author: THIBODEAUX, Chief Judge.

text:
    Edward TRENT, Jr. v. TRIAD ELECTRIC & CONTROLS, INC.
    No. 09-1192.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Kevin Louis Camel, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiff/Appellee, Edward Trent, Jr.
    Edward D. Hughes, Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA, for Defendant/Appellant, Triad Electric & Controls, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

| ]Appellant, Triad Electric & Controls, Inc. (Triad), asserts that the Office of Workers’ Compensation (OWC) was manifestly erroneous by finding that (1) Triad’s former employee, Edward Trent, Jr., proved he had a job-related accident, and (2) Trent did not forfeit his workers’ compensation benefits (a) because of his false statements regarding prior injuries, and (b) because of his false statements for the purpose of obtaining the benefits. Trent answered Triad’s appeal requesting attorney fees and court costs. We affirm the OWC judgment.

I.

ISSUES

We shall consider whether the Workers’ Compensation Judge (WCJ) committed manifest errors:

(1) by concluding that the employee had a job-related accident, where the employee alleged that his supervisor witnessed the accident and where the supervisor denied witnessing the accident but acknowledged hearing some noise at the time of the alleged accident;
(2) by holding that the employee did not forfeit his benefits under La. R.S. 23:1208.1, where (a) the employee with limited reading abilities had a previous back injury from which he allegedly recovered; (b) the employee failed to disclose the previous injury on the medical questionnaire; and, (c) the employee’s current injury is in the same area as the previous one;
(3) by holding that the employee did not forfeit his benefits under La. R.S. 23:1208 where the employee, when asked about his income, failed to disclose that he earned approximately $100.00 per week selling shrimp; and,
(4) by denying penalties and attorney fees for Triad’s discontinuance of indemnity benefits.

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FACTS

In 2006, Trent had a work-related accident while working for a previous employer. As a result of that accident, Trent suffered a disc herniation at L5-S1 and a small central disc protrusion at L4-5. His treating physician, Dr. Clark Gunderson, recommended certain treatment that Trent did not undergo until after the current accident. Trent and his previous employer settled Trent’s claim for workers’ compensation benefits.

After a period of time, Trent returned to work performing manual labor for various employers. He testified that after the 2006 accident, his back pain resolved itself and he did not experience any back problems during his various employments.

Triad hired Trent as an electrician’s helper in March of 2008. In connection with this employment, Trent filled out a Medical History Form in which he denied having any previous injuries. The form also contained a notice that a failure to truthfully answer questions on the form may result in forfeiture of workers’ compensation benefits.

At the OWC hearing, Trent testified that he dropped out of the seventh grade and that he could not read very well. Thus, he alleged, he copied the answers off the forms filled out by some other applicants. At his deposition, Trent testified he denied having previous injuries on the form because he wanted a job. At the hearing, Trent testified that he was embarrassed to acknowledge his limited reading abilities, and that is why he testified the way he did at the deposition.

Trent stated that on Friday, June 19, 2008, he injured his back when he slipped and fell on the metal steps of the Triad work trailer used as an office. Trent ^testified that he went to the office to pick up his paycheck and that it rained heavily that day. Trent observed Chris Burnett, a supervisor, standing in the doorway of the office talking to the secretary. Trent alleged that when he stepped on the stairway, he slipped and fell. The secretary and Burnette asked him if he was all right, and Trent responded he thought he was all right and he had come to get his paycheck.

Trent further testified that over the weekend his back started to hurt and that he reported the incident to his employer the following week. The doctor to whom Triad sent Trent after the accident released Trent to light-duty work. Trent claims that because he could not perform the light-duty work to which he was assigned, he consulted Dr. Gunderson who placed him on a “no-duty” status on July 11, 2008.

Dr. Gunderson requested an MRI. It revealed disc protrusions at the same sites as the 2006 injuries but on a larger scale. Trent underwent physical therapy and epidural steroid injections. As the steroid injections did not relieve Trent’s conditions, Dr. Gunderson recommended surgery.

At his deposition, Dr. Gunderson testified that it was possible that Trent would have suffered the 2008 injury in the absence of the 2006 injury. Dr. Gunderson believed that the 2008 injury aggravated the 2006 injury. Yet, he also testified that he would not have considered Trent disabled immediately prior to the accident if he knew that Trent performed heavy duty manual labor for a year and a half between the accidents. In his report, Dr. Gunder-son wrote that “[bjecause of the two year history of being able to work,” he believed that Trent’s “complaints are related to the injury of June 19, 2008.” In another report, Dr. Gunderson wrote that Trent “apparently has had a complete recovery” from the 2006 injury.

|4The insurance adjuster testified that Trent was receiving workers’ compensation benefits for this accident from July until October of 2008 in the amount of $515.67 per week. The adjuster acknowledged that the correct amount of the benefit should have been, as the parties stipulated, $522.00. She offered no explanation for the underpayment.

The adjuster terminated the benefits when she learned that Trent injured the same region of his spine in 2006 as in 2008, that Dr. Gunderson recommended the same treatment in 2006 as he recommended in 2008, that Trent never underwent the treatment before the 2008 injury, and that he denied having the injury on the medical questionnaire.

The OWC held that Trent proved he had a work-related accident. Because of Trent’s limited reading abilities, his embarrassment of this fact, and Triad’s inability to establish that the 2008 injury was inevitable and merged with the 2006 injury, the OWC found that Trent did not forfeit his benefits under La. R.S. 28:1208.1.

Triad claims that the OWC erred by concluding that Trent sustained his burden of proving the accident occurrence and by concluding that Triad did not sustain its burden of proving its defense under La. R.S. 23:1208 and 23:1208.1. In his reply brief, Trent asserted that the trial court erred by not awarding him penalties and attorney fees for the underpayment of his benefits. Trent answered the appeal requesting this court to affirm the OWC’s judgment and to award him attorney fees for the work on appeal and court costs for the trial and appellate proceedings.

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STANDARD OF REVIEW

The WCJ’s findings of fact are reviewed under the “manifest error” or “clearly wrong” standard. Jim Walter Homes, Inc. v. Guilbeau, 05-1473 (La.App. 3 Cir. 6/21/06), 934 So.2d 239. Appellate courts do not disturb the WCJ’s findings of fact as long as they are reasonable and supported by the record. Id.

The WCJ’s determination as to whether or not a claimant willfully made a false statement to obtain workers’ compensation benefits and causation issues are findings of fact. Id.; Hunter v. Alliance Compressors, 06-100 (La.App. 3 Cir. 6/21/06), 934 So.2d 225. The WCJ’s imposition of penalties and attorney fees upon an employer is also a finding of fact subject to the manifest error standard. Guilbeau, 934 So.2d 239.

This court reviews WCJ’s credibility determinations for manifest error. See Butterfield v. Turner Indus., 06-1098 (La.App. 3 Cir. 2/7/07), 951 So.2d 476, writ denied, 07-507 (La.4/27/07), 955 So.2d 692. We find manifest error in credibility determinations only when the “objective evidence so contradicts an employee’s testimony, or testimony is so internally inconsistent or implausible on its face that a reasonable factfinder would discredit the story.” Id. at 480 (quoting Hubbard v. Allied Bldg. Stores, Inc., 41,534, p. 5 (La.App. 2 Cir. 11/1/06), 942 So.2d 639, 643).

IV.

LAW AND DISCUSSION

(1) Occurrence of a Work-Related Accident

An employee may prove by the employee’s testimony alone that an unwit-nessed accident in the course and scope of her or his employment occurred if: “(1) no other evidence discredits or casts serious doubt upon the worker’s version of |f,the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Butterfield, 951 So.2d at 479 (quoting Bruno v. Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992)). The worker’s friends, co-workers, spouse, as well as the worker’s medical records, may corroborate the worker’s testimony. Lollis v. Shaw Global Energy Servs., 07-395 (La.App. 3 Cir. 10/3/07), 966 So.2d 1118.

The determination as to whether an accident occurred involves a judgment of credibility to which an appellate court gives great deference on review. Francis v. BFI, 01-769 (La.App. 3 Cir. 12/12/01), 801 So.2d 604, writ denied, 02-101 (La.3/22/02), 811 So.2d 934. Generally, the surrounding circumstances of the case indicate what effect a court should give to the length of time a worker takes to report an accident. See Ardoin v. Firestone Polymers, L.L.C., 09-530 (La.App. 3 Cir. 12/30/09), 30 So.3d 177; Trahan v. Turner Indus., Inc., 08-704 (La.App. 3 Cir. 12/10/08), 999 So.2d 268. Thus, that a worker did not immediately report an accident does not necessarily cast a serious doubt on the worker’s testimony. See Id.

Here, Triad argues that the testimony of Burnette discredits or casts a serious doubt on Trent’s testimony because Trent claims that Burnette witnessed the accident and Burnette testified that he never did. Furthermore, Triad asserts that Trent’s failure to immediately report the accident casts a serious doubt on the accident’s occurrence. Finally, Triad claims that Trent’s testimony was not credible because he lied about making money after being injured, about his ability to lift heavy objects, and about his previous back injury.

We find that the trial court did not manifestly err by concluding that Trent satisfied his burden of proof. Contrary to Triad’s assertions, Burnette’s testimony supports Trent’s account of the accident. Although Burnette testified that |7he did not witness the fall, he testified that he heard the noise on the stairs at the time Trent claims to have had the accident. The nature of that noise even prompted Burnette’s inquiry as to whether Trent was all right.

Moreover, based on the circumstances of this case, it was not unreasonable for the WCJ to rely on Trent’s explanation that he thought Brunette actually witnessed the accident, and, therefore, he did not think that the immediate report was necessary. Additionally, the accident happened on a Friday just before Trent was going home, and he thought that he was not hurt. Trent reported the accident when he returned to work the next week. His wife’s testimony and his medical records also corroborate his account of the accident.

Finally, Trent’s alleged lying regarding his income, ability to lift heavy objects, and his previous back injury was not enough to cast a serious doubt on his claims. The WCJ listened to all of this evidence and Trent’s explanations of it. Trent testified that he thought he was being asked about employment and not about side jobs, like selling shrimp, when he was asked about his income. He also explained that he had good and bad days when it came to bending and lifting. Finally, he stated that he denied having prior back injury on the form because he just copied the answers of the other applicants. He explained that he copied the answers because he did not read well.

We do not find that Trent’s testimony was implausible on its face or that objective evidence so contradicted his testimony that a reasonable factfinder would have discredited the story. Therefore, we find no error in the OWC’s ruling that the accident occurred.

|s(2) Forfeiture Defense Under La. R.S. 23:1208.1

An employer may inquire about an employee’s “previous injuries, disabilities, or other medical conditions.” La. R.S. 23:1208.1. If the employee fails to answer truthfully, the employee forfeits workers’ compensation benefits, “provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund.” Id. Thus, La. R.S. 23:1208.1 creates an affirmative defense of forfeiture for the employer from whom an employee seeks workers’ compensation benefits. Wise v. J.E. Merit Constructors, Inc., 97-684 (La.1/21/98), 707 So.2d 1214. Because forfeiture is a very harsh remedy, the statute must be strictly construed. Nabors Drilling USA v. Davis, 03-136 (La.10/21/03), 857 So.2d 407.

The statute’s enforceability is subject to certain notice requirements. La. R.S. 23:1208.1. That Triad complied with the notice requirements of the statute has not been disputed. Yet, we note that Trent may not have had the actual notice because of his limited reading skills.

We shall focus on whether the OWC erred by finding that Triad did not carry its burden of proof with respect to the other two elements of its forfeiture defense: the untruthful statement and the prejudice to its ability to receive reimbursement.

(a) The Untruthful Statement

To satisfy the requirements of the forfeiture defense under La. R.S. 23:1208.1, it is not enough for the employer to demonstrate that the employee made a false statement about her or his medical condition. The employer must show that the employee had an intent to deceive the employer. Hickman v. Jim Smith Logging, 04-157 (La.App. 3 Cir. 9/29/04), 883 So.2d 1072, writ denied, 04-2682 (La.1/14/05), 889 So.2d 269.

For example, where an employee’s girlfriend, who did not know about the employee’s prior work injury, filled out the medical questionnaire answering questions about prior injuries in the negative, and the employee only signed the form, this court found that the employer did not sustain its burden of proving this element of its forfeiture defense. Id.

Here, the OWC found that Trent did not intentionally deny having a prior injury. Trent testified that because of his limited education, his reading skills were not well developed. For this reason, he copied answers on the form from the forms filled out by other applicants without reading or understanding the questions. Triad attempted to impeach this explanation with Trent’s deposition testimony in which he stated that he denied having a prior injury because he wanted the job. Trent further explained that he was embarrassed to admit he had limited reading skills and that is why he answered the way he did during the deposition.

The WCJ found Trent’s explanations reasonable and persuasive. This court does not find that the OWC erred in this credibility determination. Based on these considerations, we conclude that Triad failed to prove this element of its La. R.S. 23:1208.1 forfeiture defense.

(b) The Prejudice to the Employer

An employer may establish prejudice (1) by proving that the employee’s untruthful statement relates directly to the medical condition for which the employee claims benefits, or (2) by proving that the untruthful statement affected the employer’s entitlement to reimbursement from the second injury fund. Hickman, 883 So.2d 1072 (citing Davis, 857 So.2d 407). Under the first prong, it is not enough for |]nthe employer to show that the previous injury and the current injury were to the exact same area. Wise, 707 So.2d 1214. Instead, a direct relation between the untruthful statement and the injury exists “when the subsequent injury was inevitable or very likely to occur because of the presence of the preexisting condition.” Id. at 1220.

For example, where an employee had a pre-existing traumatic arthritis in his knee, which was completely asymptomatic for two or three years during which the employee worked as a laborer, and the employee slipped and, as a result, experienced a meniscus tear in the same knee, the supreme court concluded that the employer failed to satisfy the inevitability test. Id.

Here, Triad faces the same problem. Although Trent’s current back injury is in the same area as his previous injury, that is not enough to satisfy the inevitability test. Like the employee with a pre-exist-ing knee arthritis who was asymptomatic for years while working as a laborer, Trent’s back symptoms resolved themselves, and he was able to perform heavy labor for one and a half to two years between his injuries without any back complaints and without seeking any medical treatment. Moreover, in both cases the employees’ second injuries resulted not from performing their ordinary job duties but from accidental slips. Finally, the treating physician’s testimony that Trent’s current injury could have been an aggravation of his old condition or that it could have occurred in the absence of the old one does not establish inevitability or exceptional likelihood of the second injury.

Under the alternative prong, the employer must show prejudice to its ability to collect from the second injury fund. To establish entitlement to reimbursement from the fund, the employer must prove three elements: (1) that the employee suffered from a permanent partial disability that was so serious as to hinder employment; (2) that the employer actually knew of this disability prior to the current |ninjury; and, (3) that the disability merged with the current injury to produce a greater disability. Wise, 707 So.2d 1214. To aid the employer’s collection of reimbursement from the second injury fund, our legislature established “a presumption that the employer considered the condition to be permanent and to be or likely to be a hindrance or obstacle to employment” where the condition was one of the thirty listed in the statute. La. R.S. 23:1378(F). One of these conditions is a ruptured intervertebral disc. Id.

“A ‘presumption’ is an inference created by legislation that the trier of fact must draw if it finds the existence of the predicate fact unless the trier of fact is persuaded by evidence of the nonexistence of the fact to be inferred.” La.Code Evid. art. 302(3) (emphasis added). In civil cases, unless a “more specific legislation provides otherwise,” presumptions, as used in legislation, are rebuttable “and therefore may be controverted or overcome by appropriate evidence.” La.Code Evid. arts. 301, 304.

Here, Triad failed to establish both, that Trent suffered from permanent partial disability that hindered his employment and that his alleged disability merged with the current injury to produce a greater disability. Dr. Gunderson testified that in 2006, Trent’s MRI showed that “there was probably what would be considered a small herniation at L5-S1.” Thus, Triad established a predicate fact, the diagnosis of a disc herniation. Yet, Trent supplied enough evidence to convince the OWC of the nonexistence of the fact to be inferred, i.e., that Trent suffered from a permanent partial disability at the time Triad hired him: (1) Trent and his wife testified that he had no back problems after the 2006 injury resolved itself; (2) without any back complaints, Trent worked at several jobs that involved heavy manual labor prior to working for Triad; (3) there are no medical records showing that Trent sought or 112received medical care for any back problems between the injuries; (4) Trent was able to perform his work duties at Triad and was injured not while in the performance of his duties but because of a slip and fall; (5) Dr. Gunderson testified that if Trent was able to work as a laborer for two years prior to the accident, Dr. Gun-derson would not have concluded that Trent suffered from a partial disability immediately before the accident; and, (6) Dr. Gunderson wrote that Trent “has previously known disc pathology,” but that it was Dr. Gunderson’s impression that Trent “apparently has had a complete recovery” from the 2006 injury. Based on this, we find that the OWC did not err by concluding that Triad failed to establish that Trent suffered from permanent partial disability immediately before the 2008 accident.

Triad also failed to establish merger of the 2006 and the 2008 injuries so as to produce a greater disability. As mentioned previously in this opinion, Dr. Gun-derson testified that Trent’s current injury could have been an aggravation of his old condition or that it could have occurred in the absence of the old. Based on this testimony, this court cannot conclude that the OWC manifestly erred by finding that Triad did not sustain its burden of proving that Trent’s previous injury merged with the current injury to produce a greater injury.

(3) Forfeiture Defense Under La. R.S. 23:1208

It is unlawful “for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” La. R.S. 23:1208(A). “Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.” La. R.S. 23:1208(E). Thus, the employee forfeits workers’ compensation benefits if the employer proves that (1) that the employee made a false statement or | ^representation, (2) willfully, (3) for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Constr. Co., 94-2708 (La.9/5/95), 660 So.2d 7.

Here, Triad argues that Trent intentionally concealed his income from shrimp sales with an intent to obtain additional workers’ compensation benefits. With support of a surveillance video, Triad also claims that Trent intentionally exaggerated the extent of his injuries.

At the hearing, Trent explained that he did not mention the income from his shrimp selling because he thought that when the counsel inquired about his income, he meant income from an actual employment and not a side job. Thus, Trent’s failure to disclose this income appears to have been a misunderstanding and not a willfully false statement.

Trent also explained that on some days his back hurts less than on other days and that is why his level of activities varies from day to day. We note that for this reason, video surveillance that is subject to recording at times most favorable to the person making the recording is inherently of limited value. Based on these considerations, we find no manifest errors here.

(4) Penalties and Attorney Fees

The workers’ compensation judge concluded that “[gjiven the factual disputes at issue and the defense presented,” attorney fees and penalties were not owed. We agree. The record evidence demonstrates that this factual determination is not manifestly erroneous.

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CONCLUSION

The judgment in favor of Edward Trent, Jr. is affirmed.

AFFIRMED.

PETERS and PAINTER, JJ., concur in the result.


source: Caselaw Access Project

author: DECUIR, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Reginald J. JULIEN.
    No. 09-1242.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Laurie Anne Hulin, Assistant District Attorney, Fifteenth Judicial District, Vermilion Parish, Louisiana, Abbeville, LA, for Appellee, State of Louisiana.
    Mark 0. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Reginald J. Julien.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

| T Defendant, Reginald J. Julien, was charged with aggravated assault with a firearm, a violation of La. R.S. 14:37.4. After trial by jury, he was convicted and sentenced to serve four years at hard labor with the Louisiana Department of Corrections, to be served concurrently with a sentence he was serving at the time of sentencing.

Defendant now appeals his conviction, arguing an insufficiency of the evidence and an error patent, arguing that the trial court failed to advise him of his delays for applying for post-conviction relief.

FACTS

On December 6, 2006, Anthony Steed and Defendant got into an argument that resulted in a physical altercation. At some point, Defendant left the premises and returned with a weapon. The physical altercation continued, and Defendant picked up the firearm. The firearm was discharged without striking Mr. Steed. Defendant urged that the discharge of the firearm was accidental, but he was found guilty as charged at conclusion of the trial.

TESTIMONY:

The first witness to testify was Anthony Atkins Steed, who testified that in December 2006 he was living at 401 North Guidry in Kaplan, Louisiana. He was living in the home of James Guidry, an old Navy buddy he met at the VA. He had been living with Mr. Guidry for sixteen days at the time of the incident.

On December 6, 2006, a man came into the house, unannounced, and asked Mr. Steed who he was. The man said he was a cousin of “James.” He did not knock and just walked into the bedroom where Mr. Steed was located. When Mr. Steed asked who the man was, “[h]e got upset, asked me if I wanted to get bucked and he swung |aat me.” Mr. Steed was lying in bed at the time. Mr. Steed testified that the man was irritated and looked like he wanted to fight.

When the man swung, he missed Mr. Steed who then kicked the man twice in the chest. The man backed up a little and swung again, striking Mr. Steed twice, in the lip and the eye. Mr. Steed was still lying in bed. Mr. Steed testified:

A I got up. We went out into the kitchen. I told him I had just had surgery, that I couldn’t do this. We wrestled a little bit more. We talked back and forth — not talked; we cussed back and forth. I told him I was going to call Mr. Guidry and I did so. I got the phone and I called Mr. Guidry. I told him there was a gentleman in the house hitting me. I didn’t know who he was. Mr. Julien said out loud, “It’s Little Regg.” James said, “I know who he is. I’ll be there in just a little bit.” As soon as I hung up the phone, Mr. Julien came up to me again and he wanted to fight again. He put up his fists again to fight me. I had no option but to try to defend myself. He swung at me again and missed. I swung; I hit him. He hit me a couple of more times.
By this time, I had told him I had had enough. I couldn’t take it anymore. I had a huge open wound in my side. I couldn’t afford to get hit there. It was bad; I had a huge cut. I don’t know how many staples I had; it was a lot.

Mr. Steed was recovering from surgery at the time of the incident. At one point, Mr. Steed testified Defendant went outside, and when he returned, he was holding something in his hand that he placed on the dryer. Defendant then put his hands up and they began to fight some more. Defendant then returned to the dryer and picked up what Mr. Steed then recognized to be a gun.

The witness identified the gun as a revolver with a six to eight inch barrel. Defendant pointed the gun at Mr. Steed and said: “Now talk.” Mr. Steed was instructed to sit down on the bed, and did so. When Defendant first pointed the gun at him, Mr. Steed was in the kitchen, and the gun was aimed at his head. He moved into a bedroom that opened into the kitchen.

^Defendant remained in the kitchen, but only about two to three feet away. Mr. Steed testified that he knew he had to do something, and he stood up and threw his arms up, striking the gun. As soon as he touched the gun, it went off. Mr. Steed felt a pain in his back and thought he had been shot.

Mr. Steed fell back in bed, and said “you shot me.” Defendant started crying and saying that he did not shoot him. Mr. Steed grabbed the phone and dialed 911, and Defendant jumped on him and grabbed the phone.

According to Mr. Steed, Defendant started crying and saying he was sorry. Defendant then ran outside and returned with another man Mr. Steed did not know. Both men left, and Mr. Steed laid there until Mr. Guidry arrived, and the police were called. He gave a statement to the police officer and pointed out the bullet hole in the door and the wall.

On cross-examination, Mr. Steed stated that he later learned that Defendant was a cousin of Mr. Guidry, and did not know if he was accustomed to coming and going. After Defendant left the home, Mr. Steed did not call the police because Defendant had taken his cell phone.

Sergeant Bruce Ashley of the Kaplan Police Department testified that he responded to a “shots fired” call at 401 North Guidry on December 6, 2006. He entered the residence and spoke with the Victim who was sitting on a bed. The Victim said a guy tried to shoot him. He advised that Defendant was the person who tried to shoot him.

The Victim had no blood on him, but was sweaty, like he had been in an altercation. Upon examination of the room, the officer found a small hole in the door |4and in the wall. In the hole in the wall, the officers found a small caliber slug, consistent with a handgun.

On cross-examination, the officer testified that they were unable to find a casing, which meant that the weapon was not an automatic. The police never recovered the weapon used. Defendant turned himself in to the police. A search of his apartment did not uncover anything of value to the investigation.

The next officer to testify was Sergeant Scott Lemarie, a detective with the police department. He too observed the holes in the wall of the residence and what appeared to be gunpowder residue. He actually retrieved the projectile. The projectile was placed into evidence. The officer explained that the projectile came from a .22 caliber revolver, based upon the absence of a cartridge.

Following the testimony of Sergeant Le-marie, both parties rested. Defendant was found guilty as charged.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one error patent which has been raised by Defendant.

Defendant correctly contends that he was not advised of the prescriptive period for filing an application for post-conviction relief, as required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform Defendant of the provisions of Article 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof that Defendant received the notice in the record of the proceedings. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

|,.ANALYSIS

Defendant contends the evidence was insufficient to support his conviction. Defendant was convicted of aggravated assault with a firearm, a violation of La. R.S. 14:37.4, which provides:

A.Aggravated assault with a firearm is an assault committed by the discharge of a firearm.
B. For the purposes of this Section, “firearm” is defined as an instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder exploded within it.
C. Whoever commits an aggravated assault with a firearm shall be fined not more than five thousand dollars, or imprisoned for not more than five years, with or without hard labor, or both.

An assault is defined by La. R.S. 14:36, which states: “Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.”

In brief, counsel for Defendant concedes that: (1) Defendant pointed a revolver at Mr. Steed; and (2) Mr. Steed was in reasonable apprehension of receiving a battery. However, his sole argument is that Defendant is only guilty of a misdemeanor pursuant to La. R.S. 14:37. That statute requires only that an assault be committed with a dangerous weapon, as opposed to La. R.S. 14:37.4, which requires “discharge.”

Defendant’s argument is that the firearm was accidentally discharged upon being struck by Mr. Steed as he stood up. He contends that the discharge was unintentional.

In brief, the State argues:

The trier of fact found that the discharge was not accidental. The gun remained under the defendant’s control for the entirety. It never left his hand. The bump was without enough force to cause the defendant to loose his grip or control. It is unreasonable to conclude that this bump would cause a twenty-two caliber weapon to discharge. Also, the |,¡defendant’s apology after he fired the weapon is indicative of his guilt. Using their common sense and the evidence as a whole, the trier of fact eon-eluded that Mr. Julien’s finger pulled the trigger as he threatened the victim. This caused the discharge. It was not an accident. It is reasonable that the defendant should expect a criminal consequence from pointing a gun at a man’s head, closing in on him, and discharging the weapon.

The definition of intent is found in La. R.S. 14:10:

Criminal intent may be specific or general:
(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.
(2) General criminal intent is present whenever there is specific intent, and also 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.

The application of “intent” to crimes found in our Criminal Code is provided in La. R.S. 14:11:

The definitions of some crimes require a specific criminal intent, while in others no intent is required. Some crimes consist merely of criminal negligence that produces criminal consequences. However, in the absence of qualifying provisions, the terms “intent” and “intentional” have reference to “general criminal intent.”

Appellate review of proof of the element of criminal intent is the same as a Jackson review. State v. Segura, 07-685 (La.App. 5 Cir. 2/6/08), 979 So.2d 524, 528. In State v. Jackson, 42,960, pp. 7-8 (La.App. 2 Cir. 2/13/08), 976 So.2d 279, 283, the court stated:

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This 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.
The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (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. Gilliam, 36,188 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422. When there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

The court in State v. Miller, 00-218, p. 16 (La.App. 4 Cir. 7/25/01), 792 So.2d 104, 115-16, writ denied, 01-2420 (La.6/21/02), 818 So.2d 791 (emphasis added), held:

“General intent” exists when circumstances indicate that the prohibited result may reasonably be expected to follow from the offender’s voluntary act, irrespective of any subjective desire on the offender’s part to have accomplished the result. State v. Elzie, 343 So.2d 712 (La.1977). Though intent is a question of fact, it need not be proven as a fact; but may be inferred from the circumstances of the case. State v. Phillips, 412 So.2d 1061 (La.1982).

In Jackson, 976 So.2d 279, the defendant began firing a pistol at his girlfriend as she was leaving home to catch a bus. The victim escaped into her home, but a shot fired by defendant struck the back of a passing school bus and wounded a child on the bus. Defendant was charged with attempted manslaughter, and illegal use of a weapon while committing a crime of violence, a general intent crime, as noted by the court.

IsDefendant argued that after a jury found him guilty of having the specific intent to commit to kill the intended victim, it could not have found him guilty of having the general intent to convict him of illegal use of a weapon. The court stated:

After the jury found that he had specific intent to kill Lajoy Livingston, the defendant argues that the jury could not have found the requisite general intent to convict him of illegal use of a weapon while committing aggravated criminal damage to property. To find the defendant guilty on this count, the jury was required to find that the defendant intentionally discharged his firearm under circumstances indicating that he, in the ordinary course of human experience, must have known that it was reasonably certain that one of the bullets would strike the bus, and that it was foreseeable that his action would endanger the lives of the children aboard. Because the crime of aggravated criminal damage to property is a general intent crime, the jury was not required to find that the defendant actively desired to hit the bus, only that hitting the bus was a reasonably certain outcome of his intentional discharge of the handgun.

Id. at 285.

In the instant case, the evidence proves that Defendant, after obtaining a firearm and pointing it at the victim, thus committing the crime of aggravated assault when doing so, possessed the general intent to fire the weapon, as he must have known that a prescribed consequence of doing so was the discharge of the weapon, whether such discharge occurred as a result of his intent to discharge, or from his negligence. It was not necessary for the jury to find that Defendant had any “subjective desire” to accomplish the result, but only “that the prohibited result” would “reasonably be expected to follow” from his voluntary act of introducing the gun into the situation.

Given that the Victim, despite recovering from surgery, had actively resisted Defendant’s previous attempts to injure him, the jury could have reasonably concluded that Defendant must have known that when he confronted the Victim with |9a firearm, the discharge of said firearm could reasonably be expected to follow. Accordingly, we find the evidence sufficient to support Defendant’s conviction.

DECREE

Defendant’s conviction is affirmed. The trial court is directed to inform Defendant of the provisions of Article 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof that Defendant received the notice in the record of the proceedings.

AFFIRMED WITH INSTRUCTIONS.


author: STEWART, J.

text:
    William UPCHURCH, Plaintiff-Appellee, v. RANDALL WELL SERVICE, Defendant-Appellant.
    No. 45,056-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.
    William A. Jones, Jr., Coushatta, for Appellants American Interstate Ins. Co. and Randall Service Corp.
    Mary L. Salley, for Appellee William Upchurch.
    Before BROWN, STEWART and PEATROSS, JJ.
   STEWART, J.

| jDefendants-Appellants, Randall Well Service and American Interstate Insurance Company, are appealing a motion for summary judgment granted in favor of Plaintiff-Appellee, William Upchurch. For the reasons discussed below, we affirm the lower court’s judgment.

FACTS

On January 3, 2001, Upchurch began working for Randall Well Service. He was injured on January 9, 2001, in an accident arising out of and in the course and scope of his employment. At the time of his injury, Upchurch had worked a total of 70 hours, at an hourly rate of $9.00/hr. He earned $765.00, which included 40 regular hours and 30 overtime hours.

American’s adjuster accepted Up-church’s claim and began paying indemnity and medical benefits immediately. American initially calculated Upchurch’s average weekly wage (“AWW”) to be $765.00. During the 354 weeks following Up-church’s accident, American paid Temporary Total Disability (TTD) benefits totaling $93,120.00 and Supplemental Earning Benefits (SEB) totaling $40,128.00, which amounted to $133,248.00 in indemnity benefits.

Mark Pryor, who was a new benefits adjuster employed by American and who was assigned to Upchurch’s claim, made the decision to terminate Upchurch’s indemnity payments in September 2007. Pryor determined that American’s previous adjuster overpaid Upchurch, when he mistakenly calculated Upchurch’s AWW by only using his earnings during the week of 12the injury. Based on this calculation, they contended that the cumulative total of overpayment was $48,048.00, which was about $12,000.00 more than the total amount of worker’s compensation benefits that Upchurch was eligible to receive. Randall and American claimed entitlement to a credit for the overpayment. Pryor stated in his affidavit that Upchurch was eligible for 166 more weeks of SEB benefits, but was only entitled to $28,248.22.

On February 19, 2008, Upchurch filed a disputed claim concerning the termination of his indemnity benefits. On July 21, 2008, Upchurch filed a motion of summary judgment on the issue of his AWW. American filed its motion for summary judgment on August 8, 2008.

The Worker’s Compensation Judge (“WCJ”) rendered his judgment in favor of Upchurch and found that his AWW was $765.00. He also determined that La. R.S. 23:1021 does not apply to the instant case. Upchurch was awarded $2,000.00 in penalties and $2,000.00 in attorney’s fees, after the WCJ found no legal basis for ceasing benefits and claiming overpayment. The WCJ also stated that Randall and American should have sought permission from the court before unilaterally ceasing indemnity payments. The WCJ found that their actions were “arbitrary and capricious.” Randall and American now appeal.

LAW AND DISCUSSION

Randall and American raise two assignments of error in their appeal. In the first assignment, they argue that the WCJ erred in basing his ruling solely on the hours worked by Upchurch during the week of injury, since La. R.S. 23:1021 states that the hours worked during the week of the injury | sshouId be disregarded when calculating the AWW. Randall and American contend in the second assignment of error that the WCJ erroneously disregarded all other factors when he based his calculation of the AWW solely on the hours worked during the week of Up-church’s injury, since number of hours worked in the week of injury bears no relation to the normal work schedule and earnings, and are entirely beyond the control of either employer or employee. Since both of these issues relate to the WCJ’s calculation of the AWW, we will discuss them together.

In a worker’s compensation case, the appellate court’s review of fact is governed by the manifest error or clearly wrong standard. Harrison v. Auto King, 2003-1620 (La.App. 1 Cir. 5/14/04), 879 So.2d 796; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733.

The nature of worker’s compensation law requires a liberal construction of the statute. Fusilier v. Slick, 94-11 (La.App. 3 Cir. 6/1/94), 640 So.2d 788.

La. R.S. 23:1021(12)(a)(i) states:
The average weekly wage shall be determined as:
(a) Hourly wages.
(1) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater.

The language of La. R.S. 23:1021 indicates the legislature’s intent to provide the worker with the maximum hours available by using the greater of an average of four weeks work or the wage at forty hours. Id. Under |4normal circumstances, a worker who completes four full weeks will have overtime considered in the average as well. Id.

As discussed in the facts section above, Upchurch did not work four full weeks preceding the date of his accident. In fact, Upchurch only worked 70 hours during the span of one week. Therefore, the WCJ had to interpret La. R.S. 23:1021 to fit this case. In doing so, the WCJ determined that this statute could not, by its own terms, apply to the instant case:

Defendant argued that the correct method should have been to use 70 hours for the first week and then to fictitiously utilize the forty-hour presumption for the following three weeks which would result in a much lower average weekly wage of $461.25. This would satisfy the four-week language of the statute. The Court disagrees with this calculation and finds that the forty-hour floor in La. R.S. 1021 does not apply.

In Fusilier, supra, the claimant presented a factually similar situation. He did not complete four full weeks of work with Slick prior to his work-related injury. In that case, the court stated:

... if four full weeks are not completed and a forty-hour week is used, the claimant unfairly receives nothing for any overtime he might have worked. We believe the proper calculation is to divide the regular and overtime hours worked in the two weeks by two to determine the average number of hours worked in one week.

Ultimately, the court in Fusilier held that the proper way to calculate an average weekly wage for someone who has not worked four full weeks was to use the actual wages divided by the actual number of weeks worked.

Randall and American argue that the OWC’s ruling sets up a situation where Upchurch may get a windfall because he worked an abnormal amount of hours during the week of injury, or in the alternative, where he may be severely penalized if he is injured early in the workweek. They contend that |5the best method is to use the average hours worked by Upchurch’s crew members to determine his AWW.

We disagree with Randall and American’s contentions and find that the WCJ did not err in his ruling. Upchurch’s AWW of $765.00 was calculated by dividing his wages by the number of weeks he worked. Since La. R.S. 23:1021 cannot be applied as written, we agree that this calculation is reasonable and equitable for all parties involved in this matter. Therefore, these assignments of error are without merit.

Additionally, Randall and American also assert that the WCJ erroneously assessed penalties and attorney’s fees against them. Randall and American determined that American had overpaid Up-church $40,048.00 after determining that his AWW should have been based on a 47.5-hour work week. This 47.5-hour work week was calculated by taking the 70 hours Upchurch worked during his first week, adding three 40-hour work weeks, and diving the total by four. Randall and American argue that their determination that Upchurch’s AWW of 47.5 hours is a rational one. Therefore, penalties and attorney’s fees are inappropriate. We disagree with Randall and American’s logic for ceasing indemnity benefits.

La. R.S. 23:1201(1) states in pertinent part:

I. 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.

In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his termination of benefits.

| r)In this case, an adjuster from American established the AWW initially, and payments were made for approximately 354 weeks. Randall and American made the decision to claim overpayment and cease payments based upon their calculation of what they believe Upchurch’s AWW should have been. They have failed to provide a valid reason or present sufficient evidence upon which to base Upchurch’s termination of benefits. Therefore, their actions were arbitrary and capricious. Rather than immediately ceasing payments, Randall and American should have sought permission of the court prior to doing so.

We decline to create a bright line rule for cases in which La. R.S. 23:1021 does not apply. Our holding is limited to the facts before us. A determination as to whether this statute is applicable must be made on a case-by case basis.

CONCLUSION

For the foregoing reasons, the WCJ’s judgment is affirmed. Costs are assessed against the appellants, Randall and American.

AFFIRMED.

      . Generally, Worker’s Compensation pays 66 2/3% of the employee’s AWW, which would be $509.00 in this case. However, Upchurch was subject to the legislative cap at the time of his injury, so his weekly worker’s compensation check was only $388.00 per week.


author: BROWN, Chief Judge.

text:
    Carol Lynn KOUTROULIS and Marge Ann Revere as Agent and Attorney-In-Fact for Ruth Francys Field, and In Their Respective Individual Capacities, Plaintiffs-Appellants, v. CENTENNIAL HEALTHCARE CORPORATION d/b/a/ The Garden Court Nursing Center, Centennial Healthcare Investment Corporation, H. Schober Roberts and The XYZ Insurance Company, Defendants-Appellees.
    No. 38,068-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.

      Georgia P. Kosmitis, Shreveport, for Appellants.
    Lunn, Irion, Johnson, Salley, & Carlisle, by James B. Gardner, Shreveport, for Ap-pellees.
    Before BROWN, GASKINS, and CARAWAY, JJ.
   BROWN, Chief Judge.

1, Plaintiffs, Carol Lynn Koutroulis and Marge Ann Revere, as agent and attorney-in-fact for Ruth Francys Field, and in their respective individual capacities, appeal the judgment of the trial court in favor of defendants, Centennial Healthcare Corp. d/b/a The Garden Court Nursing Center, Centennial Healthcare Investment Corp., H. Schober Roberts and National Union Fire Ins. Co. of Pittsburgh, Pennsylvania, dismissing their tort suit pursuant to La. C.C.P. art. 561 as abandoned. For the reasons herein, we affirm.

Facts and Procedural Background

On September 10, 1999, plaintiffs, Carol Lynn Koutroulis and Marge Ann Revere, filed a petition for damages alleging negligence in the care and treatment of their mother, Ruth Francys Field, while she was a resident/patient of defendant, Garden Court Nursing Center. An amending petition was filed on December 6, 1999, and defendants filed their answer on January 10, 2000. In response to a formal discovery request, defendants sent them last discovery responses to plaintiffs’ counsel on April 4, 2000. Shortly thereafter, counsel for plaintiffs withdrew.

On December 26, 2001, new counsel for plaintiffs enrolled. Immediately thereafter, plaintiffs’ attorney forwarded written requests pursuant to La. R.S. 40:1299.96 to Garden Court Nursing Center to obtain certified copies of Ms. Field’s medical records. Although all defendants, including Garden Court Nursing Center, were represented by an attorney, 12the request was not sent to the attorney of record. Plaintiffs’ counsel received the medical records from Garden Court Nursing Center in January 2002. Thereafter, in April 2002, pursuant to La. R.S. 40:1299.96, plaintiffs’ attorney sent additional written requests to four nonparty health care providers for medical records pertaining to Ms. Field. None of these requests were served on defendants’ attorney. During the interim, plaintiffs’ attorney advised defense counsel that she was in the process of obtaining experts to review the records and produce written reports to be used during a settlement conference.

On April 10, 2003, after having not received any written or oral communication from plaintiffs’ counsel in over a year, and with the record being devoid of evidence of any formal action within the past three years, counsel for defendants filed a motion to dismiss all claims pursuant to La. C.C.P. art. 561. The trial court signed an order dismissing plaintiffs’ claim with prejudice, retroactive to the date of abandonment, April 4, 2003. Plaintiffs filed a motion to set aside the dismissal with prejudice. The trial court held a hearing on the motion, and subsequently issued a written opinion converting the dismissal with prejudice to a dismissal without prejudice. Based upon this ruling, plaintiffs have appealed.

Discussion

The issue presently before us is whether the plaintiffs’ request for their mother’s medical records from Garden Court Nursing Center in |sDecember 2001, pursuant to La. R.S. 40:1299.96, qualifies as a step in the prosecution of this action.

La. C.C.P. art. 561 regulates the abandonment of actions, and it provides in pertinent part:

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
B. Any formal discovery as authorized by this Code [Code of Civil Procedure] and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action. (Emphasis added).

Article 561 sets forth three requirements: (1) that a party take some “step” in the prosecution or defense of an action; (2) that the step be taken in the trial court and, with the exception of authorized formal discovery served on all parties, appear in the record of the suit; and (3) that the step be taken within three years of the last step taken by either party. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.05/15/01), 785 So.2d 779; Stemley v. Foti, 40,379 (La.App.2d Cir.10/26/05), 914 So.2d 642, writ denied, 06-0224 (La.04/24/06), 926 So.2d 551. For abandonment purposes, a “step” is defined as taking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Clark, supra; See also La. C.C.P. art. 1446(D); and La. C.C.P. art. 1474.

An action should not be dismissed if a plaintiff has clearly demonstrated before the court that he does not intend to abandon the action. Clark, supra; Moore v. Eden Gardens Nursing Center, 37,362 (La.App.2d Cir.06/25/03), 850 So.2d 998. However, a plaintiffs intention to take a step in the prosecution of his claim without a step actually being taken is not sufficient to preclude a finding of abandonment. Stemley, supra; Sullivan v. Cabral, 32,454 (La.App.2d Cir.10/27/99), 745 So.2d 791, writ denied, 99-3324 (La.01/28/00), 753 So.2d 837.

Plaintiffs contend that under the facts of this case, their seeking to obtain medical records pursuant to La. R.S. 40:1299.96 was proper since their attorney was requesting copies of their mother’s medical records. Regardless of whether the request was labeled as a “discovery request,” plaintiffs posit that it still shows that there was no intent to abandon the claim, and, therefore, it should be deemed to be a step in prosecution of the case.

To support their contention that the medical records request was a step in furtherance of their prosecuting the case, plaintiffs cite Harrington v. Glenwood Regional Medical Center, 36,556 (La.App.2d Cir.12/11/02), 833 So.2d 1241. Plaintiffs’ reliance on Harrington, however, is misguided. In Harrington, supra, one defendant sought a signed medical records release form from plaintiff pursuant to La. C.C.P. art. 1465.1, which plaintiff executed and returned. On appeal defendants attempted to argue |fithat the trial court’s finding of abandonment should be upheld since the medical records release request was not formal discovery authorized by the code of civil procedure. Finding, however, that the code of civil procedure expressly provided for that type of discovery, this court disagreed.

In the case sub judice, counsel for plaintiffs sought to obtain plaintiffs’ mother’s medical records pursuant to La. R.S. 40:1299.96, not under any discovery article of the code of civil procedure. The request was mailed directly to the Garden Court Nursing Center. It was neither filed in the record nor served on defendants’ counsel of record. In fact, it is not known if defendants’ counsel was even aware of the request prior to plaintiffs’ motion to set aside the dismissal of their claim. Clearly this request cannot be considered a formal action before the court or a method of formal discovery authorized by the code of civil procedure.

Accordingly, we find that plaintiffs’ request for their mother’s medical records pursuant to La. R.S. 40:1299.96 does not amount to a step in the prosecution of the case, and, as such, is insufficient to preclude a finding of abandonment.

| (¡Conclusion

For the foregoing reasons, the judgment of the trial court dismissing plaintiffs’ action on the grounds of abandonment is affirmed. Costs of this appeal are assessed to plaintiffs.

      . Motions to withdraw, enroll, or to substitute counsel are not considered to be formal “steps” in the prosecution of a suit. See Brown v. City of Shreveport Urban Development, 34,657 (La.App.2d Cir.05/09/01), 786 So.2d 253.

      . All defendants were represented by the same attorney.

      . The pertinent portions of La. R.S. 40:1299.96 provide as follows:
      A. (l)(b) Except as provided in R.S. 44:17, a patient or his legal representative, or in the case of a deceased patient, the executor of his will, the administrator of his estate, the surviving spouse, the parents, or the children of the deceased patient ... shall have a right to obtain a copy of such record upon furnishing a signed authorization and upon payment of a reasonable copying charge....

      . La. C.C.P. art. 1465.1(A). Requests for medical release records, provides:
      A. Any party may serve upon the plaintiff or upon any other party whose medical records are relevant to an issue in the case a request that the plaintiff or other authorized person sign a medical records release authorizing the health care provider to release to the requesting party the medical records of the party whose medical condition is at issue. The release shall be directed to a specific health care provider, shall authorize the release of medical records only, and shall state that the release does not authorize verbal communications by the health care provider to the requesting party-


text:
    JUSTISS OIL COMPANY, INC., Plaintiff-Appellee, v. LOUISIANA STATE MINERAL BOARD, OF The STATE OF LOUISIANA, et al., Defendants-Appellants.
    Nos. 45,212-CA, 45,253-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.
    James D. “Buddy” Caldwell, Attorney General, Irys L. Allgood, Ryan M. Seide-mann, Assistant Attorneys General, for Defendant-Appellant, State of Louisiana, State of Louisiana Dept, of Natural Resources and State Mineral Board of the State of Louisiana.

      Department of Wildlife & Fisheries by Frederick C. Whitrock, Baton Rouge, for Defendants-Appellants, State of Louisiana Dept, of Wildlife & Fisheries and Wildlife & Fisheries Commission of State of State of Louisiana.
    Donald R. Wilson, R. Joseph Wilson, New Orleans, for Plaintiff-Appellee, Jus-tiss Oil Co., Inc.
    Blanchard, Walker, O’Quin & Roberts by Wm. Timothy Allen, III, Stacey D. Williams, Shreveport, for Defendant-Ap-pellee, Wilson Production 16 LLC.
    Before WILLIAMS, STEWART and MOORE, JJ.
   STEWART, J.

|TIn this concursus action to determine entitlement to the proceeds from a producing gas well in DeSoto Parish, the trial court granted summary judgment in favor of the plaintiff, Justiss Oil Company, Inc., (“Justiss”), recognizing it as the owner of one-half of the mineral rights attendant to property referred to herein as “Lot 5.” The defendants, Wilson Production 16, L.L.C., along with the Louisiana State Mineral Board, the Louisiana Wildlife and Fisheries Commission, the Louisiana Department of Wildlife and Fisheries, and the Louisiana Department of Natural Resources now appeal the granting of summary judgment in favor of Justiss and the denial of their cross-motions for summary judgment.

At issue is whether the mineral rights were reserved to the State of Louisiana (the “State”) under La. Const. 1921, Article IV, § 2, when a patent conveying Lot 5 was issued in 1935, upon presentation of a lieu warrant that had been issued in 1919. For reasons explained in this opinion, we find that the mineral rights attendant to Lot 5 were reserved to the State by operation of law when the patent was granted in 1935. Accordingly, the trial court erred in granting summary judgment in favor of Justiss and in denying the cross-motions by the defendants.

FACTS

Justiss is the operator of a producing natural gas well in DeSoto Parish identified as the “Justiss Oil Company, Inc.— Louisiana Wildlife and Fisheries 16 No. 1 well.” Included in the unit for the well is Lot 5, which is identified as follows:

| ^¿Governmental Lot 5 or the fractional Southwest Quarter of the Northeast Quarter, Section 16, Township 14 North, Range 12 West.

Lot 5 comprises about 37 acres out of the total unit of about 627 acres, and .05872036 of the gross production revenue for the well has been allocated to Lot 5.

Ownership of the mineral rights underlying Lot 5 is disputed. Justiss claims ownership of one-half of the mineral rights. Defendants claim the State owns all the mineral rights. Because Justiss as operator of the well is charged with distributing the production revenue, it filed this concursus action to have the conflicting ownership claims asserted and resolved.

Justiss filed a motion for summary judgment, which was followed by cross-motions for summary judgment by the defendants. In support of its motion, Justiss filed an affidavit by R. Joseph Wilson, the attorney who rendered the “Division Order Title Opinion” for the well. Exhibits to the affidavit include documentation establishing the chain of title for Lot 5.

Relevant to this dispute, the chain of title shows that in August 1896, the State had mistakenly sold 40 acres to which it had no title. On April 9, 1919, Frank J. Pierson had the erroneous 1896 entry certificate and patent cancelled and obtained “Land Warrant No 187,” referred to hereafter as the “lieu warrant.” This entitled Pierson, his heirs or assigns to have the lieu warrant located upon lands of the “same class” as that of the original entry-certificate and patent of 1896.

In January 1935, Joseph A. Clements presented the lieu warrant to the State’s land office to have it located on Lot 5. Accordingly, Patent No. |s101068 was issued by the State evidencing the conveyance of Lot 5 to Clements.

Justiss acquired Lot 5 along with other property through a sheriffs sale on September 9,1981. Then, by act of sale dated January 11, 1999, Justiss sold Lot 5 and other acreage to the Louisiana Land Company of Rapides, Inc. (“LLCR”). In the act of sale, Justiss reserved “an undivided one-half (½) interest in and to all oil, gas and minerals in, on or under” the property-

By a cash sale deed executed on October 7, 1999, LLCR sold acreage, inclusive of Lot 5, to the Louisiana Wildlife and Fisheries Commission and the Louisiana Department of Wildlife and Fisheries. In June 2006, the Louisiana State Mineral Board granted a mineral lease to Cypress Energy Corporation covering state-owned acreage in DeSoto and Red River Parishes.

Justiss sought to establish by the chain of title that it reserved and owns an undivided one-half interest in the mineral rights underlying Lot 5. Defendants stipulated to the correctness of the chain of title established by Justiss. However, they argued that the mineral rights were not conveyed in 1935, but were reserved in favor of the State as mandated by La. Const. 1921, Article IV, § 2. Justiss countered that because the patent was issued pursuant to a 1919 lieu warrant, Art. IV, § 2 did not apply.

The trial court agreed with Justiss’s argument and granted summary judgment in its favor, recognizing it as owner of one-half of the mineral rights underlying Lot 5. Defendants now appeal.

[^DISCUSSION

Summary judgments are reviewed de novo on appeal using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Bellard v. American Cent. Ins. Co., 2007-1335 (La.4/18/08), 980 So.2d 654. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits show that there is no genuine issue as to material fact and that the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(B).

The facts of this matter are undisputed. What remains to be determined is whether the patent issued by the State in 1935, pursuant to the 1919 lieu warrant, conveyed the mineral rights with the land or whether the State reserved the mineral rights as mandated by La. Const. 1921, Art. IV, § 2. Though similar disputes have been addressed by the courts, the facts of this case present a res nova issue.

Issuance of the lieu warrant in 1919 was authorized by Act No. 104 of 1888, which was enacted for the following purpose:

To authorize the register of the State land office, where it is made to appear that dual or double entries have been made, to cancel the invalid and erroneous entry and to issue a warrant therefor, locatable on other State lands of the same class as was originally entered.

As indicated in Act No. 104, there were instances where the State had sold the same land twice or sold land that had already been patented and sold by the United States government. To resolve the conflicting claims, the State authorized the land office to cancel the erroneous sales and issue | ¡/‘warrants,” referred to here as lieu warrants, which were assignable. The lieu warrants could then “be located on the same class of lands that were originally entered by the party or parties in whose favor they were issued.” Act No. 104 of 1888, Section 3.

In 1921, a new state constitution was adopted. La. Const. 1921, Art. IV, § 2 included the following language:

In all cases the mineral rights on any and all property sold by the State shall be reserved, except where the owner or other person having the right to redeem may buy or redeem property sold or adjudicated to the State for taxes.

Almost 14 years after the Constitution of 1921 was adopted, Joseph Clements presented the 1919 lieu warrant to the State to have it located on Lot 5 in DeSoto Parish. A patent declaring that the State “does give, grant, and sell” the specified land to Clements was issued on January 28,1935.

Even though Art. IV, § 2 mandated the reservation of mineral rights on any and all property sold by the State, Justiss argues that this provision did not apply to the conveyance that took place in 1935. Instead, Justiss focuses on the date of the lieu warrant. Justiss asserts that the issuance of the lieu warrant in 1919 pursuant to Act 104 created a contractual or vested right. Citing La. Const. 1921, Art. IV, § 15, which prohibited the passage of ex-post facto laws, laws impairing the obligation of contracts, or laws that would operate to divest one of vested rights, Jus-tiss asserts that Art. IV, § 2 could not be applied retroactively so as to impair the rights under a lieu warrant issued prior to 1921. Rather, Art. IV, § 2 applies prospectively only. Lastly, Justiss asserts that jurisprudence has consistently held that lieu | (¡warrants issued before 1921 obligated the State to convey mineral rights along with surface rights.

Contrary to Justiss’s assertion, defendants interpret jurisprudence as holding that no rights vest with the issuance of the lieu warrant. They assert that property rights vest only when the lieu warrant is presented to obtain a patent for a specifically identified parcel of land. Defendants assert that this occurred when Clements applied to the State in 1935 for a patent to locate the lieu warrant on Lot 5. By then, the 1921 Constitution had been in effect for almost 14 years, and no mineral rights were conveyed with the land.

State ex rel. Hyams’ Heirs v. Grace, 173 La. 215, 136 So. 569 (La.1931), hereafter “Hyams I,” and State ex rel. Hyams’ Heirs v. Grace, 197 La. 428, 1 So.2d 683 (La.1941), hereafter “Hyams II,” are the main cases relied on by Justiss. Both stem from the same underlying facts. In 1863, Henry Hyams purchased land from the State which had already been sold by the United States government. By the time Act No. 104 was passed to indemnify the holders of patents for land which the State did not own, Mr. Hyams had died and his children were all minors. Pursuant to Act 104, Hyams’ executor had the erroneous patent canceled in 1888, and at the same time filed an application for a lieu warrant. The executor died before the lieu warrant was issued, and no action was taken by the State on the warrant application. When Hyams’ heirs reached the age of majority, the warrant application was found, and a lieu warrant was issued to them in 1917. At the same time, Hyams’ heirs applied for a patent to partially locate the lieu warrant on 120 acres of land in Union Parish.

|7In Hyams I, the State refused to issue the patent on the grounds that the lieu warrant had been issued in 1917, after Act No. 104 had been repealed and superseded by Act No. 131 of 1906. Act 131 authorized refunds rather than the issuance of lieu warrants to the holders of erroneously granted patents. The Hyams heirs filed a mandamus action to compel the State to issue the patent. Though the trial court ruled in favor of the State, the judgment was reversed on appeal and mandamus relief granted. The supreme court concluded that Act 131 neither repealed nor superseded Act 104. Even though the lieu warrant had not been issued until 1917, Hyams’ executor had applied for the lieu warrant in 1888, and had done everything required of him under Act No. 104 to obtain the lieu warrant. However, the register of the State’s land office had failed to fulfill his ministerial duty and had not issued the lieu warrant until 1917. Accordingly, the Hyams heirs had the same rights as if the warrant had been issued when applied for in 1888.

Hyams II, which is more relevant to this matter, was another mandamus proceeding brought by the Hyams heirs after the State refused applications for patents to locate the lieu warrant on specified lands. The heirs also sought injunctive relief to prevent the State from granting mineral leases before issuance of the patents. Patent applications made in 1917, 1918, 1919, and again in 1938 were all rejected. The main issue on appeal concerned the State’s claim that the action to enforce the lieu warrant was a personal action that had prescribed. Noting that a lieu warrant “contemplates a future location of the warrant on lands of like character | ^belonging to the State without designating any particular time within which it can be done,” the court rejected the State’s prescription argument. Hyams II, 197 La. at 437, 1 So.2d at 686. Relevant to the case sub judice, the State also argued that the patents could not be issued without a reservation of the mineral rights as required by Art. IV, § 2. The court rejected this argument. Concluding that the constitutional provision had prospective effect only, the court explained:

There is no language used therein to indicate that this constitutional provision is to apply to transfers of property under lieu warrants previously issued under Act No. 104 of 1888. In our opinion it deals with future sales of land made by the State and there is nothing contained therein to suggest that it was intended to destroy or impair a contract previously entered into by the State.

Hyams II, 197 La. at 438, 1 So.2d at 686.

Justiss’s reliance on Hyams II appears well founded. The opinion suggests that lieu warrants issued under the authority of Act No. 104 create a contractual right that cannot by impaired by Art. IV, § 2. The Hyams II holding was reiterated again by the supreme court in support of its decision in Schwing Lumber & Shingle Co. v. Board of Com’rs of the Atchafalaya Basin, 200 La. 1049, 9 So.2d 409 (La.1942), in which ownership of mineral rights was disputed between the plaintiff and the State. Schwing had purchased the land from a private party in 1930, at which time the levee district executed a quitclaim deed. The levee district had previously entered a contract to sell the property in 1900, and received the purchase price in 1904 from the original purchasers. However, it argued that title did not divest from the State until execution of the quitclaim deed in 1930, after Art. IV, § 2 was in effect. The court rejected the Levee District’s argument and Rfound that the quitclaim deed merely confirmed and made certain the title to both the land and minerals that had already vested in the original purchasers, and then to Schwing, long before adoption of the Constitution of 1921.

Though Schwing, supra, cites Hyams II as support for its finding that the State did not own the mineral rights, the evidence in Schwing established that the State through the levee district had sold the specific property at issue years before Art. IV, § 2 was enacted in 1921. Even in Hyams II, the heirs had applied for patents to locate the lieu warrant on specifically identified land three times before adoption of the Constitution of 1921. It was the State’s failure to act on the patent applications that delayed issuance until after 1921. Because the heirs had done all the law required them to do to obtain the patents, the supreme court was correct in ordering them issued without reservation of mineral rights by the State. Considering that the sale and transfer of the land in Schwing, supra, occurred years before 1921, that case does little to advance Jus-tiss’s position. Moreover, the specific facts of Hyams II, supra, and the supreme court’s subsequent opinions on similar matters weigh in the defendants’ favor.

Douglas v. State, 208 La. 650, 23 So.2d 279 (La.1945), is another matter stemming from the same facts as Hyams I and Hyams II. After issuance of the lieu warrant in 1917, Judith Hyams Douglas applied for a patent in 1919 to locate part of the warrant on land in Union Parish. No action was taken until she renewed her application in 1939, at which time her application was rejected. The State had withdrawn the land from sale and had granted a mineral lease in favor of Standard Oil Company of Louisiana. | iqF oil owing abandonment of the lease by Standard Oil and the decisions in Hyams I, supra, and Hyams II, supra, the State issued Douglas’s patent. Claiming that the property became hers when she filed for the patent in 1919, or at least when she renewed her application in 1939, Douglas filed suit to recover the cash bonus received by the State for the mineral lease. The supreme court agreed with Douglas and explained:

[W]hen the plaintiff applied for the patent in 1919 and renewed the same in 1939, her right thereto became perfect and complete and she thereby acquired a vested right to the property the same as if the patent had issued, entitling her to all revenues derived therefrom.

Douglas, 208 La. at 663, 23 So.2d at 283.

The court focused on the date of the patent application, rather than the date of the lieu warrant, as the date when Douglas acquired vested rights in the property. Though the court referred to dates both in 1919 and 1939, we can reasonably deduce that Douglas’s rights vested upon her initial patent application in 1919, prior to adoption of the 1921 Constitution, thereby entitling her rather than the State to ownership of the mineral rights and the bonus paid to the State for the mineral lease. The supreme court’s focus on the patent date can be read as a clarification of its earlier decision in Hyams II wherein the court concluded that the 1921 Constitution would not apply to “transfers under lieu warrants previously issued” under Act No. 104. In both Hyams II and Douglas, supra, the Hyams heirs had applied for patents as to specifically identified property prior to the enactment of the 1921 Constitution. But for the State’s failure to act and wrongful denial of the patent applications, the “transfers under lieu warrants” would have occurred |,, prior to adoption of the 1921 Constitution. The plaintiffs’ property rights vested at the time of their patent applications in 1917, 1918, and 1919, entitling them to both the surface of the land and the mineral rights attendant thereto.

In Lewis v. State, 244 La. 1039, 156 So.2d 431 (La.1963), the supreme court reversed a judgment that had decreed the plaintiff owner of mineral rights to property for which a patent had issued in 1943. A defective patent had been issued by the State in 1862. The holders of the defective patent did not apply for the lieu warrant authorized by Act 104 until 1942. Shortly after the lieu warrant was issued, its holder applied for and obtained a patent locating the warrant on land in Calca-sieu Parish. A dispute then arose as to ownership of the mineral rights. The State claimed that because the patent had not issued until 1948, it owned the mineral rights by application of Art. IV, § 2. The plaintiff claimed that constitutional provision did not apply because her rights accrued from Act 104, which authorized the lieu warrant as a remedy for defective patents. In reliance on Hyams I, supra, and Hyams II, supra, the appellate court reasoned that the property for which the patent had issued was delivered in final consummation of the defective 1862 sale and in fulfillment of the obligations assumed by the State when it issued the lieu warrant under the authority of Act 104. The supreme court rejected this reasoning.

The supreme court explained that the only events that occurred prior to 1921 were the issuance of the defective patent in 1862 and the passage of Act 104. Neither of these events gave or vested any rights in connection |1gwith the land at issue. Addressing Act 104, the court explained that it merely authorized the State’s land office “to cancel a defective patent and issue a warrant locatable on other state lands of the same class.” Lewis, 244 La. at 1045, 156 So.2d at 433. Act 104 contemplated specific action by the holder of the defective patent to achieve a vesting of rights. The court concluded that Art. IV, § 2 applied to the conveyance at issue where no action had been taken by the holder of the defective patent until 1942. The court stated that Article IV, § 2 is “mandatory” and explained:

It applies to all sales of land, whereby the state divests itself of title, with one exception: the redemption of property adjudicated to the state for taxes. Had it been intended to except sales under Act 101 of1888, the exception also would have been formally expressed.

(Emphasis added.) Lewis, 244 La. at 1048, 156 So.2d at 434.

The Lewis opinion clarifies that there is no exception for sales or transfers of land under Act 104 of 1888 in La. Const. 1921, Art. IV, § 2. This appears in conflict with the Hyams II conclusion that Art. IV, § 2 applied to future sales of land and did not apply to property transferred under lieu warrants issued under Act 104. Both Hyams II and Lewis concern sales that resulted from the passage of Act 104 and the lieu warrants issued under the authority of that act. The seemingly contrary pronouncements in Hyams II and Lewis regarding the applicability of Art. IV, § 2 to sales stemming from Act 104 can be reconciled based on when the sale or transfer of land under the lieu warrants occurred. The facts of these cases show that no sale or transfer occurred until the holder of the lieu warrant applied for a patent on a specifically identified parcel of land. In Hyams II, patent applications were made in 1917, 1918, and 1919, all prior to enactment of the 1921 | ^Constitution. It was the State’s failure to act that prevented issuance of the patents prior to 1921. Thus, the court correctly determined that the property would be conveyed without reservation of mineral rights by the State. The rights of the Hyams heirs vested prior to 1921, when the initial patent applications were made to locate the lieu warrant on specific lands. In Lewis, supra, the fact that the lieu warrant had been issued under the authority of Act 104 was of no moment. Because the patent application had not been made until many years past 1921, the court correctly found that the State retained the mineral rights by operation of Art. IV, § 2. In both cases, the mere issuance of the lieu warrant conveyed no property rights regardless of whether issuance occurred pri- or to 1921 or after. Finding that property rights vest at the time of the patent application is the very approach taken by the supreme court in Douglas, supra, and is considered by this court to be the correct approach.

Further support for our reasoning is found in Standard Oil Company of Louisiana v. Allison, 196 La. 838, 200 So. 273 (La.1941), another concursus proceeding to determine entitlement to proceeds from the sale of oil. After receiving land from the State in 1895, a levee district sold the land to a private party. However, no formal certificates of conveyance were issued at the time of the sale. It was not until after enactment of Art. IV, § 2 that certificates of conveyance covering all the land sold were issued. The State then claimed that it owned the mineral rights, but the court rejected the State’s claim. The court reasoned that the failure to issue the conveyance certificates was the fault of the state officials who failed to perform their | ^ministerial duties. Even though the certificates of conveyance were not issued until after 1921, the court found that the levee district had full power and authority to contract and to sell lands it owned and that it had done so in 1895, thereby conveying rights and interests in the land to the purchasers. The court noted that this was not a case where the parties through their own volition or indifference waited until after the adoption of the 1921 Constitution to demand issuance of the certificates of conveyance by the state officials.

In light of the foregoing cases, we find that issuance of a lieu warrant did not convey rights to any specific land. It simply authorized the holder, his heirs, or assignees to find at some indeterminate time in the future other state-owned lands of the same class for which a patent could be granted. To acquire vested property rights, the holder of the lieu warrant had to locate available land and obtain the issuance of a patent. Until land was specifically identified and a patent sought, the state had full authority to sell its land, to grant mineral leases, and to take any actions permitted a landowner. Where the state failed to act on the patent application as in Hyams II, supra, or wrongfully denied the patent application as in Douglas, supra, property rights vested when the application was made the same as though the patent had been issued. If the holder of a lieu warrant waited to apply for a patent locating the warrant on specifically identified land until after adoption of the 1921 Constitution, then he obtained a patent subject to the reservation of mineral rights in favor of the State as provided in Art. IV, § 2.

| ifiln this matter, the lieu warrant was granted in 1919. No property rights vested at that time. It was not until January 1935, when Joseph Clements applied for and obtained a patent for Lot 5 in DeSoto Parish, that he obtained property rights to that specific land. By that time, Art. IV, § 2 mandated reservation of the mineral rights on any and all property sold by the State. Accordingly, the mineral rights were reserved to the State by operation of law, and only the surface rights were conveyed to Clements and down the chain of title. We find that Justiss’s reservation of mineral rights as pertaining to Lot 5 had no effect as there were no mineral rights to reserve.

CONCLUSION

For the reasons explained, summary judgment in favor of Justiss is hereby reversed and vacated. Summary judgment in favor of the defendants is hereby granted, declaring the State of Louisiana to be the owner of 100% of the mineral rights attendant to Lot 5. This matter is remanded for further proceedings to disburse the proceeds deposited in the registry of the court. Costs of this appeal are assessed against Justiss.

REVERSED, RENDERED, and REMANDED.