author: CHATELAIN, Judge.

text:
    Harold JULIEN v. DYNAMIC INDUSTRIES, INC.
    No. 10-520.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      David K. Johnson, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendants/Appellants, Dynamic Industries, Inc., Louisiana Workers’ Compensation Corporation.
    Craig A. Davis, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee, Harold Ju-lien.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and DAVID E. CHATELAIN, Judges.
   CHATELAIN, Judge.

hThe defendants, Dynamic Industries, Inc. (Dynamic) and Louisiana Workers’ Compensation Corporation (LWCC), appeal a judgment the workers’ compensation judge (WCJ) rendered in favor of its employee, Harold Julien (Julien). Julien answers the appeal seeking additional attorney fees and costs for having to defend the appeal. For the following reasons, we affirm the ruling of the WCJ and dismiss Julien’s answer to appeal as untimely.

FACTS AND PROCEDURAL HISTORY

Julien worked as an equipment operator for Dynamic at its west yard at the Port of Iberia where Dynamic built offshore oil and gas platforms. Julien’s primary duties entailed operating cranes and cherry pickers to transport equipment and material from the yard to the dock area to be loaded onto barges by the riggers. Occasionally, however, if it was a slow day and there was nothing for him to move with his cherry picker, Julien’s supervisor would ask him to “give the riggers a helping hand.”

July 23, 2007 had been a slow day for the operators, and Julien’s supervisor had asked him to help the riggers, who were short-handed that day, take a gangplank off of a barge so that the barge could be moved. The gangplank was too heavy to be manually moved. Julien’s supervisor and three or four riggers were on the barge. Julien and a rigger were on the gangplank rigging it up to a cherry picker with shackles and chains when the gangplank came apart from the barge causing Julien and the rigger to fall “out of the air backwards” twelve to fifteen feet to the ground. They landed on top of a pipe used as a hand railing. Rocks and gravel covered the ground where they fell. An ambulance took Julien to the emergency room at |2Pauterive Hospital for treatment. Later, Dynamic sent Julien to see Dr. Olga Reavill, its company doctor. Ju-lien testified that on one particular occasion a company van had picked him up for an appointment with Dr. Reavill. On the way home from the appointment, Julien was told that he was being terminated for not returning to work.

Julien was initially represented by an attorney who filed an LS-203 “Claim for Compensation” with the U.S. Department of Labor on September 13, 2007, asserting a claim under the Longshore & Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-944 (the LHWCA or the Long-shore Act). Thereafter, Julien discharged his original attorney and retained his current counsel of record. Believing that the LHWCA did not cover Julien’s claim, current counsel filed a 1008 Disputed Claim for Compensation on July 10, 2008, seeking benefits pursuant to the Louisiana Workers’ Compensation Act, La.R.S. 23:1021-1415 (the LWCA or the State Act) on Julien’s behalf. The defendants responded to Julien’s claim by filing a declinatory exception of lack of subject matter jurisdiction, contending that the Longshore Act covered the matter. In the meantime, Ju-lien filed a motion to approve his request for Temporary Total Disability Benefits (TTDs). The defendants’ exception and Julien’s motion came for hearing before the WCJ on October 24, 2008. By judgment dated December 16, 2008, the WCJ denied Julien’s motion for TTDs and the defendants’ declinatory exception. The judgment directed that “any benefits owed are to be paid under the State ... Act and not the Longshore ... Act.” Thereafter, the defendants filed an answer and general denial; they sought neither supervisory nor appellate review of the denial of their exception of lack of subject matter jurisdiction.

|sThe matter was tried on October 14, 2009. The only witnesses to testify were Julien and his wife. Following the presentation of testimony, exhibits, and arguments of counsel, the WCJ orally ruled as follows: (1) that medical treatment for a lumbar strain and cracked ribs be provided to Julien pursuant to the State Act; (2) that Julien’s request for a diskogram is denied; (3) that TTDs be reinstated back to the date Julien was terminated with interest on any past due amounts and that a dollar-for-dollar credit be allowed for any overpayments due to the prior TTD payments made pursuant to the Longshore Act; (4) that no penalties or attorney fees be awarded for the discontinuance of indemnity benefits; (5) that there be a $4,000.00 penalty and a $4,000.00 attorney fee assessed against the employer for failure to approve and/or timely reimburse Julien for prescription medications; (6) that Julien undergo a functional capacity evaluation (FCE) as soon as possible and that the insurer pay for all necessary medication for Julien’s high blood pressure until the FCE is completed; (7) that Ju-lien’s counsel be awarded $321.81 for expenses incurred in obtaining certified medical records; and (8) that the insurer pay for the medical treatment outlined in Plaintiff’s Exhibits 24, 25, and 26 pursuant to the Louisiana Fee Schedule. The WCJ signed a written judgment on October 30, 2009.

The defendants timely appealed and are now before this court asserting two errors. First, they contend that the WCJ erred in failing to find that Julien’s claim fell within the jurisdiction of the Longshore Act. Next, they contend that the WCJ erred in awarding Julien compensation and medical benefits.

^DISCUSSION

This court discussed the standard of review to be employed in workers’ compensation cases in Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.2/28/94); 633 So.2d 129. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, “if the [fact-finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

Initially we note that the defendants do not challenge the allegation that Julien suffered a work-related injury. Instead, the defendants focus their argument primarily on whether Julien’s claim falls within the jurisdiction of the State Act or the | ^Longshore Act and urge us to reverse the WCJ’s determination that it had subject matter jurisdiction over this matter.

The State Act versus The Longshore Act

The defendants contend that the “situs” requirement for coverage under the Longshore Act has been satisfied in this case because Julien admitted that his accident occurred at the Port of Iberia and because there is “no doubt that the Port of Iberia is [a] dock or an adjoining area customarily used by an employer (herein Dynamic Industries) in loading or unloading vessels and which is located upon the navigable waters of the United States.” The defendants offer no jurisprudential support for their eonclusory allegation that Julien’s injury occurred upon the navigable waters of the United States.

With respect to the “status” requirement, the defendants contend that because the evidence showed that Julien played a “significant and regular role in the loading/unloading operations” of Dynamic, the trial court erred in concluding that Julien was not covered under the Longshore Act. In support of their argument, the defendants refer this court to three decisions published in the Benefits Review Board, Service Longshore Reporter. ,

Julien counters that “there is not a scintilla of evidence in the record to prove that there were navigable waters anywhere near [him] at the time of the [a]ccident” or that Dynamic is in the business of loading, unloading, repairing, dismantling, or building vessels. To the contrary, Julien submits that the entirety of the evidence as to the nature of Dynamic’s business operations came from trial exhibits which | ñshowed that Dynamic builds platforms for oil and gas companies. Moreover, Ju-lien submits that the simple fact that he worked at a facility located entirely within the Port of Iberia, which he describes as “a huge area, comprising many different employers,” does not prove that he was working on navigable waters or on any area customarily used by Dynamic for loading, unloading, repairing, dismantling, or building vessels. Nonetheless, Julien fails to offer any jurisprudential support for his claim that the “situs” requirement has not been met.

For the Longshore Act to cover an employee, the employee must meet the “status” and the “situs” requirements listed in the Longshore Act. See Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985). The “status” requirement is found in 33 U.S.C. §§ 902(3) and 902(4), which provide, in pertinent part:

(3) The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker....
(4) The term “employer” means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).

The “situs” requirement concerns the location where the employee’s work is performed; it is found in 33 U.S.C. § 903(a), which is entitled “Disability or death; injuries occurring upon navigable waters of United States,” and provides:

Except as otherwise provided in this section, compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any 17ad.jpining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).

In Flowers v. Coastal Cargo Co., Inc., 01-656, pp. 3-4 (La.App. 4 Cir. 3/20/02), 815 So.2d 198, 200, writ denied, 02-923 (La.5/31/02), 817 So.2d 100, the fourth circuit detailed the analysis employed in determining whether an injured employee’s remedy falls under the State Act or the Longshore Act, noting:

“Longshore Act coverage is to be determined solely on the basis on [sic] the provisions of the Longshore Act, and without reference to the availability which any such ‘employees’ may have to remedies outside that law.” H.R. Rep. 98-570(1), p. 7, 1984 U.S.C.C.A.N. 2734, 2740. Therefore, it was proper for the Workers’ Compensation Court to look to the LHWCA to make a determination regarding jurisdiction in this matter....
Pursuant to La. R.S. 23:1035.2 of the WCA, “no compensation shall be payable in respect to the disability or death of an employee covered by the Federal Employer’s Liability Act, the Longshoremen’s (sic) and Harbor Worker’s (sic) Compensation Act, or any of its extensions, or the Jones Act.”

The Flowers court upheld the WCJ’s finding that jurisdiction over the injured worker’s claim fell under the Longshore Act, noting that his “injury occurred while [he] was engaged in maritime activities.” Id. Unfortunately, however, the opinion does not go into detail regarding the location where the employee was working, the work that the employee was engaged in, or the circumstances surrounding his injury.

Nevertheless, in Bercegeay v. Cal-Dive International, Inc., 583 So.2d 1181 (La.App. 1 Cir.), writ denied, 589 So.2d 1070 (La.1991), a diesel mechanic who was injured on land in the workshop on his employer’s premises, which included facilities for docking the employer’s two vessels, filed suit under the Jones Act, and in the alternative, under the Longshore Act. In reversing the trial court’s grant of summary judgment in favor of the employer and dismissing the mechanic’s Jones Act claim, lsthe appellate court noted that a material issue of fact remained regarding whether the mechanic’s injury occurred upon navigable waters. As a result, because a question remained as to whether the mechanic’s claim was covered under the Longshore Act, summary judgment dismissing his alternative Jones Act claim “cannot be supported on the basis ... that coverage of a worker under the LHWCA precludes that worker from entitlement to Jones Act benefits.” Id. at 1185.

Although the questions before us today differ from those faced by the Bercegeay court, we are nonetheless convinced that the decision provides sound guidance to the resolution of the issue of whether the WCJ erred in finding that Julien’s claim fell within the jurisdiction of the State Act. The record before us contains no evidence on the issue of whether Julien was injured upon the navigable waters of the United States or any adjoining area Dynamic customarily used in loading, unloading, repairing, dismantling, or building vessels. At oral argument, counsel for the defendants insisted that the exception of lack of subject matter jurisdiction was reurged at the trial on the merits. Although the transcript reflects that the issue of jurisdiction was discussed at trial, the transcript does not reflect that the exception was officially reurged. Likewise, there is no order in the record resetting the defendants’ jurisdictional exception for hearing. In addition, we note |nthat the record on appeal contains no transcript or exhibits from the October 24, 2008 hearing. Thus, even if testimony and evidence regarding the exception was presented to the WCJ at the earlier hearing, no such evidence or testimony has been presented to this court. Moreover, no evidence or testimony was presented at trial which could be viewed as a basis for the WCJ to reconsider her prior determination that any benefits found to be owed to Julien were payable under the State Act.

A “judgment of a trial court is presumed correct, absent any record evidence indicating the contrary.” Williams v. Williams, 07-541, p. 7 (La.App. 3 Cir. 10/31/07), 968 So.2d 1234, 1239 (citing Steinhoff v. Steinhoff, 03-24 (La.App. 3 Cir. 4/30/03), 843 So.2d 1290). Accordingly, there is no basis from which this court could conclude that the WCJ erred in finding that Julien’s claim fell within the jurisdiction of the State Act. Because of our ruling, we need not discuss whether the evidence showed that Julien met the “status” requirement for coverage under the Longshore Act. Therefore, the defendants’ first assignment of error lacks merit.

Julien’s Entitlement to Compensation and Medical Benefits

The defendants next contend that even if Julien’s claim falls under the State Act, Julien failed to prove his entitlement to continuing medical and indemnity benefits because the evidence does not disclose any cause for Julien’s continued complaints of pain and disability.

Julien describes the defendants’ contention as ridiculous. Julien submits that the defendants wrongfully terminated his compensation benefits in October of 2009 despite the fact that Dr. John Cobb, his treating physician, stated that he was unable to work. Moreover, he stresses that despite Dr. Cobb’s medical opinion, the | ] n defend ants have refused to approve any additional testing to determine the source of his pain or to approve any continuing medical treatment or prescription benefits.

Dr. Cobb signed a work status report on September 15, 2008, stating that Julien was unable to work pending diagnostic testing. On March 16, 2009, Dr. Cobb recommended that Julien undergo a lumbar MRI due to his continued symptoms that “sound disc related that we have been unable to confirm.” At that time, Dr. Cobb noted that Julien was still unable to work. In addition, there is a note in Ju-lien’s records dated July 1, 2009, wherein Dr. Cobb stated that Julien had chronic lower back pain of undetermined etiology that did not appear to be disc related and he recommended that Julien see Dr. Daniel Hodges for treatment with a pain management program. Again, Dr. Cobb opined that Julien was unable to work at the time.

Our review of the record shows that the WCJ was presented with two views of Julien’s current medical condition. On the one hand, Julien testified that he continues to suffer from pain, and he presented evidence from his treating physician which indicated that he is in need of further testing to determine the source of his pain and disability. On the other hand, the defendants submit that all of the diagnostic tests performed on Julien to date have either shown normal results or have failed to show any disc involvement and that none of the tests have revealed the source of Julien’s continued complaints. The WCJ concluded that Julien had met his burden of proving his continued entitlement to benefits under the State Act. It is well established that “where there are two permissible views of the evidence, a fact-finder’s choice between |nthem can never be manifestly erroneous or clearly wrong.” Foster, 811 So.2d at 1162. After having considered the record in its entirety, including all of the medical records the parties submitted, we are unable to say that the WCJ erred in awarding Julien compensation and medical benefits. Therefore, the defendants’ second assignment of error is without merit.

ANSWER TO APPEAL

Julien filed an answer to appeal seeking additional attorney fees and costs for having to defend the appeal. The defendants filed a motion to dismiss Julien’s answer to appeal, claiming that the answer was untimely because it had not been filed “not later than fifteen days after the return day or the lodging of the record whichever is later.” In this case, the latter of those two dates was the notice of lodging, which was mailed to the parties on April 30, 2010. Because Julien’s answer was not postmarked until June 14, 2010, it will be dismissed as having been untimely filed.

DECREE

For the foregoing reasons, we affirm the October 30, 2009 judgment of the workers’ compensation judge in favor of Harold Ju-lien and against Dynamic Industries, Inc. and Louisiana Workers’ Compensation Corporation. We dismiss the answer to appeal Harold Julien filed as having been untimely filed. All costs of this appeal are assessed against the defendants.

JUDGMENT AFFIRMED. ANSWER TO APPEAL DISMISSED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . According to the defendants' appellate brief, the riggers "were charged with the task of fixing the platform and its appurtenant equipment to the barges.”

      . The record on appeal does not contain a transcript from the October 24, 2008 hearing, and we are unaware that any such transcript exists.

      . The defendants also claimed that the WCJ erred in awarding Julien penalties and attorney fees; however, they failed to brief this issue. Uniform Rules — Courts of Appeal, Rule 2-12.4 provides that [a]ll specifications or assignments of error must be briefed” and that the "court may consider as abandoned any specification or assignment of error which has not been briefed.” We find that the defendants’ failure to advance any argument regarding the propriety of the WCJ’s award of penalties and attorney fees to Julien constitutes an abandonment of the issue. See Charles v. Landry, 09-1161 (La.App. 3 Cir. 3/10/10), 32 So.3d 1164.

      . See Vega v. Mobil Mining and Minerals, 33 BRBS 319(ALJ)(1999); Washington v. McDermott, Inc., 32 BRBS 418(ALJ)(1998); and Ho-vell v. Waterman Steamship Corp., 30 BRBS 255(ALJ)(1996).

      . The defendants, citing The Daniel Ball, 10 Wall. 557, 77 U.S. 557, 19 L.Ed. 999 (1870), also contended at oral argument that a waterway navigable in fact constitutes a waterway navigable in law. Despite defendants’ contention to the contrary, a cursory review of this state’s jurisprudence shows that the navigability of a waterway is never presumed. See Buckskin Hunting Club v. Bayard, 03-1428, p. 9 (La.App. 3 Cir. 3/3/04), 868 So.2d 266, 272 (in the context of a property lessee's action seeking to enjoin hunters from entering property, this court stated that “navigability is not presumed” but, rather, "is a burden to be carried by the party asserting navigability”); Shell Oil Co. v. Pitman, 476 So.2d 1031 (La.App. 3 Cir.1985) (in the context of an oil companies' concursus petition to obtain resolution of an ownership dispute over royalties, this court noted that the party asserting the navigability of a waterway must prove it because it cannot be presumed); Guillory v. Bertrand, 375 So.2d 144 (La.App. 3 Cir.), writ denied, 378 So.2d 434 (La.1979) (in the context of a suit arising from a collision between two boats on Bayou Lacassine, this court determined that because there was no evidence offered to prove that the Bayou was a navigable stream, it would apply Louisiana’s general tort law, rather than maritime law, because navigability is not presumed).

      . See Plaintiff's Exhibit 4.

      . See Plaintiff’s Exhibit 8.

      . See Plaintiff’s Exhibit 19.

      . See La.Code Civ.P. art. 2133.


source: Caselaw Access Project

license: Public Domain

text:
    Barbara CARRADINE v. REGIS CORPORATION.
    No. 10-529.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      Marcus P. Lacombe, Todd A. Townsley, Townsley Law Firm, Lake Charles, LA, for Plaintiff/Appellee, Barbara Carradine.
    Kevin A. Marks, Jennifer L. Cooper, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellant, Regis Corporation.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and DAVID E. CHATELAIN, Judges.
   CHATELAIN, Judge.

| ,The defendant, Regis Corporation (Re-gis), appeals the judgment of the workers’ compensation judge (WCJ) in favor of the claimant, Barbara Carradine, finding that she suffered a compensable injury and awarding her indemnity benefits, medical expenses, penalties, and attorney’s fees. We amend in part and affirm as amended.

FACTS AND PROCEDURAL HISTORY

On March 13, 2008, Regis employed Carradine as a hairdresser at Smart Style, which is located in a Lake Charles, Louisiana Wal-Mart. Carradine was permitted to take a break, which she used to smoke a cigarette while sitting on one of the benches outside of the building. While standing up from the bench, Carradine’s pant leg became caught on a chain-link fence, causing her to trip and fall, face first, to the ground. The fall resulted in immediately perceivable cuts and bruises to her chin, hands, and knees.

After the accident, Carradine reported her injuries to both Wal-Mart and her direct supervisor, Beth Farque. Carra-dine was given the rest of the day off to seek medical attention, and she did so by visiting her general physician, Dr. David Hardey. Dr. Hardey diagnosed a myofa-cial strain of the neck, as well as contusions of the chin, wrists, and knees. Car-radine was able to return to work the next day, and she continued to work in the same capacity at Smart Style until February of 2009.

Carradine’s neck pain increased progressively from the time of her accident, and she began suffering from headaches and numbness in a left-hand finger. While continuing to work, she began visiting an orthopedic specialist, Dr. Clark Gunder-son, on September 24, 2008. Dr. Gunder-son initially diagnosed her with a “cervical | ¡¡straining type injury superimposed on cervical disc disease,” following a physical examination and an X-ray. An MRI performed at the time of her first visit with Dr. Gunderson revealed that her specific neck injuries constituted cervical spondylo-sis and facet arthropathy of the C4-5, C5-6, and C6-7 vertebrae. Dr. Gunderson’s initial course of treatment included sending Carradine to physical therapy and prescribing a muscle relaxant and an anti-inflammatory agent.

In September of 2008, Carradine also visited Dr. Don Bravin, an eye doctor, because she had been having headaches and seeing “flashes” and “floaters” since her fall. After performing routine diagnostic examinations, Dr. Bravin did not reach a definite conclusion regarding the relationship between Carradine’s headaches and vision problems. He also did not provide or recommend any treatment.

At first, Carradine’s pain lessened with the physical therapy, but her pain began to increase again at the beginning of 2009. Dr. Gunderson then prescribed a course of two steroid injections to the cervical spine, which provided only temporary relief. By February 13, 2009, Carradine’s pain had reached the point that she felt unable to continue working, and she obtained a work release from Dr. Gunderson. She stopped working on March 6, 2009. By the time of trial, Dr. Gunderson had concluded that surgery was necessary and recommended that she undergo an anterior cervical fusion.

Carradine did not make any claim or demand for workers’ compensation benefits from Regis until March 9, 2009, when she filed a disputed claim for compensation with the Office of Workers’ Compensation. Regis filed an answer on March 27, 2009, denying that Carradine had suffered a compensable injury. At Regis’ request, Carradine submitted to an independent medical examination (IME) from Dr. Michael Holland, an orthopedic surgeon Re-gis selected. Dr. Holland [¡diagnosed Car-radine with pre-existing disc disease that was exacerbated by her fall. He opined that on June 24, 2009, the date of his examination, Carradine was capable of returning to work, but he deferred to Dr. Gunderson regarding Carradine’s work status prior to his examination. Last, he opined that Carradine had reached Maximum Medical Improvement (MMI), but he also stated that she could become a candidate for surgery if her pain progressed.

After a trial on the merits, the WCJ found that Carradine’s fall and subsequent injuries both occurred during the course of her employment with Regis and arose out of that employment. The WCJ stated in oral reasons that she gave great weight to the opinions of Dr. Gunderson and that the evidence presented did not discredit or otherwise contradict Carradine’s version of the events. The WCJ held that Carradine was entitled to indemnity benefits for the entire time that she has not been working and that she was entitled to medical expense benefits in accordance with the reimbursement fee schedule for all of the medical diagnoses and treatments listed in her post-trial brief. Finally, the WCJ awarded penalties for Regis’ failure to timely pay both the indemnity and medical expense benefits, as well as attorney’s fees.

On appeal, Regis assigns error to the WCJ’s judgment on five separate issues. Regis contends that the WCJ erred by: (1) finding that Carradine’s accident both arose out of and occurred during the course of her employment with Regis; (2) awarding indemnity benefits to Carradine; (3) awarding medical expense benefits as causally related to Carradine’s fall; (4) failing to cap any awarded medical expenses at $750 per healthcare provider; and (5) awarding penalties and attorney’s fees. Carradine has answered, asserting that the award of medical expenses and penalties Rshould have been higher and requesting a further increase in attorney’s fees for the cost of representation in this appeal.

DISCUSSION

Standard of Review

In workers’ compensation cases, the factual findings of the trial court are subject to the manifest error standard of review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the standard, the appellate court must not determine whether the trier of fact’s conclusion was right or wrong, but that it was reasonable. Freeman, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous. Stobart, 617 So.2d at 882. Therefore, “if the [fact finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Landry v. Furniture Ctr., 05-643, pp. 5-6 (La.App. 3 Cir. 1/11/06), 920 So.2d 304, 309%, writ denied, 06-358 (La.4/28/06), 927 So.2d 290.

Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105[, writ denied, 03-2581 (La.11/26/03), 860 So.2d 1139].

Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.

Arising Out of Employment and Course of Employment

Regis contends that Carradine is not entitled to workers’ compensation benefits. It argues that her injury neither arose out of her employment with Regis nor occurred in the course of that employment.

|sLouisiana Revised Statutes 23:1031 provides that an employee is not eligible for workers’ compensation unless she has “receive[d] personal injury by accident arising out of and in the course of [her] employment.” The two requirements of arising out of employment and course of employment are separate but mutually interdependent concepts used to determine whether the injury is sufficiently related to the employment to warrant coverage under the system of workers’ compensation. See Mundy v. Dep’t of Health & Human Res., 593 So.2d 346 (La.1992). As such, a strong showing of one of these factors may counterbalance a relatively weak showing of the other. Id.

Generally, the arising out of employment requirement “focuses on the character or source of the risk” that caused the claimant’s injury. Mundy, 593 So.2d at 349. Its purpose is to distinguish between employment risks and personal risks, as the statutory scheme does not ordinarily hold the employer responsible for purely personal risks. Id. For this purpose, courts often consider whether the risk that led to the injury was greater for an employee than for someone who does not work for the employer. Id.

However, the Louisiana Supreme Court has also identified a third category of risks, the nature of which is neither particularly personal nor particularly employment-related. Id. Furthermore, it has recognized that these neutral risks make the arising out of employment determination problematic. In these cases, the interrelated nature of the two requirements allows us to defer to the course of employment requirement and simply consider whether “the conditions or obligations of the employment caused the employee in the course of employment to be at the place of the accident at the time the accident occurred.” Id. at 349.

| fiThe course of employment requirement focuses on the employee, primarily her “time, place, and employment activity.” Id. An employee does not always have to be actively engaged in the performance of employment duties to be in the course of her employment. Id. “[A]n employee is protected during work hours, despite minor deviations from instructions or place of work, if what he does could reasonably be contemplated as humanly incidental to his service as an employee and does not unreasonably increase the risk of injury.” Robinson v. F. Strauss & Son, Inc., 481 So.2d 592, 593 (La.1986).

In fact, the jurisprudence of this state has long recognized that an employee typically remains in the course of her employment while she is on a permitted break.

[A]n employee cannot, during every moment of the working day, remain at his bench or at his desk and that he must, every now and then, leave his work to get a drink, to attend to the requirements of nature or for some other similar purpose.... Many acts of a personal nature are clearly incidents of the employment, even though occurring during leisure time. Thus, getting fresh air, smoking, resting, eating food or ice cream, quenching thirst, whether by water, beer or wine, transportation to and from work, taking a bath provided by the employer, using a telephone or a toilet, or using a stairway or elevator, floors and hallways, washing and pressing working clothes, obtaining war bonds, or getting eyeglasses, have been held compensable incidents ... of one’s employment.

St. Alexandre v. Texas Co., 28 So.2d 385, 388 (La.App.Orl.1946) (emphasis added) (employees installed soft drink vending machine on premises and wei'e permitted to use it; claimant found covered under workers’ compensation law when injured by exploding bottle).

In summary, it is well established that “[ajccidents that occur on the premises during permitted rest periods are treated similarly to accidents on the premises during meal hours, and they are generally regarded as occurring in the course of the 17employment.” H. Alston Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation § 163 (2009-10). See also Dufrene v. Ins. Co. of State of Pa., 01-47 (La.App. 5 Cir. 5/30/01), 790 So.2d 660, writs denied, 01-2261 (La.11/16/01), 802 So.2d 611; 01-2308 (La.11/16/01), 802 So.2d 613 (employee who was injured when she tripped and fell on handicap ramp as she exited building on her morning break was injured in course and scope of her employment and on employer’s premises during work hours, such that employer was entitled to tort immunity under workers’ compensation law with respect to personal injury claim brought by employee); Margin v. Barthelemy, 93-2224 (La.App. 4 Cir. 5/17/94), 638 So.2d 291, writ denied, 94-2172 (La.11/18/94), 646 So.2d 378 (employee basketball game on work premises during claimant’s lunch period was a period of reasonable recreation and relaxation such that the injury sustained during such period was compensable under the workers’ compensation act).

In the present case, Regis allowed Car-radine to take a break, which she used to drink a soda and smoke a cigarette. Though Carradine did leave the building in which Smart Style was located, she did not leave the premises when she chose to sit on a bench located directly outside of that building. The conditions of her employment, namely its location inside the Wal-Mart, caused Carradine to take her break outside Wal-Mart where her accident occurred. Thus, even if the risk of tripping because of a defect in a fence is a purely neutral risk, Carradine’s accident nonetheless arose out of her employment.

Moreover, this court has previously found that “a defect in the premises at the place of employment is ‘peculiar and distinctive’ to that location.” Fransisco v. Harris Mgmt. Co., 94-136, p. 5 (La.App. 3 Cir. 10/5/94), 643 So.2d 386, 388 (quoting Bosse v. Westinghouse Elec., Inc., 93-1898 (La.App. 4 Cir. 5/17/94), 637 So.2d 1157, writ denied, 94-1623 (La.9/30/94), 642 So.2d 878). In Francisco, this Court held that the injury to an employee who fell in the employer’s parking lot on her way in to work arose from her employment because her increased exposure to the defect on the premises made the risk of this accident greater for her than for the general public. Id. See also Mitchell v. Brookshire Grocery Co., 26,755 (La.App. 2 Cir. 4/5/95), 653 So.2d 202, writ denied, 95-1115 (La.6/16/95), 655 So.2d 339; Bosse, 637 So.2d 1157. Thus, Carradine’s accident also arose out of her employment because her position as a stylist at Smart Style required her to be on the Wal-Mart premises far more often than the general public and thereby increased her risk of suffering injury from a defect thereon.

After considering this state’s well established jurisprudence on this issue and the facts of the present case, we find that the WCJ correctly found that Carradine’s injury arose out of and occurred in the course of her employment with Regis. Therefore, we find no merit in Regis’ first assignment of error.

Indemnity Benefits

Regis next contends that the following evidence shows that the WCJ manifestly erred when she awarded indemnity benefits. First, it points to a note in the medical records of Dr. Gunderson which indicates that Carradine’s first “no-work slip” was approved because Carradine called the office and told a nurse that she had decided to go off work after speaking with an attorney. Next, it relies upon a record from Carradine’s physical therapist’s office relating to a therapy session ten days after Dr. Gunderson first took her off work. In particular, it points outs that Carradine reported non-disabling pain which only moderately interfered with her normal |9activities. Finally, Regis contends that Carradine was able to work for eleven months after her fall without changing her duties at all. Regis argues that, together, these facts discredit both Carradine’s testimony and Dr. Gunderson’s opinion and ultimately prove that Carradine’s injuries were not disabling.

A finding of disability requires proof by clear and convincing evidence. La.R.S. 23:1221(l)(c); Spell v. Conn Appliances, Inc., 97-309 (La.App. 3 Cir. 10/8/97), 702 So.2d 797. The claimant must support her claim of disability with objective medical evidence. Spell, 702 So.2d 797. However, the issue of disability is a factual determination, and the fact finder’s decision may not be overturned unless it is manifestly erroneous or clearly wrong. Id.

Here, the WCJ did not commit manifest error in finding that Carradine was unable to work because of her neck injuries. Dr. Gunderson’s records, along with his “no-work slips,” constitute objective medical evidence of Carradine’s inability to work. Furthermore, Carradine testified that she did not discuss her inability to work with her attorney as described in Dr. Gunder-son’s records. The WCJ was not clearly wrong in deciding to give great weight to the opinions of Dr. Gunderson, Carradine’s treating physician, or in choosing to find Carradine’s testimony credible.

Last, it is well settled that workers’ compensation law should not be applied to punish an employee for working through pain. Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1859 (La.4/10/95), 652 So.2d 1323; White v. Phoenix Pharmacy, 03-1624 (La.App. 3 Cir. 4/7/04), 870 So.2d 592, writ denied, 04-1150 (La.7/2/04), 877 So.2d 147. There is testimony from Car-radine and her supervisor that Carradine was in pain during the time she worked after the fall. Proof that Carradine worked in pain for eleven months before being taken off work, even when | ^considered with the other evidence listed above, does not support a finding of manifest error on the issue of disability. Therefore, this assignment of error is without merit.

Medical Expenses

Regis contests the award of medical expenses primarily asserting that the results of Dr. Holland’s IME and the evidence of Carradine’s previous neck injuries prove that her neck pain results purely from a pre-existing condition. Specifically, Dr. Holland opined that all of Carradine’s neck problems could be the product of a purely degenerative condition and that carpal tunnel syndrome could have caused the tingling and numbness in her hands and arms. Regis also submitted medical records which revealed that Dr. Gunder-son had previously diagnosed Carradine with the same kind of injury after a car accident in 1996.

This contradictory evidence is not sufficient to overturn the WCJ’s factual determination that Carradine’s disabling pain and other symptoms relate to injuries that her fall either created or exacerbated. Just as a workers’ compensation claimant cannot carry her burden of proof when it is grounded in possibility, speculation, or conjecture, Terral v. Justiss Oil Co., Inc., 07-1014 (La.App. 3 Cir. 3/5/08), 979 So.2d 589, Regis cannot rely solely on possible alternate explanations, even when postulated by expert medical testimony, in support of its contention that the WCJ was manifestly erroneous in this regard. The evidence regarding Carradine’s treating physician’s previous diagnosis of the same injury would be more significant if there was not further evidence that all of Carra-dine’s symptoms from the 1996 accident subsided after treatment. In fact, Regis presented no evidence to show that Carra-dine’s injuries and symptoms could not have been caused by her fall.

| n Furthermore, Dr. Gunderson’s expert medical opinion as well as the claimant’s testimony reasonably support the WCJ’s finding. Therefore, this assignment of error is without merit.

In related issues, Carradine argues in brief that the WCJ erred when she limited the unpaid medical expenses to the statutory reimbursement schedule instead of the amounts to which the parties stipulated and that the WCJ should have awarded medical expenses based on the evidence submitted at trial rather than the expenses listed in her post-trial memorandum. Albeit Carradine made these two arguments at trial, the WCJ ruled contrary to Carradine on both issues.

An appellee who “desires to have the judgment modified, revised, or reversed in part ... must file an answer to the appeal, stating the relief demanded.” La.Code Civ.Proc. art. 2133. In the present case, Carradine answered the appeal but only specified two issues: the quantum of the WCJ’s award of penalties and a request for additional attorney’s fees for responding to the appeal. The jurisprudence has interpreted Article 2133 to mean that an answer to an appeal only operates as an appeal from those aspects of the judgment about which the answer complains. Lolan v. La. Indus., 95-602 (La.App. 3 Cir. 11/2/95), 664 So.2d 616; Liedtke v. Allstate Ins. Co., 405 So.2d 859 (La.App. 3 Cir.), writ denied, 407 So.2d 748 (La.1981). In the present case, Carradine makes no mention in her answer of her contentions regarding the reimbursement schedule or the WCJ’s adoption of the expenses as enumerated in the post-trial memorandum. Accordingly, we find that the issues of the applicability of the fee schedule to the unpaid medical expenses and the WCJ’s reliance on Carradine’s post-trial memorandum as the basis for Regis’ compensa-ble medical obligations are not properly before us.

112Necessity of Prior Consent

Regis alternatively asserts that the award for medical expenses must be capped at $750 per healthcare provider because Carradine did not obtain prior approval for these expenses from either Regis or its workers’ compensation insurer. To the contrary, Carradine argues, quoting La.R.S. 23:1142(E), that the cap is inapplicable when “the payor has denied that the employee’s injury is compensa-ble.”

Louisiana Revised Statutes 23:1142(B)(1) provides that:

Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in nonemergency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. Except as provided herein, that portion of the fees for non-emergency services of each health care provider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee or the employer or the employer’s workers’ compensation insurer unless the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider.

However, Subsection E of the statute creates an important exception: “[i]n the event that the payor has denied that the employee’s injury is compensable under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury.” La.R.S. 23:1142(E).

The facts relevant to this issue are uncontested. Carradine did not claim workers’ compensation from Regis until she had been receiving treatment for approximately eleven months, and Regis has not approved any medical expenses to date. However, once the claim for workers’ compensation was filed, Regis filed an Wanswer which included a denial that Car-radine suffered a compensable injury. To determine whether Carradine’s medical expenses are subject to the statutory cap, this court must resolve a question which it has not previously considered: does the exception in Subsection E apply retroactively to prevent capping of unauthorized medical expenses that were incurred before the employer denied the injury was compensable?

As this is a question of statutory interpretation, we must begin with the rules of interpretation the legislature enacted. “When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.” La.R.S. 1:4. The language of Subsection B is clear that the required mutual consent must occur before the expenses are incurred. Subsection E, however, is less clear. The statute only provides that once an employer has made this denial, “no approval from the payor is required prior to the provision of any diagnostic testing or treatment.” La.R.S. 23:1142(E). It does not state that only future testing and treatment become exempt from the requirement of Subsection B. Thus, we cannot determine from the statute’s plain language whether an employer’s denial regarding the compensability of an injury eliminates the cap for unauthorized medical expenses incurred prior to the denial.

“When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.” La.Civ.Code art. 10. The purpose of a law is equivalent to legislative intent. Tensas Poppadoc, Inc. v. Chevron USA, Inc., 08-1266 (La.App. 3 Cir. 5/6/09), 10 So.3d 1259, writ denied, 09-1265 (La.9/18/09), 17 So.3d 976. The wording of Section 1142 suggests that the legislature did not contemplate situations in which-the employee does not attempt to claim workers’ compensation benefits until long after she has begun treatment for the injury. The statute’s provisions apply clearly and easily to scenarios in which the employee is injured and then claims compensation from her employer before beginning any significant medical treatment. In fact, these same provisions are clear and unambiguous when applied to such facts.

Applying Section 1142 to these more typical situations makes the legislature’s intent clear. After suffering a work-related injury, the employee typically notifies her employer and begins the process of claiming benefits. If the employer accepts that the injury is compensable, it becomes responsible under La.R.S. 23:1142(B) for payment of all reasonable and necessary medical expenses related to the injury. Similarly, La.R.S. 23:1142(E) functions to remove the employer from this decision-making process when it has denied any responsibility for paying workers’ compensation benefits related to the injury at hand. Thus, at least one purpose of Section 1142 is ensuring that the party responsible for paying medical expenses has a say in decisions about what expenses are necessary.

These considerations suggest that a denial of compensability should completely negate Subsection B with regard to all medical expenses. In this case, if Carra-dine had requested benefits from Regis soon after her fall, Regis, presumably, would have denied compensability and thus lost its right to consent to the same expenses now at issue. It does not further the purpose of La.R.S. 28:1142 to punish employees for failing to request authorization from employers who do not accept their liability for 115benefits under the law of workers’ compensation. Thus, an employer who disputes the compensability of its employee’s injury should not be allowed to complain that it was not given the opportunity to authorize previously incurred medical expenses.

Our interpretation of La.R.S. 23:1142(E) is also supported by a majority of the jurisprudence. In White v. Fresenius Medical Care, 01-1023, p. 12 (La.App. 3 Cir. 12/12/01), 801 So.2d 1239, 1247, writ denied, 02-138 (La.3/28/02), 811 So.2d 945, this court stated that a workers’ compensation claim “has not proceeded in standard fashion as may have been anticipated by much of the workers’ compensation statutory scheme” because the claimant’s injuries did not manifest directly after the accident, she did not immediately associate her medical problems with her accident at work, and her medical insurance initially paid her medical expenses. We also noted that La.R.S. 23:1142 “assumed” that an employer would normally have notice of the employee’s claim for benefits and be “in a position to deny/approve the claimed expenses.” Id. While the issue of the statutory cap was not resolved because it had not been raised at trial, the court’s reasoning supports our finding that the statute did not anticipate situations in which the employee does not begin to claim benefits from the employer soon after suffering the injury and beginning to incur medical expenses.

In Martin v. Elmwood Medical Center, 95-415 (La.App. 5 Cir. 11/15/95), 665 So.2d 470, the fifth circuit affirmed a judgment awarding medical expenses incurred without prior consent from the employer because the defendant later denied compens-ability at trial. The court did not offer any supporting reasoning but simply found that the exception in La.R.S. 23:1142(E) applied. Finally, in Stewart v. Livingston Parish School Bd., 07-1881 (La.App. 1 Cir. 5/2/08), 991 So.2d 469, the first circuit held that the exception in La.R.S. 23:1142(E) applied to expenses | ^incurred before the employer expressly denied the claim. While the court first noted that it considered the employer’s previous refusal to approve or deny the claim as a denial, it also relied on the fact that the claimant did not immediately realize that he could make a workers’ compensation claim for his injury, stating that “[tjhis is not the typical fashion that workers’ compensation claims are made.” Id. at 475.

Only one case in Louisiana has adopted a contrary interpretation of La.R.S. 23:1142(E). In Schindler v. Orleans Regional Security, 03-522 (La.App. 4 Cir. 12/3/03), 862 So.2d 1032, the president and sole officer of the defendant company was injured in a work-related car accident but did not claim workers’ compensation benefits until approximately three years after the accident, even though he had been receiving treatment for his injuries throughout this time. The insurer did not have the opportunity to approve any of these expenses, and, upon receiving the disputed claim, it filed an answer denying that the claimant had suffered a compensa-ble injury.

The fourth circuit, in Schindler, reversed the WCJ’s finding that the insurer’s denial of compensability exempted all of the claimant’s medical expenses from the statutory cap. Instead, it held that La.R.S. 23:1142(E) only applies prospectively from the time of the denial by the employer or insurer. The court disagreed with the workers’ compensation judge’s reasoning that the insurer would have simply denied compensability if it had been notified of the claim soon after the accident. In support of this position, it cited its previous decision in Daniels v. Keller Supply, Inc., 02-2767 (La.App. 4 Cir. 8/6/03), 854 So.2d 416.

We observe that Daniels does not conflict with our interpretation of La.R.S. 23:1142. In Daniels, the claimant’s employer initially provided him with treatment, but he eventually decided to seek additional treatment from his own choice of doctor ||7without requesting prior approval from his employer. The court found that the employer’s subsequent denial of compensability in its pleadings did not prevent the statutory cap from applying to the unapproved expenses that were previously incurred.

Unlike the facts before us today, the unapproved expenses at issue in Daniels were incurred once the employer had already been furnishing some medical treatment. This difference is important because an employer who is already providing some benefit has tacitly recognized that the injury is compensable. Hence, the purpose of the statute suggests that employers in such situations have the right to approve medical expenses until they expressly or tacitly deny responsibility for paying workers’ compensation benefits. In contrast, the Schindler court extended the reasoning in Daniels to find that a subsequent denial of compensability does not remove the statutory cap from unauthorized medical expenses incurred before the claimant has even decided to pursue any workers’ compensation benefits.

The Schindler court also reasoned that “[t]o cast the [defendant] in judgment for the full amount of those medical expenses when it was never notified of the claim is unjust.” Schindler, 862 So.2d at 1041. We disagree. Our decision to apply the exception in La.R.S. 23:1142(E) to unauthorized medical expenses incurred before the employee decides to claim workers’ compensation benefits ensures that claimants in this situation are not unnecessarily deprived of reimbursements for medical services which the employer is typically required to furnish. Next, no employer who accepts that the employee has suffered a compensable injury is deprived of the opportunity to participate in the decision about what medical services will be furnished. Finally, no employer is automatically deprived of the opportunity to take 1 ^advantage of the statutory cap created in La.R.S. 23:1142(B); employers in this situation are simply required to choose between disputing compensability and limiting their liability under the statutory cap.

Because Regis continues to deny that Carradine suffered a compensable injury, the exception in La.R.S. 23:1142(E) applies, and none of Carradine’s medical expenses can be capped because of her failure to obtain the prior consent of Regis or its workers’ compensation insurer. The judgment below is not in error.

Penalties and Attorney’s Fees

Finally, both parties challenge the award of penalties and attorney’s fees. Regis contends that no penalties or attorney’s fees should have been awarded, and Carradine argues in her answer that the amount awarded should have been higher.

The statute governing payment of benefits, La.R.S. 23:1201, also provides for penalties and attorney’s fees under certain circumstances. The applicable provisions regarding payment of benefits state:

B. The first installment of compensation payable for temporary total disability, permanent total disability, or death shall become due on the fourteenth day after the employer or insurer has knowledge of the injury or death, on which date all such compensation then due shall be paid.
E. Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.

La.R.S. 23:1201(B) and (E).

Furthermore, La.R.S. 23:1201(F) provides:

F. Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or |13fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars....
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

The WCJ awarded penalties of $2,000 each for Regis’ failure to timely pay indemnity benefits and medical expenses. The facts clearly establish that Regis did not pay either of these claims within the time limits required by La.R.S. 23:1201(A) and (E). Thus, Carradine is entitled to each of the penalties unless they were reasonably controverted. A claim for benefits has been reasonably controverted when the employer “engaged in a nonfrivo-lous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890. The decision to impose penalties and attorney fees is essentially a factual issue subject to the manifest error or clearly wrong standard of review. Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181.

Regis’ argument that Carradine’s break-time injury did not arise out of or occur in the scope of her employment is an argument long rejected. See Dufrene, 790 So.2d 660; Margin, 638 So.2d 291; and St. Alexandre, 28 So.2d 385. As previously discussed, Louisiana jurisprudence has clearly established both that permitted breaks | ¡¡nfal! within the course of employment and that defects on the employment premises meet the “increased risk” test. In short, Regis had no reasonable basis to deny that the injury was compensable.

Regis’ contention regarding the statutory cap under La.R.S. 23:1142 is a nonfrivo-lous legal dispute, as it is jurisprudentially supported. However, this argument does not justify Regis’ failure to reimburse Car-radine for the emergency treatment she received from Dr. Haley or the first $750 of nonemergency services each healthcare provider provided. There was no reasonable basis for refusing to pay for Carra-dine’s emergency treatment and initial diagnostic testing. Thus, the WCJ did not err when she awarded the maximum penalty of $2,000 for Regis’ failure to pay at least this portion of her medical expenses.

Similarly, Regis could not reasonably controvert Carradine’s claim for indemnity benefits because it did not possess enough factual and medical evidence to form a reasonable belief that Carradine’s injury was not actually disabling. During the fourteen-day period after March 9, 2009, when Carradine made her injury known to Regis, the information available to Regis did not support the theories it later developed for use at trial. She had not yet undergone the IME, so Regis did not yet have any contradictory medical evidence. Its only real bases for denying payment were Carradine’s eleven months working in pain after her fall before quitting and the fact that she was already engaged in a third-party lawsuit regarding the same accident. These facts are simply insufficient to reasonably controvert a claim supported by an expert medical opinion. Regis violated La.R.S. 23:1201(A) by failing to timely pay [21 indemnity benefits, and the WCJ did not err when she awarded a $2,000 penalty for this violation. Additionally, the facts and reasoning supporting both penalty awards also justify the award of attorney’s fees under La.R.S. 23:1203(F).

Carradine does not offer reasons or argument in support of her assertion that the amount of penalties the WCJ awarded should have been higher. We further note that the WCJ awarded the maximum amount of penalties for each violation that it found, and no other violations of a penalty provision have been alleged. Therefore, no additional penalties could have been awarded.

Finally, Carradine answered Regis’ appeal seeking higher attorney’s fees in the trial court as well as additional attorney’s fees corresponding to the work done on appeal. She failed to brief the issue of the WCJ’s assessment of attorney’s fees; thus, we find that claim abandoned. See Uniform Rules — Courts of Appeal, Rule 2-12.4. We are left only with Carradine’s request for additional attorney’s fees for defending the WCJ judgment. Although we have not accepted Carradine’s arguments in toto, she has nonetheless successfully defended the WCJ’s judgment in her favor. Therefore, we award Carradine additional attorney’s fees in the sum of $2,500 for work at the appellate level.

DECREE

For the reasons assigned, the judgment of the Workers’ Compensation Judge is affirmed. The judgment is amended, however, to award Carradine additional attorney’s fees in the sum of $2,500.

AMENDED AND AFFIRMED AS AMENDED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . Our review of die record shows that contrary to Carradine’s contention, Regis raised this issue in pre-trial and post-trial memoran-da. Furthermore, Regis elicited trial testimony on the issue of whether Carradine sought pre-approval for medical expenses incurred prior to filing her workers’ compensation claim. It is clear that the statutory cap is not an affirmative defense which must be pled in the answer, and the issue is purely a legal one. Accordingly, we find this issue is properly before us.

        . Regis suggests that Jefferson v. Greer Timber Co., 618 So.2d 21 (La.App. 3 Cir.1993), is relevant; however, in Jefferson, we merely found that La.R.S. 23:1142(E) applied when the defendant filed a general denial before the claimant had incurred more than $750 in medical expenses. We did not consider how Subsection E applied to medical expenses incurred before the employer made a denial.

      . Carradine first gave Regis written notice of her medical expenses on March 9, 2009, and Regis' sixty-day payment period elapsed on May 8, 2009. Far more than forty days elapsed between May 8, 2009 and the date of the judgment, so the $2,000 maximum is necessitated under the fifty dollars per day penalty calculation.


author: MICHAEL E. KIRBY, Judge. BELSOME, J.,

text:
    Colleen Comer MARCHAND; Bonnie A. Marchand; Patricia Marchand Picou; Dudley L. Marchand, III; Wayne M. Marchand; Rebecca Marchand Kennedy; Charmaine Marchand Bizette; Brett L. Marchand v. ASBESTOS DEFENDANTS; Anco Insulations, Inc., Bayer Cropscience, Inc. (as Successor of Liability to Rhone-Poulenc AG Company f/k/a Amchem Products, Inc. f/k/a Benjamin Foster Company); Ethyl Corporation (Successor to Albemarle Paper Manufacturing Company); et al. Elodie Granier Rome and Donald Francis Rome v. Asbestos Defendants; Northrop Grumman Shipbuilding, Inc. (Formerly Avondale Industries, Inc. and Formerly Avondale Shipyards, Inc.) and its Executive Officers, Albert Bossier, Jr. and J. Melton Garrett; American Motorists Insurance Company; et al. Wayne Joseph St. Pierre v. Northrop Grumman Shipbuilding, Inc., (Formerly Northrop Grumman Ship Systems, Inc., Formerly, Avondale Industries, Inc., and Formerly Avondale Shipyards, Inc.) and its Executive Officers, et al.
    Nos. 2010-CA-0476, 2010-CA-0543, 2010-CA-0766.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 2010.

      Gerolyn P. Roussel, Perry J. Roussel, Jr., Jonathan B. Clement, Lauren R. Clement, Roussel & Clement, Laplace, LA, For Plaintiffs/Appellants.
    Charles V. Giordano, Anthony J. Milaz-zo, Jr., Hebbler & Giordano, L.L.C., Me-tairie, LA, for Defendant-Appellee (Rapid-American Corporation).
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

Lin this consolidated appeal, plaintiffs in three cases appeal the granting of exceptions of lack of personal jurisdiction filed by defendant, Rapid-American Corporation. The rulings at issue were rendered by three trial court judges. This Court granted the unopposed motion of Rapid-American Corporation to consolidate these cases for purposes of this appeal as all three cases involve the same issue.

Plaintiffs filed suit against numerous defendants, including Rapid-American, alleging injuries caused by exposure to asbestos-containing products. In their petitions, plaintiffs alleged that Rapid-American is the successor by merger to the Philip Carey Manufacturing Company, which manufactured and sold some of the asbestos-containing products leading to the damages upon which these lawsuits are based. Plaintiffs named Rapid-American as a defendant pursuant to the Louisiana Long-Arm Statute, La. R.S. 13:3201, et seq., which allows a Louisiana court to exercise personal jurisdiction over a nonresident defendant for “[m]an-ufacturing of a product or component thereof which caused damage or injury in this state, if at Rthe time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer’s marketing practices.” La. R.S. 13:3201(A)(8).

Rapid-American filed declinatory exceptions of lack of personal jurisdiction in all three cases herein, relying on this Court’s previous decision in Boatwright v. Metropolitan Life Insurance Co., 95-1822 (La.App. 4 Cir. 9/28/95), 661 So.2d 169. In the Boatwright case, as in the instant cases, Rapid-American argued that it is a Delaware corporation that has never been engaged in any aspect of the asbestos business, and has never done business of any kind in Louisiana. Rapid-American further argued that its connection to the Philip Carey Manufacturing Company is so tenuous and remote that it cannot support personal jurisdiction over Rapid-American in Louisiana courts.

In the Boatwright case, this Court set forth the following corporate history of Rapid-American and Philip Carey Manufacturing Company as outlined by Rapid-American in its exception:

Old Carey [Philip Carey Manufacturing Company] was an Ohio corporation formed in 1888 that manufactured asbestos products. In 1966 Glen Alden Company, a Delaware Corporation that did not manufacture asbestos, formed P.C. Company, Inc. as a vehicle to carry on the business of Old Carey as soon as Glen Alden’s acquisition of Old Carey was completed. On June 1, 1967, Old Carey merged into Glen Alden, and Glen Alden assumed all of Old Carey’s liabilities through the merger. Glen Alden then immediately transferred Old Carey’s business to P.C. Company, a subsidiary which was later renamed Philip Carey Corporation (New|sCarey). New Carey then assumed Old Carey’s liabilities to which Glen Alden had become subject as a result of the merger and agreed to hold Glen Alden harmless and to indemnify it for such liabilities.
In April 1970, New Carey merged with Briggs Manufacturing Company; the successor corporation was named Panacon Corporation. Glen Alden owned the majority of Panacon’s publicly traded shares. In April 1972, Glen Alden sold its controlling interest in Pa-nacon to Celotex Corporation; Panacon was a subsidiary of Celotex until it was merged into Celotex in June of 1972. As part of the merger, Celotex acquired all of Panacon’s liabilities.
In October/November 1972, Rapid American Corporation of Ohio (Rapid Ohio) merged with Glen Alden. The successor corporation was named Rapid American Corporation, and it assumed all debts and liabilities of Glen Alden. In January 1981, Rapid American merged with Kenton Corporation and R-K Holding Corporation to become the present day relator [Rapid-American]. Like the other merger agreements, this one provided for the assumption of liability of the predecessor corporations.

Boatwright v. Metropolitan Life Ins. Co., 95-1822, pp. 2-3, 661 So.2d at 170.

The Boatwright court noted that in order to subject a nonresident defendant to personal jurisdiction, due process requires that the defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Boatwright v. Metropolitan Life Ins. Co., 95-1822, p. 4, 661 So.2d at 171, citing International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); de Reyes v. Marine Mgt. and Consulting, 586 So.2d 103 (La.1991). This Court further noted that the minimum contacts between the nonresident defendant and the state must be based on some act by the defendant through which he purposefully avails himself of the privilege of conducting activities within the state and thereby Linvokes the benefits and protections of the state’s law. Id., citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). This requirement ensures that the defendant will not be haled into a jurisdiction solely as a result of a random, fortuitous, or attenuated contact, by the unilateral activity of another party or a third person. Id., citing de Reyes, 586 So.2d at 106.

In ruling that Louisiana courts did not have personal jurisdiction over Rapid-American, the Boatwright court stated:

Relator could not have foreseen being sued in this state to answer for liabilities of a long nonexistent corporation, the business of which had been taken over by a subsidiary that relator never owned. Additionally, unlike the successor corporation in Cole, relator could not have sued in this state to collect money owed to Old Carey since Old Carey, as well its successor New Carey and Pana-con, were sold before Glen Alden merged with Rapid Ohio, relator’s predecessor corporation. More important, however, is the fact that relator has had no contacts in Louisiana from which it availed itself of the privilege of doing business in this state.
It would be unreasonable to conclude that relator could have expected to be haled into Louisiana’s courts because of the series of mergers and acquisitions outlined above. Although we do not intend to convey a hard and fast rule that a successor corporation can never be subject to Louisiana’s Long Arm Statute because of the contacts of its predecessor, under the facts of the instant case, to do so would violate any notion of fair play and substantial justice.

Boatwright v. Metropolitan Life Ins. Co., 95-1822, p. 8, 661 So.2d at 173.

In the instant cases, Rapid-American argued in its memoranda in support of the exceptions of lack of personal jurisdiction that there has been no material change in Rapid-American’s status since the Boat-wright case was heard, and Rapid-American still does not do business or have any business activities, operations or property in Louisiana. Noting that the Boatwright case is still good |sIaw, Rapid-American argued that its exceptions of lack of personal jurisdiction should be granted.

In opposing the exceptions, plaintiffs cited an unpublished writ denial from the Louisiana Fifth Circuit Court of Appeal, Abadie, et al. v. Metropolitan Life Ins. Co., 95-375 (La.App. 5 Cir. 5/4/95), which held that Rapid-American was properly subject to the personal jurisdiction of Louisiana courts. Plaintiffs also cited a joint motion to dismiss a writ application in the Louisiana Supreme Court in the Boat-wright case, which included the clause:

Defendant, Rapid has determined that, in the above-captioned cases, presently filed cases, and future cases, it will not oppose jurisdiction with respect to any plaintiff who (1) is a citizen of the State of Louisiana, or (2) who, prior to June 1, 1967, was exposed to asbestos-containing products of the Philip Carey Manufacturing Company within the State of Louisiana (the “Criteria”). Plaintiffs represent to Rapid that the instant cases meet the Criteria. In reliance of such representation, Rapid will not be filing opposition papers with this Court and shall file answers on behalf of Rapid.

Plaintiffs also argued that subjecting Rapid-American to the jurisdiction of Louisiana courts would not violate due process because Rapid-American’s corporate representative testified by deposition that Rapid-American’s business is to defend asbestos cases across the United States.

Following hearings in all three cases, the trial court judges granted Rapid-American’s exceptions of lack of personal jurisdiction. In the judgment appealed from in 2010-CA-0476, the trial judge granted the exception after stating in open court that Boatwright was still controlling law. In 2010-CA-0543, the trial judge granted the exception and issued •written reasons for judgment. Citing the Boat-wright case, the trial judge stated that while she recognized that there may be an imputation of personal jurisdiction by a successor corporation if there is a | (-.continuation of the business of the former corporate entity, those facts do not exist in this case. In 2010-CA-0766, the trial court granted the exception without reasons. In all three cases, arguments were made regarding the above-quoted clause in the joint motion to dismiss a writ application in the Louisiana Supreme Court in the Boatwright case.

Plaintiffs now appeal these three judgments, arguing that the trial courts erred in granting Rapid-American’s exceptions of lack of personal jurisdiction. An appellate court shall conduct a de novo review of the legal issue of personal jurisdiction over a nonresident by a Louisiana court. Anderson v. Interamerican Mfg., Inc., 96-1639, p. 3 (La.App. 4 Cir.4/9/97), 693 So.2d 210, 212.

Plaintiffs’ first argument is that the trial courts erred by not finding that the past minimum contacts of Philip Carey Manufacturing Company in Louisiana could be imputed to its successor, Rapid-American. This argument has already been resolved in Rapid-American’s favor in this Court in Boatwright v. Metropolitan Life Insurance Co., 95-1822 (La.App. 4 Cir. 9/28/95), 661 So.2d 169. The corporate history of Philip Carey Manufacturing Company and Rapid-American revealed that several months elapsed between Glen Alden’s sale of its asbestos assets to Celo-tex and Rapid-Ohio’s merger with Glen Alden to form the Rapid-American Corporation. The Boatwright court concluded that Rapid-American could not have reasonably foreseen being haled into a Louisiana court to answer for the liability of Philip Carey Manufacturing Company. Id. The Boatwright case has never been overruled, and we find no reason to do so now.

Plaintiffs cite the case of Abadie, et al. v. Metropolitan Life Ins. Co., 95-375 (La.App. 5 Cir. 5/4/95), which upheld a denial of an exception of lack of personal jurisdiction filed by Rapid-American. While we recognize that this decision is in |7conflict with the Boatwright decision, we are not bound by decisions of other circuits. The Boatwright case is the controlling law in this circuit, and we are bound to follow it in this case.

Plaintiffs next argue that the trial courts erred by not finding that Rapid-American has minimum contacts with Louisiana, thus subjecting it to personal jurisdiction. They argue that while the evidence presented in the Boatwright case was found to be insufficient to subject Rapid-American to the personal jurisdiction of Louisiana courts, the facts in the instant cases differ from the facts presented in Boatwright. Specifically, plaintiffs point to a deposition taken of Rapid-American’s corporate representative after the Boatwright case in which he stated that Rapid-American’s principal business is to defend asbestos cases across the United States. Plaintiffs also rely on a clause that counsel for Rapid-American agreed to include in a joint motion to dismiss an application for writs in the Louisiana Supreme Court in the Boatwright case.

The burden of proving minimum contacts lies with the party claiming jurisdiction to be proper. Boatwright v. Metropolitan Life Insurance Co., 95-1822, p. 4 (La.App. 4 Cir. 9/28/95), 661 So.2d 169, 171. The fact that Rapid-American has defended cases in the Louisiana courts, even in cases where it has not raised an exception of lack of personal jurisdiction, is not enough to establish the “minimum contacts” requirement for subjecting a party to personal jurisdiction in Louisiana. As stated above, the minimum contacts between the nonresident defendant and the state must be based on some act by the defendant through which he purposefully avails himself of the privilege of conducting activities within the state and thereby invokes the benefits and protections of the state’s law. Boatwright v. Metropolitan Life Ins. Co., 95-1822, p. 4, 661 So.2d at 171, citing International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); de Reyes v. Marine Mgt. and Consulting, 586 So.2d 103 (La.1991). (Emphasis ours.) Certainly, the decision of a nonresident company to defend itself upon being named as a defendant in a lawsuit filed in Louisiana is not an action that can be classified as the purposeful availment of the privilege of conducting business in Louisiana. This argument has no merit.

Furthermore, the inclusion of the above-quoted clause in the joint motion to dismiss a writ application in the Louisiana Supreme Court in the Boatwright case did not preclude Rapid-American from raising the exception of lack of personal jurisdiction in these cases. The language agreed to by counsel for Rapid-American in the joint motion to dismiss in another lawsuit does not constitute a judicial confession in the instant cases and, therefore, the principle of judicial estoppel does not apply. See Kaufmann v. Corporate Realty, Inc., 99-1104, p. 10 (La.App. 5 Cir. 4/12/00), 759 So.2d 969, 975. Allegations, admissions or confessions in pleadings in another suit are extrajudicial admissions and are admissible as evidence, but are not conclusive presumptions and do not operate as estop-pel unless the party invoking them has been prejudiced by relying upon them. La. C.C. article 1853; Lakeshore Property Owners Association, Inc. v. Delatte, 524 So.2d 126 (La.App. 4 Cir.1988).

As noted above, the issue of the clause in the Boatwright joint motion to dismiss was argued in all three of the instant cases at the hearings on the exceptions. By granting the exceptions, the trial court judges obviously concluded that Rapid-American was not bound by its language used in another proceeding. We agree. Furthermore, we find that the fact that the clause begins -with the words “[djefendant, Rapid has determined” shows that Rapid-Ameriean’s decision not to|9oppose personal jurisdiction was a determination made regarding the Boatwright case only, and that Rapid-American was not forfeiting the right to make a different determination in another unrelated proceeding.

Plaintiffs also argue that the trial court erred by considering the affidavits submitted by Rapid-American, contending that affidavits are not proper evidence on an exception of lack of personal jurisdiction. We find no case law to support this contention by plaintiffs. To the contrary, our research revealed numerous cases in which affidavits have been submitted in proceedings involving exceptions of lack of personal jurisdiction. The ease cited by plaintiffs involved an exception of prescription. This argument has no merit.

For the reasons stated above, we affirm the trial court judgments granting Rapid-American’s exceptions of lack of personal jurisdiction.

AFFIRMED.

BELSOME, J., Dissents with Reasons.

BELSOME, J.,

Dissents with Reasons.

1,1 respectfully dissent from the majority’s opinion. The majority mischaracter-izes the agreement filed into the record of the Supreme Court in Boatwright as merely a “clause” within a motion to dismiss. I find the language clearly creates a classic stipulation pour autrui, or a contractual benefit for a third party. See La. C.C. art. 1978.

According to the record in the instant case, the Boatwright plaintiffs had applied to the Supreme Court for Supervisory Writ of Certiorari seeking review of the district court’s and appellate court’s finding that Rapid was not subject to personal jurisdiction in Louisiana. Prior to the Court ruling on the writ, Rapid entered into an agreement with Boatwright counsel for the dismissal of the pending writ. In consideration for the dismissal of the writ, Rapid consented to the following:

Defendant Rapid has determined that, in the above-captioned cases, presently filed cases, and future cases, it will not oppose jurisdiction with respect to any plaintiff who (1) is a citizen of the State of Louisiana, or (2) who, prior to June 1, 1967, was exposed to asbestos-containing products of the Philip Carey Manufacturing Company within the State of Louisiana (the “Criteria”) .... (emphasis added).

Louisiana law clearly allows for third parties to benefit from contracts for which they were not privy. See, La. C.C. art. 1978, et seq. There is not a 12presumption in favor of a stipulation pour autrui. Smith v. State Farm Ins. Companies, 2003-1580, pp. 4-5 (La.App. 4 Cir. 3/3/04), 869 So.2d 909, 912-13. The intent of the party to create the stipulation in favor of a third party must be manifestly clear. Id. Establishing the existence of a stipulation pour artrui rests with the party demanding performance. See, La. C.C. art. 1831. In Joseph v. Hosp. Serv. Dist. No. 2 of Parish of St. Mary, 05-2364, (La.10/15/06), 939 So.2d 1206, the Supreme Court succinctly set forth the requirements of a valid stipulation pour autrui: (1) the stipulation for a third party is manifestly clear; (2) there is certainty as to the benefit provided the third party; and (3) the benefit is not a mere incident of the contract between the promisor and the prom-isee. Id.

Applying those principles to the instant case, the facts unmistakably favor the existence of a stipulation pour autrui First, the words could not be more clear, Rapid renounced opposing jurisdiction “with respect to any plaintiff’ that fit the “criteria.” That language could have easily been crafted to limit the scope of the beneficiaries to “plaintiffs represented by undersigned counsel” but that was not done. Instead, the language created a benefit for a specific class of plaintiffs. Secondly, the language leaves no question as to the benefit provided to the third party; Rapid will no longer oppose jurisdiction in Louisiana. And lastly, the benefit to the plaintiffs that meet the criteria is not merely incidental to the agreement, but rather, it was the sole consideration given in exchange for the dismissal of the Boaturright writ.

The language of the agreement, although broad, is clear and unambiguous and this Court should not seek to interpret that language in a more restrictive manner than was consented to by the parties. Although the agreement came into existence in another case, Rapid remains bound to honor the conditions of the stipulation. For this Court to hold otherwise is unjust. For the reasons discussed, I dissent.

      . All three cases involve the same plaintiffs’ counsel and defense counsel.

      . Boatwright v. Metropolitan Life Insurance Co., 95-1822 (La.App. 4 Cir. 9/28/95), 661 So.2d 169.