author: PARRO, J.

text:
    Louise M. RIVERA v. BOLDEN’S TRANSPORTATION SERVICE, INCORPORATED, Jessie J. Bolden, Sr. Individually, and Southern United Fire Insurance Company.
    No. 2011 CA 1669.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 2012.
    Rehearing Denied July 19, 2012.

      Craig P. Hart, Tammy L. Karas, Cov-ington, LA, for Plaintiff-Appellant Louise M. Rivera.
    E. Phelps Gay, Adrejia Boutté, Christo-vich & Kearney, L.L.P., New Orleans, LA, for Defendant-Appellee Community Care Center of Covington, L.L.C. d/b/a Forest Manor Nursing Home.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   PARRO, J.

[ 2Louise M. Rivera appeals a judgment sustaining an exception raising the objection of prematurity and dismissing her claims, without prejudice, against Community Care Center of Covington, L.L.C., d/b/a Forest Manor Nursing Home (Forest Manor). For the following reasons, we reverse the judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On January 31, 2008, Ms. Rivera was being transported from Forest Manor to a medical facility as a wheelchair-bound passenger in a vehicle owned and operated by Bolden’s Transportation Service, Inc. (Bol-den’s). During this trip, the driver of the vehicle had to suddenly and forcefully engage the brakes, stopping the vehicle and causing Ms. Rivera to fall out of the wheelchair and hit the floor. She had no seat-belt on and was not strapped in to her wheelchair, nor was the wheelchair fastened to the van. Ms. Rivera was injured as a result of her fall and filed suit against Bolden’s, its owner, and its insurer. In a supplemental and amending petition, she named “Covington Nursing Home” as a defendant, alleging that it had breached its duty to her by failing to provide her with a wheelchair that included a seatbelt or safety strap to secure her during transport and by allowing her to leave in an inadequately equipped wheelchair.

Forest Manor filed a dilatory exception raising the objection of prematurity, alleging that it was a qualified health care provider and that Ms. Rivera’s claim was premature, because she had not presented it to a medical review panel, as required by LSA-R.S. 40:1299.47(B)(l)(a)(i) of the Medical Malpractice Act. After a hearing, the district court sustained the exception and dismissed Ms. Rivera’s claims, without | ^prejudice. She filed an application for a supervisory writ, which was granted by this court for the limited purpose of returning the matter to the district court with an order to allow her to appeal the judgment. Her sole assignment of error in this appeal is that the district court erred in finding that her claims alleged medical malpractice and thus, her suit was premature until her claims had been submitted to a medical review panel.

APPLICABLE LAW

Under the Louisiana Medical Malpractice Act (the Act), all medical malpractice claims against qualified health care providers must be submitted to a medical review panel for consideration. See LSA-R.S. 40:1299.47(A)(l)(a). No civil action against a qualified health care provider or its insurer may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to the Act. See LSA-R.S. 40:1299.47(B)(l)(a)(i). A request for a medical review panel is a prerequisite to and not the equivalent of a suit for medical malpractice. Houghton v. Our Lady of the Lake Hosp., Inc., 03-0135 (La.App. 1st Cir.7/16/03), 859 So.2d 103,105-06.

Louisiana Code of Civil Procedure article 926(A)(1) provides for the dilatory exception raising the objection of prematurity. Such an objection is intended to retard the progress of the action, rather than to defeat it. LSA-C.C.P. art. 923. An action is premature if it is brought before the right to enforce the claim sued on has accrued. See LSA-C.C.P. art. 423. The objection of prematurity raises the issue of whether the judicial right of action has yet to come into existence because some prerequisite condition has not been fulfilled. Bridges v. Smith, 01-2166 (La.App. 1st Cir.9/27/02), 832 So.2d 307, 310, writ denied, 02-2951 (La.2/14/03), 836 So.2d 121. Prematurity is determined by the facts existing at the time suit is filed. Houghton, 859 So.2d at 106.

The dilatory exception of prematurity is the proper procedural mechanism for a | qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for an opinion by a medical review panel before filing suit against the provider. Spradlin v. Acadia-St. Landry Med. Found., 98-1977 (La.2/29/00), 758 So.2d 116, 119. If a lawsuit against a health care provider covered by the Act has been commenced in a court and the complaint has not been first presented to a medical review panel, the exception of prematurity must be sustained, and the claimant’s suit must be dismissed. Dunn v. Bryant, 96-1765 (La.App. 1st Cir.9/19/97), 701 So.2d 696, 699, writ denied, 97-3046 (La.2/13/98), 709 So.2d 752.

The burden is on the defendant to prove prematurity and initial immunity from suit as a qualified health care provider under the Act. Id. The defendant must also show that it is entitled to a medical review panel, because the allegations fall within the Act. Hamilton v. Baton Rouge Health Care, 09-0849 (La.App. 1st Cir.12/08/10), 52 So.3d 330, 333. On the trial of the dilatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds for the exception do not appear from the petition. LSA-C.C.P. art. 980. Where no evidence is presented at the trial of a dilatory exception of prematurity, the court must base its decision on the exception on the facts alleged in the petition, and all allegations therein must be accepted as true. LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008 (La.9/5/07), 966 So.2d 519, 525.

The Act applies only to “malpractice”; all other tort liability on the part of a qualified health care provider is governed by general tort law. Armand v. Lady of the Sea Gen. Hosp., 11-1083 (La.App. 1st Cir.12/21/11), 80 So.3d 1222,1226, writ denied, 12-0230 (La.3/30/12), 85 So.3d 121. However, the fact that the plaintiff may have made allegations sounding in both medical malpractice and general tort law does not remove her petition from the penumbra of the Act, if a claim for medical malpractice is stated. See McKnight v. D & W Health Services, Inc., 02-2552 (La.App. 1st Cir.11/7/03), 873 So.2d 18, 23.

“Malpractice” is defined by LSA-R.S. 40:1299.41(A)(13), in pertinent part, as |,^follows:

“Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient.

“Health care” is defined in LSA-R.S. 40:1299.41(A)(9), in pertinent part, as follows:

“Health care” means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.

The supreme court has adopted a six-factor test for determining whether alleged negligent conduct by a qualified health care provider constitutes “malpractice,” as opposed to other fault. The factors to be considered include:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill;
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
(3) whether the pertinent act or omission involved assessment of the patient’s condition;
(4) whether the incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital or other health care provider is licensed to perform;
(5) whether the injury would have occurred if the patient had not sought treatment; and
(6) whether the tort alleged was intentional.

See Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, 315-16.

The Act is in derogation of the rights of tort victims and its language must be strictly construed; any ambiguity must be resolved against coverage by the Act. Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-0451 (La.12/1/04), 888 So.2d 782, 786-87. We conduct a de novo review of the trial court’s grant of the dilatory exception of prematurity, as the issue of whether a claim sounds in medical malpractice involves a question of law. Hernandez v. Diversified Healthcare-A beville, LLC, 09-546 (La.App. 3rd Cir.11/4/09), 24 So.3d 284, 285, writ denied, 09-2629 (La.2/12/10), 27 So.3d 849.

| fi ANALYSIS

The only evidence introduced at the hearing in this matter was Forest Manor’s certificate of enrollment as a qualified health care provider under the Act. Nursing homes are specifically listed as health care providers in LSA-R.S. 40:1299.41(A)(10), and there is no dispute that Forest Manor is a qualified health care provider.

No substantive evidence relating to Ms. Rivera’s claims was introduced by either party. In the absence of evidence relating to the nature of her claims against Forest Manor and the issue of prematurity, the following relevant factual allegations of the petition and amended petition must be accepted as true.

On or about January 31, 2008, Louise M. Rivera was being transported as a wheel[chair] bound passenger on a vehicle being operated by Bolden’s Transportation Service, Inc. Ms. Rivera was being picked up from Forest Manor Nursing Home located in the city of Slidell, St. Tammany Parish, State of Louisiana, and being transported by said transportation company to a medical facility also located in St. Tammany Parish, State of Louisiana.
[Bolden’s] vehicle’s operator while proceeding in traffic to his next destination, for some unknown reason “slammed” on his brakes, ... causing the vehicle to suddenly and without warning come to an abrupt stop. This action and/or inaction by the vehicle’s operator and because of Ms. Rivera not being “strapped in” by a safety belt, therefore caused Ms. Rivera to be “slung” out of her wheelchair, and hit the floor of said vehicle.
Defendant, [Forest Manor,] by inaction, upon petitioner leaving said nursing home, failed in [its] duty to provide petitioner with a wheelchair that included a seatbelt or safety strap that would secure her in said wheelchair while being transported in a vehicle, and failed by [its] action upon allowing petitioner to leave said nursing home while petitioned,] when leaving, was in a wheelchair that was inadequate in providing her with a safety seatbelt system of protection during vehicular transportation to a medical facility.
At the time of the alleged incident, said unknown and/or unnamed [Forest Manor] employees were acting in the course and scope of their employment with [Forest Manor],
⅜: * *
The accident and/or incident described above was caused solely and proximately by the carelessness, negligence, action, and/or inaction and fault of ... [Forest Manor] and [its] employees ... in the following, non-exclusive particulars to-wit:
a) Failure to secure a wheelchair bound passenger by using a safety belt and/or strap as required when traveling and/or being | transported in a vehicle, so as to prevent said passenger from falling from or being thrown from wheelchair;
h) Failure to provide the plaintiff with a wheelchair that had a seatbelt or safety strap that would have secured her in her wheelchair;
i) Failure in disregarding plaintiffs safety while being transported by vehicle, by defendant’s actions and/or inactions by not providing her with an adequate safety seatbelt system of any kind and/or type;
j) Total disregard of plaintiffs safety while allowing her to be transported in a wheelchair with inadequate safety features;
k) Failure of all defendants to properly train their employees;
l) Failure of all defendants to properly supervise and/or negligent supervision of their employees!/]

Keeping in mind the statutory definitions and the six factors set out in the Coleman case, we examine the allegations in Ms. Rivera’s petition to determine whether her claims arose out of medical malpractice, such that Forest Manor would be entitled to a medical review panel.

As described in the petition and supplemental petition, the essence of the allegations concerning the negligence of Forest Manor is that its employees failed to provide Ms. Rivera with a wheelchair that included a safety strap of some kind to secure her in the chair during transportation to a medical facility. This action or inaction is not treatment related or caused by a dereliction of professional skill, nor does it require medical expertise to determine whether the appropriate standard of care was breached. In addition, these allegations do not directly involve the “handling of a patient, including loading and unloading of a patient,” but whether the equipment provided to her during her transport was sufficient to ensure her safety. There was no medical skill required to make a decision concerning the safety equipment on the wheelchair or in the van that would transport her. A lay person can determine whether the Forest Manor staff should have provided some kind of security strap, such as the law requires for other vehicle passengers, to keep Ms. Rivera in her seat while being transported in the vehicle.

Ms. Rivera was already dependent on a wheelchair, so there was no assessment |Rof her condition involved in the decision to use this particular wheelchair to transport her. Also, the decision to send her to a medical facility had already been made; the petition does not allege any negligence regarding that decision or the decision for her to be seated in a wheelchair during the trip.

Nor was this incident related to her physician-patient relationship; the only relationship involved in this case was the relationship between certain employees of Forest Manor and Ms. Rivera. Although transporting a patient is within the scope of activities which a qualified health care provider may perform, there is no license needed for the allegedly negligent action or inaction complained of in this case, that is, determining whether a wheelchair-bound patient should be provided with a differently equipped wheelchair when being transported from one place to another.

Clearly, if Ms. Rivera had not been in the nursing home, any negligence of Forest Manor’s staff would not have had any effect on her. But there is nothing in the petition to indicate that a medical condition brought Ms. Rivera to Forest Manor; it was just as likely that the normal infirmities of advanced age necessitated her residing there. Also, this accident could have occurred with any vehicular transport, whether medically related or not, if her wheelchair did not have a safety strap or seatbelt. The fact that it occurred in the course of a medical transport does not bring it within the ambit of medical malpractice. Finally, there is no allegation or indication that the alleged failure to provide for her safety was intentional.

Examining the jurisprudence, we find that the case most closely resembling the facts of this case is the Louisiana Supreme Court case of Williamson, 888 So.2d 782. In that case, a wheel fell off a wheelchair while the patient in the chair was being moved by a medical center employee. The court construed the plaintiff’s petition, as supplemented and amended, finding that the plaintiff alleged an unintentional tort, in that the hospital or its employee was negligent in failing to repair the wheelchair and failing to ensure that the wheelchair was in proper working condition before returning it to service. Applying the Coleman factors, the supreme court reasoned as follows:

|9We find that the particular wrong alleged here, that the hospital negligently failed to repair the wheelchair and failed to insure that it was in proper working condition béfore returning it to service, is neither “treatment related” nor caused by a dereliction of “professional skill” within the meaning of the Medical Malpractice Act. The court of appeal reasoned that the transportation of a patient in a wheelchair as the patient is being discharged from the facility is part of the overall treatment of the patient, and is therefore “treatment related.” While that reasoning might apply in a different case, the wrong complained of here is that the hospital negligently failed to repair the wheelchair and placed it back into service without verifying that it was properly repaired. Those acts are not directly related to, nor do they involve, “treatment” of this patient.
Further, no “professional skill” was exercised in the repairing of the wheelchair or the decision to place it back into service. There is no allegation remaining in the petition as supplemented and amended that either the hospital or its employee was negligent in the transporting of or the decision to transport the patient in this manner.... [T]he significance of the term “malpractice” is that it is used to differentiate professionals from nonprofessionals for purposes of applying these statutory limitations of tort liability. Here, there has been no showing that a dereliction of professional medical skills resulted in the injury to the plaintiff.
With regard to the alleged negligent failure to repair a wheelchair, we cannot envision the need for expert medical evidence to determine whether the appropriate standard of care was breached.... While expert testimony might be necessary to establish a duty and breach thereof, there has been no showing that expert medical testimony will be necessary to establish the proper maintenance procedures regarding this wheelchair.
* * ⅜:
The court of appeal, apparently addressing the allegations of the original petition before it was supplemented and amended, found that the hospital employee’s decision to use a wheelchair to transport the patient involved an assessment of her condition. There is simply no showing that this plaintiffs transportation by wheelchair to the parking lot involved an assessment of her condition by the hospital’s employee.... Moreover, the pertinent act or omission was not the decision to transport this patient by wheelchair, but the faulty repair of the wheelchair.
The repair and use of a wheelchair to transport a patient has not been shown to be within the scope of activities a hospital must first be licensed to perform. While the transporting of a patient using a wheelchair might be an expected activity of a hospital, hospitals engage in all sorts of activities, and not every activity requires licensing from the state. As the defendant admits in brief, none of the standards set forth by the Louisiana Department of Health and Hospitals pertains specifically to the use of wheelchairs.
[The fifth] factor initially weighs to some extent in favor of the defendant, because the plaintiff likely would not have been transported in the wheelchair had she not sought treatment at the hospital. Such reasoning, however, employs a “but for” rationale that may be overly facile. It is just as reasonable to say that any visitor to the hospital, even those not seeking treatment, who used this particular wheelchair could have suffered injury.

[T]here is no allegation that the tort allegedly committed by the health care provider or its employee was intentional. Williamson, 888 So.2d at 789-91 (citations omitted). Certainly, the case before us does not involve the exact same factual circumstances, but, like the Williamson case, the allegations of negligence pertain to the condition of the equipment being used to transport the patient, not to the decision to transport, the means of transport, or an assessment of the patient’s condition necessitating use of the equipment.

In another case involving the failure to provide a patient with equipment in proper working condition, the supreme court again concluded that the petition did not sound in medical malpractice. In Blevins v. Hamilton Med. Ctr., Inc., 07-127 (La.6/29/07), 959 So.2d 440, 447, the complaint was that the patient’s bed moved as he tried to get out of it. The plaintiff alleged the causes of his fall were faulty equipment, the failure to keep the bed in the lowest position with the wheels locked, and the failure to properly instruct him on proper use and safety with regard to his bed. Applying the Coleman factors, the supreme court concluded that these complaints alleged general negligence, “as the wrongs alleged are not integral to the rendering of care and treatment by the health care provider to the patient in this case.” Blevins, 959 So.2d at 447.

In a case involving a 92-year-old double amputee who fell from a wheelchair while being transported by nursing home staff, the supreme court concluded that it was clear that the plaintiffs allegation involved the “handling of a patient, including loading and unloading of a patient,” which comes directly under the Act’s definition of “malpractice.” Richard v. Louisiana Extended Care Centers. Inc., 02-0978 (La.l/14/03), 835 So.2d 460, 468-69. However, the court further observed that although “an act of malpractice can occur in the rendition of professional services, the patient must still be in the process of receiving ‘health care’ from the doctor or hospital when the negligent rendition of professional services occurs.... This means that the act or omission must have occurred ‘during the patient’s medical care, treatment or | n confinement. ’ ” Richard, 835 So.2d at 468, citing Price v. City of Bossier City. 96-2408 (La.5/20/97), 693 So.2d 1169, 1172-73. The court further noted that in the case of a nursing home, the nursing home resident is not always receiving medical care or treatment for any specific condition. Because there was nothing in the record to indicate whether that plaintiff was in the nursing home for medical treatment, or whether the fall oc-eurred during the course of providing medical treatment, the supreme court remanded the case for a determination of whether the allegations that the plaintiff was negligently allowed to fall from her wheelchair constituted allegations of medical malpractice under Coleman. Richard, 835 So.2d at 468-69.

Factual circumstances similar to those in Richard existed in Munson v. Lakewood Quarters, LP., 06-1428 (La.App. 1st Cir.7/18/07), 965 So.2d 448. There the allegations of the petition were simply that Ms. Munson, who was disabled and in need of close supervision and care, fell from her wheelchair when an employee of the defendants, while attempting to transport Ms. Munson from her room to the dining area, failed to adequately secure her in her wheelchair. The record did not disclose whether Ms. Munson was placed in the nursing home for any specific treatment of a particular condition, rather than 24-hour custodial shelter, or that she was on her way to or from any medical treatment when the accident occurred. Therefore, this court concluded that the nursing home had failed to carry its burden of proving that Ms. Munson’s claim was governed by the Act and that it was accordingly entitled to a medical review panel. Munson, 965 So.2d at 454. As in Richard, the case was remanded for a full evidentiary hearing on whether the alleged negligence constituted medical malpractice under Coleman.

In the case before us, we likewise conclude that Forest Manor has failed to carry its burden of proving that Ms. Rivera’s claim was governed by the Act, such that it was entitled to a medical review panel. However, this case does not involve the patient’s fall from a wheelchair while inside the nursing home or while being pushed by a nursing home employee. Her fall occurred in a vehicle while she was being transported to a |12medical facility. Therefore, no additional evidence is needed to determine whether the decision of the nursing home to allow her to be transported in a wheelchair that was not equipped with a seatbelt or safety strap was within the ambit of the Act. Under the particular facts of this case, and having reviewed the jurisprudence and the Coleman factors as they relate to those facts, we conclude that Forest Manor has failed to prove that the negligent acts alleged by Ms. Rivera fell within the ambit of the Act, such that it would be entitled to a medical review panel.

CONCLUSION

Based on the above, we reverse the district court judgment that upheld the defendant’s exception of prematurity, and remand this case to the district court for further proceedings in accord with this opinion. All costs of this appeal are assessed to Forest Manor.

REVERSED AND REMANDED.

      . The original petition referred to this facility as Forest Manor Nursing Home, but when named as a defendant in her supplemental and amending petition, the name given was Covington Nursing Home. A second supplemental and amending petition stated that the name of the nursing home defendant was Alexandria Investments, L.L.C., d/b/a Forest Manor Nursing Home, and substituted that name in all the paragraphs of the petition that had alleged fault on the part of Covington Nursing Home. However, responsive pleadings filed by the nursing home defendant stated that the correct name was Community Care Center of Covington, L.L.C., d/b/a Forest Manor Nursing Home. The court’s judgment was rendered in favor of Community Care Center of Covington, LLC, d/b/a Forest Manor Nursing Home. Therefore, this opinion will continue to designate the nursing home defendant as "Forest Manor.”

      . After the dilatory exception was filed, as a precautionary measure, Ms. Rivera applied to the Patients’ Compensation Fund to have a medical review panel convened to evaluate her claims against Forest Manor.

      . Louisiana Revised Statutes 40:1299.41 through 1299.49.

      . See LaCoste, 966 So.2d at 525.

      . See LSA-R.S. 40:1299.41(A)(13).


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    TIN, INC. v. WASHINGTON PARISH SHERIFF’S OFFICE, Robert J. “Bobby” Crowe, in his Capacity as Sheriff and Sales and Use Tax Collector for Washington Parish, and Brandi Ritchie, in her Capacity as the Sales and Use Tax Audit Manager for the Washington Parish Sales and Use Tax Department.
    No. 2012 CA 0156.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2012.
    Rehearing Denied Aug. 15, 2012.

      Jesse R. Adams, III, Andre B. Burvant, Kathryn S. Friel, Matthew A. Mantle, New Orleans, LA, for Plaintiff-Appellant TIN, Inc.
    Robert R. Rainer, Drew M. Talbot, Baton Rouge, LA, for Defendants-Appellees Washington Parish Sheriffs Office, and Robert J. “Bobby” Crowe.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   KUHN, J.

12Taxpayer-appellant, TIN, Inc. (TIN), appeals the trial court’s judgment, which sustained peremptory exceptions of prescription and peremption, among other things, filed by the tax collector-defendants, Washington Parish and Sheriff Robert J. “Bobby” Crowe in his official capacity as the Ex-Officio Tax Sales and Use Collector for all taxing authorities located in Washington Parish (collectively the tax collector) and dismissed the taxpayer’s claims for refunds for alleged overpay-ments of sales and use taxes between January 1, 2001 and December 31, 2007. For the reasons that follow, we affirm the dismissal of the taxpayer’s petition.

FACTUAL AND PROCEDURAL BACKGROUND

On May 27, 2009, TIN filed this lawsuit, captioned “PETITION FOR REVIEW OF REFUND CLAIM DENIAL,” averring that as owner of a paper mill in Washington Parish, whose principal business activities include the production and sale of unbleached kraft paper, it had paid taxes to Washington Parish that were not due. Claiming that it was entitled to an exemption for its purchases of the chemicals sodium hydroxide (caustic soda) and sodium hydrosulfide (NaSH) utilized in its manufacturing process, TIN alleged that on multiple occasions it had requested refunds from the tax collector for taxes paid between January 1, 2001 and December 31, 2007. After the tax collector “formally notified” TIN that it was disallowing TIN’s most recent request for a refund, TIN filed this lawsuit seeking to recover the refunds.

The tax collector generally denied the allegations of TIN’s petition and filed several exceptions, including a peremptory exception of no cause of action. Subsequent to a grant of leave by the trial court, TIN amended its petition to ^particularly describe how caustic soda and NaSH were recognizable and identifiable components purchased for the purpose of reprocessing into TIN’s end product and, as such, qualified for the exclusion to local sales tax collection as “materials for further processing into articles of tangible personal property for sale at retail.” See La. R.S. 47:301(10)(c)(i)(aa) and La. R.S. 47:337.6(B).

After answering the amended petition with a general denial, the tax collector filed peremptory exceptions raising objections of no right of action, no cause of action, prescription, and peremption, as well as a plea of estoppel. The trial court sustained the exceptions based on prescription and peremption as to three claims; applied the plea of estoppel as to one claim; and sustained the exception based on no cause of action as to two of the claims it had also concluded were prescribed and perempted. On March 24, 2011, the trial court signed a judgment, which effectively dismissed all of TIN’s claims, and TIN appealed.

DISCUSSION

The Louisiana legislature enacted the Uniform Local Sales Tax Code (ULSTC), effective July 1, 2003. See La. R.S. 47:337.1 and 2003 La. Acts, No. 73, § 1. Although TIN has claimed entitlement to a refund for the time period between January 1, 2001 and June 30, 2003, which predates the ULSTC’s effective date, the parties do not dispute that those claims are regulated by the administrative provisions of Chapter 18, Subtitle II, of Title 47, which addresses revenue and taxation. See La. R.S. 47:337.2(D). On appeal, TIN challenges the trial court’s conclusions, dismissing all its claims for refunds.

“[L]aws regulating the collection of taxes are sui generis and comprise a system to which general provisions of the law have little, if any, relevance.” Mallard Bay Drilling, Inc. v. Kennedy, 2004-1089 (La.6/29/05), 914 So.2d 533, 549. The time periods set forth in the ULSTC are peremptive; once elapsed, the rights of the taxpayer set out in the statutory scheme are extinguished. See West Baton Rouge Parish Revenue Dep’t. v. Louisiana Machinery Rentals, LLC, 2011-0711 (La.App. 1st Cir.3/9/12), 91 So.3d 1032, 1040 (relying on La. C.C. art. 3458; Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291,1298).

An objection of peremption is a peremptory exception. See La. C.C.P. art. 927(A)(2). Peremption is prescription that is not subject to interruption or suspension. Rando v. Anco Insulations Inc., 2008-1163 (La.5/22/09), 16 So.3d 1065, 1082; see also La. C.C. art. 3461 (providing that peremption may not be renounced, interrupted, or suspended).

Claims under the Administrative Provisions of Chapter 18:

The attachments to TIN’S petitions reveal that on December 13, 2004, a letter was sent to the tax collector from DuC-harme, McMillian and Associates, Inc. (DMA), advising that it had been retained by the taxpayer to review its sales and use tax payments to Washington Parish. DMA asserted that the taxpayer had incorrectly overpaid use taxes between January 1, 2001 through November 30, 2003, on caustic soda and NaSH, which, DMA asserted, qualified for “the raw material exclusion” and for which a refund in the amount of $504,715.21 was requested.

TIN first asserts that the trial court incorrectly concluded that its claim for a refund for the time period between January 1, 2001 and June 30, 2003 was 1 ¿prescribed and perempted. The taxpayer maintains that under La. R.S. 47:1625, the tax collector was required to notify TIN by registered mail that the claim for a refund had been denied, and because the tax collector did not respond to the December 13, 2004 request, the claim is timely. We disagree.

La. R.S. 47:1625 provides in relevant part,

If the collector fails to act on a properly filed claim for refund or credit within one year from the date received by him or if the collector denies the claim in whole or in part, the taxpayer claiming such refund or credit may appeal to the board of tax appeals for a hearing on the claim filed. No appeal may be filed before the expiration of one year from the date of filing such claim unless the collector renders a decision thereon within that time, nor after the expiration of sixty days from the date of mailing by registered mail by the collector to the taxpayer of a notice of the disallowance of the part of the claim to which such appeal relates.

See also and compare La. R.S. 47:337.81(A) of the ULSTC.

It is undisputed that the tax collector did not send any communication advising the taxpayer that it had denied its claim for a refund and that the taxpayer did not appeal or otherwise request a hearing on the claims for refunds for taxes paid between January 1, 2001 and June 30, 2003 as required under the statute. Thus, under the plain language of La. R.S. 47:1624, its provisions are inapplicable, and having failed to request a hearing on the denial of the claim by the tax collector’s inaction, TIN’s reliance on the statute is misplaced.

La. R.S. 47:1621(F), which authorizes overpayments, states in pertinent part,

This Section shall not be construed to authorize any refund of tax overpaid through a mistake of law arising from the | ^misinterpretation by the secretary of the provisions of any law or of the rules and regulations promulgated thereunder. In the event a taxpayer believes that the secretary has misinterpreted the law or promulgated rules and regulations contrary therewith, his remedy is by payment under protest and suit to recover, or by appeal to the board of tax appeals in instances where such appeals lie.
(Emphasis added.)

See also and compare La. R.S. 47:337.77(F) of the ULSTC.

This section provides that the taxpayer’s remedy is either “by payment under protest and suit to recover” or “by appeal” in those instances where such appeals lie. Clearly, the latter remedy, which appears to reference the provisions of La. R.S. 47:1625, is inapplicable because, among other things, the tax collector did not send a communication of a denial of the request for refunds, and the taxpayer did not appeal for a hearing. Thus, the only other available remedy to TIN was “by payment under protest and suit to recover,” ie., under the provisions of La. R.S. 47:1576.

La. R.S. 47:1576(A)(l)(a) requires that the taxpayer protesting the payment of any amount found due, or the enforcement of any provision of the tax laws in relation thereto, shall remit the amount due and at that time shall give notice of intention to file suit for the recovery of such tax. And La. R.S. 47:1576(A)(2) requires that upon receipt of the taxpayer’s notice of its intention to file suit to recover the tax, the amount remitted shall be placed in an escrow account and held for a period of thirty days, during which time if suit is filed, the funds in the escrow account shall be further held pending the outcome of the suit. See and compare La. R.S. 47:337.63 of the ULSTC.

Because TIN seeks a refund for an alleged overpayment, the taxpayer did, indeed, remit the amount due. But nothing in the record establishes that on the 17dates that TIN remitted the amount due, it gave notice of its intention to file a suit for recovery of the taxes paid.

La. R.S. 47:1623(A) addresses the prescriptive period for refunds, setting forth in pertinent part,

After three years from the 31st day of December of the year in which the tax became due or after one year from the date the tax was paid, whichever is the later, no refund or credit for an overpayment shall be made unless a claim for credit or refund has been filed with the secretary by the taxpayer claiming such credit or refund before the expiration of said three-year or one-year period.

See and compare La. R.S. 47:337.79(A) of the ULSTC.

The taxes for which DMA requested a refund for the taxpayer in the December 13, 2004 letter were for the time period between January 1, 2001 and June 30, 2003. The record fails to establish the exact date that TIN remitted its tax payments during this time period, but TIN’s suit seeking a refund of the alleged overpayment of taxes during that time period was not filed until May 2009. Thus, under an application of the three-year period set forth in La. R.S. 47:1623 insofar as the 2001 payment of taxes, the refund request was untimely since TIN did not file a suit in accordance with La. R.S. 47:1576 by December 31, 2004; insofar as the 2002 taxes, the refund request was untimely when TIN failed to file a payment-under-protest suit by December 31, 2005; and the refund for the request of the alleged overpayment of taxes for the time period between January 1 and June 30, 2003 was untimely when TIN failed to file suit by December 31, 2006. Accordingly, the trial court correctly determined that TIN’s claims for a refund based on DMA’s request on behalf of the taxpayer in a letter to the tax collector | «dated December 13, 2004, were prescribed and perempted under the administrative provisions of Chapter 18.

Claims under the ULSTC:

Similarly, under a direct application of the provisions of the ULSTC, the claims for refund resulting from the time period between July 1, 2003 and November 30, 2003, as well as those set forth in a subsequent letter dated December 28, 2006, sent to the tax collector by DMA on behalf of TIN, are prescribed and per-empted. The December 28, 2006 letter requested a refund for taxes paid during the time period from December 1, 2003 through December 31, 2004. In response to the December 28, 2006 letter requesting the refund, as with the claims of the December 13, 2004 letter, the tax collector did not act, ie., he neither sent a refund nor notified the taxpayer of a denial.

At the time that the requests for refunds were made, La. R.S. 47:337.81(A) stated in pertinent part,

If the collector fails to act on a properly filed claim for refund or credit within one year from the date received by him or if the collector denies the claim in whole or in part, the taxpayer claiming such refund or credit may within thirty days of the notice of disallowance of the claim request a hearing with the collector for redetermination. The collector shall render a decision within thirty days of the request by the taxpayer. The taxpayer may appeal to a court of competent jurisdiction. No appeal may be filed before the expiration of one year from the date of filing such claim unless the collector renders a decision thereon within that time, nor after the expiration of ninety days from the date of mailing by certified or registered mail by the collector to the taxpayer of a notice of the disallowance of the part of the claim to which such appeal relates.

Because the tax collector did not send a notice of disallowance, we conclude that these provisions, permitting a taxpayer to request a hearing with the tax collector for a redetermination, are inapplicable. The requests for refunds were Rdated December 13, 2004 and December 28, 2006. Thus, under the plain language of the statute, an appeal of a statutory denial of all these claims by the tax collector (due to his failure to act on it) would have had to have been filed by December 13, 2005 and December 28, 2007, respectively. Even if we were to construe the present lawsuit as an appeal to “a court of competent jurisdiction,” it is untimely on its face under the provisions of La. R.S. 47:337.81, since it was not filed until May 27, 2009.

Moreover, piercing the title of TIN’s pleadings to determine the true nature of the taxpayer’s claims, it is evident that they are based on the belief that the tax collector has misinterpreted the law insofar as TIN’s entitlement to claim an exclusion to its payment of taxes. La. R.S. 47:337.77 addresses the authority for refunds of overpayments, providing in part,

B. The collector shall make a refund of each overpayment where it is determined that:
(1) The tax was overpaid because of an error on the part of the taxpayer in mathematical computation on the face of the return or on any of the supporting documents.
(2) The tax was overpaid because of a construction of the law on the part of the taxpayer contrary to the collector’s construction of the law at the time of payment.
(3) The overpayment was the result of an error, omission, or a mistake of fact of consequence to the determination of the tax liability, whether on the part of the taxpayer or the collector.
(4) The overpayment resulted from a change made by the collector in an assessment, notice, or billing issued under the provisions of this Chapter.
(5) The overpayment resulted from a subsequent determination that the taxpayer was entitled to pay a tax at a reduced tax rate.
(6) The overpayment was the result of a payment that exceeded either the amount shown on the face of the return or voucher, or 11(1 which would have been shown on the face of the return or voucher if a return or voucher were required....
F. This Section shall not be construed to authorize any refund of tax overpaid through a mistake of law arising from the misinterpretation by the collector of the provisions of any law or of any rules and regulations. In the event a taxpayer believes that the collector has misinterpreted the law or rules and regulations contrary therewith, his remedy is by payment under protest and suit to recover. (Emphasis added.)

Reading the provisions of La. R.S. 47:337.77 in pari materia with the other provisions of the ULSTC, we are convinced that the appeal under La. R.S. 47:337.81 is solely for those bases articulated in La. R.S. 47:337.77(B). Thus, when a taxpayer seeks to challenge the tax collector’s interpretation of a law — as TIN does with its claim that the tax collector has incorrectly interpreted the exclusion of the payment of tax for “materials for further processing into articles of tangible personal property for sale at retail” — under La. R.S. 47:337.77(F), its remedy is by payment under protest and suit to recover, i.e., under the provisions of La.R.S. 47:337.63.

On December 28, 2006, La. R.S. 47:337.63 provided in part,

A. (l)(a) Any taxpayer protesting the payment of any amount found due by the collector or the enforcement of any provision of law in relation thereto shall remit to the collector the amount due and at that time shall give notice of intention to file suit for the recovery of such tax....
(2) Upon receipt of this notice, the amount remitted to the collector or the amount of protested taxes that have been paid to the selling dealer shall be placed in an escrow account and held by the collector or his duly authorized representative for a period of thirty days. If suit is filed for recovery of the tax within the thirty-day period, the funds in the escrow account shall be further held pending the outcome of the suit.

InThus, like its counterpart, ie., La. R.S. 47:1576 made applicable through La. R.S. 47:337.2(D) to claims asserted before July 1, 2003, La. R.S. 47:337.63(A)(l)(a) mandates that the taxpayer protesting the payment of any amount found due, or the enforcement of any provision of the tax laws in relation thereto, to remit to the tax collector the amount due and “at that time shall give notice of intention to file suit for the recovery of such tax.” (Emphasis added.) Likewise, under La. R.S. 47:337.63(A)(2), upon receipt of the taxpayer’s notice of its intention to file suit to recover the tax, the tax collector is mandated to place the amount remitted in an escrow account for a period of thirty days, during which time if suit is filed, the funds in the escrow account “shall be further held pending the outcome of the suit.”

Thus, similar to the claims for refunds for the periods preceding the enactment of the ULSTC, TIN has remitted the amount found due by the tax collector for the time periods between July 1, 2003 and December 31, 2004. But the record contains no evidence to establish that TIN gave notice to the tax collector of its intention to file a suit for recovery of the taxes paid at the time it remitted the amount due as required under La. R.S. 47:337.63(A)(l)(a).

La. R.S. 47:337.79(A) provides the applicable prescriptive period for refunds, stating in great similarity to its counterpart in the administrative provisions of Chapter 18 that,

After three years from the thirty-first day of December of the year in which the tax became due or after one year from the date the tax was paid, whichever is the later, no refund or credit for an overpayment shall be made unless a claim for credit or refund has been received by the collector from the taxpayer claiming such credit or refund before the expiration of said three-year or one-year period.

112Mindful that the record fails to establish the exact date TIN remitted the payments of taxes due, under an application of these provisions to the claims set forth for the time periods between July 1, 2003 and December 31, 2004, TIN was required to file a suit under the provisions of La. R.S. 47:337.63 no later than December 31, 2007. Having failed to give the tax collector the requisite notice at the time it remitted payment, as required under La. R.S. 47:337.63(A)(l)(a) when a payment-under-protest suit is filed, TIN’s claims for refunds for these time periods are prescribed and perempted. Thus, the trial court correctly sustained the exceptions of prescription and peremption for the claims for refunds set out in both the December 13, 2004 and December 28, 2006 letters.

On October 24, 2008, in a letter sent by DMA, TIN again requested refunds for alleged overpayment of taxes, this time for the periods between January 1, 2005 and December 31, 2007, in the amount of $822,081.46. In a letter, dated February 9, 2009, the tax collector “denied in its entirety” these refund requests. TIN then filed this lawsuit on May 27, 2009.

Like the requests for refunds for the preceding years, we conclude the trial court correctly dismissed TIN’s claims as prescribed and perempted. Although the October 24, 2008 letter does not articulate a basis for the claim, DMA stated that “TIN incorrectly paid use tax on raw materials,” apparently referencing its earlier claims for refunds.

Any claims for refunds arising out of a challenge to the tax collector’s interpretation of the law must be, under La. R.S. 47:337.77(F), by a payment under protest and suit to recover, i.e., in accordance with the provisions of La. R.S. 47:337.63. And under the provisions of La. R.S. 47:337.63(A)(1)(a), TIN was |13required at the time it remitted payment to the tax collector to advise of its intention to file suit for the recovery of those taxes. Nothing in the record establishes that when it remitted taxes for the time period between January 1, 2005 through December 31, 2007, TIN advised the tax collector of its intention to file suit so as to permit the tax collector to place those payments in escrow pending the outcome of the protest suit. Thus, under La. R.S. 47:337.79(A), as of December 31, 2010, TIN’S claims were prescribed and perempted because, piercing through the allegations of its May 27, 2009 petition, TIN simply challenges the tax collector’s interpretation of its entitlement to claim the exemption from the payment of taxes for “materials for further processing into articles of tangible personal property for sale at retail” under La. R.S. 47:301(10)(c)(i)(a)(a) and La. R.S. 47:337.6(B). Accordingly, the trial court correctly dismissed TIN’S claims for refunds for the time period between January 1, 2005 and December 31, 2007, because the claims were prescribed and perempt-ed.

luDECREE

For these reasons, the trial court’s dismissal of TIN’S petition is affirmed. Appeal costs are assessed against plaintiff-appellant, TIN, Inc.

AFFIRMED.

      . Attached to the tax collector's answer was a letter, dated December 16, 2003, requesting a refund of $613,642.97 in use taxes for overpayment "on purchases of sodium-based raw materials including caustic soda used in the papermaking process,” which similarly articulated the production of unbleached kraft paper and the manner in which caustic soda is used in the process as that set forth in the December 13, 2004 letter. On appeal, TIN does not challenge the trial court's dismissal of the claims as requested in the December 16, 2003 letter.

      . TIN does not explain how the board of tax appeals has jurisdiction over a claim for a refund of sales and use taxes allegedly overpaid. We note that under the particularized provisions of the ULSTC, see La. R.S. 47:337.81 (discussed infra), the appeal of a denial of a claim in whole or part is to the tax collector for a redetermination. Because we find the statute is inapplicable, the issue over the proper reviewing authority is not before us, but we point out that under La. R.S. 47:337.2(D), the courts are directed to interpret those provisions of local ordinances which are similar to the provisions of Chapter 18 to have the same meaning and application.

      . Although the parties agree that a hearing was held, ostensibly in compliance with a timely request for a hearing as permitted under La. R.S. 47:337.81(A), at which the tax collector apparently again denied the request for refund, the record contains neither a copy of the request nor a transcript of the hearing. Nothing in TIN’S petition suggests that the basis of its claim for refund is one of those set forth in La. R.S. 47:337.77(B). As such, its May 27, 2009 petition fails to state a cause of action and the trial court correctly dismissed it on this basis. See La. C.C.P. art. 927; see also Capital City Towing & Recovery, Inc. v. City of Baton Rouge, 97-0098 (La.App. 1st Cir.2/20/98), 709 So.2d 248, 250-51. And because a claim for a refund is perempted after three years from the thirty-first day of the year in which the tax became due, see La. R.S. 47:337.79(A) and West Baton Rouge Parish Revenue Dep’t., 2011-0711, 91 So.3d at 1040, the claims for refunds for taxes paid during the time period between January 1, 2005 and December 31, 2007, requested in the October 24, 2008 letter were perempted as of December 31, 2010. Thus, TIN cannot amend its petition to state of cause of action. See La. C.C.P. art. 934.

      . Because we have affirmed the dismissal of TIN's claims for refunds, we pretermit a discussion of the propriety of the trial court’s actions of sustaining the exceptions of no cause of action as to the refunds for the time periods January 1, 2001 through December 28, 2006, as well as its application of the tax collector’s plea of estoppel.


author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Jemdry GUITY.
    No. 2011-KA-0907.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 11, 2012.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Matthew Caplan, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Martin E. Regan, Jr., Aris W. Cox VI, Martin E. Regan, Jr. & Associates, P.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

|, STATEMENT OF CASE

On January 15, 2010, the defendant, Jemdry Guity, was charged by bill of information with aggravated battery with a dangerous weapon. The defendant pled not guilty at his arraignment on February 2, 2010. After a hearing on May 20, 2010, the trial court denied the defendant’s motion to suppress identification and found probable cause. On October 12, 2010, the State provided the defendant with a Pri-eur notice. The trial court conducted a Prieur hearing on November 15, 2010, and granted the State’s motion on November 17, 2010, to which the defendant objected. After a jury trial on January 31, 2011, the defendant was found guilty of aggravated battery. On February 10, 2011, the defendant was sentenced to five years at hard labor, with credit for time served. The trial court noted that the defendant had been convicted, and sentenced under, a crime of violence. The defendant filed a motion for appeal on March 23, 2011, which was granted on May 25, 2011.

| .STATEMENT OF FACT

Gilmer Ramos testified that in September 2009, he had an altercation with the defendant, Jemdry Guity, at a soccer field on Washington Avenue. Gilmer Ramos stated that he was playing in a soccer game against the defendant’s team. The defendant started playing “dirty” and did not stop when Gilmer Ramos requested that he do so. At one point, the defendant almost hit Gilmer Ramos in the head. The two men then began fighting. Other players stopped the fight. The defendant left and went to his car. He returned with a knife. Gilmer Ramos told the defendant to put the knife down and fight like a man. The defendant refused and approached the defendant with the knife. One of the defendant’s friends intervened, spoke with the defendant and convinced the defendant to leave.

A couple of days later, Gilmer Ramos was playing dominos outside his uncle’s house on St. Andrew Street. Four people were playing dominos and several others were standing, waiting for their turn to get into the game. Gilmer Ramos was sitting such that he was facing St. Andrew Street and did not see the defendant walking from Danneel Street. The defendant hit him in the eye and knocked him down. Gilmer Ramos stated it felt like the defendant used something metal to hit him. Gilmer Ramos’s uncle called the police. The EMS took Gilmer Ramos to the hospital. When Gilmer Ramos spoke with the police, he told them that “Pedro” had hit him. Gilmer Ramos identified the defendant as the person who assaulted him. After the incident, he learned that the defendant worked at Louisiana Landscape. Gilmer Ramos went to Louisiana Landscape and saw the defendant working there. Gilmer Ramos then called the police and told them that the person who assaulted him worked at Louisiana Landscape. Gilmer Ramos stated that he could not see out of his left eye after the incident. He testified that [¡.the pain was extreme. Gilmer Ramos stated that he had several surgeries on his eye, but his eye could not be saved.

Walter Martinez testified that he plays soccer with the victim, Gilmer Ramos. He recalled the argument that occurred between Gilmer Ramos and the defendant in September 2009. Walter Martinez stated that the defendant made a dirty play during the game and that the victim and the defendant started fighting. Other players separated the two men. The defendant went to his car and returned with a knife. The victim told the defendant to throw down the knife, and he would fist fight him. The defendant did not discard the knife. The victim was unarmed. The witness identified the defendant as the person who threatened the victim with a knife. Walter Martinez stated that he was not present when the victim was assaulted, but came upon the scene on his way home from work. He did not speak with the police on the scene.

Angel Guevara testified that he is Gil-mer Ramos’s uncle and resides at 2000 St. Andrew Street. The assault occurred in front of his house. On the day of the attack, several people were playing domi-nos in front of his house. He had been playing but had gone inside. He was inside his residence when the assault occurred. When he came out, he saw Gilmer Ramos’ eye bleeding and the defendant was running down St. Andrew Street. The witness stated that he ran after the defendant but the defendant got into a car and left the scene. Angel Guevara called 911 to report the incident.

Wilson Yair Lino Martinez (“Wilson Martinez”) was with Gilmer Ramos when the assault occurred. Wilson Martinez stated that he was playing dominos with Gilmer Ramos when he saw the defendant come around the corner and walk towards Gilmer Ramos. Wilson Martinez testified that the defendant hit Gilmer |4Ramos with a bat and then ran to a car and left the scene. Gilmer Ramos lost consciousness briefly, and Wilson Martinez attempted to provide first aid. Angel Guevara came out of his house and called the police. Wilson Martínez identified the defendant as the person who assaulted Gilmer Ramos. Wilson Martinez stated that he went with Gilmer Ramos to Louisiana Landscape in November 2009. They saw the defendant working there and called the police. They told the police that the defendant had assaulted Gilmer Ramos. Wilson Martinez testified that the defendant said “just one” when he hit Gilmer Ramos. Wilson Martinez stated that the defendant took the bat with him.

Dr. Daniel Hanson, the chief resident in ophthalmology at LSU/Oschner, treated the victim on September 18, 2009. He testified that the victim’s left eye was swollen shut, and that the victim had no vision in the left eye. The injury to the eye was very severe, and surgery was performed to repair the damage.

On September 18, 2009, Officer John Walker responded to call for assistance at the intersection of St. Andrew and Dan-neel Streets. When the officer arrived on the scene, he observed that the victim’s left eye was swollen shut and there was a severe laceration above his left eye. The victim and a witness, Mr. Ariel, identified the perpetrator of the attack as “Pedro.” The victim stated that he was playing do-minos with some friends when the perpetrator came from behind and struck him on the left side. The victim and the witness also stated that “Pedro” fled the scene in a red four door car with a white stripe on it. They could not identify the make or model of the car. No one on the scene knew the perpetrator’s real name. The officer called for emergency medical services and notified his supervisor and the Persons Crime Detective Unit. Detective Asaro met him at the scene, and they followed the ambulance to University Hospital. Once the victim |awas stabilized, the officers obtained more information from him and gave him a NOPD item number slip to get a police report. During the officer’s investigation, he learned that the victim had a previous argument with the perpetrator at a soccer game.

Detective Armando Asaro investigated the attack against the victim. Detective Asaro stated that when he arrived on the scene, the victim was being transported to the hospital. The officer remained on the scene for a while and then relocated to the hospital. When he arrived at the hospital, the witness was in the emergency room. The victim had a severe laceration to the left eye. The officer spoke with the victim while medical personnel were treating the victim. The victim identified the perpetrator as “Pedro” and described him as being a black male, six feet two inches tall and weighing one hundred seventy pounds. Detective Asaro had learned that the victim was struck with a metal pipe. The officer also spoke with a witness who was with the victim at the hospital. The witness provided a description of the clothing worn by the perpetrator. The witness indicated that the perpetrator was wearing a white tee shirt and blue jeans. The witness also stated that the perpetrator approached the victim from the side and struck the victim with a metal pipe. Detective Asaro testified that he learned the defendant’s real name through the defendant’s sister. A witness had told the officer where the perpetrator’s sister lived. When the officer spoke with the sister, she gave the officer the defendant’s real name but not his address. Detective Asaro stated that he could not find an address for the defendant. The only information that the officer had was that the defendant lived on the west bank.

Deputy Dave Jackson, a member of the Jefferson Parish Sheriff Department, testified that on November 16, 2009, he responded to a call of a suspicious person | Rat Louisiana Landscape. When the officer arrived on the scene, he met with the victim who told him that there was a person at Louisiana Landscape who had attacked him in New Orleans. Another police officer made phone calls to the NOPD and learned that the incident occurred a couple of months earlier. The victim identified the defendant as the person who attacked him.

Detective Matthew McCleary of the New Orleans Police Department’s Persons Crime Unit became involved in the investigation in November 2009. He had been contacted by a Jefferson Parish Sheriffs Deputy who advised him that they responded to a suspicious person call and that when they arrived, Gilmer Ramos approached them and identified the defendant as the person who had assaulted him. The deputy gave Detective McCleary the defendant’s name and date of birth. Detective McCleary spoke with Gilmer Ramos about twenty minutes after he spoke with the deputy. Gilmer Ramos stated that he was one hundred percent positive that the defendant was the person who attacked him. The officer subsequently obtained an arrest warrant for the defendant.

Jemdry Guity testified that he did not assault Gilmer Ramos. Jemdry Guity admitted that he and Gilmer Ramos had an altercation during a soccer game in Sep-

tember 2009. However, Jemdry Guity stated that he did not mean to hit Gilmer Ramos with his elbow, but Gilmer Ramos did not believe him, and a fight ensued. Jemdry Guity testified that Gilmer Ramos struck him and busted his lip. Jemdry Guity also stated that he did not leave the soccer field and return with a knife. He testified that it was Gilmer Ramos who had a machete and was walking towards him. Jemdry Guity stated that he did not see Gilmer Ramos again until Gilmer Ramos showed up at Louisiana Landscape in November 2009.

^ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant argues that the State did not produce sufficient evidence to prove that he assaulted the victim. He makes the argument that the testimony presented was purely circumstantial and not sufficient to establish that the assault occurred.

The Louisiana Supreme Court set forth the standard for evaluating a claim of insufficient evidence in State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, [20]00-0674, (La.6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Neal, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to |Rprove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)).

If rational finders of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all of the evidence most favorable to the prosecution must be adopted. Id. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Johnson, 619 So.2d 1102 (La.App. 4 Cir.1993), citing State v. Rosiere, 488 So.2d 965, 968 (La.1986). Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the fact finder. State v. Brumfield, 93-2404, p. 5-6 (La.App. 4 Cir. 6/15/94), 639 So.2d 312, 316. Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones, 537 So.2d 1244, 1249 (La.App. 4 Cir.1989). Like all factual matters, credibility determinations are entitled to great weight and will not be disturbed unless contrary to the evidence. Id., citing State v. Vessell, 450 So.2d 938 (La.1984). Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’s testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369.

The defendant attempts to argue that the evidence to show that he assaulted the victim is circumstantial. The defendant relies upon his own testimony that he did not assault the victim, as well as the testimony of Dr. Hanson that the victim’s injuries could have occurred within twenty-four hours before the victim was seen in the hospital room and that he could not say with certainty that the cause of the trauma was from a baseball bat or some type of metal pipe. The defendant also questions the statements obtained by Officer Walker at the scene of the incident. |flThe defendant contends that the statements were obtained through the translations by one witness who did not testify at trial.

The defendant relies upon the case of State v. Shapiro, 431 So.2d 372 (La.1983), in which the Supreme Court reversed a conviction based upon circumstantial evidence. In Shapiro, the defendant was convicted of second degree murder of a woman with whom he lived. The only witness to the shooting was the defendant, who testified that the victim had committed suicide. The Supreme Court concluded that the evidence presented by the State was not sufficient to exclude a reasonable probability that the victim had committed suicide.

This Court recently distinguished Shapiro in a similar case. In State v. Williams, 2011-0414 (La.App. 4 Cir. 2/29/12) 85 So.3d, 759, the defendant was convicted of attempted second degree murder and aggravated burglary. On appeal, he argued that the State failed to produce sufficient evidence to prove that he was the person who committed the crime. At trial, the victim and other witnesses identified the defendant as the perpetrator. This Court stated:

Even though there was no physical evidence to link the appellant to the crimes, the victim positively identified him as the perpetrator. As noted by this court in State v. Jones, 2011-0649, p. 3 (La.App. 4 Cir. 10/19/11), 76 So.3d 608: “In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Robinson, 2002-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79. Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court. State v. Juluke, 98-341 (La.1/8/99), 725 So.2d 1291, 1293.” In addition, the victim’s son identified the appellant as the man whom he saw hitting his mother in the head when he ran to the kitchen upon hearing his mother scream. The defendant argues that it is debatable whether the victim’s son was coached to identify the defendant as the perpetrator. However, the evidence adduced at trial showed that the son disappeared after the shooting and was found by a police officer hiding in the victim’s bed, and all parties testified that neither the victim nor her mother, who arrived on the scene, had an opportunity to speak with the son before he spoke with the police and identified the defendant. Given this |1(ltestimony, the jury could have easily found that the victim’s and her son’s identification of the defendant was credible. As noted by this Court, a fact finder’s credibility determination is entitled to great weight and should not be disturbed unless it is contrary to the evidence. State v. Johnson, 2009-0259 (La.App. 4 Cir. 9/16/09), 22 So.3d 205; State v. Huckabay, 2000-1082 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093. The jury’s credibility finding was not contrary to the evidence.
* ⅜ * *
[I]n State v. Shapiro, 431 So.2d 372 (La.1982), the Court found that the circumstantial evidence adduced at trial was insufficient to support the defendant’s murder conviction.
Here, unlike in the circumstantial evidence cases cited by the defendant, there were two witnesses who positively identified the defendant as the perpetrator. The jury chose to believe their testimony, and there is nothing in the record to show that this finding was contrary to the evidence. The State presented sufficient evidence to support the jury’s finding that the defendant was the person who broke into the victim’s home and shot her.

Williams, 2011-0414, p. 10-11, 85 So.3d 759.

The defendant’s reliance upon Shapiro is without merit because there are eyewitnesses who identified the defendant as the person who assaulted the victim. Gilmer Ramos, Angel Guevara and Wilson Martinez all testified that the defendant was the person who assaulted Gilmer Ramos. Additionally, Dr. Hanson testified that when he first saw Gilmer Ramos, there was blood all over his face and the injury appeared to be fairly recent. Dr. Hanson stated that someone with this type of injury could not walk around for two days before receiving medical attention. He further testified that such injuries could be caused by a baseball bat or metal rod, without the occurrence of fractures to the face.

The evidence submitted by the State was not circumstantial. There was direct evidence from the victim and eyewitnesses that the defendant assaulted the victim with a baseball bat. The jury was well within its discretion in choosing to accept the testimony of the State’s witnesses, and finding that the defendant committed the offense of aggravated battery.

This assignment of error is without merit.

In ASSIGNMENT OF ERROR NUMBER 2

The defendant argues in his second assignment of error that the trial court erred in granting the State’s Prieur motion and allowing testimony about the altercation which occurred two days prior to the assault. The defendant contends that the State failed to prove by clear and convincing evidence that the incident occurred.

The appellate court will not overturn a ruling by the trial court on the admissibility of evidence of other crimes, absent an abuse of discretion. State v. Mosby, 595 So.2d 1135, 1139 (La.1992). Article 404(B) of the Louisiana Code of Evidence provides the basic rule regarding the use of evidence of “other crimes, wrongs or acts” at trial.

(1) Except as provided in Article 412 [regarding a victim’s past sexual behavior in sexual assault cases], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.

Whether the introduction of such evidence is allowed, however, is controlled by La. C.E. art. 403, which states that “[a]l-though relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” In State v. George, 2011-0325, p. 2 (La.2/23/11) 55 So.3d 788, 789, the Louisiana Supreme Court held that “Article 403, though, does not allow for the exclusion of relevant evidence if its probative value is equal to its prejudice.”

In Huddleston v. U.S., 485 U.S. 681, 682, 108 S.Ct. 1496, 1497, 99 L.Ed.2d 771 (1988), the United States Supreme Court, in reviewing the standard of proof for other crimes |12evidence under Federal Rule of Evidence 404(B), concluded that the trial court does not have to make a preliminary finding that the prosecution has proved the “other act” by a preponderance of the evidence before the trial court allows the evidence to be submitted to the jury. The Court held other crimes evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act.

We conclude that a preliminary finding by the court that the Government has proved the act by a preponderance of the evidence is not called for under Rule 104(a). This is not to say, however, that the Government may parade past the jury a litany of potentially prejudicial similar acts that have been established or connected to the defendant only by unsubstantiated innuendo. Evidence is admissible under Rule 404(b) only if it is relevant. “Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case.” Advisory Committee’s Notes on Fed.Rule Evid. 401, 28 U.S.C.App., p. 688. In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor. See United States v. Beechum, 582 F.2d 898, 912-913 (C.A.5 1978) (en banc).

Huddleston, 485 U.S. at 689, 108 S.Ct. at 1501.

The introduction of other crimes evidence to show motive is permitted under La. C.E. article 404(B). In State v. Robertson, 615 So.2d 1036 (La.App. 1 Cir. 1993), the trial court allowed the victim’s son to testify about an altercation between the defendant and the victim a few days before the defendant set fire to the victim’s car. The First Circuit found that the trial court did not err in allowing the introduction of testimony about the altercation. The court held that the testimony about the fight established a motive for defendant’s act of setting fire to the victim’s car.

In the present matter, the testimony about the prior altercation between the victim and defendant was used to show motive. Both the victim and the defendant testified about the incident, although each alleged the other to be the aggressor. |13Walter Martinez also testified about the incident, corroborating the victim’s testimony about the incident. Thus, the State produced sufficient evidence that the incident occurred and that the defendant was the aggressor.

This assignment is without merit.

CONCLUSION

Accordingly, we affirm the defendant’s conviction and sentence.

AFFIRMED

      . State v. Prieur, 277 So.2d 126 (La.1973).

      . The State argues in its appellee brief that the matter must be remanded because the trial court failed to inform the defendant of the time delays for post-conviction relief under La.C.Cr.P. article 930.8. However, this Court does not consider this an error patent which requires remand and does not address this issue unless raised by defendant. In State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189, the Louisiana Supreme Court held that La.C.Cr.P. art. 930.8(C), which requires the trial court to inform the defendant of the limitation period for filing an application for post-conviction relief, is supplicatory language which does not bestow an enforceable right on an individual defendant. As decided in State v. McDonald, 2002-2347 (La.App. 4 Cir. 2/19/03), 841 So.2d 38, this Court favors notifying a defendant of his rights under La.C.Cr.P. art. 930.8, when the trial court failed to do so, by advising the defendant of such right in its written appellate opinion. The State raises this issue because it seeks a remand for an imposition of court costs against the defendant. However, the State has not filed its own appeal or answered the present appeal. Thus, this issue is not appropriately before this Court.


author: MADELEINE M. LANDRIEU, Judge.

text:
    Lontraill GRIFFIN v. INTERIM LSU PUBLIC HOSPITAL.
    No. 2012-CA-0052.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 11, 2012.

      Shawn P. Benoit, Shawn P. Benoit LLC, Gretna, LA, for Plaintiff/Appellant, Lontr-aill Griffin.
    James D. “Buddy” Caldwell, Attorney General, Baton Rouge, LA, Thomas A. McGaw, Assistant Attorney General, Louisiana Department of Justice, Litigation Division, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

hLontraill Griffin seeks review of the judgment rendered by the Office of Workers’ Compensation Judge (“WCJ”) dismissing his “Disputed Claim for Compensation.” For the reasons set forth below, we amend and affirm as amended.

FACTS

On August 24, 2010, Mr. Griffin was employed as a maintenance worker by the State of Louisiana, through the Interim LSU Public Hospital, formerly known as the Medical Center of Louisiana at New Orleans (“MCLNO”). On that date, Mr. Griffin was in the freight elevator of the hospital going from the first floor to the basement. The elevator dropped suddenly and became stuck between floors. Mr. Griffin was trapped in the elevator for approximately two and one-half hours.

Mr. Griffin made a claim against his employer for injuries that he alleges he sustained in this accident. His employer paid both medical expenses and indemnity benefits for a period of time, but terminated these payments on May 19, 2011. Mr. Griffin brought this action challenging the termination of his benefits.

| ¡¿Prior to the hearing, the parties stipulated that on or about August 24, 2010, Mr. Griffin was involved in a work-related accident while in the course and scope of his employment with MCLNO, that MCLNO was self-insured, and that Mr. Griffin’s average weekly wage was $438.79. Mr. Griffin alleged that he suffered disabling back injuries in this accident and that he was unable to return to work. MCLNO asserted that the back injury Mr. Griffin allegedly sustained pre-dated this accident, and that the accident of August 24, 2010 did not exacerbate this preexisting injury beyond that for which they paid benefits.

ISSUES

I. Whether the WCJ erred in finding that Mr. Griffin failed to prove that he suffered a disabling injury while in the course and scope of his employment on August 24, 2010.

II. Whether the WCJ erred in failing to award penalties and attorney’s fees to Mr. Griffin.

DISCUSSION

It is well settled that factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Winford v. Conerly Corp., 2004-1278, p. 15 (La.3/11/05), 897 So.2d 560, 569; Masinter v. Akal Sec., 2005-1236, p. 3 (La.App. 4 Cir. 6/7/06), 934 So.2d 201, 204. In applying the manifest error standard, the appellate court must determine not whether the fact finder was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Bell v. Mid City Printers, Inc., 2010-0818, p. 7 (La.App. 4 Cir. 12/22/10), 54 So.3d 1226, 1232 (citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 6 (La.7/1/97), 696 So.2d 551, 556). Thus, if the evi dence contained in the record on appeal supports the factual determinations of the trier of fact, we are required to affirm the findings.

I. The WCJ did not err by finding that the claimant failed to meet his burden of proof.

La. R.S. 23:1221(l)(c) provides that a claimant who seeks workers’ compensation benefits on the basis that he is temporarily totally disabled must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of its nature, including employment while working in pain. Williams v. Children’s Hospital, 2007-0464, p. 3 (La.App. 4 Cir. 1/23/08), 996 So.2d 291, 293. To prevail at a workers’ compensation hearing, a claimant seeking benefits must establish by “clear and convincing” evidence that (1) he sustained an injury in the course and scope of his employment; (2) he is disabled; and (3) a causal connection between his disability and the employment-related injury exists. Id.; see also, Wilkerson v. City of New Orleans Fire Dept., 2003-1550, p. 2 (La.App. 4 Cir. 3/3/04), 871 So.2d 375, 377 (citing Daniel v. New Orleans Public Service, Inc., 2002-2427, p. 5 (La.App. 4 Cir. 12/3/03), 861 So.2d 721, 725). To carry the burden of proving disability by clear and convincing evidence, the claimant must present “objective medical evidence.” Williams, 2007-0464, p. 3, 996 So.2d at 294.

In rendering judgment for MCLNO, the WCJ found that Mr. Griffin lacked credibility and failed to meet his burden of proof. The record supports this conclusion.

|4Two of the three doctors who evaluated Mr. Griffin for his work-related injury concluded that Mr. Griffin had reached maximum medical improvement and could be released to work. Thus, the evidence supported a finding that the employer’s termination of benefits was appropriate. Perhaps more compelling, however, was the fact that the nature and extent of Mr. Griffin’s injuries while he was receiving benefits was called into question.

Mr. Griffin alleged that the accident in question caused him to experience lower back pain, which caused numbness in his left leg and precluded him from working. The evidence presented by MCLNO established that Mr. Griffin had visited the emergency room two times for back pain (March 23, 2010 and June 27, 2010) prior to his August 24, 2010 workplace accident; however, Mr. Griffin subsequently failed to report these two prior incidents in any of the histories he provided to the doctors who later treated or examined him for his work-related injury. Additionally, Mr. Griffin had undergone two prior MRIs of his back, one in April 2010 and one in April 2008, which he also did not report to his doctors. Both of these MRIs showed disc disease/herniation at L4/5, the same injuries Mr. Griffin claims he suffered in this work-related accident. Dr. Kevin Martinez, who performed a “second medical opinion” examination, noted in his records that it was his practice to take a patient’s history and complaints of pain at face value, but in Mr. Griffin’s case, this was difficult to do. In his report, Dr. Martinez noted that Mr. Griffin was “flatly dishonest with me about the pre-existing injuries and MRI of April, 2010 and April 9, 2008.” Dr. Martinez and Dr. William Soileau both noted that Mr. Griffin only filled the prescriptions for pain killers and did not get the recommended physical therapy. Both physicians concluded that Mr. Griffin | Swas no longer benefitting from continued care and that his injury pre-dated his work-related accident.

Although Mr. Griffin testified that prior to the August 24, 2010 accident he had not suffered back pain as severe as the pain he experienced afterward, the WCJ found his testimony in this regard to lack credibility. In his judgment, the WCJ specifically stated that he had “considered the testimony, demeanor, and credibility of the claimant, and other witnesses” before rendering judgment in favor of the employer. There is substantial documentary and testamentary evidence in the record demonstrating that the August 24, 2010 workplace accident was not the cause of Mr. Griffin’s low back injury and that the accident did not exacerbate his pre-existing injury beyond that for which he was paid benefits. Thus, we find no error on the part of the lower court.

II. Penalties and Attorneys’ Fees

Mr. Griffin argues that he is entitled to an award of penalties and attorney’s fees on two statutory grounds: La. R.S. 23:1201(1) and La. R.S. 23:1201(F).

Mr. Griffin first argues that the WCJ’s failure to award penalties and attorney’s fees for MCLNO’s discontinuance of his benefit's on May 19, 2011 constitutes manifest error.

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

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

| ¡fin the instant case, the WCJ found the employer’s decision to terminate benefits to be proper. Because Mr. Griffin was not entitled to further benefits, the WCJ properly concluded that MCLNO’s decision to terminate benefits was neither arbitrary, capricious nor without probable cause. Thus, Mr. Griffin was not entitled to attorney’s fees or penalties pursuant to La. R.S. 23:1201(1).

Second, Mr. Griffin argues that he is entitled to an award of penalties and attorney’s fees pursuant to La. R.S. 23:1201(F). This provisions states, in pertinent part:

Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in the 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 medical benefits remain unpaid ... 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.

This provision penalizes an employer for failing to timely pay an injured worker the benefits due to him. Unlike La. R.S. 23:1201(1), which applies to the discontinuance of benefits, this section does not require a finding that the employer’s conduct be arbitrary or capricious. When an employer fails to pay in accordance with the requirements of La. R.S. 23:1201(A) through (E), Section (F) of the statute mandates an award of a penalty and reasonable attorney’s fees.

Mr. Griffin alleged that the employer’s first temporary total disability payment made to him was untimely. This Court finds that Mr. Griffin failed to present evidence to support this allegation. The employer testified that the first payment was made timely, and the records introduced into evidence support this 17testimony. Mr. Griffin failed to refute this testimony and did not present any documentary evidence to the contrary. We find that the WCJ’s decision not to award penalties and attorney’s fees for this claim does not constitute manifest error.

There was, however, undisputed evidence that some of the indemnity payments tendered to Mr. Griffin over a period of approximately seven months were for an insufficient amount. The WCJ found that this error was due to an innocent mistake made by the employer. The WCJ further found that once the employer discovered the error, it immediately corrected it and paid Mr. Griffin what he was owed. The WCJ concluded that the underpayments were not the result of an arbitrary and/or capricious decision by the employer and denied an award for penalties and attorney’s fees.

Mr. Griffin contends that La. R.S. 2S:1201(F) provides that penalties and attorneys fees are due under these facts. We agree.

The determination of whether an employer in a workers’ compensation case should be cast with penalties and attorney fees is essentially a question of fact subject to the manifest error or clearly wrong standard of review. Avenue Surgical Suites v. Jo Ellen Smith Convalescent Ctr., 2011-0026, p. 12 (La.App. 4 Cir. 5/18/11), 66 So.3d 1103, 1111 (citing James v. A & B Builders, 09-0781, p. 8 (La.App. 1 Cir. 10/23/09), 29 So.3d 541, 546).

Courts have held that an employer cannot urge in its defense its own poor clerical work or administrative lapses to escape penalties for nonpayment of workers’ compensation benefits. Lafleur v. Alec Elec., 2004-0003, p. 9 (La.App. 1 Cir. 12/30/04), 898 So.2d 474, 480, citing, Rollins v. Glitsch Field Services, Inc., 97-1404, p. 9 (La.App. 3 Cir. 5/13/98), 713 So.2d 674, 678, writ denied 98-1590 (La.9/18/98), 724 So.2d 763. The fact that MCLNO discovered the mistake itself and corrected the mistake does not insulate it from an award of penalties and attorneys’ fees pursuant to La. R.S. 23:1201(F). Thus, we find that the WCJ erred in not awarding penalties and attorneys fees for the period during which Mr. Griffin was underpaid.

Pursuant to the provisions of the statute and given the uncontested evidence in the record, we find that Mr. Griffin is entitled to the maximum penalty of $2,000.00 and reasonable attorney’s fees in the amount of $1,000.00.

CONCLUSION

Accordingly, for the reasons stated, we amend the judgment of the Office of Workers’ Compensation to include penalties of $2,000.00 and attorney’s fees of $1,000.00 and affirm as amended. In all other respects, we affirm the judgment of the Office of Workers’ Compensation.

AMENDED AND AFFIRMED AS AMENDED

      . Emphasis ours.

      . The WCJ's judgment adopts the employer’s post-trial brief as its Reasons for Judgment.