author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. James Chris MOORMAN.
    No. 11-CA-285.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintifi/Appellee.
    Wiley J. Beevers, Raylyn R. Beevers, Steven M. Mauterer, Michael F. Somoza, Jared M. Newchurch, Attorneys at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKS HOMBERG WICKER, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

| James Moorman appeals a judgment denying his motion to expunge his felony record. For the following reasons, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On April 22, 1993, a Jefferson Parish Grand Jury returned an indictment charging appellant, James Moorman, with aggravated rape, a violation of LSA-R.S. 14:42, and aggravated oral sexual battery, a violation of LSA-R.S. 14:43.4. At the June 17, 1993 arraignment, Moorman pled not guilty. On November 10, 1993, the State amended count one of the indictment to charge Moorman with incest, a violation of LSA-R.S. 14:78, and dismissed count two. After the State amended the indictment, Moorman withdrew his plea of not guilty and, pursuant to LSA-C.Cr.P. art. 893, pled guilty as charged to a violation of LSA-R.S. 14:78. The trial court then sentenced Moorman to imprisonment at hard labor for three Isyears, suspended the sentence, and placed defendant on five years active probation subject to special conditions.

In December 1994, Moorman filed a motion to terminate active probation, which the trial court granted on January 5, 1995. Moorman also filed a motion to set aside conviction asserting that he pled guilty pursuant to LSA-C.Cr.P. art. 893, that his probation has since been terminated, and that he has fulfilled all of the conditions of his suspended sentence. On November 16, 1995, the trial court granted Moorman’s motion to set aside conviction, and on December 6, 1995, a judgment was entered setting aside Moorman’s conviction.

On September 15, 2010, Moorman filed a motion for expungement of his felony record relating to the instant offense. After considering the arguments of counsel, the trial court, on December 10, 2010, denied the motion finding that the right to an expungement is a procedural right, not a substantive right. He noted, “And the procedure has to be the procedure that is being followed today, so as the expungement statute states today, this cannot be expunged.” Moorman now appeals this judgment.

On appeal, Moorman contends that the trial court erred in denying his motion for expungement of felony record. He reasons that the law in effect in 1993, when he entered his guilty plea pursuant to LSA-C.Cr.P. art. 893, allowed the court to set aside the conviction and dismiss the prosecution, and the dismissal of the prosecution had the same effect of acquittal which would allow Moorman to have his record expunged pursuant to LSA-R.S. In his appellate brief, Moorman further points out that he pled guilty based on his belief that if he successfully completed his probation and remained without a criminal history, he could ultimately have the instant charges dismissed and expunged. He claims that 14the trial court’s denial of his motion for expungement effectively invalidated the plea agreement that he entered into with the State.

On November 8, 2011, Moorman filed a motion for leave of court “to file a concise Reply Brief to assist the court with deliberations.” The State filed an objection to the reply brief, asserting that the brief was untimely filed and should not be considered by the Court. This Court, on November 9, 2011, referred this motion to the merits of the case. As a preliminary matter, we must rule on this motion. Although Rule 2-12.7 of the Uniform Rules-Courts of Appeal provides that the reply brief, if any, shall be filed not later than ten calendar days after the appellee’s brief is filed, this Court has the authority to accept further briefs by leave of court. See Rule 2-12.6 of the Uniform Rules-Courts of Appeal. Accordingly, we grant Moorman’s motion for leave of court to file a reply brief.

We now turn to the merits of Moorman’s argument that the trial judge erred in denying his motion for expungement.

LAW AND ANALYSIS

LSA-R.S. 44:9 governs the ex-pungement of criminal records. State v. Green, 08-273 (La.App. 5 Cir. 9/30/08), 997 So.2d 42, 44. Only certain specified criminal arrest and conviction records may be expunged under the authority of LSA-R.S. 44:9. Criminal records that do not meet the particular circumstances described in the statute are not eligible for expungement. State v. Gerchow, 09-1055 (La.App. 1 Cir. 3/11/10), 36 So.3d 304. We must now determine whether Moorman’s conviction of a felony offense, which was later dismissed under the authority of LSA-C.Cr.P. art. 893, meets any of the criteria for expungement in LSA-R.S. 44:9.

We have reviewed the applicable provisions of LSA-R.S. 44:9 and conclude that Moorman was not eligible for expungement of his felony record at the time of his guilty plea or at the time he sought ex-pungement. In State v. Gerchow, 36 So.3d at 306-307, the First Circuit gave an excellent analysis of the history of LSA-R.S. 44:9 relating to the expungement of felony records. The First Circuit explained as follows:

When first enacted in 1970, LSA-R.S. 44:9 only allowed expungement of records of arrests for violations of municipal ordinances or state misdemeanors when those proceedings had been disposed of by nolle prosequi, acquittal, or dismissal. See 1970 La. Acts, No. 445, § 1. Records of felony arrests and prosecutions were first mentioned by the addition of subsection E in 1978, which stated that no court could order the destruction of any record of the arrest and prosecution of any person convicted of a felony, including a conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure. 1978 La. Acts, No. 570, § 1. Although the 1978 amendment addressed and prohibited destruction of felony conviction records, the statute did not discuss ex-pungement of such records until it was again amended by 1981 La. Acts, No. 936, § 1, with a re-write of subsection C. That subsection allowed the record of an arrest for the violation of a state statute classified as a felony to be expunged under certain conditions in which no conviction resulted, but said nothing about allowing expungement if such an arrest resulted in a conviction. This distinction was continued in all subsequent versions of the statute....
Subsection E of LSA-R.S. 44:9 was amended and re-enacted, effective August 15, 1995, to state the following:
(1) No court shall order the destruction of any record of the arrest and prosecution of any person convicted of a felony, including a conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure, except after a contradictory hearing with the district attorney and the arresting law enforcement agency.
(2) No court shall order the ex-pungement or destruction of any record of the arrest and prosecution of any person convicted of a sex offense as defined by R.S. 15:542(E), involving a child under the age of seventeen years, except after a contradictory hearing with the district attorney and the arresting law enforcement agency. The provisions of this Paragraph shall apply to all records of any proceedings, order, judgment, or other action under Code of Criminal Procedure Article 893.
1995 La. Acts, No. 295, § 1. The first paragraph still referred only to the destruction of felony criminal records involving convictions, while the second paragraph discussed both expungement and destruction of such records, but only as they pertained to the conviction of a sex offense. A subsequent amendment to the second | paragraph totally eliminated the possible expungement or destruction of such records involving a sex offense. See 1999 La. Acts, No. 1111, § 1.

In the instant case, by the time Moor-man sought expungement of his record in December of 2010, LSA-R.S. 44:9 E(2) read as follows:

No court shall order the expungement or destruction of any record of the arrest and prosecution of any person convicted of a sex offense as defined by R.S. 15:541, involving a child under the age of seventeen years. The provisions of this Paragraph shall apply to all records of any proceedings, order, judgment, or other action under Code of Criminal Procedure 893.

Thus, Moorman was not eligible for expungement of his felony record when he pled guilty in 1993 or when he sought an expungement in 2010. At the time Moor-man committed the offense and pled guilty, LSA-R.S. 44:9 C allowed for the expungement of a felony arrest record under certain conditions in which no conviction resulted. Here, Moorman was fully prosecuted, resulting in his plea of guilty to the reduced charge of incest.

In addition, Moorman was not eligible for expungement at the time he sought the expungement. Moorman was arrested for aggravated rape and aggravated oral sexual battery. He subsequently pled guilty to incest, a violation of LSA-R.S. 14:78. Incest is defined as a sex offense, and as such, Moorman was not entitled to expungement of the record of his arrest and/or prosecution for this conviction, regardless of whether the conviction was set aside pursuant to LSA-C.Cr.P. art. 893.

In State v. Gerchow, 36 So.3d at 307, the Louisiana First Circuit Court of Appeal upheld the denial of a motion for expungement under almost identical circumstances. In that case, Gerchow pled guilty pursuant to LSA-C.Cr.P. art. 893 in March 1991 to molestation of a juvenile, in violation of LSA-R.S. 14:81.2. The trial court suspended the sentence and placed defendant on probation for four years. Gerchow’s probation expired on March 25, 1995, without incident. Thereafter, the trial court ordered his probation terminated and the prosecution dismissed. Gerchow filed a motion for expungement. The trial court denied his motion for expungement of his criminal record, since he had been convicted of a sex offense involving a child under the age of 17, citing LSA-R.S. 44:9 E(2). Gerchow thereafter filed a motion for appeal, alleging, in part, that at the time of his guilty plea in March 1991, LSA-R.S. 44:9 E(2) did not bar expungement of his offense. The First Circuit found otherwise, concluding that no provision of LSA-R.S. 44:9 existed entitling defendant to an expungement of his conviction at any time.

Likewise, we conclude that there was no authority in LSA-R.S. 44:9 for expungement of Moorman’s felony record of incest either at the time of his guilty plea or at the time he sought an expungement.

In his brief, Moorman suggests that he pled guilty based on his belief that his felony record and conviction would ultimately be expunged. First, there is no indication in the record before us that Moorman pled guilty based on his belief that the felony record would be expunged. Rather, it appears that Moorman got what he bargained for in the plea agreement. In accordance with the apparent terms of the plea agreement, defendant pled guilty to incest under the provisions of LSA-C.Cr.P. art. 893 and was thereafter sentenced to three years at hard labor, suspended, and was placed on five years active probation. In 1995, his conviction was set aside pursuant to LSA-C.Cr.P. art. 893. Moorman suggests in his brief that since his conviction was set aside pursuant to LSA-C.Cr.P. art. 893, he is generally entitled to an expungement. However, there was no general right to seek an 18expungement of records concerning a felony conviction that had been dismissed pursuant to LSA-C.Cr.P. art. 893 until subsection E of LSA-R.S. 44:9 was amended in 1999. State v. Gerchow, 36 So.3d at 307, n. 5. Clearly, as shown by the analysis herein, Moorman was not entitled to expungement of his felony record at the time he entered his guilty plea or at the time he sought expungement.

For the reasons set forth herein, we affirm the December 10, 2010 ruling of the trial court which denied Moorman’s motion for expungement.

AFFIRMED

      . LSA-R.S. 44:9 B relates to felony arrests, not convictions, as is the case here.

      . See LSA-R.S. 15:541(24)(a).

      . In addition, we note that Moorman's sentence was suspended, not deferred under LSA-C.Cr.P. art. 893, as is required for an expungement. See State v. Green, 997 So.2d at 44-45.


source: Caselaw Access Project

author: DECUIR, Judge. COOKS, J.,

license: Public Domain

text:
    Kayla TRAHAN v. 2010 BEGLIS, L.L.C., Productive Properties, Inc.
    No. 11-365.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 2011.
    Rehearing Denied Feb. 1, 2012.

      Elizabeth Traub, Lake Charles, LA, for Plaintiff/Appellant, Kayla Trahan.
    Gregory L. Landry, Acadiana Legal Services Corporation, Lafayette, LA, for Plaintiff/Appellant, Kayla Trahan.
    Lee W. Boyer, Stephen D. Polito, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendant/Appellee, 2010 Beglis, L.L.C., Productive Properties, Inc.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   DECUIR, Judge.

h Kayla Trahan appeals the judgment rendered against her in an eviction proceeding brought by her landlord, Productive Properties, Inc. and 2010 Beglis, LLC. After due consideration of the record before us, we affirm.

On September 5, 2009, Kayla Trahan signed a lease with Productive Properties, Inc., to rent a unit at Productive’s apartment complex, Town & Country Apartments, located in Sulphur, Louisiana. The term of the lease was set forth as one year. Town & Country Apartments is Section 8 housing, and, as such, Trahan was required to execute an additional lease for a term of one year with the Sulphur Housing Authority, which was done on November 2, 2009. “Section 8” is a term used to describe a federally funded housing program which provides vouchers for affordable housing offered by approved landlords. The program is administered by the United States Department of Housing and Urban Development (HUD).

The Productive lease set forth various rules and regulations which restrict certain actions and behaviors at the complex. According to Productive, these rules and regulations are explained to all prospective tenants when the leases are signed. Tra-han’s signature was on the rules and regulations page of her lease. The HUD lease also contained certain terms and conditions as well as a tenancy addendum which relates to the term of the lease and the termination of a tenant’s occupancy.

Not long after Trahan moved in to the apartment, Productive alleges, she began committing various infractions, which among other things, included allowing a person who was not on the lease to live with her in the apartment. Although this was denied by Trahan, it was believed by Productive’s property manager that this man, later identified as Trahan’s boyfriend, Beau Arabie, was living in the apartment. Productive continued to inform Trahan that a person not on the lease cannot live in her apartment and that a proper procedure existed for ^tenants to have overnight guests. In response to a complaint from Trahan concerning whether her apartment conformed to the Section 8 program, an inspector for the Sulphur Housing Authority inspected Trahan’s apartment on August 3, 2010. The property manager testified that the inspector found Trahan’s apartment met the Section 8 requirements and confirmed that Tra-han’s boyfriend was living with her in the apartment. Arabie testified that he regularly spent as many as three nights at a time in Trahan’s apartment. Trahan did not testify.

Productive also alleged Trahan committed various other lease infractions, including parking additional cars not listed on the lease, bothering other tenants, and making repeated unfounded requests for repairs. During the term of Trahan’s lease, Productive determined that it would not renew Trahan’s lease after the initial term. She was sent several notices informing her that the lease would not be renewed. As the end of the lease approached, Trahan was sent two notices (the first on October 11, 2010 by Productive’s property manager and the second on October 22, 2010 by Productive’s legal counsel) informing her the lease was not being renewed and that she had thirty days to vacate the premises. Trahan argued these notices did not comply with the applicable state and federal requirements.

On October 12, 2010, Trahan filed suit against Productive requesting declaratory judgment, specific performance, monetary damages and injunctive relief. At the time of the filing, the trial court granted a temporary restraining order, which was filed in conjunction with Trahan’s petition, preventing Trahan from being evicted. At a subsequent hearing for preliminary injunction, the trial court refused to extend the injunction preventing Productive from evicting Trahan. The injunction was denied and the temporary restraining order was dissolved.

Thirty days after the October notices to vacate were received by Trahan, Productive filed a Rule to Evict in city court. One day before the hearing on the [sRule to Evict, Trahan filed an Exception of Lis Pendens. At the hearing, Productive was granted an extension to explore a defense to the lis pendens exception. Rather than contesting the lis pendens exception, Productive moved to dismiss the suit in city court and, on December 15, 2010, filed a Rule to Evict in the suit which had been instituted by Trahan in the district court.

During this time period, Trahan gave Productive three rental payments dated October 5, November 2, and December 8, each in the amount of $13.00. The October payment was first returned to Trahan, then later accepted and negotiated by Productive, as it paid the October rent during which Trahan’s tenancy continued. The November and December payments were neither deposited nor negotiated by Productive, but were ultimately given to Productive’s counsel to hold during the ongoing proceedings.

On December 23, 2010, the Rule to Evict came before the trial court. Before the rule was heard, Trahan presented several exceptions and motions including an exception of improper cumulation, an exception of no valid notice to vacate, an exception of vagueness, and a motion to dismiss. All the exceptions were denied by the trial court. After consideration of all the evidence, the trial court granted Productive’s Rule to Evict and assessed court costs against Trahan. Trahan was ordered to vacate the apartment within twenty-four (24) hours. Trahan did not vacate, and instead filed the present appeal, asserting several assignments of error: lis pendens, improper cumulation of actions, ineffective notices to vacate and the acceptance of rental payments as forgiveness of the lease infractions. We find no merit to the issues raised by Trahan; therefore, we affirm the judgment rendered against her.

I ¿STANDARD OF REVIEW

A court of appeal may not set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Stobart v. State, through Dept. of Transp. and Dev., 617 So.2d 880 (1993); Rosell v. ESCO, 549 So.2d 840 (1989). Questions of law are reviewed de novo by determining whether the trial court was legally correct or legally incorrect. Sanchez v. La. Nursery, 09-1247 (La.App. 3 Cir. 4/7/10), 34 So.3d 1047; Domingue v. Bodin, 08-62 (La.App. 3 Cir. 11/5/08), 996 So.2d 654.

LIS PENDENS

Trahan first argues the trial court erred in failing to grant her lis pen-dens exception regarding the pending eviction proceeding in Sulphur City Court. Because we have been presented with a certified copy of a December 22, 2010 judgment of dismissal of the city court action, we find no merit to this contention:

Because lis pendens does not address the merits of the disputes between the parties, a reviewing court considers lis pendens in the procedural and factual climate that exists at the time of review, rather than at the time of the trial court judgment. La. Cotton Ass’n Workers’ Compensation Group Self-Insurance Fund v. Tri-Parish Gin Co., Inc., 624 So.2d 461 (La.App. 2nd Cir.1993). After oral argument, Brooks, Cudd, and National filed a joint stipulation of amicable resolution of the Orleans Parish suit which had served as the basis for the exception of lis pendens. The stipulation included an order of dismissal from the trial court in Orleans Parish. Sonat contends that this court may not receive new evidence on appeal and that the dismissal was not a part of the record and thus may not be included in this court’s review. However, this argument is contrary to the very nature of a lis pendens review. A review of a grant of lis pendens requires this court to examine not only was the trial court correct when the exception was granted, but whether the exception is still correct at the time of appeal. See La. Cotton Ass’n supra.

Brooks Well Servicing, Inc. v. Cudd Pressure Control, Inc., 34,796, p. 2-3 (La.App. 2 Cir. 8/22/01), 796 So.2d 66, 68-69, writ denied, 01-2810 (La.1/4/02), 805 So.2d 204.

^IMPROPER CUMULATION

In Trahan’s second assignment of error, she argues that it is reversible error to cumulate a summary eviction proceeding with a pending ordinary proceeding. This argument disregards the fact that the trial court bifurcated the proceedings and ordered separate trials of the eviction and the issues raised in Trahan’s petition, which are still pending and remain to be decided via ordinary process at a later date. Therefore, we find no reversible error in the trial court’s ruling.

NOTICE TO VACATE

Trahan asserts that Productive’s notices to vacate the premises were not in compliance with state law, federal law, and the terms of the leases she signed. The record shows Trahan was provided with several notices throughout the term of her lease. Most of these communications simply advised Trahan that her lease would not be renewed at the end of its term. The notices provided to her on October 12, 2010 and October 22, 2010, however, included the grounds for her eviction and a thirty-day time period in which to vacate the leased premises. The notices also informed Trahan of her right to present a defense at her eviction hearing should she fail to vacate the premises timely. Moreover, the Rule to Evict, which is an “initial pleading used under State or local law to commence an eviction,” as defined by the HUD lease, was sent to the Sulphur Public Housing Authority on the same day it was served on Trahan.

The trial court considered the notices sent to Trahan and the Rule to Evict in light of the controlling legal and contractual requirements and found all notice requirements were satisfied. We agree with this finding. The notices were adequate, informative, and complied with the applicable laws and lease requirements. Trahan has presented nothing that convinces us the notices were inadequate. She was fully informed of the reasons for non-renewal, she was given |fithe appropriate time in which to vacate, and she was informed of her right to present a defense to any subsequent eviction proceeding. Additionally, the Sulphur Public Housing Authority was properly served with the Rule to Evict.

Louisiana’s summary eviction procedure, La.Code Civ.P. art. 4731 et seq., allows for the filing of a summary eviction proceeding only after the required notice to vacate, as described in La.Code Civ.P. art. 4701, has been sent by the owner. It also requires that notice must include the grounds upon which eviction is sought. La.Code Civ.P. art. 4731(A).

Section 8 of the HUD-required tenancy addendum sets forth the substantive provisions relating to the termination of tenancy, mandating that “the owner may only terminate the tenancy in accordance with the lease and HUD requirements.” Federal regulations require the owner to perform certain acts before attempting to evict a tenant from federally subsidized housing. Trahan’s lease included the following language concerning the notice requirements required under the law:

a. Notice of grounds.
(1) The Owner must give the Tenant a notice that specifies the grounds for termination of tenancy. The notice of grounds must be given at or before commencement of the eviction action.
(2) The notice of grounds may be included in, or may be combined with, any Owner eviction notice to the Tenant.
b. State or local eviction notice.
(1) Owner eviction notice means a notice to vacate, or a complaint or other initial pleading used under State or local law to commence an eviction.
(2) The owner must give the PHA a copy of any Owner eviction notice to the Tenant at the same time that the Owner gives notice to the Tenant.

Productive’s notices to Trahan meet the basic requirements which govern this lease: setting forth the grounds for eviction, providing a thirty (30) day time period in which to vacate the premises, and informing Trahan of her right to |7present a defense at the eviction proceeding should she so choose. While the two notices in question were not served upon the Sulphur Public Housing Authority at the time notice was sent to Trahan, the Rule to Evict, which is the actual pleading or complaint, was properly served. As quoted above, the term “owner eviction notice” is defined as one of two things: It can be either a notice to vacate or “a complaint or other initial pleading used under State or local law to commence an eviction.” The two definitions are separate, as evidenced by the use of a comma, and give the owner a choice. Here, Productive chose to give the Sulphur PHA a copy of the Rule to Evict. We find this action to be in compliance with the terms of the leases signed by Trahan.

RENTAL PAYMENTS

Trahan urges this court to find error in the trial court’s determination that Productive did not accept Trahan’s November and December rent payments. She argues that Productive, by holding on to her money orders, accepted the payments and, consequently, this acceptance vitiated the notices to vacate and served as forgiveness of the lease infractions.

Upon review of the record before us, we conclude the issue of Trahan’s rental payments is not properly before us. Trahan failed to offer any evidence of rental payments. She did not testify regarding the payment of rent, tender of the payments, or her belief that Productive no longer sought to evict her based on forgiveness of the lease infractions. Trahan did not offer into evidence any copies or receipts for the payment of rent. The issue was raised in the trial court only in the comments and arguments of counsel; no evidence exists for review.

Accordingly, we find no merit to the assignment of error.

| «DECREE

For the above reasons, we affirm the trial court judgment against Trahan granting the Rule to Evict and assessing her with court costs. All costs of this appeal are assessed to Trahan.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissenting.

IT respectfully dissent from the majority’s opinion, finding the record does not support the trial court’s conclusion that the rule to evict filed on December 15, 2010 satisfied the requirements of Ms. Trahan’s right to notice to vacate under Louisiana law. The notice to vacate is an essential part of the summary eviction procedure provided for in La.Code Civ.P. art. 4701. Without-this notice there can be no judgment issued evicting Ms. Trahan.

Section 8 of the HUD-required tenancy addendum sets forth the substantive provisions relating to the termination of tenancy mandating that “the owner may only terminate the tenancy in accordance with the lease and HUD requirements.” Federal regulations require the owner to perform certain acts before attempting to evict a tenant from federally subsidized housing. Ms. Trahan’s lease included the following language concerning the notice requirements required under the law:

a. Notice of grounds.
(1) The Owner must give the Tenant a notice that specifies the grounds for termination of tenancy. The notices of grounds must be given at or before commencement of the eviction action.
(2) The notice of grounds may be included in, or may be combined with, any Owner eviction notice to the Tenant.
b. State or local eviction notice.
12(1) Owner eviction notice means a notice to vacate, or a complaint or other initial pleading used under State or local law to commence an eviction.
(2) The owner must give the PHA a copy of any Owner eviction notice to the Tenant at the same time that the Owner gives notice to the Tenant.

Although Productive’s notices outline some of the basic requirements, i.e., setting forth the grounds for eviction, providing a thirty (30) day time period in which to vacate the premises, and informing Ms. Trahan of her right to present a defense at the eviction proceeding should she so choose (only the October 22, 2010 notice informed her of her right to present a defense), the record establishes the two notices in question were not served upon the Sulphur Public Housing Authority at the time notice was sent to Ms. Trahan.

Productive does not argue that any of its notices complied with the requirement for simultaneous service upon the Sulphur PHA. Instead, Productive asserts and the majority accepts, that its Rule to Evict was subsequently served on the Sulphur PHA, and that this was sufficient. I disagree.

As Ms. Trahan notes, Louisiana law requires that providing written notice to vacate is the initial step a lessor must take and is a prerequisite to filing a Rule to Evict. This court in Bill Kassel Farms, Inc., v. Paul, 96-462, p. 3 (La.App. 3 Cir. 12/11/96), 690 So.2d 807, 809, writ denied, 97-0712 (La.4/25/97), 692 So.2d 1095, found “a notice to vacate in and of itself is only the initial stage in effectuating an eviction and it is upon lessee’s failure to vacate the leased premises after receiving such notice that the lessor must proceed summarily to have the lessee evicted.” (Emphasis added) It is clear under Louisiana law that a valid notice to vacate must precede the filing of a rule to evict. Thus, there is no merit to Productive’s argument and the majority’s conclusion that its subsequent service to the Sulphur PHA of the rule to evict complies with the requirement for simultaneous service of the notice to vacate to the Sulphur PHA. Therefore, I would reverse the trial ^court’s judgment, which granted the Rule to Evict and assessed Ms. Trahan with court costs.


author: KEATY, Judge. AMY, J.,

text:
    Devra Renee STOCKMAN v. MEDICAL TECHNOLOGY, INC.
    No. 11-285.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 2011.

      Donald J. Anzelmo, Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P., Monroe, LA, for Defendant/Appellee, Medical Technology, Inc.
    Chris J. Roy, Sr., Chris J. Roy, Sr. Law Office, L.L.C., Alexandria, LA, for Plaintiff/Appellant, Devra Renee Stockman.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, J. DAVID PAINTER, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

hln this workers’ compensation case, the claimant filed a disputed claim for compensation, seeking authorization of a. nerve block for diagnostic purposes, attorney fees, and penalties. After a hearing on the matter, the workers’ compensation judge (WCJ) authorized the nerve block, but found the claimant’s complaints were not related to the workplace accident and denied all requests for penalties and attorney fees. The claimant appeals, complaining that the WCJ decided issues not properly brought before him and that he erred in denying the claimant’s request for penalties and attorney fees.

FACTS AND PROCEDURAL HISTORY

The claimant, Devra Stockman (Stock-man) was injured in a workplace accident on November 14, 2008. On October 9, 2009, Stockman filed a disputed claim for compensation, seeking authorization for a nerve block that had been recommended by her treating orthopedist, Dr. B. Todd Drury. Defendant, Medical Technology, Inc. (MTI), answered Stockman’s petition on January 4, 2010. It did not file a reconventional demand. On July 21, 2010, Stockman filed a supplemental and amended petition seeking penalties and attorney fees in addition to the nerve block authorization. At trial, counsel for MTI indicated that it did not object to the supplemental petition.

A hearing on the issue took place on July 22, 2010. The WCJ took the matter under advisement and requested post-trial briefs from each party. On September 28, 2010, the WCJ issued his ruling orally. Those reasons were reduced to writing and signed by the WCJ on November 10, 2010. In his judgment, the WCJ found that Dr. Drury was Stockman’s orthopedic physician of choice, that Stockman’s cervical complaints were not related to the workplace accident, that Stockman was entitled to undergo the nerve block for diagnostic purposes, and that 12all other issues, including Stockman’s request for penalties and attorney fees were denied.

Stockman filed a motion for new trial on November 19, 2010, which was set for hearing. On December 22, 2010, the WCJ denied Stockman’s motion for new trial. Stockman appealed. Two issues are now before us: whether the WCJ decided issues beyond those that had been properly pled and whether the WCJ erred in denying Stockman’s claim for penalties and attorney fees.

For the following reasons we find that the WCJ decided issues that were not before him and was manifestly erroneous in declining to assess penalties. We award Stockman penalties in the amount of $2,000.00. We reverse the remainder of the judgment except for the portion granting the nerve block and addressing attorney fees; these issues are affirmed.

DISCUSSION

The proposition that a judgment beyond the pleadings creates a nullity is a well-established legal principle in Louisiana law. An explanation of what constitutes “beyond the pleadings” was set forth by this court in Domingue v. Bodin, 08-62 (La.App. 3 Cir. 11/5/08), 996 So.2d 654. In Domingue, we stated:

“[Ujnder proper circumstances proof beyond the pleadings, even if objected to, may be admitted and considered when permission to amend the pleadings is requested and granted.” La.C.C.P. Art. 1154. (emphasis supplied). Ussery v. Ussery, 583 So.2d 838, 841 (La.App. 2 Cir.1991) (citing Guillory v. Butter, 398 So.2d 43 (La.App. 3 Cir.1981)). However, notwithstanding this authority, “nothing in the article [art. 862] is intended to confer jurisdiction on a court to decide a controversy which the parties have not regularly brought before it.” Id. Otherwise, “[a] judgment beyond the pleadings is a nullity.” Id. at 841, citing Romero v. State Farm Fire & Casualty Co., 479 So.2d 694 (La.App. 3 Cir.1985).

Domingue, 996 So.2d at 657.

In the instant case, Stockman filed the initial complaint, seeking authorization for a nerve block. She was allowed to file a supplemental and ^amended petition that added penalties and attorney fees to the original relief sought. MTI did not file a reconventional demand. Thus, the only issues before the WCJ were the authorization of the nerve block, penalties and attorney fees. For the reasons set forth in Domingue, we reverse the judgment insofar as it addresses issues other than the authorization, penalties, and attorney fees.

In her second assignment of error, Stockman alleges that the WCJ erred in denying her claim for penalties and attorney fees. “The applicable standard of review in determining whether a defendant should be cast with penalties and attorney fees is the manifest error — clearly wrong standard.” Rutledge v. Resource Transp., 08-1149, p. 2 (La.App. 3 Cir. 3/4/09), 7 So.3d 794, 795 (quoting Bennett v. Pilgrim’s Pride, 07-753, p. 10 (La.App. 3 Cir. 12/12/07), 972 So.2d 423, 429, writ denied, 08-103 (La.3/7/08), 977 So.2d 907). It is well settled in Louisiana law that while workers’ compensation benefits should be given broad interpretation, the punitive statutes should be interpreted strictly. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41.

Louisiana Revised Statutes 23:1201 governs the payment of benefits and any attorney fees or penalties associated therewith. Subsection E states that “[mjedical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.” Subsection F of that statute mandates that a penalty be assessed when payment is not provided in accordance with the other subparts and allows for attorney fees to be assessed as well. An employer can escape the mandatory penalties only when it reasonably controverts the employee’s claim. La.R.S. 23:1201(F)(2). This court has previously held that “[a] claim is reasonably controverted when the employer or insurer produces factual or medical information that reasonably counters the claimant’s evidence.” Bourgeois v. Broum’s Deli & Market, Inc., 09-290, p. 7 (La.App. 3 Cir. 10/14/09), 21 So.3d 1072, 1077 (citing Davis v. Jones Baldwin Music Co., 27,545 (La.App. 2 Cir. 11/1/95), 662 So.2d 803).

At trial, Stockman testified that her treating orthopedic physician, Dr. Dru-ry, ordered that a diagnostic nerve block be performed in order to treat pain in her left arm that was caused by a pinched nerve in her cervical spine. Dr. Drury’s notations state that he ordered the diagnostic nerve block because he believed the chronic pain in her shoulders stemmed from her initial workplace accident. MTI refused to approve the nerve block.

MTI did not offer testimony or evidence for denying the nerve block, other than Stockman’s medical records, the records of a doctor who evaluated Stockman briefly, and the opinion of a physician who did not examine Stockman at all. After reviewing the medical records, the WCJ determined that Stockman had not “established by a preponderance of the evidence that any cervical problem she may have is causal related to the — to the incident that occurred on November 14 of 2008.” The WCJ then granted the nerve block “so that a proper diagnosis can be made as to what may be the pain generator for the continuing complaints Ms. Stockman has with regard to her shoulder.” The WCJ then declined to assess penalties and attorney fees because “there’s a question in Ms. Stockman’s case as to what the pain generator is.”

In his reasoning, the WCJ declined to assess attorney fees or penalties,

because I don’t find enough information contained in Dr. Drury’s records, and I know that treating physicians opinions can have great weight, but there’s nothing, there’s nothing in the bare bones records of Dr. Drury to support his conclusion on the — in those records of October 26th, 2009. I do feel that this is direct related to the additional on-the-job-injury. There is no facts that he states that gives him that basis to make that conclusion.

As previously stated, although the decision to award attorney fees is discretionary, penalties are mandated by statute when the employer fails to approve |Bor pay a medical benefit, unless it can show that it reasonably controverted the employee’s claim.

The WCJ’s rationale in declining to assess penalties is manifestly erroneous. Instead of determining whether or not MTI reasonably controverted Stockman’s claim for a nerve block, as required by Louisiana law, the WCJ instead focused on what Stockman had or had not proved. In doing so, the WCJ declined to award penalties. The failure to apply the “reasonably controverted” test was manifestly erroneous. Accordingly, we reverse the trial court’s judgment on penalties and order MTI to pay penalties in the amount of $2,000.00 to Stockman in accordance with La.R.S. 23:1201(E) and (F)(2).

DECREE

For the foregoing reasons, we affirm that portion of the judgment that grants the nerve block and denies attorney fees. We reverse the portion of the judgment concerning penalties and render judgment against Medical Technology, Inc., in the amount of $2,000.00 for statutorily mandated penalties. All other portions of the judgment are reversed. Costs are assessed against Medical Technology, Inc.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

AMY, J., concurs in part, dissents in part, and assigns reasons.

AMY, J.,

concurring in part and dissenting in part.

_jjl agree with the majority’s reversal of those aspects of the underlying judgment that were not properly before the workers’ compensation judge.

However, I respectfully dissent from the reversal of the denial of penalties. Although the workers’ compensation judge did not discuss the denial of penalties and attorney fees in language squarely reflective of La.R.S. 23:1201(F), the reasons expressed reveal the determination that the matter was reasonably controverted. I find no manifest error in that determination nor in the ultimate denial of penalties and attorney fees. Accordingly, I would affirm the workers’ compensation judge’s ruling in that aspect.


author: COOKS, Judge.

text:
    FRU-CON CONSTRUCTION CORPORATION v. Clarence MOORE.
    No. 11-528.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 2011.

      Madeline J. Lee, Christina S. Slay, Bo-len, Parker, Brenner & Lee, Ltd., Alexandria, LA, for Plaintiff/Appellant, Fru-Con Construction Corporation.
    Daniel E. Broussard, Jr., Broussard, Halcomb & Vizzier, Alexandria, LA, for Defendant/Appellee, Clarence Moore.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, PHYLLIS M. KEATY, Judges.
   COOKS, Judge.

11 FACTS AND PROCEDURAL HISTORY

Clarence Moore (Claimant) is a fifty-four year old worker who was injured in 2003 while working as a welder for Fru-Con Construction Corporation (Fru-Con). Claimant received workers’ compensation benefits for an injured knee and back. Claimant was treated by Dr. Gordon Webb, Dr. Douglas Ganburg, and Dr. Greg Garrison. He received weekly indemnity benefits and, in 2005, returned to work for Fru-Con on a modified basis. In 2006, Claimant re-injured his left knee and his back on the job while working for Fru-Con. In 2006, following the second accident, Claimant underwent an MRI of his left knee. The MRI indicated recurrent tearing and subtle medial and patellafemo-ral compartment chondromalacia. In both 2003 and 2005, Claimant had two functional capacity evaluations (FCE’s) which demonstrated he could work at the sedentary level. He has also been treated for depression and chronic pain syndrome by Dr. James Quillin, a board certified psychologist. Dr. Michael Dole (Dr. Dole) is Claimant’s current treating physician who has prescribed various narcotic and anxio-lytic medications for treatment of chronic pain. Fru-Con had second medical opinion (SMO) and independent medical examination (IME) orthopedic examinations performed on Claimant. Fru-Con’s doctor and the IME doctor recommended Claimant’s treating physician take him off all prescribed narcotic pain medications, and anxiolytic medications, and further recommended that once Claimant has stopped taking these medications a FCE be conducted on Claimant.

Dr. Dole rejected these recommendations. Fru-Con thereafter filed a Petition for Declaratory Judgment, asking the workers’ compensation judge (WCJ) to decide what course of treatment the Claimant should follow. Claimant filed an Exception of Prematurity, No Cause of Action, and a Motion for Sanctions and Attorney Fees. The WCJ dismissed the Exception of Prematurity because it was |2not filed prior to filing an answer. He sustained Claimant’s Exception of No Cause of Action dismissing Fru-Con’s Petition for Declaratory Judgment but denied Claimant’s Motion For Sanctions and Attorney Fees. Fru-Con sought leave of court to amend their petition arguing that they could terminate either Claimant’s indemnity or medical benefits and thereby make an appropriate allegation bringing their Petition for Declaratory Judgment within the requirements of La.R.S. 23:1314. The WCJ denied Fru-Con’s request.

Fru-Con appeals alleging the WCJ erred in dismissing its Petition for Declaratory Judgment; in granting Claimant’s Exception of No Cause of Action; and in failing to allow it to amend its petition. Claimant did not appeal the denial of its Motion for Sanctions and Attorney Fees. For the reasons stated below and in Fru-Con Construction Corp. v. Xchanging and Oscar A. Kierum, II, 11-529 (La.App. 3 Cir. 12/14/11), 81 So.3d 209, we affirm in part and remand with instructions.

DISCUSSION

Fru-Con asserts that this court should not follow the decisions of our three sister circuit courts of appeal which have held that the provisions of La.R.S. 23:1314 apply to both employers and employees. See La. Commerce & Trade Ass’n-SIF v. Cruz, 09-2014 (La.App. 1 Cir. 5/7/10), 38 So.3d 1041; Michaels Store, Inc. v. Hart, 01-655 (La.App. 4 Cir. 3/20/02), 815 So.2d 201, citing and attaching as an appendix, Labor Ready, Inc. v. Lorick, 00-1559 (La.App. 4th Cir.9/6/00), unpublished opinion, writ denied, 00-2801 (La.12/8/00), 776 So.2d 461; Bank One v. Johnson, 04-508 (La.App. 4 Cir. 8/11/04), 882 So.2d 30; Jim Walter Homes v. Long, 02-950 (La.App. 4 Cir. 12/18/02), 835 So.2d 877; and Clement v. Blanchard, 05-531 (La.App. 5 Cir. 2/14/06), 924 So.2d 295. Under these decisions Fru-Con concedes the correctness of the WCJ’s ruling herein regarding application of the provisions of La.R.S. 23:1314 to employers. Fru-Con, however, urges this | .¡court to render a decision at odds with these decisions and thereby give cause for the Louisiana Supreme Court to make a ruling on the matter. We first note, that the Louisiana Supreme Court has refused to take up this issue in a case out of the Louisiana fourth circuit court of appeal. In Labor Ready, Inc., the Fourth Circuit held that the provisions of La.R.S. 23:1314 apply equally to both employer and employee governing “the procedure every court must follow when dealing with a worker’s compensation claim petition form.” Michaels Store, Inc. at 204. In Labor Ready, Inc. and in Michaels Store, Inc., the fourth circuit upheld the WCJ’s dismissal of an employer’s petition as it failed to allege any of the bases enumerated in La.R.S. 23:1314 and, therefore, under the express provisions of the statute, found its petition was premature. In rejecting the employer’s argument that the court’s interpretation of the statute “will surely lead to absurd results when a court is forced to read this statute’s requirements strictly and mandate an ‘employer’ claimant to include one of the necessary allegations mentioned above to avoid a finding of prematurity[,]” Michaels Store, Inc. at 204, the fourth circuit in Labor Ready, Inc., agreed with the trial court’s observation that the “employer has the option under the La. Worker’s Compensation Act to deny a claim it thinks is not compensable.” Michaels Store, Inc. at 205. Thus, the fourth circuit reasoned, “[w]ith this noted option always available to an employer, the trial court’s reading of La. R.S. 23:1314 does not always lead to such an absurd result as the appellant claims.” Id.

In the case before us, we note with interest the WCJ’s observation made during the hearing on the matter before him which illuminates the rationale for his decision. The WCJ observed that the Petition for Declaratory Judgment filed by Fru-Con sought to place competing medical advice regarding the care and treatment of Claimant before him; have him decide whether the advice of the IME doctor should be imposed upon Claimant or should Claimant’s treating physician’s advice be followed by Claimant. The WCJ correctly observed that our workers’ Lcompensation law entitles every claimant to be treated by a physician of his choice. See La.R.S. 23:1121(B) and Smith v. S. Holding, Inc., 02-1071 (La.1/28/03), 839 So.2d 5. As he further correctly observed, if and when an employer is convinced that the IME doctor’s findings and recommendations are correct, it has the right to terminate the employee’s benefits at its peril. But the employer in this case, and in those decided by our sister circuits, seeks another remedy which does not put it at risk for penalties and attorney fees for wrongfully denying/terminating benefits. The employer argues that it should be allowed to bring its Petition for Declaratory Judgment without meeting the requirements of La.R.S. 23:1314.

Fru-Con admits that none of the mandatory enumerated allegations of the statute form the basis of its petition. Fru-Con argues that the statute was not intended to apply to employers. It asserts that it is “absurd” to apply its requirements to an employer seeking a declaratory ruling from a WCJ forcing the WCJ to decide whether an IME doctor’s recommendations as to treatment should be implemented instead of the-Claimant’s treating physician’s manner of treatment. Fru-Con further seeks a determination of whether the IME doctor’s findings of disability should prevail. These arguments have failed to convince our sister circuits to make such an interpretation of the provisions of our workers’ compensation statutory scheme and likewise fail to convince this court. The Louisiana Supreme Court refused to accept writs to address the findings of our sister circuits on this issue when it had an opportunity to do so. Such refusal is at least indicative of the correctness of the fourth circuit’s ruling.

Fru-Con attempts to raise the issue of the constitutionality of La.R.S. 23:1314 as applied to employers for the first time in its reply brief. We cannot address the issue of this statute’s constitutionality in this case, as it was not mentioned, briefed, nor argued in any filings in the court below. Louisiana Revised Statutes 23:1310.3(G) expressly provides:

|fi(l) Any person challenging the constitutionality of any provision of this Chapter shall specially plead such an allegation in the original petition, an exception, written motion or answer, which shall state with particularity the grounds for such an allegation.
(2) Within thirty days of the filing of any pleading raising the issue of unconstitutionality, the party making such an allegation must file a petition in a state district court of proper jurisdiction for purposes of adjudicating the claim of unconstitutionality. Such filing shall be given priority in hearing such claim not more than ten days from being presented to the district court.
(3) Failure to follow the procedures set forth in this Section shall bar any claim as to the unconstitutionality of any provision of this Chapter on appeal.

When we are presented with a question of law concerning a WCJ’s ruling, we review the WCJ’s finding to determine if it is legally correct. Scobee v. Brame, 98-564 (La.App. 3 Cir. 10/28/98), 721 So.2d 977, writ denied, 98-2952 (La.1/29/99), 736 So.2d 833. We now turn to the applicable statutory provisions regarding the filing of claims by either the employer or employee. Louisiana Revised Statutes 23:1310(A) provides:

If, at any time after notification to the office of the occurrence of death or injury resulting in excess of seven days lost time, a bona fide dispute occurs, the employee or his dependent or the employer or insurer may file a claim with the state office, or the district office where the hearing will be held, on a form to be provided by the director.

Louisiana Revised Statutes 23:1310.3(A) provides in pertinent part: “A claim for benefits, the controversion of entitlement to benefits, or other relief under the Workers’ Compensation Act shall be initiated by the filing of the appropriate form with the office of workers’ compensation administration.” The parties herein agree that the appropriate form for filing this employer’s Petition for Declaratory Judgment is a Form 1008 which was filed by Fru-Con. Louisiana Revised Statutes 23:1314 provides (emphasis added):

A. The presentation and filing of the petition under R.S. 23:1310.3 shall be premature unless it is alleged in the petition that:
|fi(l) The employee or dependent is not being or has not been paid, and the employer has refused to pay, the maximum percentage of wages to which the petitioner is entitled under this Chapter; or
(2) The employee has not been furnished the proper medical attention, of the employer or insurer has not paid for medical attention furnished; or
(3) The employee has not been furnished copies of the reports of examination made by the employer’s medical practitioners after written request therefor has been made under this Chapter; or
(4) The employer or insurer has not paid penalties or attorney’s fees to which the employee or his dependent is entitled.
B. The petition shall be dismissed when the allegations in Subsection (A) of this Section are denied by the employer and are shown at a time fixed by the workers’ compensation judge to be without reasonable cause or foundation in fact.
C. The workers’ compensation judge shall determine whether the petition is premature and must be dismissed before proceeding with the hearing of the other issues involved with the claim.

The first, fourth, and fifth circuits have held that the provisions of La.R.S. 23:1314 apply to Form 1008 which are filed by employers as well as those forms filed by employees. These courts have duly recognized the anomaly created by the provisions of La.R.S. 23:1310.3 and La.R.S. 23:1314 as applied to employers, but have rightly concluded that resolution of this statutory problem is within the province of the Louisiana legislature, not the courts. As Judge Armstrong wrote in her concurrence in Bank One v. Johnson, 882 So.2d at 33:

Bank One makes a valid argument that employers should have the prerogative to file a LDOL-WC-1008 form in eases where an employee is receiving benefits to which he or she may not be entitled. However, as we noted in Michaels Store, Inc. v. Hart, 2001-0655 (La.App. 4 Cir. 3/20/02), 815 So.2d 201, that is something that must be dealt with by the legislature’s amending the Workers’ Compensation statute or by the Supreme Court’s holding that La.R.S. 23:1314 does not apply to LDOL-WC-1008 forms filed by employers.

We note that the earliest case deciding this issue was in 2002 and not since that Utime has the legislature deemed it necessary to correct what has been described by the courts and employers as the “anomaly” presented by the workers’ compensation statutes concerning the applicability of the provisions of La.R.S. 23:1314 to employers. Further, the Louisiana Supreme Court has at least on one occasion, when presented with the opportunity to disagree with the courts of appeal on this issue, refused writs. Perhaps they, too, recognize that while employers may present a valid argument, it is the exclusive province of the legislature to write the laws. This court, as all others, is constrained to apply the laws as written and cannot substitute or delete words in statutes which we would have to do in order to rule as Fru-Con asks us to do. See La. Commerce & Trade Ass’n-SIF v. Cruz, 38 So.2d at 1044.

We further note that Fru-Con’s reliance on our decision in Snelling Personnel Services v. Duhon, 00-661 (La.App. 3 Cir. 11/2/00), 772 So.2d 350, is misplaced, and our decision in that case is not dispositive of the issue raised herein. We addressed an entirely different issue in Snelling, and the dicta recited by Fru-Con in brief does not support its position. In fact, as we read our language in Snelling we find that language supports our decision herein. In Snelling v. Duhon, 772 So.2d at 353, we said:

Workers’ Compensation law allows an employer or employee to file a claim with the Office of Workers’ Compensation to resolve a dispute between the employer and the claimant. See La.R.S. 23:1310(A). The statute provides that “[i]f ... a bona fide dispute occurs, the employee ... or the employer or insurer may file a claim ... on a form to be provided by the director.” Id. It was not legally necessary that Snelling file this form; the employer may terminate voluntary payments at will and with impunity, provided the termination is not arbitrary and capricious.

This language supports our position herein that La.R.S. 23:1310 is applicable to both employers and employees, thus rendering the provisions of La.R.S. 23:1314 as currently written also applicable to both. Further, as the WCJ in this case asked Fru-Con in the hearing on the matter, what is the “dispute” presented in |sits Petition for Declaratory Judgment? The petition, rather than presenting a “bona fide dispute,” seeks to have the WCJ chose the course of treatment and frequency of visits Claimant must make to his treating physician and seeks to have the WCJ make medical decisions for Claimant rather than allowing his treating physician, whom he has an absolute right to choose, do so. The WCJ did not manifestly err in refusing to make such choices. As we said in Smiling, this employer, if convinced of the findings and recommendations of the IME doctor, may choose to act accordingly and “terminate voluntary payments at will and with impunity, provided the termination is not arbitrary and capricious.” Smiling Personnel Services v. Duhon, 772 So.2d at 353. Under the present statutory provisions, the employer cannot bring an action which does not comply with the provisions of La.R.S. 23:1314 for, in such instance, the WCJ is duty bound to dismiss the action as premature and is prohibited from addressing any other issue in the proceeding. See La. R.S. 23:1314(A) and (C). The statute instructs the WCJ to dismiss the petition if he finds that none of the enumerated causes are contained in the Form 1008 filed.

Fru-Con additionally asserts that it should be given the opportunity to “amend” its petition to afford it time to create a cause of action by terminating Claimant’s indemnity or medical benefits. Fru-Con relies on the provisions of La. Code Civ.P. art. 934 which provides: (emphasis added)

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

Article 934 provides when an amendment of the pleadings may suffice to state a cause of action in this case, the WCJ shall allow plaintiffs time to make such amendment. However, this right is not absolute. It necessarily hinges on whether, | phased on the facts existing at the time suit was filed, plaintiff may be able, through amendment of the pleadings, to state facts sufficient for the WCJ to declare as a matter of law that plaintiff is entitled to the relief it requested. Although the transcript of the hearing contains the colloquy between the WCJ and Fru-Con’s attorney regarding Fru-Con’s request for leave to amend its petition, the WCJ failed to directly address in his judgment the issue of why Fru-Con would not be allowed to amend its petition. The WCJ explained in the hearing that Fru-Con’s petition presents no “dispute”, i.e., no justiciable controversy upon which he could issue a ruling. As we have held, “there is no right or cause of action when there is no justiciable controversy.” Desselle v. Dresser Indus. Valve, 96-374 (La.App. 3 Cir. 2/5/97), 689 So.2d 549, 551-52, writ denied 97-618 (La.4/25/97), 692 So.2d 1086. “Additionally, the Trial Court is given discretion to refuse to render a declaratory judgment, and appellate courts should not reverse unless there is an abuse of discretion.” Id. at 552. Fru-Con admits that at the time it filed its Petition for Declaratory Judgment none of the grounds stated in La.R.S. 23:1314 existed. Nevertheless, the WCJ did not address this issue in his judgment. We elect to remand the case to the WCJ with instructions that he directly address the issue of why he did not allow Fru-Con to amend its Petition for Declaratory Judgment.

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS


text:
    FRU-CON CONSTRUCTION CORPORATION v. XCHANGING and Oscar A. Kierum, II.
    No. 11-529.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 2011.
    Bolen, Parker, Brenner & Lee, Ltd., Madeline J. Lee, Christina S. Slay, Alexandria, LA, for Plaintiff/Appellant, Fru-Con Construction Corporation.
    Broussard, Halcomb & Vizzier, Daniel E. Broussard, Jr., Alexandria, LA, for Defendant/Appellee, Oscar A. Kierum, II.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

110scar A. Kierum, II (Claimant) was injured while employed by Fru-Con Con-struetion Corporation (Fru-Con) as a pipe fitter. Claimant was injured in 2004 and was treated by Dr. Michel Heard (Dr. Heard), an orthopedic surgeon; Dr. Douglas Gamburg, an orthopedic surgeon; Dr. Rick Ahmad, an orthopedic surgeon; Dr. John McCabe, a plastic reconstructive surgeon; and Dr. Peter Vizzi, (Dr. Vizzi) an orthopedic surgeon. Dr. Vizzi performed surgery on Claimant’s shoulder in 2006, and Dr. Heard performed surgery on Claimant’s wrist in 2008. Claimant alleges he is presently disabled and cannot return to work as a pipe fitter because of the injuries he suffered while employed with Fru-Con. He is receiving Social Security disability benefits.

On August 19, 2010, Dr. Robert Holliday (Dr. Holliday) performed an IME and rendered his opinion that Claimant is receiving excessive, unnecessary medical treatment, including excessive medication, and is visiting his doctor’s office too frequently each month. Additionally, Dr. Holliday opines that Claimant is physically capable of performing medium work activities. Dr. Holliday informed Dr. Heard by letter of his findings and requested that he implement Dr. Holliday’s recommendations for Claimant’s medical treatment. His recommendations included that Claimant’s office visits to his treating physician be decreased to “no more than once every 3-4 months” and that the only medication that should now be given to Claimant for his work-related injury is an anti-inflammatory. Dr. Holliday informed Dr. Heard that all other prescription medications being taken by Claimant are either not related to his work-related injury at Fru-Con or are no longer necessary or reasonable. Dr. Heard did not respond to Dr. Hollidays request regarding his patient.

Because Dr. Heard did not respond to nor comply with Dr. Hollidays | ^recommendations, Fru-Con filed a Petition for Declaratory Judgment essentially asking the Office of Workers’ Compensation to render an advisory opinion determining the proper course of treatment for Claimant and additionally seeking a determination that Claimant is no longer entitled to supplemental earnings benefits. Claimant filed an Exception of Prematurity, an Exception of No Cause of Action, as well as a Motion for Sanctions and Attorney Fees alleging that Fru-Con’s petition failed to allege any of the exclusive grounds provided in La.R.S. 23:1314 and, under its express provisions, must be dismissed as premature. The Workers’ Compensation Judge (WCJ) sustained Claimant’s Exception of Prematurity, dismissing Fru-Con’s Petition for Declaratory Judgment. He further dismissed Claimant’s Exception of No Cause of Action as moot and denied Claimant’s Motion for Sanctions and Attorney Fees.

Fru-Con appeals alleging the WCJ erred in dismissing its Petition for Declaratory Judgment and in granting Claimant’s Exception of Prematurity. Claimant did not appeal the denial of its Motion for Sanctions and Attorney Fees. For the reasons stated below, we affirm.

DISCUSSION

Fru-Con asserts that this court should not follow the decisions of our three sister circuit courts of appeal which have held that the provisions of La.R.S. 23:1314 apply to both employers and employees. See La. Commerce & Trade Ass’n-SIF v. Cruz, 09-2014 (La.App. 1 Cir. 5/7/10), 38 So.3d 1041; Michaels Store, Inc. v. Hart, 01-655 (La.App. 4 Cir. 3/20/02), 815 So.2d 201 citing and attaching as an appendix, Labor Ready, Inc. v. Lorick, 00-1559 (La.App. 4 Cir. 9/6/00) unpublished opinion, writ denied, 00-2801 (La.12/8/00), 776 So.2d 461; Bank One v. Johnson, 04-508 (La.App. 4 Cir. 8/11/04), 882 So.2d 30; Jim Walter Homes v. Long, 02-950 (La.App. 4 Cir. 12/18/02), 835 So.2d 877; and Clement v. Blanchard, 05-531 (La.App. 5 Cir. 2/14/06), 924 So.2d 295. Under these decisions |RFru-Con concedes the correctness of the WCJ’s ruling herein. Fru-Con, however, urges this court to render a decision at odds with these decisions and thereby give cause for the Louisiana Supreme Court to make a ruling on the matter.

We first note, that the Louisiana Supreme Court refused to take up this issue in a case before the Louisiana Fourth Circuit Court of Appeal. In Labor Ready, Inc., the fourth circuit held that the provisions of La.R.S. 23:1314 apply equally to both employer and employee governing “the procedure every court must follow when dealing with a worker’s compensation claim petition form.” Michaels Store, Inc., at 204. In Labor Ready, Inc. and in Michaels Store, Inc., the fourth circuit upheld the WCJ’s dismissal of an employer’s petition as it failed to allege any of the bases enumerated in La.R.S. 23:1314 and, therefore, under the express provisions of the statute, found its petition was premature. In rejecting the employer’s argument that the court’s interpretation of the statute “will surely lead to absurd results when a court is forced to read this statute’s requirements strictly and mandate an ‘employer’ claimant to include one of the necessary allegations mentioned above to avoid a finding of prematurity[,]” the fourth circuit in Labor Ready, Inc., agreed with the trial court’s observation that the “employer has the option under the La. Worker’s Compensation Act to deny a claim it thinks is not compensable.” Michaels Store, Inc., 815 So.2d at 204, 205. Thus, the fourth circuit reasoned, “[w]ith this noted option always available to an employer, the trial court’s reading of La. R.S. 23:1314 does not always lead to such an absurd result as the appellant claims.” Id.

In the case before us, we note with interest the WCJ’s observation made during the hearing on the matter before him which illuminates the rationale for his decision. The WCJ observed that the Petition for Declaratory Judgment filed by Fru-Con sought to place competing medical advice regarding the care and treatment of Claimant before him and have him decide whether the advice of the |4IME doctor should be imposed upon Claimant or whether Claimant should be allowed to follow his treating physician’s advice. The WCJ correctly observed that our workers’ compensation law entitles every claimant to be treated by a physician of his choice. See La.R.S. 23:1121(B) and Smith v. S. Holding, Inc., 02-1071 (La.1/28/03), 839 So.2d 5. As he further correctly observed, if and when an employer is convinced that the IME doctor’s findings and recommendations are correct, it has the right to terminate the employee’s benefits at its peril. But the employer in this case, and in those decided by our sister circuits, seeks another remedy which does not put them at risk for penalties and attorney fees for wrongfully denying/terminating benefits. The employer argues that it should be allowed to bring its Petition for Declaratory Judgment without meeting the requirements of La.R.S. 23:1314. Fru-Con admits that none of the mandatory enumerated allegations of the statute form the basis of its petition, and, under the express provisions, its petition must be dismissed for prematurity if the statute applies to employers. Fru-Con asserts the statute was not intended to apply to employers, and it is “absurd” to apply its requirements to an employer seeking a declaratory ruling from a WCJ forcing the WCJ to decide whether an IME doctor’s findings/recommendations as to treatment should be implemented instead of the Claimant’s treating physician’s manner of treatment and whether the IME doctor’s findings of disability should prevail. These arguments have failed to convince our sister circuits to make such an interpretation of the provisions of our workers’ compensation statutory scheme and likewise fail to convince this court. The Louisiana Supreme Court refused to accept writs to address the findings of our sister circuits on this issue when it had an opportunity to do so. Such refusal is at least indicative of the correctness of the fourth circuit’s ruling.

Fru-Con attempts to raise the issue of the constitutionality of La.R.S. 23:1314 as applied to employers for the first time in its reply brief. We cannot | r,address the issue of this statute’s constitutionality in this case as it was not mentioned, briefed, nor argued in any filings in the court below. Louisiana Revised Statutes 23:1310.3(G) expressly provides:

(1) Any person challenging the constitutionality of any provision of this Chapter shall specially plead such an allegation in the original petition, an exception, written motion, or answer, which shall state with particularity the grounds for such an allegation.
(2) Within thirty days of the filing of any pleading raising the issue of unconstitutionality, the party making such an allegation must file a petition in a state district court of proper jurisdiction for purposes of adjudicating the claim of unconstitutionality. Such filing shall be given priority in hearing such claim not more than ten days from being presented to the district court.
(3) Failure to follow the procedures set forth in this Section shall bar any claim as to the unconstitutionality of any provision of this Chapter on appeal.

When we are presented with a question of law concerning a WCJ’s ruling we review the WCJ’s finding to determine if it is legally correct. Scobee v. Brame, 98-564 (La.App. 3 Cir. 10/28/98), 721 So.2d 977, writ denied, 98-2952 (La.1/29/99), 736 So.2d 833. We now turn to the applicable statutory provisions regarding the filing of claims by either the employer or employee. Louisiana Revised Statutes 23:1310(A) provides:

If at any time after notification to the office of the occurrence of death or injury resulting in excess of seven days lost time, a bona fide dispute occurs, the employee or his dependent of the employer or insurer may file a claim with the state office, or the district office where the hearing will be held, on a form to be provided by the director.

Louisiana Revised Statutes 23:1310.3(A) provides in pertinent part: “A claim for benefits, the controversion of entitlement to benefits, or other relief under the Workers’ Compensation Act shall be initiated by the filing of the appropriate form with the office of workers’ compensation administration.” The parties herein agree that the appropriate form for filing this employer’s Petition for Declaratory Judgment is a Form 1008 which was filed by Fru-Con. Louisiana Revised Statutes | fi23:1314 provides (emphasis added):

A. The presentation and filing of the petition under R.S. 23:1310.3 shall be premature unless it is alleged in the petition that:
(1) The employee or dependent is not being or has not been paid, and the employer has refused to pay, the maximum percentage of wages to which the petitioner is entitled under this Chapter; or
(2) The employee has not been furnished the proper medical attention, of the employer or insurer has not paid for medical attention furnished; or
(3) The employee has not been furnished copies of the reports of examination made by the employer’s medical practitioners after written request therefor has been made under this Chapter; or
(4) The employer or insurer has not paid penalties or attorney’s fees to which the employee or his dependent is entitled.
B. The petition shall be dismissed when the allegations in Subsection (A) of this Section are denied by the employer and are shown at a time fixed by the workers’ compensation judge to be without reasonable cause or foundation in fact.
C. The workers’ compensation judge shall determine whether the petition is premature and must be dismissed before proceeding with the hearing of the other issues involved with the claim.

The first, fourth, and fifth circuits have held that the provisions of La.R.S. 23:1314 apply to 1008 forms which are filed by employers as well as to such forms filed by employees. These courts have duly recognized the anomaly created by the provisions of La.R.S. 23:1310.3 and La.R.S. 23:1314 as applied to employers, but have rightly concluded that the resolution of this statutory problem is the province of the Louisiana legislature, not the courts. As Judge Armstrong wrote in her concurrence in Bank One v. Johnson, 882 So.2d at 33:

Bank One makes a valid argument that employers should have the prerogative to file a LDOL-WC-1008 form in cases where an employee is receiving benefits to which he or she may not be entitled. However, as we noted in Michaels Store, Inc. v. Hart, 2001-0655 (La.App. 4 Cir. 3/20/02), 815 So.2d 201, that is something that must be 17dealt with by the legislature’s amending the Workers’ Compensation statute or by the Supreme Court’s holding that La.R.S. 23:1314 does not apply to LDOL-WC-1008 forms filed by employers.

We note that the earliest case deciding this issue was in 2002 and not since that time has the legislature deemed it necessary to correct what has been described by the courts and employers as the “anomaly” presented by the workers’ compensation statutes concerning the applicability of the provisions of La.R.S. 23:1314 to employers. Further, the Louisiana Supreme Court has at least on one occasion, when presented with the opportunity to disagree with the courts of appeal on this issue, refused writs. Perhaps it too recognizes that while employers may present a valid argument it is the exclusive province of the legislature to write the laws. This court, as all others, is constrained to apply the laws as written and cannot substitute or delete words in statutes which we would have to do in order to rule as Fru-Con asks us to do. See La. Commerce & Trade Ass’n-SIF v. Cruz, 38 So.3d at 1044.

We further note that Fru-Con’s reliance on our decision in Snelling Personnel Services v. Duhon, 00-661 (La.App. 3 Cir. 11/2/00), 772 So.2d 350, is misplaced, and our decision in that case is not dispositive of the issue raised herein. We addressed an entirely different issue in Snelling, and the dicta recited by Fru-Con in brief does not support its position. In fact, as we read our language in Snelling, we find that language supports our decision herein. In Snelling Personnel Services, 772 So.2d at 353, we said:

Workers’ Compensation law allows an employer or employee to file a claim with the Office of Workers’ Compensation to resolve a dispute between the employer and the claimant. See La.R.S. 23:1310(A). The statute provides that “[i]f ... a bona fide dispute occurs, the employee ... or the employer or insurer may file a claim ... on a form to be provided by the director.” Id. It was not legally necessary that Snelling file this form; the employer may terminate voluntary payments at will and with impunity, provided the termination is not arbitrary and capricious.

This language supports our position herein that La.R.S. 23:1310 is applicable |sto both employers and employees thus rendering the provisions of La.R.S. 23:1314, as currently written, also applicable to both. Further, as the WCJ pointed out in the hearing no “dispute” is presented in the Petition for Declaratory Judgment. The petition, rather than presenting a “bona fide dispute,” seeks to have the WCJ choose the course of treatment and frequency of visits Claimant must make to his treating physician and seeks to have the WCJ make medical decisions for Claimant rather than allowing his treating physician, whom he has an absolute right to choose, to do so. The WCJ did not manifestly err in refusing to make such choices. As we said in Snelling, this employer, if convinced of the findings and recommendations of the IME, may choose to act accordingly and “terminate voluntary payments at will and with impunity, provided the termination is not arbitrary and capricious.” Snelling Personnel Services, 772 So.2d at 353. Under the present statutory provisions, the employer cannot bring an action which does not comply with the provisions of La.R.S. 23:1314 for, in such instance, the WCJ is duty bound to dismiss the action as premature and is prohibited from addressing any other issue in the proceeding. Therefore, under the present statutory provisions, the WCJ acted properly, and we must affirm. Resolution of this statutory conundrum is within the province of the legislature. All costs of this appeal are assessed against Fru-Con.

AFFIRMED.


author: GENOVESE, Judge.

text:
    Rose GUFFEY v. ACADIANA COMPUTER SYSTEMS, INC. and Louisiana Retailers Mutual Insurance Company.
    No. 11-982.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 2011.

      Chris J. Roy, Jr., A Law Corporation, George C. Gaiennie III, Gaiennie Law Firm, L.L.C., Alexandria, LA, for Plaintiff/Appellee, Rose Guffey.
    Donald J. Anzelmo, Snellings, Breard, Sartor, Inabnett & Traseher, L.L.P., Monroe, LA, for Defendants/Appellants, Acadi-ana Computer Systems, Inc., and Louisiana Retailers Mutual Insurance Company.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

|,In this workers’ compensation case, Defendant/Employer, Acadiana Computer Systems, Inc., and its insurer, Louisiana Retailers Mutual Insurance Company (collectively Acadiana Computer Systems), appeal the judgment of the Office of Workers’ Compensation finding Plaintiff/Claimant, Rose Guffey, temporarily totally disabled, ordering reinstatement of benefits, and awarding her a $2,000.00 penalty and $5,000.00 attorney fees. Mrs. Guffey has answered the appeal, asserting that the attorney fee award is insufficient, and seeking additional attorney fees for work done on appeal. For the reasons that follow, we affirm the judgment of the OWC in its entirety, and we render an attorney fee award in favor of Mrs. Guffey for the work necessitated by the appeal.

FACTS AND PROCEDURAL HISTORY

Mrs. Guffey injured her back in a work-related accident on March 30, 2005, during the course and scope of her employment with Acadiana Computer Systems. Mrs. Guffey underwent surgery for a herniated disk following the accident and was subsequently treated by: (1) Dr. Gerald Leglue, a physical medicine and rehabilitation physician; (2) Dr. Stephen Katz, a pain management physician; and (3) Dr. James Quillin, a psychologist (among others). Following the accident, Mrs. Guffey received temporary total disability (TTD) benefits through February 2, 2010, at which time benefits were terminated by Acadiana Computer Systems.

Mrs. Guffey filed a Disputed Claim for Compensation (1008) on February 25, 2010, asserting that she was permanently and totally disabled. Her 1008 states that “[cjlaimant’s physical pain, the types of medicines she takes, and her inability to function without these medicines[,] including medicines for depression[,] all make it impractical that she can work at the present time[.]” Mrs. Guffey also ^sought penalties and attorney fees for the alleged arbitrary and capricious termination of TTD benefits.

Acadiana Computer Systems answered the claim admitting that Mrs. Guffey “was temporarily disabled for a period of time following the accident!;]” however, the employer denied that Mrs. Guffey “remained disabled after she was approved for employment by her treating health care providers.” Acadiana Computer Systems denied her claim of permanent and total disability status and, further, contended that she was no longer entitled to TTD benefits since she “was released to return to work at a job offered to her by her employer, but which she refused.”

The matter proceeded to trial on February 15, 2011, and was taken under advisement by the workers’ compensation judge (WCJ). On April 27, 2011, the WCJ rendered oral reasons: (1) denying Mrs. Guf-fey’s claim of permanent and total disability status; (2) ordering that TTD benefits be reinstated effective March 10, 2010; awarding a $2,000.00 penalty for the employer’s failure to investigate the claim for reinstatement of benefits; and (3) awarding attorney fees of $5,000.00 “for defendant’s arbitrary, capricious, and unreasonable conduct for not reinstating [TTD] benefits and/or not investigating the reinstatement of [TTD] benefits after termination[.]” Written judgment was signed on May 11, 2011. Acadiana Computer Systems has appealed that judgment. Mrs. Guffey has answered the appeal, asserting that the attorney fee award is insufficient and that she should be awarded additional attorney fees for work done on appeal.

ASSIGNMENTS OF ERROR

Acadiana Computer Systems presents the following assignments of error for our review:

1. The workers’ compensation judge erred in finding that [C]laimant had sufficiently met her burden of proving that she is | ^¡entitled to continuing temporary total disability benefits, as defined by the Louisiana Workers’ Compensation Act.
2. The workers’ compensation judge erred in finding that the [Defendant’s failure to pay temporary total disability benefits was arbitrary and capricious, thus entitling [Mrs. Guf-fey] to recover penalties and attorney fees.

LAW AND DISCUSSION

Acadiana Computer Systems argues that the WCJ erred in finding that Mrs. Guffey had met her burden of proving her entitlement to TTD benefits by clear and convincing evidence as required by law. It contends that through the efforts of a vocational rehabilitation consultant, Mr. Buster Fontenot, two jobs were offered to Mrs. Guffey by Acadiana Computer Systems, both of which were submitted to and approved by Dr. Leglue, Dr. Katz, and Dr. Quillin. Despite these offers of employment, “Mrs. Guffey did not appear for these jobs, did not contact the employer about them, and made no effort to determine whether she could perform these jobs.” To the contrary, Mrs. Guffey argues that Acadiana Computer Systems erroneously focuses on her “condition at the time benefits were terminated the previous month and disregard^] her condition thereafter.”

Louisiana Revised Statutes 23:1221(l)(c) establishes the criteria for awarding temporary total disability benefits. The employee must show “by clear and convincing evidence ... that the employee is physically unable to engage in any employment or self-employment. ...” The trial court’s determination that an employee has or has not fulfilled her burden of proof under the statute requires a finding of fact “governed by the manifest error or clearly wrong standard and will not be disturbed absent such a finding.” Ratliff v. Brice Bldg. Co., 03-624, p. 6 (La.App. 5 Cir. 11/12/2003), 861 So.2d 613, 617. The appellate court must determine “not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Newson v. Richard Spurgeon Masonry, 03-1367, p. 2 (La.App. 3 Cir. 3/3/04), 867 So.2d 78, 81, writ denied, 04-839 (La.5/14/04), 872 So.2d 523.

Alexander v. Autozone, Inc., 04-871, p. 5 (La.App. 3 Cir. 12/8/04), 889 So.2d 366, 371.

14Mrs. Guffey’s injury in March of 2005 resulted in a herniated disc requiring a microdiscectomy which was performed in February of 2006. Due to continuing complaints, a repeat microdiscectomy or fusion was recommended, which Mrs. Guffey declined to undergo. Mrs. Guffey continued to be treated by Dr. Leglue, who referred her to Dr. Katz and to Dr. Anil Nanda. Mrs. Guffey testified that she was continuing to have problems with her back and with her legs through 2008 and 2009, and her treatment with Dr. Katz continued. In May of 2009, Dr. Katz referred Mrs. Guffey to Dr. Quillin who began treating her for depression. She also saw Ms. Paige Quillin for pain management through 2009. During this time, Mrs. Guf-fey was receiving workers’ compensation benefits.

In February of 2010, the month that her benefits were terminated, Mrs. Guffey testified that she was still having issues with pain in her back and problems with her legs. She also described continued anxiety, an inability to concentrate, and depression for which she continued to see Dr. Quillin into 2010. Mrs. Guffey also returned to Dr. Leglue in March of 2010 with continuing complaints of back pain and leg problems including falls secondary to her legs giving out on her. Additionally, Mrs. Guffey was still under the care of Dr. Katz for pain management. In light of her complaints, Dr. Leglue ordered a repeat MRI in April of 2010. Dr. Leglue, at that point, felt that because of her worsening condition, Mrs. Guffey could not be helped conservatively; therefore, he recommended that she return to Dr. Nanda. A repeat myelogram ordered by Dr. Nanda was done in September of 2010, prior to her visit with him in January of 2011, and approximately three weeks before trial. At this visit, the option of a surgical fusion was discussed. Mrs. Guffey had also recently seen Dr. Quillin and had an upcoming appointment with Dr. Katz.

| sin support of its termination of benefits in February 2010, Acadiana Computer Systems relies on the vocational rehabilitation services performed by Mr. Fontenot. Specifically, it notes that Dr. Leglue, Dr. Katz, and Dr. Quillin had each approved both of the jobs which had been located by Mr. Fontenot and offered to Mrs. Guffey by Acadiana Computer Systems. Once the jobs were approved and tendered to Mrs. Guffey, she did not report to work in February of 2010.

Undisputedly, each of the physicians initially approved the jobs that were tendered to Mrs. Guffey. However, each physician subsequently changed his opinion on Mrs. Guffey’s ability to return to work given her need for continued treatment, as evidenced by objective medical findings. In March of 2010, Mrs. Guffey was seeing Dr. Katz regularly for pain management. She also returned to Dr. Leglue with complaints of having fallen. Notably, Dr. Leglue felt that Mrs. Guffey should be seen again by Dr. Nanda. The repeat myelogram requested by Dr. Nan-da, done in September of 2010, showed a large disc protrusion and nerve root impingement which had progressed from her prior studies. Her condition, according to Dr. Nanda, warranted a lumbar fusion.

Thus, although Mrs. Guffey was considered to have been at maximum medical improvement when the three physicians approved her return to work, her condition continued to worsen. In its oral reasons, the WCJ noted that the critical inquiry relative to her disability status was not “whether treatment is ongoing, but whether ongoing treatment is required.” The need for Mrs. Guffey to have ongoing treatment for her back which included a surgical recommendation, as well |nas her continued treatment for depression, is clearly evidenced in and warranted by the medical records.

Undisputedly, the jobs presented to Dr. Leglue were initially approved by him in January of 2010, as he was of the opinion that Mrs. Guffey was not in need of further medical treatment at that time. However, his testimony was clear that when she returned to see him in March of 2010, his opinion had changed. As of March 31, 2010, Dr. Leglue felt that Mrs. Guffey’s condition was such that she was not capable of performing the jobs that had been offered to her by Acadiana Computer Systems. Moreover, it was his opinion that as of that date, Mrs. Guffey was temporarily totally disabled. Similarly, Dr. Quillin testified that although he was initially hopeful that Mrs. Guffey could return to work and that he did approve the jobs presented to him, in 2010, he came to the conclusion that, in light of her continued psychological problems, she was not going to be able to perform the jobs. Additionally, Dr. Quillin is of the opinion that Mrs. Guffey is still in need of follow-up treatment. Finally, consistent with the opinion of the other two physicians, Dr. Katz’s progress note of May 3, 2010, clearly states that he did “not think that it [was] appropriate for [Mrs. Guffey] to return to work[-]related activity.” Dr. Katz’s notes further evidence the need for continued treatment and his intention to reevaluate Mrs. Guffey and adjust medications as needed. Thus, the medical evidence irrefutably shows that all three of Mrs. Guffey’s treating physicians indicated that she was unable to work.

In its oral reasons, the WCJ concluded (emphasis added) that “based upon [the] jurisprudence and [the] medical records, and the worsening condition, that Mrs. Guffey has demonstrated that she’s entitled to continued temporary/total disability benefits, and these should be reinstated from the time that she saw Dr. Leglue in March of 2010.” Having reviewed the evidence in this case, we find 17that the record supports the WCJ’s determination that Mrs. Guffey proved by clear and convincing evidence that she is physically unable to engage in any kind of employment. Given the evidence in the record, we conclude that the WCJ was not manifestly erroneous in finding Mrs. Guffey temporarily totally disabled and in awarding the reinstatement of TTD benefits.

In its second assignment of error, Acadiana Computer Systems asserts that the WCJ erred in awarding penalties and attorney fees for its failure to reinstate benefits. We disagree.

In rendering the award, the WCJ reasoned that Acadiana Computer Systems could not “blindly rely upon old medical records[.]” Rather, it had a duty “to continue to investigate to assess the disability status” of Mrs. Guffey. Considering the evidence discussed above relative to the worsening condition of Mrs. Guffey, the need for her continued treatment, and despite the lack of any evidence of any effort on the part of Acadiana Computer Systems to investigate further in order to dispute these findings, Acadiana Computer Systems failed to reinstate her benefits even though three physicians had opined that she was unable to return to work. An appellate court reviews a WCJ’s award of penalties and attorney fees under the manifest error/clearly wrong standard. Scott v. City of Pineville, 08-1410 (La.App. 3 Cir. 4/1/09), 8 So.3d 813, writ denied, 09-981 (La.6/19/09), 10 So.3d 742. For the foregoing reasons, we find no manifest error in the WCJ’s award of penalties and attorney fees.

Answer to Appeal

Mrs. Guffey has answered the appeal, alleging that the attorney fee awarded by the WCJ is insufficient. She also seeks an additional attorney fee award for the work done on appeal. The WCJ awarded Mrs. Guffey $5,000.00 in attorney fees. We find no abuse of discretion in the amount of that award; therefore, we affirm |8same. Considering the additional work necessitated by the appeal, we award additional attorney fees of $3,500.00 in favor of Mrs. Guffey for work done on appeal.

DECREE

For the reasons assigned, the judgment of the trial court in favor of Rose Guffey is affirmed in its entirety. Additionally, we render an attorney fee award of $3,500.00 in favor of Rose Guffey and against Louisiana Retailers Mutual Insurance Company and Acadiana Computer Systems, Inc. for the work done on appeal. Costs of this appeal are assessed to Acadiana Computer Systems, Inc. and Louisiana Retailers Mutual Insurance Company.

AFFIRMED AND RENDERED.

      . In Stoute v. Petroleum Center, 07-1533, p. 4 (La.App. 3 Cir. 4/2/08), 980 So.2d 818, 821, this court stated that "[t]he question for the court is not whether treatment is ongoing, but whether ongoing treatment is required.”