoulder.

On February 28, 2007, Woman’s Hospital filed a motion for summary judgment asserting plaintiffs were unable to establish that Woman’s Hospital breached its duty to the plaintiffs or that any breach was the cause of plaintiffs’ injuries. Specifically, Woman’s Hospital relied on Hollingsworth v. Bowers, 96-257 (La.App. 3rd Cir.12/30/96), 690 So.2d 825, for the proposition that Dr. Solar was in control of the nurses during the delivery of Zavian and as such, Dr. Solar, and not Woman’s Hospital, was liable for any alleged negligent conduct of the nurses present during the delivery. Woman’s Hospital subsequently filed a motion to amend its motion for summary judgment to remove its argument regarding causation, thereby making the sole issue before the court the nurses’ compliance with the orders and instructions of the treating physician during the delivery of Zavian, i.e. whether Dr. Solar, and not Woman’s Hospital, was liable under Hollingsworth for the actions of the nurses during Zavian’s delivery. Dr. Solar, Dr. Andrus, and LAMMICO opposed Woman’s Hospital’s motion for summary judgment. Following a hearing, the trial court rendered judgment in favor of | .Woman’s Hospital and dismissed plaintiffs’ claims against it with prejudice. Dr. Solar, Dr. Andrus, and LAMMICO now appeal from this judgment.

DISCUSSION

On appeal, summary judgments are reviewed de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Lieux v. Mitchell, 06-0382, p. 9 (La.App. 1st Cir.12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La.6/15/07), 958 So.2d 1199. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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(B); Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230-231.

The burden of proof on a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’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 that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

A fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. Because it is the applicable substantive law that determines materiality, whether or not a | ^particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Charlet v. Legislature of the State of Louisiana, 97-0212, p. 7 (La.App. 1st Cir.6/29/98), 713 So.2d 1199, 1203, writs denied, 98-2023, 98-2026 (La.11/13/98), 730 So.2d 934.

It is well established that a hospital can be liable for the negligence of its employees under the doctrine of responde-at superior. Little v. Pou, 42,872, p. 13 (La.App. 2nd Cir.1/30/08), 975 So.2d 666, 674, writ denied, 08-0806 (La.6/6/08), 983 So.2d 920. In a malpractice claim against a hospital, the plaintiff is required to prove by a preponderance of the evidence that the hospital, acting through its nurses, owed the plaintiff a duty to protect against the risk involved (or the applicable standard of care), that it breached that duty (or the applicable standard of care), and that the breach caused plaintiffs injury. See Little, 42,872 at p. 13, 975 So.2d at 674; Hypolite v. Columbia Dauterive Hospital, 07-357, p. 6 (La.App. 3rd Cir.10/3/07), 968 So.2d 239, 243.

In the instant case, Woman’s Hospital asserts that based on the third circuit’s decision in Hollingsworth, Dr. Solar, and not Woman’s Hospital, is vicariously liable for any alleged negligence of the nurses employed by Woman’s Hospital and present during Zavian’s delivery because Dr. Solar was “in charge” of the delivery room. Hollingsworth involved facts substantially similar to those alleged in the instant case except that in Hollingsworth, plaintiffs voluntarily dismissed the hospital involved. In Hollingsworth, the third circuit, in upholding a physician’s vicarious liability for a nurse’s negligence in applying fundal pressure during a shoulder dystocia complication, stated:

Generally, physicians are in charge of all personnel in the operating room during the performance of the operation. Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 1148 (1969), overruled on other grounds, Garlington v. Kingsley, 289 So.2d 88 (La.1974). The exception to this general rule occurs only when the personnel is not under the immediate supervision and control of the physician. Grant v. Touro Infirmary, supra; Parmelee v. Kline, 579 So.2d 1008 (La.App. 5th Cir.), writ denied, 586 So.2d 564 (La.1991). In this case, all the | (inurses testified that Dr. Bowers was in charge of the delivery room and the delivery. He was at all times present during the birth and in charge of the team of nurses.

Hollingsworth, 96-257 at p. 9, 690 So.2d at 830.

The “captain of the ship” doctrine developed at a time when hospitals were afforded charitable immunity and were shielded from liability flowing from their own employee’s negligence. Courts, therefore, began to hold surgeons vicariously liable for all negligent acts committed by hospital employees during the treatment of that surgeon’s patient. The imposition of liability rested on the theory that the hospital’s employees became the surgeon’s borrowed servants during surgery and was based on the surgeon’s status as opposed to the surgeon’s actual control over the particular employee. Johnston v. Southwest Louisiana Association, 96-1457, p. 8 (La.App. 3rd Cir.4/2/97), 693 So.2d 1195, 1199.

In Grant v. Touro Infirmary, 254 La. 204, 220-221, 223 So.2d 148, 154 (La.1969), the supreme court limited the “captain of the ship” doctrine and stressed the importance of immediate supervision and control by the surgeon in order to impose vicarious liability under a “borrowed servant” theory:

While it is the general rule that the surgeon is in charge of all personnel in the operating room during the performance of the operation, we do not feel that the evidence justifies the conclusion that, under modern medical operative procedures, it can be said that the borrowed servant doctrine applies in this case. For it is shown by the record that operations performed under modern techniques require team performance, and the nurses and other personnel assisting in the operating room are not at all tunes under the immediate supervision and control of the operating surgeon so as to bring the case strictly within the borrowed servant doctrine.

See also Parmelee v. Kline, 579 So.2d 1008, 1019-1020 (La.App. 5th Cir.), writ denied, 586 So.2d 564 (La.1991).

However, Grant was decided under pri- or law regarding borrowed servants. Previously, courts of this state recognized that under certain circumstances, an 17empIoyer, called a “general employer,” who had relinquished control of his employee to another employer, called a “special employer,” may be legally absolved of liability for that employee’s torts. Morgan v. ABC Manufacturer, 97-0956, p. 6 (La.5/1/98), 710 So.2d 1077, 1080. This legal fiction known as the “borrowed employee” was recognized by the supreme court in Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137 (La.1951). Under the “one master” rule of Benoit, the finding of borrowed servant status eliminated the possibility of vicarious liability on the part of the general employer. Liability was an either or issue: either the special employer was liable or the general employer was liable, but not both. Morgan, 97-0956 at p. 7, 710 So.2d at 1081. The “one master” rule, however, was repudiated in LeJeune v. Allstate Insurance Co., 365 So.2d 471 (La.1978) in favor of finding both the general employer and the special employer solidarity liable to third parties injured by the negligence of the borrowed employee. Morgan, 97-0956 at p. 9, 710 So.2d at 1082.

In Morgan, the supreme court reaffirmed the “two master” or “dual employer” rule as the more sensible rule, supported by the continuing development in the law of employer liability or respon-deat superior. The court recognized that while the borrowed servant doctrine focuses on which employer controlled the employee’s actions, modern justification for employer liability is not based so much on the employer’s control of the employee’s actions, but on the concept of enterprise liability. Morgan, 97-0956 at pp. 11, 710 So.2d at 1083. In quoting its decision in Ermert v. Hartford Insurance Co., 559 So.2d 467 (La.1990), the court in Morgan stated:

The master’s vicarious liability for the acts of its servant rests not so much on policy grounds consistent with the governing principles of tort law as in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.

Morgan, 97-0956 at p. 11, 710 So.2d at 1083.

|sAs such, in situations where the general employer’s business is to loan out his or her employees and equipment to others, the general employer’s business is being furthered even if he does not control the details of the work. Moreover, the special employer benefits: it is his work that is being done as well. In such situations, the relevant enterprise benefitted by the work consists of a combination of the general and special employers. See Morgan, 97-0956 at p. 12, 710 So.2d at 1083. Therefore, both the general and special employer are liable in solido for damages occasioned by the borrowed employee. See Morgan, 97-0956 at pp. 9-12, 710 So.2d at 1082-1083.

Accordingly, based on the law as outlined above, whether Dr. Solar was in charge of the delivery room and whether the nurses employed by Woman’s Hospital were under her immediate supervision and control are not the controlling issues in determining whether Woman’s Hospital can be held vicariously liable for the nurses alleged negligence. Rather, the issue is whether Woman’s Hospital was the “general employer” of the nurses present during the delivery of Zavian and if so, susceptible to joint liability with Dr. Solar for any alleged negligence on the part of its nurses.

From the evidence in the record, there seems to be no dispute that Woman’s Hospital was the general employer of the nurses at issue. Accordingly, if it is determined that the nurses were negligent in providing medical care during Zavian’s delivery, even if determined to be at the direction of Dr. Solar, Woman’s Hospital could still be found vicariously liable jointly with Dr. Solar under the legal precepts outlined above. Therefore, we find that the trial court erred in applying \9Hollingsworth to absolve Woman’s Hospital of any potential vicarious liability and in granting summary judgment in their favor.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court granting summary judgment in favor of Woman’s Hospital and dismissing plaintiffs’ claims against it with prejudice and we remand this matter to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed to Woman’s Hospital Foundation.

REVERSED AND REMANDED.

CARTER, C.J., Concurs.

PETTIGREW, J., concurs and assigns reasons.

PETTIGREW, J.,

concurring.

hi agree with the majority’s opinion. Further, I am of the opinion that the trial court made credibility and factual findings in the context of a summary judgment, which should have been reserved to the trier of fact. In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of material fact. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765. I find multiple issues of material fact still in dispute, and summary judgment was inappropriate.

      . Plaintiffs supported Woman's Hospital’s motion for summary judgment to the extent that it asserted Hollingsworth v. Bowers, 96-257 (La.App. 3rd Cir.12/30/96), 690 So.2d 825 governed the issue of the doctor’s control of the nurses during the delivery and agreed that Woman's Hospital should be dismissed based on the fact that Dr. Solar was in charge of the delivery. However, plaintiffs specifically opposed a ruling by the court on the factual issues regarding fundal pressure, liability, and causation.

      . The Louisiana Supreme Court rejected the concept of charitable immunity for hospitals in Garlington v. Kingsley, 289 So.2d 88 (La.1974).

      . Based on the evidence in the record, there seems to be a genuine issue of material fact as to whether the nurses applied fundal pressure during the delivery. Jessica Rodriguez, R.N., who was the nurse present during the delivery, stated that she did not apply fundal pressure because to do so would have been contraindicated. Likewise, Dr. Solar stated in her affidavit and deposition that she did not see a nurse apply fundal pressure and she did not order a nurse to apply fundal pressure. However, Dr. James O'Leary, plaintiffs' expert, stated in his deposition that based on the deposition testimony of Ms. Grimes, Mr. Walker, and Zavian's aunt, who were all present during the delivery, they described what he considered to be the classic application of fundal pressure.

      . We reiterate that Woman's Hospital amended its motion for summary judgment prior to the hearing to remove is argument regarding causation from consideration and placed before the court determination of the sole issue of the nurses' compliance with the orders and instructions of the treating physician during the delivery of Zavian.


source: Caselaw Access Project

author: DOWNING, J. PARRO, J.,

license: Public Domain

text:
    Deborah C. PERRILLOUX v. FIRST GUARANTY BANK and Stone Trust Commercial Insurance Company.
    No. 2009 CA 0054.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 2009.

      John P. Murrill, Baton Rouge, LA, for Appellant, First Guaranty Bank and Stone Trust Commercial Insurance Company.

      Robert A. Lenter, Metairie, LA, for Ap-pellee, Deborah C. Perrilloux.
    Before PARRO, DOWNING and GAIDRY, JJ.
   DOWNING, J.

|2In this workers’ compensation claim, the employer, First Guaranty Bank and its insurer, Stone Trust Commercial Insurance Co., (hereinafter “Stonetrust”), seek review of a judgment rendered in favor of the employee, Deborah C. Perrilloux. For the following reasons, we amend in part, and affirm as amended the Office of Workers’ Compensation (WCJ) judgment.

The WCJ found that Ms. Perrilloux sustained a compensable work-related injury to her left knee on February 1, 2007. The WCJ found that she was entitled to temporary total disability (TTD) benefits at the maximum rate of $478.00 per week, retroactive to October 16, 2007, to continue until modification was warranted; it also ordered Stone Trust to pay for Ms. Perril-loux’s left-knee revision surgery. The judgment assessed Stonetrust with $2,000.00 in penalties and $2,000.00 in attorney fees for its failure to timely institute TTD benefits. It was also penalized an additional $2,000.00 in penalties and $2,000.00 in attorney fees for failing to approve the left-knee revision surgery.

Stonetrust appealed, alleging that the WCJ erred in ruling that the knee surgery was related to Ms. Perrilloux’s work injury and erred in awarding the maximum TTD benefits. Stonetrust also assigned error to the penalty and attorney fee awards.

BACKGROUND

On August 20, 1998, Ms. Perrilloux began working at First Guaranty Bank. On February 1, 2007, the chair on which she was seated in the bank patio collapsed, causing injury to her left knee. Ms. Per-rilloux remained off work until Dr. Famb-rough, an orthopedic surgeon, released her to return on March 13, 2007. She was paid full benefits during this time. Shortly thereafter, Ms. Perrilloux complained of pain in her light knee; she left work on April 14, 2007, and never returned to the job.

Years prior to the accident, Ms. Perril-loux had undergone knee replacement surgery on both knees. Dr. Fambrough had replaced the right knee in 1997 and the left knee in 2002. After Ms. Perrilloux was discharged from Dr. Fambrough, she did not | ovisit him again until she sought treatment for her left knee after the accident. On February 5, 2007, while Dr. Famb-rough was treating Ms. Perrilloux’s injured left knee, he determined that her right knee needed revision surgery which was unrelated to the work-related accident. Shortly thereafter, Ms. Perrilloux began complaining of renewed pain in her left knee. Dr. Fambrough recommended she have a similar revision surgery on he left knee; his report did not mention if he thought the left knee problems were related to the work-accident.

Ms. Perrilloux requested a switch in treating physicians. Stonetrust approved her switch to Dr. Roch Hontas at the Tulane Medical Center. She saw Dr. Hon-tas on July 5, 2007. After the examination, Dr. Hontas concluded that it was reasonable to assume that the work-related accident triggered her current symptoms to the point that the left-knee revision procedure should be considered. On August 8, 2007, Dr. Hontas recommended that Ms. Perrilloux have revision surgery on her left knee.

Stonetrust requested an independent medical examination (IME) with Dr. Joseph Morgan, a Baton Rouge orthopedic surgeon. Dr. Morgan reported that Ms. Perrilloux’s left knee problems appeared to be “more of a wear and tear situation” than a result of the accident. Stonetrust denied surgery benefits; Ms. Perrilloux filed a claim. Stonetrust avers that it denied the claim based upon Dr. Morgan’s adverse report and also because Ms. Per-rilloux told Dr. Hontas that her left knee was “asymptomatic” prior to the accident. Stonetrust alleges that this false information from Ms. Perrilloux led Dr. Hontas to conclude that the revision surgery needed to repair the left knee was caused by the accident.

CAUSATION

In Stonetrust’s first assignment of error it contends that Ms. Perrilloux failed to introduce sufficient evidence to connect her left-knee surgery to the February 2007 work-related accident. Stonetrust argues that the only medical evidence to connect this surgery to the accident was Dr. Hon-tas’s report that it claims was “unquestionably |4insufficient” since it was based on Ms. Perrilloux’s allegedly inaccurate chronicle. We disagree. A careful reading of Dr. Hontas’s report indicates that Ms. Perrilloux told him that she experienced “fairly immediate left knee pain” at the time of the accident, but “was doing very well with her knees prior to this event.” The report also states a substantiated fact that, up until the accident, Ms. Perrilloux had not returned to Dr. Famb-rough because she was essentially pain free. Dr. Hontas did conclude that the thinning knee replacement components predated the work injury but the revision procedure would probably now be needed sooner rathe]’ than later.

Dr. Hontas’s report stated that Ms. Per-rilloux was “completely asymptomatic pri- or to the accident,” but however, it did not say that this was the only factor he considered in concluding that her left-knee pain was caused by the accident. Moreover, Ms. Perrilloux clarified the “asymptomatic” assertion when she testified that both knees had given her pain since her first knee replacement in 1997. She also explained that prior to the accident, she was still mobile. She said that although it was painful, prior to the accident she was nimble enough to dance. This assertion is bolstered by the fact that she had not sought Dr. Fambrough’s treatment since being released in 2002.

Further, Dr. Fambrough noted on February 5, 2007, that Ms. Perrilloux was having considerable pain in her left knee and that “she most likely has sustained a fairly severe contusion in this area.” He noted on the follow-up visit that she was still having pain and still lacked about 10 degrees of full extension in the left knee. Moreover, the record indicates that knee replacements generally last about ten years before a revision is necessary. Ms. Perrilloux’s left knee was totally replaced by Dr. Fambrough in 2002. It is therefore reasonable for the WCJ to conclude that the revision surgery is now needed “sooner rather than later,” as noted by Dr. Hontas, because of the accident.

Here, the WCJ was informed of Ms. Perrilloux’s inconsistent report to Dr. Hontas. Based on the medical evidence and the witness’ credibility, the WCJ still concluded that Ms. Perrilloux suffered a work-related injury to her left knee and ordered |fiStonetrust to approve the revision procedure as recommended by Drs. Hontas and Fambrough. The trier of fact’s finding regarding causation is a factual finding that is given great deference and is reviewed under the manifest error standard. Peters v. Harmsen, 03-1296, p. 7 (La.App. 1 Cir. 4/2/04), 879 So.2d 157, 161. To be entitled to benefits, the claimant must establish a causal link between the accident and the disabling condition. Meneses v. IFCO Systems, Inc., 04-1686, p. 8 (La.App. 1 Cir. 9/23/05), 923 So.2d 111, 116. When an employee suffered from a pre-existing medical condition, he may still meet his burden of proving causation, if he can show that the accident aggravated, accelerated or compounded the condition to produce a compensable disability. Id. Although we may have reached a different result, we cannot conclude that the WCJ’s determination regarding this issue was manifestly erroneous. Accordingly, this assignment of error is without merit.

TEMPORARY TOTAL DISABILITY BENEFIT

Stonetrust assigned error to the WCJ’s award of $478.00 in weekly TTD benefits to Ms. Perrilloux when her stipulated wage was only $534.82.

An employee declared to be temporarily totally disabled is entitled to sixty-six and two-thirds percent of his/her wages during the period of disability. La. R.S. 23:1221(l)(a). Here, the parties agreed and stipulated that Ms. Perrilloux’s weekly wages were $534.82 per week. The correct TTD benefit, then, would be $356.55. This assignment of error has merit, and we accordingly will amend the judgment to reflect the correct amount.

PENALTIES AND ATTORNEY FEES

Stonetrust contends that the attorney fee and penalty awards assessed against it were in error because it reasonably controverted Ms. Perrilloux’s claims based on her being released from her doctor and having returned to work, her prior use of narcotic analgesics, and Dr. Morgan’s opinion that her left knee surgery was unrelated to the work-related accident.

lijLouisiana Revised Statutes 23:1201(F) covers situations where the employer fails to commence payment of benefits or to pay medical benefits timely. Under this section, both penalties and attorney fees are recoverable unless the claim is reasonably controverted. A claim is reasonably controverted when the employer has sufficient factual and/or medical information to counter evidence presented by the claimant. Brown v. Texas-LA Callage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890.

The thrust of Stonetrust’s argument is that it should not be penalized when its investigation indicated that, prior to the work-related accident, Ms. Perrilloux was taking large amounts of narcotic analgesic medication and had undergone total knee replacement on both knees. Stonetrust further contends that based on Dr. Morgan’s opinion that her left knee surgery was unrelated to the accident, it was reasonable to controvert her claim for compensation for the time she missed work after having that surgery.

To escape the penalty and attorney fee provision of the statute, the employer must have sufficient factual or medical information to counter evidence presented by the claimant. Brown, 98-1063 at p. 9, 721 So.2d at 890. The employer or compensation insurer has a duty to investigate and make every reasonable effort to assemble and assess factual and medical information in order to ascertain whether the claim was compensable before denying benefits. Parfait v. Gulf Island Fabrication, Inc., 97-2104, p. 17 (La.App. 1 Cir. 1/6/99), 733 So.2d 11, 25. Stone-trust claims that it based its refusal to allow Ms. Perrilloux’s surgery on Dr. Morgan’s report that her left knee problems were caused by normal wear and tear, even though Dr. Hontas’s report stated otherwise. An employer may not avoid penalties and attorney fees by blindly relying on an optimistic medical report in the face of information indicating the possibility of continuing disability. Roussell v. St. Tammany Parish School Board, 04-2622, p. 19 (La.App. 1 Cir. 8/23/06), 943 So.2d 449, 463.

|7As discussed above, we find no error in the WCJ’s holding that Ms. Perrilloux’s present left knee injury arose from a work-related incident. We further conclude that the WCJ did not err in finding that Stonetrust did not reasonably controvert Ms. Perrilloux’s claim because as discussed in Parfait and Roussell, the employer has an obligation to fully investigate conflicting reports before it denies the claimant relief.

The imposition of penalties and attorney fees for the refusal to pay workers’ compensation benefits presents a factual question that will not be disturbed upon review absent manifest error. Billiot v. Wal-Mart Stores, Inc., 03-2451, p. 4 (La. App. 1 Cir. 10/29/04), 897 So.2d 64, 67. We conclude that the WCJ did not err in imposing the penalties authorized under La. R.S. 23:1201(F). The penalties imposed by the WCJ were within the statutory limits, and the attorney fees awarded were not an abuse of discretion. This assignment of error is without merit.

DECREE

After a thorough review of the record, we conclude that the WCJ did not err in finding that Ms. Perrilloux sustained a work-related injury to her left knee. Nor did it err in finding she was entitled to penalties and attorney fees for Stone-trust’s failure to timely institute TTD benefits and its failure to approve her knee revision surgery. The WCJ did err, however, in calculating her rate of temporary total disability benefit, which is hereby reduced to $356.55 per week. The WCJ judgment is therefore amended to reflect that Deborah C. Perrilloux’s correct temporary total disability calculation is $356.55 weekly. This memorandum disposition is rendered in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.1 B. First Guaranty Bank and its insurer, Sto-netrust Commercial Insurance Co. are assessed with the costs of these proceedings.

AMENDED IN PART AND AFFIRMED AS AMENDED.

GAIDRY, J., concurs.

PARRO, J., concurs in part and dissents in part and assigns reasons.

PARRO, J.,

concurring in part and dissenting in part.

11Because I believe that the claim for benefits related to her left knee revision surgery was reasonably controverted by the defendants, I would reverse the award of penalties and attorney fees.


author: PETTIGREW, J. CARTER, C.J.,

text:
    Janice RIKER v. POPEYE’S FRIED CHICKEN.
    No. 2009 CA 0527.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 23, 2009.
    Rehearing Denied Nov. 18, 2009.
    Writ Denied Feb. 26, 2010.

      Stephanie M. Possa, Joseph C. Possa, Baton Rouge, LA, for Plaintiff-Appellee Janice Riker.
    Carl T. Conrad, Mandeville, LA, for Defendant-Appellant Popeye’s Fried Chicken.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

[2An employer appeals from a judgment of the Office of Workers’ Compensation Administration (“OWC”) that awarded past benefits, future benefits, penalties, and attorney’s fees in favor of its former employee. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

On September 8, 2007, claimant, Janice Riker (“Ms.Riker”) is alleged to have sustained a work-related accident and injury during the course of her employment as a prep person for Popeye’s Famous Fried Chicken (“Popeye’s”) in Walker, Louisiana. As part of her Disputed Claim for Compensation — Form 1008, Ms. Riker claimed that between 11:00 and 11:30 a.m. on the aforementioned date, she “fell in the cooler at Popeye’s onto the right side of her body.” Conversely, in its Answer to 1008, Popeye’s asserted Ms. Riker had been fired on the date of her alleged injury for arguing with her supervisor, and that the allegation of injury set forth in Ms. Riker’s 1008 was a false, fraudulent, and retaliatory claim. Popeye’s attached a copy of Ms. Riker’s Separation Notice dated September 8, 2007, to its answer.

In responding to discovery propounded to her by counsel for Popeye’s, Ms. Riker stated that her “injuries as a result of the subject accident include, but are not limited to, neck pain, hip pain, left knee pain, right knee pain, and back pain.” Ms. Riker added that she also experienced “pain in her shoulder blades initially.” In her subsequently-filed Pre-Trial Statement, Ms. Riker alleged “she was involved in an incident in the freezer resulting in injuries to her neck, back, shoulder, left leg, right leg, lower back, lower back down to legs, tingling in right arm, light hand.”

The matter proceeded to trial on October 22, 2008. At the conclusion of trial, the workers’ compensation judge (“WCJ”) took the matter under advisement and requested the parties submit post-trial mem-oranda within 10 days. The Post-Trial Brief filed on behalf of Ms. Riker stated in part:

[the] accident happened when Janice Riker entered the cooler. As she stood there, she heard a noise, looked over and saw crates of chicken |sabout to topple over onto her. The crates hit the right side of her body. She leaned against them and positioned her body so that the crates would not fall on top of her. She yelled for help.
Ryan Herring, another employee and her son, rushed in to help her. Ryan testified that he entered the freezer to help Ms. Riker, and found Ms. Riker with crates leaning against her. Shortly thereafter, Josh Cox, and Toni Harold entered the cooler to help.... Toni Harold further testified that she walked into the cooler and saw the crates against Ms. Riker and helped get them off of her.... Ryan Herring testified Ms. Riker advised him she was hurt. Ms. Riker testified she told Ryan, Toni, and Josh Cox she was injured. Ms. Riker’s husband further supported her testimony that an accident occurred. He picked her up on the day of the accident. She told him of the accident as well and that she was injured.
[M]edical records that were entered into evidence show that Ms. Riker went to the emergency room not long after the accident occurred. Those records reflect that she told them about the accident. After the emergency room, Ms. Riker followed up with Dr. Greta Wilkes. Dr. Wilkes’ records reflect that Ms. Riker told her about the accident. Ms. Riker then began treating with Dr. John Clark and continues to treat with him today. His records clearly reflect that Ms. Riker reported the accident to him. [Footnotes and bold emphasis deleted].

Following the submission of post-trial memoranda, the WCJ rendered and signed a judgment in favor of Ms. Riker on November 20, 2008. Said judgment directed Popeye’s pay Ms. Riker’s past medical expenses, past indemnity, and mileage, together with penalties and attorney’s fees. The judgment further provided that Popeye’s would also “be responsible for paying for any and all future benefits incurred by [Ms. Riker] as a result of the accident sued upon herein.” The judgment failed to specify the nature of said benefits, the amounts, or duration of said benefits, and did not disclose whether Ms. Riker was found to be temporarily or permanently disabled or whether she was entitled to supplemental earnings benefits.

Thereafter, Popeye’s filed for and was granted a suspensive appeal from the judgment of the WCJ, and Ms. Riker subsequently answered the appeal by Popeye’s seeking only an increase in the award of attorney’s fees together with the costs incurred in both courts.

ASSIGNMENTS OF ERROR

In connection with its appeal in this matter, Popeye’s alleges the WCJ erred in the following respects:

|41. In entering a judgment finding Popeye’s liable to Ms. Riker when Ms. Riker failed to carry her substantive burden of proof as to her alleged disabled status with required expert medical testimony;
2. In relying on indeterminate hearsay statements contained in medical records to enter judgment finding Popeye’s liable to Ms. Riker;
3. In permitting evidence, over timely objection, by which Ms. Riker attempted to expand her pleadings to allege a different accident, and more extensive injuries to her body;
4. In entering a judgment finding Popeye’s liable to Ms. Riker for itemized past amounts and for all “future benefits,” without identifying the legal basis on which Popeye’s was found liable, or what the “future benefits” would consist of, and in what amount(s), and for what duration;
5. In failing to properly rule on evi-dentiary objections, while instead permitting Ms. Riker’s counsel to improperly question Popeye’s witnesses, under the guise of determining their credibility;
6. In finding that Popeye’s had acted in an arbitrary or capricious manner in denying Ms. Riker’s request for benefits, and in entering an award of penalties and attorney’s fees therefore; and
7. In failing to find, under the evidence adduced at trial, that claimant was pursuing a fraudulent claim for workers’ compensation benefits.

DISCUSSION

The initial error assigned by Popeye’s is that Ms. Riker failed to carry her burden of proof regarding her alleged disability through expert medical testimony.

The Workers’ Compensation Act provides coverage to an employee for personal injury by accident arising out of and in the course of his or her employment. See, La. R.S. 23:1031(A). An employee must prove the chain of causation required by the workers’ compensation statutory scheme as adopted by the legislature. Harrison v. Baldwin Motors, 2003-2682, p. 3 (La.App. 1 Cir. 11/3/04), 889 So.2d 313, 316, writ denied, 2005-0249 (La.4/1/05), 897 So.2d 609. He or she must establish that the accident was work-related, the accident caused the injury, and the injury caused the disability. Roussell v. St Tammany Parish School Board, 2004-2622, p. 9 (La.App. 1 Cir. 8/23/06), 943 So.2d 449, 457, writ not considered, 06-2362 (La.1/8/07), 948 So.2d 116. Initially, a workers’ compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he or she sustained an injury. See Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). Next, the claimant must establish a causal connection between the accident and the resulting disability by a preponderance of the evidence. West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979); Clark v. Godfrey Knight Farms, Inc., 2008-1723, p. 11 (La.App. 1 Cir. 2/13/09), 6 So.3d 284, 292, writ denied, 2009-0562 (La.5/29/09), 9 So.3d 163.

In order to recover benefits under the workers’ compensation law, a claimant must prove that he or she has suffered a personal injury as a result of a work-related accident and that the injury has rendered him or her either temporarily totally disabled, and/or permanently partially disabled, or entitled to supplemental earnings benefits. Our Lady of the Lake Regional Medical Center v. Matthews, 2006-1584, p. 3 (La.App. 1 Cir. 9/26/07), 971 So.2d 354, 357. A claimant seeking to recover indemnity benefits for a temporary or permanent total disability must prove by clear and convincing evidence that he or she is physically unable to engage in any gainful occupation, whether or not the same type of work claimant was engaged in at the time of the injury. La. R.S. 23:1221(l)(c) and (2)(c).

Clear and convincing evidence has been defined as an intermediate standard falling somewhere between the ordinary “preponderance of the evidence” civil standard and the “beyond a reasonable doubt” criminal standard. Zavala v. St. Joe Brick Works, 2007-2217, p. 7 (La.App. 1 Cir. 10/31/08), 999 So.2d 13, 19, writ denied, 2008-2827 (La.1/30/09), 999 So.2d 762. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, in other words, much more probable than not. Magee v. Abek, Inc., 2004-2554, p. 6 (La.App. 1 Cir. 4/28/06), 934 So.2d 800, 807, writ denied, 2006-1876 (La.10/27/06); 939 So.2d 1287. Also, clear and convincing proof requires objective medical evidence of the disabling condition causing the claimant’s inability to engage in any employment. Roussell, 2004-2622 at 10, 943 So.2d at 458. A trier of fact’s belief in a claimant’s selfserving testimony alone is insufficient. Hurst v. Sanderson Farms, Inc., 02-1334, p. 5 (La.App. 1 Cir. 5/9/03), 846 So.2d 954, 958. A claimant must provide objective, expert | fitestimony as to his medical condition, symptoms, pain, and treatment, in addition to personal testimony, in order to meet this standard. Roussell, 2004-2622 at 10, 943 So.2d at 458.

The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. Johnson v. East Baton Rouge Parish School Board, 2006-1010, p. 4 (La.App. 1 Cir. 3/28/07), 961 So.2d 388, 390.

Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Allman v. Washington Parish Police Jury, 2004-0600, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 86, 88. Factual findings in a workers’ compensation case are subject to the manifest error-clearly wrong standard of review. McCray v. Delta Industries, Inc., 2000-1694, p. 4 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 269. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. Thus, “[if] the [fact finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mutual Insurance Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Bolton v. B E & K Construction, 2001-0486, p. 7 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35.

17At the trial of this matter, Ms. Riker put forth the testimony of her son, Ryan Herring, who was also working at Popeye’s on the date in question; Jonathon Sain, a one-time Popeye’s employee; Ms. Riker’s husband, James Polk; and finally, Ms. Riker herself. Aside from her introduction of certified copies of her medical records, Ms. Riker failed to introduce medical testimony from any of her treating physicians regarding her present medical condition. The record before this court is devoid of any objective medical testimony regarding Ms. Riker’s ability to work, her need for medical treatment, or an assignment of a disability rating by her physicians. In addition, there was no evidence as to the extent of Ms. Riker’s formal education, training, or previous work experience. As a result, we must conclude Ms. Riker failed to establish by clear and convincing evidence that she was temporarily or permanently (either totally or partially) disabled, or capable of working but at a diminished capacity that might entitle her to supplemental earnings benefits. Based upon the lack of medical testimony in the record, we further conclude the WCJ lacked sufficient evidence upon which to render judgment in favor of Ms. Riker. For this reason, the judgment of the WCJ in favor of Ms. Riker is hereby reversed, and based upon this finding we pretermit discussion of all remaining assignments of error.

DECREE

For the above and foregoing reasons, the WCJ’s November 20, 2008 judgment awarding disability benefits to claimant, Janice Riker, is hereby reversed. Accordingly, Ms. Riker’s suit is dismissed with prejudice at her costs.

REVERSED AND RENDERED.

CARTER, C.J., Dissents and Assigns Reasons.

CARTER, C.J.,

dissenting.

11 Although I agree with the majority’s well reasoned analysis of the merits of this appeal, I am of the opinion that the judgment before the court does not meet the requirement of being precise, definite and certain. See Vanderbrook v. Coachmen Industries, Inc., 01-0809 (La.App. 1 Cir. 5/10/02), 818 So.2d 906, 913. Because the judgment is defective in this regard, I am of the opinion that this court lacks appellate jurisdiction. See LSA-C.C.P. art. 2083; Laird v. St Tammany Parish Safe Harbor, 02-0045 (La.App. 1 Cir. 12/20/02), 836 So.2d 364, 366. Thus, I respectfully dissent.

      . Honorable Robert W. Varnado, Jr. of District 6 presided in this matter.

      . In cases where the parties have stipulated to the introduction of claimant's medical records in lieu of live testimony, said records can constitute objective evidence of claimant's medical condition. In the instant case, counsel for Popeye's stipulated only to the authenticity of said records, not to the veracity of the contents of said records.

      . In addition, the relief sought by Ms. Riker in her answer to Popeye's appeal, namely, her request for an increase in the award of attorney's fees together with the costs incurred in both courts, is also denied.


author: PETTIGREW, J.

text:
    Todd HUVAL v. DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, Office of State Police.
    No. 2009 CA 0699.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 23, 2009.

      Floyd J. Falcon, Jr., Daniel L. Avant, Baton Rouge, LA, for Plaintiff-Appellee Todd Huval.
    Kathy Duhon Williams, Baton Rouge, LA, for Defendant-Appellant Dept, of Public Safety & Corrections.
    William A. Norfolk, Baton Rouge, LA, for State Police Commission.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

|2In this case, plaintiff, Todd Huval (“Mr.Huval”), was terminated for cause from his employment with defendant, the Department of Public Safety and Corrections, Public Safety Services, Office of Louisiana State Police (“LSP”). Mr. Hu-val timely appealed his termination to the State Police Commission (“the Commission”), which, after a public hearing, granted in part and denied in part Mr. Huval’s appeal. Specifically, the Commission reduced the disciplinary action taken by the LSP against Mr. Huval from termination to an eight-week suspension. The Commission further ordered that Mr. Huval be reimbursed for wages lost, together with interest, from the end of the eight-week suspension until paid, subject to an offset for earnings or unemployment benefits received by him until the date of the decision. Mr. Huval and his attorney were also awarded $1,500.00 in attorney fees. This appeal by the LSP followed. For the reasons set forth below, we reverse the Commission’s ruling and reinstate the disciplinary action taken by the LSP against Mr. Huval.

FACTS AND PROCEDURAL HISTORY

According to the record, Mr. Huval had been employed by the LSP for seven years and was serving with permanent status as a trooper when he was terminated on December 11, 2007. In a December 10, 2007 termination letter, Louisiana State Police Superintendent Colonel Stanley Griffin summarized the investigation leading to Mr. Huval’s termination as follows:

Lt. Rhett Trahan of the Gaming Enforcement Section of the Louisiana State Police (LSP), in coordination with Sgt. Buzzy Trahan, Sgt. Coy Courville, and Trooper Hal Hutchinson, initiated an investigation into the possible unauthorized release of confidential information out of the LSP Gaming Enforcement Section. Any leak within the Section would compromise numerous investigations and time and Department resources could be wasted on those compromised investigations. Also, the identity and safety of persons conducting investigations could be coin-promised if information regarding undercover or tactical operations was provided to the wrong individuals.
|sLt. Trahan and Trooper Hutchinson received information from a documented, reliable informant that investigators within the [LSP] were releasing confidential information to a third party, identified as Jason Abate. This information contains details of persons being investigated by the [LSP]. Jason Abate had told the informant that he had two contacts within the [LSP] who had previously worked in the Gaming Section but they had transferred to other sections. Jason Abate further indicated to the source that his contacts would contact someone else in the Gaming Section for information to determine if someone was under investigation for illegal gaming violations by the [LSP], Lt. Rhett Trahan was aware that [Mr. Huval] and Trooper Chad Boyer were previously with the Gaming Section and have since transferred to other sections in the LSP Bureau of Investigation. Lt. Trahan is also aware that [Mr. Huval] and Jason Abate are personal friends.

As cause for termination, Colonel Griffin’s letter advised that Mr. Huval’s conduct was in violation of the following Louisiana State Police Policy and Procedure Rules: 01-02.02 Law Enforcement Code of Ethics; 01-02.48 Associations; 01-02.13 Unsatisfactory Performance; 01-02.22 Dissemination of Information; 01-02.05 Conduct Unbecoming an Officer; 01-02.07 Badge of Office; and 01-02.46 Reporting of Information. Colonel Griffin outlined the provisions violated by Mr. Huval, in pertinent part, as follows:

01-02.02 LAW ENFORCEMENT CODE OF ETHICS
As a Law Enforcement Officer, my fundamental duty is to serve mankind; to safeguard lives and property; to protect the innocent against deception; the weak against oppi'ession or intimidation, and the peaceful against violence or disorder; and to respect the constitutional rights of all men to liberty, equality and justice.... Whatever I see or hear of a confidential nature or that is confided to me in my official capacity will be kept secret unless revelation is necessary in the performance of my duty. I will never act officiously or permit personal feelings, prejudices, animosities, or friendship to influence my decisions ....
01-02.48 ASSOCIATIONS, which states in pertinent part:
• Commissioned officers shall avoid regular or continuous associations or dealings with persons whom they know, or should have known, are ... gamblers, suspected felons, persons under criminal investigation or indictment, or who have a reputation in the community for present involvement in felonies or criminal behavior.
01-02.13 UNSATISFACTORY PERFORMANCE, which states in pertinent part:
• A commissioned officer shall maintain a competency level sufficient to properly perform his duties and assume the responsibilities of his position. Officers shall perform their duties in such a manner as to maintain the highest standards of efficiency.
|4* Unsatisfactory performance may be demonstrated by:
A failure to conform to work standards established for the officer’s rank, grade or position.
01-02.22 DISSEMINATION OF INFORMATION, which states in pertinent part:
• A commissioned officer shall not disseminate, in any manner, any confidential information of the Louisiana State Police or its commissioned officers without proper authority.
• For purposes of this order, confidential information shall be defined as information which:
— A person could foresee the disclosure of information could endanger a commissioned officer or other person
— May impede the just disposition of a case
— May compromise or negate the judicial process
— Violates any federal, state or local law or ordinance concerning the release of confidential information
— Makes known the contents of an internal or criminal record or report to an unauthorized pei'son in violation of LRS 44:3, The Public Records Law
• A commissioned officer may only divulge, make known, or exhibit the contents of an official file:
— To a duly authorized police officer or agency official, provided by law and on approval of the appropriate Commander
01-02.05 CONDUCT UNBECOMING AN OFFICER, which states in pertinent part:
• A commissioned officer shall conduct himself at all times, both on and off-duty, in such a manner as to reflect most favorably on himself and the Department.
• Unbecoming conduct is defined as conduct which:
—Brings the Department or any of its subdivisions into disrepute
—Reflects discredit upon the officer as a member of the Department
—Impairs the operations or efficiency of the Department, the officer, or state service
—Detrimentally affects the morale of the Department’s personnel
—May reasonably be expected to destroy public respect for Slate Police Officers and/or confidence in the Office of State Police
01-02.07 BADGE OF OFFICE, which states in pertinent part:
• The term “badge of office” shall include the identification/commission card, badge, official position, title, uniform or any other tangible or intangible thing by which it can be construed that the concept “Louisiana State Police” is being interjected.
15* A commissioned officer shall not use nor permit the use of his badge of office for personal or financial gain or for the benefit of any individual or group of individuals.
01-02.46 REPORTING OF INFORMATION, which states in pertinent part:
• A commissioned officer shall report to his superior officer all information that comes to his attention concerning organized crime, ... along with any other criminal activity or violation that an officer suspects.

Mr. Huval timely appealed his termination to the Commission, arguing that the penalty of termination was not warranted, or alternatively, was excessive and should be reduced to a lesser form of discipline. Mr. Huval sought reinstatement, lost wages, and attorney fees. Following a public hearing of his appeal, which was consolidated with an appeal by Trooper Chad Boyer, Docket No. 07-170-T (who was also terminated as a result of this investigation), the Commission concluded that although Mr. Huval had violated certain procedural orders, his actions did not constitute grounds for termination. On December 30, 2008, a decision was rendered, whereby Mr. Huval’s appeal was granted in part and denied in part. The Commission ordered that Mr. Huval be reinstated as a trooper and reduced his penalty from termination to an eight-week suspension, without pay or benefits. Mr. Huval was also awarded reimbursement for lost wages, together with interest, and attorney fees in the amount of $1,500.00.

This appeal by the LSP followed. On appeal, the LSP assigns the following specifications of error for our review:

1. The State Police Commission erred with its findings of both fact and law when they determined that Todd Hu-val’s actions only violated ... Louisiana State Police Policy and Procedural Manual No. 01-02.02 Law Enforcement Code of Ethics and No. 01-02.22 Dissemination of Information.
2. The State Police Commission erred when it reduced Todd Huval’s disciplinary action from termination to an eight week suspension particularly after concluding as a matter of law that Huval “should be reassigned from the Bureau of Investigation and placed in a position that does not rely heavily on confidential or privileged information.”
| f)3. The State Police Commission erred when they awarded Todd Huval and his attorney, attorney fees of $1,500.00 after determining that Todd Huval should have been suspended for eight weeks for violation of LSP Policy and Procedural Manual No. 01-02.02 Law Enforcement Code of Ethics and LSP Policy and Procedural Manual No. 01-02.22 Dissemination of Information.

STANDARD OF REVIEW

An employee who has gained permanent status in the classified state police service cannot be subjected to disciplinary action except for cause expressed in writing. La. Const, art. X, § 46(A). Such an employee may appeal to the Commission, where the burden of proof, as to the facts, is on the appointing authority. Id. The Commission shall have the exclusive power and authority to hear and decide all disciplinary cases. La. Const, art. X, § 50. The Commission’s authority “to hear and decide” disciplinary cases includes a duty to decide independently from the facts presented whether the appointing authority has good cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the cause. Department of Public Safety and Corrections, Office of State Police v. Mensman, 95-1950, p. 4 (La.4/8/96), 671 So.2d 319, 321; Berry v. Department of Public Safety and Corrections, 2001-2186, p. 7 (La.App. 1 Cir. 9/27/02), 835 So.2d 606, 611.

The decision of the Commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the Commission is located. La. Const, art. X, § 50. In these instances, the appellate court is presented with a multifaceted review function. Bannister v. Department of Streets, 95-404, p. 8 (La.1/16/96), 666 So.2d 641, 647. First, as in other civil matters, the Commission’s factual findings are entitled to deference and will not be disturbed unless clearly wrong or manifestly erroneous. Id. Second, in evaluating the Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the reviewing court should not modify the Commission’s order unless it is arbitrary, capricious, or characterized by an abuse of discretion. Id.

17“Cause” for dismissal of a person who has gained permanent status in the classified civil service has been interpreted to include conduct prejudicial to the public service in which the employee in question is engaged or detrimental to its efficient operation. Walters v. Department of Police of New Orleans, 454 So.2d 106, 113 (La.1984). Dismissal from permanent employment is obviously the most extreme form of disciplinary action that can be taken against a classified state employee. Fields v. State, Dept. of Corrections, 498 So.2d 174, 177 (La.App. 1 Cir.1986), writ denied, 500 So.2d 426 (La.1987). Thus, “cause” that may justify some other lesser form of disciplinary action may not justify a dismissal. Appeal of Kennedy, 442 So.2d 566, 569 (La.App. 1 Cir.1983). Repeated improper conduct after lesser disciplinary action has been taken, the totality of individual lesser offenses, or even a single particularly aggravated incident have all been found to constitute legal cause for dismissal. Ryder v. Department of Health and Human Resources, 400 So.2d 1123, 1126 (La.App. 1 Cir.1981).

DISCUSSION

After hearing the testimony and considering the documentary evidence in the ree-ord, the Commission made the following undisputed findings of fact:

1. In September, 2007, confidential informants known as “Tony” and “Rose” told Trooper Hal Hutchinson that a person named Jason Abate, a known convicted felon, had stated to them that he had a contact within the Louisiana State Police who would obtain information about investigations for him.
2. Jason Abate described his source of insider information as a State Trooper who once worked in gaming, had broken his neck and who could “whip any three men at one time.”
3. From the description of the Trooper given in Finding of Fact 2, Lt. Rhett Trahan thought the “insider” trooper to be Trooper Todd Huval.
4. On September 17, 2007 a meeting was held between Lt. Rhett Trahan, Sgt. Coy Courville, Sgt. Buzzy Trahan and M/T Hal Hutchinson at which time a plan was devised in which the confidential informants would be given a fictitious name to be given to Jason Abate with the request that Abate check with his informant at State Police to see if any investigation was being conducted as to that individual. The fictitious individual was |sgiven the name “Anthony DiMaggio” who was described as a bookie from Las Vegas who was setting up a bookmaking operation in Lafayette.
5. The information about the fictitious “Anthony DiMaggio” was given to the confidential informants who, in turn, gave it to Jason Abate.
6. Jason Abate called Trooper Todd Huval and asked if he knew anything about a bookie named Anthony DiMaggio.
7. Trooper Huval told Abate that he did not know DiMaggio but agreed to call his Mend Trooper Chad Boyer; Hu-val called Trooper Boyer and told him to call Jason Abate about DiMaggio.
8. Trooper Boyer told Trooper Huval that he did not know of DiMaggio but would find out if anybody knew about him.
9. Trooper Boyer called Hal Hutchinson who said he would call and find out about DiMaggio; Hutchinson called back and told Boyer that “they had heard of’ DiMaggio and would be starting an investigation on him in a week or so.
10. Boyer then called Jason Abate and gave him the information that “they” had heard of DiMaggio and would start an investigation on him in a week or so.
11. Boyer also called Todd Huval and gave him the same information that he had given Jason Abate.
12. Trooper Boyer admitted to investigators that what he had done, providing information about ongoing criminal investigations, although, in this case, fictitious, was wrong and possibly a crime.
13. The person described by Jason Abate as his source of confidential information from State Police was Todd Hu-val.
14. Trooper Huval knew Jason Abate was a convicted felon but Abate had been a good friend of his for a long time.
15. When Trooper Huval relayed the information about DiMaggio to Jason Abate he warned Abate to not get involved with DiMaggio because he did not want Abate to go to jail.

The present record, measured by the manifest error standard of review, discloses no error by the Commission in its factual findings. We have thoroughly reviewed the transcript of the appeal to the Commission as well as the documentary evidence introduced by the parties and find that the Commission’s factual findings are reasonable in light of the record reviewed in its entirety. However our inquiry does not end here.

Next, we consider the Commission’s ruling that although Mr. Huval violated certain procedural orders of the LSP, his actions did not constitute grounds for ^termination. The Commission has a duty to decide independently from the facts presented whether the appointing authority has a good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the cause. Mensman, 95-1950 at 4, 671 So.2d at 321. In reviewing whether a penalty is commensurate with the offense proven, an appellate court must apply the “abuse of discretion” or “arbitrary or capricious” standard of review. Id. A conclusion of a public body is “capricious” when the conclusion has no substantial evidence to support it or the conclusion is contrary to the substantiated competent evidence. The word “arbitrary” implies a disregard of evidence or of the proper weight thereof. Bailey v. Department of Public Safety and Corrections, 2005-2474, p. 15 (La.App. 1 Cir. 12/6/06), 951 So.2d 234, 243.

In the instant case, the LSP imposed the sanction of termination based upon Mr. Huval’s actions in this case that centered around his personal relationship with a convicted felon with whom he shared confidential information on at least two occasions. Concerning whether the LSP had cause for taking disciplinary action in this case, the Commission failed to make an express finding of prejudice to the public service of the LSP or detriment to the efficient operation of the LSP. However, such a finding is clearly implied in the decision and abundantly reflected in the record.

Although the Commission found insufficient evidence in the record to prove all of the charges leveled against Mr. Huval by the LSP, the Commission did not find Mr. Huval free from fault. The Commission found the evidence in the record supported the conclusion that Mr. Huval violated that portion of 01-02.02 LAW ENFORCEMENT CODE OF ETHICS that states: “Whatever I see or hear of a confidential nature or that is confided to me in my official capacity will be kept secret unless revelation is necessary in the performance of my duty.” The Commission further concluded that the evidence supported a finding that Mr. Huval violated 01-02.22 DISSEMINATION OF INFORMATION, particularly the portion that states: “A commissioned officer shall not disseminate, in any manner, any confidential information of the Louisiana State Police or 110its commissioned officers without proper authority.” The Commission continued, making the following conclusions:

As we noted in the consolidated case of Chad Boyer, while the factual circumstances of the case are somewhat convoluted, the premise surrounding it is relatively simple. That is, State Police had been told, by reliable sources, that information about ongoing criminal investigations was available to unauthorized persons from a source within State Police, In an attempt to determine the identity of the culpable individual within State Police a fictitious scenario was developed, the [“ ]DiMaggio” affair, and given to Jason Abate, a convicted felon and the person who had told informants that he could obtain such insider information. Mr. Abate was not aware that the scenario was fictitious.
Shortly after the fictitious information was given to Mr. Abate, Trooper Boyer called Hal Hutchinson, one of the OSP investigation team, inquiring about the “DiMaggio” affair. Trooper Boyer had been asked by fellow Trooper Todd Hu-val to inquire about any information about the DiMaggio affair. Trooper Hutchinson gave more fictitious information to Trooper Boyer by telling him that State Police were aware of DiMaggio and would begin an investigation in a week or so. This additional fictitious information was passed on to Jason Abate and Trooper Huval. Although Trooper Huval admitted to investigators that “I know I was wrong,” that admission was given somewhat reluctantly.
Trooper Huval reported this information to Lt. Rhett Trahan the evening of September 17, 2008. This action was substantiated through both Lt. Trahan’s testimony and Tpr. [Huval’s] cellular phone records.
The relationship between a Trooper and a confidential informant, from the Trooper’s pei'spective, must be handled with strict conformity with the LSP Policy. There is clearly a rational basis for this rule. Investigations must not be compromised and the health and safety of law enforcement and others must not be placed in jeopardy.
While it is unacceptable to give any confidential information to a convicted criminal, the appointing authority did not provide significant evidence that there was a long standing association after Jason [Abate’s] conviction. The introduction of cellular phone records only hinted to conversations during two days of the incident (17th, 18th) and nothing prior. The testimony of Trooper [Huval] indicated that he would meet Jason Abate [at] pool competitions and that he borrowed money from him on one occasion during a time of financial distress. This incident occurred before Jason Abate was arrested on felony charges and the money was repaid before the time period here in question.
However, we believe the Appointing Authority failed to prove the remaining charges against Trooper Huval. We instruct the Appointing Authority to reissue the letter of discipline and in so doing to remove from it any reference to the remaining charges against Trooper Huval.

|uAs recognized by this court in Berry, “since the public puts its trust in the police department as a guardian of its safety, it is essential the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust.” Berry, 2001-2186 at 13, 835 So.2d at 615 (citing Newman v. Department of Fire, 425 So.2d 753, 756 (La.1983)). “The [State Police] operates a quasi-military institution where strict discipline is imperative.” Id. (citing Stevens v. Department of Police, 2000-1682, p. 8 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, 627).

Colonel Griffin testified at the hearing before the Commission concerning the impact Mr. Huval’s actions had on the reputation of the LSP:

State Police is a very proud organization and the public demands a lot of State Police because it’s such a professional organization. And when one of our members acts contrary to the law and our policy, then we lose the confidence with the public, our positive image is somehow tarnished. But really what aggravated this situation is that you have a[n] officer that worked day-to-day with other officers. — -and police officers depend on each other. I mean, your ultimate goal when you leave your house in the morning is to get back there safely, and you depend on your fellow officers to have your back. And when you have an officer or officers violate that trust, that’s the ultimate insult and that breeches the violation of the oath that you took. And that’s what makes this case so egregious is that you had officers out there that was confirmed, sharing confidential information with outside sources for whatever reason, thereby jeopardizing an ongoing investigation and, most importantly, jeopardizing the safety of those officers that may have been investigating those activities.

Mr. Huval’s actions in disclosing confidential information regarding a potential gaming investigation to Jason Abate, a convicted felon, had a real and substantial effect on the efficient operation of the LSP. Thus, we need not delve any further into the remaining allegations against Mr. Hu-val. Mr. Huval’s failure to comply with the LSP’s Policy and Procedure Manual Nos. 01-02.02 and 01-02.22 alone constitutes conduct prejudicial to the public service of the LSP.

Having found sufficient legal cause to discipline Mr. Huval, we must now determine whether the discipline imposed was commensurate with the severity of the infractions. In other words, we must consider whether the Commission’s ruling to reduce Mr. Huval’s termination to an eight-week suspension was arbitrary, capricious, or characterized by an abuse of discretion.

|12As previously noted, the Commission acknowledged the importance of the relationship between a Louisiana State Trooper and a confidential informant. While the Commission found that “[investigations must not be compromised and the health and safety of law enforcement and others must not be placed in jeopardy,” the Commission ultimately concluded that based on the circumstances of this case, “there was no real danger to anyone because the internal investigation regarding Anthony DiMaggio’ was fictitious in nature and designed to find a ‘leak’ in the section.” However, the Commission then recognized the potential danger posed to the LSP by Mr. Huval when they found as follows:

Any time a law enforcement officer has an association with a known convicted felon there is a “hint of impropriety” even if all they do is talk and shoot pool. Trooper [Huval] should cease all contact with Jason Abate and any others that have the appearance of criminal activity. Trooper [Huval] should be reassigned from the Bureau of Investigation and placed in a position that does not rely heavily on confidential or privileged information. [Emphasis added.]

The Commission continued, finding that Mr. Huval’s actions, while in violation of certain procedural orders, did not constitute grounds for termination. Thus, the Commission held:

[W]e reduce the penalty from a termination to an eight week suspension, which is to be reflected in the reissued letter of discipline. As an additional consideration in our determination of the severity of the discipline, we note that Trooper Huval was the contact with Jason Abate. While the Appointing Authority failed to prove that Huval’s friendship with Jason Abate violated Section 01-02.48 Associations, as it did not prove “regular or continuous associations or dealings” with a known felon, it is clear that Huval’s feelings of friendship with Abate was a factor that enabled Abate to use Huval as a source of information.
For the above reasons, this appeal is granted in part and denied in part. Trooper Huval is to be reinstated as a Trooper effective December 11, 2007 and suspended without pay or benefits for eight weeks from December 11, 2007. He is to be reimbursed for wages lost, together with interest, from the end of the eight week suspension until paid, subject to an offset for earnings or unemployment benefits received by him until the date of this decision. [Emphasis added.]

We are unable to reconcile the Commission’s findings in this regard. Mr. Huval argues on appeal that the Commission simply “recommended” that the LSP reassign him to a position that does not rely heavily on confidential or privileged information. He maintains this does not translate to an order that the LSP must transfer him to a | ^position that will ensure he will never have access to confidential information. We find no merit to this argument.

As pointed out in brief by the LSP, the Commission’s determination that Mr. Hu-val be “placed in a position that does not rely heavily on confidential or privileged information” gives credence to the LSP’s decision that Mr. Huval’s actions were so egregious that termination was the only appropriate remedy available. We agree. If there is substantial evidence in the record to support a conclusion that based on his actions, Mr. Huval cannot be placed in a position of trust, then surely there is substantial evidence to support a conclusion that Mr. Huval’s termination was warranted and commensurate with his infractions. The Commission’s decision to the contrary, in this court’s opinion, is contrary to the substantiated competent evidence and implies a complete disregard of the evidence or of the proper weight thereof. See Bailey, 2005-2474 at 15, 951 So.2d at 243.

After careful review of the record as a whole, given the character, content, and proper weight of the evidence, we find that the Commission’s exercise of its authority in reducing Mr. Huval’s termination to an eight-week suspension was an arbitrary and capricious interference with the authority of the LSP to manage its department. The LSP had sufficient legal cause to take disciplinary action and carried its burden of proof. The punishment imposed by the LSP, i.e., termination, was commensurate with the infractions proven. Accordingly, we reverse the Commission’s ruling and reinstate the disciplinary action taken by the LSP.

CONCLUSION

For the above and foregoing reasons, the decision of the State Police Commission is reversed and the disciplinary action taken by the LSP, termination effective December 11, 2007, is reinstated. All costs associated with this appeal are assessed against Mr. Huval.

_LyDE CISION OF STATE POLICE COMMISSION REVERSED; TERMINATION EFFECTIVE DECEMBER 11, 2007, REINSTATED.

      . The State Police Commission was created by constitutional amendment and given the "exclusive power and authority to hear and decide all removal and disciplinary cases.” La. Const, art. X, §§ 43 and 50. The State Police Commission’s power to "hear and decide” cases is identical to that granted the State Civil Service Commission. Department of Public Safety and Corrections, Office of State Police v. Mensman, 95-1950, p. 1, n. 1 (La.4/8/96), 671 So.2d 319, 320, n. 1.

      . Although these appeals were consolidated for hearing before the Commission, they were appealed separately to this court. The merits of Trooper Boyer's appeal, also before this court for consideration, are addressed in a separate opinion. See Boyer v. Department of Public Safety & Corrections, Office of Stale Police, 2009-0700 (La.App. 1 Cir. 10/23/09), 24 So.3d 1033.

      . In brief to this court, counsel for Mr. Huval acknowledges that the factual findings of the Commission are “fully supported’’ by the record.

      . As we are reversing the Commission’s ruling, which necessarily includes a reversal of the award of $1,500.00 in attorney fees to Mr. Huval and his attorney, we need not address the LSP's third assignment of error.


author: WHIPPLE, J.

text:
    STATE of Louisiana v. Jeffery JONES.
    No. 2009 KA 0751.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 23, 2009.

      Walter P. Reed, Covington, LA, Kathryn W. Landry, Baton Rouge, LA, Attorneys for Appellee, State of Louisiana.
    Gwendolyn K. Brown, Baton Rouge, LA, Attorney for Defendant/Appellant, Jeffery Jones.
    Before WHIPPLE, HUGHES and WELCH, JJ.
   WHIPPLE, J.

|aThe defendant, Jeffery Jones, was charged by bill of information with possession of a firearm or other dangerous instrumentality, namely a knife, while in the possession of cocaine, a violation of LSA-R.S. 14:95(E). The defendant pled not guilty and, following a juiy trial, was found guilty as charged. The defendant filed a motion for a new trial, which was denied. He was sentenced to ten years at hard labor without benefit of probation, parole, or suspension of sentence. The defendant now appeals, designating the following seven assignments of error:

1. The trial court erred by failing to take appropriate measures to adequately protect his right to trial by a fair and impartial jury.
2. He was denied his right to trial by a fair and impartial jury.
3. The trial court erred by failing to declare a mistrial after juror misconduct warranting a mistrial was brought to its attention by another juror during the course of the trial.
4. The trial court erred by failing to conduct any inquiry into the jury misconduct which, prior to the presentation of evidence, was brought to its attention by a member of that jury.
5. The trial court erred by denying his motion for a new trial.
6. The trial court erred by denying his motion for postverdict judgment of acquittal.
7. He was convicted by a non-unanimous verdict in violation of the United States and Louisiana Constitutions.

For the following reasons, we vacate the conviction and sentence, and remand for a new trial.

FACTS

On May 1, 2008, Agent Mike Phelps, with the Department of Public Safety and Corrections, Division of Probation and Parole, along with other agents, went to the defendant’s sister’s house in St. Tammany Parish to make contact with the Isdefendant. He found the defendant in a back bedroom on the edge of the bed. When the defendant saw Agent Phelps, he moved his hand underneath a pillow. Agent Phelps drew his gun and ordered the defendant to show his hands. The defendant complied. Agent Phelps looked under the pillow where the defendant had his hand and found a small bag of cocaine. The defendant was arrested and brought outside, where he was patted down by Agent Brian Trosclair, with the Department of Public Safety and Corrections, Division of Probation and Parole. Agent Trosclair found a knife in the defendant’s shoe. The unsheathed, fixed blade was tucked, blade down, in the defendant’s shoe with his pants over it.

ASSIGNMENTS OF ERROR 1-5

In assignments of error one through six, the defendant argues the trial judge erred by failing to take appropriate measures to protect his right to a trial by a fair and impartial jury. He further argues he was denied his right to a fair and impartial trial.

Subsequent to the jury being empan-elled, but prior to opening statements, the trial judge informed the prosecutor and defense counsel that a juror had sent him a note and that he would read the note into the record. The following relevant colloquy then took place:

The Court:
This note states: “Judge Green, I thought you should be informed yesterday in the jury room,” blank, who is a juror, “used the term “nigger.” He was not referring to the defendant,” — and she emphasized that, “however, this bothered me and I felt I should report ⅛.[”]
“If you feel that this is insignificant, it is fine with me and will be off my conscious [sic]. You are the Judge.”
The person signed and then made a footnote: “Please keep this confidential. I do not want to be singled out as causing a problem.”
I have read this in this same form to both counsel in the back. Mr. Burke [defense counsel] has discussed it with his client. This disturbs the Court, but I will say for the record I haven’t had instances |4where there has been a certain reflection to African-Americans, but to Hispanics and to other people, because I want to ease the defendant’s mind as far as the court experience. And I think the person states that she felt that the person making the statement was not referring to the defendant in this case.
But I want it to be part of the record, and I would entertain statements from the State and from the defense.
Mr. Burke:
Yes, Your Honor. For the record, my client is African-American. And the jury, in fact the entire jury panel yesterday that we went through were comprised of Caucasians. I don’t believe there was one African-American on the whole jury voir dire.
The Court:
Yes, if I may correct you, of the 48 people that were called.
Mr. Burke:
I’m talking about the ones we interviewed yesterday.
The Court:
I know, but there was an African-American among the whole, but she did not make the second panel.
Mr. Burke:
But on both panels that we went through there was not one African-American. The jury is comprised either totally of whites or maybe one Hispanic lady. I think Ms. Power may be Hispanic.
Judge, I believe we have a right to question this juror to find out, the juror that wrote this note to question her and find out which juror said this so the Court can determine whether or not this juror should be excused, the juror that made the statement should be excused from this jury. And we would request that the Court allow us to do that.
The Court:
Okay. State, do you have any comment?
Mr. Hoffstadt [prosecutor]:
Yes. I think it’s very clear that the juror in question, if true, was not referring to the defendant, certainly not to the facts of this particular case because no facts have been put forward.
It is a fact that we live in an imperfect society where people make statements based on their upbringing and their background and maybe their prejudices, that we would not use.
But the fact that someone may use some kind of racial declaration regarding another race does not indicate that they have any prejudice against this particular defendant. In fact, in great detail we went through this voir dire discussion that prejudice and passion or sympathy should not be used in making the decision.
And the fact that someone’s verbiage and how they refer to someone else, whether they refer to them as an African-American or | fiby religion or by any other offensive term, does not mean in any way whatsoever that they cannot give this defendant a fair trial.
If we go and start looking into what people have said through their entire life about another group of individuals, we’d never have jurors. Because I think that probably each and every one of us at one time or another have said something that we look back and are ashamed of.
I think it’s important, Your Honor, very important in this case, that there has been no evidence presented, and even more important, that this juror who reported it was quite clear that the person, if it was said, was not referring to this defendant.
And there is no reason to question this person about a phrase he may or may not or she may or may not have used because it doesn’t have anything to do with this case. It’s just the way some people talk. We pity them because of the way some people talk. It would not be appropriate to question this juror.
The Court:
Anything else, Mr. Burke?
Mr. Burke:
I haven’t seen the note the- — the Court hasn’t permitted me to see the note, so I don’t know exactly what it says. But I think the Court would have a duty to talk to this juror to inquire who this individual is so the Court could find out whether or not whoever said this is making it directed at my client, to find out whether or not this juror has animosity against African-Americans. And we’d ask the Court to do this.
The Court:
Okay, gentlemen, I’ve been going over this at least a half hour in my mind, so the Court has these comments: As I told you in chambers before I came out and read this, I think in my fifteen years I’ve only had this come up one time. And this is, to me, different than when you are doing a venire and ... you are questioning jurors individually with reference to statements they’ve made in the box and the attorneys want to bring them into the chambers and ask them in order for you to be able to rule to accept them as a juror or not accept them as a juror.
And also, I think it’s different than in a capital case where you even have to go more in depth as to jury qualifications.
The Court’s position on this is it cannot, this lady asked me not to divulge her name nor the name of the person who made the statement. To do so, I would lose her confidence and possibly the confidence of all of the jurors, because she made a confidential statement to me.
Also, in doing so, the person who made the statement would know that someone on the jury box has said something, so I think it would disrupt the complete function of the jury, what they are here for. And in that light, the Court when I bring them in prior to your opening statements, I’m going to do my little thing about not talking to people, if we see them in the hall, etc.
IfiAnd I’m going to go one step further, though, and use the portion that I use in my jury instructions at the end that jurors are not to be influenced by sympathy, passion, prejudice or public opinion. And I am going to caution them that they are to listen to the evidence, make their decision upon the evidence presented and reach a just verdict. So that is how the Court is going to approach it.
Mr. Burke:
We would object to the Court’s ruling, respectfully object to the Court’s ruling, Judge. And we’d ask that the note of the juror be placed in the record and that if the Court deems it needs to be sealed, that it be sealed.

A criminal defendant has a Sixth Amendment right to a “fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). Louisiana Code of Criminal Procedure article 797 protects a defendant’s right to an impartial jury. See also La. Const, art. 1, § 16.

The instant matter presents us with a disturbing, but somewhat unique set of facts and, as such, Louisiana jurisprudence provides little guidance for resolution of this case. Similarly, the defendant notes in his brief that he found no state cases on point. Accordingly, he cites federal and non-Louisiana case law. The state cites no Louisiana cases regarding these first six assignments of error, and only discusses the two cases mainly relied on by the defendant, namely United States v. Heller, 785 F.2d 1524 (11th Cir.1986) and Wright v. CTL Distribution, Inc., 650 So.2d 641 (Fla.App.2d Dist.1995).

In Heller, approximately one day after jury deliberations had begun, a jury note was sent to the trial judge asking if the issue, inter alia, that some ethnic slurs were made should be addressed. The judge ordered the jury to stop deliberating and, upon questioning the jurors, learned that ethnic and racial slurs, including use of the term at issue herein, had been bandied about dui’ing deliberations, with many of the slurs directed toward the defendant. The judge concluded his questioning of the jurors by asking them individually whether, in light of what had occurred in the _yury room, they would still be able to reach a decision based strictly on the evidence and the law without bias or prejudice. Each juror affinned he would be able to make such a decision. The judge then permitted the jurors to continue their deliberations despite several defense motions for mistrial. Heller, 785 F.2d at 1525-27.

On review, the Eleventh Circuit held the district court should have granted a mistrial after learning of the racial and ethnic slurs by certain jurors during deliberations. The court further found the trial judge’s individual questioning of the jurors, which was superficial at best in that it consisted mainly of asking them if they were affected by prejudice, was insufficient. Heller, 785 F.2d at 1527-28. The court noted that “racism and anti-Semi-tism remain ugly malignancies” and that a “racially or religiously biased individual harbors certain negative stereotypes which, despite his protestations to the contrary, may well prevent him or her from making decisions based solely on the facts and law that our jury system requires.” Heller, 785 F.2d at 1527.

In Wright, the African-American plaintiff, who was involved in a motor vehicle accident, brought a negligence suit against the driver and owner of the truck that hit her. An all-white jury returned a verdict finding Wright 70 percent negligent. The day after the verdict was entered, juror Laura Reardon contacted the appellants’ counsel through Reardon’s attorney and described jury misconduct occurring during deliberations. Reardon executed a sworn affidavit in which she stated that racial slurs and comments occurred during deliberations. She stated she heard several members of the jury say they did not want to award anything to Wright because she was a fat black woman on welfare who would simply blow the money on liquor, cigarettes, jai alai, bingo or the dog track. Wright, 650 So.2d at 642.

| sIn reversing the trial court’s denial of Wright’s motion for new trial or motion to conduct a post-trial interview based on jury misconduct, the court of appeal found:

[T]he alleged racial slurs and derogatory racial comments the jurors made during deliberations in this case may have denied the appellants a fair and impartial trial. Moreover, the trial court did not even afford the appellants an opportunity to inquire of the jury regarding the alleged prejudice.- The trial court simply dismissed the accusations of bigotry in Reardon’s affidavit and denied the appellants’ motion for new trial. At the very least, appellants must have an opportunity to determine the truth or falsity of the allegations made by Reardon.
If Reardon’s allegations are true, a jury interview will not suffice due to the extreme racial comments made by the jurors. Any attempt by the jurors to characterize their racially charged comments would have no effect of erasing prejudice and bigotry so evident. It is an abuse of discretion for the trial court to refuse to declare a mistrial upon learning of juror misconduct. (Citations omitted). Wright, 650 So.2d at 643.

While Heller and Wright are distinguishable from the instant matter in that the religious or racial epithets in those cases were ostensibly more pervasive and, more importantly, directed toward the criminal defendant and civil plaintiff, we find their treatment of the issue of biased jurors therein to be instructive. The letter given to the trial judge in this case indicated the offending juror did not direct his racial slur toward the defendant. The State in its brief points out, as well, that the isolated instance was not directed toward the defendant. We find this distinction, however, to be of no moment. As noted by the court in United States v. Henley, 238 F.3d 1111, 1121 (9th Cir.2001), when dispelling a similar argument put forth by the government, “We have considerable difficulty accepting the government’s assumption that, at this time in our history, people who use the word ‘nigger’ are not racially biased.”

In People v. Jones, 105 Ill.2d 342, 351-52, 86 Ill.Dec. 453, 475 N.E.2d 832, 836-37 (Ill.1985), where the defendant was African-American, a juror who brought racist material into the jury room was replaced by an alternate juror who had not seen the | ^material. Similarly, the trial judge in the instant case should have removed the offending juror and replaced him with the alternate juror. That option notwithstanding, the trial judge, at the very least, should have investigated the matter. See Henley, 238 F.3d at 1121-22 (where the court found a hearing should have been held by the lower court to determine a juror’s alleged statements and racial bias). On the record before us, we conclude that simply hearing argument from both counsel, while neglecting to question a single juror, was not a sufficient remedy for ensuring a fair and impartial jury. We further conclude that the defendant’s right to a fair and impartial jury outweighed the concerns, as noted by the trial judge, of disrupting the “function of the jury” or losing the confidence of the juror who brought the note.

At sentencing, the defendant’s motion for a new trial, addressing the same racial epithet issue, was argued before a different judge. The sentencing judge, who was not the same person as the trial judge, stated that he had read the note given to the trial judge. He acknowledged he found the racial term offensive to the defendant and to the court. However, in denying the motion for a new trial, he did not find from his “review of the record and consideration of this matter that an injustice was done to this defendant relative to the jury’s finding of guilty.” In accordance with the foregoing discussion, we find the sentencing judge likewise erred in denying the defendant’s motion for new trial. As the record demonstrates, the trial judge was apprised of the issue of the offending juror even before the first witness was called at trial. The issue is whether such language reflected undisclosed bias by a tainted juror or jurors could and should have been addressed and remedied at that point. Instead, nothing was done. Thus, an important issue remains, but cannot be resolved, %.e., the extent to which the jury, as a whole, may have been tainted.

| ipThe State concedes to the “heinousness of the term at issue.” We agree. We find that the use of such a pernicious racial slur by a juror, whether specifically directed at the African-American defendant or not, and with limited initiative on the part of the trial judge to rectify the situation, warrants a new trial. There are circumstances, such as these, which show such a probability that prejudice will result that the trial is deemed inherently lacking in due process. See Estes v. Texas, 381 U.S. 532, 542-43, 85 S.Ct. 1628, 1632-33, 14 L.Ed.2d 543 (1965); Jones, 105 Ill.2d at 352, 86 Ill.Dec. 453, 475 N.E.2d at 837.

We acknowledge the difficult issues faced by the judges below, as well as their well-intentioned efforts to address the situation presented at trial. However, on the record before us, we find that the trial judge erred in failing to properly investigate the matter by, at the very least, conducting his own voir dire of the jurors. The sentencing judge likewise erred in failing to grant the defendant’s motion for a new trial. Accordingly, these assignments of error have merit. The defendant’s conviction and sentence are thus vacated. The matter is remanded for a new trial.

ASSIGNMENT OF ERROR NO. 7

In his seventh assignment of error, the defendant argues he was convicted by an 11-1 non-unanimous verdict in violation of the United States and Louisiana Constitutions. Specifically, the defendant contends that LSA-C.Cr.P. art. 782(A) violates the Sixth Amendment right to a jury trial since it must be considered in light of the Fourteenth Amendment right to due process of law. Having found reversible error, we normally would pretermit consideration of all remaining assignments of error. However, because there is a high probability that the issue raised in this assignment of error will arise again on remand, we will consider this issue now. See State v. Griffin, 2007-0974, p. 21 (La.App. 1st Cir.2/8/08), 984 So.2d 97, 114.

The punishment for a conviction under LSA-R.S. 14:95(E) is confinement at hard labor. Louisiana Constitution article I, § 17(A) and Louisiana Code of Criminal Procedure article 782(A) provide that in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate a defendant’s right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726 (La.1982); State v. Shanks, 97-1885, pp. 15-16 (La.App. 1st Cir.6/29/98), 715 So.2d 157, 164-65.

The defendant suggests that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), which emphasize the necessity of a unanimous verdict, “implicitly overrule the prior anomalous holding in Apodaca, and must be taken account of by this Court.” This argument has been repeatedly rejected by this court and our supreme court. Our supreme court has very x-ecently affirmed the constitutionality of Article 782. See State v. Bertrand, 2008-2215 (La.3/17/09), 6 So.3d 738. The Bertrand Court specifically found that a non-unanimous 12-person jury verdict is constitutional and that Article 782 does not violate the Fifth, Sixth, and Fourteenth Amendments. Bertrand, 2008-2215 at p. 8, 6 So.3d at 743.

This assignment of error is without merit.

|12DECREE

For the above and foregoing reasons, we vacate the defendant’s conviction and sentence. The matter is hereby remanded for a new trial.

CONVICTION AND SENTENCE VACATED; REMANDED FOR A NEW TRIAL.

HUGHES, J., dissents.

      . The defendant was also charged with possession of cocaine, a violation of LSA-R.S. 40:967(C). The State nol-prossed this charge.

      . Although the defendant's brief refers to six assignments in the heading or caption, the issue of sufficiency of the evidence, raised in the sixth assignment of error, was not actually argued in this appeal or briefed. As such, this assignment of error is considered abandoned. See Uniform Rules — Courts of Appeal, Rule 2-12.4.