author: MOORE, J.

text:
    Pam JONES, in her Capacity as Assessor for Lincoln Parish, Plaintiff-Appellee v. SOUTHERN NATURAL GAS CO., Defendant-Appellant. Rich Bailey, in his Capacity as Assessor for Ouachita Parish, Plaintiff-Appellee v. ANR Pipeline, Southern Natural Gas Co. and Tennessee Gas Pipeline Co., Defendants-Appellants Mary T. “Terry” Baker, in her Capacity as Assessor for Union Parish, Plaintiff-Appellee v. Tennessee Gas Pipeline Co., Defendant-Appellant.
    Nos. 46,347-CA, 46,348-CA, 46,351-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.
    Rehearing Denied May 12, 2011.

      Hilton S. Bell, New Orleans, LA, Angela W. Adolph, Baton Rouge, LA, Milling Benson Woodward LLP, for Appellant.
    Brian A. Eddington, Baton Rouge, LA, for Appellee.
    Robert Dean Hoffman, Jr., for La. Tax Commission.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   MOORE, J.

|tANR Pipeline Co., Tennessee Gas Pipeline Co. and Southern Natural Gas Co. (collectively referred to as “the taxpayers”) appeal three judgments that reversed and vacated a ruling of the Louisiana Tax Commission (“the LTC”) and reinstated the tax assessments fixed by the assessors of Ouachita, Union and Lincoln Parishes on the taxpayers’ property in those parishes. For the reasons expressed, we affirm.

Factual Background

The taxpayers are corporate affiliates that provide natural gas transportation, storage and balancing services in Louisiana and in interstate commerce. Their property is classified as “public service property” under La. R.S. 47:1851 and thus subject to assessment at 25% of fair market value under La. Const. Art. VII, § 18. (By contrast, intrastate pipelines are deemed “non-public service property” and assessed at only 15% of fair market value.) For property tax purposes, public service property is normally assessed on a system-wide basis by the LTC, which then allocates valuations to the individual parishes. La. Const. Art. VII, § 18(D), La. R.S. 47:1855 A. The taxpayers’ property is also regulated by the Federal Energy Regulatory Commission (“FERC”), 15 U.S.C. § 717f(b), and thus subject to an extensive regulatory process before any of it can be sold. According to the taxpayers, FERC regulation depresses the fair market value of their property.

In the 1990s, ANR filed suits alleging that the LTC was treating other, competing pipelines (called “preferred pipelines”) as though they were not public service property, i. e., assessing their property at only 15% 12and applying depreciation. Tennessee Gas Pipeline and Southern Natural Gas joined the suits for the years 2000-2003, the time frame at issue in this appeal.

After a trial in 2005, Judge Tim Kelley of the 19th Judicial District Court found that the LTC violated the taxpayers’ rights to uniform taxation; however, he rejected their claim for refunds. Instead, he ordered that the taxpayers’ property be reassessed by parish assessors at 15% of fair market value, using the same method as for the preferred companies. In effect, local assessors were ordered, for the first time, to assess public service property, but to do so equitably with non-public service property.

The taxpayers appealed, claiming they were entitled to a refund, not a reassessment, but the First Circuit affirmed, and both the Louisiana and United States Supreme Courts denied writs. ANR Pipeline Co. v. Louisiana Tax Comm’n, 2005-1142 (La.App. 1 Cir. 9/7/05), 923 So.2d 81, writ denied, 2005-2372 (La.3/17/06), 925 So.2d 547, cert. denied, 549 U.S. 822, 127 S.Ct. 157, 166 L.Ed.2d 38 (2006) (“ANR VI”).

When this judgment became final, the LTC formally ordered assessors to reassess the taxpayers’ property using the same valuation methodology as for other pipelines and at 15% of fair market value.

On May 17, 2006, the taxpayers filed their reassessment returns with the assessors of Ouachita, Union and Lincoln Parishes. They reported the depreciated replacement cost of their property and requested a reduction in value for obsolescence. The obsolescence was based on the claim that the pipelines were operating at less than full capacity. However, according to Rthe assessors, the supporting documents (attachment to LAT 4, 5 and 14) listed only “percentage of pipeline capacity used” for each year, based on a nationwide average of the entire pipeline system and without stating the throughput and rated capacity of the lines in the respective parishes.

On August 28, 2006, the taxpayers filed letter memoranda in support of their requests for obsolescence. In support they attached the affidavits of Sally Costley, their tax agent, listing the pipelines’ capacity used in 2002-2003; of Thomas K. Te-garden, an expert in utilities appraisal, listing the fair market value of the property for the same period; and of Richard Smead, an expert in FERC rate proceedings, stating that the effect of regulation was to depress the value of the property.

According to the assessors, however, the percentages were still based on nationwide capacity used, not the capacity used in the individual parishes. Moreover, the percentages were inconsistent. For example, ANR first reported a use of 62.54% of capacity in Ouachita Parish in 2003, but in the amended request, this dropped to 60.69%; Southern Natural Gas first reported a use of 80.451% of capacity in Lincoln Parish in 2000, but this dropped to 60.591% in the amended request. Ouachi-ta Parish Deputy Assessor Joellen Johnson testified before the LTC that she specifically requested additional information from the taxpayers, but received none. Finding that the reported capacities were unreliable and lacking in factual support, the assessors rejected the claims for obsolescence and assessed the property at the values stated on the face of the returns.

| ,,The new assessed values in Ouachita, Union and Lincoln Parishes were 2-2½ times higher than those originally entered by the LTC; in Ouachita Parish, for example, the difference amounted to over $1 million in extra tax due from ANR, and completely negated the taxpayers’ claims for refunds arising from ANR VI. The taxpayers initially lodged protests with the parish boards of review, which denied them all. They then appealed the reassessments to the LTC.

After a hearing in October 2009, the LTC ruled that the assessors had indeed used on the taxpayers’ property the “same valuation and assessment methodology” as on the preferred properties. It also found, however, that the assessors had failed to adjust the fair market value for obsolescence based on the “service factor for throughput,” resulting in incorrect valuation and an abuse of discretion. The LTC ordered the assessors to reduce the valuations in amounts ranging from 19-34%, based on Ms. Costley’s affidavit.

The taxpayers lodged an appeal in the 19th JDC but did not file for judicial review in Ouachita, Union or Lincoln Parish.

Procedural History

On November 23, 2009, the assessors of Ouachita, Union and Lincoln Parishes filed the instant petitions for judicial review pursuant to La. R.S. 47:1998 A and 1989 D. They alleged that they were aggrieved by the ruling of the LTC, and requested that its decision be vacated and their own reassessments reinstated. The taxpayers did not file their own petitions for judicial review in these parishes or reconvene against the assessors.

|sThe taxpayers did, however, file numerous exceptions: lis pendens, improper venue, lack of subject matter jurisdiction, no right of action, no cause of action, and prematurity (an exception of nonjoinder was later withdrawn). These argued, in essence, that any review of the LTC’s decision was proper only in the 19th JDC, where an appeal was currently pending. They also contended that the LTC never authorized the assessors to challenge its decision, and in fact the only appeal authorized by statute, R.S. 47:1856, is that of a taxpayer in the 19th JDC. At hearings in February 2010, the taxpayers argued that allowing multiple appeals was judicially inefficient and could lead to inconsistent results.

The district courts denied all exceptions. The taxpayers applied for writs, which this court consolidated and denied on June 17, 2010. Jones v. Southern Natural Gas Co., 45,677 (La.App. 2 Cir. 6/17/10) (unpublished writ denial). The Louisiana Supreme Court also denied writs and a stay. Jones v. Southern Natural Gas, 2010-1558 (La.7/15/10), 39 So.3d 593.

The cases proceeded to trials in July and August 2010. Although the trials were limited to argument, the taxpayers introduced into evidence complete transcripts and exhibits of all proceedings before the LTC, comprising some 29 binders, each about 3 inches thick.

All three courts found that the taxpayers failed to provide any specific, substantive evidence of obsolescence, only throughput figures, which the assessors were entitled to disregard as inadequate. The courts found that the LTC exceeded its authority in ordering the assessors to adopt such evidence, and vacated the LTC’s order. A final judgment to this effect | ¿was rendered in each case.

The taxpayers have appealed, designating 12 assignments of error.

Discussion: Rulings on Exceptions

By their first assignment of error, the taxpayers urge the courts erred in denying their declinatory exceptions of lis pendens, improper venue and lack of subject matter jurisdiction, and their peremptory exceptions of no cause of action, no right of action and prescription. This court notes at the outset that the taxpayers already challenged these rulings by writ application which was denied by this court on June 17, 2010, and by the supreme court on July 15, 2010. Jones v. Southern Natural Gas, supra. Ordinarily, this court does not reconsider matters after the denial of writ. URCA 2-18.7; D’Amico, Curet & Dampf v. Jumonville, 458 So.2d 903 (La.1984). Out of abundant caution, however, we will briefly revisit the exceptions.

The factual basis of the exceptions is that the taxpayers have properly appealed the LTC’s ruling in the 19th JDC, and that the instant petitions arise out of those pending proceedings. In support they cite La. R.S. 47:1856 D(l):

Any company that is dissatisfied with the final determination of assessed valuation by the Louisiana Tax Commission may institute suit appealing the correctness or legality of such final determination of assessed valuation for taxation by the Louisiana Tax Commission. However, to state a cause of action, the petition instituting such suit shall name the Louisiana Tax Commission as defendant and shall set forth not only the final determination of assessed valuation for taxation made by the Louisiana Tax Commission appealed from, but also the assessed valuation for taxation that the company deems to be correct and legal and the reasons therefor.

|7The assessors, however, show that another statute, La. R.S. 47:1998 A(l)(a), specifically authorized the instant actions. It provides, in pertinent part and with emphasis added:

Any taxpayer or bona fide representative of an affected tax-recipient body in the state dissatisfied with the final determination of the Louisiana Tax Commission under the provisions of R.S. 47:1998 [review of appeals by the LTC] shall have the right to institute suit within thirty days of the entry of any final decision of the Louisiana Tax Commission in the district court for the parish where the Louisiana Tax Commission is domiciled or the district court of the parish where the property is located contesting the correctness of assessment.

The taxpayers responded, at oral argument, that the recent case of Gisclair v. Louisiana Tax Comm’n, 2009-0007 (La.6/26/09), 16 So.3d 1132, held that an assessor cannot sue under R.S. 47:1998. On review, however, we do not find that Gisclair ever mentions R.S. 47:1998. By a plain reading, R.S. 47:1998 A(l)(a) explicitly confers subject matter jurisdiction, a right of action, cause of action, and proper venue for the assessors to file the instant actions challenging the correctness of an assessment by the LTC. In yet another branch of this litigation, a federal district court recently cited R.S. 47:1998 and held, “State law gives the local assessors the express right to challenge rulings by the Tax Commission in their home parishes and the assessors are exercising those rights.” ANR Pipeline Co. v. Louisiana Tax Comm’n, 10-2622 (E.D.La.1/19/11), 2011 WL 163547, at *15. The district courts did not err in denying these exceptions.

“When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same | ¡¡capacities, the defendant may have all but the first suit dismissed” by filing an exception of lis pendens. La. C.C.P. art. 531. The test for granting an exception of lis pendens is whether a final judgment in the first suit would be res judicata in the second. Cox v. Boggs, 39,566 (La.App. 2 Cir. 4/6/05), 899 So.2d 770. The taxpayers concede that their first action, in the 19th JDC, was a challenge to the unconstitutional taxation of its public service property and to confect a remedy. Orig. brief, 11. The instant actions, however, challenged the LTC’s ruling that disallowed the method of valuation used by assessors in their respective parishes to value the public service property. Although the actions are closely related, they are not for the same transaction or occurrence. The district courts did not err in denying the exceptions of lis pendens.

As noted, La. R.S. 47:1998 A(l)(a) gives any dissatisfied party 30 days to file an action contesting a final decision of the LTC. The LTC’s ruling was rendered on November 23, 2009, and the instant petitions were filed in the district courts that same day. The assessors’ suits are obviously timely, and the district courts did not err in denying the exceptions of prescription. This assignment of error lacks merit.

General Burden of Proof

By their second assignment of error, the taxpayers urge that the LTC and the district courts erred in placing the burden of proof of obsolescence on the taxpayers. In support, they cite La. R.S. 47:2824, which provides in pertinent part, with emphasis added:

Each assessor shall gather all data necessary to properly determine the fair market value of all property subject to | ^taxation within his respective parish or district. In securing this data, the assessor may employ the use of self-reporting forms by property owners.

The taxpayers argue that this statute imposes a mandatory duty on the assessor, and if the assessor feels the information submitted by the taxpayer is inadequate, the assessor is required to request additional supporting data. They also cite this court’s recent opinion in Bailey v. Ener-Vest Operating Co., 45,553 (La.App. 2 Cir. 6/30/10), 43 So.3d 1046, which held that “when an assessor changes a policy or procedure regarding the information to be provided by a taxpayer then the assessor should take steps to inform the taxpayer of what information is required[.]” The taxpayers argue that the instant situation is analogous to EnerVest and warrants a finding that the assessors failed in their burden of proof.

The assessors respond that EnerVest and many other cases actually place the burden of proving obsolescence on the party seeking to benefit from it, and that evidence virtually identical to that submitted here was found insufficient to prove obsolescence in Dow Chem. Co. v. Pitre, 468 So.2d 747 (La.App. 1 Cir.1985), and Crosstex LIG v. Bailey, 2006-1013 (La.App. 1 Cir. 9/15/06), 936 So.2d 886 (unreported), writ denied, 2006-2475 (La.12/15/06), 945 So.2d 691. They also contend that an assessment is presumptively correct until the taxpayer proves otherwise, thus placing the burden on the taxpayer. Gisclair v. Louisiana Tax Comm’n, supra.

This court stands by its statement of the burden of proof in EnerVest, supra: “Under the guidelines, the burden is on the party claiming obsolescence to give the assessor sufficient data to support the claim.” | i0Further, “We do not find that the burden is on the assessor to substantiate a claim for obsolescence, but we do find that when an assessor changes a policy or procedure regarding the information to be provided by a taxpayer then the assessor should take steps to inform the taxpayer of what information is required before completing the determination of fair market value and the assessment.” Id., at 17,19, 43 So.3d at 1056-1067.

In the instant cases, the assessors were not changing their policy or procedure regarding the quality or quantity of data needed to support a claim of obsolescence. On the contrary, they were assessing public service property for the first time, pursuant to court order in ANR VI, supra, and an LTC ruling, expressly using the same methodology as for non-public service property. There was no basis for shifting the burden of proof: the burden was, and remained, with the taxpayers. The LTC and the district courts did not err in imposing the burden of proof; this assignment lacks merit.

Standard of Review

The taxpayers further argue, without specifically designating it as error, that this court owes no deference to the findings of the district courts but must review the record de novo. This is correct; in reviewing an administrative adjudication, the district court functions as an appellate court. Once the district court renders a final judgment, an aggrieved party may seek review by appeal to the appropriate appellate court. On review of the district court’s judgment, the court of appeal owes no deference to the factual findings or legal conclusions of the district court. Smith v. State, 39,368 (La.App. 2 Cir. 3/2/05), 895 So.2d 735, writ denied, 2005-1103 (La.6/17/05), 904 So.2d 701, and citations therein; Bailey v. EnerVest, supra.

Under the Administrative Procedure Act, La. R.S. 49:964 G, the district court and court of appeal may reverse or modify the agency’s determination if the substantial rights of the party seeking review have been prejudiced because the administrative findings, inferences, conclusions or decisions are (1) in violation of constitutional or statutory provisions, (2) in excess of the agency’s statutory authority, (3) made upon unlawful procedure, (4) affected by other error of law, (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion, or (6) manifestly erroneous in view of the reliable, probative and substantial evidence in the record. Smith v. State, supra; Bailey v. EnerVest, supra.

Proof of Obsolescence

By them next five assignments of error, the taxpayers contest the substantive rulings of the district courts which overruled the LTC and rejected their claims for a deduction for obsolescence. Specifically, they contend that they did indeed overcome, by a preponderance of the evidence, the presumption that an assessor’s evaluation is correct; that the LTC and the courts erred in finding that the assessors had utilized the same methodology as used for non-public service pipelines in their parishes; that the LTC erred in adopting the assessors’ determinations of fair market value and applying a deduction for throughput/capacity utilization; that the trial courts erred in adopting the assessors’ determinations of fair market value; h2and that the LTC and the trial courts erred in failing to recognize additional obsolescence on the taxpayers’ property.

The heart of the argument is that both the LTC and the district courts failed to apply the critical concepts of fair market value, the basis of taxation under La. Const. Art. VII, § 18(B) and (D), defined in La. R.S. 47:2321 as “the price for property which would be agreed upon between a willing and informed buyer and a willing and informed seller under usual and ordinary circumstances[.]” They contend that appraisers use three nationally recognized approaches: the market, cost and income approaches. La. R.S. 47:2323 C. Further, in valuing their public service property, the LTC originally used the cost (historical cost less depreciation, or net book value) and income (capitalized earnings) approaches, giving appropriate weight to each to fix a fair market value; the resulting process is called the unit approach. Still further, in the cost approach, the assessor is required to estimate the replacement or reproduction cost of the improvements, “deducting therefrom the estimated depreciation,” and then adding the market value of the land, if any. La. R.S. 47:2323 C(2). In addition, the LTC’s guidelines for valuation of pipelines formerly recognized economic obsolescence with a service factor based on the following formula:

Service Factor = (Actual Throughput/Rated Capacity)

The taxpayers argue that the assessors failed to apply the service | ^factor; and that although the LTC applied it, the LTC then failed to give an additional deduction for the effect of FERC regulation, which causes economic obsolescence and otherwise diminishes the price that a willing and informed buyer would pay for heavily regulated property. Finally, they reiterate the list of fair market values and service factors stated in Ms. Costley’s affidavit, and Mr. Tegarden’s testimony before the LTC that this was substantial evidence of obsolescence.

The assessors respond that no court has ever held that the LTC Guidelines mandate a reduction of value for obsolescence; such a reduction is discretionary, based on the quality of the evidence submitted by the taxpayer. Dow Chem. Co. v. Pitre, supra; Crosstex LIG v. Bailey, supra; Bailey v. EnerVest Operating Co., supra. They characterize the information received from the taxpayers as “free-standing and wholly unsupported” numbers which purportedly represented the systemwide average of “percentage of pipeline capacity used” for each year. They reiterate that many of the capacity utilization figures inexplicably curiously diminished between the original returns and the August 28 affidavit, and thus could not be considered detailed supporting information. They submit that their assessments were legally grounded and factually based on the information submitted, that the LTC abused its discretion in overruling the assessments and ordering reductions based on Ms. Costley’s unsupported figures, and that the district courts were correct to vacate the LTC’s order.

The supreme court recently approved the assessors’ methodology in Transcontinental Gas Pipeline Corp. v. Louisiana Tax Comm’n, 2009-1988 114(La.3/16/10), 32 So.3d 199. Transcontinental was a constitutional challenge to Louisiana’s system of assessing intrastate pipelines at 15% and interstate pipelines at 25%, and did not involve the unique facts arising from ANR VI, a remand to local assessors to assess non-public service property for the first time. However, because ANR VI directed local assessors to utilize the same methodology previously applied to non-public service pipelines, Transcontinental’s discussion is germane and persuasive:

There is no evidence in the record showing that the interstate companies are paying more ad valorem tax than their unregulated intrastate competitors. To the contrary, there is some indication in the record that the cost approach, utilized by the parish assessors, regularly values property higher than property which has been valued on the unit method, depending on whether the value is adjusted for economic obsolescence. The record further reflects that parish assessors normally do not account for economic obsolescence absent extraordinary circumstances, as they are not required to consider that factor under § 1305(G) of the LTC guidelines. The indication is that while the local assessors are obligated to follow the guideline charts for different sizes and types of pipes, they are allowed great discretion in determining other factors such as obsolescence, and normally do not even take that factor into consideration ab sent an extraordinary showing. Economic obsolescence is important to the unitary method of appraisal of rate-regulated companies by the LTC, because rate-regulated entities are capped in the amount of earning capability they can derive from a particular piece of property. There is some expert testimony indicating that if all factors, including economic obsolescence, are taken into account for both methods of appraisal, the values from the two different methods, at best should approach each other. The overall implication from the record, however, is that, typically, the method currently used by the parish assessors to assess the fair market value of pipes within their parishes comes out higher than the method used by the LTC, such that the plaintiffs’ tax burden could likely increase if they were treated like their claimed favored competitors, the unregulated intrastate companies. When asked which method currently results in a higher tax burden, no expert could give a definite answer.

| KId., at 23-24, 32 So.3d at 213-214 (emphasis added, footnotes omitted).

Transcontinental plainly reaffirms the notion that parish assessors are not required to reduce for economic obsolescence “absent an extraordinary showing” and thus their methodology may result in a higher assessment than if the LTC applied its unit approach to the same property. The supreme court found no basis to reject the assessors’ approach; on this record, neither can we.

Without belaboring this enormous record, we find merit in the assessors’ position. The taxpayers did not give the assessors financial data or other evidence of economic loss, only a document listing the percentages of pipeline capacity used for each tax year. Testimony before the LTC revealed that the percentages were not specific to the individual parishes but based on a systemwide average. This appears to be the same quality and quantity of evidence that was found lacking in Cros-stex LIG, supra. As noted earlier, in one parish the taxpayer failed to respond to a specific request for additional, substantiating information. Unlike the situation in EnerVest, supra, the taxpayers did not introduce a third-party engineering report or long-term production levels. Taken as a whole, the evidence here does not rise to the level of an “extraordinary showing” that would obligate the assessors to exercise their discretion in applying a reduction for functional obsolescence.

For the same reasons, we find that the LTC’s decision to reverse the assessors and order reduced assessments was arbitrary, capricious, and not supported or sustainable by a preponderance of the evidence as reviewed by |1fithis court. La. R.S. 49:964 G; Bailey v. EnerVest, supra; Smith v. State, supra. The district courts did not err in reversing the LTC, and these assignments of error lack merit.

Constitutional Claims

By their five final assignments of error, the taxpayers urge that the LTC’s Guidelines, the assessors’ methodology, or both, violated the uniformity guarantee of La. Const. Art. VII, § 18(D), and the due process guarantee of the 14th Amendment and La. Const. Art. I, § 2.

Although Louisiana courts generally possess the power and authority to decide the constitutionality of challenged statutory provisions, a court is required to do so only “if the procedural posture of the case and the relief sought by the appellant demand that [it] do so.” Burmaster v. Plaquemines Parish Gov’t, 2007-2432 (La.5/21/08), 982 So.2d 795, and citations therein. Courts should refrain from reaching or deciding a constitutional issue unless such a determination is essential to the decision of the case or controversy. Id.

Although five errors are designated, the arguments are cursory at best and raise three arguments.

(1) Uniformity. By their 12th assignment of error, the taxpayers urge the actions of the LTC and the assessors in valuing the taxpayers’ property to determine refunds violated the uniformity requirements of the Louisiana Constitution and equal protection and due process clauses of the Louisiana and U.S. Constitutions. They contend that in the wake of ANR VI, “a number of parish assessors in the revaluation process granted plaintiffs | i7functional and economic obsolescence based on the same information the taxpayers submitted to the assessors,” resulting in unequal treatment and entitling the taxpayers to a reduction.

Notably, the First Circuit has already considered and rejected this claim in Cros-stex LIG v. Bailey, supra, on the basis that the grant of economic obsolescence depends on the quality and quantity of the evidence presented. “[Constitutional and statutory law requirements of uniformity in assessments do not mandate that every pipeline within a parish be assessed identically or that every parish render the same assessment as to a single pipeline.” Id., 15. Likewise, in the instant case we do not find that the denial of the taxpayers’ obsolescence claim was so unrelated to the quantity and quality of the evidence offered to support the claim as to amount to unequal treatment of the taxpayers.

(2) Due process—fair treatment by assessors. By their 10th assignment, the taxpayers urge the LTC Guidelines, §§ 1301, et seq., used by the assessors in valuing the taxpayers’ property to determine refunds, do not specify the information the taxpayers were to provide to the assessors to determine obsolescence in their properties and are thus so vague as to violate the taxpayers’ due process and equal protections rights. By their 11th assignment, they urge the assessors’ practice of disclosing information that they will consider in granting an allowance for obsolescence only after the tax rolls have closed violates the taxpayers’ rights of due process and equal protection.

|i8At the outset, we note that a federal district court has already dismissed the taxpayers’ constitutional challenges based on the commerce clause and due process. ANR Pipeline Co. v. Louisiana Tax Comm’n, 10-2622 (E.D.La.1/19/11), 2011 WL 163547. In support of the instant claim, the taxpayers cite La. R.S. 47:2323 (“each assessor shall gather all data necessary to properly determine fair market value of all property subject to taxation within his respective parish or district”) and the former 61 La. Adm. C. Pt. V, § 1303 B (“if information is not complete and the LAT-14 Form is not properly prepared, report will be returned for further compliance”) to argue that due process requires the assessors to advise them precisely what kind of information is needed to support an obsolescence claim.

However, the taxpayers have not shown any authority, and we are unaware of any, requiring the assessors to provide this level of information concerning a discretionary reduction. The burden is not on the assessor to substantiate a claim for obsolescence. Bailey v. EnerVest, supra. We perceive no constitutional violation.

(3) Due process—changes to Guidelines. By their eighth assignment, the taxpayers urge the LTC Guidelines, §§ 1301, et seq., for the years 1998 through 2003, are invalid and conflict with La. R.S. 47:2323 C, which requires that assessors recognize all depreciation under the cost approach, including all forms of obsolescence. By their ninth assignment, they urge that the use of the Guidelines violated them due process and equal protection rights because the taxpayers were not given notice that the Guidelines would apply to their property and hence no opportunity to participate in the | mLTC’s annual rule-making process.

As noted above, these portions of the Guidelines, 61 La. Adm. C. Pt. V, §§ 1301 A(2) and 1305 F and G, changed between 1999 and 2008. Did these changes amount to a denial of due process? As the supreme court noted in Transcontinental, supra, assessors have never been required to consider economic obsolescence under former § 1305 G. Moreover, the change of phraseology from shall to may in § 1305 does not abolish anyone’s right to obtain a reduction for economic obsolescence; it merely alters the burden of proof. A change in the burden of proof, without affecting the claimant’s substantive rights, is not a due process violation. Burmaster v. Plaquemines Parish Gov’t, supra; Sudwischer v. Estate of Hoffpauir, 97-0785 (La.12/12/97), 705 So.2d 724. Considering that reduction for economic obsolescence was never an absolute right, and that the amendments to the LTC Guidelines merely reallocated the burden of proving such a reduction, we find no violation of due process. These assignments of error lack merit.

Conclusion

For the reasons expressed, the judgments reversing and vacating the ruling of the Louisiana Tax Commission, and reinstating the assessments made by the assessors of Ouachita, Union and Lincoln Parishes, of the taxpayers’ property in those parishes, are affirmed. All costs are to be paid by the appellants, ANR Pipeline Co., Tennessee Gas Pipeline Co. and Southern Natural Gas Co.

AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, MOORE and LOLLEY, JJ.

Rehearing denied.

      . Prior to 1999, the Guidelines were framed in mandatory terms, using "appropriate allowance should be made,” "economic or functional obsolescence shall be given” and "Economic obsolescence should be recognized!.]” From 1999 through 2008, these references were rephrased as "economic and functional obsolescence may be given” and “Economic obsolescence may be recognized[.]” Effective March 2009, the Guidelines again state, "Functional and/or economic obsolescence shall be considered!,]” but the service factor formula has been deleted. 61 La. Adm. C. Pt. V, §§ 1301 A(2), 1305 F, G, as amended by La. Reg. 25:316 (February 1999) and 35:498 (March 2009).


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    RIVER BEND CAPITAL, LLC v. LLOYD’S OF LONDON.
    No. 2010-CA-1317.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 2011.

      Soren E. Gisleson, Joseph E. Cain, Herman Herman Katz & Cotlar, New Orleans, LA, for Plaintiff/Appellant.
    Patrick D. DeRouen, Laurie L. DeAr-mond, DeRouen Law Firm, New Orleans, LA, Jill A. O’Donovan, Walker Wilcox Ma-tousek LLP, Chicago, IL, for Defendant/Appellee.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

|,In this appeal, plaintiffs assert that the trial court erred in granting defendant’s Motion for Summary Judgment and Exception of Res Judicata. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

This lawsuit arises from damages suffered to a thirty-nine unit apartment complex as a result of Hurricane Katrina. Riverbend Capital, LLC (“Riverbend”) is the mortgagee of the property in question. Defendant Certain Underwriters at Lloyd’s of London (“Lloyd’s”) issued an insurance policy to the mortgagor Gawain Ministries, L.L.C. (“Gawain Ministries”). Gawain Ministries was named as the insured on the policy. Riverbend was named as the loss payee/ mortgagee. Lloyd’s submitted a check in the amount of $114,020.41 to Gawain Ministries for the damage to the insured property. The check was made payable to Gawain Ministries and Riverbend with the following language contained on the check: “... IN FULL AND FINAL SETTLEMENT OF THE HURRICANE KATRINA LOSS OF AUGUST 29, 2005.” Both Gawain Ministries and Riverbend endorsed the check.

| ;>Gawain Ministries filed suit against defendant in August 2006, alleging Lloyd’s had not fully compensated it for losses sustained in Hurricane Katrina. In July 2007, Riverbend filed the instant case. In December 2008, the trial court entered judgment against Gawain Ministries in the first lawsuit, finding that the restrictive language on the check constituted a full and final settlement of Gawain Ministries’ claim, and dismissed the case with prejudice. No appeal from this decision was taken.

Subsequently, in the case at bar, Lloyd’s filed a Motion for Summary Judgment, arguing that under the doctrine of accord and satisfaction, Riverbend’s negotiation of the check precluded further recovery, and alternatively, that the suit was barred by res judicata given the ruling in the Gawain Ministries lawsuit. The trial court agreed and entered judgment dismissing the lawsuit. Riverbend subsequently filed this appeal.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Insurance Company v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/2000), 755 So.2d 226. .The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, scrutinized equally, show that there is no genuine issue as to |amaterial fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

DISCUSSION

The doctrine of accord and satisfaction estops a creditor from suing on a compromised debt. Anestheia East v. Bares, 594 So.2d 1085 (La.App. 4 Cir.1992). To establish a defense of accord and satisfaction, the debtor must show: an unliquidated or disputed claim between debtor and creditor; that the debtor tendered a check for less than the sum claimed by the creditor; and that the creditor accepted the tender by negotiating the check. Id. at 1087.

In the instant case, the trial court found that three prongs set forth in Anesthesia were met. Defendant received proof of loss from Gawain Ministries. It tendered a check as full and final settlement of the claim. Both Gawain Ministries and River-bend negotiated the check. By signing the check, Riverbend accepted Lloyd’s offer to settle the claim.

Riverbend asserts that the check was actually an unconditional tender by defendant, and that the trial court erred in rejecting this argument.

After Hurricane Katrina, Lloyd’s retained SyNerGy Adjusting Corporation to adjust the loss. Adjuster Nick Green met with the named insured’s principal, Calvin Davis, and negotiated a resolution of the insured damage. Mr. Green testified that Gawain Ministries was asked “ad nause-um” to provide a competing contractor’s estimate for damages to the property, but declined to do so. On December 28, 2005, Mr. Green sent a letter to Gawain Ministries stating in part:

Having reviewed numerous photographs depicting the condition of your buildings and from the eyewitness account of various adjusters (3 in total) that attended to undertake the adjustment, it is considered settlement can be offered, on a without prejudice to liability basis, as follows:
Replacement Cost $275,416.01
Less Depreciation (96,395.60)
Net Loss 179,020.41
Less Deductible (65,000.00)
Net Payable 114,020.41
Attached is a Proof of Loss for your signature and return in order that we may forward it to your insurers for payment.

LMr. Davis was represented by an attorney during these negotiations.

On January 10, 2006, Gawain Ministries executed the Sworn Statement in Proof of Loss enclosed with the December 28 letter, which stated that the amount claimed under the Lloyd’s policies for the windstorm damages to the property resulting from Hurricane Katrina totaled $114,020.41, net of the deductible. The Proof of Loss was notarized by Gawain Ministries’ counsel. Subsequently, a check was issued in the amount of $114,020.41 made payable to “GAWAIN MINISTRIES AND RIVER bEND CAPITOL [sic] — IN FULL AND FINAL SETTLEMENT OF THE HURRICANE KATRINA LOSS OF AUGUST 29, 2005.”

The check was forwarded to Gawain Ministries’ attorney. Riverbend’s principal, Michael Dazat, testified that he received the check from either Gawain Ministries’ attorney or his wife. Gawain Ministries endorsed the check, as did Riverbend. Once the check was fully endorsed, Riverbend deposited the check into its account, and then gave money from this check to Gawain Ministries’ attorney through Gawain Ministries’ attorney’s account.

In the Reasons for Judgment, the trial court stated:

It is of no moment that the plaintiff believes that the check undervalued the damage to the properties. This is not the case of an unsophisticated party being duped. Plaintiff is in the mortgage business. It was aware, or should have been aware of, the language contained on the face of the check. If plaintiff believed the amount was inadequate, it has the option of refusing the check, thereby refusing the condition attached.

|5We agree. By negotiating the check marked “in full and final settlement,” Riv-erbend accepted defendant’s offer to settle the claim. The plain wording on the face of the check makes it clear that it is not an unconditional tender. We find no error in this ruling of the trial court.

Riverbend asserts that the trial court erred by deciding the motion for summary judgment where important discovery related to the issues was not completed. Specifically, Riverbend argues that the most important witnesses to the issues—the corporate representatives of the Lloyd’s syndicates, the broker, and the third-party vendor that issued the check-had not been deposed.

The only factual issues relevant to the defense of accord and satisfaction are whether there was (1) and unliquidated or disputed claim; (2) tender of a check made by the debtor in full and final settlement; and (3) acceptance of the check by the creditor through negotiation of the check. Hawthorne v. Barbier, 02-1903, p. 2 (La.App. 4 Cir. 2/19/03), 841 So.2d 28, 29.

Mr. Green testified that the figure was negotiated with the named insured, who was represented by counsel. Thus, the amount paid was as a compromise of a disputed claim. The check plainly stated that it was made “IN FULL AND FINAL SETTLEMENT OF THE HURRICANE KATRINA LOSS OF AUGUST 29, 2005.” Riverbend has admitted that it negotiated the check without condition. Further discovery to verify what Lloyd’s meant by “full and final settlement” is unnecessary where the language is clear and unambiguous as here. We find no merit to this assignment of error.

Next, Riverbend further argues that the trial court erred by not finding that Lloyd’s was estopped from raising the affirmative defense of accord and | ^satisfaction. Riverbend points out that the exact phrase “accord and satisfaction was not used in the Answer; thus, since the defense was not specifically pled, the issue was not properly considered by the trial court.

Lloyd’s 11th Affirmative Defense states in part:

AND STILL FURTHER ANSWERING, Respondents, London Underwriters aver that they have satisfied all contractual obligations to the insured, and as such, there are no additional monies owed pursuant to said insurance contracts ...

Lloyd’s further asserted in their Answer that “they received a proof of loss from Gawain Ministries LLC in the amount of $114,020.41 and issued a check jointly payable to Gawain Ministries, LLC and Plaintiff in the amount of $114,020.41.”

Accord and satisfaction is an affirmative defense and must be specially pled in the Answer. Anesthesia East, supra. See also La. C.C.P. art. 1005 (identifying as an affirmative defense any defense that argues the “extinguishment of the obligation in any manner”).

The purpose of specially pleading an affirmative defense is to give fair notice to the plaintiff of the nature of the defense. Bienvenu v. Allstate Ins. Co., 01-2248 (La.App. 4 Cir. 5/8/02), 819 So.2d 1077. Special pleading of affirmative defenses prevents “trial by ambush” and does not give the defendant an unfair advantage. Walters v. Metro. Erection Co., 94-0162, p. 7 (La.App. 4 Cir. 10/27/94), 644 So.2d 1143, 1147.

In Walters, this court stated that generally, affirmative defenses should be pled in the answer. However, in that case, this court found that the plaintiff had adequate notice of the nature of the defense and was not prejudiced by the trial court’s decision to allow the argument to go forward. This court reasoned that the plaintiff had adequate time to prepare an answer.

|7In the case at bar, defendant initially filed its summary judgment on August 28, 2009. Plaintiff retained its current counsel on October 2, 2009. On October 22, 2009, plaintiff filed an opposition to defendant’s motion. The hearing was held on March 9, 2010.

We find that the language used by Lloyd’s in the Answer and 11th Affirmative Defense effectively communicated that the doctrine of accord and satisfaction would be asserted as a defense. Further, plaintiff had adequate notice of the defense and adequate time to oppose it, and in fact did oppose it. Riverbend was not prejudiced by the failure to include the magic words “accord and satisfaction,” and the issue was properly before the trial judge. We find no merit to this assignment of error.

In light of these rulings, Riverbend’s assignment of error concerning res judica-ta is moot, and we need not address it. CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . The decision in Gawain Ministries, L.L.C. v. Certain Underwriters at Lloyd's of London, Civil District Court Case Number 2006-9905, was rendered by Judge Medley.


author: BROWN, Chief Judge.

text:
    Sarah Coleen BISCAMP, Plaintiff-Appellant v. SYSCO EAST TEXAS, Defendant-Appellee.
    No. 46,182-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      James P. Lambert, Richard D. Mere, Lafayette, LA, for Appellant.
    Pierre M. Legrand, Ungarino & Eckert, L.L.C., Metairie, LA, for Appellee.
    Before BROWN, WILLIAMS, and DREW, JJ.
   BROWN, Chief Judge.

| Claimant, Sara Coleen Biscamp, worked as a sales representative with defendant, Sysco East Texas, LLC (“Sysco”). One of her main accounts or customers was the Crawfish Hole, a restaurant in Natchitoches, Louisiana, owned and operated by William and Chere Carnahan. On one of her scheduled work days, Coleen accompanied Chere to a mammogram appointment .in Shreveport, Louisiana, with the permission/approval of her supervisors. Coleen was not charged with a paid day off, and she was paid as if it was a work day for her.

Coleen Biscamp and Chere Carnahan were Mends, having met while both worked for Sysco several years previously. They ate lunch at Posado’s Restaurant in Shreveport before Chere’s appointment. While leaving the restaurant, Coleen tripped and fell, injuring herself. She filed the instant workers’ compensation claim against Sysco seeking benefits. A hearing limited to the issue of course of employment was held. The workers’ compensation judge (“WCJ”) found that Coleen was not in the course of her employment when she sustained her injuries and therefore dismissed her claim. This appeal ensued.

Discussion

Only injuries which arise both out of, and occur in the course of employment, are compensable under the workers’ compensation system. La. R.S. 23:1031(A); Mundy v. Dept. of Health and Human Resources, 593 So.2d 346 (La.1992). Under Louisiana workers’ compensation law, a worker must prove that an accident with resulting injuries arose out of and occurred in the course of her employment by a preponderance of the |2evidence. Bruno v. Harbert Intemation al, Inc., 593 So.2d 357 (La.1992). The question of whether a claimant is entitled to compensation benefits is a question of fact, and a WCJ’s determination may not be disturbed on appeal absent a finding of manifest error. Posey v. NOMAC Drilling Corp., 44,428 (La.App.2d Cir.08/12/09), 16 So.3d 1211; Morrison v. First Baptist Church of West Monroe, 44,189 (La.App.2d Cir.04/08/09), 7 So.3d 873; Hawthorne v. Gilbane/General Motors Corp., 39,021 (La.App.2d Cir.12/15/04), 889 So.2d 1204.

The requirement that an employee’s injury “arise out of’ the employment relates to the character or origin of the risk and injury suffered by the employee and whether this injury was incidental to the employment. McLin v. Industrial Specialty Contractors, Inc., 02-1539 (La.07/02/03), 851 So.2d 1135; Williams v. Regional Transit Authority, 546 So.2d 150 (La.1989); Obien v. Mitcham Peach Farms, L.L.C., 43,637 (La.App.2d Cir.10/29/08), 997 So.2d 670. According to the supreme court in McLin, 851 So.2d at 1142, an accident arises out of the employment if the employee was engaged about her employer’s business and when the conditions of the employment cause the employee in the course of employment to be at the place of the accident at the time the accident occurred. See also, Posey, supra.

The requirement that an employee’s injury occur “in the course of’ employment brings into focus the time and place relationship between the injury and the employment. Weber v. State, 93-0062 (La.04/11/94), 635 So.2d 188; Williams, supra. An accident occurs in the course of | «¡employment when the employee sustains an injury while actively engaged in the performance of her duties during work hours, either on the employer’s premises or at other places where employment activities take the employee. McLin, supra; Obein, supra; Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App.2d Cir.12/06/95), 665 So.2d 672, writ denied, 96-0063 (La.03/08/96), 669 So.2d 404.

Our courts have recognized that employees may from time to time be asked by their employers to do things that are not necessarily within their regular job duties or descriptions. In McLin, supra, the Louisiana Supreme Court acknowledged the “special mission” exception to the “going and coming” rule, which provides that generally, injuries sustained by an employee traveling to and from work are not considered to have occurred within the course of employment and are therefore not compensable under the Workers’ Compensation Act. See, Phipps v. Bruno Construction, 00-0480 (La.App.3d Cir.11/02/00), 773 So.2d 826; Stephens v. Justiss-Mears Oil Co., 312 So.2d 293 (La.1975).

The supreme court in McLin, 851 So.2d at 1132, held that “if an employee is found to be on a special mission, [s]he will be considered to be within the course of [her] employment from ‘portal-to-portal,’ or in other words, from [her] home to the location of the mission, or alternatively, from the location of the mission to [her] home.” (Citation omitted).

Citing Camburn v. Northwest School District, 459 Mich. 471, 592 N.W.2d 46 (1999), the McLin court explained:

[W]hen an employee is requested, directed, instructed, or required by the employer to be away from the place of employment, the employee |4is deemed to be in the course of employment because the employee is engaged in the direct performance of duties assigned by the employer. The employee remains within the scope of employment from the moment the employee leaves home or work until [she] returns either to the regular premises or to the employee’s home. ■

Id. at 1143.

In the instant case, the WCJ found that, on the date of her accident, Coleen Biscamp was not on a special mission for her employer, but rather was on a personal mission and was therefore not in the course of her employment such that her injury was covered by workers’ compensation. On appeal, claimant urges that this finding by the WCJ is clearly wrong/manifestly erroneous.

As noted above, the principal criteria for determining course of employment are time, place and employment activity. Tucker, supra. An injury occurs in the course of employment when it is sustained by an employee actively engaged in the performance of her duties during work hours, either on the employer’s premises or at other places where employment activities take her. Posey, supra; Tucker, supra. For a mission to qualify as a special -mission and thus be considered as employment-related rather than personal, an employee is deemed to be in the course of employment when she is engaged in the direct performance of duties assigned (i.e., requested, directed, instructed or required) by her employer.

Coleen Biscamp’s injuries were sustained in a trip and fall incident in the parking lot of Posado’s Restaurant in Shreveport, Louisiana. A sales representative for Sysco, Coleen was out of her territory with the express permission of her supervisors for the purpose of accompanying a former | hco-workeijfriend (who was also a current client) to a mammogram appointment. While Coleen was paid and not required to take a vacation day for this excursion, she was not requested, directed, instructed or required by her employer to make the trip to Shreveport with Chere, but instead was permitted or allowed to go. In fact, Coleen’s supervisor had to make arrangements for another sales representative to cover her territory on that date so that she could accompany Chere to Shreveport. Chere Carnahan drove her personal vehicle. Also, while Coleen and Chere did discuss business and that week’s order for the Crawfish Hole was entered into Coleen’s computer during the trip from Natchitoches to Shreveport, the trip was not employment related. The two ladies scouted out the location of the doctor’s office, then had lunch at Posado’s Restaurant. The mammogram appointment was next, and the friends wrapped up their day in Shreveport with some shopping, heading back to Natchitoches. At the time of her accident, Coleen was neither actively engaged in the performance of work-related duties, nor was she at a place where her employment activities took her. The WCJ did not err in finding that claimant, Coleen Biscamp, was not in the course of her employment with defendant, Sysco, when she sustained her injuries.

Conclusion

For the reasons set forth above, the judgment of the WCJ is AFFIRMED.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Leandez McGEE v. BRAND SERVICES, INC.
    No. 2010-CA-0307.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 2011.

      Charlsey Wolff, Wolff & Wolff, New Orleans, LA, Bennett Wolff, Law Offices of Wolff & Wolff, Metairie, LA, for Plain-tifi/Appellee.
    Stephen M. Whitlow, Keogh Cox & Wilson, Ltd., Baton Rouge, LA, for Defen-danfyAppellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, and Judge TERRI F. LOVE).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| xBrand Services, Inc. (Brand) appeals from a judgment of the Office of Workers’ Compensation, District 8, for the Parish of Orleans. The hearing officer found that the claimant, Leandez McGee, suffered a work-related injury on April 15, 2008, while in the course and scope of his employment by Brand as a scaffold carpenter. Mr. McGee was awarded ongoing medical care necessary and related to the accident in conformity with La. R.S. 23:1203(A) and the guidelines established in the Louisiana Worker’s Compensation Act (LWCA), including lumbar ESIs, facet injections, lumbar CT scan and MMPI. He was awarded Temporary Total Disability (TTD) benefits from April 15, 2008 at the rate of $522.00 per week. The hearing officer found that Brand failed reasonably to controvert Mr. McGee’s claim, and awarded the following penalties:

$2,000.00 for Brand’s failure to pay timely the Radiology Group’s bill dated May 12, 2008;

$2,000.00 for Brand’s failure to institute and timely pay TTD benefits pursuant to La.R.S. 23:1201(F) and the LWCA;

12$2,000.00 for Brand’s failure to authorize timely medical treatment ordered by Dr. Warren Bourgeois, pursuant to La. R.S. 23:1201(F);

$2,000.00 for Brand’s failure to authorize timely treatment by Mr. McGee’s choice of orthopedic surgeon, pursuant to La. R.S. 23:1201(F).

Mr. McGee was also awarded attorney’s fees in the amount of $7,500.00 and all costs of the proceedings. The hearing officer awarded interest on the judgment as provided by law.

Brand assigns three errors, contending that (1) the hearing officer applied an inappropriate legal standard to Mr. McGee’s claim of TTD; (2) the hearing officer applied an inappropriate standard of proof to the issue of whether Brand timely approved Mr. McGee’s treatment by Dr. Bourgeois; and (3) the hearing officer’s conclusion that Brand did not reasonably controvert Mr. McGee’s claims is manifestly erroneous. For the reasons that follow, we affirm the decision below.

The legal claims set forth in the first two assignments of error are reviewed de novo, and the hearing officer’s factual conclusion concerning Brand’s reasonableness, vel non, in handling the claims is reviewed under the manifest error standard of review. Williams v. Children’s Hospital, 07-0464, p. 2 (La.App. 4 Cir. 1/23/08), 996 So.2d 291, 293, citing Seal v. Gaylord Container Corp., 97-0688, p. 4 (La.12/2/97), 704 So.2d 1161, 1164, and Booker v. International Rivercenter, 04-1980 (La.App. 4 Cir. 6/22/05), 905 So.2d 498.

The controlling law applicable to this case is found in sub-parts A and B of Part II of the LWCA. In sub-part A, “General Provisions”, La. R.S. 23:1201 provides for the time and place of payment of compensation benefits, the consequences of an employer’s failure to pay and authorize timely, and for penalties and attorney fees. Sub-part B, “Disability Provisions”, provides in La. |sR.S. 23:1221(1) for compensation for an employee’s TTD, including a definition of TTD and imposing the clear and convincing burden of proof on the employee.

The judgment does not specifically advert to the TTD standards of proof set forth in La. R.S. 23:1221(1). The record contains neither written nor oral reasons for judgment. By Order issued on February 4, 2011, the Louisiana Supreme Court remanded the case to this Court for argument and opinion, directing us to apply the manifest error standard of review. Implicit in this Order is the Supreme Court’s conclusion that the trial court judgment is free of legal error, in effect determining that the appellant’s first two assignments of error are without merit.

In the appellant’s remaining assignment of error, it contends that the hearing officer’s conclusions were manifestly erroneous. In reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Where there are two permissible views of the evidence, the fact Lfinder’s choice between them cannot be manifestly erroneous or clearly wrong. When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings. Only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989). Essentially, the issue before this Court on remand is to determine whether the evidence adduced at the hearing offers reasonable support for the hearing officer’s conclusion that Mr. McGee proved his entitlement to the award by clear and convincing evidence, and demonstrated his entitlement to statutory penalties and attorney’s fees.

Mr. McGee testified at the hearing that he graduated from Booker T. Washington High School in 1989. Upon graduation he entered the workforce, working offshore with Universal Catering for three years and subsequently as a laborer for Murphy Oil and Mobil Oil for several years. He then obtained training and certification as a pipefitter and worked in that capacity for Boh Brothers for ten years. He then performed a scaffolding job, for which he did not receive any special training, and then worked for BellSouth. He worked for an unidentified company and then for two years offshore for Gulf South Scaffold Company as a [¡¡carpenter, for which he received on-the-job training. He and his brother, Eugene McGee, then sought and obtained a job around 2007 on land with Brand. They worked for Brand out of Morgan City for five or six months, commuting from New Orleans, whereupon they obtained transfers to the Conoco Phillips Oil Refinery in 2008. Mr. McGee worked with his brother and the other members of his crew, Raul, James, and Pablo at the time of his accident on April 15, 2008. He served as a carpenter, his brother was the lead hand, Pablo was a helper and James was a ground man. Kevin Hunter was in charge of Mr. McGee’s crew and another crew. Mr. McGee’s crew worked four ten-hour shifts, from 6:30 to 5 Mondays through Thursdays. He sometimes worked overtime by staying longer, for which he was compensated at a higher rate for those hours in excess of forty hours per week. He received bonus checks weekly provided the crew members did not have any injuries or miss a day during that week. Prior to his accident, no member of his crew was injured on the job, and he received a bonus check every week.

Mr. McGee’s starting hourly rate was $16.01. The weekly bonus was $115.20. This pay scale was in effect on March 30, 2008. Prior to the accident, his hourly rate was increased to $18.89 and the bonus was eliminated. Mr. McGee testified that, when employed by Brand, he made himself available for a full forty-hour week each week, was a full-time employee, but did not receive health care benefits or health insurance.

Mr. McGee testified that on April 15, 2008, he and his crew were working in a heating unit at the Conoco Phillips site, with Mr. Hunter as the foreman. Mr. McGee was in the back of the unit, building a scaffold, with a man identified as | ¡¡Lionel, with the last of the tow boards being used in the process. Raul was in the front pulling on a gate on which he had set a ladder; however, Raul had not secured the ladder bracket, causing the ladder to have no support. Mr. McGee got on the ladder, climbed up about twenty-five feet, and when he put his second D-ring to the ladder, it bent and he fell backward twenty-five feet. His back and left side hit first, and Mr. Hunter caught his head. Then Mr. McGee bounced over and hit the scaffold with the right side of his body. Mr. Hunter’s leg was broken in his attempt to catch Mr. McGee. Within a few days of the accident, the entire crew was laid off or fired at Conoco’s request.

Mr. McGee testified that his right ankle was badly sprained, his left ankle was fractured, he had a bad clot on the side of his thigh, his back was injured, and the ladder hit his neck and cut his nose, requiring stitches. Eugene, James, Pablo and Raul witnessed the accident, with Raul having seen everything, but, Mr. McGee testified, no one tried to warn him. An ambulance took him to Ochsner Hospital where he was examined and given medication. The Ochsner Medical Center report indicates that Mr. McGee received a prescription for Flexoril, 10 mg three times daily, and Per-cocet every four hours as needed. He was then taken back to his mother’s home, where he was living, to recover. He remained at his mother’s home on April 16 and 17.

According to Mr. McGee, on April 18, two of Brand’s “safety guys”, one of whom he identified as “Jose”, took him and his mother to see Lisa Hawk, M.D. Dr. Hawk noted that Mr. McGee’s ankle was fractured, a fact not noticed at the hospital. He was complaining at the time of pain in his ankles, low back, and right hip, and of the bruise to his thigh. Dr. Hawk examined him, obtained an x-ray of his ankle, prescribed Oxycodone and Flexoril, and provided Mr. McGee with a |7new set of crutches. Mr. McGee had never taken these medications prior to his accident. Dr. Hawk told him not to drink or drive, and advised him to rest and elevate his leg. The Brand employees returned Mr. McGee and his mother to her home.

According to a Work Status Report of Dr. Hawk’s examination dated April 18, 2008, Mr. McGee had the following capabilities: 100% sitting and grasp/pinch; 50% reach above shoulder; 25% walking, standing, and reach beyond forearm limits; and no capability to bend, squat, twist, crawl, climb, or work on heights. His work status was listed as “may work with restrictions or modifications.”

Mr. McGee testified that on April 22, 2008, one of the Brand employees, Jose, again took him to see Dr. Hawk. She did not discuss his returning to work at that time, and he was still on crutches. Jose stayed with Mr. McGee during the examination, but did not discuss returning to work or have any conversation with Dr. Hawk in Mr. McGee’s presence.

According to a Work Status Report of Dr. Hawk’s examination dated April 22, 2008, Mr. McGee had negligible (ten pounds maximum) lift and push capability, eliciting a work level of “sedentary”. He had the following capabilities: 100%: sitting, grasp and pinch; 25% walking or standing; no capability to bend, squat, twist, crawl, climb, work on heights, reach above shoulder, or reach beyond forearm limits. Again, his work status was noted as “may work with restrictions or modifications.” His follow up indicates he was not discharged from care, was to have a return appointment in four to five days, and was referred to physical therapy for evaluation and treatment.

| ^According to the report of Thompson M. Dietz, M.D., of Clearview Medical Imaging, dated April 22, 2008 and directed to Dr. Hawk, findings of the MRI of the left thigh were consistent with a significant lateral aspect left thigh muscle contusion involving the vastus lateralis and, less prominently, subjacent vastus intermedius muscles. That MRI indicated overlying broad-based deep subcutaneous elliptical fluid collection consistent with seroma/he-matoma measuring up to 16 cm in length, 11 cm in AP dimension and 2 to 3 cm depth. Furthermore, the left femur appeared intact with a normal, uniform pattern of marrow space signal intensity. The record also contains Dr. Dietz’ report of the MRI of Mr. McGee’s hips, with attention to the left side. The report indicated no abnormalities of the joints and no evidence of occult osseous injury, fracture, contusion, or joint effusion. Dr. Dietz reported that an MRI of Mr. McGee’s lumbar spine showed slight lumbar curvature, but otherwise normal alignment and no evidence of spondylolysis or spondylolis-thesis. There was no evidence of occult osseous injury in the lumbar region. The report noted congenital or developmental relative narrowing of the lumbar spinal canal and superimposed mild degenerative changes at L3-4, L4-5 levels, with mild-moderate lower lumbar foraminal narrowing, most prominent at the L5-S1, L4-5 levels.

The record contains a copy of a letter from Casey Dufour, Brand’s Divisional Safety Manager for the New Orleans area, to Mr. McGee dated May 2, 2008. The letter advises Mr. McGee that he had been released to work with restrictions, enclosing the associated paperwork. The letter advised Mr. McGee to report to Brand’s hiring center on Airline Highway in St. Rose, Louisiana for assignment, and provided Mr. Dufour’s contact information. The record contains an unopened certified mail envelope from Brand addressed to Mr. McGee at his | ^address, marked “notified 5-8-09”, “Final Notice”, and “unclaimed.” Mr. McGee and his mother denied having received notice of this mailing. Mr. McGee testified that he did not have any knowledge of a purported job offer from Brand in the weeks following the accident. As of May 2, 2008, he was still on crutches and taking Flexoril and Hy-drocodone, and opined that he would not have been able to work with Brand in any position. Mr. McGee denied having received a job offer either directly from Brand or through his counsel following the accident.

On May 12, 2008, Mr. McGee went to Touro Infirmary’s emergency room with the same back complaints. He testified that he was not scheduled to see Dr. Hawk after the April 22, 2008 appointment, and had not heard further from the Brand safety employees. The Touro doctor examined him, recommended therapy and gave him a prescription for Oxycodone and Flexoril. The emergency room report indicates a prescription for Toridal and Flex-oril. He also received an injection of Tori-dal, and a recommendation that he see a specialist. He remained on crutches from six to eight weeks.

A report of the Touro Department of Radiology from a radiological examination of Mr. McGee’s lumbar spine, dated May 12, 2008, indicates normal alignment and curvature without fracture or subluxation or degenerative changes. The impression given was “normal examination.” The Department’s examination of Mr. McGee’s sacrum also showed no fracture, lytic or blastic changes, and was given a “normal examination” impression. There is no evidence that Mr. McGee sought further treatment during the ensuing four and a half months.

|10On October 3, 2008, Mr. McGee saw Warren R. Bourgeois, III, M.D., of Audubon Orthopedics and Sports Medicine, complaining of right hip pain. Dr. Bourgeois ordered an MRI of his lower back and left thigh and recommended physical therapy and a blanket MRI. Based on Dr. Bourgeois’ referral, Mr. McGee attended a therapy session with Joseph Shine, Jr., P. T., at the Louisiana State University Medical Center. Mr. McGee testified that the result of that session was that he was in pain and could not move for a while. He discussed the therapy with Dr. Bourgeois, who advised him to discontinue the physical therapy. Dr. Bourgeois gave him prescriptions for pain, and recommended epidural steroid injections (ESI) which Brand denied. Mr. McGee’s testimony that Brand denied the ESIs appears to be based on the results of his independent medical examination by orthopedist Robert A. Steiner, M.D. On March 10, 2009, Dr. Steiner reported to Angela Klemenakis of Broad-spire, the firm handling Mr. McGee’s compensation claim on Brand’s behalf, that although Dr. Bourgeois had recommended ESIs and facet blocks for pain management, he disagreed. Dr. Steiner opined, “It is unlikely that facet injections and epidural steroid injections would be helpful for this patient in light of the fact that he is displaying pain-type behavior and there was lack of effort during physical therapy testing. I would not send this patient for ESI or facet injections. He may continue working as a material inspector.”

The record contains physical therapist Shine’s initial evaluation, dated November 18, 2008. Mr. Shine concluded that Mr. McGee had had a significant fall, with findings consistent with lumbar and right hip strain, but his high ^subjective complaint of pain and uncharacteristic movements with simple tasks such as active and passive motion, light palpation, and general mat mobility “is odd considering the injury occurred 7 months ago. No significant muscular or neurological findings were noted.” Mr. Shine recommended a treatment plan in which Mr. McGee would be seen three times a week for four weeks for lumbar and right hip stabilization exercises, a general conditioning program, stretching, and posture awareness. His goals were to improve pain free lumbar 'range of motion by fifty percent, decrease pain complaints by fifty percent, increase tolerance to physical activity, perform a brief lift test, and ultimately progress to an independent home program.

The record contains a report from Mr. Shine co-signed by Jennifer Culotta, S.P. T., dated November 19, 2008. According to that report, prepared by the physical therapy service to which Mr. McGee’s chosen physician referred him, Mr. McGee continued to report pain -with exercise, claiming that he could walk only four to five blocks before his back would hurt. Upon resting, his back stiffened. The technicians reported that Mr. McGee presented to them with an antalgic gait pattern, claiming his back was burning. He denied any radiating pain down his posterior thigh and said he could not walk on the treadmill and refused to pedal the bike a second time. He required increased rest breaks between exercises, secondary to a subjective claim of pain. The technicians noted that Mr. McGee was able to walk between the exercises with minimal antalgic gait, and was observed walking across to the parking garage after the therapy session “without any gait deviation.” The plan at that time was to continue to monitor Mr. McGee’s claims of pain with exercise and gauge his full effort. He was to be given a | ^questionnaire and pain diagram on his next visit, and was given hamstring stretches to perform at home.

By letter of November 25, 2008, Mr. Shine reported to Dr. Bourgeois that he had evaluated Mr. McGee for his complaint of low back pain on November 13th and had seen him again on November 19th; however, Mr. McGee had missed four appointments as of the date of the letter. The letter concludes, “Based on the inconsistent signs during his initial evaluation, his inconsistent attendance in physical therapy and the lack of any significant medical findings, I would like to recommend doing an FCE with Mr. McGee to get a feel for his functional abilities on returning back to the work force in general.”

Mr. McGee testified that Dr. Bourgeois placed him on no work status and continues to treat him for the results of the fall. Dr. Bourgeois also recommended psychological counseling to deal with Mr. McGee’s accident-related depression, anxiety, and sad feelings. Mr. McGee testified that he had not experienced these symptoms prior to the accident and understands that Dr. Bourgeois continues to recommend psychological counseling.

The record contains a report from William Romani, M.C., of Diagnostic Imaging Services of an MRI of Mr. McGee’s right hip, provided at the request of Dr. Bourgeois. The doctor’s impression was of a small focus of hyperintense signal at the muscle tendon unit of the right gluteus medius that was felt to reflect a strain of the gluteus medius muscle tendon complex. There was no evidence of bone pathology or muscular abnormality. Dr. Ro-mani noted the presence of mild arthritic changes affecting the bilateral hips, being more pronounced toward the left.

| iaMr. McGee testified that Brand referred him to their physician, Dr. Steiner, of Drs. Nutik & Steiner, APMC, specialists in Orthopedic Surgery, whom he saw initially on December 2, 2008. He complained to Dr. Steiner of daily lower back and right hip pain that caused him to be unable to walk more than five or six blocks without pain and required him to sit down. Mr. McGee testified that Dr. Steiner did not tell him that he could go back to work, and did not recall Dr. Steiner’s recommendations.

Dr. Steiner’s report to Ms. Angela Klemenakis of Broadspire reflects the result of his independent medical examination of Mr. McGee in December, 2008. The report notes Mr. McGee’s subjective complaints of daily, recurrent low back and right hip pain. The report indicates that Mr. McGee told him he had had only one physical therapy treatment and has been out of medication for about two weeks. The examination revealed no lower extremity weakness and no sensory deficit to light touch. Mr. McGee’s reflexes at his knees and ankles were symmetrical and straight leg raise on the right in sitting and supine positions caused him to complain of a tight sensation in the right hip, but no radiating pain. Left leg raises were negative. Dr. Steiner noted that Mr. McGee’s right leg appeared to be longer than his left leg. Dr. Steiner took X-rays that showed no abnormalities of the hips and sacroiliac joints and no degenerative changes or fractures or areas of bony destruction. The report also notes what Dr. Steiner characterized as the generally insignificant results of the MRIs taken on April 22, 2008 and of October 24, 2008. Dr. Steiner concluded that his findings suggested right sacroiliac dysfunction consistent with the mechanism of Mr. McGee’s fall from the scaffold. Dr. Steiner recommended sacroiliac mobilization and stabilization specific physical therapy. In the meantime, he placed him at a 114sedentary physical demand level where “he may work as long as he does not have to do prolonged standing and walking. He should not do any bending, stooping, twisting or lifting activities at this point in time.” He believed treatment should last for about six weeks following mobilization of Mr. McGee’s sacroiliac joint to a normal position.

Mr. McGee testified that in January he was referred to physical therapy, but the weather had changed and he was in so much pain he could not complete the therapy. He did not discuss this therapy with Dr. Bourgeois. He admitted that he received a job offer from Brand in January for some sort of light duty as a Material Inspector; however, he testified to his understanding that “My doctors, they had me on no work status.” This is consistent with Dr. Bourgeois’ reports to Broadspire dated October 3, 2008, October 31, 2008, December 2, 2008 in which he indicates that Mr. McGee is not able to return to work.

Following Dr. Steiner’s medical examination on December 2, 2008, Mary Anne Lansden, R.M., B.S.N, Mr. McGee’s medical case manager at Broadspire, wrote to Dr. Steiner on January 7, 2009, enclosing a copy of the modified job as Material Inspector developed by Brand in accordance with the restrictions outlined by Dr. Steiner in his initial report. Dr. Steiner signed off on the letter, indicating that he reviewed the requirements of the job of Material Inspector and approved it for Mr. McGee. The record contains a copy of a letter dated January 19, 2009 from Casey Dufour, employee health services manager for Brand’s New Orleans area, offering Mr. McGee a position as a material inspector on Airline Highway in St. Rose, Louisiana, beginning on January 26, 2009 with weekly hours Monday through Friday from 7 a.m. to 3:30 p.m., and wages of $17.63 per hour. The letter indicated that the physical requirements of the position had been approved by the |15doctor, and that Mr. McGee would be assigned only to tasks consistent with his physical abilities, skills, and knowledge. Mr. Dufour wrote that as Mr. McGee continued to progress toward complete recovery, Brand would work with the physician either to modify the position or create another light-duty position commensurate with the level of his recovery. The job offer was stated to be open for five work days from Mr. McGee’s receipt of the letter.

At the hearing, Mr. McGee denied having received the letter at his home or having been notified of the letter by his attorney, and denied having been aware of the letter. However, he testified earlier that he had discussed the job offer with Dr. Bourgeois, who, he claims, suggested he remain on no work status. His mother, Lily McGee Hall, also contradicted his denial of having received the letter. She testified that she saw the letter, and questioned at the time what “light duty” consisted of, if her son’s doctor was saying he was unable to work.

Mr. McGee testified that at the time of the hearing, he was still having severe back pain, depression, anxiety, and trouble sleeping and walking six to seven or eight blocks. He denied any continuing problems with his nose, neck, right thigh, or bruised thigh. When asked if he could perform the duty of sorting one-pound scaffold clamps while seated, he answered, “Probably, probably not, I don’t know. I know my back would allow me to do very little.” He admitted having seen the January 19, 2009 letter outlining his modified duty job offer, and that he had never shown the material to Dr. Bourgeois.

The record contains a copy of Dr. Steiner’s letter of June 9, 2009 to Ms. Kleme-nakis, noting that Mr. McGee continues to report recurrent low back pain, tingling and burning sensation in his legs with prolonged walking. Dr. Steiner notes no antalgic component to Mr. McGee’s gait, and that he was able to stand |1fiwithout scoliosis or list. Pinching of the skin and pseudorotation tests were positive for lower back pain. Lower extremity motor, sensory and deep tendon reflex exams were normal, as were sitting and supine straight leg raise tests. Dr. Steiner found no evidence of nerve root impingement, nerve root irritation, or neurologic deficit in the lumbar region. He recommended continued conservative management with the use of anti-inflammatory medications and the discontinuation of narcotic analgesics. Dr. Steiner concluded, “I do not see a medical contraindication for this patient working, but he should avoid heavy labor.”

According to Mr. McGee, Brand has not provided him with a weekly benefits check or any money in the form of an indemnity check, although Brand did reimburse him for his first two prescriptions. On cross-examination, he admitted that the workers’ compensation carrier reimbursed him for $312.01 for prescriptions on November 20, 2008, and that he had not submitted the remainder of his $469.47 Walgreen’s bill to Brand for payment. Although he had testified that Touro was billing him for $712.48 for emergency room services, he admitted he had not been advised that this bill was paid on November 10, 2008. He admitted on cross-examination that he did not have to pay out of pocket for any medical treatment other than these pharmacy charges, which either were paid or not submitted for payment.

In June of 2008, he sought approval from Brand to see neurologist Daniel Tra-hant, M.D., neurosurgeon Rand Voorhies, M.D., and a psychiatrist, but Brand has not authorized him to do so. Mr. McGee denied having any secretarial or computer skills, and his job history reflects that he has never held an office or other indoor job.

117Mr. McGee testified that he last saw Dr. Bourgeois within a month of the hearing, and that the doctor recommended a CT scan of the lumbar spine, which Brand did not approve, and continued his placement on a no work status. The record contains a report dated January 20, 2009 from radiologist Jash Patel, M.D., of Doctors Imaging Services, recommending a CT scan to better evaluate the diameters of Mr. McGee’s spinal canal in the lower lumbar region. The record also contains a copy of a letter dated March 25, 2009 from defense counsel to Mr. McGee’s attorney advising that Brand approved the CT scan recommended by Dr. Bourgeois, asking that the facility coordinate the procedure through Ms. Angela Klemenakis of Broad-spire. Dr. Patel’s recommendation contained in his January 20, 2009 report to Dr. Bourgeois, was faxed to Brand’s counsel by transmission dated February 12, 2009, 2:45 p.m. Brand approved the CT scan recommendation and communicated its approval to Mr. McGee’s attorney by the letter dated March 25, 2009. It appears that no further action was taken prior to the hearing by Mr. McGee or his attorneys to arrange for the CT scan.

Mr. McGee testified on cross-examination that despite the series of examinations and three MRIs, the cause of his pain remains of unknown origin. On re-direct examination, he denied any discussions with Dr. Bourgeois of possible herniations in his back. When questioned about Dr. Hawk’s recommendation that he see ISR Physical Therapy, he admitted that a Brand employee was willing to pick him up and take him to therapy the first time. He agreed to go on the eighteenth and twenty-second of April, 2008, but testified that after that time, the Brand employees did not contact him. Mr. McGee denied that the employees were told he would not agree to further physical therapy.

11RMr. McGee denied that he had ever walked normally after the accident. He denied any knowledge of the appointments scheduled with Mr. Shine for November 24, 26, and December 3, 2008. He admitted that Dr. Steiner recommended physical therapy at Baudry Physical Therapy, that he attended one therapy session and did not continue to pursue the recommended therapy. Mr. McGee denied that he was faking his symptoms. The Baudry report dated January 28, 2009, indicates:

No obvious myotomal weakness noted, but effort was lacking with testing. Movement testing: pain reported with all trunk and left ROM (range of motion) tested. Movement appeared self-limited. Gait: exaggerated limp with decreased weight bearing. Waddell’s testing: pain reported with simulated trunk rotation and simulated compression.
The assessment of Mr. McGee was inconclusive secondary to high pain complaints with all movement testing, and self-limited behavior. Patient was resistant to passive ROM testing, SLR, SI testing, and any other manual testing. We would be willing to work with Mr. McGee if desired, to work on conditioning and strengthening, but an improved level of effort would be required to have any success.

Upon Dr. Hawk’s order of physical therapy for Mr. McGee, Mr. Dufour arranged for therapy with ISR. When he went to Mr. McGee’s home to pick him up for the therapy appointment, Mrs. Hall told him that Mr. McGee would no longer be going to Brand’s doctor. She provided no further explanation.

Mr. Dufour, Brand’s safety manager, identified his letter of May 2, 2008 offering Mr. McGee light duty work. He sent the letter by certified mail, but received the unopened envelope from the postal service with the indication that the postman had made a final attempt but the envelope was unclaimed. Mr. Dufour 119testified that he never received any contact from Mr. McGee or his attorneys since that time about a return to work.

Mr. Dufour identified his letter of January 19, 2009 offering Mr. McGee the light duty position of materials inspector. This offer was made based on Dr. Steiner’s report indicating that Mr. McGee was able to perform light duty, sedentary work. The letter also offered to make additional accommodations based upon restrictions provided by a doctor. Mr. Dufour testified that Mr. McGee did not reply to this letter, and that he has not received any communication from Mr. McGee or his representatives concerning his return to work.

In Buxton v. Iowa Police Department, 09-0520, p. 21 (La.10/20/09), 23 So.3d 275, 288-89, the Louisiana Supreme Court held:

A workers’ compensation claimant seeking temporary ... total disability benefits bears the burden of proving by clear and convincing evidence, his inability to engage in any type of employment. [Citation omitted] This burden of proof is statutorily mandated [citing La. R.S. 23:1221(l)(a) and (c) ].
Thus, to be entitled to TTD benefits a claimant must present clear and convincing evidence that he is unable to work at any type of employment whatsoever because of his physical condition; the fact that he would be working in pain is not proof that he is totally disabled.

Ultimately, the court found that the hearing officer’s decision to award TTD benefits was based on one statement by the examining physician that the claimant needed “time to recover”. As such, the court held, “Clearly, this was not clear and convincing evidence of total disability,” and found the award of TTD benefits to have been manifestly erroneous. Buxton at p. 23, 28 So.3d at 289-90.

This Court held in Jackson v. Sysco Food Services, 05-1304, p. 1-2 (La.App. 4 Cir. 6/7/06), 934 So.2d 191, 193 that, in determining whether a claimant 12nhas met his burden of proving by clear and convincing evidence his entitlement to TTD benefits, the hearing officer must weigh both medical and lay evidence. Furthermore, the claimant must introduce objective medical evidence to sustain his claim by clear and convincing evidence. Id.

We find that the evidence adduced at the hearing offers reasonable support for the hearing officer’s finding of temporary total disability. It is clear from the hearing officer’s conclusions that he accepted the testimony of Mr. McGee and Dr. Bourgeois’ report restricting Mr. McGee from any work. While the legislature, in La. R.S. 23:1221(l)(c), set a very strict and high standard for the award of benefits for TTD, a standard that does not allow exceptions for odd-lot employment, sheltered employment, or employment while working in any degree of pain, we find that the record, when reviewed in its entirety, provides clear and convincing evidence of Mr. McGee’s inability to perform any work at all, whether or not in odd-lot jobs, sheltered employment, or any degree of pain, as required by the statute.

Brand services claims that the hearing officer was manifestly erroneous in finding that Brand did not controvert reasonably Mr. McGee’s claim for TTD and other benefits.

A claimant’s entitlement to penalties and attorney’s fees is controlled by La. R.S. 23:1201 F, which provides in relevant part:

Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in l^the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or 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.

It is Brand’s position that there is an absence of evidence that it caused Mr. McGee to delay his initial visit with Dr. Bourgeois until October of 2008. The original 1008 filed by Mr. McGee requested that he be treated by Dr. Waguespack. When Mr. McGee changed counsel, he also requested on June 25, 2008, a change of physician from Dr. Waguespack to Dr. Bourgeois. Brand argues that La. R.S. 23:1121 B(l) does not require employer approval to change physicians, so that it cannot be liable to Mr. McGee for any inappropriate delay of an approval that is not required. There is no evidence that Brand authorized Mr. McGee to see Dr. Waguespack initially, and, Mr. McGee argues, it was this lack of action that led to his obtaining new counsel and requesting approval to see Dr. Bourgeois. Absent evidence of Brand’s approval of Dr. Wag-uespack, or timely approval of Dr. Bourgeois, it does not appear that the hearing officer erred in applying La. R.S. 23:1121(b) and imposing the statutory penalty for the resulting delay in the commencement of Mr. McGee’s treatment by the physician of his choice. See, Livaccari v. Alden Engineering Service, 00-0526 (La.App. 4 Cir. 3/21/01), 785 So.2d 915.

Brand also claims that it relied in good faith on medical records of Dr. Steiner, Dr. Hawk, and physical therapist Joe Shine to support its belief that Mr. [22McGee was capable of doing light duty work. The evidence that Brand offered such work to Mr. McGee is controverted, and the hearing officer reasonably could have accepted Mr. McGee’s testimony that he was not offered work that would be acceptable in his physician’s opinion. The compensation statute requires that medical benefits be paid within sixty days of receipt by the employer or its insurer of written notice of the bill. L. R.S. 23:1201 E. While the record indicates that all prescription bills submitted by Mr. McGee, and the Touro Infirmary’s emergency room bill were paid timely, Brand offers no justification for the six month delay in paying the statement from The Radiology Group. There is also record evidence supporting Mr. McGee’s claim that Brand arbitrarily failed to authorize the psychological evaluation suggested by its own physician, Dr. Steiner. Based on the evidence of record, we cannot say that the hearing officer was manifestly erroneous or clearly wrong in imposing statutory penalties and attorney’s fees.

For the foregoing reasons, we affirm the judgment of the worker’s compensation office.

AFFIRMED.

      . La.R.S. 23:1221 provides in relevant part: "Compensation shall be paid under this Chapter in accordance with the following schedule of payments: (1) Temporary total, (a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability, (b) ... compensation for temporary disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including, but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, (c) ... compensation for [TTD] shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

      . Raul spoke no English, and Mr. McGee spoke no Spanish.

      . Pablo spoke very little English.

      . Mr. McGee's mother testified at the hearing that when the Brand employee came to her home to take Mr. McGee to his follow-up appointment, she told them he would no longer participate in the physical therapy.

      . Brand had offered Mr. McGee light duty work as a material inspector. Apparently, Dr. Steiner understood at the time of his report that Mr. McGee had accepted the offer, although that was not the case.

      . La. R.S. 23:1121 provides in relevant part:
      B. (1) The employee shall have the right to select one treating physician in any field or specialty... .After his initial choice the employee shall obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.