author: STEWART, J.

text:
    CADDO GAS GATHERING L.L.C., Plaintiff-Appellee, v. REGENCY INTRASTATE GAS LLC, Defendant-Appellant.
    No. 44,851-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 12, 2009.

      Gordon, Arata, McCollam, Duplantis & Eagan by John M. McCollam, Scott A. O’Connor, Dana Dupre, New Orleans, for Appellant.
    Blanchard, Walker, O’Quin & Roberts by W. Michael Adams, B. Slattery Johnson, Jr., Shreveport, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   STEWART, J.

| iThis is a contract dispute between Regency Intrastate Gas, L.L.C., (hereafter “Regency”), and Caddo Gas Gathering, L.L.C., (hereafter “Caddo Gas”), involving an agreement for the transportation of natural gas through a pipeline owned by Regency. The trial court rendered a summary judgment dismissing Regency’s re-conventional demand for a judgment declaring the term provision of the gas transportation agreement to be of indefinite duration subject to termination by either party upon reasonable notice in accordance with La. C.C. art. 2024. Because we find that La. C.C. art. 2024 does not apply to the term provision and for reasons otherwise explained in this opinion, we affirm.

FACTS

Caddo Gas and Regency are the successors to the original parties of the agreement that is the subject of this dispute. Caddo Gas’s predecessor, Shreveport Intrastate Gas Transmission, Ltd., (“SIG”), was the lessee of a pipeline know as the “Elm Grove Pipeline System,” which was owned by the lessor, Southwestern Electric Power Company (“SWEPCO”). By letter agreement dated April 15, 1988, SIG sold and assigned the “Pipeline Lease with Option to Purchase” (hereafter the “pipeline lease”), to Gulf States Gas Corporation (“Gulf States”), Regency’s predecessor. The price of the sale and assignment was one million dollars ($1,000,000.00). The agreement further provided, “As additional consideration, Seller [SIG] shall reserve for itself, its affiliates, its successors and assigns, the right to transport gas through the Elm Grove System” under specified terms and conditions. | ^Specifically, SIG reserved the right to transport up to 15,-000 MMbtu per day at a rate of five cents per MMbtu.

The reservation of gas transport rights by SIG was memorialized in a “Gas Transportation Agreement” (hereafter the “transportation agreement”), with Gulf States dated June 1,1988. Of relevance to this dispute is the following provision:

6. TERM. Subject to the other provisions of the Agreement and the Standard Terms and Conditions, this Agreement shall remain in force and effect from the date hereof for a term coextensive with the ownership or use of the Elm Grove System by Transporter or its successors or assigns.

The transportation agreement was partly amended in August 1995, by three letter agreements between successors to the original parties. The letter agreements resolved a dispute about the gas delivery-pressure for the pipeline system but made no change to the term specified in the 1988 transportation agreement.

At present, Regency is the owner of the pipeline system and is obligated, as provided in the above described agreements from 1988 and 1995, to transport natural gas supplied by Caddo Gas. The instant suit was filed by Caddo Gas on July 14, 2006, after Regency refused a request to provide transportation from a specific receipt point on the grounds that the receipt point was not included in the above agreements. Regency reconvened to request a declaratory judgment interpreting the term provision of the transportation agreement. Regency’s reconventional demand asserted that the term stated in the transportation agreement is of ^unspecified duration and that it may be terminated by either party upon reasonable notice as provided by La. C.C. art. 2024.

The parties filed cross motions for summary judgment on the interpretation of the term provision. While Regency argued that the term of the transportation agreement was of unspecified duration, Caddo Gas argued that the transportation agreement was subject to a resolutory condition based on a definite and ascertainable event, namely, the cessation of ownership or use of the pipeline by Regency. After the parties fully expressed their competing positions in volleying memoran-da, the trial court heard arguments and granted summary judgment in favor of Caddo Gas dismissing Regency’s reconven-tional demand. The trial court found La. C.C. art. 2024 inapplicable. Rather, the trial court determined that Regency was bound by an obligation to do under the transportation agreement. While the term of the obligation was not fixed, it was determinable by the occurrence of a future and certain event identified as the point when the pipeline will cease to be used. The trial court found this to be a resoluto-ry condition subject to Regency’s control and exercise of good faith. Regency’s appeal followed.

DISCUSSION

The interpretation of a contract, which typically presents a question of law, is a matter appropriate for summary judgment. Will-Drill Resources, Inc. v. Huggs Inc., 32,179 (La.App.2d Cir.8/18/99), 738 So.2d 1196, writ denied, 99-2957 (La.12/17/99), 751 So.2d 885; Total Minatome Corp. v. Union Texas Products, Corp., 33,433 (La.App.2d Cir.8/23/00), 766 So.2d 685.

The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law. La. C.C.P. art. 966(A)(2). Summary judgments are subject to a de novo review on appeal with the court applying the same criteria as the trial court when determining whether summary judgment is appropriate. Total Minatome, supra. A motion for summary judgment is properly granted when the pleadings, answers to interrogatories, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear, explicit, and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. Words used in a contract must be given their generally prevailing meaning. La. C.C. art. 2047. Each provision of a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. Although a contract may be worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include. La. C.C. art. 2051.

The transportation agreement provision at issue states:

6. TERM. Subject to the other provisions of the Agreement and the Standard Terms and Conditions, this Agreement shall remain in |5force and effect from the date hereof for a term coextensive with the ownership or use of the Elm Grove System by Transporter or its successors or assigns.

While the term language appears clear and unambiguous, the parties disagree as to its interpretation. Regency interprets the term provision as one of unspecified duration that is neither certain, fixed, nor determinable. Because the term is tied to ownership or me of the pipeline system by the transporter, its successors or assigns, Regency asserts that the term contemplates a perpetual existence and that the obligation to transport would continue even after it, its successors or assigns cease use of the pipeline. On the other hand, Caddo Gas maintains that the term is tied to a determinable future event and that the gas transportation agreement contemplates an operating pipeline system. According to Caddo Gas, when Regency, its successors or assigns no longer operate the system, then the obligation to transport gas ends.

The question presented by Regency’s appeal is whether the term of the gas transportation agreement is of unspecified duration. La. C.C. art. 2024 states, “A contract of unspecified duration may be terminated at the will of either party by giving notice, reasonable in time and form, to the other party.” Because duration refers to the term of the contract, Article 2024 should be read in pan materia with provisions regarding the term of obligations. La. C.C. art. 13; Schultz v. Hill, 2002-0835 (La.App. 1st Cir.2/14/03), 840 So.2d 641, writ denied, 2003-1259 (La.9/5/03), 852 So.2d 1043. The term for the performance of an obligation is explained in La. C.C. art. 1778:

|fiA term for the performance of an obligation is a period of time either certain or uncertain. It is certain when it is fixed. It is uncertain when it is not fixed but is determinable either by the intent of the parties or by the occurrence of a future and certain event. It is also uncertain when it is not determinable, in which case the obligation must be performed within a reasonable time.

As described in Article 1778, a term may be either certain and fixed, uncertain but determinable, or uncertain and undeter-minable. The term of the transportation agreement is not certain and fixed. Thus, we must examine whether the term is either uncertain but determinable or uncertain and undeterminable and whether Article 2024 applies.

In Schultz, supra, the court analyzed Article 2024 in reference to Article 1778 and concluded that contracts of unspecified duration are the same as contracts whose terms are uncertain and un-determinable. Schultz, 2002-0835, p. 6, 840 So.2d at 645. However, contracts whose terms are fixed with reference to the happening of a future event are of specified duration and Article 2024 is inapplicable. Id. The Schultz comb further explained that

[A]n uncertain term that is determinable by reference to the happening of a future event is valid and enforceable, even though the date of the happening of that future event cannot be known until its occurrence.

Id.

Applying these principles, the Schultz court held that contracts for payment of commissions to a real estate agent based on “monies collected during the initial term, options, renewals, extensions, assignments or additional leases with the Tenant” had a determinable term identified by the court as the termination of the tenancies. Under the commissions contracts |7as interpreted by the appellate court, the obligor, Dr. Hill, was obligated to perform by paying commissions to his real estate agent until the tenancies obtained by the agent terminated. The court concluded that once the tenancy ends, the contract for payment of commissions ends. Even though the end of a tenancy was not certain or fixed, it was an event that would happen some time in the future and was therefore determinable. The contracts were not of unspecified duration, and Article 2024 did not apply.

In State ex rel. Guste v. Orkin Exterminating Company, Inc., 528 So.2d 198 (La.App. 4th Cir.1988), writ denied, 533 So.2d 18 (La.1988), reconsideration denied, 536 So.2d 1209 (La.1989), the court rejected Orkin’s contention that pest control contracts for the lifetime of the treated structure were of indefinite duration and terminable at the will of either party. Instead, the court reasoned that the lifetime of a structure is a definite and ascertainable period that renders “the duration of the contract definite and certain.” Id., at 201. The court explained, “Contracts may be uncertain as to point of time when they will terminate, so long as there is no uncertainty as to the event which will bring about their termination.” Id.

Under the gas transportation agreement, Regency as the transporter is obligated to receive, transport and redeliver a specified quantity of gas from Caddo Gas. This is an obligation to do on the part of Regency. (See La. C.C. art. 1756, performance by the obligor may consist of giving, doing, or not doing something.) The term provision describes the period during which the obligation to transport is to remain in force and effect. The obligation can be performed only so long as gas flows from the wells to the pipeline Rand/or the pipeline remains useable. Applying the same principles utilized in the Schultz and Orkin cases, we find the term of the gas transportation agreement to be determinable by reference to the happening of a future event.

At first blush Regency’s argument regarding ownership of the pipeline extending indefinitely through successors and assigns appears persuasive, particularly in light of the seemingly clear and unambiguous language of the term provision. However, this interpretation would lead to absurd results. Ownership could potentially exceed the life of the pipeline system. Once the pipeline system is no longer useable, such as through exhaustion of the gas supply, then Regency, its successors, or assigns will either voluntarily or by necessity cease to use the pipeline. It would then be absurd to insist that Regency, its successors, or assigns are still bound by the transportation agreement through ownership of the then useless pipeline system. While it is not certain when the pipeline will cease to be used or when gas will cease to flow from the areas serviced by the pipeline, these events will one day take place. Though the term is uncertain, it is certainly determinable by reference to the happening of future events.

Considering the transportation agreement in the context of the full agreement between the parties’ predecessors, we find that the agreement is subject to a resolutory condition. An obligation that is subject to a resolutory condition may be immediately enforced but will come to an end when an uncertain event occurs. La. C.C. art. 1767. Conditions may be expressed in a stipulation or implied by the law, the nature of the contract, [¡¡or the intent of the parties. La. C.C. art. 1768. Here, the resolutory condition is implied by the nature of the 1988 agreements and the intent of the parties as is evident from those agreements.

Caddo Gas’s predecessor, SIG, sold and assigned its lease rights to the Elm Grove Pipeline System to Regency’s predecessor, Gulf States, by agreement on April 15, 1988, which states:

As additional consideration, Seller shall reserve for itself, its affiliates, its successors and assigns, the right to transport gas through the Elm Grove System under the following terms and conditions....

This reservation of the right to transport gas through the pipeline system was then more completely set forth in the transportation agreement, which was

entered into in furtherance of contract between the parties dated April 15, 1988 and in the event of any conflict, the April 15, 1988 contract shall control. The April 15, 1988 contract is in eorpo-rated [sic] herein by reference.

Both the April 15, 1988 agreement and the gas transportation agreement specify the maximum amount of gas that SIG could transport, the transport fee, and the receipt point pressure.

SIG’s right to transport gas through the pipeline system was immediately enforceable upon confection of the 1988 agreements. The term specified in the transportation agreement was “coextensive with the ownership or use of the Elm Grove System by Transporter or its successors or assigns.” SIG reserved the right to transport a specified quantity of gas at a set price as “additional consideration” for selling and assigning its pipeline lease rights. This consideration for the sale and assignment of the | ]nlease rights would be meaningless if the right to transport gas through the pipeline system could be terminated by Gulf States, now Regency, upon reasonable notice. Clearly, the reservation of transport rights as additional consideration and the language making the term of the gas transportation agreement coextensive with the ownership or use of the pipeline system indicates the parties’ intent for SIG, now Caddo Gas, to have the right to transport for the life of the system. In selling and assigning its pipeline lease to Gulf States, SIG bargained for the right to continue transporting a set amount of gas at a favorable rate. Implicit in this reservation of the right to transport gas through the pipeline system is the understanding that the agreement would remain in effect as long as the system continues to operate. However, once the gas stops flowing and the system is no longer usable, then the obligation to transport will end.

This interpretation is further supported by the August 1995 letter agreements which reference the transport rights reserved as “additional consideration” in the 1988 pipeline assignment and sale. In exchange for allowing Regency’s predecessor to exceed the agreed upon gas delivery pressure, Caddo Gas’s predecessor negotiated the right to transport from additional receipt points along the pipeline system. The 1995 agreements indicate the continuation of a long-term relationship based on the “additional consideration” for the sale and assignment of the valuable pipeline rights by Caddo Gas’s predecessor, SIG, to Regency’s predecessor, Gulf States.

|nIn sum, we find no merit to Regency’s argument that the transportation agreement provides for perpetual existence of the parties’ contractual relationship and that it must be considered a contract of unspecified duration subject to termination upon reasonable notice as allowed by La. C.C. art. 2024. Application of the plain language of the term provision, as urged by Regency, would lead to absurd results. Once the gas ceases to flow and the pipeline system is no longer used, the obligation to transport can no longer be performed even if the system is still “owned” by Regency, its successors, or assigns. The obligation is subject to a resolutory condition the occurrence of which will end the agreement.

Although Caddo Gas filed a peremptory exception of res judicata for the first time on appeal, our holding in favor of Caddo Gas renders its exception moot.

CONCLUSION

For the reasons stated, we find that summary judgment in favor of Caddo Gas Gathering, L.L.C., and dismissing the re-conventional demand of Regency Intrastate Gas, L.L.C., was properly granted as a matter of law. Costs of appeal are assessed to plaintiff-in-reconvention, Regency.

AFFIRMED.

      . MMbtu refers to one million British thermal units of natural gas.


source: Caselaw Access Project

author: DREW, J. CARAWAY, J.,

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Kelton GREENARD (No. 44,681-KA), Appellant, Arthur G. Henderson, III, (No. 44,682-KA), Appellant, Anthony L. Combs (No. 44,683-KA), Appellant.
    Nos. 44,681-KA, 44,682-KA, 44,683-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 12, 2009.

      Larry English, Shreveport, for Appellants.
    Louis Granderson Scott, for Kelton Greenard and Arthur G. Henderson, III.
    Patrick O’Neal Jefferson, Homer, for Anthony L. Combs.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, John W. Montgomery, C. Sherburne Sen-tell, III, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   DREW, J.

|, Alex Harris, a juvenile, died at Hope Youth Ranch (“HYR”) shortly after 3:00 p.m. on September 13, 2005. Three employees of HYR (Kelton Greenard, Arthur G. Henderson, III, and Anthony L. Combs) waived their rights to a jury trial and were convicted at a consolidated bench trial of both negligent homicide and cruelty to juveniles. They appeal, urging insufficiency of the evidence, erroneous admission of hearsay, and double jeopardy. Defendants failed to brief the hearsay issue, so we consider that assignment of error to be abandoned. La. URCA Rule 2-12.4.

We find the evidence in this record insufficient to prove beyond a reasonable doubt that the criminal negligence of these defendants caused the death of the child in question. Therefore, the negligent homicide convictions are reversed.

This finding moots the defendant’s double jeopardy claim, as our result is the same as if we had found a double jeopardy violation.

We affirm each of the cruelty to juveniles convictions and remand the matters for individualized resentencing.

I. SUFFICIENCY OF THE EVIDENCE

Our law on review for sufficiency of the evidence is well settled.

| ,11. FACTUAL OVERVIEW

Because of Hurricane Katrina, dozens of juvenile justice residents were evacuated from south Louisiana to HYR, a juvenile residential facility located in rural Webster Parish, Louisiana. Two weeks after the storm, the local staff was stretched beyond tight, since few south Louisiana supervisory personnel remained at HYR.

On September 18, 2005, the temperature was in the 90s; the heat index was 103 degrees. Alex Harris, a small but apparently healthy child, was a month shy of becoming 13 years of age, and was a resident at HYR. A disruptive malingerer by reputation, Alex was an ungovernable child. He had been referred to HYR by the Louisiana Office of Human Development, an agency that had received the child into their care from the court system. As a result of his acting out, he was placed on in-school suspension. His punishment commenced about 9:00 a.m. that day. A little over six hours 1,slater, he was dead. At all times that day, Alex was under the direct supervision of various employees of HYR.

After an inconclusive initial autopsy by a forensic pathologist, an extensive investigation was conducted by the Louisiana State Police (“LSP”). Months later, the pathologist met with the LSP investigator and reviewed the LSP work product. The pathologist then amended the cause of death to “environmental hyperthermia with blunt force head trauma.”

There are no heroes or winners in this sad tale, and there is no happy ending. The HYR hierarchy runs from the owners/managers/administrators at the very top, descending through various layers of supervisory personnel, all the way down to the lowest echelon- — the direct care staff, which included Greenard, Henderson, and Combs.

No one involved at HYR acquitted himself well in this tragedy. Possibly a dozen people could have made a difference, but no one did so. This is a story of institutional dysfunction, and it is not pretty. Exhibited that day was a systemic and callous indifference to the well-being of the residents at HYR, in particular the perceived troublemaker, Alex Harris. We agree with the trial court when it remarked, “I think what did occur, this is an indictment, of course, of the Hope Youth Ranch as a whole[.]”

Eight people were initially arrested. Charges against two of these ^original eight were dismissed early on, with the proviso that each would testify truthfully if called at trial. Neither testified.

Six persons were later charged by bill of information. Dismissals were entered against three of them on the morning of trial, on condition that they each testify truthfully, if called upon. None of the three testified.

Each defendant was sentenced to identical concurrent sentences of five years at hard labor, with three years suspended and two years of supervised probation after release, together with probationary conditions.

III. EIGHT WITNESSES

1. Christopher Haynes, HYR Agency Administrator, testified that HYR had no written policy on September 13, 2005, as to running being an acceptable or unacceptable punishment for a resident placed on in-school suspension. Nor was there a policy on September 13, 2005, as to how direct care staff should respond to a resident vomiting, it being more of a “judgment call.” He did not think that these defendant ran or struck the residents that afternoon.

Little else in his evasive testimony was helpful. The transcript is | sunclear as to whether Haynes was passing judgment on HYR reporting requirements and other issues in hindsight, relative to HYR policies on the day Alex died, or the HYR policies as of the date of trial. He did opine that these defendants did not violate any HYR policy.

2. Corey Zito, a teenager and former HYR resident, was 16 years of age on the date Alex died; he was 19 when he testified at trial. He and Alex were both on in-school suspension together for most of the day.

His memory was poor. For instance, he couldn’t even remember who of the direct care staff was with the suspended boys that morning. He also couldn’t recall who was with the juveniles that afternoon.

He did testify clearly that:

• Alex often tried to get out of doing his share of the work;
• he and Alex and others were worked hard that morning and made to “run the pipeline” several times;
• during the morning, Alex kept falling and crying;
• in response to these complaints, the supervising direct care staff member picked him up and told him to “keep on walking”;
• after lunch, Alex was pale, falling, and crying that he couldn’t continue;
• these three defendants never made them run them that afternoon;
• Alex fell a couple of times while walking up the hill that afternoon, one fall being hard and straight back;
• the others began to drag Alex up the hill that afternoon, and they were “not gentle with him”;
• he did not think that the three defendants saw that the other Lboys were dragging Alex;
• either Jarred or James tried to carry Alex, but dropped him on his back and side, after/as Alex vomited on him;
• he (Corey Zito) “may have kicked Alex”;
• he did recall thinking that Alex was faking, at least initially;
• Alex was made to lie in the sun, not in the shade, while on the hill, and he mostly lay very still; and
• he never saw Alex drink any water that afternoon.

Zito said that none of the boys ever hit Alex that day. The autopsy photos belie that statement. He also testified that the others in the work crew mowed around Alex that afternoon; this could not be confirmed from the photos in the record. Much of Zito’s testimony was halting, unclear, evasive, and self-serving. He responded with “I don’t know” or “I don’t remember” or “I’m not sure” two dozen times.

3. Sidney Stephens, another former HYR resident, was 11 years old on September 13, 2005, and 14 as of the trial. His memory was even worse than Zito’s, possibly because he was three years younger than Zito.

Stephens testified that:

• he saw a very pale Alex in the early afternoon, in the front office;
• that afternoon, the in-school suspension work crew of residents were made to run up the hill, except for Alex, who was thought to be “slacking”;
• Alex fell out every couple of minutes, so the direct care staff told them (the other five boys under suspension) to carry Alex up the hill;
• the three boys who tried to carry Alex were dragging his back on the ground, and occasionally let his head “touch” the ground, until the 17staff told them to stop;
• Alex was laid in the hot sun;
• the boys got one water break that afternoon, but Alex didn’t get any water, though one of the boys poured some water on him;
• Alex tried to get into a supervisor’s car, but was refused;
• running as punishment for suspension was common at HYR;
• Alex had never slacked off before, nor had he gotten in any more trouble than the others; and
• the trip up took about 10 minutes, and they worked on the hill for 40 minutes.

4. Dr. Frank Peretti, Forensic Pathologist, testified as to his autopsy of the child’s body. He found cerebral edema (massive swelling) of the brain “typical of head injury patients.”

Page two of Dr. Peretti’s autopsy report contains these surprising and remarkable scientific findings:

Based on the decedent’s body temperature, there is no evidence to suggest that his death was due to hyperther-mia. Vitreous chemistries do not show a dehydration pattern.

Seven months later, after consulting with LSP Detective Allen, the doctor changed the cause of death from “undetermined” to “environmental 18hyperthermia with blunt force head trauma.” At trial, Dr. Peretti was not asked to clarify and explain these apparently inconsistent findings.

The pathologist found bruises and scrapes over much of the child’s body. In particular, he found three bruises on the brain, consistent with being kicked or dropped. Dr. Paretti noted that if a person observed a child vomiting only, the observer would not be able to know of the child’s medical danger, since most people wouldn’t recognize the early stages of heat stroke. He further noted that a medically trained person should have realized the dire nature of a child’s health, if presented with knowledge of strenuous working and running in the heat, vomiting, cramps, and listlessness. He pointed out that hy-perthermia can come about suddenly, or in stages, and that advanced stages could reflect lethargy and sweating.

5. George Hardaway, HYR Ranch Manager, had worked there for six months as of September 13, 2005. He had seen several heat-related incidents at HYR. Shortly after 3:00 p.m. that day, he saw a wet and dirty Alex lying face-down on the asphalt parking lot of the HYR office. The child looked waxy, greenish-pale, and lifeless. There was a large crowd in the parking lot, including residents, direct care staff, and supervisors.

At that time, Hardaway heard Brian Crow, HYR’s Direct Care Staff Program Manager, remark: “He’s faking; he does it all the time.” Crow then picked up Alex by the waistband and chest, and moved the limp body to a golf cart in the shade. Alex could not hold his head up, stand, walk, or lasit up. Hardaway then saw the facility nurse come out, say something to Alex, go back inside, then return to conduct CPR on the boy.

6. Kelly Cash, LPN, HYR Director of Nursing, regularly conducted first-aid training at HYR. That morning, she had taught a medical attendant’s class from 10:00 a.m. until noon.

She saw Alex and the others in the work detail at 2:00 p.m., on the HYR parking lot, immediately before they started walking back up the hill. Alex called out for help about his cramps. She kept walking, advising him to drink water and to call her if the cramps got worse. As she did not think that Alex was in distress, she did not follow her nursing training mantra to “talk, touch, feel, look, and listen.” An hour later, another employee told her that Alex was laid out on the parking lot.

7.Det. Michael Allen, LSP Detective, was called early in the trial to identify a series of photos of HYR, each being admitted into evidence.

Recalled as the state’s last witness, Det. Allen primarily recounted his interviews with the three defendants. Concerning where Alex was laid during the afternoon work session, all three defendants told Allen that the boy was placed in the shade under a tree. Only the two juveniles who testified told him Alex was left in the sun. The trial court believed the boys.

Other salient points from his investigation included that:

• all or most of the supervisors were present at lunchtime;
• another HYR supervisor noticed at lunch that Alex was pale and had trouble standing and told his supervisor (unnamed at |10trial) of the boy’s distress, but the record does not reflect that any action was taken by that supervisor’s supervisor; and
• defendant Combs, who had just been given a ride down from the hill by Doyles, still had the mindset that Alex was merely malingering, as reflected by his telling his supervisor at 2:45 p.m. that “Alex wasn’t wanting to work or do anything.”

8. Ray Martinez, Founder of HYR, spoke briefly about the history of HYR, and the strain the facility was under due to the influx of South Louisiana juveniles post-Katrina. He confirmed that direct care staff should notify supervisors when observing medical problems with the children. Though the supervisors were primarily responsible for contacting the facility nurse, everyone was charged with the responsibility of caring for the kids, particularly in emergency situations. He testified that Alex often complained of illnesses in order to get out of work and other punishment.

IV. APPLICABLE LAW

On the day Alex died, these statutes were in effect, in pertinent part:

• La. R.S. 14:32 Negligent homicide
A. Negligent homicide is the killing of a human being by criminal negligence.
• La. R.S. 14:12 Criminal negligence
Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.
• La. R.S. 14:93 Cruelty to Juveniles ■ Cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child.

InV. FOUR TIME FRAMES

A. The Morning of September 13, 2005 (9:00 a.m. — 12 noon)

Two morning direct care staff members were in charge of working the in-school suspension kids that morning. Their job was to supervise the five or six suspended juveniles as they performed manual work projects as punishment for infractions such as not behaving in class. The two men put the young people through a strenuous workout, including running up a hill, mowing the grass, working in the barn, and then running punitive laps because of the refusal (or, as we now know, the inability) of Alex to work. The young man was falling and crying, complaining of exhaustion and pain in his leg. Perversely, one of the staff members at the scene made it clear to the other boys that the extra laps (“running the pipeline” in common HYR slang) were on account of Alex’s inac-tions.

It is therefore not surprising that the other boys, all by definition with behavioral problems themselves, took opportunities that morning, as they made their laps, to shove and taunt the prostrate Alex. They denied him water that morning, even as two staff members stood by, not intervening. |12After over two hours of this exhausting regimen, the boys, including Alex, were jogged back down the hill to the cafeteria.

B. Lunchtime (12:00 noon — 2:00 p.m.)

By this time, Alex had problems standing. He was hallucinating, fainting, and calling out strange names. Again he was denied water by the other boys. One of the juveniles testified that all of the supervisors were in the cafeteria during lunch. The inescapable conclusion is that someone should have intervened, since anyone should have been able to see and hear the distress of the child.

One supervisor present at lunch was Tasha Jackson, who:

• kicked Alex;

• ordered another employee to pull Alex away from where he was putting his head under the hand-washing faucets at the lunch room;

• jerked Alex off the floor;

• slammed him against the cafeteria wall; then

• took the 100-pound child out of the cafeteria for a few minutes. The record is silent as to what happened during that time.

At 2:00 p.m. on this hot September day, the boys were lined up in the parking lot, within feet of the HYR office and the HYR cafeteria, preparatory to the afternoon work detail. Alex spotted the facility nurse, Kelly Cash, LPN, about 30 yards away. He called out for help with his cramps. She never checked him. Instead, she kept on walking, advising him to drink plenty of water, and to call her if the problem continued. Nurse Cash knew that the boys had been working outside that morning. The boys then started walking up the hill in the blistering heat of the day.

113C. The Afternoon Work Detail (2:00 — 3:00 p.m.)

Greenard and Combs checked in for work timely at 2:00 p.m. Henderson was late. They were to supervise the boys during the afternoon work detail. All that Greenard and Combs were told about the morning was that Alex was trying to get out of work yet again. Nothing was told to them about his various physical symptoms and complaints that morning (crying, falling, pain), or about the extent of the abusive physical exertion he (and others) had undergone. They followed close behind the crew, in the comfort of an air-conditioned motor vehicle.

The record preponderates that at no time on this date did any of these three defendants make the boys run; nor did they ever kick or strike Alex.

After walking about four-tenths of a mile, Alex started complaining again. He lagged behind and began to fall down. Greenard and Combs told the boys to help him up the hill. The boys roughly dragged him on the ground for about a tenth of a mile, causing abrasions and contusions. One of the boys kicked him in the head. They struck him numerous times, the bruises being visible on the autopsy photographs. The boys soon tired of dragging him, so one of the boys put Alex on his back, continuing the trudge for another tenth of a mile, until Alex vomited on him, at which point he dropped Alex on his back and head. Greenard and Combs then allowed the boy to ride with them the last two-tenths of a mile.

At the time, HYR had no written policy regarding:

|14* running as punishment;

• mandatory water breaks in hot weather; or

• mandated responses to vomiting.

At the summit, the other boys continued mowing while Alex lay on the ground. Greenard and Combs insisted to Det. Allen that they laid him in the shade under a tree. Henderson also confirmed to Det. Allen that Alex was in the shade when he got there at 2:36 p.m. In contrast, the two juveniles testified at trial that Alex lay motionless in the hot sun, one of the very few facts about which the juvenile witnesses were clear and consistent. One of the boys even testified that the others mowed around Alex. On the strength of the testimony of the two juveniles, the trial court made the factual finding that Gree-nard and Combs left the child in the hot sun during the work detail.

At least four of the other five boys on the afternoon work crew would not allow Alex to drink at the water break. There is some testimony that one child poured water on Alex, or briefly and unsuccessfully tried to get him to drink as he lay on the ground.

11fiShift supervisor Willis Doyles gave the tardy Henderson a ride up the hill, arriving at 2:36 p.m. She would have observed the location of the child (sun or shade) at the scene, but did not testify. Upon her arrival, Greenard indicated that Alex was faking and/or wouldn’t work. She poured water on him and locked her vehicle, refusing to take him down the hill, essentially sealing his fate. She started back with Combs at 2:40 p.m. so he could get gasoline for the lawn mower.

Accordingly, the interaction of Combs and the victim ended then. When he arrived at the office about 2:45 p.m., Combs still thought Alex was faking, as reflected by his comment to his supervisor.

Shortly after Henderson arrived on the hill, he checked the child’s pulse.

On this date, none of these three defendants had responsibility for Alex before 2:00 p.m., at the earliest, or after 3:00 p.m., at the latest. In fact, this record reflects that each of these defendants spent the following very approximate amounts of time with Alex Harris on this date:

• Greenard, age 26 (a nine-month HYR employee), spent 60 minutes with Alex, from 2:00 until 3:00 p.m.;

• Combs, 38 (slightly more than a 12-month HYR employee), spent 40 minutes with him, from 2:00 until 2:40 p.m.;

• Henderson, age 23 (a two-year HYR employee), spent 20 minutes with Alex, from 2:40 until 3:00 p.m.

All three men had received 15 minutes’ training per year on the recognition of signs of illness. For Greenard that meant a total of 15 minutes; for Henderson and Combs, that meant a total of 30 minutes. The paperwork as to training looked fine; the reality was far less satisfactory.

| ^Títere were no thermometers at the work site.

Direct care staff were not permitted to have personal cell phones with them when working the boys. Unfortunately, the HYR internal communication phones were inoperative on this date. To have secured assistance, one of the direct care staff would have had to travel physically to the office. None did so.

At 2:58 p.m., Greenard and Henderson told the work crew to head back down the hill. The vehicle, with Alex in the back, was driven without urgency, traveling at the speed that the others could walk. Greenard told him during the ride to “quit faking it.” Alex had problems breathing and “seemed out of it.” Henderson checked his pulse again on the way down.

D. After the Work Detail (Post 3:00 p.m.)

At 3:00 p.m., Greenard and Henderson inexplicably laid Alex face-down on the asphalt parking lot, on a day with a heat index of 103 degrees. When Henderson and Greenard left the child where they did, they were criminally negligent, and the child suffered from this thoughtless act.

The child at this point was waxy, motionless, and unresponsive, apparently in the agonal moments of death. One supervisor tried ammonia sticks, to no avail, but thought he detected a carotid pulse. Nurse Cash could not find a pulse. Alex was moved out of the sun. Cash told others to | |7call 9-1-1 while she administered CPR, but it was too late. The child never responded to CPR administered by Nurse Cash nor to the lifesaving techniques utilized by the responding EMTs.

We have assembled this chronology from the Webster Parish Coroner’s Report (Joint Exhibit # 1), and the Complaint Report from 9-1-1 (Joint Exhibit # 2):

• 3:18 p.m. 9-1-1 call received.

• 3:19 p.m. Ambulance dispatched.

• 3:33 p.m. Ambulance arrived at HYR; EMTs worked on Alex but could detect no vital signs.

• 4:05 p.m. Ambulance left for hospital, no signs of life.

• 4:17 p.m. Ambulance arrived at Minden Medical Center.

• 4:18 p.m. Patient wheeled into the Emergency Room with CPR in progress, the body being in full rigor, with much lividity.

• 4:20 p.m. No vital signs, body temperature of 95 degrees.

• 4:24 p.m. Code canceled; patient expired.

The forensic pathologist’s theory that a child’s body would lose about one degree of temperature per hour for the first few hours after death is skewed by the proven facts of this case.

VI. DISPOSITION AND REASONING

Greenard, Combs, and Henderson, though only minimally trained, should have done much more to help Alex Harris that day. Their actions and inactions, however, didn’t kill the boy. For this young man to die required a perfect storm of inattentive and uncaring HYR personnel, up and 1 tfjdown the chain of command. The bottom line is that the inexorable descent toward death was well in place before these three men ever reported to work.

Notwithstanding the forensic pathologist’s unscientific final conclusion, we find that this record is ambiguous and contradictory as to the precise cause of death. Consequently, this record is insufficient to prove beyond a reasonable doubt that the defendants were guilty of negligent homicide. We accordingly vacate the negligent homicide convictions and acquit each of them on those charges.

Culpability for this tragedy can arguably be imputed to these persons:

• the other juveniles on the two work details that day, who made the child’s last hours a living hell by battering him, dragging him, taunting him, kicking him in the head, refusing to allow him to drink, and dropping him on the ground;

• the two direct care staff members who ran him that morning far beyond his limits, and who set him up to be physically and emotionally abused and denied water by the other children;

• the several supervisors and staff members at lunch who looked the other way as Alex was slumping to the floor, delirious, calling out to unknown people, and again being denied water by the other boys;

• the supervisor who ordered a staff member to remove Alex from the hand-washing area, where he was putting his head under the water;

• the same supervisor who kicked Alex, slammed him against the wall, and took the 100-pound boy outside for some unknown reason;

• the facility nurse who wouldn’t take 15-20 steps to check on a boy who was complaining of cramps shortly before 2:00 p.m. on a blistering hot day, when she knew that the boys had been working outside that morning;

• the administration and management of this facility, who neglected to implement and follow through on safeguards to protect the physical health and safety of their residents; and

|19* in particular, the policymakers who allowed “group motivation” and “running the pipeline” to become the norm at HYR.

The fact that we perceive others also to be grievously at fault does not excuse the actions or inactions of these defendants. Our review is limited to the culpability of these three men who were actually prosecuted. Our focus is narrowly drawn as to what they did and didn’t do, during their respective minutes of supervision of the decedent, during an overall one hour time period from 2:00 until 3:00 p.m. on this terrible day.

The state stipulated that these men did not intend to harm the child. That being so, the only way to prove cruelty to juveniles was by showing that these men acted with criminal negligence. The state has done so.

The clearest acts of criminal negligence, leading to a finding of cruelty to juveniles would certainly include, inter alia:

• Greenard and Combs letting the boys hit and drag him up the hill;

• Greenard and Combs leaving him in the sun on the hill for the better part of an hour, as the trial court specifically found;

• all three men being unresponsive to the child’s physical problems during portions of this hour, failing to make certain he had water, and then failing to timely seek medical assistance; and

• Greenard and Henderson laying the child face-down on the hot asphalt when the afternoon work session ended.

Greenard is most clearly guilty of the three, simply because he was the only one who was with Alex at all relevant times during the afternoon work hour. Next would be Combs, who left toward the end of the work hour with Doyles. Least culpable would be Henderson, who had been tardy in arriving at work, not arriving up on the hill until 2:36 p.m., meaning he | gpspent the least time with Alex that day.

But all three are guilty of cruelty to juveniles.

There is not a good way to die, but Alex suffered unnecessarily during his final moments, and for that these three defendants are criminally responsible. Greenard, Combs, and Henderson were criminally negligent in their treatment of the juvenile on September 13, 2005, causing Alex to withstand additional pain and suffering.

Thoroughly reviewing this record, we cannot say that the trial court was clearly wrong in its factual and legal conclusions in finding these men guilty of cruelty to juveniles. Accordingly, we remand each case for individualized resentencing on the one charge.

DECREE

Convictions for negligent homicide are REVERSED AND VACATED; convictions for cruelty to juveniles are AFFIRMED; and the matters are REMANDED for resentencing.

CARAWAY, J., concurs with written reasons.

CARAWAY, J.,

concurring.

hi concur in the ruling which affirms the defendants’ convictions for cruelty to a juvenile and reverses the negligent homicide convictions. I also agree that there were negligent acts pertaining to the child by others at Hope Youth Ranch. However, the issue of criminal negligence can only be measured from this record regarding the actions of these three defendants.

Both of the crimes with which these defendants were charged involved the “criminal negligence” which harmed Alex and caused his death. Under La. R.S. 14:12, “criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” The crime of cruelty to a juvenile results in the unjustifiable pain and suffering of the child, while negligent homicide addresses the child’s death. If criminal negligence as so defined is completely devoid of any requisite mental intent, then the convictions of both crimes in this case — criminal negligence to a child that causes pain and criminal negligence that causes death— should be affirmed. On the other hand, if there is a state of mind or mens rea element involved, a distinction regarding the nature of the criminal negligence in this case may exist, allowing for conviction for one crime but not the other.

In State v. Martin, 539 So.2d 1235 (La.1989), the Louisiana Supreme Court addressed the issue of the mens rea, or what it repeatedly referenced as the “requisite mental state,” for criminal negligence under our law. The |2case involved a negligent homicide conviction of a defendant who was drag racing against another automobile on a public highway. The vehicle driven by the other driver actually crashed into the victim’s vehicle causing the death, and the defendant was charged as a principal to the crime. Citing the definition of criminal negligence under La. R.S. 14:12, the court held that the state’s burden was to prove beyond a reasonable doubt that the defendant was “criminally negligent and thereby had the requisite mental state.” Id. at 1238. The court then upheld the conviction finding that the defendant “possessed the requisite mental state.” Id.

In another negligent homicide case, this court cited the Martin ruling and expressed the mens rea element for criminal negligence as follows:

The defendants possessed the requisite “negative” mental state of gross disregard for the consequences of their actions and for the interest of others.

State v. Beason, 26,725 (La.App.2d Cir.4/7/95), 653 So.2d 1274, 1280.

Another important jurisprudential consideration of the criminal negligence standard was provided by Judge Hall (later Justice Hall) in his opinion on this court, State v. Crawford, 471 So.2d 778 (La.App. 2d Cir.1985). Noting that the reporter’s comment to La. R.S. 14:12 references the gross negligence concept of the Restatement of Torts, the court states:

Criminal liability is always predicated not upon mere negligence or carelessness but upon that degree of negligence or carelessness which is denominated “gross” and which constitutes so great a departure from that of a reasonable man that a reasonable man would have realized the risk. Thus, the actor’s conduct reflects a reckless disregard for the safety of another.

Restatement Second of the Law of Torts § 500 provides:

|sThe actor’s conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.

Id. at 780-781.

Further understanding of the mens rea element of criminal negligence is obtained by comparison to our definition of general criminal intent. “General criminal intent is present ... when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La. R.S. 14:10(2). In contrast, while not adverting to the consequences, the criminally negligent actor has a mental state which disregards the interests of others. While the potentially harmful consequences on others may not circumstantially be apparent “as reasonably certain to result from his act,” the criminally negligent actor understands that his action can involve the interests of others and he recklessly disregards those interests.

The most recent negligent homicide ruling of our Supreme Court involved a deer hunting accident in which one hunter shot and killed his friend and fellow hunter. State v. Desoto, 07-1804 (La.3/17/09), 6 So.3d 141. The hunter was convicted by a jury, and his conviction was affirmed. The shooting occurred twenty minutes after sunset, and from the defendant’s statements, he admitted knowing that his friend had left a nearby deer stand close to the time of the shooting and had been moving JJnto the same field as the deer which defendant purportedly saw. Under these circumstances, the defendant’s awareness of the higher probability of the victim’s presence in the area was of significant importance for the determination of criminal negligence, and the court could distinguish another similar hunting accident case where a gross disregard for human safety was not shown.

With the present two charges, I believe that our concept of criminal negligence does allow for a distinction regarding the “disregard” of the risk of harm to Alex, which these defendants’ actions and inac-tions exhibited. The circumstances indicate that the defendants should have realized the unjustified pain and suffering which Alex suffered from the heat and actions of the other children. Since we have held that the crime of cruelty to a juvenile is a general intent crime, the defendants’ inaction could even amount to intentional neglect. The circumstances surrounding their inaction indicate that they must have adverted to Alex’s pain and suffering as reasonably certain to have been occurring. But if not, there is no reasonable doubt that they witnessed and could understand his distress so that their disregard of his condition amounted to a gross deviation below the standard of care expected of them.

Nevertheless, did they realize the risk of death and understand that Alex’s distress and pain involved a high degree of probability of death? The reasonable doubt concerning that question for me stems from all the other factors harmful to Alex occurring before the 2:00 p.m. shift of which these defendants were presumably unaware. While the defendants | .^disregarded the interest of Alex, I do not believe there was sufficient evidence demonstrating their awareness of the risk of death and allowing for a finding of their reckless disregard for his life.

Moreover, I also believe that the prosecution of defendants for both crimes amounts to double jeopardy. The crimes involve the same acts and inactions of the defendants with proscribed consequences upon the same victim.

      . These prosecutions easily satisfy the clear requirements of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 70 L.Ed. 306 (1932), as each crime has at least one distinct element not required by the other (negligent homicide requires a death; cruelty to juveniles contains age requirements). The two charges would also appear to pass muster with Louisiana's less clear "same evidence” test for jeopardy, though with our insufficiency finding on the negligent homicide charge, we do not reach that issue.

      . When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.
      The Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529. This same deference applies when the case is tried before a judge. State v. Bowie, 43,374 (La.App.2d Cir.9/24/08), 997 So.2d 36, writ denied, 2008-2639 (La.5/22/09), 9 So.3d 141.

      . Alex complained often of symptoms without any known medical disorders being found, and he often used alleged illnesses to get out of work. The child had earned a negative work record at HYR, creating a mindset such that the residents, direct care staff, and supervisors gave little or no credence to his continuing physical complaints.

      . The child was apparently born in October of 1992, making him 12 years old at the time of his death. Often in court he was described as being 11 years old.

      . The cause of death was initially categorized as “undetermined.”

      . Essentially a more severe and escalated progression of heat stroke.

      . The two against whom charges were first dismissed were Jeremy Blanks, who assisted in running and working the child that morning, and who dragged Alex away from a water source (upon direction of Tasha Jackson) during the noon hour; and Troy Hamilton, whose activities that day are unclear from this record, other than his being present in the cafeteria during the noon hour, when Alex was delusional and apparently manifesting advanced signs of heat stroke.

      . Dismissed on the day of trial: Marcus Jones, who physically hazed the child that morning. He required punitive laps to be run (an event so common that HYR had developed its own vernacular — "running the pipeline”). He allowed the other boys to deny Alex water, which triggered the child's inexorable descent into heat stroke, injury, and death; Tasha Jackson, who at lunch, in the presence of numerous staff members, ordered Jeremy Blanks to prevent Alex from seeking water from the hand-washing area, and who slammed the child against the wall of the cafeteria and kicked the child; and Willis Jean Doyles, a supervisor who first took Henderson to the work site at 2:36 p.m., and, in response to the child's pleas for help, threw water on him and refused to let him in her vehicle at 2:40 p.m. as she drove back down the hill.

      . Example of Haynes' facile responses:
      Q. Was the no running policy communicated to the three men?
      A. I can say we have a limitation to punishment policy.

      . A hilly 200-yard circuit.

      . This is undoubtedly a mistake — all other testimony indicates that the kids walked up the hill that fateful afternoon.

      . This testimony is in stark contrast to all other testimony about Alex and his negative work habits and stunted social relationships at HYR.

      . The decedent’s body, when presented at the Minden Medical Center’s Emergency Room about 4:20 p.m., was in full rigor with pronounced lividity and a temperature of 95 degrees, indicating to Dr. Peretti that if the child had a 98 degree temperature at the moment of death, the time of death would have been 1:20 p.m. at the latest (one degree loss per hour for the first few hours after the child's death). Environmental hyperthermia and a swollen brain would seem to indicate that his temperature at the moment of death would have been higher than normal, rather than lower, making the time of death even earlier. At any rate, testimony established that the child was clearly alive, begging for help and somewhat ambulatory as late as at 2:40 p.m.

      .Det. Michael Allen took statements from many witnesses, including the defendants.

      . The record bears two oblique references to Alex vomiting that morning, which was not confirmed by the boys who were there. All who testified, however, agreed that Alex vomited in the afternoon. At any rate, at 2:00 p.m. that day, neither the nurse nor these three defendants had any information about Alex vomiting earlier in the day.

      . Doyles, who would have seen where the boy was placed, did not testify.

      . In September of 2005, running as punishment was a very common activity, according to one of the juveniles. Though conceded in the state's brief, this point was disputed by some of the HYR personnel.

      . This "group motivation” philosophy raises its head twice in Detective Allen's testimony about statements taken from two of the defendants. It is also tangentially found on Page 14 (Rules 3-5) of Joint Exhibit 3, the Hope Youth Ranch Resident Handbook relative to keeping a residential area (“the bunkhouse") clean. The implication in the document is that if a resident won’t do his part, possibly the group can motivate him. This would suggest that at times the kids did the enforcing of rules, leading to potential for unrestrained cruelty and tragedy. See Lord of the Flies, William Golding, 1954: "Maybe there is a beast ... maybe it’s only us.”
      The Hope Youth Resident Handbook, is not as helpful as it could have been, since only 16 of the first 30 pages were placed into the record — apparently only one side of each page was photocopied, from a two-sided document. There are no odd-numbered pages.

      . The boys were indeed punitively run in the hot sun that day, but that occurred during the morning, under the direction of Jones and Blanks, before these defendants arrived for work.

      . Since the death of Alex Harris, HYR has added these six precepts to its in-school suspension policy and procedures:
      • All in-school suspension activities will be held within the view of the HYR Administrative offices, so HYR administrative staff can monitor activities.
      • All Residents will walk to and from all work details, no running.
      • A 10 minute water break will be held for every 50 minutes of work. Each Resident/Student will be allowed all the water they can drink during the 10 minute break.
      • Employees who monitor in-school suspension should monitor the Residents/Students for any heat related problems.
      • If a Resident/Student complains of heat exhaustion or seems to be over heated, the facility nurse should be notified immediately, and evaluate the Resident/Students condition.
      • During the summer months and during extreme heat, water breaks and cool down breaks should be given more often.

      . Designed for usage by direct care staff in emergency situations.

      . Though several people took the boy’s pulse this day, the only quantitative readings contained in the record are the zeros found at HYR by EMT ambulance personnel, and the zeros found by staff at the emergency room.

      .George Hardaway testified that Cash went inside and came back, before implementing CPR. Nurse Cash testified that, during CPR, the child vomited and "everything just stopped."

      . Consider: The body temperature at 4:20 p.m. was 95 degrees; the walk up the hill began at 2:00 p.m.; Alex stood and begged to get into the Doyles vehicle at 2:40 p.m.

      . A fact disputed by all three defendants, in statements to LSP Detective Allen.


author: DREW, J.

text:
    Buddy WHATLEY, Plaintiff-Appellee, v. NABORS DRILLING USA, LP, Defendant-Appellant.
    No. 44,720-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 12, 2009.

      Galloway, Johnson, Tompkins, Burr & Smith, by Kevin Andrew Marks, Jessica Schott Haynes, New Orleans, for Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner, by Joseph Martin Lattier, Shreveport, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   DREW, J.

Lin this workers’ compensation matter, Nabors Drilling USA, LP, appeals a judgment ordering it to reinstate temporary total disability (“TTD”) benefits, reimburse the claimant for out-of-pocket medical expenses, pay for additional medical treatment ordered by the treating orthopedic surgeon, and to pay penalties, attorney fees, and litigation expenses.

We affirm.

FACTS

Buddy Whatley was employed as a driller on a rig operated by Nabors in Webster Parish, Louisiana. Whatley was injured on June 4, 2006, when blocks on the rig fell and caused a console to smash against a brake handle that Whatley was holding with his right hand. The impact knocked Whatley back 10 feet and against a structure on the rig. Whatley was left momentarily unconscious, his right index finger at the DIP joint and his right ring finger at the PIP joint were amputated, and his right little finger was partially amputated with only soft tissue holding the distal part of the finger in place. Whatley was transported by helicopter to LSUHSC in Shreveport for emergency medical treatment.

Whatley, a Texas resident, began receiving workers’ compensation benefits under Texas law. Whatley filed a disputed claim for compensation form in Louisiana on March 12, 2007. The next month, the WCJ granted Whatley’s motion for an expedited hearing and ordered that Dr. William Donovan was to be Whatley’s choice of physician.

12In April 2007, Whatley filed an amended disputed claim for compensation form, which asserted that indemnity benefits were still not being paid pursuant to Louisiana law as they were being paid under Texas law at the wrong rate.

On April 26, 2007, FARA, the third-party administrator in Texas, gave notice to Whatley that because he was electing to continue his compensation claim in Louisiana, further benefits were not owed in Texas.

At the end of April 2007, Whatley amended his disputed claim for compensation form a second time. He asserted that he sustained additional physical injuries to his back, knee, and shoulder; sustained a physical-mental injury; and was entitled to penalties and attorney fees for denial of medical treatment, underpayment of indemnity benefits, and nonpayment of medical bills.

In May of 2007, Whatley began receiving Louisiana weekly TTD benefits of $454. Nabors agreed that Whatley had been eligible for the $454 weekly rate since March of that year.

On September 4, 2007, Whatley was examined by Dr. Robert Holladay, an orthopedic surgeon, for an independent medical examination. Dr. Holladay concluded that Whatley was at maximum medical improvement (“MMI”) for his right hand and fingers, right knee, C-spine, and L-spine. Dr. Holladay did not think Whatley was at MMI for the T-spine because he recommended a facet injection in this area.

On February 4, 2008, Dr. Holladay wrote to Nabors’ counsel that he had reviewed a driller job description and the results of a Functional [ ^Capacity Evaluation (“FCE”), and he felt that the restrictions recommended in the FCE would permit Whatley to return to the position of driller. On March 24, 2008, Nabors terminated Whatley’s indemnity benefits.

Following a trial on the merits, the WCJ concluded that: (1) Whatley suffered an accident as defined by the Louisiana Workers’ Compensation Act and was temporarily and totally disabled as a result of the accident; (2) Whatley was entitled to all applicable comp benefits including mileage reimbursement; (3) TTD benefits should be reinstated from March 24, 2008; (4) the medical treatment recommended by orthopedic surgeon Dr. Kenneth Berliner was approved; (5) Whatley was to be reimbursed for all his out-of-pocket medical expenses; (6) a recommended urological consult was approved; (7) Nabors was assessed a penalty of $4,000 for its arbitrary and capricious discontinuance of indemnity benefits; (8) Nabors was assessed a penalty of $8,000 for its arbitrary and capricious denial of procedures and treatments recommended by Dr. Berliner; and (9) What-ley was entitled to attorney fees of $11,500, litigation expenses of $5,477.47, and legal interest on awards from the date of judicial demand.

Nabors argues on appeal that the WCJ erred in awarding further TTD benefits, further medical benefits, penalties, and attorney fees.

REINSTATEMENT OF TTD BENEFITS

Dr. Shaw

Dr. Timothy Shaw began treating What-ley after the accident for right knee pain. Dr. Shaw’s diagnosis was a probable MCL sprain. An MRI |4of the right knee performed in September of 2006 as ordered by Dr. Shaw showed a small joint effusion.

Dr. Rodriguez

Dr. Jose Rodriguez, an orthopedic and spinal surgery specialist, examined What-ley in June of 2006. Whatley’s chief complaints at the time concerned his right hand, right knee, and lower back pain. Dr. Rodriguez’s impressions were lumbar spine sprain and right knee contusion.

Dr. Gabel

Dr. Gerard Gabel examined Whatley on June 28, 2006 on a referral for treatment of his right hand. Whatley underwent therapy for his hand in July and August of 2006.

Whatley was advised by Dr. Gabel in August 2006 that the only thing that might prove beneficial for his right hand was a PIP fusion of the little finger. The next month, Whatley agreed to have the fusion procedure performed, but then later changed his mind. Dr. Gabel thought that Whatley was at MMI with the hand and gave him a 25% upper extremity and 15% total body permanent impairment.

When Dr. Gabel treated Whatley on January 23, 2007, it was noted that What-ley’s little finger was essentially nonfunctional. The PIP fusion was performed by Dr. Gabel at the end of that month.

Dr. Donovan

Dr. William Donovan examined Whatley on March 6, 2007. Whatley complained of constant pain to the posterior part of the neck that radiated pinto both arms and interscapular region; headaches associated with the neck pain; pain to the dorsal spine; right knee pain; right hand pain; and low back pain that radiated into both legs.

Dr. Donovan recommended that What-ley undergo MRIs of the right knee and cervical, dorsal, and lumbar spines; x-rays of the cervical and lumbar spines; and neurological testing with EMG and NCV to the spine. Dr. Donovan concluded that Whatley was not at MMI and was unable to work.

Dr. Berliner

Because Dr. Donovan was about to retire and accepting no new patients, he referred Whatley to orthopedic surgeon Dr. Berliner. On May 16, 2007, Whatley gave Dr. Berliner a case history of right hand pain, cervical pain that radiated to the left shoulder, right knee pain with difficulty bending, and lumbar pain that radiated to his buttocks with muscle spasms. Dr. Berliner’s impressions were medial collateral ligament sprain in the right knee, cervical strain with possible disc herniation, and lumbar strain with possible disc herniation.

Dr. Berliner wanted MRIs of the cervical, thoracic and lumbar spines. These MRIs were done on June 16, 2007. The radiologist’s impressions were:

• C-spine: Mild central spinal stenosis at C6-7, and mild central spinal stenosis and bilateral foraminal stenosis at C3-4.

le,» L-spine: Moderate arachnoiditis, multilevel annular disc bulges with no significant central stenosis, and moderate bilateral foraminal stenosis at L3-4 and L4-5 that could affect the existing L3 and L4 nerve roots.

• T-spine: Multiple small annular disc bulges, but no thoracic herniation; and no focal site of nerve root encroachment was identified.

Dr. Berliner next treated Whatley on July 2, 2007. The complaints at the time were of constant neck pain, neck spasms, pain in the trapezius and shoulder area, pain in the back with intermittent numbness in the right thigh, and right knee pain. Dr. Berliner’s diagnosed multilevel cervical, thoracic, and lumbar disc bulges, and a medial collateral ligament sprain in the right knee. Dr. Berliner recommended that Whatley l’eceive a cervical epidural block at C6-7.

Dr. Likover

Dr. Larry Likover, an orthopedic surgeon, examined Whatley on June 21, 2007, on behalf of Nabors. Dr. Likover noted that Whatley complained that his neck and back pain made him disabled. He found Whatley at MMI in his hand and fingers.

After examining the spinal MRIs, Dr. Likover opined that Whatley likely had multilevel degenerative disc disease in the cervical, lumbar, and thoracic spines. Dr. Likover stated that he found no evidence of a surgical problem in the neck or low back, and found nothing objective that substantiated Whatley’s complaints of disabling pain in the neck or back. Dr. Likover concluded that Whatley was at MMI from whatever injury |7occurred to the neck or low back, which was most likely a sprain or strain if any injury had occurred.

Dr. Holladay

On September 4, 2007, Whatley was examined by orthopedic surgeon Dr. Robert Holladay for an independent medical examination. Whatley’s chief complaints were neck pain between the shoulders, upper back pain, occasional low back pain, and right hand pain. The upper back pain was the primary complaint.

After reviewing MRIs of the spine, Dr. Holladay concluded there were no frac-toes, dislocations, or evidence of acute disc herniations. He thought the MRI of the C-spine showed degenerative disc disease changes consistent with Whatley’s age, the MRI of the T-spine showed mild degenerative disc disease change, and the MRI of the L-spine showed multilevel degenerative disc disease.

Dr. Holladay noted there were no symptoms elicited by history that were consistent with spinal stenosis. He disagreed with Dr. Berliner’s recommendation for epidural steroid injections because there were no signs or symptoms consistent with radiculopathy in any of the spine areas. He also found no indications for surgical intervention or management of any of the spine areas. Accordingly, Dr. Holladay recommended that Whatley receive facet injections in the mid to lower thoracic spine bilaterally. If these injections changed or modified the upper spine complaints to a ^significant degree, then Dr. Holladay would consider another round of injections.

Dr. Holladay diagnosed a contusion of the right medial knee, and strain and sprain of the cervical, thoracic, and lumbar spines. He thought the right hand and fingers were at MMI. He believed the right knee was also at MMI, with his only concern regarding knee restrictions being that the right leg could buckle if Whatley were to stand on only that leg.

With respect to the cervical and lumbar spines, Dr. Holladay believed Whatley was at MMI and he did not place any work restrictions on him concerning these spines. However, with respect to the thoracic spine, Dr. Holladay did not believe that Whatley was at MMI and recommended the facet injection; this position would later change.

ER Visit

Whatley went to the emergency room at Memorial Medical Center in Livingston, Texas, on October 7, 2007, with complaints of back pain. The diagnosis was lumbosa-cral neuritis. An x-ray of the C-spine showed retrolisthesis at C3 and C4. An x-ray of T-spine was negative.

FCE

A functional capacity evaluation (“FCE”) was performed on December 20, 2007. It was determined that Whatley could work at a medium work level, with a limit of lifting no more than 50 pounds, and no more than 30 pounds on a frequent basis.

| ,,Dr. Berliner (Continued)

On October 11, 2007, Whatley complained to Dr. Berliner about pain in the neck with pain down his right arm to his fingers, low back pain with pain down his right leg, and right knee pain.

Dr. Berliner noted on December 7, 2007, that it was his impression that Whatley had cervical disc protrusions with some evidence of radiculopathy. He felt that if the thoracic facet injections did not help Whatley, then pathology from the cervical spine should be considered. He also thought that an EMG of the upper extremities would document cervical radiculopa-thy if it was present.

On March 7, 2008, Dr. Berliner gave Whatley facet injections at right and left T7-8, T8-9, T9-10, and T10-11. In a report five days later, Dr. Berliner wrote that the facet injections were only partly helpful as Whatley remained symptomatic; that Whatley was to continue with his anti-inflammatories and other symptomatic medications; that he wanted Whatley to go through a course of postinjection physical therapy; and that he was to monitor Whatley’s progress with the injections and see him again in four weeks, when he would assess if the injections helped or if the thoracic symptoms were only part of the entire clinical picture.

On April 3, 2008, Dr. Larry Stokes, a rehabilitation counselor, wrote to Dr. Berliner requesting that the doctor comment on Whatley’s physical ability to perform jobs that had been identified for Whatley, such as cashier positions, pizza team member, and delivery driver. Dr. Berliner noted that 1 ]0Whatley was physically incapable of performing any of these jobs. Dr. Jose Rodriguez approved the jobs.

An injured employee seeking TTD benefits must prove by clear and convincing evidence that he is physically unable to engage in any employment, regardless of its nature, including employment while working in pain. La. R.S. 23:1221(1); Lewis v. Chateau D’Arbonne Nurse Care Center, 38,394 (La.App.2d Cir.4/7/04), 870 So.2d 515. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, ie., much more probable than its nonexistence. Id. A claimant may prove disability through medical and lay testimony. The WCJ must weigh all of the evidence to determine if the claimant has met his burden of proving temporary total disability. Id.

An award of benefits based on TTD shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required. La. R.S. 23:1221(l)(d).

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 561. 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. Id. When there Inis a conflict in the testimony, reasonable evaluations of credibility, and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

Dr. Likover thought that Whatley could return to his job as a driller without any restriction, as he pointed out that he knew of many men with amputations of Whatley’s type who returned to work as drillers or oh rig workers. Dr. Likover testified that he had been on drilling rigs many times, so he was familiar with what a driller does. Dr. Likover testified that he felt Whatley could work on a rig even with fingers missing. The WCJ found it suspect that Dr. Likover would not even give restrictions that took into account the right hand issues.

Dr. Holladay testified that as a broad general statement, he agreed with Dr. Lik-over that workers with a single digit amputation often return to the oilfields, but would take exception to that statement as applied to someone with amputations of multiple digits on the dominant hand. Whatley’s amputated and partially-amputated fingers were on his dominant hand.

Dr. Holladay testified in his November 2007 deposition that he would not recommend that Whatley return to work at that time because his upper 112back still needed attention. Dr. Holladay considered What-ley to be disabled from doing the job of a driller until the thoracic facet injections were done. However, after reviewing a driller job description and the FCE, Dr. Holladay wrote on February 4, 2008, that he felt that the restrictions recommended in the FCE would permit Whatley to return to the position of driller.

Dr. Berliner, who is Whatley’s treating physician, testified that he still believed that Whatley should remain off work. The job description for the driller position states that the job involved heavy labor-intensive work.

After examining the C-spine MRI, Dr. Berliner thought there was significantly more pathology at the C6-7 level than at any other level, and this pathology appeared to him to be post-traumatic. Dr. Likover strongly disagreed with Dr. Berliner’s position that there was significantly more pathology at the C6-7 level than at the other levels.

Whatley testified that he still had trouble with pain in his back and shoulders every day. He agreed that his neck and lower back were not giving him problems. Whatley stated that he had never heard of anyone at Nabors being offered a modified driller job, and he denied ever being offered such a position that took into account the restrictions of the FCE.

Whatley did not think he would be able to fulfill his job duties as a driller. He described the job as requiring him to, for example, stand at the drill console, do his helper’s jobs to show them how to do them properly, |13pull levers, turn on pumps, control a hand brake and foot throttle, open and shut valves, and lift between 10 and 150 pounds. His helpers and machinery were available to help lift heavy objects.

Based upon our review of the record, we cannot conclude that the WCJ was clearly wrong in ordering the reinstatement of TTD benefits.

PENALTY-TERMINATION OF TTD BENEFITS

The WCJ found that Nabors was arbitrary and capricious in stopping wage benefits and assessed a penalty of $4,000. La. R..S. 23:1201(1) provides, in part:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

Penalties are stricti juris and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay. Young v. Christus Schumpert Medical Center, 39,593 (La.App.2d Cir.5/11/05), 902 So.2d 1180; Lee v. Schumpert, 36,733 (La.App.2d Cir.1/29/03), 836 So.2d 1214. Nevertheless, a WCJ has great discretion in awarding or denying penalties and attorney fees. Nowlin v. Breck Const. Co., 30,622 (La.App.2d Cir.6/24/98), 715 So.2d 112.

Nabors terminated indemnity payment in March 2008 while relying on the positions of Drs. Holladay and Likover.

On January 10, 2008, Dr. Likover wrote to Nabors’ counsel that after reviewing the FCE, he disagreed with its conclusion that Whatley could only do medium duty work, as he believed that Whatley could do heavy | |.|duty work. Dr. Likover thought there was no objective basis to restrict Whatley from returning to full duty work as a driller.

On February 4, 2008, Dr. Holladay wrote to Nabors’ counsel that he had reviewed the driller job description and the FCE, and he felt that the restrictions recommended in the FCE would permit Whatley to return to the position of driller. Dr. Holladay later wrote that returning to work would be a form of physical therapy for Whatley.

Whatley testified that he never received anything in writing stating that he was being offered a modified driller position. In addition, he was never contacted by Nabors and told they would work with him in accordance with the recommendations of the FCE.

Joseph Sarkies, the claims adjuster working on the case, testified that Nabors’ direct superintendent over the East Texas division said he would rehire Whatley in a modified driller position. Sarkies did not personally offer the modified driller job to Whatley. He was not sure of the exact modifications to the job. Sarkies also stated that Dr. Holladay was never presented with a modified driller job description.

Finally, we note that indemnity benefits were terminated in March 2008. It was not until the next month that Dr. Stokes received approval from Dr. Rodriguez for the various jobs that Dr. Stokes identified for Whatley.

The WCJ did not abuse his discretion in assessing a $4,000 penalty for Nabors’ arbitrary and capricious termination of TTD benefits.

J^FURTHER MEDICAL BENEFITS

Under La. R.S. 23:1203, medical payments are separate and distinct from compensation indemnity benefits. A workers’ compensation claimant may recover medical expenses that are reasonably necessary for the treatment of a medical condition caused by a work-related injury. The plaintiff must prove the necessity of the treatment and the causal connection between the treatment and the employment-related accident by a preponderance of the evidence. Taylor v. Wal-Mart Stores, Inc., 40,179 (La.App.2d Cir.9/21/05), 914 So.2d 579, writ not considered, 2006-0144 (La.4/17/06), 926 So.2d 500, cert. denied, 549 U.S. 1157, 127 S.Ct. 982, 166 L.Ed.2d 783 (2007).

A WCJ’s determination with regard to medical necessity is entitled to great weight and will not be disturbed on appeal in the absence of manifest error or unless clearly wrong. City of Shreveport v. Casciola, 43,132 (La.App.2d Cir.3/26/08), 980 So.2d 203.

The WCJ found that the medical treatment recommended by Dr. Berliner was reasonably necessary under the circumstances. As noted by the WCJ, Dr. Berliner had recommended additional diagnostic testing, cervical blocks, physical therapy, prescription medications, and additional examinations. The WCJ also ordered reimbursement of any and all medical expenses that Whatley had paid out of pocket, as well as mileage reimbursement.

In October 2007, Dr. Berliner sought approval for nerve conduction and EMG studies of the upper and lower extremities. Following the facet | l(imjections, Dr. Berliner prescribed four weeks of back program physical therapy.

Dr. Likover did not believe that Whatley needed any additional medical care for a condition related to his accident. He thought that the facet injections were offered to treat the subjective complaints based on arthritis or degenerative changes. Dr. Likover also explained that epidural steroid injections are needed when there is objective evidence of a radi-cular nerve problem, and he did not see any evidence of radicular problems.

Dr. Holladay disagreed with Dr. Berliner’s physical therapy prescription because it would be unlikely to improve the clinical outcomes, and a home exercise program would be just as effective. Dr. Holladay also thought that returning to work would be an effective form of physical therapy.

The WCJ found that the treatment recommended by Dr. Berliner was reasonable and necessary under the circumstances. This finding was not manifestly erroneous.

Nabors also complains about the WCJ’s finding that the urological referral was medically necessary. Dr. Ellis Kanaan thought that a urinary condition suffered by Whatley could be the result of a neuro-genic bladder related to his back injury, and that Whatley required a urological evaluation to exclude that possibility. This finding was also not manifestly erroneous.

PENALTY-FAILURE TO TIMELY PAY MEDICAL BENEFITS

The WCJ found that Nabors did not reasonably controvert the medical treatment recommended by Dr. Berliner, and assessed penalties |17totaling $8,000 pursuant to La. R.S. 23:1201(F). Among Dr. Berliner’s recommendations were a cervical epidural block, EMG of the upper extremities to document cervical radiculo-pathy, continuation of anti-inflammatories and other symptomatic medications, physical therapy, and the monitoring of What-ley’s progress after the injections.

Requests were made in April 2007 for approval of MRIs requested by Dr. Donovan. It was clear the next month that Joseph Sarkies, the claims adjuster working on the case, was aware that Dr. Berliner wished to proceed with the diagnostic testing, including MRIs, that had been recommended by Dr. Donovan. On June 20, 2007, Nabors’ counsel wrote to Whatley’s counsel that the MRIs would not be paid for until they obtained the results of Dr. Likover’s evaluation. The MRI expenses were paid in November of 2007 after Dr. Holloday relied on them.

On August 20, 2007, Whatley’s counsel demanded in writing that Nabors reimburse Whatley for past and future out-of-pocket payments for drugs prescribed by Dr. Berliner. Nabors’ counsel replied that payments for prescriptions would not be authorized until Dr. Holladay’s report was received and reviewed. It was also noted by Nabors’ counsel that Dr. Likover had released Whatley back to his full duty position as driller and had placed him at MMI.

On October 25, 2007, Nabors’ counsel wrote that he was recommending that Na-bors deny prescription and mileage reimbursement requests in light of the opinions of Dr. Likover and Dr. Holladay.

| ijjOn October 30, 2007, Whatley’s counsel made formal demand for approval of the nerve conduction studies recommended by Dr. Berliner. The next month, Nabors’ counsel replied that the request for nerve conduction studies would be denied in light of the opinions of Drs. Likover and Holla-day.

Sarkies wrote to Dr. Berliner on February 25, 2008, to confirm authorization for one thoracic facet injection as recommended by Dr. Holladay in his September 4, 2007, report.

On March 4, 2008, Nabors’ counsel wrote to Whatley’s counsel that he was advising Nabors to continue to deny demands for reimbursements of medications prescribed by Dr. Berliner until opinions were received from Drs. Holladay and Lik-over regarding the need for the medications. That same date, Dr. Likover wrote to Nabors’ counsel that he saw no medically necessary reason for Whatley to be prescribed a sleeping pill, muscle relaxant and narcotic pain medicine.

On March 17, 2008, Whatley’s counsel wrote to Sarkies that he was requesting payment of mileage and reimbursement for out-of-pocket payments for prescription medication, and approval for physical therapy as recommended by Dr. Berliner.

On March 20, 2008, Nabors’ counsel replied that he was going to recommend reimbursement for mileage associated with the injection procedure, but would recommend denial of reimbursement both for mileage associated with visiting Dr. Berliner at any other time and for reimbursement for out-of-pocket expenses associated with the prescribed 119medications. Na-bors’ position was that based upon the opinions of Drs. Likover and Holladay, Whatley did not require any further medical care other than the one set of facet injections. Nabors’ counsel stated he would confer with Drs. Holladay and Lik-over about the need for physical therapy and would not recommend payment until he heard from them.

On March 25, 2008, Nabors’ counsel wrote to Whatley’s counsel that because Drs. Holladay and Likover opined that Whatley was at MMI and no longer in need of medical treatment, because they released him to return to work as a driller, and because Nabors would be willing to consider rehiring Whatley, he was no longer entitled to medical or indemnity benefits of any kind.

On March 28, 2008, Dr. Holladay wrote to Nabors’ counsel that he disagreed with Dr. Berliner’s physical therapy prescription because physical therapy was unlikely to improve clinical outcomes, and a home exercise program was just as effective. Dr. Holladay also wrote that returning to work would be an effective form of physical therapy.

On April 10, 2008, Dr. Holladay wrote to Nabors’ counsel that he had reviewed Dr. Berliner’s March 12, 2008, report, and that he did not agree with the recommendation of physical therapy and his original opinion and treatment plan had not changed.

Whatley sustained serious injuries in the rig accident. Dr. Holladay originally did not believe that Whatley was at MMI for the T-spine and recommended the facet injections. Dr. Holladay did not state a change in 12nhis position until the February 2008 letter; yet, Nabors relied on his opinion prior to then to reject claims for various expenses.

We cannot conclude that the WCJ abused his discretion in assessing an $8,000 penalty in this instance.

ATTORNEY FEES AND LITIGATION EXPENSES

We also find no abuse in discretion in the award of attorney fees and litigation expenses.

DECREE

At appellant’s cost, the judgment is AFFIRMED.

      . Dr. Gabel also referred Whatley to Dr. Francisco Perez for a psychological consultation.

      . An MRI of the right knee was done on April 7, 2007, on a referral by Dr. Donovan. The radiologist’s impressions were grade 2 sprain of the MCL, soft tissue contusion injury with some fluid in the medial aspect, slight joint effusion, patellofemoral disease with grade 2 chondromalacia patella, and no evidence of meniscal tear.

      .Dr. Berliner largely agreed with Dr. Donovan’s impressions.

      . Dr. Likover saw a mild bulge at C3-4 and mild bulges at nearly every level of the L-spine. He observed no herniation. Dr. Lik-over considered the MRIs to be normal or a little worse for a working man who was Whatley’s age.

      . Dr. Holladay reasoned that the only evidence-based medical literature support for epidural steroid injections was for people with acute radiculopathy.

      . Dr. Holladay did not consider Whatley to be disabled from doing any job at that time. He thoughl an FCE could determine what lower level physical jobs he could perform.