text:
    Stephen Dale JACKSON v. STATE of Louisiana, LSU Health Sciences Center, Health Care Services Division—Earl K. Long Medical Center; Emergency Medical Services, Inc.; and Sid Gautreaux in his Capacity as Sheriff of East Baton Rouge Parish and the City of Baton Rouge.
    No. 2011 CA 1716.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2012.
    Benjamin P. Mouton, Eric E. Helm, Baton Rouge, LA, for Plaintiffs-Appellants, Michelle Bowman, as the Natural Tutrix of the Minor Children of Stephen Dale Jackson (Deceased), Crimson Jackson, Alexander Jackson, and Aunjanue Jackson.
    James D. “Buddy” Caldwell, Attorney General, Michael A. Patterson, Adrian G. Nadeau, S. Brooke Barnett, Mark L. Bar-bre, Latoya D. Jordan, Special Asst. Attorneys General, Baton Rouge, LA, for Defendants-Appellees, State of Louisiana, LSU Health Sciences Center, Health Care Services Division — Earl K. Long Medical Center.
    Tara L. Johnston, Baton Rouge, LA, for Defendant-Appellee, Greg Phares, in his Former Capacity as Sheriff of East Baton Rouge Parish.
    C. John Naquin, Jr., Baton Rouge, LA, for Defendant-Appellee, City of Baton Rouge, Parish of East Baton Rouge.
    Before: CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

LThe plaintiffs in this case are the surviving minor children of Stephen Dale Jackson. They challenge a district court’s judgment that granted a partial summary judgment in favor of one of the defendants, the State of Louisiana through the LSU Health Sciences Center, Health Care Services Division — Earl K. Long Medical Center (hereafter referred to as “EKL Medical Center”), and dismissed their claims for wrongful death arising from alleged medical malpractice. Finding a lack of subject matter jurisdiction, we vacate the district court’s judgment and dismiss this appeal.

FACTS AND PROCEDURAL BACKGROUND

Stephen Dale Jackson was a 33-year-old inmate incarcerated and receiving medical services at the East Baton Rouge Parish Prison on April 15, 2007. That night, Jackson was transported to the emergency room at a state-operated medical facility, EKL Medical Center, for further medical treatment. Upon his arrival at EKL Medical Center, Jackson had complaints of a sore throat and fever lasting four-to-five days, and a history of left-sided facial numbness and peripheral vision loss that had been ongoing for several months. Jackson was awake, oriented, and cooperative during his examination at EKL Medical Center. While in the emergency room, Jackson received an oral pain medication and an antibiotic [4inj ection for strep pharyngitis, commonly known as strep throat. He also received a prescription for pain medication, as well as a prescription for a medication used to treat potentially-blocked arteries, after a CT imaging scan revealed a possible cerebral vascular accident, which is a medical term for stroke. Additionally, Jackson underwent an EKG, which revealed a normal sinus rhythm, and was ordered to return to the Radiology Department at EKL Medical Center on April 18, 2007, for an outpatient carotid Doppler ultrasound to follow up on what appeared to be a stroke. Jackson was discharged from EKL Medical Center shortly after midnight (then April 16, 2007) and was transported back to the prison.

Jackson experienced a seizure and was found unresponsive at the prison on the evening of April 16, 2007. Those in charge of Jackson’s medical treatment at the prison decided to have Jackson transported back to EKL Medical Center. While in route to EKL Medical Center, Jackson suffered another seizure and cardiopulmonary arrest. When he arrived at EKL Medical Center, Jackson was evaluated and then admitted into intensive care, where he was treated for severe anoxic brain injury (a massive stroke). Because Jackson remained in a permanent catatonic and vegetative state, he was moved to a long-term care facility on May 23, 2007, where he stayed until his death almost three years later, on March 13, 2010.

Jackson’s surviving children were substituted as the proper party plaintiffs in Jackson’s suit that was initially filed solely in Jackson’s name in the 19th Judicial | ¡¡District Court on April 15, 2008. The plaintiffs asserted a claim for damages arising from alleged medical malpractice related to Jackson’s treatment at both the prison and EKL Medical Center on April 15-16, 2007. The plaintiffs’ original and amended petitions allege negligence and substandard medical care by the employees and staff of EKL Medical Center, the Emergency Medical Services, Inc. (EMS) medics, and staff at the prison, the staff and employees of the Sheriffs Office responsible for operating the prison, and vicarious liability on the part of East Baton Rouge Parish and the City of Baton Rouge for the prison operations, all of which contributed to Jackson’s alleged wrongful death. However, the plaintiffs’ pleadings make no reference to, nor contain any allegations concerning, Jackson’s compliance with or exhaustion of administrative remedies prior to filing suit. The record before us does not reflect that any of the named plaintiffs (Jackson, his court-appointed curatrix, or the natural tutrix on behalf of his minor children) ever sought review of Jackson’s medical malpractice claim either within the prison’s administrative review process or before a state medical review panel.

Shortly after Jackson’s suit was filed and in response to the lawsuit, EKL Medical Center filed a dilatory exception on the grounds of prematurity on June 30, 2008. EKL Medical Center asserted that Jackson’s suit was premature, because he had failed to exhaust all of his administrative remedies prior to filing suit in the district court, as required by La. R.S. 15:1171 and 1172. The prematurity exception was scheduled for hearing on August 25, 2008, but the record does not reflect that the hearing ever took place. Further, the record does not contain any ruling on the exception, and it is devoid of any evidence or ] ¡¡allegations in any pleadings that Jackson complied with or exhausted the statutorily-required administrative remedy procedure prior to filing his medical malpractice suit for damages. Additionally, at oral argument before this court, counsel for the plaintiffs and EKL Medical Center revealed that they had jointly agreed that the administrative remedy procedure and medical review panel process were unnecessary in this case due to an uncertainty in the law at that time. Counsel for EKL Medical Center indicated that the exception of prematurity was withdrawn before the district court made a ruling.

Over two years later, after the plaintiffs filed a third supplemental and amending petition, EKL Medical Center filed a motion for summary judgment on November 15, 2010. In support of its motion, EKL Medical Center filed an affidavit of an expert in the field of emergency medicine, Dr. Juliette M. Saussy. In her affidavit, Dr. Saussy opined that Jackson’s emergency room treatment at EKL Medical Center did not constitute a breach of the emergency medicine standard of care in this case. Thus, EKL Medical Center based its motion on the plaintiffs’ failure to produce a medical expert who would establish a breach of the emergency medicine standard of care that was provided in Jackson’s treatment. The plaintiffs opposed the motion, relying on deposition testimony of an expert in cardiology, Dr. Carl S. Luikart, and moving for the district court to strike EKL Medical Center’s expert’s affidavit for procedural defects. However, EKL Medical Center maintained it was entitled to summary judgment as a matter of law, because Dr. Luikart refused to opine that EKL Medical Center had breached the emergency medicine standard of care while treating Jackson. Because in his deposition testimony, Dr. Lui-kart deferred to an emergency medicine specialist for establishing the medical standard of care for emergency rooms, EKL Medical |7Center argued that the plaintiffs could not meet their burden of proving medical malpractice.

Four days prior to the hearing on EKL Medical Center’s motion for summary judgment, the plaintiffs filed a supplemental memorandum in opposition, along with a supporting affidavit of another purported expert in emergency medicine, Dr. Angie Ragas, who would testify that EKL Medical Center’s emergency department breached the emergency medicine standard of care when Jackson was not admitted into the hospital to be monitored for neurological changes. However, citing mandatory district court rules, the district court did not allow the plaintiffs’ untimely affidavit. Additionally, by finding that the plaintiffs lacked expert testimony regarding any breach of the emergency medicine standard of care, the district court granted EKL Medical Center’s motion for summary judgment and dismissed the plaintiffs’ claims against EKL Medical Center. The plaintiffs appealed.

DISCUSSION

As in any case before this court, the first issue to be considered is whether the case is properly before the court and whether there is a basis for jurisdiction. We have a duty to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. State ex rel. K.S., 2007-1045 (La.App. 1st Cir.11/2/07), 977 So.2d 35, 39; Swanson v. Department of Public Safety and Corrections, 2001-1066 (La.App. 1st Cir.6/21/02), 837 So.2d 634, 636. Upon review of the record before us, we conclude that the district court had no subject matter jurisdiction to render judgment in this case. Thus, for the reasons set forth more fully below, the district court judgment is vacated. Accordingly, we do not | sreach the merits of the plaintiffs’ appeal of the summary judgment granted in favor of EKL Medical Center.

As we previously noted in the procedural background of this case, EKL Medical Center filed a dilatory exception of prematurity two years before it answered the plaintiffs’ amended petitions and asserted its motion for summary judgment. However, the record is devoid of any district court ruling on the exception of prematurity. EKL Medical Center based its prematurity objection on the failure of the plaintiffs to pursue and exhaust all administrative remedies prior to filing suit in the district court. The record does not contain any evidence or allegations that the plaintiffs initiated, complied with, or exhausted any statutorily-required administrative remedy procedure prior to filing suit in the district court.

At all relevant times hereto, La. R.S. 40:1299.39.1(A)(l)(a) provided, in pertinent part, as follows:

All malpractice claims against the state, its agencies, or other persons covered by this Part, other than claims wherein the patients are prisoners ... shall be reviewed by a state medical review panel established as provided in this Section, to be administered by the commissioner of administration, hereinafter referred to as commissioner. (Emphasis added.)

IsAlthough the plain language of La. R.S. 40:1299.39.1(A)(l)(a) exempts prisoners with medical malpractice claims from the medical review panel process, this does not mean that prisoners are completely exempt from administrative review in the realm of medical malpractice claims. Walker v. Appurao, 2009-0821 (La.App. 1st Cir.10/23/09), 29 So.3d 575, 576, writ denied, 2009-2822 (La.3/5/10), 28 So.3d 1010. Rather, La. R.S. 40:1299.39(E)(1), prior to its amendment by 2010 La. Acts, No. 398, § 1, clearly states that the medical malpractice claims of prisoners against a state health care provider arising under the Malpractice Liability for State Services Act (MLSSA), “shall be submitted to correctional administrative review procedures established for administrative hearings in the correctional environment or established in accordance with express law, including [the Corrections Administrative Remedy Procedure (CARP) found at La.] R.S. 15:1171 et seq., [La.] R.S. 49:964, and the administrative rules and regulations pertaining thereto.” (Emphasis added.) Walker, 29 So.3d at 577.

Pursuant to the amended portions of CARP by 2002 La. Acts, No. 89 § 2, effective April 18, 2002, and effective at all pertinent times to this litigation, prisoners are required to initiate administrative remedies for delictual actions — including claims for medical malpractice against a state health care provider — |withinin ninety days of the date of injury or damage. See La. R.S. 15:1172(B)(1); Walker, 29 So.3d at 577 n. 2. If initiation of the administrative remedy is untimely, the delictual claim is considered abandoned and any subsequent suit asserting such a. claim shall be dismissed with prejudice. La. R.S. 15:1172(C); Walker, 29 So.3d at 577 n. 2. It is only after an administrative decision regarding a delictual action is rendered that the prisoner or his representatives have the right to file the prisoner’s claim as an original civil action in the appropriate district court. See Walker, 29 So.3d at 577; Cf. Pope v. State, 99-2559 (La.6/29/01), 792 So.2d 713, 717 (provisions of La. R.S. 15:1171, et seq. declared unconstitutional, because the legislative act divested district courts of original jurisdiction in civil matters:) see also La. R.S. 40:1299.39(E)(1); La. R.S. 15:1177(0.

EKL Medical Center’s previously-filed objection of prematurity essentially challenged the district court’s subject matter jurisdiction. See Larrieu v. Wal-Mart Stores, Inc., 2003-0600 (La.App. 1st Cir.2/23/04), 872 So.2d 1157, 1162. When we questioned counsel for both parties at oral argument about the lack of a district court ruling on the exception of prematurity, both counsel indicated that the exception had been withdrawn because the parties had decided that it was not necessary to pursue an administrative remedy or a medical review panel decision in this case. However, where the law provides for an administrative remedy, a claim must be processed through the administrative channels before a district court will have subject matter jurisdiction to entertain the claim. Id. Furthermore, the ^objection of lack of subject matter jurisdiction may not be waived by the parties and may be raised by the court sua sponte. Id. at 1162-63.

Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled. La. C.C.P. art. 1. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties or waived by the parties; a judgment rendered by a court that has no jurisdiction over the subject matter of the action or proceeding is void. See La. C.C.P. arts. 3 and 925(C). The issue of subject matter jurisdiction addresses the court’s authority to adjudicate the cause before it; the issue may be considered at any time, even by the court on its own motion, at any stage of an action. Boudreaux v. State, Dept. of Transp. and Development, 2001-1329 (La.2/26/02), 815 So.2d 7, 12-13; Dickens v. Louisiana Correctional Institute for Women, 2011-0176 (La.App. 1st Cir.9/14/11), 77 So.3d 70, 73.

CONCLUSION

We conclude that the record is devoid of any evidence of the statutorily-required administrative review procedure, thereby revealing that the plaintiffs failed to exhaust Jackson’s administrative remedies prior to filing suit in the district court. Therefore, the district court lacked subject matter jurisdiction to consider this medical malpractice claim. See Walker, 29 So.3d at 577. The partial summary judgment signed by the district court on June 13, 2011, is void and has no legal effect. Thus, this court must vacate the district court’s judgment |12for lack of subject matter jurisdiction. See Swanson, 837 So.2d at 637. For these same reasons, this court does not have subject matter jurisdiction to hear this case, and this appeal must be dismissed. See Swanson, 837 So.2d at 637.

Appeal costs in the amount of $7,118.00 are equally assessed to the plaintiffs and the State of Louisiana through the LSU Health Sciences Center, Health Care Services Division — Earl K. Long Medical Center.

JUDGMENT VACATED; APPEAL DISMISSED.

      . This suit commenced on April 15, 2008, with Stephen Dale Jackson named as the sole plaintiff. Subsequently, due to the interdiction of Jackson on September 17, 2008, his mother, Shirley Richardson, was substituted as party plaintiff, in her capacity as the court-appointed curatrix of Jackson. After Jackson died on March 13, 2010, his surviving minor children, Crimson Jackson, Alexander Jackson, and Aunjanue Jackson, were substituted as the proper party plaintiffs, with their mother, Michelle Bowman, designated as the natural tutrix on behalf of Jackson's minor children. Throughout the opinion, we will refer to Jackson’s surviving minor children as the plaintiffs, and sometimes we will reference Jackson himself or the court-appointed cura-trix as Jackson’s representative.

      . The CT scan revealed a sub-acute or chronic occipital infarct in the right occipital region, and follow up was recommended "as clinically indicated.” The record contains several medical descriptions for what is commonly referred to as a stroke, including sub-acute or chronic occipital infarct and cerebral vascular accident.

      . The record reflects that the ultrasound was initially scheduled for April 18, 2007, although an attempt was made to change the appointment to April 16, 2007. The appointment was ultimately rescheduled for 8:00 a.m. on April 17, 2007.

      . During the May 23, 2011 hearing on EKL Medical Center’s motion for summary judgment and in oral argument before this court, counsel for the plaintiffs acknowledged that this case did not go before a state medical review panel.

      . The record reflects that the Sheriff's Office defendant also filed a similar exception of prematurity on August 6, 2008. While the plaintiffs' claims against the Sheriff’s Office are not relevant to this appeal, we note that the record does not contain any ruling on that exception either.

      . There is also no indication in the record that the plaintiffs submitted their wrongful death and survival actions to a state medical review panel, as would now be required by the amended version of La. R.S. 40:1299.39(E)(1). See 2010 La. Acts, No. 398, § 1.

      . Louisiana Revised Statutes 40:1299.39.1(A)(1)(a) was amended by 2010 La. Acts, No. 398, § 1, when the legislature substituted “subject to administrative review in a correctional facility in accordance with [La.] R.S. 40:1299.39(E)’’ for “wherein the patients are prisoners^]” However, the pertinent statutory version for this case is that which was in effect as of the time Jackson's cause of action for medical malpractice arose in 2007. See Dailey v. Travis, 2004-0744 (La.1/19/05), 892 So.2d 17, 20.

      .We note that the 2010 amendment to La. R.S. 40:1299.39(E)(1) now requires that all medical malpractice claims of prisoners relating to health care rendered in a correctional facility and arising under the MLSSA be submitted for correctional administrative review procedures, and all other medical malpractice claims under the MLSSA, including wrongful death and survival actions related to prisoners, be submitted to a medical review panel. See 2010 La. Acts, No. 398, § 1. While the plaintiffs' medical malpractice claims in this case relate to Jackson’s health care treatment rendered at the prison and at the state-operated medical facility, the 2010 amendment is not applicable to Jackson's claim, which arose in 2007. As previously noted, the pertinent statutory provision is that which was in effect at the time the cause of action arose. See Dailey, 892 So.2d at 20.

      . Section 325 of Title 22, Part I of the Louisiana Administrative Code, outlines the rules and procedures to be followed in formally addressing inmate complaints in adult institutions in Louisiana. As of April 20, 2002, the Code requires inmates to use the procedure set forth therein, the two-step Administrative Remedy Procedure (ARP), before they can proceed with a suit in federal or state court. LAC 22:I.325(A)(1); Dickens v. Louisiana Correctional Institute for Women, 2011-0176 (La.App. 1st Cir.9/14/11), 77 So.3d 70, 74. The two-step ARP applies to an inmate's complaints of personal injury. LAC 22:I.325(B).


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    The LOUISIANA ASSOCIATION OF SELF-INSURED EMPLOYERS v. LOUISIANA WORKFORCE COMMISSION.
    No. 2011 CA 1892.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2012.
    Rehearing Denied May 4, 2012.

      Perry R. Staub, Jr., Mark E. Van Horn, New Orleans, LA, for Plaintiff-Appellant Louisiana Association of Self-Insured Employers.
    Harry J. Phillips, Jr., William H.L. Kaufman, Brian M. Chustz, Peter G. Wright, Jonathan C. Augustine, Baton Rouge, LA, for Defendant-Appellee Louisiana Workforce Commission.

      Wilbur Woods Reynaud, Lutcher, LA, for Amicus Curiae Louisiana Press Association, Inc.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   KUHN, J.

12Plaintiff-appellant, the Louisiana Association of Self-Insured Employers (LA-SIE) appeals the trial court’s judgment, denying its petition for preliminary injunc-tive relief, seeking to enjoin the defendant-appellee, Louisiana Workforce Commission (LWC) from promulgating a medical treatment schedule setting forth medical treatment guidelines related to employers’ duty to furnish medical benefits under the Louisiana Workers’ Compensation Act for allegedly failing to conform to the Louisiana Administrative Procedures Act (APA) and the Louisiana Open Meetings Law (OML). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Under La. R.S. 23:1203.1, the director of the Office of Workers’ Compensation Administration of the LWC (the OWC director) has been mandated to promulgate rules in accordance with the APA to establish a medical treatment schedule. The OWC director appointed a Medical Advisory Committee (MAC) and contracted a medical director to assist him in fulfilling the statutory mandate. See La. R.S. 23:1203.1 F (providing for authority for appointed of MAC and for contracting of a medical director).

Urging the statutory mandate for promulgation of the medical treatment schedule by September 30, 2010 warranted prompt action, LWC proposed to |scomply with the statutory directive by enacting the medical guidelines required in La. R.S. 23:1203.1 by way of an emergency rule. See La. R.S. 49:953 B (providing a procedure for adoption of a rule on an emergency basis where an agency finds an imminent peril to the public health, safety, or welfare). On December 29, 2010, LASIE filed a petition for declaratory and injunc-tive relief seeking, among other things, to enjoin LWC from enforcing the proposed emergency rule for failure to comply with the APA. In a judgment signed on February 11, 2011, the trial court issued the preliminary injunction LASIE requested.

LWC subsequently undertook to promulgate the proposed medical treatment guidelines mandated under La. R.S. 23:1203.1 in accordance with the nonemer-gency procedure provided for under the APA. In response, LASIE amended its petition on June 15, 2011, and requested another preliminary injunction against LWC, averring that in its promulgation of the medical treatment schedule LWC had again failed to conform to APA mandates. LASIE’s amended petition for additional injunctive relief also alleged OML violations in the procedure undertaken in the promulgation process. LASIE sought to enjoin the enforcement of the medical treatment schedule as it appeared in the January 20, 2011 edition of the Louisiana Register.

After a hearing on LASIE’s entitlement to a preliminary injunction in which testimonial and documentary evidence was adduced, the trial court denied the requested relief. A judgment in conformity with the trial court’s ruling was signed. This appeal by LASIE followed.

J4DISCUSSION

La. C.C.P. art. 3601 provides, “An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law_” It is not necessary for the applicant to show irreparable injury, however, when the act complained of is unlawful. See Hughes v. Muckelroy, 97-0618 (La.App. 1st Cir.9/23/97), 700 So.2d 995, 998. The only issues to be considered at a hearing on a preliminary injunction are whether the moving party has met its burden of proving that it is entitled to the relief sought as a matter of law and the likelihood that it will likely prevail on the merits of the case. See Farmer’s Seafood Co., Inc. v. State ex rel Dep’t of Public Safety, 2010-1746 (La.App. 1st Cir.2/14/11), 56 So.3d 1263, 1267.

Whether to grant or deny a preliminary injunction lies within the sound discretion of the trial court. Absent a clear abuse of this discretion, the trial court’s ruling will not be disturbed on appeal. City of Baton Rouge/Parish of East Baton Rouge v. 200 Government Street, LLC, 2008-0510 (La.App. 1st Cir.9/23/08), 995 So.2d 32, 36, writ denied, 2008-2554 (La.1/9/09), 998 So.2d 726.

Alleged APA Violation

La. R.S. 23:1203.1 provides in pertinent part:

B. The director shall, through the office of workers’ compensation administration, promulgate rules in accordance with the [APA] to establish a medical treatment schedule.
(1) Such rules shall be promulgated no later than January 1, 2011.
(2) The medical treatment schedule shall meet the criteria established in this Section and shall be organized in an interdisciplinary manner by particular regions of the body and organ systems.
C. The schedule shall be developed by the conscientious, explicit, and judicious use of current best evidence in making decisions about the care of individual patients, integrating clinical expertise, which is the proficiency and judgment that clinicians acquire through clinical experience and clinical practice, with the best available external clinical evidence from systematic research.

Under the APA, La. R.S. 49:953, which sets forth the procedure for the adoption of rules, requires an agency to publish notice of its intent to adopt, amend, or repeal any rule in the Louisiana Register. La. R.S. 49:953 A(l)(b)(i). The agency must provide interested persons with copies of the intended rule, and it must offer them a reasonable opportunity to respond. La. R.S. 49:953 A(2)(a) and (2)(b)(i). No rule shall be effective, nor may it be enforced, unless it was adopted in substantial compliance with the provisions of the APA. La. R.S. 49:954 A. Further, no rule shall be effective or enforceable unless (1) it was properly filed with the State Register, (2) a report on the rule was submitted to the legislature in accordance with La. R.S. 49:968, and (3) the approved economic and fiscal impact statements required by La. R.S. 49:953 A were filed with the Department of the State Register and published in the Louisiana Register. An administrative rule adopted in accordance with the requirements of the APA generally becomes effective upon its publication in the Louisiana Register. La. R.S. 49:954 B. See Liberty Mut. Ins. Co. v. Louisiana Ins. Rating Comm’n, 96-0793 (La.App. 1st Cir.2/14/97), 696 So.2d 1021, 1025, writs denied, 97-2069 (La.12/19/97), 706 So.2d 451, and 97-2062 (La.12/19/97), 706 So.2d 452.

The statement of fiscal impact is required to be prepared by the proposing agency and submitted to the Legislative Fiscal Office for its approval. It is statutorily mandated to include a statement of the receipt, expenditure, or 1 ^allocation of state funds or funds of any political subdivision of the state. La. R.S. 49:958 A(S)(a). Similarly, the statement of economic impact is also required to be prepared by the proposing agency and submitted to the Legislative Fiscal Office for its approval. And it is statutorily mandated to include an estimate of the cost to the agency to implement the proposed action, including the estimated amount of paperwork; an estimate of the cost or economic benefit to all persons directly affected by the proposed action; an estimate of the impact of the proposed action on competition and the open market for employment, if applicable; and a detailed statement of the data, assumptions, and methods used in making each of the above estimates. La. R.S. 49:958 A(3)(b).

“Substantial compliance” with the APA rulemaking procedure has been held to mean that a reviewing court should determine whether the statute has been followed sufficiently so as to carry out the intent for which it was adopted. What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case. Dorignac v. Louisiana State Racing Com’n, 436 So.2d 667, 669 (La.App. 4th Cir.1983).

LASIE maintains that LWC’s Fiscal and Economic Impact Statement (FEIS) failed to substantially comply with the requirements of the APA. LASIE asserts that LWC submitted a FEIS that was based on a version of the rule that was substantively revised prior to its publication in the Louisiana Register. Moreover, LWC failed to consult with other state agencies in crafting the FEIS it submitted, thereby misrepresenting to the Legislative Fiscal Office the fiscal and economic impact of the medical treatment schedule on other state agencies.

|7In challenging the efficacy of the FEIS submitted by LWC in support of promulgation of the medical treatment schedule, which LWC published in the January 20, 2011 edition of the Register, LASIE points to the testimony of OWC Medical Director, Dr. Christopher Rich. According to Dr. Rich, in response to public comments to the MAC, in particular those submitted by the Louisiana Workers’ Compensation Corporation addressing the proposed guideline having to do with maximum medical improvement and chronic pain, a substantive change was made to the December 1, 2010 version of the proposed guideline. Dr. Rich candidly admitted that there were several other changes as well although he did not state unequivocally that those were also substantive changes.

It is undisputed, and indeed LASIE stipulated, that the OWC director signed the FEIS on behalf of OWC on October 7, 2010. Because the proposed medical treatment schedule was not published in the Louisiana Register until January 20, 2011, LASIE contends that the FEIS, which was not adjusted subsequent to the modifications of the proposed guidelines, does not comport with the statutory requirements of La. R.S. 49:953 A(3)(a) and (b).

LASIE further buttresses its challenge of the FEIS submitted by OWC by reli-anee on the testimony of Vicki Jones, an executive staff officer employed by the Louisiana Office of Risk Management (ORM). Explaining the role of ORM, Jones testified that the agency acts as the insurance company for the State of Louisiana, providing, among other things, workers’ compensation coverage for between 107,000 and 120,000 state employees. Jones prepared her own information about the fiscal and economic impact she believed the proposed medical treatment guidelines would have on the ORM and concluded that the proposed | ^medical treatment schedule may cause an increase in costs to the state in its administration of workers’ compensation claims of state employees. Thus, her calculations led to her conclusion that OWC’s representation in its FEIS, which indicated no costs to the State of Louisiana as a result of the promulgation of the proposed medical guidelines, was not accurate. But in her cross-examination, Jones admitted that gathering information for her estimate of costs to the state did not permit her to conduct an empirical study and that her results were simply her estimate of what would possibly happen if the version of the proposed medical guidelines set forth in the January 20, 2011 publication of the Louisiana Register were promulgated. She also conceded that the medical guidelines would result in a savings to the state because ORM would pay attorneys less since the medical treatment schedule would provide a more definitive resolution to any issues that arose about a claimant’s entitlement to medical benefits.

LWC submitted the testimony of OWC Director Wes Hataway. He explained that he took office in February 2011, subsequent to both the date of OWC’s FEIS and its notice in the Louisiana Register addressing its promulgation of the medical treatment schedule. He also elaborated that he did not personally appoint the membership of the present MAC or contract the present medical director; these positions were filled by his predecessor. After reviewing ORM’s representations, Hataway noted that some of the assumptions made by Jones were simply incorrect and resulted in estimates that were greater than he believed would be yielded under the proposed guidelines. He emphasized that ORM representative Jones had not provided empirical data to support her suggested |flestimate and noted that OWC, likewise unable to provide empirical data, had simply made its own estimate of the impact just as ORM had.

Our review of the FEIS shows that it was signed by Robert E. Hosse, staff director for the Legislative Fiscal Office, on October 7, 2010. The statement set forth all the criteria required under La. R.S. 49:953 A(3)(a) and (b). As such, we find no eiTor in the submission of the FEIS by OWC. And LASIE does not assert that the submitted FEIS did not meet the requirements of La. R.S. 49:968 A, i.e., that it be filed with the Department of the State Register and published in the Louisiana Register.

Insofar as the efficacy of OWC’s FEIS, in light of both the challenge based on: (1) the admission of substantive changes in the medical treatment schedule between the date of execution of the FEIS and the date the proposed medical guidelines were published in the Louisiana Register; and (2) ORM representative Jones’ testimony offering another estimate of the fiscal and economic impact the medical guidelines may have on other state agencies, we find no error in the trial court’s conclusion.

The burden of proof of the lack of efficacy of the FEIS was borne by LASIE as applicant for the preliminary injunction. In support of its entitlement to a preliminary injunction based on a violation by OWC of the APA because of an allegedly defective FEIS, LASIE offered no evidence particularizing the substantive amendment to the medical guidelines evincing an undeniable change in the estimate made by OWC in its FEIS. And OCW Director Hataway expressly outlined concerns with some of the premises ORM representative Jones asserted in drawing her estimate. With no evidence of an empirical study to support either | inOWC’s or ORM’s estimate, we feel constrained not to substitute our opinion for that of the Legislative Fiscal Office to whom the responsibility of passing muster of the efficacy of the FEIS is statutorily designated. See La. R.S. 49:953 A(3)(a) and (b). As such, we cannot say that OWC failed to carry out the intent of the APA’s requirement that an agency submit statements of fiscal and economic impact in its rulemaking procedure as required to substantially comply with the APA. Mindful that the issuance of the preliminary injunction does not preclude LASIE from more fully developing its assertions on the merits of its claim for declaratory and permanent injunctive relief, under the facts of this particular case, in light of the evidence offered at the hearing, we find no abuse of discretion by the trial court’s denial of a preliminary injunction.

Alleged OML Violation:

Louisiana’s OML requires every meeting of any public body shall be open to the public unless closed pursuant to La. R.S. 42:16, 17, or 18. La. R.S. 42:14. The provisions of La. R.S. 42:19 (requiring public bodies to give notice to the public of meetings) and La. R.S. 42:20 (requiring public bodies to keep written minutes of their open meetings) shall not apply to any meeting of a private citizens’ advisory group or a private citizens’ advisory committee established by a public body, when the members of such group or committee do not receive any compensation and serve only in an advisory capacity. La. R.S. 42:17(D).

In OWC Medical Director Dr. Rich’s testimony, he described the MAC as a group of twenty-two members from around the state. All the MAC members are healthcare providers, in multiple specialties, currently in private practice, and unpaid for their service on the statutorily created advisory committee. He outlined Inthe division of the membership into sub-panels for the trial court. Dr. Rich acknowledged that on two occasions, March 30, 2011 and April 4, 2011, he had spoken with various members of subpanels of the MAC by telephone to discuss responses to public comments. At neither telephone meeting was a quorum present. One telephone meeting was between Dr. Rich and two members of a subpanel; and at the other, Dr. Rich and three members of a subpanel participated. Dr. Rich stated that notice of the telephone meetings was not provided to the public and written minutes were not maintained.

Pointing to OWC Director Hataway’s written statement to a joint house and senate oversight subcommittee setting forth OWC’s principal reasons against adoption of any of the modifications suggested in public comments, LASIE urges that the MAC is a public body that has more authority than merely serving in an advisory capacity to the OWC director. The statement said, “OWC firmly believes the guidelines were developed in accordance with [La.] R.S. 23:1203.1 and accepts the MAC’s decision not to amend the schedule at this time.” (Emphasis added.) Thus, LASIE maintains that all meetings of the MAC are subject to the OML.

OWC Director Hataway testified about his written comments, stating:

What I was attempting to convey is that Dr. Rich had met with the MAC on two occasions prior to this submission [of the medical treatment schedule], that as a result of those conversations with the members of the MAC that the decision was made that no changes would be made, and I agreed "with that decision.

Despite the words utilized in the statement, it is obvious that OWC Director Hataway was the party responsible for making the decision of what guidelines would be included in the medical treatment schedule promulgated under the 112statutory mandate of La. R.S. 28:1203.1. This result is underscored by the express statutory delegation of power set forth in La. R.S. 23:1203.1 B, which states, “The [OWC] director shall ... promulgate rules in accordance with the [APA] to establish a medical treatment schedule.” (Emphasis added.) The legislatively delegated role of the MAC is also set forth in the statute. La. R.S. 23:1203.1 G states that the MAC is to “provide recommendations” to the OWC director. La. R.S. 23:1203.1 H provides for the MAC to assist the OWC director in updating the promulgated medical guidelines stating, “The [OWC] director, with the assistance of the [MAC], is authorized to review and update the medical treatment schedule no less often than once every two years.” (Emphasis added.) Thus, La. R.S. 23:1203.1 contemplates that the governmental function of deciding what medical guidelines to promulgate in the establishment of a medical treatment schedule is delegated to the OWC director, and the MAC is to provide assistance with review and updating of those medical guidelines.

Because the evidence established that the MAC, whose membership is unpaid, is a committee of private citizens serving in an advisory capacity established by a public body, OWC, to assist the OWC director in reviewing and updating the medical treatment schedule, under La. R.S. 42:17(D) of the OML, it is not required to either provide notice of meetings to the public or maintain written minutes of any meetings. Accordingly, those provisions of the OML with which LASIE complains the MAC did not comply are not required to be performed by the MAC under the OML. And the trial court did not abuse its discretion in denying a preliminary injunction to LASIE on this basis.

113DECREE

For these reasons, the trial court’s denial of a preliminary injunction to LASIE is affirmed. Appeal costs are assessed against plaintiff-appellant, Louisiana Association of Self-Insured Employers.

AFFIRMED.

GUIDRY, J., concurs.

      .According to its petition, LASIE "is a not-for-profit corporation organized and existing under the laws of the State of Louisiana.... [It] employs Louisiana workers and represents the interests of Louisiana employers who self-insure for workers' compensation.”

      . See generally La. R.S. 23:1021-1361.

      . See generally La. R.S. 49:950-987.

      . See generally La. R.S. 42:11-28.

      . The OWC director on October 7, 2010 was Chris Broadwater.


author: GAIDRY, J.

text:
    The ASCENSION PARISH SALES AND USE TAX AUTHORITY v. LOUISIANA MACHINERY RENTALS, INC.
    No. 2011 CA 1784.
    Court of Appeal of Louisiana, First Circuit.
    March 30, 2012.

      Linda S. Akchin, Christopher J. Dichar-ry, Pamela R. Mascari, Phyllis D. Sims, Baton Rouge, LA, for Defendant/Appellant Louisiana Machinery Rentals, LLC.
    Robert R. Rainer, Drew M. Talbot, Baton Rouge, LA, for Plaintiff/Appellee Ascension Parish Sales and Use Tax Authority-
    Before GAIDRY, McDonald, and HUGHES, JJ.
   GAIDRY, J.

|20n October 25, 2010, the Ascension Parish Sales and Use Tax Authority (“the Authority”) filed a “Petition for Rule to Show Cause in Summary Sales and Use Tax Proceeding” against Louisiana Machinery Rentals, L.L.C. (“LMR”). The petition states that it is a summary proceeding brought under the provisions of La. R.S. 47:337.33, La. R.S. 1,47:337.61, and comparable sections of the sales and use tax ordinances of Ascension Parish. The Authority alleged that LMR was a Louisiana limited liability company, domiciled in St. John the Baptist Parish, who conducted business activities in Ascension Parish but failed to register with the Authority as a dealer for Ascension Parish sales and use tax purposes and who operated as a division forming a part of Louisiana’s sole statewide Caterpillar franchise dealer, selling at retail, leasing, and repairing various new and used Caterpillar equipment and parts in Ascension Parish. In the course of LMR’s Caterpillar sales, the Authority alleged that LMR made taxable sales of, repairs to, or leases of various articles of tangible personal property, such as articulated trucks, backhoe loaders, concrete equipment, compactors, engines/power systems, excavators, forest products, generators, |4mining equipment, motor graders, off-highway trucks, paving products, scrapers, skid steer loaders/multi terrain compact loaders, telehandlers, crawlers, dozers, wheel dozers, wheel loaders, and work tools. The Authority further alleged that it is the single sales and use tax collector for all local taxing authorities located in Ascension Parish and is authorized by statute and ordinance to audit LMR’s “books, records, papers, vouchers, accounts, and documents for Ascension Parish sales and use tax compliance with regard to any and all taxable sales, uses, storage, distribution, repairs and/or leases of tangible personal property occurring within Ascension Parish.” Pursuant to these statutes and ordinances, the Authority contracted with a private auditing firm, Broussard Partners & Associates (“BPA”), to conduct a sales and use tax compliance audit of LMR. The audit was held open several times by “prescription waiver” agreements between LMR and the Authority, in order to suspend the running of prescription as to any taxes that may be found to be due. BPA’s audit revealed that LMR had incorrectly failed to charge and collect sales taxes from its customers in Ascension Parish. on its taxable sales, repairs, or leases. Citing La. R.S. 47:337.17(E), the Authority claimed LMR was liable to it for the taxes it had failed to charge, collect, and remit, along with penalties and interest.

The original audit showed a sales and use tax deficiency of $40,305.90. On November 20, 2009, the Authority issued to LMR a “30-Day Notice of Intent to Assess Additional Tax Due-LA R.S. 47:337.48 B” for this deficiency, along with a penalty of $10,076.63 and interest of $27,169.26, for a total due of $77,551.79. This notice stated that LMR had thirty days from the date of the notice to either: (1) pay the amount assessed; or (2) file a written protest citing the objection to the assessment and request a hearing with the Authority. The notice further warned that a failure to | .^respond to the notice within the time or manner provided would result in the issuance of a formal assessment with additional penalties and interest. The Authority alleged that LMR failed to respond to this November 20, 2009 notice within the allotted time in any of the manners prescribed by law. Consequently, on December 31, 2009, the Authority issued to LMR, via certified mail, a formal “Notice of Assessment 60-Day Assessment — LA R.S. 47:337.51” in the total amount of $78,559.43. The December 31, 2009 notice stated that if LMR wished to protest, it had thirty calendar days to file a written protest under oath and request a hearing. The notice went on to state that if LMR did not timely file a written protest and request a hearing, it had sixty calendar days to either: (1) pay the amount assessed; (2) pay the amount assessed “under protest” and file suit for recovery within thirty days of the payment; or (3) file suit in any state court of competent jurisdiction contesting the assessment within thirty days of receipt of the notice and post a bond or other security. The notice also stated: “DO NOT DISREGARD THIS NOTICE, FAILURE TO ACT WITHIN THE TIME OR MANNER PROVIDED WILL RESULT IN THE ASSESSMENT BECOMING FINAL AND ENFORCEABLE BY WARRANT FOR DISTRAINT. ADDITIONAL PENALTIES, INTEREST AND COLLECTION FEES MAY BE ASSESSED AT THAT TIME.” Rather than taking any of the steps provided in the December 31, 2009 notice, LMR submitted additional documents, records, and papers to the private auditor, BPA. After considering those additional documents, the Authority increased LMR’s tax deficiency and issued, via certified mail, a “ * * *Revised* * *NOTICE OF ASSESSMENT 60-Day Assessment — LA R.S. 47:337.51.” The revised notice, dated April 30, 2010, adjusted the total assessment amount to |fi$184,457.37 and contained the same notices and warnings regarding payment, protest, time delays, and consequences of the failure to act as the December 31, 2009 notice. The Authority alleged that LMR did not respond to the April 30, 2010 notice within the time allotted in any manner whatsoever. Accordingly, the Authority filed its petition, alleging that the Revised Assessment, including additional accrued interest, had become final and was the equivalent of a judgment against LMR pursuant to La. R.S. 47:337.68. With additional accrued interest, the total tax, penalty, and interest assessment through October 31, 2010 was $190,783.98, which, with interest continuing to accrue until paid, the Authority sought to make executory by a declaratory judgment of the district court.

The Authority further sought an injunction against LMR, pursuant to La. R.S. 47:337.33, enjoining LMR from the further pursuit of business in Ascension Parish until payment in full of all amounts due. It also sought recognition of its lien and privilege on all property owned by LMR, pursuant to La. R.S. 47:337.65, to secure payment of the amounts due. Because the Authority had employed counsel to assist in the collection of the taxes, penalties, and interest assessed against LMR, it sought attorney fees in the amount of ten percent of the aggregate amount due, or such lesser or greater amount found reasonable and fixed by the court, plus interest on that amount from the date of judgment until paid. It also sought payment of audit fees incurred with BPA in the amount of $17,125.39, pursuant to La. R.S. 47:337.75 and 47:337.26. The Authority attached to its petition the affidavit of Kressynda “Kressy” Krennerich, Assistant Administrator for the Authority, which states that the facts as alleged in the petition were true and correct to the best of her knowledge and belief, thereby establishing a print a_]/acie case in favor of the Authority and shifting the burden of proof to LMR to establish anything to the contrary, in accordance with La. R.S. 47:337.61.

On November 17, 2010, LMR filed an answer, exceptions, and affirmative defenses to the Authority’s petition. In its answer, LMR contested the audit and assessment and denied any sales or use taxes, penalties, or interest were due. It raised the declinatory exception of insufficiency of citation and service of process; dilatory exceptions of unauthorized use of summary proceeding and vagueness or ambiguity of the petition; and the peremptory exception of prescription. The affirmative defenses raised by LMR included various ways in which the assessments were erroneous; extinguishment of the obligation by payment or, in the alternative, offset; denial of due process and equal protection of the laws in violation of the United States and Louisiana Constitutions; non-taxability of the transactions included in the assessment; lack of finality of the assessment; and, to the extent any additional tax might be owed, a request for waiver of all penalties and interest. On December 8, 2010, LMR filed a supplemental and amended answer, exceptions, and affirmative defenses, asserting that, to the extent the Authority might contend that the tax statutes divested the district court of subject matter jurisdiction, precluded LMR from raising any defenses or presenting evidence relevant to the correctness of the audit and assessment, or gave the Department unfettered discretion to determine the validity and correctness of the audit with no right of judicial review, then those statutes, as interpreted by the Authority, were unconstitutional.

The Authority opposed LMR’s exceptions and affirmative defenses and filed exceptions raising the objections of per-emption and lack of jurisdiction over the subject matter, pursuant to La. R.S. 47:387.51(C). It |8then moved to strike LMR’s supplemental and amending answer and affirmative defenses on the grounds that they were not filed timely, and that these defenses to the taxing authority had been rejected by both the Louisiana and United States Supreme Courts. The Authority also filed a motion for partial summary judgment, alleging that there were no genuine issues of material fact and that the Authority was entitled to judgment in its favor and against LMR as a matter of law for the amounts due for the sales and use tax deficiency, interest, and penalties, as set out in the Revised Assessment and its petition. After a hearing, the court granted the Authority’s peremptory exception of lack of subject matter jurisdiction; dismissed LMR’s exceptions, affirmative defenses, and denials with prejudice; declared that the Authority’s peremptory exception of peremption and its motion to quash were moot, considering the other rulings of the court; denied the Authority’s motion to strike; and granted the Authority’s motion for partial summary judgment, rendering judgment in favor of the Authority and against LMR declaring that the Revised Assessment is final and an executory judgment of the court, reserving to the Authority its claim for reasonable attorney fees and audit costs to be determined in a subsequent summary proceeding. This appeal by LMR followed. The Authority answered the appeal, urging that the court improperly denied its motion to strike.

DISCUSSION

On appeal, LMR alleges that the court erred in finding that it was not entitled to raise exceptions and defenses to the final assessment, in failing to 19deny the Authority’s peremptory exception of peremption, and in granting the Authority’s motion for partial summary judgment.

As explained by this court in West Baton Rouge Parish Revenue Department v. Louisiana Machinery Rentals, L.L.C. c/w West Baton Rouge Parish Revenue Department v. Louisiana Machinery Company, L.L.C, 11-0711 (La.App. 1 Cir. 3/9/12); 91 So.3d 1032, because the Authority complied with the assessment and distraint provisions governing notice to LMR, and LMR chose not to use any of the defensive mechanisms available to it throughout the assessment and distraint procedure, once the final sixty-day period went by with no protest or payment from LMR, the Revised Assessment was final and was the equivalent of a final and enforceable judgment. LMR was thereafter precluded from raising defenses, whether by exception or on the merits, in a summary rule to collect the sales tax. Id., citing Jefferson Davis Parish School Bd. Ex rel. Sales/Use Tax Dept. v. Louisiana Machinery Rentals, LLC, 11-510 (La.App. 3 Cir. 10/5/11), 74 So.3d 1272, writ denied, 11-2437 (La.1/13/12), 77 So.3d 972. We therefore find no errors in the ruling of the trial court.

CONCLUSION

The judgment appealed from is affirmed. All costs of this appeal are assessed to appellant, Louisiana Machinery Rentals, L.L.C. This case is remanded to the district court for the determination of the appropriate amounts of audit fees and attorney fees, if any.

AFFIRMED AND REMANDED.

      . La. R.S. 47:337.33. Failure to pay tax; rule to cease business
      A. (1) On motion in a court of competent jurisdiction, the collector may take a rule on a taxpayer, to show cause in not less than two or more than ten days, exclusive of holidays, why the taxpayer should not be ordered to cease from further pursuit of his business for failure to pay to the taxing authority amounts collected from others by his business as sales and use tax, along with any interest, penalty, and costs related to such tax. Such rule may be taken only for amounts due as a result of assessments or judgments which have become final and nonappealable.
      (2) This rule may be tried out of term and in chambers, and shall always be tried by preference.
      (3)(a) If the rule is made absolute, the order rendered thereon shall be considered a judgment in favor of the taxing authority, and the court shall enjoin and prohibit the taxpayer from the further pursuit of his business until such time as he has paid the delinquent tax, interest, penalties, and all costs or has entered into an agreement with the collector to do so.
      (b) If the collector files a subsequent motion with the court alleging a violation of the injunction, the court shall hold a hearing in not less than two days or more than ten days, exclusive of holidays, to determine whether such violation has occurred. Upon a showing by the collector that there has been a violation of the injunction, the court shall consider the violation to be a contempt of the court and shall punish the violator in accordance with law, and every violation of the injunction shall be considered as a contempt of court.
      (4)Whenever the pleadings filed on behalf of the collector shall be accompanied by an affidavit of the collector or of one of his assistants or representatives or of the attorney filing the same, that the facts as alleged are true to the best of the affiant’s knowledge or belief, all of the facts alleged in the pleadings shall be accepted as prima facie true and as constituting a prima facie case, and the burden of proof to establish anything to the contrary shall rest wholly on the taxpayer.
      (5) The collection procedure provided for in this Subsection shall be in addition to any other collection procedure provided by law.
      B. Failure to pay any tax due as provided in the local ordinance shall, without demand or putting in default, cause the tax, interest, penalties, and costs to become immediately delinquent and the collector has the authority, on motion in a court of competent jurisdiction, to take a rule on such person, to show cause in not less than two or more than ten days, exclusive of holidays, why such person should not be ordered to cease from further pursuit of business. This rule may be tried out of term and in chambers and shall always be tried by preference. If the rule is made absolute, the order rendered thereon shall be considered a judgment in favor of the taxing authority, prohibiting the person from the further pursuit of said business until he has paid the delinquent tax, interest, penalties, and costs, and every violation of the injunction shall be considered as a contempt of court and punished according to law.
      C. For the purpose of the enforcement of the local ordinance and the collection of the tax levied therein, it is presumed that all tangible personal property imported or held in the taxing jurisdiction by any dealer is to be sold at retail, used or consumed, or stored for use or consumption in the taxing jurisdiction, or leased or rented within the taxing jurisdiction, and is subject to the tax herein levied. This presumption shall be prima facie only, and subject to proof furnished to the collector.
      D. The provisions of this Section shall not apply if the person has entered into an installment agreement for the payment of delinquent taxes with the collector and is in compliance with the terms of the agreement.

      . La. R.S. 47:337.61. Collection by summary court proceeding authorized
      In addition to any other procedure provided in this Chapter or elsewhere in the laws of this state, and for the purpose of facilitating and expediting the determination and trial of all claims for taxes, penalties, interest, attorney fees, or other costs and charges arising, there is hereby provided a summary proceeding for the hearing and determination of all claims by or on behalf of the taxing authority, or by or on behalf of the collector, for taxes and for the penalties, interest, attorney fees, costs or other charges due thereon, by preference in all courts, all as follows:
      (1) All such proceedings, whether original or by intervention or third opposition or otherwise, brought by or on behalf of the taxing authority, or by or on behalf of the collector, for the determination or collection of any tax, interest, penalty, attorney fees, costs or other charge claimed to be due shall be summary and shall always be tried or heard by preference, in all courts, original and appellate, whether in or out of term time, and either in open court or chambers, at such time as may be fixed by the court, which shall be not less than two nor more than ten days after notice to the defendant or opposing party.
      (2) All defenses, whether by exception or to the merits, made or intended to be made to any such claim, must be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed. This provision shall be construed to deny to any court the right to extend the time for pleading defenses, and no continuance shall be granted by any court to any defendant except for legal grounds set forth in the Louisiana Code of Civil Procedure.
      (3) That all matters involving any such claim shall be decided within forty-eight hours after submission, whether in term time or in vacation, and whether in the court of first instance or in an appellate court, and all judgments sustaining any such claim shall be rendered and signed the same day, and shall become final and exec-utory on the fifth calendar day after rendition. No new trial, rehearing or devolutive appeal shall be allowed. Suspensive appeals may be granted, but must be perfected within five calendar days from the rendition of the judgment by giving of bond, with good and solvent security, in a sum double that of the total amount of the judgment, including costs. Such appeals, whether to a court of appeal or to the supreme court, shall be made returnable in not more than fifteen calendar days from the rendition of the judgment.
      (4) Whenever the pleadings filed on behalf of the taxing authority, or on behalf of the collector, shall be accompanied by an affidavit of the collector or of one of his assistants or representatives or of the counsel or attorney filing the same, that the facts as alleged are true to the best of the affiant’s knowledge or belief, all of the facts alleged in said pleadings shall be accepted as prima facie true and as constituting a prima facie case, and the burden of proof to establish anything to the contrary shall rest wholly on the defendant or opposing party.

      . This assessment is for the same tax and penalty figures as those in the earlier notice; however this assessment includes additional interest which had continued to accrue on the unpaid amount.

      . The judgment further provided that the partial summary judgment is designated as final and appealable pursuant to La. C.C.P. art. 1915(B)(1), upon an express finding by the court that "this final disposition of this summary action to collect tax is important to the public fisc of the Parish of Ascension.”

      . Due to our holding in LMR’s appeal, the issue raised in the Authority’s answer to appeal is moot.


text:
    The ASCENSION PARISH SALES AND USE TAX AUTHORITY v. LOUISIANA MACHINERY COMPANY, L.L.C.
    No. 2011 CA 1785.
    Court of Appeal of Louisiana, First Circuit.
    March 30, 2012.
    Linda S. Akchin, Christopher J. Dichar-ry, Pamela R. Mascan, Phyllis D. Sims, Baton Rouge, LA, for Defendant/Appellant Louisiana Machinery Company, LLC.
    Robert R. Rainer, Drew M. Talbot, Baton Rouge, LA, for Plaintiff/Appellee Ascension Parish Sales and Use Tax Authority-
    Before GAIDRY, MCDONALD, and HUGHES, JJ.
   GAIDRY, J.

li>On October 25, 2010, the Ascension Parish Sales and Use Tax Authority (“the Authority”) filed a “Petition for Rule to Show Cause in Summary Sales and Use Tax Proceeding” against Louisiana Machinery Company, L.L.C. (“LMC”). The petition states that it is a summary proceeding brought under the provisions of La. R.S. 47:337.33, La. R.S. 47:337.61, and comparable sections of the sales and use tax ordinances of Ascension Parish. The Authority alleged that LMC was a registered dealer for Ascension Parish sales and use tax purposes and that LMC operated as Louisiana’s sole statewide Caterpillar franchise dealer, selling at retail, leasing, and repairing various new and used Caterpillar equipment and parts in Ascension Parish. The Authority further alleged that it is the single sales and use tax collector for all local taxing authorities located in Ascension Parish and is authorized by statute and ordinance to audit LMC’s “books, records, papers, vouchers, accounts, and documents for Ascension Parish sales and use tax compliance with regard to any and all taxable sales, uses, storage, distribution, repairs and/or leases of tangible personal property occurring within Ascension Parish.” Pursuant to these statutes and L ordinances, the Authority contracted with a private auditing firm, Broussard Partners & Associates (“BPA”), to conduct a sales and use tax compliance audit of LMC for the period of December 1, 2003 through June 30, 2007. The audit was held open several times by “prescription waiver” agreements between LMC and the Authority, in order to suspend the running of prescription as to any taxes that may be found to be due. BPA’s audit revealed that LMC had incorrectly charged and collected, or failed to collect, sales and use taxes from its customers in Ascension Parish on its taxable sales, leases, and repairs. Citing La. R.S. 47:337.17(E) and (C), the Authority claimed that LMC was liable to it for the taxes it had neglected or failed to collect and remit, along with penalties and interest.

The original audit showed a sales and use tax deficiency of $250,455.11. On November 20, 2009, the Authority issued to LMC a “30-Day Notice of Intent to Assess Additional Tax Due-La. R.S. 47:337.48 B” for this deficiency, along with a penalty of $62,613.86 and interest of $149,373.60, for a total due of $462,442.57. This notice stated that LMC had thirty days from the date of the notice to either: (1) pay the amount assessed; or (2) file a written protest citing the objection to the assessment and request a hearing with the Authority. The notice further warned that a failure to respond to the notice within the time or manner provided would result in the issuance of a formal assessment with additional penalties and interest. The Authority alleged that LMC failed to respond to this November 20, 2009 notice within the allotted time in any of the manners prescribed by law. Consequently, on December 31, 2009, the Authority issued to LMC, via certified mail, a formal “Notice of Assessment 60-Day Assessment — La. | Bfi.S. 47:337.51” in the total amount of $468,703.96. The December 31, 2009 notice stated that if LMC wished to protest, it had thirty calendar days to file a written protest under oath and request a hearing. The notice went on to state that if LMC did not timely file a written protest and request a hearing, it had sixty calendar days to either: (1) pay the amount assessed; (2) pay the amount assessed “under protest” and file suit for recovery within thirty days of the payment; or (3) file suit in any state court of competent jurisdiction contesting the assessment within thirty days of receipt of the notice and post a bond or other security. The notice also stated that “FAILURE TO ACT WITHIN THE TIME OR MANNER PROVIDED WILL RESULT IN THE ASSESSMENT BECOMING FINAL AND ENFORCEABLE BY WARRANT FOR DISTRAINT. ADDITIONAL PENALTIES, INTEREST AND COLLECTION FEES MAY BE ASSESSED AT THAT TIME.” Rather than taking any of the steps provided in the December 31, 2009 notice, LMC submitted additional documents, records, and papers to the private auditor, BPA. After considering those additional documents, the Authority reduced LMC’s tax deficiency and issued, via certified mail, a “* * *Revised* * *NOTICE OF ASSESSMENT 60-Day Assessment — La. R.S. 47:337.51.” The revised notice, dated April 30, 2010, adjusted the total assessment amount to $179,832.16 and contained the same notices and warnings regarding payment, protest, time delays, and consequences of the failure to act as the December 31, 2009 notice. The Authority alleged that LMC did not respond to the April 30, 2010 notice within the time allotted in any manner. Accordingly, the Authority filed its petition, alleging that the Revised Assessment, including additional accrued interest, had become final and was Rthe equivalent of a judgment against LMC pursuant to La. R.S. 47:337.68. With additional accrued interest, the total tax, penalty, and interest assessment through October 31, 2010 was $186,309.47, which, with interest continuing to accrue until paid, the Authority sought to make executory by a declaratory judgment of the district court.

The Authority further sought an injunction against LMC, pursuant to La. R.S. 47:337.33(A)(3), enjoining it from the further pursuit of business in Ascension Parish until payment in full of all amounts due. It also sought recognition of its lien and privilege on all property owned by LMC, pursuant to La. R.S. 47:337.65, to secure payment of the amounts due. Because the Authority had employed counsel to assist in the collection of the taxes, penalties, and interest assessed against LMC, it sought attorney fees in the amount of ten percent of the aggregate amount due, or such lesser or greater amount found reasonable and fixed by the court. It also sought payment of audit fees incurred with BPA in the amount of $21,186.33, pursuant to La. R.S. 47:337.75 and 47:337.26. The Authority attached to its petition the affidavit of Kressynda “Kressy” Krennerich, Assistant Administrator for the Authority, which states that the facts as alleged in the petition were true and correct to the best of her knowledge and belief, thereby establishing a pri-ma facie case in favor of the Authority and shifting the burden of proof to LMC to establish anything to the contrary, in accordance with La. R.S. 47:337.61(4).

On November 17, 2010, LMC filed an answer, exceptions, and affirmative defenses to the Authority’s petition. In its answer, LMC contested the audit and assessment and denied any sales or use taxes, penalties, or interest were due. It raised the declinatory exception of insufficiency of citation and service of process; dilatory exceptions of ^unauthorized use of summary proceeding and vagueness or ambiguity of the petition; and the peremptory exception of prescription. The affirmative defenses raised by LMC included various ways in which the assessments were erroneous; extinguishment of the obligation by payment or, in the alternative, offset; denial of due process and equal protection of the laws in violation of the United States and Louisiana Constitutions; non-taxability of the transactions included in the assessment; lack of finality of the assessment; and, to the extent any additional tax might be owed, a request for waiver of all penalties and interest. On December 8, 2010, LMC filed a supplemental and amended answer, exceptions, and affirmative defenses, asserting that, to the extent the Authority might contend that the tax statutes divested the district court of subject matter jurisdiction, precluded LMC from raising any defenses or presenting evidence relevant to the correctness of the audit and assessment, or gave the Department unfettered discretion to determine the validity and correctness of the audit with no right of judicial review, then those statutes, as interpreted by the Authority, were unconstitutional.

The Authority opposed LMC’s exceptions and affirmative defenses and filed an exception raising the objections of per-emption and lack of jurisdiction over the subject matter, pursuant to La. R.S. 47:337.51(C). It then moved to strike LMC’s supplemental and amending answer and affirmative defenses on the grounds that they were not filed timely, and that these defenses to the taxing authority had been rejected by both the Louisiana and United States Supreme Courts. The Authority also filed a motion for partial summary judgment, alleging that there were no genuine issues of material fact and that the Authority was entitled to judgment in its favor and against LMC as a matter of law for the amounts due for the sales Rand use tax deficiency, interest, and penalties, as set out in the Revised Assessment and its petition. After a hearing, the court granted the Authority’s peremptory exception of lack of subject matter jurisdiction; dismissed LMC’s exceptions, affirmative defenses, and denials with prejudice; declared that the Authority’s peremptory exception of peremption and its motion to quash were moot, considering the other rulings of the court; denied the Authority’s motion to strike; and granted the Authority’s motion for partial summary judgment, rendering judgment in favor of the Authority and against LMC declaring that the Revised Assessment is final and an executory judgment of the court, reserving to the Authority its claim for reasonable attorney fees and audit costs to be determined in a subsequent summary proceeding. This appeal by LMC followed.

DISCUSSION

On appeal, LMC alleges that the court erred in finding that it was not entitled to raise exceptions and defenses to the final assessment, in failing to deny the Authority’s peremptory exception of peremption, and in granting the Authority’s motion for partial summary judgment.

As explained by this court in West Baton Rouge Parish Revenue Department v. Louisiana Machinery Rentals, L.L.C. c/w West Baton Rouge Parish Revenue Department v. Louisiana Machinery Company, L.L.C., 11-0711 (La.App. 1 Cir. 3/9/12), 91 So.3d 1032, because the Authority complied with the assessment and distraint provisions governing notice to LMC, and LMC chose not to use any of the defensive mechanisms available to it throughout the assessment and distraint procedure, once the final sixty-day period went by with no protest or payment from LMC, the Revised 1 ^Assessment was final and was the equivalent of a final and enforceable judgment. LMC was thereafter precluded from raising defenses, whether by exception or on the merits, in a summary rule to collect the sales tax. Id., citing Jefferson Davis Parish School Bd. Ex rel. Sales/Use Tax Dept. v. Louisiana Machinery Rentals, LLC, 11-510 (La.App. 3rd Cir. 10/5/11), 74 So.3d 1272, writ denied, 11-2437 (La. 1/13/12), 77 So.3d 972. We therefore find no errors in the ruling of the trial court.

CONCLUSION

The judgment appealed from is affirmed. All costs of this appeal are assessed to appellant, Louisiana Machinery Company, L.L.C. This case is remanded to the district court for the determination of the appropriate amounts of audit fees and attorney fees, if any.

AFFIRMED AND REMANDED.

      . La. R.S. 47:337.33. Failure to pay tax; rule to cease business
      A.(1) On motion in a court of competent jurisdiction, the collector may take a rule on a taxpayer, to show cause in not less than two or more than ten days, exclusive of holidays, why the taxpayer should not be ordered to cease from further pursuit of his business for failure to pay to the taxing authority amounts collected from others by his business as sales and use tax, along with any interest, penalty, and costs related to such tax. Such rule may be taken only for amounts due as a result of assessments or judgments which have become final and nonappealable.
      (2) This rule may be tried out of term and in chambers, and shall always be tried by preference.
      (3)(a) If the rule is made absolute, the order rendered thereon shall be considered a judgment in favor of the taxing authority, and the court shall enjoin and prohibit the taxpayer from the further pursuit of his business until such time as he has paid the delinquent tax, interest, penalties, and all costs or has entered into an agreement with the collector to do so.
      (b) If the collector files a subsequent motion with the court alleging a violation of the injunction, the court shall hold a hearing in not less than two days or more than ten days, exclusive of holidays, to determine whether such violation has occurred. Upon a showing by the collector that there has been a violation of the injunction, the court shall consider the violation to be a contempt of the court and shall punish the violator in accordance with law, and every violation of the injunction shall be considered as a contempt of court.
      (4) Whenever the pleadings filed on behalf of the collector shall be accompanied by an affidavit of the collector or of one of his assistants or representatives or of the attorney filing the same, that the facts as alleged are true to the best of the affiant’s knowledge or belief, all of the facts alleged in the pleadings shall be accepted as prima facie true and as constituting a prima facie case, and the burden of proof to establish anything to the contrary shall rest wholly on the taxpayer.
      (5)The collection procedure provided for in this Subsection shall be in addition to any other collection procedure provided by law.
      B.Failure to pay any tax due as provided in the local ordinance shall, without demand or putting in default, cause the tax, interest, penalties, and costs to become immediately delinquent and the collector has the authority, on motion in a court of competent jurisdiction, to take a rule on such person, to show cause in not less than two or more than ten days, exclusive of holidays, why such person should not be ordered to cease from further pursuit of business. This rule may be tried out of term and in chambers and shall always be tried by preference. If the rule is made absolute, the order rendered thereon shall be considered a judgment in favor of the taxing authority, prohibiting the person from the further pursuit of said business until he has paid the delinquent tax, interest, penalties, and costs, and every violation of the injunction shall be considered as a contempt of court and punished according to law.
      C.For the purpose of the enforcement of the local ordinance and the collection of the tax levied therein, it is presumed that all tangible personal property imported or held in the taxing jurisdiction by any dealer is to be sold at retail, used or consumed, or stored for use or consumption in the taxing jurisdiction, or leased or rented within the taxing jurisdiction, and is subject to the tax herein levied.. This presumption shall be prima facie only, and subject to proof furnished to the collector.
      D. The provisions of this Section shall not apply if the person has entered into an installment agreement for the payment of delinquent taxes with the collector and is in compliance with the terms of the agreement.

      . La. R.S. 47:337.61. Collection by summary court proceeding authorized
      In addition to any other procedure provided in this Chapter or elsewhere in the laws of this state, and for the purpose of facilitating and expediting the determination and trial of all claims for taxes, penalties, interest, attorney fees, or other costs and charges arising, there is hereby provided a summary proceeding for the hearing and determination of all claims by or on behalf of the taxing authority, or by or on behalf of the collector, for taxes and for the penalties, interest, attorney fees, costs or other charges due thereon, by preference in all courts, all as follows:
      (1) All such proceedings, whether original or by intervention or third opposition or otherwise, brought by or on behalf of the taxing authority, or by or on behalf of the collector, for the determination or collection of any tax, interest, penalty, attorney fees, costs or other charge claimed to be due shall be summary and shall always be tried or heard by preference, in all courts, original and appellate, whether in or out of term time, and either in open court or chambers, at such time as may be fixed by the court, which shall be riot less than two nor more than ten days after notice to the defendant or opposing party.
      (2) All defenses, whether by exception or to the merits, made or intended to be made to any such claim, must be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed. This provision shall be construed to deny to any court the right to extend the time for pleading defenses, and no continuance shall be granted by any court to any defendant except for legal grounds set forth in the Louisiana Code of Civil Procedure.
      (3) That all matters involving any such claim shall be decided within forty-eight hours after submission, whether in term time or in vacation, and whether in the court of first instance or in an appellate court, and all judgments sustaining any such claim shall be rendered and signed the same day, and shall become final and exec-utory on the fifth calendar day after rendition. No new trial, rehearing or devolutive appeal shall be allowed. Suspensive appeals may be granted, but must be perfected within five calendar days from the rendition of the judgment by giving of bond, with good and solvent security, in a sum double that of the total amount of the judgment, including costs. Such appeals, whether to a court of appeal or to the supreme court, shall be made returnable in not more than fifteen calendar days from the rendition of the judgment.
      (4) Whenever the pleadings filed on behalf of the taxing authority, or on behalf of the collector, shall be accompanied by an affidavit of the collector or of one of his assistants or representatives or of the counsel or attorney filing the same, that the facts as alleged are true to the best of the affiant’s knowledge or belief, all of the facts alleged in said pleadings shall be accepted as prima facie true and as constituting a prima facie case, and the burden of proof to establish anything to the contrary shall rest wholly on the defendant or opposing party.

      . This assessment is for the same tax and penalty figures as those in the earlier notice; however this assessment includes additional interest which had continued to accrue on the unpaid amount.

      . The judgment further provided that the partial summary judgment is designated as final and appealable pursuant to La. C.C.P. art. 1915(B)(1), upon an express finding by the court that “this final disposition of this summary action to collect tax is important to the public fisc of the Parish of Ascension.”


author: PER CURIAM.

text:
    STATE of Louisiana v. Charles CARTER.
    No. 2011 KW 2401.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 2012.
    Hillar C. Moore, III, District Attorney, Leila Braswell and Dylan C. Alge, Assistant District Attorneys, for Relator, State of Louisiana.
    Mark D. Plaisance, Baker, LA, for Respondent, Charles Carter.
    Before WHIPPLE, KUHN and GUIDRY, JJ.
   PER CURIAM.

| ¡/This application, filed by the State of Louisiana, alleges the trial court erred in granting the defendant’s motion to quash alleging double jeopardy. Nakoosha La-trey Albert filed a petition for protection from abuse in the Family Court of East Baton Rouge Parish. In response, the judge issued a temporary restraining order to restrain Charles Anthony Carter from committing further acts of abuse or threats of abuse. After an evidentiary hearing, the Family Court judge dismissed the petition for protection from abuse, noting the inconsistency of the testimony.

Subsequently, the state billed the defendant with the misdemeanor offense of simple assault (against Nakoosha Albert) with the same date of offense as the incident alleged in the petition for protection. Defendant filed a motion to quash based on double jeopardy. In the motion, defendant noted the Family Court judge found, under the facts, that a protective order should not be issued. Defendant asserted that because a judicial tribunal had already considered the facts of the case and concluded that no act of assault had been committed, any prosecution in the instant case would constitute double jeopardy. After hearing argument, the trial court granted the motion. The state seeks review of that ruling in this writ application, and defendant has filed a response.

The federal and state constitutions both provide that no person shall twice be put in jeopardy of life or liberty for the same offense. U.S. Const. amend. V; La. Const. art. I, § 15. The federal and state double jeopardy provisions protect against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. State v. Dunn, 96-0289 (La.App. 1st Cir.11/8/96), 682 So.2d 1309, 1311.

In State v. Hope, 449 So.2d 633 (La.App. 1st Cir.1984), the defendant was sentenced to, and served, a ten-day jail sentence after being found guilty of |scontempt of court for violating a visitation order by not returning his child for approximately five months after what was scheduled to be a weekend visit. The defendant subsequently was charged with simple kidnapping based on the same conduct, and he filed a motion to quash urging double jeopardy. The trial court granted the defendant’s motion, finding the contempt proceeding was criminal in nature and double jeopardy applied. This Court affirmed, based on the fact the defendant actually served his jail term, which was meted out to punish him for his noncompliance with the previous orders of the court.

Herein, it is clear that the hearing on the protective order request was a civil proceeding and not a criminal prosecution. Unlike the defendant in Hope, defendant did not serve a jail term, and the hearing on the protective order request was not designed to punish him for the incident. There were only two possible outcomes of the hearing on the protective order: that an order would be granted or denied. Relator was never faced with contempt or any possibility of incarceration. Thus, although the same evidence could possibly be used to support both cases, jeopardy never attached with the civil proceeding. A trial judge’s failure to grant a preliminary injunction in a family law matter is not an acquittal.

Accordingly, the writ application is granted, the trial court’s ruling granting defendant’s motion to quash is reversed, arid this matter is remanded for further proceedings.


author: WILLIAMS, J.

text:
    Alvin CARTHON, Plaintiff-Appellant v. JOHNSON CONTROLS, INC. and Underwriters Safety & Claims, Defendants-Appellees.
    No. 47,037-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      Andrew L. Randall, Jr., for Appellant.
    John T. Westholz, for Appellees.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   WILLIAMS, J.

hThe claimant, Alvin Carthon, appeals a judgment in favor of the defendant, Johnson Controls, Inc. (“Johnson Controls”), denying his claims for medical benefits, penalties and attorney fees. The Workers’ Compensation Judge (“WCJ”) found that the claimant’s testimony regarding his disability was not credible. For the following reasons, we affirm.

FACTS

The claimant, Alvin Carthon, worked in the maintenance department at the Johnson Controls Shreveport facility, where seats for trucks were assembled. On March 11, 2010, the claimant was injured on the job while helping to move a container that had jammed the assembly line. When he stood up from a kneeling position, claimant felt pain in his lower back and reported the incident to his supervisor. Claimant was sent to WorkCare and was seen by Dr. Ravi Goel, who ordered an x-ray. Dr. Goel diagnosed claimant with back strain and released him to light duty. When claimant complained of continuing back pain at his next visit, Dr. Goel referred him to Dr. Milan Mody, an orthopedic surgeon, and ordered an MRI.

In April 2010, claimant saw Dr. Mody, who noted the x-ray report of a degenerative disc at L4 and that claimant’s lumbar MRI showed a disc herniation at the L4-L5 level. Claimant was not working at the time because the plant had been temporarily closed. Dr. Mody examined the claimant and prescribed six weeks of physical therapy. Johnson Controls paid for this treatment. After participating in physical therapy, claimant again saw Dr. Mody in June 2010, with a complaint of continuing back pain. After an examination, Dr. Mody returned claimant to sedentary work, 1 ;.with restrictions on lifting, bending and standing. Dr. Mody also recommended epidural steroid injections to relieve the pain, but the employer did not approve payment. In October 2010, claimant was examined by another orthopedist, Dr. P. Britain Auer, who noted claimant’s history of a heavy lifting event at work followed by increasing back and leg pain. Dr. Auer diagnosed claimant with “disc degeneration, herniated” at L4-L5 and continued the light duty restrictions. Dr. Auer recommended additional physical therapy and epidural steroid injections.

At all pertinent times, Johnson Controls paid wages to the claimant and accommodated his work restrictions. However, the employer did not approve payment for the proposed epidural steroid injections and second round of physical therapy. The claimant filed a disputed claim for compensation seeking additional medical treatment for his back, penalties and attorney fees. Claimant listed Johnson Controls as the employer and Underwriters Safety & Claims (“Underwriters”) as the claims administrator. Johnson Controls filed a claim alleging that claimant had forfeited his workers’ compensation benefits based on his false statements about his physical condition. Claimant later dismissed his claims against Underwriters.

At trial, the parties admitted into evidence the claimant’s medical records and the WCJ heard testimony from the claimant, his work supervisor, the Human Relations manager at Johnson Controls and an investigator hired by the employer to provide surveillance of claimant and report on his activities. In his written reasons for judgment, the WCJ found [ 3that claimant’s testimony regarding his inability to perform tasks at work was not credible, given the surveillance video showing him lifting an object that exceeded the 10-pound weight restriction and his failure to disclose at his deposition that he planned to drive to Houston to help his sister move. The WCJ also found that forfeiture was not necessary because the claimant’s false statement was inconsequential. The WCJ rendered judgment denying the claims of the claimant for further medical treatment. The claimant filed a motion for new trial, which was denied. This appeal followed.

DISCUSSION

The claimant contends the WCJ erred in denying his claim for additional medical treatment. Claimant argues that the trial testimony did not support the WCJ’s finding that he was not credible in describing his physical limitations when the medical evidence provided a basis for his complaints of pain.

An employer is obligated to furnish all necessary medical expenses related to a work injury. LSA-R.S. 23:1203. A claimant may recover medical expenses that are reasonably necessary for the treatment of a medical condition caused by a work-related accident. City of Shreveport v. Casciola, 43,132 (La.App.2d Cir.3/26/08), 980 So.2d 203. The claimant must prove by a reasonable preponderance of evidence the necessity and relationship of the physician’s treatment to the work injury. Casciola, supra. Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Factual findings in workers’ compensation cases are subject to the manifest error standard of appellate review. Koenig v. Christus Schumpert Health System, 44,244 (La.App.2d Cir.5/13/09), 12 So.3d 1037; Casciola, supra.

In the present case, Dr. Mody’s notes of April 29, 2010, state that claimant’s lumbar MRI showed a herniated disc at L4-L5, with severe left neuroforaminal stenosis. Claimant stated that his pain level on a daily basis was a five on a scale of ten. Dr. Mody prescribed physical therapy and released claimant to sedentary work with a maximum of ten pounds lifting and no twisting or bending, no climbing stairs and no prolonged walking or standing. On June 24, 2010, claimant returned to Dr. Mody complaining of continued back pain and stating that his pain level had increased to eight of ten. Dr. Mody suggested epidural steroid injections to treat the pain and continued claimant on sedentary work with the same restrictions. On October 4, 2010, claimant saw Dr. Auer with complaints of back and left leg pain. Dr. Auer noted that claimant’s x-ray showed “moderate L4/5 disc degeneration” and that the MRI report found a herniated disc at the same level. Pending his own review of the MRI images, which he did not have at the time, Dr. Auer recommended epidural steroid injections and additional physical therapy while continuing claimant on sedentary duty.

At trial, Cletus Ross testified that he was the manager of the maintenance department at Johnson Controls and claimant’s supervisor. Ross stated that he was aware of claimant’s work accident and the restrictions on his activities. Ross testified that claimant said he could not continue to help with a parts inventory because many parts were located on |5the second floor and he was restricted from climbing stairs. Ross stated that he also asked claimant to help with organizing two large paint cabinets, but claimant said he could not because he would not be able to squat down and reach into the bottom shelf to remove the paint cans. Ross testified that in September 2010, he had observed claimant in the company parking lot doing something under the hood of his truck for approximately ten minutes, even though he had said he could not lift things over his head. Ross stated that at the time of trial, the claimant’s only task at work had been to complete an online training course. Ross testified that although two other workers had completed the course in six hours, claimant had not yet finished despite spending two 40-hour work weeks on the task. He stated that claimant had said his delay was due to an inability to sit for long periods of time.

Felicia Douglas, the employer’s human resources manager, testified that she tried to find suitable work for claimant within his physical restrictions. Douglas stated that she asked claimant to assist with taking inventory of chemicals and checking that there was a Material Safety Data Sheet (MSDS) contained in a binder for each chemical. Douglas testified that claimant first said that the MSDS binder was too heavy and exceeded his lifting restriction. Douglas stated that she then carried the binder to the work area for claimant, but that after doing the task for one day, he said he was unable to continue because the fumes in the maintenance area aggravated his allergies. Douglas testified that she also had observed claimant in the parking lot under the hood of his truck, bending over like he [fiwas working on the engine for approximately 15 minutes without any apparent difficulty.

Jeanette Sciara, a private investigator hired by Johnson Controls, testified that while conducting video surveillance of claimant on August 16, 2010, she observed him drive a rented van from Shreveport to Houston with only one stop during the four-hour drive. Sciara stated that the next day she followed claimant to a store and after he exited, he placed a box containing a mini-refrigerator into the van. Sciara testified that the claimant then drove back to Shreveport without making any stops.

Claimant testified that after his work injury he saw Dr. Goel, who diagnosed him with back strain and released him to sedentary duty. Claimant stated that he continued to feel back pain and was referred to Dr. Mody, who noted that claimant’s MRI showed a herniated disc at the L4-5 level and prescribed physical therapy. Claimant testified that his back started to improve by the end of physical therapy, but he still felt pain when he visited Dr. Mody again in June 2010. Claimant stated that Dr. Mody recommended epidural steroid injections and returned him to sedentary duty, as did Dr. Auer, who also suggested additional physical therapy.

Claimant testified that he understood his physical restrictions as no prolonged standing, climbing or bending and lifting no more than ten pounds. Claimant stated that most recently at work, he had been doing safety training on the computer for two weeks with instructions to take breaks as often as needed. Regarding other tasks at work, he stated that he had helped with inventory, but had not gone up to the second floor because |7he was restricted from climbing stairs. Claimant testified that prolonged sitting was a problem for him and that he had tried to follow the ten-pound lifting restriction when not working. Claimant acknowledged that he had driven to Houston and that the mini-refrigerator shown on the surveillance video weighed more than ten pounds. However, claimant asserted that he had not lifted the refrigerator, but pushed it onto the seat of the van from the shopping cart. Claimant testified that he was physically able to squat or bend and reach over his head, but not for a prolonged period of time and not without pain. He agreed that his activities shown on the video had occurred within 24 hours after his deposition on August 16, 2010. Claimant stated that his deposition responses that he planned to do “very little” and relax the next day were not false because that is what he did. Claimant maintained that he had been truthful with the doctors about his injury and had not exaggerated his pain symptoms and physical limitations.

In his reasons for judgment, the WCJ noted claimant’s testimony that on some days his pain level was eight on a scale of ten and that he was unable to perform most of the light duty tasks he was assigned because of his physical restrictions. However, the WCJ pointed out that although claimant had refused to inventory paint cans because he could not squat to look into the bottom shelf of the paint cabinet and had objected to carrying a binder because he thought it was too heavy, the surveillance video showed the claimant walking, bending, squatting and lifting a mini-refrigerator that weighed more than ten pounds without any apparent difficulty. In assessing the claimant’s credibility, the WCJ also considered claimant’s failure to Rdisclose at his deposition that he planned to drive to Houston later that day and his ability the next day to drive four hours back to Shreveport without stopping, contrary to his asserted inability to sit for prolonged periods.

Based upon the evidence presented of claimant’s lack of candor and his physical activities outside of work, the record supports the WCJ’s finding that claimant was not credible in testifying that his pain symptoms and physical limitations prevented him from performing the tasks assigned by his employer. Consequently, we cannot say the WCJ erred in concluding that claimant failed to satisfy his burden of proving that additional medical treatment was necessary as a result of the work injury. Thus, the assignment of error lacks merit.

Motion for New Trial

The claimant contends the WCJ erred in denying his motion for new trial. Claimant argues that he is entitled to a new trial because the medical evidence contradicted the WCJ’s determination that he lacked credibility.

A new trial shall be granted upon contradictory motion of any party when the judgment appears clearly contrary to the law and the evidence or when the party has discovered new evidence which he could not have obtained before or during trial. LSA-C.C.P. art. 1972. A new trial may be granted if there is good ground therefor. LSA-C.C.P. art. 1973. The denial of a motion for new trial is considered under the abuse of discretion standard of appellate review. Jones v. LSU/EA Conway Medical Center, 45,410 (La.App.2d Cir.8/11/10), 46 So.3d 205.

At the hearing on the motion for new trial, claimant argued that the RWCJ’s decision was not based on all of the relevant information because the medical records showing his herniated disc were omitted from evidence at trial. However, contrary to claimant’s argument, we note that the records of Drs. Mody and Auer that were admitted into evidence specifically refer to the MRI report of claimant’s herniated disc at the L4-5 level. Additionally, claimant testified that he was diagnosed with a herniated disc and the WCJ referred to this herniation in his reasons for judgment. At the hearing on the motion, the WCJ reviewed the trial evidence and the reasons for judgment. After reviewing the record, we cannot say the WCJ abused his discretion in denying a new trial based on a finding that the judgment was supported by the evidence submitted at trial. Thus, the assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to the appellant, Alvin Carthon.

AFFIRMED.