author: DOWNING, J.

text:
    STATE of Louisiana v. Jason C. WALSTRUM.
    No. 2009 KA 1894.
    Court of Appeal of Louisiana, First Circuit.
    March 26, 2010.

      Walter P. Reed, District Attorney, Cov-ington, LA, Kathryn W. Landry, Attorney for the State, Baton Rouge, LA, for Appel-lee, State of Louisiana.
    Bertha M. Hillman, Thibodaux, LA, for Appellant, Jason C. Walstrum.
    Before: DOWNING, GAIDRY and McClendon, jj.
   DOWNING, J.

|2The defendant, Jason Chad Walstrum, was charged by bill of information with two counts of armed robbery by use of a firearm, in violation of La. R.S. 14:64 and 14:64.3. He pled not guilty. Prior to trial, the charges for an additional penalty for use of a firearm, under La. R.S. 14:64.3, were nol-prossed. The defendant was tried solely on the armed robbery charges. Following a trial by jury, the defendant was found guilty as charged. The defendant moved for a new trial and for post-verdict judgment of acquittal. The trial court denied both motions. The state filed a multiple offender bill of information seeking to have the defendant adjudicated and sentenced under La. R.S. 15:529.1 on the first count. At the conclusion of a hearing, the defendant was adjudicated a second-felony habitual offender. The defendant was sentenced, under La. R.S. 15:529.1, to imprisonment at hard labor for sixty years without benefit of probation or suspension of sentence on the first count. He was also sentenced to a concurrent term of imprisonment at hard labor for sixty years on the second count. The defendant now appeals. We affirm the defendant’s convictions, habitual offender adjudication, and sentences.

FACTS

On June 29, 2008, Kory Bankhead and her mother, Karen Benesta, worked the closing shift at Sonic Drive-in restaurant on La. Highway 22 in Mandeville, Louisiana. Kory was the general manager and Karen worked as. the assistant manager. After closing the restaurant at 10:00 p.m., the mother-daughter team stayed late to change the outside menu boards. Once the menu boards were completed, Kory and Karen returned inside where an armed robber confronted them at gunpoint and demanded that they open the safe. The women pleaded for their lives and explained that they were unable to open the safe. The armed robber continued to demand money. Kory hysterically begged for her life and the life of her mother. The robber assured Kory that he would not shoot Karen and stated |3that “she look[ed] like his sister-in-law.” Kory and Karen gathered all of the money from their purses, the money from the cash drawer and the money from the bands carried by car hops, put it in a bag, and handed it to the robber. Before leaving, the robber instructed the women to refrain from movement for at least five minutes. He threatened to shoot into the building if they did not comply. The perpetrator left with the money; Kory used her cellular phone to report the robbery.

In response to the report, Detective Vincent Liberto of the Mandeville Police Department investigated the crime. Kory and Karen both provided detailed descriptions of the robber. He was described as a Caucasian male with brown hair and blue eyes, wearing a black shirt with a Sean John logo, blue jeans, and a pair of brown boots. He also wore a blue bandana over a portion of his face.

Detective Liberto later learned that an individual fitting the description provided by the victims had patronized a nearby Discount Zone service station shortly before the robbery. He secured surveillance footage from Discount Zone and printed still photographs from the video to show to the victims. Both victims immediately identified the man in the photographs as the same individual who robbed them at gunpoint at Sonic. The investigating detectives sent copies of the surveillance photographs of the person of interest to the print and broadcast media. In response, the detectives received several tips naming the defendant as the man in the surveillance photographs. The defendant was arrested and charged with two counts of armed robbery. A twelve-member jury unanimously convicted the defendant as charged.

MOTION IN LIMINE

Prior to trial, the state filed a motion in limine requesting that the defendant be compelled to provide demonstrative evidence at trial. Specifically, the state sought to have the defendant wear a bandana in the same manner in which the victims indicated the robber wore one at the time of the robbery. This evidence, |4the state asserted, was essential to test the reliability of the victims’ identifications. A hearing was held on the state’s motion and counsel for the defense objected to the use of the demonstrative evidence. Counsel argued that a demonstration of this nature would be highly prejudicial and violate the defendant’s Fifth Amendment right against self-incrimination, especially since the actual bandana allegedly worn by the perpetrator was never recovered and would not be introduced into evidence at the trial. In response, the state offered to utilize a piece of paper (instead of a bandana) to cover a portion of the defendant’s face in the demonstration. The trial court agreed to allow the paper to be used to assist the victims in their identification testimony.

At trial, in connection with the identification testimony of each victim, the state requested that the defendant partially cover his face with a piece of paper. Both victims unequivocally identified the defendant as the armed perpetrator with his face partially concealed.

On appeal, the defendant seeks reversal of his conviction based upon an alleged violation of the Self-incrimination Clause of the Fifth Amendment, which provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V. Although he acknowledges that no Fifth Amendment violation occurs when the state compels a defendant to present demonstrative evidence regarding identifiable physical characteristics, he argues that “[a] piece of paper covering a defendant’s face is not a physical characteristic.” Instead, the defendant argues that masking his face with the paper served only to make him look like the robber, and such an inflammatory demonstration, although purportedly used for identification purposes, was irreparably prejudicial.

The Supreme Court has interpreted the Self-incrimination Clause to protect “an accused only from being compelled to testify against himself or otherwise provide |fithe State with evidence of a testimonial or communicative nature ...” Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966). This protection does not extend to evidence that is demonstrative, physical, or real. See Gilbert v. California, 388 U.S. 263, 265-67, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), (holding that a handwriting exemplar is not testimonial). See also Schmerber, 384 U.S. at 761, 86 S.Ct. at 1830-31, (holding that a blood sample is not testimonial).

The defendant herein contends that the trial court committed error when it ordered him, at the state’s request, to place a piece of paper over a portion of his face in order to give the witnesses an opportunity to identify him with a limited view of his facial features. The Supreme Court has long held that the Fifth Amendment privilege against self-incrimination offers no protection against compulsion to don an item of apparel worn by the person committing the offense in order to facilitate identification where some evidence may be material. Holt v. United States, 218 U.S. 245, 252-53, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910). See Schmerber, 384 U.S. at 763-64, 86 S.Ct. at 1831-32.

Louisiana courts have similarly allowed the state to compel a criminal defendant to exhibit his physical features without finding an infringement of his privilege against self-incrimination. Louisiana courts have compelled a defendant to put on a shirt, State v. Morgan, 333 So.2d 642, 643 (La.1976) (per curiam); to allow his height to be measured, State v. Roy, 220 La. 1017, 1024-30, 58 So.2d 323, 326-28 (1952); to exhibit a scar, State v. Anthony, 332 So.2d 214, 215 (La.1976); to exhibit a bruise, State v. Washington, 294 So.2d 794, 796 (La.1974); and to exhibit a tattoo. State v. Wilson, 329 So.2d 680, 681 (La.1976). Criminal defendants in Louisiana have also been forced to stand and identify themselves, State v. Jones, 261 La. 422, 259 So.2d 899, 901 (1972); to give blood samples, State v. Dugas, 252 La. 345, 354, 211 So.2d 285, 289 (1968), cert. denied, 393 U.S. 1048, 89 S.Ct. 679, 21 L.Ed.2d 691 (1969); to provide handwriting samples, State v. Thompson, 256 La. 934, 936, 240 So.2d 712, 714 (1970); to demonstrate the manner in which they open cigarette packs, State v. O’Conner, 320 So.2d 188, 193-94 (La.1975); and to say the words used by the robber who committed the crime. State v. Lacoste, 256 La. 697, 719-20, 237 So.2d 871, 879, (1970).

Considering the foregoing jurisprudence, and upon reviewing the record before us, we do not find that the demonstrative identification procedure utilized herein offended the defendant’s constitutional right against self-incrimination. The demonstration of a limited view of the defendant’s facial features was not testimonial evidence.

Furthermore, we find that the overwhelming evidence of the defendant’s identity as the perpetrator of the armed robberies negated any possibility of mis-identification. The testimony presented at trial established that, shortly after the robbery, both victims immediately and unequivocally identified the individual in the Discount Zone surveillance photos as the armed perpetrator. During the police interrogation, the defendant admitted that he was, in fact, the individual in the Discount Zone photos. The defendant’s wife, Athena Walstrum, also provided testimony establishing his identity as the robber. Mrs. Walstrum testified that, on the day of the robberies, the defendant was wearing the same type of clothing described by the victims. Mrs. Walstrum further testified that she observed the defendant sweating profusely with a Sonic Drive-In bag in hand on the night of the robberies. She also later discovered a Sean John shirt burned in a grill at the home she shared with the defendant.

Moreover, the trial transcript reflects that each witness unequivocally identified the defendant in open court as the perpetrator before the face-covering demonstration was ever performed. To bolster her identification of the defendant as the robber, Karen testified that during the entire encounter she stared at the 17perpetrator because she did not want to forget what he looked like. Thus, with all the evidence of the defendant’s identity produced at trial, the in-court identification alone could not have resulted in a misidentifieation of the defendant as the perpetrator.

This assignment of error lacks merit.

DECREE

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

CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED.


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    Ruby “Nell” COLEMAN v. LA TERRE PHYSICAL THERAPY, INC. d/b/a Terrebonne Physical Therapy Clinic and Donald P. Kinnard, P.T.
    No. 2009 CA 1666.
    Court of Appeal of Louisiana, First Circuit.
    March 26, 2010.

      Scott B. Fruge, Baton Rouge, Louisiana, for Plaintiff/Appellant Ruby “Nell” Coleman.
    Christian B. Bogart, Metairie, Louisiana, for Defendants/Appellees LA Terre Physical Therapy, Inc. d/b/a Terrebonne Physical Therapy Clinic and Donald P. Kinnard, P.T.
    Before DOWNING, GAIDRY and McClendon, jj.
   McClendon, j.

| ¡¡Plaintiff appeals a judgment that granted defendants’ motion for summary judgment and dismissed plaintiffs claims against the defendants with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 22, 2005, Ruby Coleman, following a total knee replacement, attended physical therapy at Terrebonne Physical Therapy Clinic under the instruction of physical therapist Donald P. Kinnard. Ms. Coleman, who suffered from severe osteoporosis, was participating in physical therapy exercises on a Continuous Passive Range of Motion (CPM) machine when she heard a “pop” in her left knee and felt excruciating pain. On August 23, 2005, Ms. Coleman learned that she suffered a left distal femoral fracture that required surgery to repair.

On August 4, 2006, Ms. Coleman filed suit against Mr. Kinnard and La Terre Physical Therapy, Inc. d/b/a Terrebonne Physical Therapy Clinic, alleging that she sustained the femoral fracture during her course of physical therapy on the CPM machine. Ms. Coleman alleged that Mr. Kinnard was negligent and that he breached the standard of care by failing to obtain a complete medical history that would have revealed that she suffered from osteoporosis, thereby allowing him to determine the safest method of physical therapy to administer. On September 22, 2008, defendants filed a motion for summary judgment, contending that Ms. Coleman was unable to show that Mr. Kinnard’s treatment fell below the applicable standard of care.

Following a hearing, the trial court granted the motion, finding that the expert testimony on both sides of the case indicated that Mr. Kinnard’s use of the |SCPM machine was not a breach of the applicable standard of care. Ms. Coleman has appealed asserting that the trial court erred in granting defendants’ motion for summary judgment.

DISCUSSION

Because this matter is before us on a motion for summary judgment, it is subject to de novo review as to the whether the grant of summary judgment was appropriate. Motorola, Inc. v. Associated Indem. Corp., 02-0716, p. 5 (La.App. 1 Cir. 6/25/04), 878 So.2d 824, 828, writs denied, 04-2314, 04-2323, 04-2326, 04-2327 (La.11/19/04), 888 So.2d 207, 211, 212. The summary judgment procedure is expressly favored in the law, and is designed to secure the just, speedy, and inexpensive determination of nondomestic civil actions. LSA-C.C.P. art. 966(A)(2). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

The mover has the initial burden of proof that he is entitled to summary judgment. See LSA-C.C.P. art. 966(C)(2). If the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent’s claim, action, or defense. See LSA-C.C.P. art. 966(C)(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evi-dentiary burden at trial. See LSA-C.C.P. art. 966(C)(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967(B).

In Boudreaux v. Panger, D.C., 490 So.2d 1083 (La.1986), the Louisiana Supreme Court affirmed an appellate court decision, which held that a |4chiropractor, although not subject to the Medical Malpractice Act, should only be judged by the standard of her profession, and as a matter of law, “general negligence” of the chiropractor is not available as a basis of recovery. See Boudreaux v. Panger, D.C., 481 So.2d 1382 (La.App. 5 Cir.1986). The Louisiana Supreme Court noted that under LSA-C.C. arts. 2315 and 2316 — the general negligence articles — the elements of a cause of action are fault, causation, and damage. Boudreaux, 490 So.2d at 1084. Causation requires a determination that the conduct complained of is actually a cause of the harm. Fault is determined by a legal duty to guard against a certain risk and breach of that duty, which is generally the obligation' to conform to the standard of conduct of a reasonable man under like circumstances. Id. However, “[w]hen considering the liability of someone who holds himself out as a professional, it is accepted that the ‘standard of conduct of a reasonable man under like circumstances’ requires that the professional exercise the care and skill of like professionals practicing in the same general locality.” Id.

Thus, Ms. Coleman has the burden of proving that Mr. Kinnard violated the applicable standard of care and that violation caused her harm or injury. Ms. Coleman submits that Mr. Kinnard’s failure to obtain an adequate and complete medical history is a breach in the standard of care. Ms. Coleman further contends that had Mr. Kinnard obtained an adequate history, he would have discovered that she suffered from severe osteoporosis and could have provided her a safer method of treatment — i.e., manual therapy as opposed to therapy using a CPM machine. Albert J. Pickett, plaintiffs physical therapy expert, indicated that had Mr. Kinnard utilized the passive manual stretch, he would have had a better chance of preventing any problems associated with osteoporosis.

Although Ms. Coleman asserts that Mr. Kinnard’s failure to obtain an adequate history was a breach of the standard of care, Ms. Coleman is unable to show that the alleged breach of this standard of care caused her harm insofar as both Dr. William Hageman, the orthopedic surgeon who treated Ms. Coleman | ¿following her fracture, and Mr. Pickett testified that it did not fall below the applicable standard of care to use the CPM machine on a patient with osteoporosis. Moreover, Mr. Pickett acknowledged that Ms. Coleman’s femur may have fractured even if manual passive stretching had been utilized. Accordingly, Ms. Coleman will be unable to meet her evidentiary burden of proof at trial to show that the failure to obtain an adequate medical history caused her harm. Therefore, the defendants are entitled to judgment as a matter of law.

For the foregoing reasons, we affirm the district court’s judgment and assess costs of this appeal against plaintiff, Ruby Coleman.

AFFIRMED.

DOWNING, J., dissents.

      . The Medical Malpractice Act does not apply because the defendants were not qualified as health care providers under the Act.

      . Specifically, Ms. Coleman alleged the following non-exclusive acts of negligence in her petition:
      A. Negligence in causing a distal femoral fracture while performing physical therapy exercises on a patient.
      B. Other acts of negligence which may be shown through discovery or at trialLJ
      C. Generally, the failure of these defendants to act with the required degree of care commensurate with the existing situation.

      . Mr. Kinnard testified that even if he had known that Ms. Coleman had osteoporosis, he would have nevertheless utilized the CPM machine for therapy.


author: PETTIGREW, J.

text:
    Tony CHANEY v. DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS (OFFICE OF MOTOR VEHICLES).
    No. 2009 CA 1543.
    Court of Appeal of Louisiana, First Circuit.
    March 26, 2010.

      Tony Chaney, Baton Rouge, LA, In Proper Person.
    Steven James Farber, Michael Barron, Baton Rouge, LA, for Defendant-Appellee, Louisiana Department of Public Safety & Corrections.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

|2Plaintiff appeals from a trial court judgment in favor of defendant, denying his application for a writ of mandamus and dismissing his claim for damages. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

In this case, defendant, Department of Public Safety and Corrections, Office of Motor Vehicles (“Department”), charged plaintiff, Tony Chaney, with a violation of La. R.S. 32:861, alleging that a vehicle owned by Mr. Chaney was not covered by liability insurance as required by law. After considering the evidence presented by Mr. Chaney at a hearing concerning this issue, the administrative law judge determined that the Department failed to establish that Mr. Chaney was in violation of La. R.S. 82:861 and that the Department’s proposed suspension against him was improper. Thus, in a decision rendered on September 26, 2008, the administrative law judge ordered that the proposed suspension against Mr. Chaney be recalled. Thereafter, on October 21, 2008, Mr. Chaney filed an application for a writ of mandamus requesting that the Department be made to comply with the lawful order submitted by the administrative law judge and seeking a refund in the amount of $834.18 plus attorney fees, interest, and costs.

In response to Mr. Chaney’s writ, the Department filed an answer on January 15, 2009, indicating that it had received notice of the administrative law judge’s decision and had corrected the record as ordered on October 7, 2008. With regard to Mr. Chaney’s request for a refund of $834.18 plus attorney fees, interest, and costs, the Department argued that same was without foundation in law or fact. The matter proceeded to a hearing before the trial court on January 20, 2009, at which time Mr. Chaney, who appeared pro se, and the Department, represented by counsel, both presented argument concerning their respective positions. After considering the evidence and decision of the administrative law judge, the trial court denied Mr. Chaney’s writ, finding that the Department had already done what it was required to do by the order. The trial court signed a judgment on February 18, 2009, denying Mr. Chaney’s application for writ of |smandamus and dismissing, with prejudice, Mr. Chaney’s claims, including his request for damages.

Mr. Chaney then filed a pleading entitled “Leave to Set-Aside Judgment Denying the Writ of Mandamus and Request for Sanctions,” requesting that the February 18, 2009 judgment be set aside and that he be awarded $10,000.00 in sanctions against the Department as punitive damages for the Department acting in bad faith. This matter proceeded to hearing on May 4, 2009, at which time the trial court denied the motion finding no procedural error in its prior ruling. A judgment in accordance with the trial court’s findings was signed by the trial court on June 23, 2009.

This appeal by Mr. Chaney followed. On appeal, Mr. Chaney presents the following issues for our review:

I. Whether or not [La. R.S. 32:863.1 C(5)(a) ] makes the Department of Public Safety and Corrections, Office of Motor Vehicles liable for all damages and expenses for the improper application of suspension on plaintiffs license and motor vehicle registration once an administrative law judge has determine^] that the individual was in compliance with state law?
II. Whether the doctrines of mootness, res ipsa locquitur and collateral es-toppel prevent the defendant from arguing the facts and legal conclusion reached by the administrative law judge after all legal delays has expired?
III. Whether the Department of Public Safety and Corrections legal representative, ... committed fraud upon the court?

Mandamus is a writ directing a public officer to compel the performance of a ministerial duty required by law. La. Code Civ. P. arts. 3861 and 3863. Mandamus is to |4be used only when there is a clear and specific legal right to be enforced or a duty that ought to be performed. It never issues in doubtful cases. Morris v. Patient’s Compensation Fund Oversight Bd., 2007-2468, p. 5 (La.App. 1 Cir. 5/28/08), 991 So.2d 551, 554.

In the instant case, the duty to be performed by the Department, i.e., the recall of the proposed suspension of Mr. Chaney’s motor vehicle registration privileges, had already been performed by the Department by the time of the hearing on Mr. Chaney’s writ. Thus, as noted by the trial court below, because the Department did what was required of it by the administrative law judge, Mr. Chaney was not entitled to a writ of mandamus. However, our analysis does not end here.

A writ of mandamus may be ordered by the court only on petition, and the proceedings may be tried summarily. La. Code Civ. P. art. 3781. A written answer to a petition for a writ shall be filed not later than the time fixed for the hearing. La.Code Civ. P. art. 3783.

Summary proceedings are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities required in ordinary proceedings. La.Code Civ. P. art. 2591. Summary proceedings may be used for trial or disposition of a mandamus proceeding. La.Code Civ. P. art. 2592(6). A summary proceeding may be commenced by a rule to show cause, except as otherwise provided by law. La.Code Civ. P. art. 2593. Exceptions to a rule to show cause or a petition in a summary proceeding shall be filed prior to the time assigned for, and shall be disposed of on, the trial. Id.

The record establishes that the summary proceeding in this case was properly commenced by a rule to show cause. As previously discussed, Mr. Chaney included a request for damages in his writ. In its answer to Mr. Chaney’s writ, the Department alleged that Mr. Chaney’s request for damages was “without foundation in law or fact.” However, what the Department failed to do was challenge the improper cumulation of Mr. Chaney’s request for a writ of mandamus and his demand for damages. The objection of improper cumulation of actions is a dilatory exception that must be pleaded | ¿prior to answer or it will be waived. La.Code Civ. P. arts. 926 and 928. Because the Department failed to timely raise said objection, any right the Department had to question the cumulation was waived. As a result, when the matter was considered by the trial court below, the merits of the application for a writ of mandamus and the issue of damages was properly before the court. Nonetheless, the trial court decided not to address Mr. Chaney’s request for damages, finding the claim to be outside the scope of the mandamus proceeding. The trial court made the following observations from the bench:

Whether or not you’re entitled to [damages] is another — under another theory is different from a mandamus action. Their ministerial duty is to do that which the administrative law judge dictated they do, recall the suspension.... If you want to chase the costs and everything, the mandamus is not the method to do it_They would have discretion as to whether or not they believe that they were appropriate costs, whether or not they were the ones that were obligated to pay them, whether or not third parties may be obligated to pay, those are ordinary proceeding issues.

We would typically agree that the issue of damages must be raised in an ordinary proceeding. However, the posture of the instant case presents an unusual set of facts and circumstances, which leads us to the conclusion that the trial court erred in failing to address the issue of damages. Herein, because Mr. Chaney’s claim for damages was not severed from his request for the issuance of a writ of mandamus, the issue of damages was ripe for consideration. Thus, we must reverse the February 18, 2009 judgment in so far as it dismissed Mr. Chaney’s claim for damages. We remand this matter to the trial court for consideration of same.

CONCLUSION

For the above and foregoing reasons, we reverse that portion of the February 18, 2009 judgment that dismissed Mr. Chaney’s claim for damages and remand this matter to the trial court for further proceedings consistent with this opinion. In all other respects, |6the judgment is affirmed. Moreover, given our decision herein, the motion filed by Mr. Chaney with this court entitled “Notice of Judgment and Request for Remand,” is denied as moot. Appeal costs in the amount of $748.50 are assessed against the Department.

AFFIRMED IN PART; REVERSED IN PART; REMANDED. MOTION DENIED AS MOOT.

      . We note that Mr. Chaney actually appealed from the June 23, 2009 judgment, the trial court’s denial of his motion for “Leave to Set-Aside Judgment Denying the Writ of Mandamus and Request for Sanctions." This is an interlocutory judgment; it did not decide the merits of the suit. It is akin to the denial of a motion for a new trial; also an interlocutory judgment. Morrison v. Dillard Dept. Stores, Inc., 99-2060, p. 2 (La.App. 1 Cir. 9/22/00), 769 So.2d 742, 744, writ denied, 2000-3379 (La.2/2/01), 784 So.2d 646. "[T]he established rule in this circuit is that the denial of a motion for new trial is an interlocutory and non-appealable judgment.” McKee v. Wal-Mart Stores, Inc., 2006-1672, p. 8 (La.App. 1 Cir. 6/8/07), 964 So.2d 1008, 1013, writ denied, 2007-1655 (La.10/26/07), 966 So.2d 583. (By 2005 La. Acts No. 205, effective January 1, 2006, La.Code Civ. P. art. 2083 was amended to remove the longstanding provision that interlocutory judgments that "may cause irreparable harm” are appeal-able. An interlocutory judgment is now ap-pealable only when expressly provided by law. Accordingly, the denial of a new trial is not generally appealable.) The Louisiana Supreme Court, however, has instructed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits, when it is clear from appellant's brief that the appeal was intended to be on the merits. Carpenter v. Hannan, 2001-0467, p. 4 (La.App. 1 Cir. 3/28/02), 818 So.2d 226, 228-229, writ denied, 2002-1707 (La.10/25/02), 827 So.2d 1153. It is obvious from Mr. Chaney’s brief that he intended to appeal the judgment on the merits. Thus, we will treat the appeal accordingly.

      . In remanding this matter, we make no determination as to liability regarding any damages allegedly sustained by Mr. Chaney or whether La. R.S. 32:863.1 may be applicable herein as Mr. Chaney argues is the case. Rather, we leave those issues to be litigated below where the parties will have an opportunity to present evidence and witnesses to the trial court in support of their respective positions. With regard to the remaining issues raised by Mr. Chaney on appeal, we find no merit to his arguments and decline to address these baseless claims.


author: McClendon, j. DOWNING, J.,

text:
    Gregory J. WENDLING v. Michael A. CHAMBLISS and National Mutual Insurance Company.
    No. 2009 CA 1422.
    Court of Appeal of Louisiana, First Circuit.
    March 26, 2010.

      Jeremy K. Lee, Richard A. Tonry, Michael C. Ginart, Jr., Cullen A. Tonry, Kim C. Jones, Chalmette, LA, for Plaintiff/Appellant, Gregory J. Wendling.
    Adrianne L. Baumgartner, Dan Richard Dorsey, Emily S. Morrison, Covington, LA, for Defendant/Appellee, Mississippi Farm Bureau Casualty Insurance Company-
    Before DOWNING, GAIDRY and McClendon, jj.
   McClendon, j.

|2The plaintiff appeals a summary judgment in favor of the defendant and finding Mississippi law, rather than Louisiana law, applies to the uninsured/underinsured motorist (UM) coverage at issue herein. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On November 9, 2005, Gregory Wen-dling, a Mississippi resident, was injured in an automobile accident on Interstate Highway 12 near Slidell, Louisiana, when he was rear-ended by a vehicle driven by Michael Chambliss, also a resident of Mississippi. Thereafter, Mr. Wendling filed suit against Mr. Chambliss and his liability insurer, Nationwide Mutual Insurance Company (Nationwide), seeking damages for his injuries. On June 30, 2008, Mr. Wendling filed an amended petition adding his UM carrier, Mississippi Farm Bureau Casualty Insurance Company (Farm Bureau), as a defendant. Mr. Wendling later settled with Mr. Chambliss and Nationwide in the amount of $15,000, the policy limits, and dismissed them from the lawsuit on July 23, 2008.

Farm Bureau answered the petition and specifically pleaded that under Louisiana’s choice-of-law rules, Mississippi law applied to the terms of the UM policy issued in Mississippi to a Mississippi resident. Farm Bureau further affirmatively pleaded that its policy specifically excluded UM coverage to an insured who settles a bodily injury or property damage claim without Farm Bureau’s express written consent and that Mr. Wendling settled with Mr. Chambliss and Nationwide without the consent of Farm Bureau.

On January 23, 2009, Farm Bureau filed a motion for summary judgment, seeking the dismissal of Mr. Wendling’s claims based upon the terms of the insurance policy under Mississippi law. Again, Farm Bureau urged that it was entitled to judgment as a matter of law, based on Mr. Wendling’s failure to seek Farm Bureau’s consent prior to his settlement with Mr. Chambliss and |SNationwide, which extinguished any subrogation rights Farm Bureau had against Mr. Chambliss. Mr. Wendling opposed the motion and Farm Bureau replied to the opposition.

On April 1, 2009, the trial court heard the matter. The court determined, after “weighing the interest of Louisiana and Mississippi, that clearly Mississippi has the predominant interest in the case, with few competing factors on the other side.” Because Mississippi law, in contrast to Louisiana law, upholds insurance policy provisions that exclude UM coverage to an insured who executes a settlement without the consent of the UM insurer, the trial court granted Farm Bureau’s motion for summary judgment. Judgment was signed on April 14, 2009, dismissing Mr. Wendling’s claims against Farm Bureau with prejudice. Mr. Wendling appealed.

SUMMARY JUDGMENT LAW

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Granda v. State Farm Mutual Insurance Company, 04-2012, p. 4 (La.App. 1 Cir. 2/10/06), 935 So.2d 698, 701. Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B.

On a motion for summary judgment, the initial burden of proof is on the moving party. However, if the moving party will not bear the burden of proof at trial on the matter before the court, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the non-moving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial. Failure to do so shows that there is no genuine issue of material fact. LSA-C.C.P. art. 966 C(2); Babin v. Winn-Dixie Louisiana, Inc., 00-0078, p. 4 (La.6/30/00), 764 So.2d 37, 40.

|4Summary judgments are reviewed on appeal de novo. Granda, 04-2012 at p. 4, 935 So.2d at 701. Thus, this court uses the same criteria as the trial court in determining whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether mover is entitled to judgment as a matter of law. Jones v. Estate of Santiago, 03-1424, p. 5 (La.4/14/04), 870 So.2d 1002, 1006.

DISCUSSION

On appeal, Mr. Wendling asserts that the trial court erred in granting summary judgment when Louisiana’s policies would be most seriously impaired when compared to Mississippi’s. Furthermore, Mr. Wendling asserts that Louisiana law should apply, as he is a Louisiana resident and domiciliary who was displaced after Hurricane Katrina, and whose pharmacy profession consists of businesses in Louisiana.

Pursuant to the supreme court case of Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773, which like the case herein, involved an accident that occurred in Louisiana causing injury to a Mississippi resident who was driving a vehicle covered by an insurance policy negotiated and issued in Mississippi, we are instructed to first determine that there is a difference between Louisiana’s UM law and the UM law of the foreign state. Once that determination is made, we are then to conduct a choice-of-law analysis, as codified by LSA-C.C. arts. 3515 and 3537, to decide which state’s law applies to the interpretation of the UM policy. Champagne, 03-3211 at p. 22, 893 So.2d at 786. Accordingly, we look to Mississippi and Louisiana law, as it is relevant to the facts of this case.

Under Mississippi law, where the uninsured motorist statutes grant an insurer the right of subrogation, and a provision in the policy precludes settlement with an uninsured motorist without the consent of the insurer, the provision of the policy is valid and will be upheld. United States Fidelity and Guar. Co. v. Hillman, 367 So.2d 914, 921 (Miss.1979). See also United States Fidelity & Guar. Co. v. Knight, 882 So.2d 85, 92-93 (Miss.2004). In Louisiana, however, public policy prohibits inclusion of “prior consent” clauses in insurance contracts. See Trautman v. Poor, 96-267, pp. 8-9 (La.App. 3 Cir. 12/11/96), 685 So.2d 516, 521. See also Hebert v. Green, 311 So.2d 223, 229 (La.1975). Therefore, in accordance with Champagne, a choice-of-law analysis is necessary to determine which state’s law applies to the interpretation of the UM contract.

Louisiana Civil Code Article 3515 provides:

Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.

Additionally, LSA-C.C. art. 3537 provides:

Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multi-state commercial intercourse, and of protecting one party from undue imposition by the other.

As explained in Champagne, these eon-flict-of-laws provisions afford the balancing of competing interests between the involved states. Champagne, 03-3211 at p. 22, 893 So.2d at 786.

In the case sub judice, Mr. Wendling and Farm Bureau concede that a choice-of-law analysis is necessary. Farm Bureau asserts that Mr. Wendling’s contacts with Mississippi predominate to such an extent that Mississippi laws |„would be most impaired if not applied. However, Mr. Wen-dling contends that, unlike the plaintiff in Champagne, he is a Louisiana resident with such abundant Louisiana connections that Louisiana law should apply.

In support of its motion for summary judgment, Farm Bureau submitted a certified true and correct copy of the Mississippi insurance policy issued to Mr. Wendling, which contained a prior consent clause. Further, Farm Bureau submitted the affidavit of Luther Cooley, an adjuster with Farm Bureau. Mr. Cooley attached to and referenced in his affidavit a copy of a letter requesting Mr. Wendling’s UM policy limits, with accompanying documentation, received from plaintiffs counsel by facsimile transmission on July 28, 2008. The documentation included a copy of the police report for the accident, medical reports, and medical records. This evidence showed that Mr. Wendling settled with Mr. Chambliss and Nationwide for Mr. Chambliss’s policy limits of $15,000, and that Farm Bureau did not know of the settlement until the July 23, 2008 letter to Mr. Cooley. Also, the police report indicated that Mr. Wendling held a Mississippi driver’s license, that his vehicle was registered in Mississippi, and that he had a Poplarville, Mississippi address.

Mr. Wendling, in opposition, asserted his strong ties with Louisiana. In connection therewith, he attached to his memorandum three documents from the Corporations Database of the commercial division of the Louisiana Secretary of State and a copy of a petition for damages that he filed in August 2006 in an unrelated lawsuit. The petition, filed against an insurer seeking Katrina-related damages to two pieces of property he owned in St. Bernard Parish, alleged that he was a resident of and domiciled in St. Bernard Parish. Mr. Wendling asserted that these records established that, as a pharmacist, he currently owns and operates a pharmacy in Slidell, Louisiana and that he previously owned and operated two other pharmacies in Louisiana in St. Bernard Parish until Hurricane Katrina. Mr. Wendling further argued that he drives to Slidell five days a week, that he has received all of his post-accident medical treatment in Louisiana, and |7that although his domicile may have changed after the hurricane, which he denied, he was still a resident of Louisiana.

In response to the opposition, Farm Bureau submitted the affidavit of Rodney Smith, an associate underwriting manager with Farm Bureau. Mr. Smith attested to reviewing Mr. Wendling’s original application for the insurance policy covering the vehicle involved in the accident, and attached a true copy to his affidavit. Mr. Smith explained that to be insured by Farm Bureau, vehicles must be principally garaged in Mississippi; that the application, dated January 4, 2005, showed that Mr. Wendling and his wife possessed Mississippi driver’s licenses; that the vehicles insured under the policy were listed at a Poplarville, Mississippi address with a Mississippi telephone number; and that the policy has been renewed since January 2005, at the same address. Mr. Smith also attached to his affidavit a copy of the November 2003 application for a dwelling package policy at the Poplarville, Mississippi address, when Mr. Wendling’s builders risk insurance policy was converted to a homeowner’s policy. Mr. Smith stated that the dwelling package policy application indicated that Mr. Wendling represented to Farm Bureau that his house in Poplarville was his full-time home, and not a secondary, vacation, or rental home.

Before we can balance the competing interests between Louisiana and Mississippi, we must first identify the pertinent contacts of each state. In order to do that, we must address Mr. Wendling’s assertion that he remained a Louisiana resident. Based on our review of the record, we conclude that Mr. ^Wendling was a Mississippi resident at the time of the accident at issue herein. The evidence clearly establishes his Mississippi residency, and Mr. Wendling admitted as much in his petition in this matter, when he represented that he was a resident of and domiciled in Mississippi.

Thus, our de novo review of the record shows the following Mississippi contacts: 1) Mr. Wendling is a Mississippi resident, with a Mississippi address and Mississippi driver’s license, 2) Mr. Wendling’s UM insurance policy with Farm Bureau is a Mississippi contract, negotiated and purchased in Mississippi, 8) Mr. Wendling’s vehicles are registered and principally garaged in Mississippi, 4) the tortfeasor, Mr. Chambliss, is a Mississippi resident, and 5) Mr. Chambliss’s vehicle was registered in Mississippi. With regard to Louisiana contacts, the evidence establishes that, 1) the accident occurred in Louisiana, 2) Mr. Wendling’s post-accident medical treatment was in Louisiana, and 3) suit was filed in Louisiana.

These contacts must be considered in light of the competing public policies and interests between the states of Louisiana and Mississippi in this case. The purpose of Louisiana’s UM legislation is to promote full recovery for innocent tort victims. Champagne, 03-3211, p. 25, 893 So.2d at 788. Factors supporting Louisiana’s strong interest in promoting full recovery for innocent automobile accident victims include: 1) the economic interests involved, including costs of medical care (which are more likely to be paid if there is sufficient insurance); 2) the significant involvement of the facilities of the Department of Public Safety and Corrections and the judicial system; and 3) the fact that the issuing states of the insurance policy often have credit and reduction provisions in their UM coverage, thereby reducing limits and serving to prevent full recovery by the innocent accident victims. Id. On the other hand, Mississippi has an interest in the regulation of its insurance industry and in the contractual obligations that are inherent parts thereof. The integrity of the contract is a substantial and real interest. Id.

After carefully reviewing the facts of this case, we agree with the trial court and conclude that Mississippi has a more substantial interest in the uniform ^application of its laws governing insurance contracts than Louisiana has in providing an insurance remedy to an out-of-state resident who was injured while in Louisiana. See Champagne, 03-3211 at p. 27, 893 So.2d at 788. Even were we to recognize that Mr. Wendling works in Louisiana and is regularly in the state, he nevertheless is a Mississippi resident who applied for his insurancé in Mississippi. The application of Louisiana law to the insurance policy would result in the abrogation of a Mississippi contract. Moreover, Mr. Wendling’s premium for UM coverage was based on the application of Mississippi law to the contract. See Champagne, 03-3211 at p. 27, 893 So.2d at 788. Therefore, under a conflict-of-laws analysis, Mississippi’s interests would be the most seriously impaired if its law is not applied to the insurance policy.

Accordingly, we find that Farm Bureau met its burden of proving that Mississippi has a more substantial interest in this case, and Mr. Wendling has failed to present sufficient factual support for his contentions. Therefore, Farm Bureau is entitled to summary judgment as a matter of law, and summary judgment was appropriately granted.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Mr. Wendling.

AFFIRMED.

DOWNING, J., concurs and assigns reasons.

DOWNING, J.,

concurring and assigning reasons.

|,I agree with the result. Louisiana’s uninsured motorist law, La. R.S. 22:1295 is simply inapplicable to this matter. By its own terms, the statute “govern[s] the issuance of uninsured motorist coverage in [Louisiana].” The policy at issue was not issued in Louisiana. It therefore does not come under the Louisiana statute. Accordingly, Louisiana has no legal interest to protect in this matter, while Mississippi’s interest is clear.

Louisiana Revised Statutes 22:1295(a) (iii) provides one exception, which is inapplicable here, to the applicability of Louisiana’s uninsured motorists law only to policies issued in this state. This subsection provides: “This Subpara-graph and its requirement for uninsured motorist coverage shall apply to any liability insurance covering any accident which occurs in this state and involves a resident of this state.” While the subject accident occurred in Louisiana, the majority opinion establishes that the plaintiff/appellant is not a resident of Louisiana. This exception, therefore, is inapplicable.

Consequently, while the majority’s lucid and insightful choice-of-law analysis is interesting, it is dispensable and legally misleading.

      . Mr. Wendling represented in his petition that he was a Mississippi resident, but he also argues that he is a Louisiana resident, as more fully discussed herein.

      . With regard to the Secretary of State documents and the petition for damages attached to Mr. Wendling’s opposition, no affidavits were submitted or introduced attesting to the authenticity of these documents. Neither set of documents were certified or sworn to in any way and were simply attached to his memorandum. A party may not utilize un-sworn and unverified documents as summary judgment evidence. Sanders v. J. Ray McDermott, Inc., 03-0064 p. 4 (La.App. 1 Cir. 11/7/03), 867 So.2d 771, 775. A document which is not an affidavit or sworn to in any way, or which is not certified or attached to an affidavit, is not of sufficient evidentiary quality to be given weight in determining whether there are remaining genuine issues of material fact. Boland v. West Feliciana Parish Police Jury, 03-1297, pp. 5-6 (La.App. 1 Cir. 6/25/04), 878 So.2d 808, 813, writ denied, 04-2286 (La.11/24/04), 888 So.2d 231. Likewise, an unsworn, uncertified document simply attached to a memorandum may not properly be considered by the court in determining a motion for summary judgment. ASP Enterprises, Inc. v. Guillory, 08-2235, p. II (La.App. 1 Cir. 9/11/09), 22 So.3d 964, 971, writ denied, 09-2464 (La.1/29/10), 25 So.3d 834. Accordingly, at issue is whether we may consider these documents for summary judgment purposes. However, even if these documents were considered, the outcome herein would remain the same.

      . Mr. Wendling argues that Champagne is distinguishable because, in that case, the injured party was transitorily within the borders of Louisiana.

      . Whereas the Champagne case involved an automobile accident that occurred in Louisiana with a Mississippi plaintiff, we note that Triche v. Martin, 08-1220 (La.App. 1 Cir. 5/8/09), 13 So.3d 649, writ denied, 09-1284 (La.9/25/09), 18 So.3d 76, concerned an accident that occurred in Arkansas, which injured a Louisiana plaintiff. We therefore find Triche distinguishable.


author: WHIPPLE, J. WELCH, J.,

text:
    Sylvia CONNOR v. FAMILY DOLLAR STORE.
    No. 2009 CA 1537.
    Court of Appeal of Louisiana, First Circuit.
    March 26, 2010.

      William Ken Hawkins, Ponchatoula, LA, for Claimant/Appellee, Sylvia Connor.
    Jennifer Cortes Poirier, Jack E. Truitt, Covington, LA, for Defendant/Appellant, Family Dollar Store.
    Before WHIPPLE, HUGHES, and WELCH, JJ.
   WHIPPLE, J.

I ¡/This matter is before us on appeal by defendant, Family Dollar Store (“Family Dollar”), from a judgment of the Office of Workers’ Compensation (“OWC”) in favor of claimant, Sylvia Connor, awarding her SEBs, past medical benefits, penalties and attorney’s fees. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The record discloses that on February 21, 2006, Connor was injured while in the course and scope of her employment with Family Dollar, where she was employed as the store manager and was earning an average weekly wage of $649.50. Specifically, while assisting a customer, Connor ascended a ladder to retrieve a mirror for a customer and injured her back while descending the ladder with the mirror in hand. At the time of the accident, Connor had been working for Family Dollar for approximately eight months.

Prior to her employment with Family Dollar, Connor had sustained an injury in 2008, while employed at John’s Curb Market (a/k/a Bohning & Company, Inc.). At that time, Connor had been referred by her employer to Dr. Michael Dunn, a family practitioner, for treatment of her 2003 injury, who subsequently diagnosed her condition as a thoracic and lumbar strain. Dr. Dunn also referred Connor to Dr. Paul Van Deventer, an orthopedic surgeon, in 2003, due to continued complaints associated with Connor’s reflex sympathetic dystrophy and thoracic outlet syndrome. In a report dated December 18, 2003, Dr. Van Deventer had restricted Connor to sedentary/light duty employment. However, in January of 2004, Dr. Dunn released her to return to full-duty work at John’s Curb Market. Thereafter, Conner was consistently employed and worked until her 2006 injury.

In connection with the February 2006 accident and injuries, Family Dollar also referred Connor to Dr. Dunn for treatment. Dr. Dunn diagnosed her |scondition as a thoracic strain and placed her on modified duty. On June 20, 2006, Dr. Dunn released Connor, but with permanent restrictions of sedentary work and specific instructions that she sit at least thirty minutes of every hour. On July 10, 2006, Dr. Dunn continued Connor’s sedentary restrictions and recommended a consultation for pain management and rehabilitation. Instead, on July 25, 2006, Family Dollar referred Connor to Dr. Robert Steiner, an orthopedic surgeon, for a second opinion.

After evaluation, Dr. Steiner opined that Connor had sustained a thoracic strain/ sprain and recommended a bone scan of the chest and thoracic spine for further evaluation of her symptoms. After a bone scan was performed on August 18, 2006, Dr. Steiner issued a report, dated September 1, 2006, wherein he advised that he saw no objective evidence of injury to her thoracic spine and felt that Connor had achieved maximum medical improvement (“MMI”). Dr. Steiner agreed that Connor should be placed on lightysedentary work restrictions based on Dr. Paul Van Deven-ter’s 2003 orthopedic report and Connor’s previous history of thoracic outlet surgery, brachial plexus surgery, and surgery for reflex sympathetic dystrophy, but opined that these work restrictions were necessary as a result of her previous medical history, and not the February 21, 2006 accident.

Even before receiving Dr. Steiner’s report, on June “31,” 2006, Family Dollar generated a separation notice, which it placed in Connor’s personnel file, terminating her employment and stating as the purported reason that she “failed to return from a leave of absence.” Additionally, on October 16, 2006, Family Dollar terminated Connor’s benefits, contending that she had reached MMI and had been released from treatment for her injury. However, Connor’s pain had 14worsened at that point and had not improved. Because no further medical treatment was authorized by Family Dollar, Connor was forced to seek relief through emergency room visits.

On October 30, 2007, Connor began treatment with a physician of her choice, Dr. Courtney Russo, an orthopedist at Audubon Orthopedics and Sports Medicine. Dr. Russo ordered a bone scan and an MRI of her lumbar, thoracic, and cervical spine. Thereafter, Dr. Russo opined that Connor had sustained a thoracic and lumbar strain as a result of the 2006 accident at Family Dollar. Based on these findings, Dr. Russo restricted her to sedentary work, recommended epidural injections and referred her to Dr. Patrick Waring for pain management. However, authorization for the recommended epidural injections and pain management referral was denied by Family Dollar’s workers’ compensation carrier, Risk Enterprise Management.

Connor filed disputed claims for compensation against her former employers for both the 2003 and 2006 accidents, which claims were consolidated before the OWC. Bohning <& Company, Inc. filed a cross claim against co-defendant, Family Dollar, denying any liability and contending that Connor’s injuries were sustained as a result of the 2006 accident at Family Dollar. On October 23, 2007, Bohning & Company, Inc. also filed a motion for summary judgment, contending that it was entitled to judgment in its favor because: (1) the thoracic/lumbar strain sustained by Connor in 2003 had completely resolved by April of 2004; (2) Connor had been asymptomatic upon her return to work; and (3) Connor had remained asymptomatic until her 2006 accident. The motion for summary judgment was initially denied by the OWC, but on January 15, 2008, Bohning & Company, Inc. re-urged its motion for summary judgment, based on the deposition of Dr. Steiner taken on November 10, 2008, during discovery. In the deposition, Dr. Steiner modified his previous opinion and concluded that | sConnor’s current problems were unrelated to the 2003 accident. Specifically, Dr. Steiner testified that when he had compiled his previous report, he was not aware that: (1) Connor had continued to work in a full-duty capacity following the 2003 injury; (2) Connor thereafter had only missed one week of work and had returned to full duty after the 2003 injury; (3) her back problems had resolved in that Connor had experienced no further back pain and no leg pain since January of 2004; and (4) Connor had continued to do heavy labor from April of 2004 until the accident of February 21, 2006. Based on this information, Dr. Steiner concluded that the sprain/strain Connor sustained in 2003 had resolved. Dr. Steiner candidly acknowledged that when preparing his previous report, he did not have any information concerning Connor’s symptomatology and work history between 2004 and 2006, and, thus, did not realize that she had been basically asymptomatic and working for two years before the 2006 accident. Thus, he concluded that “the diagnosis is thoracic strain as a result of the 2006 incident.”

Given this testimony, on January 28, 2009, the OWC granted the motion for summary judgment and dismissed Con-nor’s claim against Bohning & Company, Inc. However, despite the revised testimony of its own doctor, and the ruling of the OWC, Family Dollar steadfastly refused to pay or reinstate supplemental earnings benefits and medical benefits to Connor.

Thus, the matter proceeded to trial against Family Dollar on March 12, 2009. On May 7, 2009, the OWC rendered judgment, finding that Connor had sustained a compensable injury to her thoracic spine on February 21, 2006, as a result of an accident occurring in the course and scope of her employment with Family Dollar, for which she was entitled to past and future SEBs, payment of |ficertain outstanding medical expenses, and continuing SEBs until the court determined that modification is appropriate.

Family Dollar was also ordered to reimburse Connor for litigation costs in the amount of $234.02; to pay $2,000.00 in penalties and $2,000.00 in attorney fees for its failure to pay outstanding medical expenses at North Oaks Health Systems and Lallie Kemp Medical Center; and to pay $8,000.00 in penalties and $10,000.00 in attorney fees for its arbitrary and capricious termination of benefits, pursuant to LSA-R.S. 23:1201(1).

Family Dollar filed the instant appeal, assigning the following as error:

1. The OWC Judge erred in finding that the claimant was entitled to indemnity benefits from October 17, 2006, since both treating physicians concurred that the claimant had reached maximum medical improvement (MMI) from her thoracic strain which she allegedly sustained while working at Family Dollar on February 21,2006.
2. [The] OWC Judge erred in finding that the claimant is presently disabled due to the Family Dollar accident or that her diminished earning capacity is related to that same accident.
3. The OWC Judge erred in ordering Family Dollar to pay outstanding medical expenses, and in assessing penalties and attorney’s fees for failure to pay said expenses, as the claimant did not prove that said bills were submitted to Family Dollar for payment.
4. The OWC Judge erred in finding that Family Dollar had arbitrarily or capriciously terminated the claimant’s benefits, and in assessing penalties and attorney’s fees.

DISCUSSION

Standard of Review

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error — clearly wrong” standard. Dean v. Southmark Construction, 2003-1051 (La.7/6/04), 879 So.2d 112, 117. Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the |7record viewed in its entirety. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706, 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Company, 2002-1869 (La.App. 1st Cir.6/27/03), 865 So.2d 98, 105, writ denied, 2003-2581 (La.11/26/03), 860 So.2d 1139. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Dean v. Southmark Construction, 879 So.2d at 117.

Assignment of Error Number One

In this assignment of error, Family Dollar contends that the OWC erred in finding that Connor was entitled to supplemental earnings benefits (indemnity benefits) from October 17, 2006, since, according to Family Dollar, both treating physicians concurred that she had reached MMI from her 2006 thoracic strain.

The purpose of SEB is to compensate the injured employee for wage earning capacity she has lost as a result of an accident. Carral v. Winn-Dixie Louisiana, Inc., 2005-1482 (La.App. 1st Cir.6/9/06), 938 So.2d 799, 801. The claimant bears the initial burden of proof in SEB claims. Zirlott v. The Chitimacha Tribe of Louisiana, 2004-1010 (La.App. 1st Cir.5/6/05), 915 So.2d 860, 862. In order to recover supplemental earnings benefits, an employee must first prove by a preponderance of the evidence that she is unable to earn wages equal to 90% or more of wages she earned at the time of injury. LSA-R.S. 2S:1221(3)(a); Zirlott v. The Chitimacha Tribe of Louisiana, 915 So.2d at 862. Once the employee’s burden is met, the burden shifts to the employer, who, in order to defeat the employee’s SEB claim or to establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is | «physically able to perform a certain job and that the job was offered to the employee in his or the employer’s community or reasonable geographic region. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556.

The analysis is necessarily a facts-and-circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation law is to be liberally construed in favor of coverage. Daigle v. Sherwin-Williams Company, 545 So.2d 1005, 1007 (La.1989). In determining if an injured employee has made out a prima facie case of entitlement to supplemental earnings benefits, the trial court may and should take into account all those factors, which might bear on an employee’s ability to earn a wage. Daigle v. Sherwin-Williams Co., 545 So.2d at 1007 (quoting Gaspard v. St. Paul Fire & Marine Insurance Company, 483 So.2d 1037, 1039-1040 (La.App. 3rd Cir.1985)).

Contrary to Family Dollar’s characterization of the medical testimony, our review of the testimony shows that all three physicians who treated and examined Connor following her February 21, 2006 accident, i.e., Drs. Dunn, Steiner and Russo, concluded that her injury and resulting sedentary limitations were causally related to the 2006 accident. Nonetheless, Family Dollar refused to reinstate or pay further benefits to Connor.

Moreover, although Family Dollar argues that its failure or refusal to do so was justified based on Dr. Dunn’s testimony that Connor was at MMI in October of 2006 and could return to work, this argument ignores the remainder of Dr. Dunn’s testimony in which he clearly stated that Connor could return to work, but only within the capacity to which he had previously permanently restricted her as set forth in his report of June 20, 2006, i.e., light duty/sedentary work with specific instructions that she sit at least thirty minutes of every hour. Further, when Connor reported to Andrew Gibbs, her district manager at Family Dollar, |9she had received permanent light-duty restrictions, she was advised by Gibbs that she would not be allowed to return to work at Family Dollar unless she had no work restrictions or limitations.

Connor further testified that since she was not allowed to return to Family Dollar, she sought and obtained employment within her light-duty restrictions as a cashier and deli helper at Ryan’s Convenience Store and Deli. As shown in her Employee’s Monthly Report of Earnings (LWC-WC-1020), Connor was earning substantially less than 90% of her pre-injury average weekly wage at her new light-duty employment.

Thus, considering the restrictions placed on Connor as set forth above, and Family Dollar’s response thereto, on review we find that Connor met her burden of proving, by a preponderance of the evidence, that she is unable to earn wages equal to 90% or more of wages she earned at the time of injury and that Family Dollar failed to rebut her showing. Here, the record is devoid of any evidence that Con-nor is “physically able to perform a certain job,” other than light duty/sedentary, or that employment within her restrictions was available or offered to her by Family Dollar. Moreover, we note that although Family Dollar challenges Connor’s credibility, the OWC judge specifically found Connor’s testimony to be credible. As a reviewing court, we do not disturb reasonable evaluations of credibility by the trier of fact.

Accordingly, we find no error in the OWC’s determination that Connor was entitled to supplemental earnings benefits as of October 17, 2006 and continuing thereafter. This assignment of error lacks merit.

Assignment of Error Number Two

In its second assignment of error, Family Dollar Store contends that the OWC erred in finding that Connor is presently disabled from the 2006 accident or that her diminished earning capacity is related to the 2006 accident. Given the | mmedical and lay testimony noted above, we likewise find no merit to these arguments.

As set forth above, all three physicians who treated and examined Connor following her February 21, 2006 accident agreed that her injury and resulting sedentary limitations were attributable to her 2006 accident at Family Dollar Store. In particular, Dr. Dunn testified that given Con-nor’s pain-free status for twenty-three months prior to the 2006 injury, the initial 2003 strain/sprain had resolved. Likewise, Dr. Steiner testified that any sprain or strain that Connor had as a result of the 2003 accident had resolved, given her pain-free and asymptomatic status for two years.

Further, although the medical evidence revealed that Connor had previously undergone thoracic outlet surgery, brachial plexus surgery, and surgery for reflex sympathetic dystrophy, Dr. Steiner distinguished these and specifically explained that neither the thoracic outlet syndrome or RSD “predisposed” or caused the injury sustained in 2006.

The OWC obviously accepted and relied on the above testimony in granting Bohn-ing & Company, Inc.’s motion for summary judgment and in later rendering the judgment against Family Dollar. On review, we find the record supports the underlying findings of the OWC.

In With reference to Family Dollar’s contentions that Connor’s testimony should be rejected as “self-serving,” we note that a worker’s disability can be proven by medical and lay testimony, and a workers’ compensation judge must weigh all of the evidence in order to determine whether the employee has met his burden of proof. Honeycutt v. Henry’s Plumbing, 2007-1270 (La.App. 3rd Cir.4/2/08), 981 So.2d 60, 63-64. Moreover, a workers’ compensation judge’s determinations of whether the employee’s testimony was credible and of whether the employee met her burden of proof are factual findings not to be disturbed on appeal absent manifest error. Alexander v. Pellerin Marble & Granite, 630 So.2d at 710; Robinson v. North American Salt Company, 865 So.2d at 105.

On review, we find no error in the OWC’s determination that Connor established that her work restrictions and diminished earning capacity were causally related and directly attributable to the 2006 accident. This assignment of error also lacks merit.

Assignment of Error Number Three

In this assignment of error, Family Dollar contends that the OWC erred in ordering it to pay outstanding medical expenses, and in assessing penalties and attorney’s fees for its failure to pay the expenses, as Connor did not prove that the bills were submitted to Family Dollar for payment and is not entitled to recover medical expenses because she failed to substantiate the claim. The OWC rejected these arguments and specifically ordered Family Dollar to pay outstanding medical bills to North Oaks Health System in the amount of $882.10 and to Lallie Kemp Medical Center in the amount of $349.00 for emergency medical treatment incurred by Connor after benefits were terminated. The OWC further ordered that Family Dollar pay $2,000.00 in penalties and $2,000.00 in attorney’s fees for its unjustified failure to pay these outstanding medical expenses.

| ^Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof. LSA-R.S. 23:1201(E). Medical benefits shall be paid timely and if not paid and not reasonably controverted, penalties and attorney fees shall result. A claim is reasonably controverted if the employer has sufficient factual and medical information to counter that presented by the claimant. Roussell v. St. Tammany Parish School Board, 2004-2622 (La.App. 1st Cir.8/23/06), 943 So.2d 449, 462, writ not considered, 2006-2362 (La.1/8/07), 948 So.2d 116. In the event that the payor has denied that an employee’s injury is compensable, no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury. LSA-R.S. 23:1142(E).

Connor identified the bills from the emergency room visits and testified that they were incurred in connection with her 2006 injury. Specifically, she stated that she went to North Oaks Health System Emergency Room because she was suffering from such severe pain radiating from her back and down her legs that she could not bear the pain any longer. Connor testified that the bill from her emergency room visit at North Oaks in the amount of $882.10 had been turned over to Southern Recovery Credit for collection because she had no money to pay it after Family Dollar terminated her benefits. Connor further testified that on May 1, 2007, she presented at the Lallie Kemp Medical Center Emergency Room, again due to severe pain in her back and legs. She was prescribed pain medication and referred to an orthopedist. Connor was also unable to personally pay the $381.00 bill for the Lal-lie Kemp emergency room visit and Risk Management likewise failed to pay.

At trial, counsel for Family Dollar objected to the introduction of these bills, contending that there was no proof that they had been “properly submitted” to Family Dollar for payment. Counsel for Connor countered that he actually had | ,-jbeen provided with the unpaid bills at issue by Family Dollar’s previous counsel in this matter, Ed Stauss. Connor further notes on appeal that these particular bills were obtained by Family Dollar through its previous attorney, and that a review of the medical records subpoenas issued in this case reveals that Family Dollar did, in fact, subpoena and obtain Connor’s records, including the unpaid bill from North Oaks Health Systems. Further, we note that other exhibits specifically identify Risk Enterprise Management in the billing section.

Accordingly, given the record in its entirety, we find no error in the OWC’s determination that Family Dollar was responsible for payment of these expenses or in its determination that penalties and attorney’s fees were warranted for Family Dollar’s arbitrary failure to timely pay the expenses at issue.

Assignment of Error Number Four

In its final assignment of error, Family Dollar contends that the OWC erred in finding that it had arbitrarily or capriciously terminated Connor’s benefits, and in accordingly assessing penalties and attorney’s fees. On review, we find no error in the OWC’s award of $8,000.00 in penalties and $10,000.00 in attorney’s fees for the arbitrary and capricious termination of benefits, pursuant to LSA-R.S. 23:1201(1).

The burden of proof is on the claimant to establish that an employer’s conduct was arbitrary and capricious in discontinuing the payment of benefits. See LSA-R.S. 23:1201(F), (I), and (J). Whether the refusal to pay compensation benefits or the discontinuation of those benefits warrants the imposition of penalties and attorney’s fees is a factual question which will not be disturbed upon review in the absence of manifest error. Weston v. Wal-Mart Stores, Inc., 2001-1816 (La.App. 1st Cir.9/27/02), 835 So.2d 587, 589.

On November 3, 2006, Family Dollar generated a “Stop Payment Form” terminating benefits for Connor effective October 16, 2006, on the basis that 114“claimant has been placed at MMI and released for our injury.” On review, we find the record does not support this stated basis for termination and miseharacterizes the expert medical testimony relied upon by Family Dollar. As reflected in Connor’s testimony and the medical records, clearly Dr. Dunn had not released her at the time the stop-payment form was issued. In fact, Dr. Dunn had recommended that she submit to an additional evaluation by a neurologist at that point and that she should also be seen by an orthopedist.

Dr. Dunn last saw Connor on November 2, 2006. At that visit, she was experiencing persistent upper back pain and pain and tingling after standing. Thus, while he deferred to an orthopedist in terms of further evaluation and treatment and felt that she had reached MMI, he also concluded she would be restricted indefinitely to light duty as a result of the 2006 accident. Drs. Steiner and Russo also placed Connor under permanent light duty/sedentary work restrictions. Thus, although Connor was eventually able to return to light-duty/sedentary employment, these accommodations were not made or offered to her by Family Dollar.

Although ■ penalties are not to be assessed when the employee’s right to such benefits has been reasonably controverted by the employer or insurer, Parfait v. Gulf Island Fabrication, Inc., 97-2104 (La.App. 1st Cir.1/6/99), 733 So.2d 11, 24, an employer’s termination of benefits may be considered arbitrary, capricious or without probable cause when it appears that further information was required to make a determination of the employee’s condition. Killett v. Sanderson Farms, 2001-0277 (La.App. 1st Cir.5/10/02), 818 So.2d 853, 862.

Further, an insurer or an employer has a duty to investigate and make every reasonable effort to assemble factual and medical information to ascertain whether a claim is compensable before denying benefits. Parfait v. Gulf Island Fabrication, Inc., 733 So.2d at 25. Importantly, this obligation is continuing in nature. Parfait v. Gulf Island Fabrication, Inc., 733 So.2d at 25. Where, as here, an insurer or employer first receives a favorable medical report, but later receives information indicating the possibility of a continuing disability, it may not blindly rely on the earlier report to avoid attorney fees. Killett v. Sanderson Farms, 818 So.2d at 862. Statutes authorizing attorney fees in workers’ compensation cases are imposed to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 46.

Here, although Family Dollar may have reasonably controverted the claim initially, based on Dr. Steiner’s report, the record shows that Family Dollar subsequently received Dr. Steiner’s clarified opinion establishing a causal relationship between Connor’s 2006 accident and the resulting permanent work restrictions. Nonetheless, Family Dollar refused to reinstate Connor’s benefits.

Further, although informed of the opinions and recommendations of the treating physicians, Family Dollar still refused to pay benefits or to authorize their recommended treatment, despite the fact that Family Dollar was aware that Dr. Russo had recommended that Connor receive epidural injections and that she be seen by Dr. Patrick Waring for management of her pain which continued even after benefits were terminated. As the record reflects, at the time of the termination of her benefits, Connor’s pain had not improved and instead had become much worse.

As the OWC correctly found, Family Dollar’s continued reliance on Dr. Steiner’s initial report as a basis to support terminating benefits, while ignoring his deposition testimony (where he changed his opinion after being provided with the information surrounding Connor’s sympto-mology and work history [ ^subsequent to the 2003 accident), combined with Con-nor’s testimony and Dr. Russo’s medical records, renders Family Dollar’s refusal to reinstate benefits arbitrary, capricious, or without probable cause. After thorough review of the evidence herein, we find no error in the OWC’s determination that Family Dollar acted arbitrarily and capriciously in terminating Connor’s benefits, for which penalties and attorney’s fees accordingly were due.

This assignment of error also lacks merit.

ANSWER TO APPEAL

Connor filed an answer to the instant appeal, contending that the appeal filed by Family Dollar is frivolous and requesting additional penalties and attorney’s fees for the work performed in having to defend this appeal. Although we have found in Connor’s favor on the merits of the appeal, we cannot say that Family Dollar was insincere in its argument on appeal or that the appeal was urged for an improper motive. Further, given the OWC’s prior awards, we decline to award any additional attorney’s fees.

CONCLUSION

Based on the above and foregoing reasons, the May 7, 2009 judgment of the OWC is affirmed. Costs of this appeal are assessed against the appellant/employer, Family Dollar Store.

AFFIRMED.

WELCH, J., concurs in part and dissents in part with reasons assigned.

WELCH, J.,

concurring in part and dissenting in part.

hi respectfully concur in part and dissent in part with the majority opinion in this case. I agree with the majority’s conclusion that there was no error in the OWC’s determination that Ms. Connor was entitled to supplemental earnings benefits as of October 17, 2006 (and continuing thereafter), that her work restrictions and diminished earning capacity were causally related and directly attributable to the 2006 accident, that Family Dollar acted arbitrarily and capriciously in terminating Ms. Connor’s benefits (for which penalties and attorney fees were due), and that Family Dollar was responsible for the payment of the medical expenses incurred by Ms. Connor for her treatment at the two emergency room visits. However, I disagree that Family Dollar should have been assessed penalties and attorney fees for failing to pay the medical expenses incurred when Ms. Connor sought treatment at the two emergency rooms.

Louisiana Revised Statutes 23:1201(E) provides that medical benefits payable under workers’ compensation provisions shall be paid within sixty days after the employer or insurer receives vrritten notice of the expense. The failure to provide payment of medical expenses shall result in the assessment of a penalty and a reasonable attorney fee for each claim. La. R.S. 23:1201(F). Thus, a prerequisite for the assessment of a penalty and attorney fees for the failure to pay a medical expense is that the employer or insurer must receive written notice of the expense. There is no evidence in the record establishing that Ms. Connor, or anyone on her behalf, gave her employer (or its insurer) written notice of the |2medical expenses incurred by her for the two emergency room visits. Although Family Dollar eventually had possession of a copy of a bill for those medical expenses — because it issued a subpoena for all medical records to those medical service providers — Family Dollar’s possession of a copy of the bill was insufficient to establish that it received written notice of the medical expense for which it was liable. Therefore, I would reverse penalty and attorney fees awarded by the OWC with regard to Family Dollar’s failure to pay the medical expenses incurred by Ms. Con-nor at the two emergency room visits.

      . We note that the June 31, 2006 date is obviously incorrect, as there are only 30 days in June. Further, Connor testified that she had never seen the termination notice and strenuously denied that she had failed to return to work. Instead, she stated that Family Dollar had terminated her because there was no light-duty work available.

      . Notably, Family Dollar did not appeal the OWC's grant of summary judgment.

      . As noted earlier, the record overwhelmingly demonstrates that Connor established that she sustained a work-related injury in 2003, from which she recovered and was asymptomatic for two years before the 2006 accident. Con-nor testified that she was treated by Dr. Dunn, that she was released to full-duty employment on January 15, 2004, and that she returned to John's Curb Mart at full-duty employment. The record also shows that Con-nor continued at full-duty employment and was asymptomatic until her accident and injury on February 21, 2006, at Family Dollar.

      . Dr. Steiner explained that thoracic outlet syndrome occurs where the neurovascular bundle is squeezed by the muscles around the neck. After the nerves exit the cervical spine but before entering the arm, if there is spasm or injuries to these muscles, the nerves can be pinched and can cause pain, weakness, and numbness to the extremity. Reflex sympathetic dystrophy, or RSD, is a nerve-type condition where chronic pain can develop following an injury to the extremity.

      . She testified that the pain had become so bad in her back that it was starting to radiate to her chest and ribs and was causing problems when she slept at night. She further explained how the deterioration in her back and attendant pain necessitated her emergency room visits.