author: AMY, Judge.

text:
    Cheryl LAMBERT v. BROOKSHIRE GROCERY COMPANY.
    No. 06-1001.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 2006.

      Charles J. Foret, Stacy D. Saltzman, Briney & Foret, Lafayette, LA, for Defendant/Appellant, Brookshire Grocery Company.

      Maria A. Losavio, Losavio Law Office, LLC, Alexandria, LA, for Plaintiff/Appel-lee, Cheryl Lambert.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

bln this workers’ compensation dispute, the claimant-employee was injured while in the course and scope of her employment •with the defendant grocery store. She filed a disputed claim for workers’ compensation to recover temporary total disability benefits and penalties and/or attorney’s fees for the defendant’s failure to pay and/or timely authorize certain medical procedures. The workers’ compensation judge found that the claimant proved that she was temporarily totally disabled and that she was entitled to indemnity benefits. The workers’ compensation judge also ordered that the defendant pay multiple penalties, attorney’s fees, and court costs. The defendant appeals, asserting several assignments of error. For the following reasons, we affirm as amended.

Factual and Procedural Background

The claimant, Sheryl Lambert (Lambert) , was employed by the defendant, Brookshire Grocery Company (Brook-shire), for eight years as a meat wrapper. According to Lambert, on July 21, 1998, she was loading cases of meat onto a cart when she “felt a snap and burning sensation.” Lambert stated that she sustained injuries to her upper neck and left shoulder. She testified that she underwent a neck surgery in May 1999, but because there was non-union at the C6-7 level, a second surgery was performed in May 2001. Lambert stated that neither of these surgeries was completely successful in alleviating her pain. She testified that not only did her previous symptoms return, she also experienced new problems, which prompted her to seek treatment with several physicians in different medical fields.

| ¡.Lambert testified that in the years following her accident, she returned to work on three occasions with her first job being in the seafood department. She stated that she stopped working this position because her second surgery was imminent. Her next position consisted of stocking the lunch meat case. Lambert testified that this work aggravated her arms, so she was removed from that position. Lastly, according to Lambert, she was a cashier from December 2002 to June 2003. Lambert testified that working as a cashier “aggravate[d] the muscle in the upper part of my neck on my left side, my arm — the pain from the repetitious going back and forth scanning the groceries.” She explained that because the utility clerks were not always available to assist her in lifting heavy objects, she had to lift them and this caused her considerable pain. Lambert also testified that standing for two or three hours at a time caused her back pain.

Lambert testified that she quit working as a cashier in June 2003 “[bjecause the pain had just gotten so bad that I couldn’t stand it anymore. I just couldn’t deal with it. I would go home in the evenings. I couldn’t hardly lift my arms after working. I just — I couldn’t do it. I just — I couldn’t deal with the pain .anymore.” She further testified that although Brookshire repeatedly offered her an express cashier position from June 2003 to October 2005, she has not worked in any capacity since June 2003. Lambert, stated’that despite her disability, Brookshire terminated her indemnity benefits on June 21, 2003.

The record indicates that on August 19, 2003, Lambert filed a Disputed Claim for Compensation Form on several grounds including, but not limited to: “Extent and duration of disability[;] Non-Payment,s incorrect payment and/or untimely payment of indemnity benefits!;] Failure to provide authorization for medical treatment!;] Non-payment and/or untimely payment of medical and travel related expenses!;] The arbitrary withholding of consent for recommended treatment!; and] Penalties and attorney’s fees.”

Following a trial, the workers’ compensation judge issued an order, in which he found that “Lambert is temporary and totally disabled since June 21, 2003 through present” and that indemnity benefits were to be reinstated “at the rate of $328.60 per week with interest from date due for the period of June 22, 2003 through present and continuing until plaintiff, Sheryl Lambert, is no longer disabled!.]”

The workers’ compensation judge ordered Brookshire to authorize a muscle stimulator and to pay R.S. Medical, the provider of the muscle stimulator. It was also ordered to pay a mileage shortage in the amount of $1.08, $12,000.00 in attorney’s fees, and $1,975.40 in court costs. Furthermore, Brookshire was assessed with multiple penalties: (1) a $2,000.00 penalty for the failure to authorize the muscle stimulator; (2) a $2,000.00 penalty for the failure to pay and/or timely pay R.S. Medical; (3) a $2,000.00 penalty for failure to timely pay Christus St. Frances Cabrini Hospital’s bill; (4) a $2,000.00 penalty for failure to timely authorize medical treatment by Dr. Bradley Bartholomew; (5) a $2,000.00 penalty for failure to timely authorize behavioral pain management; (6) a $2,000.00 penalty for failure to timely authorize psychophysiologie therapy; (7) a $2,000.00 penalty for failure to timely authorize a selective nerve block; and (8) a $2,000.00 penalty for failure to pay the correct mileage reimbursement.

Brookshire appeals the workers’ compensation judge’s finding that Lambert is temporarily totally disabled. It also appeals the finding that it acted arbitrary and capricious in terminating Lambert’s benefits and that its failure to reinstate benefits |4was unreasonable. Furthermore, Brookshire questions the awarding of multiple penalties for failure to (timely) authorize medical treatment and for failure to (timely) pay medical expenses. Lastly, Brookshire questions the attorney’s fees and court costs awarded.

Discussion

Disability

Brookshire argues that the workers’ compensation judge “erred in ruling Sheryl Lambert sustained her burden of proving by a preponderance of the evidence that she is temporarily totally disabled and has been since June [ ] 2003, as a result of a work accident and is therefore entitled to temporary total disability benefits.” It asserts that Lambert’s treating neurosurgeon, Dr. Bartholomew, indicated that she “was able to work as a cashier with restrictions of ‘no work activity with arms above shoulders and sedentary to light duty lifting restrictions.’ ” Nevertheless, Brook-shire alleges Lambert declined its offers to return to work in modified positions.

Louisiana Revised Statutes 23:1221(1) provides in pertinent part:

(c) For purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (l)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

The trial court’s determination that the employee has or has-not met her burden of proof will not be overturned absent manifest error. Williams v. Ravare Masonry Co., 00-329 (La.App. 3 Cir. 10/4/00), 774 So.2d 254, writ denied, 01-377 (La.3/30/01), 788 So.2d 1194. Pursuant to La.R.S. 23:1221(1)(c), “the employeejclaim-ant5 must show, by clear and convincing evidence, that [he or] she is physically unable to engage in any kind of employment.” Alexander v. Autozone, Inc., 04-871, p. 6 (La.App. 3 Cir. 12/8/04), 889 So.2d 366, 371. Clear and convincing proof requires “ ‘objective medical evidence of [the] disabling condition’ causing his ‘inability to engage in any employment.’ Thus, the claimant must provide objective, expert testimony as to [his or her] medical condition, symptoms, pain, and treatment, in addition to personal testimony, in order to fulfill this standard.” Id. at 372.

The record indicates that Lambert visited several physicians for treatment of her injuries. Lambert was first treated by Dr. G. Andrew Wilson, a neurosurgeon, for neck and shoulder pain. According to the exhibits submitted into evidence, Dr. Wilson diagnosed Lambert as having a herniated disc in her neck and recommended that she have surgery. Lambert testified that she went to Dr. James Ricciardi, an orthopedic surgeon, because she “wanted a second opinion before [she] had the first surgery.” Dr. Ricciardi agreed with Dr. Wilson’s recommendation, and in May 1999, he performed anterior cervical surgery on the C5-6 and C6-7 levels of Lambert’s neck.

Lambert testified that after the surgery, she had pain in her neck that radiated into her arm and hand. When she told Dr. Ricciardi of her complaints, he took x-rays and performed an MRI, after which he opined that there was nonunion at the C6-7 level. Because Lambert’s symptoms became progressively worse, she underwent a second surgery with Dr. Riciarrdi in May 2001 for a revision of the pseudoarthrosis at C6-7. According to Lambert’s testimony, after the second surgery, not only did her previous symptoms return, but she also “started having severe memory problems that — a funny — like feeling would come over me that would make me want to black out, cause me to start trembling.”

|fiIn a letter written to Brookshire dated October 16, 2001, Dr. Ricciardi stated that although Lambert had new complaints, “most of her neck pain was gone.” Dr. Ricciardi indicated that if he released her to work, he “would restrict her from overhead lifting. She would do best at a light duty job.” In January 2002, Lambert saw Dr. Gonzalo Hidalgo for a neurological consultation. According to Dr. Hidalgo’s records, he opined that Lambert had failed back syndrome at the cervical spine level. Because an EMG nerve conduction study performed on the left upper extremity came back normal, he discharged her and referred her to another physician for pain management.

Lambert subsequently returned to Dr. Hidalgo’s care. According to a report dated January 27, 2003, Dr. Hidalgo noted that “she is working part time and she has significant numbness, tingling and weakness in the left upper extremity. It appears that it is getting worse over time. She also complains of diffuse muscular pain, especially in the morning.” He prescribed a muscle relaxer for the pain and ordered an EMG/NCS. Dr. Hidalgo also saw Lambert on February 24, 2003 where he noted that she “continues to complain of left upper extremity intermittent weakness and diffuse pain. This is possibly related to her ‘new job’.” He prescribed more medication.

Dr. Hidalgo’s records show that Lambert was examined the next day. In his report, he mentioned that she returned to work as a cashier and that she “started complaining of weakness, especially involving the left upper extremity.” Another medication was prescribed, and Dr. Hidal-go indicated that she “will be off of work until evaluation of her problems.” Upon subsequent visits, Dr. Hidalgo opined that Lambert’s “condition has no clear neurological component and she needs to be followed by a rheumatologist.” Lambert was referred to Dr. Mohammad Shbeeb with |7a possible diagnosis of fibromyalgia. After an examination, Dr. Shbeeb concurred with this diagnosis.

Lambert was then referred to Dr. Michael Dole for pain management. Dr. Dole’s records indicate that he agreed with Dr. Shbeeb’s diagnosis of fibromyalgia. When he examined Lambert on October 7, 2003, Dr. Dole noted that she was in more pain due to her work as a cashier. He diagnosed her as being in a depressed mood with Adjustment Disorder and referred her to Dr. James Quillin, a psychologist.

According to his records, Dr. Quillin first began seeing Lambert in November 2003. His initial diagnosis was probable Mood Disorder (Depression) secondary to medical condition (Chronic Pain Syndrome), Moderate with Somatization. After meeting with Lambert for follow-up visits, he confirmed this diagnosis. Dr. Quillin’s records indicate that in November 2003, he informed Lambert that she would be a good candidate for conservative behavioral pain management. In the following months, Dr. Quillin continued to meet with Lambert, and he stated that she complained of pain, her depression became more severe, and she was struggling with bouts of insomnia.

In January 2004, Dr. Quillin’s plan was to “seek the appropriate insurance authorization to undertake a trial of ten such visits [for psychophysiologic therapy] to see if we can normalize her sleep with medication and also improve her persistent depression with this treatment option.” It was around this time that Lambert began treating with Dr. Bradley Bartholomew, a neurosurgeon, complaining of several ailments, such as neck pain and numbness in the left upper extremity. His notes show that he recommended a myelogram and a post myelogram CT of the cervical spine as well as a muscle stimulator. According to Dr. Bartholomew’s deposition testimony, | she wrote a letter dated March 31, 2004, in which he advised that Lambert “work at sedentary to light duty and no working with arms above shoulders.”

In April 2004, Dr. Quillin diagnosed Lambert with having “moderate to severe nonpsychotic depression with substantial somatization.” In his report dated August 27, 2004, Dr. Quillin stated that Lambert’s “depression is now clearly severe from a clinical standpoint.” He opined that she “is not capable of return to work at this juncture secondary to her severe impairment of psychologic status.”

Although Lambert treated with Dr. Dole on a regular basis, by September 21, 2004, Dr. Dole determined that from a physical standpoint, Lambert’s return to work would be unlikely.

According to Dr. Bartholomew’s records, Lambert had an appointment on June 2, 2005, in which she stated that “the repetitious use of her neck and upper extremities prevents her from working as a cashier.” Dr. Bartholomew testified that during that visit, he told Lambert to consider another surgery. He indicated that when he saw her on October 11, 2005, her condition had worsened in that she had more problems. Furthermore, according to Dr. Bartholomew, on October 10, 2005, he gave Lambert a work excuse restricting work from the date that he recommended surgery, June 2, 2005. He opined that she was unable to work as a cashier.

In examining the evidence before us, specifically Lambert’s testimony and the medical reports from her treating physicians, we find that the record supports the determination that Lambert has proven by clear and convincing evidence that she is physically unable to engage in any kind of employment. The evidence reveals that since July 21, 1998, the date of injury, to December 22, 2005, the date of trial, Lambert has consistently struggled with symptoms attributable to her work-related 13accident. We note that although Lambert attempted to work different positions, most notably, as a cashier, Lambert complained that the pain was so severe that she had to discontinue her employment in June 2008. These complaints are substantiated by the numerous volumes of medical records in which physicians opined that this pain was caused by the cashier position. See Gordon v. Sandersons Farms, 96-1587, p. 8 (La.App. 1 Cir. 5/9/97), 698 So.2d 1279, 1285 (where the employee testified that his pain was “ ‘very constant’ and has prevented him from working since the accident.” The court found that his medical records reflected “consistent complaints of ... pain since the accident” and therefore, the employee was temporarily totally disabled.)

We note that although Dr. Bartholomew informed Brookshire in May 2004 that Lambert could work as a cashier if there was “no work activity with arms above shoulders and sedentary to light duty lifting restrictions!;,]” he stated in his deposition, taken in October 2005, that he “would’ve restricted her from working as a cashier when he first saw her because of pain and irritation.” Recall that Dr. Bartholomew first saw Lambert in March 2004. Furthermore, with regard to other job positions Brookshire alleged that it offered to Lambert, Eddie Crawford, the claims adjuster handling Lambert’s claim, admitted that before October 2005, Brook-shire had not offered Lambert any position other than the cashier position.

Given this evidence, we find that the workers’ compensation judge was not manifestly erroneous in finding that Lambert met her burden of proof with regard to La.R.S. 23:1221(1)(c), finding her temporarily totally disabled, and awarding her temporary total disability benefits.

Furthermore, we find no merit in Brook-shire’s contention that the workers’ compensation judge “erred in finding [it] arbitrary and capricious for the termination l1flof benefits.” In addition to the evidence presented above, the record indicates that from August 9, 1998 to June 21, 2003, Brookshire paid Lambert weekly indemnity benefits. However, once Lambert stopped working in June 2003, those benefits were terminated, despite reports from her treating physicians that she was having trouble working as a cashier. At that time, Brookshire had no evidence to dispute these findings. Further, Brookshire failed to reinstate Lambert’s benefits even though Lambert’s treating physicians opined that she was unable to return to work.

Accordingly, this assignment has no merit.

Penalties

Brookshire contends that the workers’ compensation judge erred in assessing it with multiple penalties and attorney’s fees for the failure to timely authorize medical procedures and for the failure to pay and/or timely pay medical expenses. It claims that “Eddie Crawford approved all requests for medical treatment when received. Any alleged delays in medical treatment were not caused by Brookshire Grocery Company.” Furthermore, Brook-shire argues that “all medical bills related to the alleged work injury were paid by Brookshire Grocery Company when Eddie Crawford received the bill.” In sum, Brookshire asserts that it “acted completely reasonable under the circumstances” and that the “assessment of penalties should be reversed.”

Louisiana Revised Statutes 23:1201(E) states that “[mjedical benefits ... shall be paid within sixty days after the employer or insurer receives written notice thereof.” Louisiana Revised Statutes 23:1201(F) provides:

Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or | nmedical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

Although La.R.S. 23:1201(F) refers to “the failure to provide payment,” we have “consistently applied the sanctions of La. R.S. 23:1201(F) for the failure to authorize a medical treatment or procedure that is subsequently deemed necessary. Thus, the period of time in which the employer or insurer must act is sixty days, as provided in La.R.S. 23:1201(E).” Harbor v. St. Frances Cabrini Hosp., 01-1551, pp. 6-7 (La.App. 3 Cir. 5/15/02), 817 So.2d 1269, 1273, writ denied, 02-1684 (La.10/4/02), 826 So.2d 1125 (citations omitted).

“To avoid the imposition of penalties and attorney fees, the employer and its insurer must provide factual and medical evidence to reasonably controvert a workers’ compensation claim.” Landry v. Furniture Center, 05-643, p. 10 (La.App. 3 Cir. 1/11/06), 920 So.2d 304, 311, writ denied, 06-358 (La.4/28/06), 927 So.2d. 290. Whether or not the employer is cast with attorney fees and penalties is a question of fact that will not be reversed on appeal absent manifest error. Kibodeaux v. Cajun Bag & Supply Co., 99-149 (La.App. 3 Cir. 6/2/99), 742 So.2d 582.

Because Brookshire challenges the assessment of several penalties, we address them individually.

LiMuscle Stimulator

Brookshire argues that the workers’ compensation judge “erred in awarding $2,000.00 in penalties for failure to authorize the muscle stimulator.” It also challenges the $2,000.00 penalty for its alleged “failure to pay and/or timely pay R.S. Medical.”

In his oral ruling, the workers’ compensation judge stated:

The records indicate that a demand was made for the payment of a bill for RS Medical in association with the muscle stimulator that Dr. Bartholomew had recommended. The payment records of the employer indicate that there had been no payment of the bill for this muscle stimulator. Mr. Crawford testified at trial he was not aware that this had ever been denied. The medical records from RS Medical indicates that the stimulator was denied, so I assess a Two Thousand Dollar ($2,000.00) penalty for the failure to pay the medical expense of RS Medical as well as a Two Thousand Dollar ($2,000.00) penalty for the failure to authorize the muscle stimulator.

Dr. Bartholomew’s records show that on March 11, 2004, he recommended that Lambert receive a muscle stimulator. On March 26, 2004, Lambert sent a letter to Brookshire seeking approval of this treatment. On April 27, 2004, R.S. Medical sent Lambert a letter informing her that her insurance company denied authorization for the muscle stimulator. As no reason was given for Brookshire’s failure to authorize the muscle stimulator, we do not find that the workers’ compensation judge was manifestly erroneous in imposing a penalty pursuant to La.R.S. 23:1201(E) and (F). According to'a Health Insurance Claim Form submitted by R.S. Medical, Lambert was treated from March 10, 2004 to April 9, 2004. Lambert submitted into evidence a letter dated May 21, 2004, in which she requested that Brook-shire pay the R.S. Medical bill. We note that the workers’ compensation judge stated that Brookshire did not pay the bill; however, according to Lambert, the bill was paid on November 3, 2004. Based on this evidence, we find no manifest error in the workers’ | ^compensation judge’s determination that the failure to (timely) pay the R.S. Medical bill within sixty days of written notice warranted a penalty pursuant to La.R.S. 23:1201(E) and (F).

This assignment has no merit.

Hospital Bill

Brookshire contests the $2,000.00 penalty “for failure to pay Christus St. Frances Cabrini Hospital’s bill for the date of service of March 17, 2005.”

With regard to this treatment, the workers’ compensation judge stated:

The records indicate in ... “Plaintiff Exhibit 19,” a bill from St. Franc[e]s Cabrini Hospital with a demand letter made on March 30th of 2005 with regard to her visit there in association with headaches she had had since a nerve block. The records of Dr. Quilín and Dr. Dole indicate the complaints that Ms. Lambert had with headaches subsequent to the nerve block. The report of Dr. Quillin is dated March 14th of 2005. The report of Dr. Dole is dated March 23rd of 2005, and the records indicate in “Exhibit 20” that payment was received by the hospital on July 26th of 2005. Further records show the payment was not issued until July 14th of 2005. The testimony of Mr. Crawford was that they needed medical records to verify this. And according to the case law as appropriately cited by Ms. Losavio [plaintiffs counsel] in her Brief, they had 60 days after they received the demand to obtain this information, and the Court finds that there was an inappropriate delay in paying the bill in light of the fact that in Dr. Quillin and Dr. Dole’s report, both of which Crawford said he had received, indicates the treatment was for the headaches associated with the nerve block, and I would assess a Two Thousand Dollar ($2,000.00) penalty.

After reviewing the record, we find that the $2,000.00 penalty is not manifestly erroneous in that Brookshire did not pay the bill within 60 days of receiving written notice. La.R.S. 23:1201(E) and (F). Therefore, this assignment has no merit.

Treatment by Dr. Bartholomew

Brookshire disputes the $2,000.00 penalty for “failure to timely authorize medical treatment by Dr. Bradley Bartholomew.”

In his oral ruling, the workers’ compensation judge remarked:

|,4She also makes a claim for failure to authorize or timely authorize medical treatment with Dr. Bartholomew. She made demands to see Dr. Bartholomew. The entire record was introduced into the — into evidence in this matter. Her claim was filed with the Court on August 19th of 2003. There was a mediation held in December 2003, and she did not see Dr. Bartholomew until March of 2004. The Court concludes that the late — although there’s really no testimony, really, about any authorization to see Dr. Bartholomew. The medical — the mediation records introduced indicate that at the mediation it was agreed that Ms. Lambert could see Dr. Bartholomew, and she saw him [i]n March 2004. This was long after the medication [sic] in December of 2003, and I award a Two Thousand Dollar ($2,000.00) penalty.

Lambert testified that after her accident, she was treated by Dr. Wilson, a neurosurgeon. She further testified that after Dr. Ricciardi performed her first surgery, she attempted to revisit Dr. Wilson, but “he had moved out of state.” Thus, in August 2003, Lambert sent Brookshire a letter seeking authorization for treatment with Dr. Bartholomew. As the approval of Lambert’s treatment with Dr. Bartholomew was not given until the mediation in December 2003, we find that pursuant to La.R.S. 23:1201(E) and (F), the workers’ compensation judge’s imposition of a $2,000.00 penalty was not manifestly erroneous.

This assignment is without merit.

Behavioral Pain Management

According to Brookshire, the workers’ compensation judge “erred in awarding $2,000.00 in penalties for failure to timely authorize behavioral pain management.”

The workers’ compensation judge determined:

She made demands for behavioral pain management as recommended by Dr. Quil-lin. Demands were made on December 16th of 2003, December 29th of 2003, October 8th of 2004, December 17th of 2004 and January 26th of 2005. Apparently, this had been authorized, because the records indicate that she had attended the behavioral pain management program and had done so from January 24, 2005 to April 12th of 2005. Mr. Crawford indicated at trial that he had received the reports of Dr. Quillin. He was well aware that he had recommended and continued to recommend the behavioral pain management program. There was a significant delay in the authorization of this program, and I would assess a Two Thousand Dollar ($2,000.00) penalty.

1 tf;After a review of the record, we find no manifest error in the workers’ compensation judge’s determination as the evidence supports his reasoning.

Accordingly, this assignment has no merit.

Psychophysiologie Therapy

Brookshire also contests the workers’ compensation judge’s award of “$2,000.00 in penalties for failure to timely authorize psychophysiologie therapy for nonpharmacologieal management of insomnia and depression.”

With regard to this treatment, the workers’ compensation judge explained:

Demands were — a demand of several demands were made by Ms. Losavio on behalf of Ms. Lambert for psychophysiological therapy recommended by Dr. Quillin who helped with Ms. Lambert’s depression and sleep problems. Demand was made on February the 3rd of 2004, April 12th of 2004, July 29th of 2004, October 8 of 2004 and October 27th of 2004. The records indicate that she had been approved for a brief trial of psychophysiological therapy. This is contained in the October 15, 2004 reports from Dr. Quillin. This was authorized several months later despite the fact that the employer was not in possession of any contrary psychological or psychiatric record during this pending period of time, and I would assess a Two Thousand Dollar ($2,000.00) penalty.

Upon reviewing the record, we do not find that the workers’ compensation judge was manifestly erroneous in concluding that psychophysiologie therapy was not timely authorized and in assessing a $2,000.00 penalty. Therefore, this assignment is without merit.

Selective Nerve Root Block

In this assignment of error, Brookshire questions the $2,000.00 penalty for “failure to timely authorize selective nerve root block.”

The workers’ compensation judge articulated his reasons for assessing Brookshire with the penalty:

[TJhere’s also a demand made for penalties and attorney’s fees associated with the late approval of a selective nerve root block recommended by Dr. Bartholomew [o]n July 8 of 2004. The records of Dr. Dole indicated, and his records are dated January 13th of 2005, that Ms. Lambert was still | ^awaiting approval of the selective nerve root block. The records also show that this was not performed until March 1st of 2005. Although there was no questioning of Mr. Crawford at trial about the nerve root block recommended by Dr. Bartholomew, there were no demand letters made by Ms. Losavio [plaintiffs counsel] for this nerve root block introduced into evidence. I still conclude from the record because Dr. — because Mr. Crawford testified he was receiving these reports, he had the report from Dr. Bartholomew and Dr. Dole and the test was not performed until March of 2005 despite being recommended July 8th of 2004, so I assess a Two Thousand Dollar ($2,000.00) penalty associate[d] with that.

We note that Crawford, in fact, was questioned about the authorization for the selective nerve root block, and he stated that he did not “know of any time we ever refused to pay for it.” Additionally, Crawford testified that “I don’t know when [sic] they would have waited that long to have sent her for it or set it up.”

Dr. Bartholomew’s records show that he recommended a selective nerve root block on July 8, 2004. According to Dr. Dole’s report dated January 13, 2005, Lambert “asked whether the selective nerve root block, as ordered by Dr. Bartholomew in New Orleans, was ever approved.” In this report, Dr. Dole noted that he “had requested a SNRB [selective nerve root block] by Dr. Firmin, but this was never approved and, in fact, was rejected by insurance.” Nevertheless, he still recommended that Lambert have the procedure. According to Dr. Bartholomew’s and Dr. Dole’s records, the procedure was performed on March 1, 2005. Given this evidence, we find that the workers’ compensation judge did not commit manifest error in casting Brookshire with a $2,000.00 penalty for its failure to timely authorize the selective nerve root block.

This assignment lacks merit.

Mileage Reimbursement

Brookshire contends that the workers’ compensation judge “incorrectly ruled Sheryl Lambert received a mileage shortage in the amount of $1.08 and erred in awarding $2,000.00 in penalties for failure to pay and/or correctly pay medical travel 117expenses for the dates of service, August 12, 2005, through October 19, 2005.” It argues that it is “being assessed with a penalty due to Sheryl Lambert requesting an inadequate mileage reimbursement” in that the reimbursement “included mileage for medical treatment performed by Dr. Slaughter which was not compensable.” Brookshire further contends that Lambert “never alleged this error at trial.”

The workers’ compensation judge acknowledged that Lambert made a demand for mileage reimbursement in a letter dated October 21, 2005. He explained that:

The payment was made to the employee on October 25th of 2005 and the sum of money [was] less than that claimed by Ms. Lambert. The testimony at trial was that there was a deduction from the mileage made based on the visits to Dr. Slaughter being not related to the job injury. Counsel for Ms. Lambert pointed out in Brief that even if you exclude the visits to Dr. Slaughter, the amount paid was still incorrect, so I did have to do the math on that. And I found that there was an incorrect payment. Ms. Lambert was shorted a Dollar and Eight Cents ($1.08). Her miles absent the miles of seeing Dr. Slaughter total 674 miles — 674.01 [sic] of a mile at Thirty-seven Cents (.37) — Thirty-six Cents per mile (.36). That means she was entitled to receive Two Hundred and Forty-two Dollars and Sixty-eight Cents ($242.68) and she only received Two Hundred and Forty-one Dollars and Sixty Cents ($241.60). Although the sum is a small sum of money, there was a clerical error made on behalf of the employer, and I must assess a Two Thousand Dollar ($2,000.00) penalty.

We find that the workers’ compensation judge did not commit manifest error in assessing Brookshire with a $2,000.00 penalty for its failure to reimburse Lambert the proper sum. In reaching this decision, we note that in its brief submitted to this court, Brookshire contends that it did not pay the mileage reimbursement requested by Lambert because it contained “mileage for medical treatment performed by Dr. Slaughter which was not compensable.” Lambert argues, in her brief, that “Brook-shire put on no evidence at trial that the reason it did not pay the correct mileage was specifically due to the mileage reimbursement sheet containing visits to Dr. Slaughter.”

|1sAfter reviewing the record, we note that when questioned about the mileage reimbursement, Crawford, the claims adjuster, acknowledged that Brookshire did not pay the entire sum Lambert requested; however, he did not offer any explanation for the payment shortage. Nevertheless, when Lambert’s attorney questioned her about how much she paid for her visits with Dr. Slaughter, defense counsel lodged an objection to the relevancy of this information as “[w]e have nothing from Dr. Slaughter or anybody saying that any of that’s related to this at all.” As Lambert’s attorney did not have Dr. Slaughter’s medical records documenting his treatment with Lambert, the workers’ compensation judge sustained the objection.

Louisiana Revised Statutes 23:1203(D) provides:

In addition, the employer shall be liable 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, and for the vocational rehabilitation-related mileage traveled by the employee at the direction of the employer. 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. The office shall inform the employee of his right to reimbursement for mileage.

In Jeffcoat v. McCann’s Seafood, 96-1259, p. 4 (La.App. 3 Cir. 5/7/97), 696 So.2d 8, 10, this court stated that “[a]n employee may recover reasonable travel expenses in connection with medical treatment as part of the employee’s medical costs.” However, the testimony of the employee alone is insufficient to require the employer to pay for travel expenses the employee incurred in seeking medical treatment. Downs v. J. & J. Maint., Inc., 97-511 (La.App. 3 Cir. 10/8/97), 702 So.2d 845, writ denied, 97-2848 (La.1/30/98), 709 So.2d 715. In Lee v. East Baton Rouge Parish Sch. Bd., 623 So.2d 150, 158 (La.App. 1 Cir.), writ denied, 627 So.2d 658 |19(La.1993), the first circuit denied part of the employee’s request for mileage reimbursement, stating:

[Louisiana Revised Statutes 23:1203(D) ] provides that the employer shall be liable for the expenses “reasonably and necessarily” incurred for mileage traveled by the employee to obtain medical services. Lee has requested mileage reimbursement for visits made to Tulane Medical Center, including trips to the Tulane Medical Center neurosurgery clinic, bone clinic and x-ray clinic, and Hotel Dieu Hospital. However, because the record does not contain evidence of the medical services provided, the relation of the services to Lee’s 1984 accident, or their necessity, Lee is not entitled to reimbursement for travel expenses related to these visits.

Here, we note that the medical records of Dr. Slaughter are not entered into evidence. Other than Lambert’s testimony, there is no evidence of the medical services Dr. Slaughter provided and whether this treatment was related to Lambert’s work injury. As such, the workers’ compensation judge’s determination that Lambert was not entitled to mileage reimbursement for those visits was correct.

However, the workers’ compensation judge concluded that even after deducting those visits from her reimbursement request, Brookshire did not pay Lambert the correct amount. The record supports this determination.

In Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, the Louisiana Supreme Court addressed whether the employer was liable for penalties and attorney’s fees for its failure to timely pay the correct amount of temporary total disability benefits. The supreme court found that although “the defendants did not act in an egregious manner[,]” the imposition of penalties and attorney’s fees were proper for the employer’s “failure to timely and adequately compensate plaintiff.” Id. at 893. (Emphasis added). Furthermore, we note that in Romero v. Garan’s, Inc., 05-1297 (La.App. 3 Cir. 4/19/06), 929 So.2d 258, this court recently held that because the employer failed to pay the correct mileage reimbursement on four different occasions, a $2,000.00 penalty was warranted for each of the four violations.

|anIn line with Brown and Romero, we find that as Brookshire failed to reimburse Lambert the correct amount, the workers’ compensation judge’s imposition of a $2,000.00 penalty was not manifestly erroneous. Accordingly, this assignment is without merit.

Penalty Cap

Brookshire argues that the workers’ compensation judge erred in awarding multiple penalties under La.R.S. 23:1201(F). According to Brookshire, these penalties are excessive and, therefore, must be reduced.

In Maricle v. Sunbelt Builders, Inc., 05-398, p. 11 (La.App. 3 Cir. 11/2/05), 916 So.2d 1226, 1234, writ denied, 05-2506 (La.3/31/06), 925 So.2d 1261, this court explained that “Louisiana Revised Statute[s] 23:1201(F) was amended by the legislature by 2003 La. Acts No. 1204, § 1, to expressly provide for multiple penalties and to place a cap on the amount of penalties which may be awarded at $8,000.000 [sic]. The effective date of the legislative amendment was August 15, 2003.” As the amendment to La.R.S. 23:1201(F) is “a change in the law [, it] must be given substantive effectf;]” therefore, it applies prospectively only. Id. at 1235; La.Civ. Code art. 6. Furthermore, the jurisprudence is clear that “the provisions of the statute in effect at the time of the withholding of benefits control the award of penalties and attorney fees.” Smith v. Roy O. Martin Lumber Co., 03-1441, p. 13 (La.App. 3 Cir. 4/14/04), 871 So.2d 661, 670, writ denied, 04-1311 (La.9/24/04), 882 So.2d 1144. See also Cormier v. Louisiana Southwest Scrap & Salvage, 04-321 (La.App. 3 Cir. 12/1/04), 888 So.2d 1117; Skipper v. Acadian Oaks Hosp., 00-67 (La.App. 3 Cir. 5/3/00), 762 So.2d 122; Gay v. Georgia Pacific Corp., 32,653 (La.App. 2 Cir. 12/22/99), 754 So.2d 1101. The penalty award will not be reversed on appeal in the |ai absence of manifest error. Reed v. Abshire, 05-744 (La.App. 3 Cir. 2/1/06), 921 So.2d 1224.

Brookshire was assessed with multiple $2,000.00 penalties for the failure to (timely) authorize medical treatment and for the failure to (timely) pay medical expenses. The total amounted to $16,000.00. The record indicates that Brookshire’s failure to (timely) authorize medical treatment and its failure to (timely) pay medical expenses occurred after the amendment to La.R.S. 23:1201(F), which became effective on August 15, 2003. Lambert filed her Disputed Claim for Compensation Form on August 19, 2003 and subsequently sought authorization for medical treatment and payment of medical expenses. Given this evidence, we find the awarding of multiple penalties in excess of $8,000.00 clearly wrong. Accordingly, we reduce the total penalty award from $16,000.00 to $8,000.00.

Attorney’s Fees

Brookshire contends that “[a]s there were only three depositions taken, written discovery, and the trial of this matter only consisted of two witnesses and was completed in a short period of time, the award of $12,000.00 is excessive. The attorney’s fees award of $12,000.00 was an abuse of discretion.”

Louisiana Revised Statutes 23:1201(F) allows an award of attorney’s fees when the employer fails to timely pay medical expenses and/or authorize treatment. Although there is no limitation on the amount of attorney’s fees which may be awarded, the award must be reasonable, and it will not be overturned absent manifest error. Alexander, 889 So.2d 366. The reasonableness of an award of attorney’s fees is determined from “the degree of skill and ability exercised, the amount of the claim, and the amount recovered for the plaintiff, and the amount of time devoted to the Lgcase.” Id at 378 (quoting Semere v. Our Lady of Lourdes Hosp., 03-1702, p. 14 (La.App. 3 Cir. 6/29/04), 875 So.2d 1048, 1057.)

The record shows that Lambert filed her Disputed Claim for Compensation Form on August 19, 2003. Since that time, Lambert’s attorney has made numerous requests for the authorization of Lambert’s medical treatment and for payment of her medical expenses. Volumes of Lambert’s medical records have been collected and placed in the record. Furthermore, she prepared for trial and as the workers’ compensation judge noted, successfully recovered back-due indemnity benefits and several penalty awards for Lambert. As such, we find that the workers’ compensation judge’s award of $12,000.00 in attorney’s fees was reasonable and not manifestly erroneous.

This assignment lacks merit.

Court Costs

Brookshire contends that “it should not have been assessed with court costs and expenses[.]”

Louisiana Code of Civil Procedure Article 1920 provides that:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

“An appellate court will not disturb a trial court’s assessment of court costs absent an abuse of discretion.” Whitbeck v. Kay, 05-774, p. 6 (La.App. 3 Cir. 2/1/06), 921 So.2d 1178, 1182. Insofar as Lambert has prevailed on the majority of her claims, we find that the workers’ compensation judge did not abuse his discretion in assessing Brookshire with court costs.

This assignment has no merit.

|23DECREE

For the foregoing reasons, we amend the total penalty award from $16,000.00 to $8,000.00 in accordance with La.R.S. 23:1201(F). In all other respects, the ruling of the workers’ compensation judge is affirmed. All costs of these proceedings are assessed against the defendant, Brook-shire Grocery Company.

AFFIRMED AS AMENDED.

      . The claimant’s name appears both as "Cheryl” Lambert and "Sheryl” Lambert in the record of these proceedings. Based upon the claimant's signature contained in the record, we refer to the claimant as Sheryl Lambert in our discussion.

      . For ease of discussion, we only focus on the pertinent sections of the order that are subject to this appeal.

      . As of the date of trial, Lambert did not have a third surgery. However, in her brief submitted to this court, she stated that she has undergone a third neck surgery.

      . The record indicates that Lambert was offered a position as a self-serve gas station attendant in October 2005.

      . The parties stipulated at trial that Brook-shire was self-insured.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    Genevieve Duhon CHARLES v. Roland Jude CHARLES.
    No. 06-1142.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 2006.
    Charles K. Hutchens, Attorney at Law, Lafayette, LA, W. Glenn Soileau, Attorney at Law, Breaux Bridge, LA, Counsel for Defendant/Appellant: Roland Jude Charles.
    Joseph Michael Placer, Attorney at Law, Lafayette, LA, Counsel for Plaintiff/Appel-lee: Genevieve Duhon Charles.
    Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

hThe plaintiff-appellee, Genevieve Du-hon Charles, moves to dismiss the appeal by the defendant-appellant, Roland Jude Charles, on the ground that the appellant has sought an appeal from an interlocutory judgment. For the reasons given below, we dismiss the appeal and remand this case.

The plaintiff filed the instant suit against the defendant seeking a divorce and ancillary relief, including a judgment for final periodic support. The plaintiff averred in her petition that she was free from fault in the parties’ separation.

On a rule to show cause, the trial court entered judgment finding that the plaintiff was firee from fault in the dissolution of her marriage. However, the judgment remanded that matter to a hearing officer for a conference on the amount of the final periodic support to be paid by the defendant to the plaintiff. The judgment also declared that the facts set forth in a request for admissions of facts were admitted, ordered the defendant to pay the court costs associated with this latter rule in a specific dollar amount, and ordered him to pay all costs associated with the costs of these proceedings.

The defendant filed an appeal from this judgment. The sole assignment of error set forth in the defendant’s appellate brief is that the trial court erred in ruling that the plaintiff had met her burden of proving that she was free from fault in the dissolution of the marriage.

The plaintiff filed the instant motion to dismiss the appeal arguing that the judgment appealed is a non-appealable, interlocutory order. The defendant has not filed a brief in response to this motion.

The issue presented in the case sub judice was presented to the fifth circuit in Evans v. Evans, 02-691 (La.App. 5 Cir. 11/19/02), 833 So.2d 427. The court stated:

[ 2This Court has been presented with the same procedural problem in two pri- or cases, Brehm v. Brehm, 96-159 (La.App. 5th Cir.9/18/96), 686 So.2d 881 and Planche v. Planche, 95-979 (La.App. 5th Cir.3/13/96), 673 So.2d 1053. In both cases this Court held that an appeal of a ruling which determined fault but not an award of support or a final determination that support was not due was improper because such a ruling was a partial final judgment that was not appealable. La. C.C.P. art.1915. We find those cases on point and dispositive of the instant case.
Plaintiff argues that this case is distinguishable because La. C.C. arts. Ill and 112 on periodic support have been amended subsequent to the rendition of the Brehm and Planche cases. While we recognize that the articles have been amended, we do not find that the amendment changes the legal principles applicable to the issue herein.
The relief sought by the Defendant is a monetary award of periodic support. While the ruling on fault touches on one issue in the support dispute, it is not a final appealable judgment because it does not grant a party all or part of the relief for which it prayed. The trial court must still make determinations regarding Defendant’s need and Plaintiffs ability to pay, as well as several other factors, including the ultimate monetary award. As pointed out in Planche, to hold otherwise would mean we could look forward to a second appeal on need, and third appeal on ability to pay and then a forth appeal on quantum. Judicial economy and the avoidance of piecemeal appeals remain guiding appellate principles. Plaintiff or Defendant will, of course, be entitled to full consideration of all issues involved in their litigation in an appeal of a final judgment on periodic support. Accordingly, this appeal is dismissed as premature and the case is remanded to the trial court for further proceedings.

Id. at 428.

We agree with the fifth circuit’s reasoning in Evans. As in Evans, the plaintiff in the instant case prays for an award of final periodic support, not for a declaration that she is free from fault in the dissolution of the marriage. While this issue is a necessary premise on which to base an award of final support, the ruling does not grant the plaintiff any relief requested in the petition. Since the ruling does decide an issue in the litigation, the judgment falls within the purview of La.Code Civ.P. art. 1915(B), which statute requires a designation of appealability before an appeal can be taken from the ruling.

13For the reasons given in Evans, we find that a designation of this judgment as immediately appealable would not be appropriate in this instance, as this result would not be in the interest of judicial economy and would result in piecemeal appeals. Therefore, we hereby dismiss this appeal at defendant’s cost and remand this case to the trial court for further proceedings.

APPEAL DISMISSED. CASE REMANDED.


text:
    Alphonse WILLIAMS, Carolyn Williams and William Abroms v. PIONEER FISHING & RENTAL TOOLS, INC., et al.
    No. 06-1049.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 2006.
    Robert M. Francez, Voorhies & Labbé, Lafayette, LA, for Defendants/Appellees V.L. Auld & Associates, Van L. Laud, V.L. Auld.
    Henry T. Dart, Covington, LA, for Plaintiffs/Appellants Alphonse Williams, Carolyn Williams, William Abroms.
    Peter M. Meisner, Matthew K. Brown, Sullivan, Stoiler & Resor, New Orleans, LA, for Plaintiffs/Appellants Alphonse Williams, Carolyn Williams, William Abroms, Robert Eugene Rowe.
    Gus A. Fritchie, III, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, LA, for Defendant/Appellee Rollins Hudig Hall of New York.
    Calvin T. Guidry, Cole & Guidry, Lafayette, LA, for Defendant/Appellee Premier Bank, NA.
    Gregory J. Laborde, Laborde & La-borde, Lafayette, LA, for Defendants/Ap-pellees Rowe & Laborde, New England Insurance Company, Robert Eugene Rowe.

      John V. Baus, Jr., Baus, Hammond & Daly, New Orleans, LA, for Defendant/Ap-pellee New England Insurance Company.
    Kenneth A. Back, Lafayette, LA, for Defendants/Appellees Robert Eugene Rowe, Pioneer Fishing & Rental Tools, Inc., E.F. Realty Company, Inc., Thomas B. Falgout, Sr., Team Engineering & Manufacturing Co., Inc., Carmer B. Falgout, Falgout Family Trust, W. Simmons San-doz.
    James J. Hautot, Jr., Judice & Adley, Lafayette, LA, for Defendants/Appellees First State Insurance Company, New England Reinsurance Company.
    Carroll L. LeBouef, Agent for Service, Broussard, LA, for Defendani/Appellee Teena Huval Sparks.
    Charles Gordon-Seymour, Agent for Service, Atlanta, GA, for Defendant/Appel-lee Victoria Insurance Company.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

IjThe plaintiff, judicial liquidator of Pioneer Fishing & Rental Tools, Inc., filed suit against the accounting firm that prepared the corporation’s annual audit for a number of years. The plaintiff alleged that the defendant failed to include sufficient information in the audits so as to reveal alleged conflicts that resulted in losses to the corporation. The defendant and its insurer filed exceptions of prescription. The exceptions were granted due to the trial court’s determination that the plaintiff was in possession of sufficient information to excite his attention to the alleged conduct more than one year before filing suit. The plaintiff appeals. We affirm.

Factual and Procedural Background

The plaintiff, Alphonse Williams, is a shareholder in Pioneer Fishing & Rental Tools, Inc. (Pioneer). In September 1988, Mr. Williams, along with other minority shareholders, filed a petition for involuntary liquidation of the corporation. He was subsequently appointed the judicial liquidator for Pioneer. In September 1989, Mr. Williams, as judicial liquidator, filed suit against the accounting firm of V.L. Auld & Associates, V.L. Auld, and Van L. Auld (Auld), alleging malpractice on the part of the accounting firm. Auld’s insurers, First State Insurance Company and New England Reinsurance (Insurers), were also named as defendants. The plaintiff asserted that the accounting firm failed to adequately reveal transactions and relationships pertinent to the corporation that would have revealed alleged conflicts between the corporation and the majority shareholder company, which was owned by Thomas Falgout.

Auld filed a motion for summary judgment and an exception of prescription, [«.alleging that a one-year prescriptive period is applicable to accounting malpractice and that the alleged malpractice occurred more than one year before the filing of suit. The trial court granted the exception of prescription. The trial court granted a similar exception filed by the Insurers.

Mr. Williams appeals the granting of the exceptions.

Discussion

Mr. Williams argues that the Auld audits, conducted from 1980 through 1987, failed to adequately disclose the extent of Pioneer’s transactions/relationships with Mr. Falgout and entities controlled by him. Mr. Williams contends that it was not until he was appointed judicial liquidator in 1988 that he had sufficient information to pursue the claims. He argues that his initial investigation of the corporation’s books was not completed until March or April of 1989 and that the action against Auld, filed in September 1989, was therefore timely. Mr. Williams contends that he received further necessary information from the November 2008 report of Michael Daigle, an accountant who reviewed the Auld audits.

In pertinent part, La.R.S. 9:5604 provides as follows with regard to filing periods applicable to accounting malpractice claims:

A. No action for damages against any accountant duly licensed under the laws of this state, or any firm as defined in R.S. 37:71, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide professional accounting service shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from, the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, | .¡omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
C. Notwithstanding any other law to the contrary, in all actions brought in this state against any accountant duly licensed under the laws of this state, or any firm as defined in R.S. 37:71, whether based on tort or breach of contract or otherwise arising out of an engagement to provide professional accounting service, the prescriptive and peremptive period shall be governed exclusively by this Section and the scope of the accountant’s duty to clients and nonclients shall be determined exclusively by applicable Louisiana rules of law, regardless of the domicile of the parties involved.
D. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.

(Emphasis added.) See also Picard v. Vermilion Parish Sch. Bd., 00-1222 (La.App. 3 Cir. 4/4/01), 783 So.2d 590, writ denied, 01-1346 (La.6/22/01), 794 So.2d 794 (wherein a panel of this court noted that a plaintiff who has information sufficient to excite attention and prompt further inquiry is deemed to have constructive knowledge sufficient to commence a prescriptive period. Ignorance attributable to the plaintiffs own willfulness or neglect is insufficient to halt the running of the period.)

Although counsel for Mr. Williams repeatedly returned to Mr. Williams acquiring knowledge of the alleged omissions after he became judicial liquidator, the trial court focused on the totality of his knowledge throughout the period covered by the audits and whether that was sufficient to excite his knowledge as to the alleged wrongdoing. The trial court recognized not only Mr. Williams’s knowledge of the alleged relationships/transactions during the years in question, but that of Teena |4Huval, the Director of Administration at Pioneer. The trial court first addressed Mr. Williams’s argument that the audits omitted information that would have further excited his attention, the trial court stated:

Well, again, that’s your position, that it’s missing because the auditors didn’t put it in the report. They put many things in the report that relate to these issues. And you’ve picked out some things that you say should have additionally been included.
But the question that I have to consider is whether, when you take all of this as a whole, was Mr. Williams in a position, long before this period where he became liquidator, that he had sufficient information to excite further inquiry, and that he — he’s therefore imputed with the knowledge that he would have obtained had he made that further inquiry.

The trial court later explained:

But, as you know, the test is not whether he knew. The test is whether he had enough information that he should have had his attention drawn to it and that he should have — it should have prompted further inquiry.
And it’s imputed to him that he would have knowledge of anything and notice of anything which he could have obtained from making that reasonable inquiry.
In reviewing this evidence as a whole — and it is voluminous — but it is clear to me that a reasonable individual would have had sufficient information in Mr. Williams’ place to excite his attention and to prompt further inquiry, as well as the corporation had notice — because, again, we’re talking about the rights of the corporation — through the other employee ... [Ms. Huval.] And so the Court finds that the exception of prescription is well founded, because I find that Mr. Williams and the corporation, through Ms. Huval, did have sufficient information to excite their attention and to prompt further inquiry, and that they are imputed with the knowledge they could have easily obtained through the records of the corporation had they gone and looked at them. So I’m going to sustain the exception.

When evidence is introduced at a hearing on an exception of prescription, as it was here, the trial court’s findings of fact related to the exception are reviewed on appeal pursuant to the manifest error standard of review. Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261. Having reviewed the record, we find no manifest error in the trial court’s determination.

As noted in the factual background, Mr. Williams was a minority shareholder in Pioneer throughout the 1980 to 1987 period and served on its board of directors from 1986 through 1988. He previously served as Pioneer’s president for much of the 1970s. Therefore, he was knowledgeable of the company and was in a position to act on suspicions he had about Mr. Falgout and his relationships with Pioneer, many of which Mr. Williams acknowledged being aware of. In his deposition, he explained that, by mid-1980 and through the time period in question, he viewed Mr. Falgout and those transactions involving him with distrust. Despite these suspicions, the fact that the relationships and transactions complained of were discussed at shareholder meetings, and the fact that the Auld audits did, in fact, reveal related-party transactions, Mr. Williams explained that he did not pursue acquiring further information as he felt that his inquiries and requests would be met with reluctance by Mr. Falgout. He further explained that hiring a lawyer to acquire additional information would be costly. Given Mr. Williams’s acknowledgment that he had a high level of suspicion, that he was aware of many of the transactions at issue, and |fithe fact that the Auld audits confirmed the existence of some of said transactions, we find no manifest error in the trial court’s determination that Mr. Williams either knew of or should have known of any inadequacies in the audits in question more than one year before the filing of suit in this matter.

Mr. Williams’s argument on the exceptions of prescription lacks merit.

DECREE

For the foregoing reasons, the trial court’s granting of the exceptions of prescription is affirmed. All costs of this appeal are assigned to the appellant, Alphonse Williams, in his capacity as judicial liquidator of Pioneer Fishing & Rental Tools, Inc.

AFFIRMED.

      . The corporation's name is referred to in the record both as "Pioneer Fishing Rental Tools, iñe." and "Pioneer Fishing & Rental Tools, Inc.” For discussion, we refer to the corporation by the latter title as this is the name reflected on the evidentiary filings in the record.

      . The trial court commented during the hearing that:
      Well, I think what the law requires of an individual is that, if there is information that comes to light which is sufficient to excite further inquiry, that your failure to follow up is not excusable for purposes of prescription.
      And one of the main things that concerns me about Mr. Williams' position is that, during most of this period of time, he was sitting in a position where he was a director of the corporation. And so he had not just
      a personal curiosity about it, but he actually had a duty as a director to follow through.
      And his statement that, well, I was not then given the information that was requested — He was in a position to get the information had he pushed for it, both in a position as a shareholder and then, in some instances, his position as a director. And there’s nothing in the record to show that he ever went and took advantage of those opportunities, despite the fact that he was very suspicious of all of this activity.


text:
    Maureen GREEN v. IBERIA PARISH SCHOOL BOARD.
    No. 06-1060.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 2006.

      J. Wayne Landry, Assistant District Attorney, New Iberia, LA, for Defendant/Ap-pellee, Iberia Parish School Board.
    Maureen Green, St. Martinville, LA, Plaintiff/Appellant, Maureen Green, In Proper Person.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

It The plaintiff, a former employee of the defendant school board, filed suit seeking damages related to what she claims was discrimination and retaliation stemming from her earlier allegations of sexual harassment. The trial court granted the school board’s exception of res judicata, due to previous proceedings in federal court, and dismissed the matter. The trial court also granted the school board’s request that the plaintiff be enjoined from filing further proceedings related to her discharge from employment. The plaintiff appeals. We affirm.

Factual and Procedural Background The record indicates that the plaintiff, Maureen Greene, is a former employee of the Iberia Parish School Board (School Board). The School Board terminated Ms. Greene’s employment as a cafeteria worker in mid-1997. Thereafter, Ms. Greene pursued litigation against the School Board in federal court due to her allegations of sexual harassment and retaliation. These federal court proceedings were resolved in favor of the School Board.

In a petition filed in the Sixteenth Judicial District in October 2005, Ms. Greene again named the School Board as a defendant and sought damages stemming from what she asserts was “intentional illegal discrimination and retaliation^]” The School Board responded to the petition with exceptions of no cause of action, res judicata, prescription, venue, lack of personal jurisdiction, and nonconformity of the petition. The School Board also filed a Rule for Protective Order, Injunction and | ^Sanctions and asserted that Ms. Greene was in bad faith in pursuing litigation against it. The School Board alleged that this violation of La.Code Civ.P. art. 863(B) entitled it to sanctions, including an injunction prohibiting Ms. Greene from filing further claims against it related to her dismissal from employment.

The trial court heard the matter and granted the exception of res judicata and dismissed Ms. Greene’s petition on March 30, 2006. The judgment provides:

IT IS HEREBY ORDERED ADJUDGED AND DECREED that the School Board’s exception of res judicata is hereby maintained and granted and that plaintiffs petition is hereby dismissed with prejudice. Having disposed of the entire proceedings, the Court deems it unnecessary to rule on the other pending motions at this time but if it had been called upon to do so, all of the remaining exceptions would have been granted in favor of the School Board.

The trial court further considered the School Board’s rule for a protective order and concluded that Ms. Greene’s filing was in bad faith and sanctionable pursuant to La.Code Civ.P. art. 863(D). The trial court prohibited and enjoined Ms. Greene from filing further proceedings against the School Board related to the termination of her employment and instructed the Clerk of Court of the Sixteenth Judicial District not to file any case/claims from the plaintiff against the School Board without the permission of the Chief Judge of the Sixteenth Judicial District Court. The trial court also assessed court costs against Ms. Greene.

Ms. Greene appeals these judgments. Much of Ms. Greene’s brief generally revisits the merits of her case rather than specifically assigning errors related to the trial court’s judgment. On review, we address those portions of the brief that could be construed as relating to the granting of the exception of res judicata and the determination that sanctions and a protective order were appropriate due to a finding that the filings were in bad faith.

| ¡¡Discussion

Res Judicata

As noted above, the School Board filed an exception of res judicata and alleged that the causes of action advanced in Ms. Greene’s petition were the same as those adjudged in federal court in two separate proceedings. The trial court granted the exception of res judicata.

The courts of this state have repeatedly confirmed that federal law is applicable to consideration of whether a federal court judgment has res judicata effect. See Terrebonne Fuel & Lube, Inc. v. Placid Ref. Co., 95-0654 (La.1/16/96), 666 So.2d 624; Reeder v. Succession of Palmer, 623 So.2d 1268 (La.1993); Bobby and Ray Williams P’ship, L.L.P. v. Shreveport Louisiana Hayride Co., L.L.C., 38,866 (La.App. 2 Cir. 9/22/04), 882 So.2d 676, writ denied, 04-2636 (La.12/17/04), 888 So.2d 875; McCollough v. Dauzat, 98-1293 (La.App. 3 Cir. 3/3/99), 736 So.2d 914. As explained in Terrebonne Fuel & Lube, 666 So.2d at 633, federal res judicata law indicates that a judgment bars a subsequent suit if the following requirements are satisfied: “1) both cases involve the same parties; 2) the prior judgment was rendered by a court of competent jurisdiction; 3) the prior decision was a final judgment on the merits; and 4) the same cause of action is at issue in both cases.” There are, however, exceptions to the law of res judi-cata. Id. Namely, the law of res judicata may be inapplicable if there is an express reservation of a claim that the defendant acquiesces in or if the court in the first action expressly reserves the plaintiffs right to pursue a subsequent action. Id.

We have reviewed the petition in this case in light of the filings contained in the record related to Ms. Greene’s federal court suits against the School Board. All |4of the elements necessary for application of res judicata are satisfied and none of the exceptions are present. Thus, we find no error in the trial court’s determination that the federal court judgments, rendered in 2000 and 2004, bar Ms. Greene’s present case. In fact, the 2004 federal court judgment granted summary judgment in favor of the School Board due, in part, to the res judicata effect of the 2000 judgment. The remaining ground for the granting of the motion for summary judgment was the expiration of the applicable prescriptive periods, including those applicable to Ms. Greene’s state law claims brought in the federal court.

As noted in the federal court’s Memorandum Ruling in 2004, the state law claims raised in federal court related to the allegation that the School Board was responsible for Ms. Greene’s “bankruptcy, divorce, failed marriage, and lack of credibility.” These same charges are reflected in the petition in this case. However, insofar as Ms. Greene may assert that her state law claims now differ, the supreme court has explained that federal law demands that:

[I]f a set of facts gives rise to a claim based on both state and federal law, and the plaintiff brings the action in federal court which had “pendent” jurisdiction to hear the state cause of action, but the
plaintiff fails or refuses to assert his state law claim, res judicata prevents him from subsequently asserting the state claim in a state court action, unless the federal court clearly would not have had jurisdiction to entertain the omitted state claim, or, having jurisdiction, clearly would have declined to exercise it as a matter of discretion.

Terrebonne Fuel & Lube, 666 So.2d at 633 (quoting Reeder, 623 So.2d at 1272-73). | sThe federal court’s ruling in the 2004 judgment reveals no indication that it would have lacked jurisdiction or been unwilling to exercise pendent jurisdiction in considering state law claims. Rather, the federal trial court considered those claims raised and found them untimely.

The appeal of the granting of the exception of res judicata is without merit.

Injunction and Sanctions

The trial court determined that the filing of the petition in this case was “in bad faith and having served no useful purpose other than unwarranted harassment” of the School Board. The trial court imposed sanctions in the form of court costs. The trial court further prohibited and enjoined Ms. Greene from filing further proceedings related to her discharge from employment against the School Board and instructed the Clerk of Court for the Sixteenth Judicial District not to file any such claims absent approval of the Chief Judge of the Sixteenth Judicial District Court.

| ^Louisiana Code of Civil Procedure Article 863 provides, in part:

B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate |7sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.

Appellate review of a trial court’s ruling on an Article 863 claim is governed by the manifest error and abuse of discretion standards. S. Ingenuity, Inc. v. Benjamin, 02-1426 (La.App. 3 Cir. 4/17/03), 854 So.2d 876, writ denied, 03-1396 (La.9/19/03), 853 So.2d 646. We find neither manifest error nor an abuse of discretion in the trial court’s determination that sanctions were appropriate in this case given the number of times the claim has been brought to court.

Neither do we find merit in the assertion that the judgment violates La. Const, art. 1, § 22, which provides that: “All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”

The present judgment is not one that fails to adequately safeguard a litigant’s right of access to the courts. See Rochon v. Roemer, 93-2444 (La.1/7/94), 630 So.2d 247 (wherein the supreme court found that an order prohibiting a prisoner’s filing of future claims until payment of a fíne denied access to the courts as it was unlimited and prohibited the filing of all claims), cert, denied, 512 U.S. 1224, 114 S.Ct. 2716, 129 L.Ed.2d 841 (1994). See also Hawkins v. City of Jennings, 97-1291 (La.App. 3 Cir. 3/6/98), 709 So.2d 292. Rather, the order is limited in nature as it specifically prohibits the filing of claims against the School Board that are related to Ms. Greene’s discharge from employment. The present claim has been raised repeatedly and, thus, Ms. Greene has been afforded “an adequate remedy by due process of law” on these claims as provided for by La. Const, art. 1, § 22. Furthermore, the order is tailored to ensure |sMs. Greene’s access to the courts for other claims as it requires that the Chief Judge review any claims by her against the School Board to verify whether they are subject to the protective order.

For these reasons, the appeal of the judgment imposing sanctions under La. Code Civ.P. art. 863(D) is affirmed.

DECREE

For these reasons, the judgments of the trial court are affirmed. All costs of these proceedings are assigned to the appellant, Maureen Greene.

AFFIRMED.

      . Filings in the record identify the plaintiff’s surname as both ''Green” and "Greene.” Filings also identify the plaintiff by her former married name, "Maureen Vallot.” In discussion, we identify the plaintiff as "Maureen Greene” for consistency with her signature on the petition.

      . See Maureen Vallot v. Eugene Baudry, Jr., No. Civ.A. 97-0897, (W.D.La.2000)(a dismissal by summary judgment entered in favor of the School Board); Maureen Vallot v. Eugene Baudry, No. Civ.A. 6:03cvl754 (W.D.La.2004) (a dismissal by summary judgment entered in favor of the School Board). These rulings are contained in the record.

      . See also La.R.S. 13:4231, which provides:
      Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
      (1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
      (2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.

      (3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
      (Emphasis added.)

      . The trial court in the present action did not specifically rule on the School Board's exception of prescription due to the granting of the exception of res judicata. However, the judgment contains the trial court’s statement that it would have granted the remaining exceptions if called upon to do so. Given the time frame of the events at issue, we find no error in the trial court’s observation as it relates to the timeliness of the plaintiff's petition.

      .The judgment relating to sanctions and the protective order provides:
      The above entitled matter having come before this Court on March 27, 2006 as a Rule for Injunction, Protective Order and Sanctions; the Court having previously addressed and granted pending exceptions in favor of the School Board; the Court having considered the intelligence level and competence of the plaintiff's self-representation as a pro-se litigant herein; and having considered the arguments and memorandum of the parties;
      IT IS ORDERED, ADJUDGED AND DECREED that this Court, considering the pri- or litigation of the issues presented herein on at least two prior occasions in the Federal District Court of Louisiana, finds that the plaintiff's filing of these proceedings to be in bad faith and having served no useful purpose other than the unwarranted harassment of the Iberia Parish School Board; sanctionable, pursuant to La. C.C.P. Art. 863(D), and, as such;
      IT IS ORDERED, ADJUDGED AND DECREED that Maureen Francis Green, a/k/a Maureen Francis Vallot, a/k/a Maureen Val-lot Greene is hereby prohibited and enjoined from filing any proceedings whatsoever, against the Iberia Parish School Board relative to her discharge of employment from said School Board under penalty of contempt of this Court;
      IT IS ORDERED, ADJUDGED AND DECREED that the Clerk of Court of the 16th Judicial District for the parishes of St. Martin or Iberia and his staff are not to file any case or claims on behalf of Maureen Francis Greene, a/k/a Maureen Francis Vallot, a/k/a Maureen Vallot Greene, against the Iberia Parish School Board without the written authorization of the Chief Judge of the 16th Judicial District Court. Any filings of the plaintiff must be presented within 2 days of receipt by the Clerk and any authorization so granted shall date back to the date of receipt by the respective Clerk of Court;
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, in the future, if MAUREEN FRANCIS GREEN, A/K/A MAUREEN FRANCIS VALLOT, A/K/A MAUREEN VALLOT GREENE, ATTEMPTS TO ELUDE OR IN ANY WAY MANIPULATE THIS ORDER, ALL APPROPRIATE ACTION, INCLUDING MONETARY SANCTIONS AND CRIMINAL AND/OR CIVIL CONTEMPT, MAY BE IMPOSED AGAINST HER;
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in addition to the injunction and protective order issued above, the Court sanctions MAUREEN FRANCIS GREEN, A/K/A MAUREEN FRANCIS VALLOT, A/K/A MAUREEN VAL-LOT GREENE to payment of all of the costs of these proceedings but denies the School Board’s request for the payment of its attorneys fees.