author: liAMY, Judge.

text:
    Wilbert ARNOLD v. WAL-MART STORES, INC.
    No. 2003-0609.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.

      Michael B. Miller, Crowley, LA, for Plaintiff/Appellant, Wilbert Arnold.
    Charles Martin Kreamer, Sr., Allen & Gooch, Lafayette, LA, for Defendant/Ap-pellee, Wal-Mart Stores, Inc.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR and MARC T. AMY, Judges.
   liAMY, Judge.

In this workers’ compensation matter, the employee filed a disputed claim against his employer and its workers’ compensation insurer, contending that the employer and its insurer had failed to approve the employee’s orthopedic surgery and had neglected to properly pay workers’ compensation benefits. The workers’ compensation judge issued a ruling denying the employee’s claims and dismissing the suit with prejudice. The employee filed the instant appeal. For the following reasons, we affirm in part, reverse in part, and remand.

Factual and Procedural Background

Wilbert Arnold, the claimant herein, began working as a grocery stocker at the Wal-Mart Supercenter in Jennings, Louisiana, in January 2000. One of Mr. Arnold’s duties in his capacity as a stocker was to unload meat trucks and to store this meat in Wal-Mart’s freezer. On October 22, 2000, during the graveyard shift, Mr. Arnold slipped and fell as he attempted to push a pallet allegedly weighing 600-800 pounds and stacked 8-12 feet high with meat across an ice-covered freezer floor. At the disputed claim hearing on the matter, he explained that as a matter of course, it was necessary to “get a running start to push the pallet jack over the ice [on the freezer floor],” and he recalled that, in so doing, when he stepped onto the sheet of ice, he slipped, fell head over heels in somersault fashion, and landed, supine, on the freezer floor. Mr. Arnold noted in his statement to Wal-Mart’s insurance adjuster that he then crawled to the door and pulled himself to his feet using a pole. He promptly informed his supervisor and the store manager that he had been injured, and he then proceeded to the emergency room of a nearby hospital, where he was treated and released. The record indicates that soon thereafter, Mr. Arnold visited Dr. Robert Marshall, who had been his family physician since 1999, presenting complaints of 1 ¡¡back pain. Although Mr. Arnold’s back pain eventually resolved itself, he began to experience considerable neck pain, which grew worse. On January 10, 2001, Mr. Arnold consulted Dr. John Cobb, an orthopedic surgeon in Lafayette, who recommended cervical discectomy, decompression, and fusion. Wal-Mart and Claims Management, Inc., its third-party claims administrator (hereinafter “CMI”), desired a second opinion as to the necessity of surgery, and the record reflects that they arranged for Dr. Randall Lea, an orthopedist in Baton Rouge, to examine Mr. Arnold. Dr. Lea’s report indicates that he agreed with Dr. Cobb’s finding that surgical fusion and decompression was warranted, opining that “surgery [was] needed for an acute aggravation of a degenerative condition.”

On February 1, 2001, Mr. Arnold filed a disputed claim for compensation in which he alleged that Wal-Mart and CMI (hereinafter collectively “Wal-Mart”) had not authorized surgery as recommended by Mr. Arnold’s orthopedist. Mr. Arnold further asserted that Wal-Mart had neglected to pay workers’ compensation benefits and had not properly provided medical treatment and workers’ compensation. He also requested penalties and attorney’s fees. A disputed-claim hearing was held on March 11, 2002. In August 2002, before a ruling was issued, the workers’ compensation judge assigned to Mr. Arnold’s case, passed away. A different workers’ compensation judge was assigned to consider the matter. On February 24, 2003, the workers’ compensation judge issued a ruling denying Mr. Arnold’s claims and dismissing the complaint with prejudice.

Mr. Arnold asserts eleven assignments of error on appeal. Those assignments are as follows:

LI. It was error for the hearing officer to fail to find that Mr. Arnold was injured in the course and scope of his employment with Wal-Mart and entitled to temporary total disability benefits.
2. The hearing officer erred in using “arbitrary and capricious conduct” as the standard for assessing attorney’s fees.
3. It was error for the hearing officer to fail to include fringe benefits in the calculation of Mr. Arnold’s average weekly wage and assess a penalty for the failure to properly pay weekly benefits.
4. The hearing officer erred in failing to assess penalties due to defendant’s failure to timely pay Wilbert Arnold weekly compensation benefits for the weeks of June 15th through June 28th and June 29th through July 12th of 2001.
5. The hearing officer erred in failing to order Wal-Mart to pay for the prescription ordered by Dr. Mitchell and penalties for Wal-Mart’s failure to pay for the prescription of Dr. Mitchell.
6. It was error for the hearing officer to fail to order Wal-Mart to pay for the mileage submitted on January 81, 2001 and assess a penalty against Wal-Mart for failure to pay the mileage request.
7. The hearing officer erred in failing to order Wal-Mart to pay the MRI bills to Jeff Davis Radiology and Jeff Davis Diagnostics and in failing to order Wal-Mart to pay a penalty as a result of its failure to pay those MRI bills.
8. The hearing officer erred in failing to assess penalties against Wal-Mart for failure to timely guarantee the surgery recommended by Dr. Cobb.
9. The hearing officer erred in failing to assess back due weekly compensation benefits due Wilbert Arnold as a result of the miscalculation of Mr. Arnold’s average weekly wage and workers’ compensation rate.
10. It was error for the hearing officer to fail to award attorney’s fees due and expenses.
11. It was error to dismiss Mr. Arnold’s case, with prejudice.

Discussion

On appeal, Mr. Arnold generally asserts that the workers’ compensation judge erred in denying his claims against Wal-Mart and CMI. He claims that the workers’ compensation judge erred as a matter of law in finding that Wal-Mart had properly calculated his average weekly wage, in applying an incorrect standard to his requests for penalties and attorney’s fees, and in faffing to assess attorney’s fees and penalties for late payments of workers’ compensation benefits. With respect to the other assignments of error, Mr. Arnold asserts that the workers’ compensation judge erred Das a matter of fact. He requests that we reverse and remand for the taking of further evidence on certain points.

In general, an appellate court is to review rulings issued in workers’ compensation matters according to the manifest error — clearly wrong standard, set forth by the Louisiana Supreme Court in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. Moreover, where errors of law are asserted on appeal, the appellate court must determine whether the workers’ compensation judge’s ruling was legally correct. See McClain v. Pinecrest Development Center, 00-1622 (La.App. 3 Cir. 2/28/01), 779 So.2d 1112.

Failure to Find that Mr. Arnold was Injured in the Course and Scope of his Employment and was Therefore Entitled to Temporary Total Disability Benefits

In his first assignment of error, Mr. Arnold alleges that the workers’ compensation judge ruled contrary to the parties’ pre-hearing stipulation as to the nature of the accident and entitlement to disability benefits when he failed to find that Mr. Arnold sustained a work-related injury and was entitled to temporary total disability benefits. Our examination of the record does not support Mr. Arnold’s contentions. At the disputed-claim hearing, Wal-Mart did not contest Mr. Arnold’s assertions that he sustained a work-related injury, and it did not dispute his entitlement to weekly compensation benefits. Therefore, this issue was not among those to be decided by the workers’ compensation judge. Moreover, the ruling and the written reasons for judgment do not state that Mr. Arnold did not sustain a work-related accident or that he is not entitled to disability. This assignment is without merit.

| aFailure to Employ the Correct Standard in Determining Entitlement to Penalties and to Attorney’s Fees; Penalties for Delay in Payment of Benefits

Mr. Arnold asserts that the workers’ compensation judge erred in employing the “arbitrary and capricious” standard, set forth in Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, in determining whether Wal-Mart’s conduct in handling his claims warranted the imposition of penalties and attorney’s fees. He maintains that the correct standard is found in Brown v. Texas-LA Cartage, Inc., 98-1063, p. 8 (La.12/1/98), 721 So.2d 885, 889, viz., that where benefits payments are late, penalties will be imposed unless “the employee’s rights to benefits were reasonably controverted by the employer or his insurer or the nonpayment resulted from conditions over which the employer or insurer had no control.”

In its recent decision in Fontenot v. Reddell Vidrine Water Dist., 02-0439 (La.1/14/03), 836 So.2d 14, the Louisiana Supreme Court revisited the issue of the proper standard to be employed in determining whether penalties and attorney’s fees are appropriate where workers’ compensation benefits have not been timely paid. In Fontenot, the supreme court reiterated its prior statements that the 1983 amendment of La.R.S. 23:1201 interpolated penalty provisions into the statutory language which

replaced the arbitrary and capricious standard for the award of penalties to one of assessing penalties for untimely payment unless the employees [sic] rights to benefits were reasonably controverted by the employer or his insurer or the nonpayment resulted from conditions over which the employer or insurer had no control.

Fontenot, 02-0439, p. 9 (La.1/14/03), 836 So.2d 14, 21. The supreme court has interpreted “reasonably controverted” to mean that “the defendant must have some valid reason or evidence upon which to base his denial of benefits.” Brown, 721 So.2d at 890. More specifically, the Court explained,

|fi[The] court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

Id. It is important to note that, for the purposes of the instant appeal, the key difference between the “arbitrary and capricious” standard used by the workers’ compensation judge and the “reasonably controverted” standard is one of nature of the employer’s conduct. Mr. Arnold claims that certain compensation payments were not timely made, and therefore, La. R.S. 23:1201 is applicable; however, Wal-Mart argues that the payments in controversy were partially discontinued, thereby triggering the application of the “arbitrary and capricious” standard that, according to Brown, 721 So.2d at 889-90, still applies in cases of discontinued benefits under La. R.S. 23:1201.2.

Based upon our examination of the record, we find that the workers’ compensation judge erred in employing the “arbitrary and capricious” standard in his evaluation of Mr. Arnold’s claims. The record indicates that on two occasions, Mr. Arnold’s compensation checks were $100 short, and, within a month of these occurrences, when the mistake was brought to Wal-Mart’s attention, it immediately mailed Mr. Arnold a check for the difference. In our opinion, this $200 in benefits was paid late, thereby triggering La.R.S. 23:1201 and the “reasonably controverted” standard. It is clear from the record that Mr. Arnold received regular benefits checks, and, as such, they were never “discontinued.”

It is apparent from the record that Wal-Mart insisted that a clerical error was the cause of Mr. Arnold’s deficient payments. Nevertheless, Wal-Mart did not produce any evidence at trial that tended to show that the clerical error resulted from |7circumstances beyond its control, and it did not otherwise sufficiently controvert Mr. Arnold’s arguments with respect to this issue. As such, the workers’ compensation judge erred in not awarding Mr. Arnold attorney’s fees and penalties as a result of the late benefits payments. Accordingly, we remand the portion of this matter related to the two insufficient payments to the Office of Workers’ Compensation for calculation of penalties pursuant to La.R.S. 23:1201(F). Furthermore, on remand, the workers’ compensation judge shall assess a reasonable attorney’s fee in this regard. For work performed on appeal in the pursuit of this claim, we award Mr. Arnold $2000.

In a related assignment of error, Mr. Arnold contends that the workers’ compensation judge neglected to assess penalties against Wal-Mart for its tardy guarantee of surgery. He asserts that Dr. Cobb recommended surgery in his initial report, dated January 10, 2001, and Wal-Mart had sixty days in which to approve this surgery. However, . Mr. Arnold claims, Wal-Mart did not approve the surgery until October 3, 2001, nearly nine months later. He insists that the workers’ compensation judge should have assessed penalties and attorney’s fees against Wal-Mart for its belated approval of the surgery.

The workers’ compensation judge noted in his ruling that “the delay in authorizing the surgery recommended by Dr. Cobb was reasonable under the circumstances, and was by no interpretation of the definition arbitrary and capricious conduct on the part of [Wal-Mart].” Again, we find that the workers’ compensation judge mistakenly applied the “arbitrary and capricious” standard to this late-authorization scenario instead of the “reasonably controverted” standard. In its post-trial memorandum, Wal-Mart noted that after it received word that Dr. Cobb had recommended surgery, it decided to “[exercise] its statutory right to have a second | «surgical exam and opinion provided by a doctor of its choice.” Wal-Mart further explained that the circumstances surrounding its delayed approval of surgery were “out of [its] control:” for example, it had to work around both Dr. Lea’s and Dr. Cobb’s “busy schedules” in setting appointments and scheduling the surgery itself. We find no manifest error in the workers’ compensation judge’s conclusion that the delay in authorizing surgery was reasonable. Although the workers’ compensation judge applied the “arbitrary and capricious” standard in determining that Wal-Mart was not accountable for attorney’s fees and penalties in this instance, we find that the overall result is correct. This assignment of error requires no action by this court.

In yet another related assignment of error, Mr. Arnold alleges that the workers’ compensation judge erred in failing to order Wal-Mart to pay Jeff Davis Radiology and Jeff Davis Diagnostics for MRI services rendered in conjunction with this matter. Mr. Arnold asserts that he sent letters requesting payment, together with copies of the bills, to Wal-Mart on May 21, June 25, and September 5, 2001, all of which were ignored. He contends that, pursuant to La.Code Civ.P. art. 105, payment is an affirmative defense that must be pleaded, and Wal-Mart failed to plead payment. As such, he argues, he is entitled to penalties and attorney’s fees.

We cannot divine from the record that Wal-Mart’s failure to pay Mr. Arnold’s MRI bills constituted a “discontinuation” of benefits such that the workers’ compensation judge was correct in applying the “arbitrary and capricious” standard. As Wal-Mart argues in its response to Mr. Arnold’s appeal, the record does not show that Mr. Arnold specifically raised the issue of an unpaid MRI bill in his pre-trial statement or in the answers that he provided to Wal-Mart’s interrogatories. Because the unpaid MRI bill was first mentioned at the disputed-claim hearing, and because [9Wal-Mart was not given the opportunity to obtain and produce any evidence showing whether or when said bill had been paid, this issue was not properly before the court, and we find no error in the workers’ compensation judge’s refusal to award penalties and attorney’s fees in this regard.

Failure to Include Fringe Benefits in the Calculation of Mr. Arnold’s Average Weekly Wage and Failure to Assess a Penalty for Improper Payment of Weekly Benefits

Mr. Arnold contends that the workers’ compensation judge erred in determining that Wal-Mart had properly calculated his average weekly wage (hereinafter “AWW”). Mr. Arnold claims that Wal-Mart omitted several fringe benefits in its calculation of his AWW, namely, holidays, sick days, vacation time, profit sharing/401(k) contributions, allowances for resource for living, and medical benefits. He requests that we remand on this issue with instructions to include these items in re-calculating his wage.

In his written reasons for judgment, the workers’ compensation judge stated that according to Wal-Mart policy, profit-sharing and 401(k) benefits vest in employees after one year’s service to the company, and such benefits were properly excluded from the calculation of Mr. Arnold’s AWW. (The record indicates that Mr. Arnold had worked for Wal-Mart for a little over nine months when his accident occurred.) The workers’ compensation judge noted that Wal-Mart had calculated Mr. Arnold’s AWW by using his actual gross income, as well as earned wages from Wal-Mart’s stock-option program, in which he participated. The judge found that Wal-Mart did not include any fringe benefits upon which Mr. Arnold did not pay federal income tax.

Support for Mr. Arnold’s position with respect to this matter is found in Belaire v. Don Shetler Olds Buick Chevrolet, 02-1152 (La.App. 3 Cir. 6/4/03), 847 So.2d 10723, in which a panel of this court held that an employee who was injured before benefits vested was nonetheless entitled to their inclusion in calculation of his average weekly wage because the parties had contemplated that such benefits would vest as part of the employment contract between them. However, in the present ease, the record does not indicate that Mr. Arnold and Wal-Mart entered into a written contract of employment. There is no guarantee that Mr. Arnold, as an at-will employee, would be with the company long enough to receive the benefits that he asserts should be included in calculations of his average weekly wage.

With respect to Mr. Arnold’s argument that medical benefits should have been included in the calculation of his average weekly wage, we note that Mr. Arnold’s accident occurred in 2000, and, at the time of his accident, La.R.S. 23:1021(10)© did not include its current provision for inclusion of medical benefits. The language upon which Mr. Arnold relies in his claim for their inclusion, “including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage,” was added in 2001.

In Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992), the Louisiana Supreme Court held that the law in effect at the time of the injury governs an employee’s compensation claim. We have been able to discern from Moses v. Grambling State University, 33,185 (La.App. 2 Cir. 5/15/00), 762 So.2d 191, writ denied, 00-1769 (La.9/22/00), 768 So.2d 1285, that a jurisprudential rule was in effect in 1998 that allowed an employee to include employer-paid health insurance benefits in calculating his average weekly wage. However, this rule changed in 1999, Inwhen La.R.S. 23:1021(10)(f) was enacted. In its original form, La.R.S. 23:1021(10)(f) stated as follows:

In the determination of “wages” and the average weekly wage at the time of the accident, no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes; however, any amount withheld by the employer to fund any non-taxable or tax deferred benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage.

This version of La.R.S. 23:1021(10)© was in effect in 2000, at the time of Mr. Arnold’s accident. Later, in 2001, La.R.S. 23:1021(10)© was amended, and the following language was added to the end of the existing text:

including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage.

The law in effect at the time of Mr. Arnold’s accident did not allow health benefit premiums not taxable to the employee to be included in the calculation of average weekly wage.

Moreover, our examination of the Wal-Mart Associates Handbook reveals that similar vesting requirements exist for vacation time and similar fringe benefits. The workers’ compensation judge’s ruling on this issue is correct. This assignment is without merit.

Failure to Assess Back Weekly Compensation Benefits Due Wilbert Arnold as a Result of the Miscalculation of Mr. Arnold’s Average Weekly Wage and Workers’ Compensation Rate

Mr. Arnold further argues that the workers’ compensation judge erred in failing to require Wal-Mart to pay back benefits occasioned by the improper calculation of his average weekly wage. He contends that such improper calculation resulted in | ^deficiency in benefits that should have been awarded him at the disputed claim hearing. He requests that we remand for proper calculation of his average weekly wage and so that the workers' compensation judge might assess back benefits accordingly. Because we have determined that Mr. Arnold’s average weekly wage was properly calculated, we do not address this particular assignment of error.

Failure to Order Wal-Mart to Pay for the Prescription Ordered by Dr. Mitchell and Failure to Impose Related Penalties

Mr. Arnold contends that the workers’ compensation judge committed error in not ordering Wal-Mart to pay for a prescription for his work-related injury, prescribed by Dr. Mitchell, and likewise erred in not imposing penalties for this failure. According to Mr. Arnold’s testimony at the disputed-claim hearing, he had attempted to fill a prescription for medicine for his work-related injury at the Wal-Mart pharmacy, but his prescription was rejected by the workers’ compensation insurer. Mr. Arnold complains that the workers’ compensation judge did not penalize Wal-Mart and CMI in connection with this rejection.

At the disputed-claim hearing on the matter, Mr. Arnold introduced a copy of the prescription rejection notice as Plaintiffs Exhibit 8. This rejection notice, dated 04/25/2001, bears the phrase, “COVERAGE TERMINATED,” indicating that the prescription was rejected by Wal-Mart’s insurer.

On appeal, Wal-Mart argues that this aspect of Mr. Arnold’s claim was introduced on the morning of trial and that consequently, it did not have the opportunity to prepare rebuttal evidence. However, in its brief, Wal-Mart asserts that “there was no medical evidence from Dr. Marshall discussing this prescription, what is [sic] was for, and how it was related to the claimant’s work accident,” and | ismaintains that, in any event, it had not arbitrarily and capriciously denied Mr. Arnold’s claim.

In this instance, because Mr. Arnold had received prescription benefits prior to this “termination,” the proper inquiry, pursuant to La.R.S. 23:1201.2, is whether Wal-Mart arbitrarily and capriciously discontinued benefits that were “due and arising.” The burden of proof in such inquiries is on Mr. Arnold to show that this medication was prescribed for his work-related accident, that payment for the medication was “due and arising,” and that Wal-Mart arbitrarily and capriciously refused payment. The record is void of any evidence that would tend to show whether Mr. Arnold’s workers’ compensation benefits properly included payment for the rejected prescription. We do not find that the workers’ compensation judge committed manifest error with respect to this particular issue.

Failure to Order Wal-Mart to Pay for the Mileage Submitted on January SI, 2001 and to Assess a Corresponding Penalty

Mr. Arnold asserts that the workers’ compensation judge erred in failing to order Wal-Mart to reimburse him for mileage detailed in a letter dated January 31, 2001, and for failing to assess a corresponding penalty and attorney’s fees against Wal-Mart.

Louisiana Revised Statutes 23:1203(D) provides, in pertinent part, that:

[T]he employer shall be hable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services, medicines, and prosthetic devices, which the employer is required to furnish under this Section .... When the employee uses his own vehicle, he shall be reimbursed at the same rate per mile as established by the state of Louisiana for reimbursement of state employees for use of their personal vehicle on state business.

[14In the instant matter, no evidence was produced that showed that CMI had received Mr. Arnold’s request for mileage. The record reflects that in another instance in which Mr. Arnold requested reimbursement for mileage, he was repaid. In the absence of this type of proof of demand, we find no error in the workers’ compensation judge’s denial of penalties and attorney’s fees. Furthermore, although the workers’ compensation judge applied the “arbitrary and capricious” standard in determining that Wal-Mart was not accountable for attorney’s fees and penalties in this instance, we again find that the result is correct. This assignment of error requires no action by this court.

Failure to Award Attorney’s Fees Due and Expenses

Mr. Arnold asserts that the workers’ compensation judge erred in failing to award attorney’s fees and expenses incurred in the prosecution of this matter. Pursuant to La.R.S. 23:1201, he argues, Wal-Mart is responsible for paying such fees and expenses.

Mr. Arnold is not entitled to attorney’s fees and expenses with respect to those findings of the workers’ compensation judge that we have affirmed in this opinion. As stated above, however, we remand for calculation of penalties and attorney’s fees associated with the two payments that were deficient. These calculations are to be made pursuant to La.R.S. 23:1201(F) and Brown, 721 So.2d 885.

Dismissal With Prejudice

Mr. Arnold argues that the workers’ compensation judge erred in dismissing his case with prejudice. Because we have determined that the issue of whether the trial court erred in failing to order Wal-Mart to pay the MRI bill was not properly before the court, we agree. The workers’ compensation judge erred in dismissing Mr. Arnold’s claim with prejudice when, due to the timing of two of Mr. Arnold’s | ^particular allegations, Wal-Mart had not had sufficient opportunity to gather evidence in its defense. In his written reasons for ruling, the workers’ compensation judge stated, in pertinent part, that “IT IS FURTHER ORDERED AND DECREED that the disputed workers’ compensation claim of Wilbert Arnold is without merit, and the same is hereby dismissed with prejudice and at Claimant’s cost.” Insofar as this language constitutes a blanket dismissal of Mr. Arnold’s claims, the workers’ compensation judge’s ruling with respect to the adjudication of the MRI claims was improper. Moreover, we reverse the determination of dismissal with respect to the $200 deficiency in Mr. Arnold’s benefit payments, which we remand for reasons stated above. As to Mr. Arnold’s remaining claims, the dismissal with prejudice was not in error.

DECREE

For the foregoing reasons, the workers’ compensation judge’s ruling denying Mr. Arnold’s requests for relief and dismissing his claim with prejudice is affirmed in part and reversed in part. We award $2000 to Mr. Arnold for attorney’s fees on appeal, and we remand for calculation of penalties and attorney’s fees for the two deficient compensation payments. One-half of the costs of this proceeding are assigned to the plaintiff, Wilbert Arnold, and the remaining costs are assigned to Wal-Mart.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


source: Caselaw Access Project

author: ^THIBODEAUX, Judge.

license: Public Domain

text:
    May YEN, et al. v. AVOYELLES PARISH POLICE JURY, et al.
    No. 03-603.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.

      John Albert Ellis, Monique Freeman Rauls, Louisiana Department of Justice, Alexandria, LA, for Defendant/Applicant, State of Louisiana through the Department of Public Safety.
    Karen H. Freese, Jeffrey Allen Mitchell, Darryl M. Phillips, New Orleans, LA, for Plaintiffs/Respondents, May Yen, as Legal and Natural Tutrix of Her Minor Children, Lainee Yen and Elijah Yen and Chantell Moten, as Legal and Natural Tutrix of her Minor Children, Lenard Moten and Lent-rell Moten.
    Court composed of ULYSSES GENE THIBODEAUX, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   ^THIBODEAUX, Judge.

This case involves a medical malpractice claim filed against the State of Louisiana by the heirs of a state prisoner. The state prisoner died from a sickle cell crisis while incarcerated. His statutory heirs, the plaintiffs, allege the failure of the State to respond appropriately to his crisis. The plaintiffs did not go through a medical review panel. The State argues that the plaintiffs were required to go through a medical review panel because the exemption for a state prisoner under La.R.S. 40:1299.39.1(A)(1) only applies if the prisoner brought the suit. The trial court ruled against the State and dismissed its exceptions of lack of subject matter jurisdiction and prematurity. We agree and affirm the judgment of the trial court.

I.

ISSUE

We must decide whether the heirs of a deceased state prisoner are exempted under La.R.S. 40:1299.39.1(A)(1) from going through a medical review panel before bringing suit.

II.

FACTS

Mr. Leonard Robinson was a state prisoner incarcerated at the Avoyelles Correctional Center, a state facility under the Department of Public Safety and Corrections. Mr. Robinson died in state custody due to illness caused by sickle cell anemia. During his incarceration, Mr. Robinson did not file a claim against the state facility alleging medical malpractice. After his death, plaintiffs, the heirs of Mr. Robinson, filed a wrongful death and survival action. The suit alleged that the State committed medical malpractice and, thus, caused Mr. Robinson’s death. The State | Pexcepted to the suit on the basis of prematurity and lack of subject matter jurisdiction. The district court denied the exceptions. Thereafter, this appeal was filed.

III.

LAW AND DISCUSSION

In this case we are called on to interpret a provision of the Medical Liability for State Services Act (MLSSA). “The interpretation of a statute ... is a question of law which mandates a de novo review.” Comeaux v. City of Crowley, 00-928, pp. 5-4 (La.App. 3 Cir. 12/6/00), 773 So.2d 899, 901-02, affirmed, 01-0032 (La.7/3/01), 793 So.2d 1215.

Section 40:1299.39.1(A)(1) of MLSSA provides in pertinent part:

A. (1) All malpractice claims against the state, its agencies, or other persons covered by this Part, other than claims wherein the patients are prisoners and claims compromised or settled by the claimant and the division of administration with the concurrence of designated legal counsel for the state, shall be reviewed by a state medical review panel established as provided in this Section, to be administered by the commissioner of administration, hereinafter referred to as commissioner.

(Emphasis added).

The State argues that the phrase “other than claims wherein the patients are prisoners” should be interpreted to mean that only claims brought by the prisoner himself are exempt from going through a medical review panel before bringing suit. The State argues that, in cases where prisoners are patients, the rationale is one of avoiding redundance. An administrative procedure not available to private uninear-cerated persons is available to state prisoners and, thus, the administrative guard on frivolous claims is already in place for prisoners.

1 aThe State points to § 1299.39(E)(1) to support this argument. Section (E)(1) provides:

Unless the medical malpractice claim is first compromised and settled in accordance with Subsection H of this Section or unless the state, through the concurrence of the office of risk management and the legal counsel representing the state against such claim, waive the medical review panel procedure, all medical malpractice claims by their patients or their representatives arising from the right created and granted by Subsections C and D of this Section shall be submitted to administrative review in accordance with this Subsection before such right in individual claims can become sufficiently existent to be susceptible of judicial recognition or adjudication. The medical malpractice claims of prisoners arising under this Part shall be submitted to correctional administrative review procedures established for administrative hearings in the correctional environment or established in accordance with express law, including R.S. 15:1171 et seq., R.S. 49:964, and the administrative rules and regulations pertaining thereto. All other medical malpractice claims arising under this Part shall be submitted to a medical review panel in accordance with R.S. 40:1299.39.1.

(Emphasis added).

The State contends that the first part of this provision refers to claims of patients and their representatives while the second part of the provision mentions only claims of prisoners and not representatives. The State then infers that, because of the omission of “representatives” from the second part, which requires submission to a Corrections Administrative Review Procedure (CARP) as required by La.R.S. 15:1177, rather than a medical review panel, representatives must use the medical review panel. The State concludes that the plain language of the statute does not exempt representatives from the medical review panel process, notwithstanding the term being clearly defined in the statute, but in fact exempts only prisoners.

|4A statute that grants immunities or advantages to a special class in derogation of general rights available to tort victims must be strictly construed against limiting the tort claimants’ rights against the wrongdoer. Touchard v. Williams, 617 So.2d 885 (La.1993); Galloway v. Baton Rouge Gen. Hosp., 602 So.2d 1003 (La.1992). Because both the Public and Private Medical Malpractice Acts limit the liability of health care providers in derogation of the general rights of tort victims, any ambiguities in these Acts should be strictly construed against coverage. See Lange v. Earl K. Long Med. Ctr., 97-1661 (La.App. 1 Cir. 6/29/98), 713 So.2d 1195, writ denied, 98-2061 (La.11/13/98), 730 So.2d 935; Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210. Thus, La.R.S. 40:1299.39.1(A)(1) cannot be interpreted to expand and extend the requirements for submission to a medical review panel when the specific wording of the statute does not provide for coverage.

“When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La.Civ.Code art. 9. “[0]ther than claims wherein the patients are prisoners” is the phrase in dispute in this case. A clear interpretation of this phrase is that claims, where the patient is a prisoner, are exempted from going through a medical review panel. The statute does not make any reference to a situation where the claimant or plaintiff is a prisoner. It refers specifically to “claims” wherein the patients are prisoners.

In addition, the definition of “patient” in the statute helps in interpreting this provision. “Patient” is defined in § 1299.39(A)(3) as follows:

“Patient” means a natural person who receives, or should have received, health care from a person covered by this Part and any other natural person or persons who would or may have a claim or claims for damages under applicable law arising out of, or directly related to, the claim or claims of the natural person who receives, or [^should have received, health care from a person covered by this Part.

This definition of “patient” includes claims by persons other than the person who received health care. Thus, the phrase “other than claims wherein patients are prisoners” would exclude claims by patients who are prisoners and claims of a person that arose from the claim of the prison patient.

In this case, the wording of the statute is clear and unambiguous and no further interpretation may be made in search of the intent of the legislature. Further speculation of the intent of the legislature by the State was unnecessary. The statute excludes claims where the patient is a prisoner and claims by persons other than the prisoner himself. To hold otherwise would place us in the anomalous position that, if a prisoner survived, the claims would not have to be submitted to a panel; however, if the prisoner died, as in this case, his heirs’ procedural hurdles become more onerous. The heirs of the prisoner in this case should not be required to go through a medical review panel when the specific wording of the statute excludes them from this process.

IV.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to appellant.

AFFIRMED.

      . CARP was declared unconstitutional by Pope v. State, 99-2559 (La.6/29/01), 792 So.2d 713.


author: hDECUIR, Judge.

text:
    Grace PALM, et al. v. Belinda STEWART, et al.
    No. 03-0594.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.

      David A. Hughes, Hughes & LaFleur, Alexandria, LA, for Defendant/Appellee, State Farm Mutual Auto Insurance Company.
    Christopher J. Roy, Jr., Alexandria, LA, for Secondary Plaintiff/Appellant, Grace Palm, Ellean Dukes.
    John Tucker, Kalmbach Cook, Yancey, King & Galloway, Shreveport, LA, for Plaintiff/Appellant, Government Employees Insurance Co. Grace Palm.
    Court composed of NED E. DOUCET JR., Chief Judge, and OSWALD A. DECUIR and MARC T. AMY, Judges.
   hDECUIR, Judge.

Plaintiffs appeal a judgment of the trial court granting the defendant’s motion for summary judgment. At issue, is whether Texas or Louisiana law should be applied in this case. For the reasons that follow, we affirm.

FACTS

On February 25, 2001, Adrianne Bennett, a Texas resident, rented a car from Alamo Rent-A-Car in Dallas, Texas. Bennett permitted Mike Hudson, also a Texas resident, to drive the car. Hudson drove the car to Alexandria, Louisiana where he in turn permitted Belinda Stewart, a Louisiana resident, to drive the car. On March 8, 2001, Stewart was involved in an accident while driving the rental car. Stewart collided with a vehicle driven by Grace Palm. Both Palm and her guest passenger, Ellean Dukes, are Louisiana residents. At the time of the accident, Bennett was insured by a State Farm liability policy, issued and delivered in Texas, which covered her Mitsubishi Galant. Palm was insured by GEICO.

On June 26, 2001, Palm and Dukes filed suit against Stewart and State Farm. Thereafter, GEICO, as Palm’s subrogee, and Palm individually, filed suit against Stewart and State Farm to recover amounts paid under GEICO’s uninsured/underinsured motorist policy, in addition to Palm’s deductible. State Farm filed a motion for summary judgment contending that there was no coverage for the rental vehicle under its policy and that La.R.S. 22:1406(F) mandating coverage for rental vehicles did not control because Louisiana law does not apply. The trial court granted State Farm’s motion for summary judgment and the plaintiffs lodged this appeal.

CHOICE-OF-LAW

The plaintiffs contend that the trial court erred in concluding that Texas law applied and in granting the motion for summary judgment. We disagree.

|gAt the outset, we note that on appeal summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). This means that judgment should be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. If the opposing party cannot produce any evidence to suggest that it will be able to meet its evidentiary burden at trial, no genuine issues of material fact exist. Id. Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether certain facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

Turning first to the issue of coverage, we note that State Farm’s policy provides coverage for unowned vehicles while used as a temporary substitute while the covered vehicle is out of normal use due to breakdown, repair, service, loss, or destruction. At all pertinent times, Bennett continued to use her covered Mitsubushi Galant. State Farm and the plaintiffs agree that the policy does not provide coverage on its face. We agree with that assessment.

The plaintiffs, however, contend that coverage is mandated by La.R.S. 22:1406(F), which provides:

IsF. Every approved insurance company, reciprocal or exchange, writing automobile liability, physical damage, or collision insurance, shall extend to temporary substitute motor vehicles as defined in the applicable insurance policy and rental private passenger automobiles any and all such insurance coverage in effect in the original policy or policies. Where an insured has coverage on multiple vehicles, at least one of which has comprehensive and collision insurance coverage, that comprehensive and collision substitute coverage shall apply to the temporary substitute motor vehicle or rental motor vehicle. Such insurance shall be primary. However, if other automobile insurance coverage is purchased by the insured for the temporary substitute or rental motor vehicle, that coverage shall become primary. The coverage purchased by the insured shall not be considered a collateral source.

(Emphasis added.)

State Farm contends that Louisiana law does not apply and that Texas has no provision mandating coverage for rental vehicles. All parties agree that the outcome of the case turns on the choice of law question. Accordingly, we will turn our attention to the choice of law issue.

It is has been argued that, perhaps due to the paucity of cases, the courts of this state often improperly address choice of law issues. See Weintraub, Russell, Courts Flailing in the Waters of the Louisiana Conflicts Code: Not Waving but Drowning, 60 La.L.Rev. 1366 (2000). Specifically, courts have been criticized for failing to first determine that there is in fact a difference in the law of the two jurisdictions and whether any such difference affects the outcome of the case. Id. Undoubtedly, this should be a critical first test.

In this case, the parties agree, and our research reveals, that there is no statute mandating coverage for rental vehicles in Texas law. Accordingly, we find that Louisiana and Texas law differ on the issue of mandatory coverage for rental vehicles and that this difference is critical to the outcome of this case.

^Louisiana courts are also criticized for resorting to the conflict of law articles when a specific statutory choice-of-law rule is applicable. Weintraub, 60 La.L.Rev. 1365. Louisiana Civil Code Article 14 provides:

Unless otherwise expressly provided by the law of this state, cases having contacts with other states are governed by the law selected in accordance with the provisions of Book IV of this Code.

(Emphasis added.)

In this case, the plaintiffs cite numerous cases involving uninsured/underin-sured motorists and the choice of law issues. In some of these cases, the courts read La.R.S. 22:1406(D)(l)(a)(iii) to be a choice-of-law rule mandating the application of Louisiana law while others resorted to choice of law analysis in spite of the statutory provision. The latter cases are the source of some of the criticism leveled at the courts. Weintraub, 60 La.L.Rev. 1365

As State Farm aptly points out, this is not an uninsured/underinsured motorist issue and La.R.S. 22:1406(D)(l)(a)(iii) has no application here as it is limited by its language to subparagraph (D) dealing with uninsured/underinsured motorist coverage. Neither party has alleged, nor do we find, any specific statutory choice-of-law rule applicable to this case. Accordingly, we now turn to the choice-of-law analysis provided for in the Louisiana Civil Code.

La.Civ.Code art. 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.
| BLa.Civ.Code 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.

The two articles are intended to be read together. See La.Civ.Code art. 3537, Comment (c). The objective of the articles is to identify “the state whose policies would most seriously be impaired if its laws were not applied to [the] issue [to be resolved].” La. Civ.Code Arts. 3515 and 3537. This objective is achieved through an issue-specific analysis of the policies of each of the two states, the first step in which process is to identify the relevant policies of the laws in two states.

In this case, the trial court found that Texas was the state whose policies would be most seriously impaired if its laws were not applied to the issues in this case. The plaintiffs argue that Louisiana law should have been applied because Stewart, Palm and Dukes are all Louisiana residents and the accident occurred in Louisiana. State Farm responds that the car was rented in Texas, the policy of insurance was issued and delivered in Texas and its policyholder, Bennett, resides in Texas.

The type of contract involved here is an insurance contract. Texas clearly has a legitimate interest in regulating insurance contracts delivered to and insuring activities of Texas residents. Louisiana has no such interest.

| (¡Louisiana has an interest in promoting Ml recovery for innocent accident victims. This interest is predicated on economic interests including medical care as well as the involvement of the facilities and time of our courts. These issues are the very issues underlying Louisiana’s legislation mandating UM coverage. Martin v. Champion Ins. Co., 95-0030 (La.6/30/95), 656 So.2d 991.

In this case if Louisiana law is applied, the Texas insurance contract will be, in effect, rewritten to provide liability coverage for a situation the actual contract had excluded. Thus, Louisiana would be abrogating a Texas insurance contract. If Texas law is applied, Palm will be unable to recover her deductible but, because she availed herself of the offer of UM coverage required by Louisiana law, she recovered her damages from GEICO. Thus, Louisiana’s interest is mitigated by Palm’s recovery under her GEICO UM policy. GEICO will be unable to recover its UM payments to Palm. However, Louisiana’s interest in GEICO’s recovery is mitigated by the fact that GEICO received premiums for its UM coverage.

Accordingly, we find that because the mandatory UM coverage provision of Louisiana worked as intended, the issues concerning Louisiana have been adequately addressed. We do not believe that any remaining interest of Louisiana is sufficient to override the compelling interest Texas has in regulating insurance contracts written in Texas and issued to Texas residents. Thus, the policies of Texas are more seriously impaired by the application of Louisiana law than Louisiana’s would be by the application of Texas law. We find no error in the trial court’s determination that Texas law should be applied in this instance and that State Farm was entitled to summary judgment.

1 CONCLUSION

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of State Farm is affirmed. All costs of these proceedings are taxed to GEICO.

AFFIRMED.


author: hAMY, Judge.

text:
    BLANE DEVILLIER TRUCKING, INC. v. Anthony J. AUTHEMENT.
    No. 03-0590.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.

      Marcus M. Zimmerman, Lake Charles, LA, for Defendant/Appellant, Anthony J. Authement.
    Thomas J. Solari, Woodley, Williams, Boudreau, Norman, Brown & Doyle, L.L.C., Lake Charles, LA, for Plaintiff/Ap-pellee, Blane Devillier Trucking, Inc.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   hAMY, Judge.

In this workers’ compensation matter, the employer alleges that the claimant employee committed fraud in violation of La. R.S. 23:1208 and seeks reimbursement for benefits paid. The workers’ compensation judge determined that the claimant had violated La.R.S. 23:1208 for the purpose of obtaining workers’ compensation benefits by willfully making false statements about his prior medical history. The claimant appeals, asserting that the workers’ compensation judge committed manifest error in determining that a violation of La.R.S. 23:1208 occurred and in denying his claim for attorney’s fees due to the employer’s alleged arbitrary and capricious denial of benefits. The employer answered the appeal, contending that the workers’ compensation judge erred in failing to order the claimant to reimburse the employer for benefits paid and further arguing that the appeal is frivolous per La.Code Civ.P. art. 2164. We affirm.

Factual and Procedural Background

Anthony Authement, the claimant herein, began working for Blane Devillier Trucking, Inc., in Lake Charles in December 1999, as a driver. His duties primarily consisted of transporting rice back and forth from a rice mill to the port of Lake Charles. On one such delivery that took place on May 2, 2000, Mr. Authement was using a pallet bar in an effort to spread pallets around the bed of his truck when the bar slipped. Mr. Authement fell backwards, landing half-on, half-off of the truck. The record shows that over the course of the following two months, Mr. Authement visited several doctors complaining primarily of back pain that radiated into his legs. Authement’s orthopedist, Dr. James Perry, ordered an MRI, which showed a herniated lumbar disc.

|?As part of the process of disbursing workers’ compensation benefits, Devillier’s insurance adjuster, Ms. Linda Blount, provided Mr. Authement with a packet of questionnaires and assorted documents that he was to complete and return. The adjuster testified at trial that in the course of this information-gathering process, she received a document from the Marine Index Bureau indicating that Mr. Authement had fallen and hurt his back in 1985 while working for Cameron Offshore, Inc., against whom he subsequently filed suit. That suit was later settled. The adjuster explained that upon receipt of this information, she took two recorded statements from Mr. Authement in which she questioned him about prior back injuries. She noted that he categorically denied any and all prior problems with his back. Moreover, the adjuster obtained Mr. Authement’s medical records from local physicians dating from before the accident at Devillier, which showed numerous trips to the emergency room in which Mr. Authement presented complaints of severe back pain radiating into the legs. The adjuster notified Devillier, who promptly terminated Mr. Authement’s workers’ compensation benefits. Devillier filed a disputed claim with the Office of Workers’ Compensation, seeking validation of its action to terminate. In addition, Devillier requested reimbursement for the benefits they had paid out on Mr. Authement’s behalf.

The workers’ compensation judge found in favor of Devillier, concluding that Mr. Authement had committed fraud for the purpose of obtaining workers’ compensation benefits in violation of La.R.S. 23:1208 by making false statements in which he denied prior back injuries. However, the workers’ compensation judge did not grant Devillier’s request for reimbursement.

lain the instant appeal, Mr. Authement has designated the following assignments of error:

1. The [workers’ compensation judge] committed manifest error in finding that claimant violated La.R.S. 23:1208, and thus forfeiting all of his workers’ compensation benefits.
2. The [workers’ compensation judge] committed manifest error in denying the [claimant’s] request for attorney fees.

Devillier’s answer to the appeal contains a single assignment of error, namely that the workers’ compensation judge committed manifest error in failing to require the claimant to reimburse Devillier for all benefits received. In addition, Devillier argues that the instant appeal on behalf of the claimant is frivolous.

Discussion

Violation of La.R.S. 23:1208

Mr. Authement contends that the workers’ compensation judge committed manifest error in her determination that he had committed fraud for the purpose of receiving workers’ compensation benefits in violation of La.R.S. 23:1208. He argues that the evidence produced at the disputed-claim hearing shows that he did not intentionally make false or misleading statements to the insurance adjuster or to anyone else. He claims that, as an unsophisticated person with an eighth-grade education, he did not comprehend fully that when he was asked about “prior back injuries,” the question encompassed any and all problems that he had experienced with his back before the accident at Devil-lier. He asserts that his misstatements were not illustrative of the type of fraudulent activity contemplated by La.R.S. 23:1208. In his appeal, Mr. Authement prays for reinstatement of benefits from the date of their termination, with legal interest and attorney fees.

[4Pursuant to the Louisiana Supreme Court’s decision in Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, appellate courts are to review factual determinations made by workers’ compensation judges under the manifest error — clearly wrong standard. Furthermore, the supreme court has consistently held that when a trial court’s findings of fact are based on determinations as to witnesses’ credibility, the manifest error — clearly wrong standard of review dictates that appellate courts should not disturb a workers’ compensation judge’s “reasonable evaluations of credibility and reasonable inferences of fact ... where conflict exists in the testimony.” Smith, 633 So.2d 129 at 132.

Louisiana Revised Statutes 23:1208 provides, in pertinent part:

A. It shall be 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.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The Louisiana Supreme Court has interpreted La.R.S. 23:1208 as providing for the forfeiture of workers’ compensation benefits when a claimant (1) makes a false statement or representation; (2) that statement or representation is willfully made; and (3) the false statement or representation is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Const. Co., 94-2708 (La.9/5/95), 660 So.2d 7.

In her written reasons for judgment, the workers’ compensation judge outlined her findings of fact as follows:

IfiCIaimant testified that he did not disclose prior back problems because he did not miss any work from the previous injuries/illnesses. This information was incorrect. Claimant’s comments were not inadvertent, he did not appear to be forgetful, and claimant simply did not provide accurate information.

The workers’ compensation judge did not list any other factual findings as contributing to her decision that Mr. Authement had violated La.R.S. 23:1208, thereby forfeiting workers’ compensation benefits.

Mr. Authement urges this court to reverse the workers’ compensation judge’s determination that he violated La.R.S. 23:1208, citing Palmer v. Schooner Petroleum Services, 02-397 (La.App. 3 Cir. 12/27/02), 834 So.2d 642, writ denied, 841 So.2d 802 (La.4/21/03), in support of the proposition that his misstatements do not fall within the scope of fraud contemplated by La.R.S. 23:1208. Palmer is distinguishable from the matter on appeal herein. In Palmer, an employee claimed disability following a work-related injury, and the employer surreptitiously videotaped him engaged in certain activities which tended to show that he was not completely disabled. This court held that the variance between the employee’s testimony as to the things which he could do and those activities shown on the videotapes was not the type of fraud envisioned by La.R.S. 23:1208. Palmer, 834 So.2d at 649. However, in the case before us, the dispute does not focus on misstatements as to the claimant’s present capabilities; instead, the crux of this matter is whether he made false statements regarding past injuries, which is a type of fraud contemplated by La.R.S. 23:1208. See, e.g., KLLM, Inc. v. Reed, 00-295 (La.App. 3 Cir. 10/11/00), 771 So.2d 728.

Mr. Authement further argues that because he has an eighth-grade education and is unsophisticated, he was confused as to what constituted a “prior injury” for |fipurposes of the workers’ compensation questionnaires and the insurance adjuster’s inquiries. He directs this court’s attention to Fuselier v. Kaough & Associates, 00-1750 (La.App. 3 Cir. 5/2/01), 784 So.2d 830, and Murphy v. Brookshire Grocery Co., 02-808 (La.App. 3 Cir. 12/11/02), 832 So.2d 1157, in which employers challenged employees’ statements regarding prior injuries as fraudulent in light of their actual medical histories. However, we note that in Fuselier, the employee’s past and on-the-job injuries were to different parts of his body, and in Murphy, the employee had always been forthcoming about having been in an accident, and the workers’ compensation judge found her a credible witness.

When we review the record and the judgment pursuant to the manifest error— clearly wrong standard set forth in Smith v. Louisiana Dept. of Corrections, we find that the evidence reasonably supports the workers’ compensation judge’s determination that the claimant made false statements for the purpose of obtaining workers’ compensation benefits in violation of La.R.S. 23:1208.

Mr. Authement argues on appeal that his credibility is not an issue for consideration at trial because Devillier’s insurance adjuster conceded that he had been injured on the job and that he was disabled as a result. Therefore, he claims, his misstatements about his prior injuries have no bearing on whether or not he should receive workers’ compensation benefits.

An examination of the record in the instant matter reveals that on the Second Injury Fund questionnaire provided by the insurance adjuster, Mr. Authement marked “no” next to the box asking, “Have you ever injured or had trouble with your back?” The record also reflects that the claimant read and signed a document informing him that false statements made for the purpose of obtaining workers’ compensation |7benefits will result in a forfeiture of those benefits. Ms. Linda Blount, the adjuster for Devillier’s workers’ compensation insurer, testified at the disputed-claim hearing that she had conducted two recorded interviews with Mr. Authement and that she had asked him several times and in several different ways whether he had experienced back problems of any kind before he was injured on the job, and each time, he responded in the negative. However, Mr. Authement testified at trial that he had, in fact, suffered prior back injuries. At the disputed-claim hearing on the matter, -he explained that on several occasions, he had gone to the emergency room, complaining of severe back pain that radiated into his legs, most of which occurred in the year prior to his on-the-job accident. The record shows that Mr. Authement’s back had been injured in the accident with Cameron Offshore that produced the lawsuit; in August of 1999, he had injured his back in a boating accident and complained to emergency room staff of the same sort of pain as in the present incident; in April, 1999, he had injured his back while attempting to lift a lawnmower. The record likewise shows that the pain stemming from his August 1999 boating accident was so severe that he missed nearly two months of work as a result.

In his deposition, Mr. Authement stated that he had not told anyone of his prior back problems because he did not think that a pulled muscle or back strain constituted an injury. However, the medical records obtained by the insurance adjuster show that in the months before Mr. Authement was injured on the job, he had visited local emergency rooms on several occasions complaining of the same type of lower back pain of which he complained after this accident. Interestingly, the doctors’ forms list “disc disease” in the spaces provided for patient medical history. Mr. Authement claims in his testimony that he was unaware that he had been diagnosed with disc Isdisease, but Plaintiffs Exhibit 14, the deposition of Dr. Primeaux, indicates that the doctor had discussed this diagnosis with him on September 10, 1999, and the fact that this diagnosis appeared in his patient history before the occurrence of the accident herein could have factored into the workers’ compensation judge’s determination.

The workers’ compensation judge’s written reasons indicate that the claimant’s credibility was a consideration in the conclusion that he had committed fraud in violation of La.R.S. 23:1208. Based on a thorough review of the record, we do not find that the workers’ compensation judge committed manifest error or was clearly wrong in her determination. She was allowed to view Mr. Authement in person and to hear his responses to questions posed by both his and Devillier’s attorneys. She had access to his prior statements and medical records that had been admitted into evidence. The record evinces discrepancies between Mr. Authement’s medical records, which indicate that he has sustained injuries similar to the instant matter, and his answers to the insurance adjuster. The workers’ compensation judge could have determined that even without a high-school education, Mr. Authement was able to understand the object of the question when he was asked about past back problems. The workers’ compensation judge could have found that Mr. Authement was able to deduce that these past problems were, in fact, “injuries,” which could have led her to determine that a forfeiture of benefits was justified. This assignment is without merit.

Attorney’s Fees

The claimant argues that the workers’ compensation judge erred in denying his request for attorney’s fees due to Devillier’s arbitrary and capricious denial of workers’ compensation benefits. However, this court has held that after La.R.S. 23:1208 has been found to apply and benefits have been forfeited, any remaining ^controversy as to arbitrary and capricious denial of benefits is moot. See Gardner v. Nabors Offshore Corp., 01-0773 (La.App. 3 Cir. 11/21/01), 800 So.2d 412, citing KLLM, Inc., v. Reed, 771 So.2d 728. Therefore, we do not discuss this assignment of error.

Reimbursement

Devillier prays for a reversal of the workers’ compensation judge’s denial of reimbursement. Devillier’s argument is predicated upon La.R.S. 23:1208(D), which provides as follows:

In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.

In Rhone v. Boh Bros., 01-0270, pp. 6-7 (La.App. 4 Cir. 12/12/01), 804 So.2d 764, 768, the fourth circuit interpreted the presence of the permissive “may” in La. R.S. 23:1208(D), instead of the mandatory “shall,” as an indication that “the awarding of civil penalties [i.e., reimbursement] under these circumstances lies within the discretion of the hearing judge.” Mr. Authement has not worked since May 2, 2000, the day of his accident. Consequently, he has had no income from which he might have paid his medical expenses himself instead of having his employer’s workers’ compensation insurer pay for them. We cannot say that the workers’ compensation judge abused her discretion in denying Devillier’s request for reimbursement of benefits that it paid on Mr. Authement’s behalf. This assignment is without merit.

\inFrivolous Appeal

Finally, Devillier prays that Mr. Authement be cast with costs and attorney fees for filing a frivolous appeal pursuant to La.Code Civ.P. art. 2164. This article provides as follows:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

It is well-settled that appeals are favored in Louisiana. Ray v. Leatherman, 96-542 (La.App. 3 Cir. 10/9/96), 688 So.2d 1133, writ denied, 96-2709 (La.1/6/97), 685 So.2d 123, citing Hampton v. Greenfield, 618 So.2d 859 (La.1993). Because La.Code Civ.P. art. 2164 is penal in nature, it is to be strictly construed. Leatherman, 688 So.2d 1133. Consequently, damages will be awarded only in those instances in which the appeal is clearly and unquestionably frivolous. Id., citing Hampton, 618 So.2d 859. More than a merely unsuccessful argument is required for an appellee to recover. Hawkins v. City of Jennings, 97-1291 (La.App. 3 Cir. 3/6/98), 709 So.2d 292. If it is apparent that counsel for the appellant does not seriously advocate the position taken or if the appeal was filed solely for dilatory purposes, then damages for frivolous appeal are appropriate. Gallien v. Winn-Dixie, 96-832 (La.App. 3 Cir. 12/11/96), 685 So.2d 531, citing Hampton v. Greenfield, 618 So.2d 859 (La.1993), Doe v. Roman Catholic Church, 94-1476 (La.App. 3 Cir. 5/3/95), 656 So.2d 5, writ denied, 95-2076 (La.11/13/95), 662 So.2d 478. Nevertheless, if even the slightest justification exists for the appeal, damages will not be awarded even if the appellant does not prevail. Id.

Inin the instant matter, damages for frivolous appeal are not appropriate. Neither the record nor the briefs indicate that counsel for Mr. Authement does not seriously advocate the position taken. It is likewise evident that this appeal was not filed as a dilatory tactic in that Mr. Authement would have nothing to gain by delaying a judgment as to benefits that Devillier terminated in 2000. Thus, we deny Devillier’s request for damages for frivolous appeal.

DECREE

For the foregoing reasons, the judgment forfeiting the appellant’s workers’ compensation benefits and denying the appellee’s request for reimbursement is affirmed. All costs of this proceeding are assigned equally to the claimant, Anthony J. Authement, and the employer, Blane Devillier Trucking, Inc.

AFFIRMED.


author: |, DOUCET, Chief Judge.

text:
    Sidney ANDRUS v. CROWLEY LAUNDRY & DRY CLEANERS.
    No. 03-571.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.
    Michael B. Miller, Miller & Miller, Crowley, LA, for Plaintiff/Appellant, Sidney Andrus.
    John W. Penny Jr., Penny & Hardy, Lafayette, LA, for Defendant/Appellee, Crowley Laundry & Dry Cleaning, Inc.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   |, DOUCET, Chief Judge.

Claimant, Sidney Andrus, appeals a judgment of an Office of Workers’ Compensation (OWC) judge denying his claim for benefits during the disputed period of time (between November 29, 2000 and August 14, 2001), but granting Claimant the right to be treated by an orthopaedist of his own choosing, at Defendant’s, Crowley Laundry and Dry Cleaners, Inc.’s, expense. We reverse the judgment of the OWC and render judgment in favor of Claimant as set out below.

DISCUSSION OF THE RECORD

Both parties agree that Claimant had the distal portion of his right ring finger amputated in a work-related accident on May 4, 2000. Claimant was working at Crowley Laundry & Dry Cleaners at the time of the accident. Claimant also worked a' second job as a porter at the Rice Palace in Crowley. The injury to his finger was treated at the emergency room of American Legion Hospital by Dr. Michael Holland. Subsequently, on July 7, 2000, Dr. Holland performed an amputation-revision of Claimant’s finger tip. Claimant continued to see Dr. Holland through November 29, 2000, complaining of “finger pain and a cold hand.” Noting that Claimant’s revision “wound healed beautifully,” Dr. Holland discharged Claimant from his care at that time. According to Dr. Holland’s records from Claimant’s November 29th visit, Claimant had reached maximum medical improvement on August 17, 2000, and was released to go back to work at that time. The records also indicate that Claimant was “working full-time at the Rice Palace and doing fine.” Based upon the report of November 29, 2000, Defendant terminated Claimant’s compensation benefits effective that date.

| ¡.An affidavit from Jo Ann S. Broussard, the manager of the Rice Palace, established that Mr. Andrus had worked 517.09 hours between August 13 and October 30, 2000, when he was terminated for nonperformance.

Following discharge by Dr. Holland, Claimant filed a claim with the OWC for continued weekly benefits. He also filed a Motion and Order to Provide Medical Treatment, in which he sought treatment from another orthopaedist of his choosing. Claimant’s case was assigned to OWC Judge Constance Abraham-Handy, who ordered an independent medical examination (IME) by Dr. Gary L. Porubsky, and reserved Claimant’s right to reargue that portion of his motion seeking treatment from another orthopaedist of his choice.

The IME was performed on February 12, 2001. Dr. Porubsky’s report of the IME is equivocal as to Claimant’s ability to work stating (emphasis ours):

He should work on desensitization of the tip of the digit. He may benefit from utilizing a transdermal gel to deliver a nonsteroidal anti-inflammatory agent topically. I would place him on a nonst-eroidal anti-inflammatory agent at this time. I would instruct the patient to return to gainful employment and wear a loose fitting glove to protect the tip of the digit. Hopefully by utilizing the transdermal gel and a nonsteroidal anti-inflammatory agent he would tolerate wearing gloves and returning to gainful employment.

Following Dr. Porubsky’s examination, on May 21, 2001, Claimant refiled his motion seeking treatment from another ortho-paedist of his choice. That motion was heard before OWC Judge Abraham-Handy on July 19, 2001. She denied Claimant’s motion on July 26, 2001, finding that Dr. Holland was Claimant’s “de facto” orthopaedic choice and limiting Claimant to orthopaedic treatment from either Dr. Holland or Dr. Porubsky (a writ on that ruling was taken to this court and denied).

Dr. Porubsky re-evaluated Claimant on August 14, 2001. His report of that examination reads, in part as follows:

|SI plan to place him in a formal rehabilitative program in Crowley to work on active and passive range of motion of the MP and interphalangeal joints of the ring digit as well as desensitization and strengthening exercises. He was given a prescription to obtain a gel for the transmission of a non-steroidal anti-inflammatory agent topically.
He was tentatively instructed to be seen in follow-up by myself in approximately two weeks’ time.
As discussed with him, other recommendations would include a third operative procedure to transect the radial and ulnar digital nerve further proximally, although as discussed with him, there is still the possibility that he could have persistent discomfort in the ring digit even if this procedure was performed.

Following receipt of Dr. Porubsky’s report of Claimant’s August 14, 2001 examination, Defendant reinstated Claimant’s benefits effective that date. Claimant then filed a motion seeking to have the benefits retroactively reinstated to November 2000, when they were originally terminated. A hearing on that motion was held before OWC Judge Abraham-Handy on January 11, 2002, and taken under advisement. Judge Abraham-Handy dictated her decision into the record on June 28, 2002, finding Claimant was entitled to have his benefits retroactively reinstated to November 29, 2000. However, that decision was never reduced to a formal written judgment and there is no indication in the record that either counsel was informed of her decision. Judge Abraham-Handy died August 6, 2002.

Following her death, OWC Judge John Grout was appointed “to preside over all matters pending prior to Judge Handy’s death.” After reviewing the evidence and testimony, Judge Grout ruled that Claimant was not disabled between November 29, 2000 and August 14, 2000, and thus, was not entitled to weekly indemnity benefits during that period of time. He further ruled that Claimant had not “been treated by an orthopaedist of his own choosing,” and thus, was entitled “to be treated by an orthopaedist of his choice at the employer’s expense.”

UClaimant, Sidney Andrus, appealed, arguing that the judgment by Judge Grout should be set aside and the unsigned judgment of Judge Abraham-Handy be made the judgment of the OWC.

DISCUSSION OF THE LAW

We find no specific provision in the Office of Workers’ Compensation Hearing Rules which covers a situation as in the case sub judice. Provisions for decisions after the death, resignation, removal from office or the expiration of a term in office are covered in La.R.S. 13:4209 (emphasis ours) which states:

A. In all cases heard and taken under advisement of the district judge or judges of the city courts, if the judge before whom a case is tried dies, resigns, or is removed from office, or if his term expires before rendering his judgment in the case, his successor in office shall decide the case from the evidence in the record, if all' of the testimony is in writing. If it is a case in which the testimony has not been reduced to writing, the succeeding judge shall decide the case from a statement of the facts, if one is found in the record, or if the parties to the suit agree upon a statement of facts. If the testimony is not in the record, and there is no statement of facts, the case shall be tried de novo.
B. (1) In cases which are heard and in which judgment is rendered, but not signed, whether the case was taken under advisement or not, if the judge who rendered the judgment dies, resigns, or is removed from office, or if his term expires before signing judgment in the case, his successor in office shall have the authority to sign a judgment which conforms with the judgment rendered.
(2) If a prior judge has stated an affirmative intent to sign a judgment and failed to do so for whatever reason, the successor judge is empowered to sign the judgment.

The applicability of this statute to OWC proceedings was discussed by our brethren of the first circuit in Bass v. National Maintenance Corp., 95-0367, pp. 4-6 (La.App. 1 Cir. 12/15/95), 665 So.2d 782, 784-85 (footnote omitted):

LSA-R.S. 23:1310.5(A) provides:
(1) Insofar as may be possible, all the evidence pertaining to each case, except as to noncontested matters, |Kshall be heard by the hearing officer initially assigned to the case. Upon the completion of such hearing or hearings, the hearing officer shall make such order, decision, or award as is proper, just, and equitable in the matter.
(2) Either party feeling aggrieved by such order, decision, or award shall, after receipt by certified mail of the order, decision, or award, have the right to take an appeal to the circuit court of appeal for the judicial district elected by the claimant upon the filing of the petition. A copy of the petition for appeal shall be filed with the director who, upon receipt will prepare the record for the appellate court. (Emphasis added.)
In light of this statutory provision, there is an implication that the case cannot be decided by any hearing officer other than “the” one who heard the case and only that hearing officer is authorized to enter such order, decision, or award as is proper, just, and equitable in the matter. See Darensbourg v. The Great Atlantic and Pacific Tea Company, Inc., 94-0761, p. 3 (La.App. 1st Cir.11/9/95), 665 So.2d 35, 37; Ledoux v. Southern Farm Bureau Casualty Insurance Company, 337 So.2d 906, 908 (La.App. 3rd Cir.1976). As previously observed, the present case was heard and decided by Rayford. Subsequently, Moses-Laramore signed the judgment. Since the judgment was not signed by the hearing officer who heard and decided the case, we must consider whether the law authorizes a successor hearing officer to sign the judgment in this matter.
LSA-R.S. 13:4209(B) authorizes a successor judge to sign a judgment which conforms with the judgment rendered when the judge who tried the case and rendered a decision dies, resigns or is removed from office, or if his term expires before a judgment is signed in the case. The applicability of this statute is specifically limited to successor judges of the district courts and city courts of this state and by its terms is inapplicable to OWC hearing officers who are not members of the judiciary. LSA-R.S. 13:4209(A); see LSA-R.S. 23:1021(12) and 1310.1.
Since January 1, 1990, the administrative hearing officers are vested with original, exclusive jurisdiction over claims or disputes arising out of the workers’ compensation [95-0367 La.App. 1 Cir. 5] law. LSA-R.S. 23:1310.3(E); see LSA-Const. art. V, § 16(A). The hearing officer’s role in the administration of those claims or disputes is defined in the Workers’ Compensation Act. The hearing officer is not bound by the technical rules of evidence or procedure other than as provided for in the workers’ compensation law. LSA-R.S. 23:1317(A). In addition to those procedures set forth by statute, the director of the OWC has | fiauthority to adopt and promulgate reasonable rules and regulations, including the rules of procedure before the hearing officers, according to the procedures established by the Administrative Procedure Act. LSA R.S. 23:1291(B)(13) and 1310.1(C). All rules and regulations, properly approved and promulgated under the Administrative Procedure Act, shall be consistent with the workers’ compensation law and shall be binding in the administration of that law. LSA-R.S. 23:1310.1(0.
Chapter 10 of Title 23 of the Louisiana Revised Statutes does not contain a provision similar to LSA-R.S. 13:4209, nor does it directly make the provisions of LSA-R.S. 13:4209 applicable to the hearing officer system in the OWC. In the absence of any such provision, a successor hearing officer is without authority to render a decision and/or sign an order, decision, or award if he or she was not the one who heard the matter. See LSA-R.S. 23:1310.5(A). However, pursuant to the authorization provided in LSA-R.S. 23:1291(B)(13) and 1310.1(C), the director of the OWC has promulgated hearing officer rules which govern the practice and procedure in workers’ compensation proceedings. See LAC 40:I.2101-2173[now LAC 40.-15501-6627] (“Hearing Officer Rules”). Pertinent to the determination of the validity of the judgment signed by the successor hearing officer is Hearing Officer Rule 2105[now § 6601 ] which provides:
Any matter of practice or procedure not delineated herein and not in conflict with either the Workers’ Compensation Act or these rules will be guided by practice and procedure followed in the district courts of this state as well as the practice and procedures provided for in the Louisiana Code of Civil Procedure.
The annotation following this rule indicates that it was promulgated in accordance with LSA-R.S. 23:1310.1.
Since the authority of a successor hearing officer has not been delineated by the workers’ compensation law or Hearing Officer Rules, this issue will be governed by the practice and procedure applicable to the district courts of this state which is found in LSA-R.S. 13:4209. Furthermore, this court notes that Hearing Officer Rule 2159 [we find no comparable section in the new rules adopted in 1999] implicitly assumes the applicability of the principles of LSA-R.S. 13:4209 to the workers’ compensation proceeding in that it specifically provides for the submission of a case when a successor hearing officer is involved.

l7We, as did our brethren of the first circuit, find La.R.S. 13:4209 applicable to the situation before us.

Insomuch as we have found La.R.S. 13:4209 applicable to the case sub judice, we now look to that statute for resolution of the issue raised by appellant.

Louisiana Revised Statute 13:4209 was amended by Acts 1993, No. 1009, § 1. The prior statute, with minor modifications, was designated subsection “A” in the amended version and subsection “B” was added. Under the prior statute a judge’s successor in office decided any case in which a final judgment had not been rendered and signed. However, the amended statute, which is now in effect, added subsection “B” which provides (emphasis added):

B. (1) In cases which are heard and in which judgment is rendered, but not signed, whether the case was taken un der advisement or not, if the judge who rendered the judgment dies, resigns, or is removed from office, or if his term expires before signing judgment in the case, his successor in office shall have the authority to sign a judgment which conforms with the judgment rendered.
(2) If a prior judge has stated an affirmative intent to sign a judgment and failed to do so for whatever reason, the successor judge is empowered to sign the judgment.

According to the general rules of statutory construction as reviewed for us by our supreme court in Palmer v. Louisiana State Board of Elementary and Secondary Education, 02-2043, pp. 4-6 (La.4/9/03), 842 So.2d 363, 367-68:

Principles of judicial interpretation of statutes are designed to ascertain and enforce the intent of the legislature in enacting the statute. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808 So.2d 294[c]iting Stogner v. Stogner, 98-3044, p. 5 (La.7/7/99), 739 So.2d 762, 766; State v. Piazza, 596 So.2d 817, 819 (La.1992). The fundamental question in all cases of statutory construction is legislative intent and the reasons that prompted the legislature to enact the law. Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1128. When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written, with no further inquiry made in search of the legislative intent. La. C.C. art. 9; La. R.S. |sl:4. However, when a law is susceptible of different meanings, “it must be interpreted as having the meaning that best conforms to the purpose of the law.” La. C.C. art. 10.
The meaning and intent of a law is determined by considering the law in its entirety and all other laws concerning the same subject matter and construing the provision in a manner that is consistent with the express terms of the statute and with the obvious intent of the lawmaker in enacting it. Bond, supra at 302; Boyter, supra at 1129; Stogner, supra at 766. The statute must therefore be applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intention the legislature had in enacting it. Boyter, 756 at 1129. Courts should give effect to all parts of a statute and should not adopt a statutory construction that makes any part superfluous or meaningless, if that result can be avoided. Langlois v. East Baton Rouge Parish Sch. Bd., 99-2007 (La.5/16/00), 761 So.2d 504, 507; Boyter, 756 at 1129. Furthermore, “the object of the court in construing a statute is to ascertain the legislative intent and, where a literal interpretation would produce absurd consequences, the letter must give way to the spirit of the law and the statute construed so as to produce a reasonable result.” First Nat’l Bank of Boston v. Beckwith Mach. Co., 94-2065, p. 8 (La.2/20/95), 650 So.2d 1148, 1153 (quoting Smith v. Flournoy, 238 La. 432, 115 So.2d 809, 814 (1959)).
The starting point for the interpretation of any statute is the language of the statute itself. Cat’s Meow, Inc. v. City of New Orleans, 98-0601, p. 15 (La.10/20/98), 720 So.2d 1186, 1198; Touchard v. Williams, 617 So.2d 885 (La.1993).

According to Black’s Law Dictionary, Fifth Edition, a “[jjudgment is ‘rendered’ when [a] decision is officially announced, either orally in open court or by memorandum filed with [the] clerk.” In the instant case Judge Abraham-Handy rendered her decision orally into the record on June 28, 2002. Considering the fact that Judge Abraham-Handy rendered a decision before she died, the wording of subsection “B” of La.R.S. 18:4209, and the rule of statutory construction which mandates that we give effect to all parts of a statute and refrain from any interpretation that would make any part of the statute superfluous or meaningless, we find that Judge Grout should have signed a judgment which conformed with the judgment rendered by Judge Abraham-Handy.

| ^Accordingly, for the reasons stated above, we reverse the judgment read, rendered and signed by OWC Judge John Grout, Jr. on February 7, 2003, and render judgment awarding Claimant, Sidney An-drus, weekly compensation benefits for the period from November 29, 2000, through August 14, 2001, when his benefits were voluntarily reinstated. All costs of this appeal are assessed against Defendants Appellee, Crowley Laundry & Dry Cleaning, Inc.

REVERSED AND RENDERED.

      . LAC 40:I.6601-"Unless otherwise provided for in these rules, any practice or procedure not in conflict with either the Workers' Compensation Act or these rules will be governed by practice and procedure provided for in the Louisiana Code of Civil Procedure.”