source: Caselaw Access Project

author: KUHN, J. HIGGINBOTHAM, J„

license: Public Domain

text:
    Dr. Ralph SLAUGHTER v. BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE.
    No. 2010 CA 1114.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 2, 2011.
    Rehearing Denied Aug. 31, 2011.

      Jill L. Craft, Baton Rouge, LA, for Plaintiff-Appellant Dr. Ralph Slaughter.
    Lewis 0. Unglesby, Baton Rouge, LA, for Defendant-Appellee Board of Supervisors of Southern University and Agricultural & Mechanical College.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   KUHN, J.

12Pr. Ralph Slaughter (Dr. Slaughter) appeals the trial court’s judgment ordering him to pay monetary sanctions, attorney fees, and costs. For the reasons that follow, we affirm the judgment of the trial court.

BACKGROUND

Dr. Slaughter, the former President of the Southern University System, filed suit in September 2009 against the Board of Supervisors of the Southern University and Agricultural and Mechanical College System (Board) for past due wages. After a trial, the judge orally rendered judgment in favor of the Board. A few days later, but before the written judgment was signed, Dr. Slaughter filed a motion to recuse the trial judge, Judge Timothy Kelley (Judge Kelley). The motion alleged that Judge Kelley was biased and prejudiced against Dr. Slaughter and his counsel, Jill Craft (Ms. Craft), and failed to disclose on the record that his wife, Angele Davis (Ms. Davis), was the Louisiana Commissioner of Administration.

The motion to recuse was supported by Dr. Slaughter’s affidavit, verifying that all the facts and allegations in the motion and accompanying memorandum were true and correct to the best of his knowledge, information, and belief. Dr. Slaughter’s affidavit further expressly stated that “[a]t no time prior or during trial ... did Judge Kelley disclose to me that he is the spouse of Commissioner of Administration, Angele Davis”; that at the trial, Ms. Davis’ name was mentioned by the last two witnesses, including a state employee who “ultimately reports” to |sMs. Davis; and that Judge Kelley mocked Ms. Craft and “openly expressed contempt toward” Dr. Slaughter and Ms. Craft during the trial.

The Board opposed the motion, arguing that the record did not reflect the facts alleged in support of the claim of bias and that Ms. Craft knew about the relationship between Judge Kelley and Ms. Davis before the trial, but failed to tell Dr. Slaughter. The Board further argued because neither the State of Louisiana nor the Division of Administration is a party to the suit, the motion’s second ground was invalid, and the motion was frivolous.

Judge Kelley ordered that the motion to recuse be referred to another judge for hearing; the motion was allotted to Judge Janice Clark (Judge Clark). Prior to the recusal hearing, Dr. Slaughter filed a motion to recuse Judge Clark on the basis that the Board’s attorneys (the law firm of DeCuir, Clark & Adams, as well as Winston G. DeCuir, Sr. and Winston G. De-Cuir, Jr.) were representing Judge Clark and her husband in a pending lawsuit in city court.

The Board maintained that the motion to recuse Judge Clark was untimely because before the motion was filed, Ms. Craft knew the DeCuir firm, as well as Winston G. DeCuir, Jr. and Sr., had withdrawn as counsel of record for the Board. The Board also asserted that Ms. Craft had knowledge of Judge Clark’s legal representation by the DeCuirs as far back as 2007. At that time, Ms. Craft was representing Dr. Slaughter in a different lawsuit against the Board, and Judge Clark, who was presiding over the matter, disclosed that the Board’s attorney, the DeCuirs, also represented her.

14Judge Clark denied the motion to re-cuse herself. The next day, Judge Clark denied the motion to recuse Judge Kelley and concluded that motion was untimely. In her oral reasons, Judge Clark reasoned that the evidence produced at the hearing showed before the lawsuit for past due wages was filed Ms. Craft was aware Ms. Davis was married to Judge Kelley. Judge Clark further found that the evidence failed to support the ground of bias.

Dr. Slaughter filed an application for supervisory writs in this court, seeking review only as to Judge Clark’s ruling denying the motion to recuse herself and her failure to refer that motion to another judge. The record does not reflect that a request for a stay of the proceedings was made to the trial court or this court.

While the writ application was pending, the Board filed a motion for sanctions, arguing that both motions to recuse were frivolous and that the Board was entitled to an award of sanctions, attorney fees, and costs against Dr. Slaughter and Ms. Craft. After argument at the March 15, 2010 hearing, Judge Kelley ordered Dr. Slaughter to pay sanctions in the amount of $500 to the district court, attorney fees in the amount of $7,500 to the Board’s attorney, Mr. Lewis Unglesby (Mr. Un-glesby), and to pay “all sums with interest from the date of judgment and all further costs that may be incurred as a result of the sanctions.” Judge Kelley did not issue sanctions against Ms. Craft; nor was she cast in | ¡judgment.

On April 22, 2010, this court granted Dr. Slaughter’s application for writs in Slaughter v. Board of Supervisors, 2010-0281 (La.App. 1st Cir.4/22/10), pertaining to Judge Clark’s ruling denying the motion to recuse herself. The action was as follows:

WRIT GRANTED. The Judge’s ruling of January 25, 2010, denying plaintiffs motion to recuse her is reversed and judgment is entered remanding this matter for reallotment of the motion to recuse Judge Clark to another division for consideration. Plaintiff has presented sufficient grounds to require such reallotment.

The record reflects that on May 24, 2010, Dr. Slaughter filed a motion to vacate the January 25, 2010 ruling by Judge Clark denying the motion to recuse Judge Kelley. Dr. Slaughter argued that Judge Clark’s ruling as to the recusal of Judge Kelley became null and void by this court’s writ action reversing Judge Clark’s ruling on motion to recuse herself. The Board opposed the motion to vacate, arguing that the writ action only applied to the issue of whether Judge Clark should have referred for reallotment the motion to recuse herself. The Board asserted the proper procedure would be to hold the motion to vacate in abeyance until a decision on the motion to recuse Judge Clark was rendered.

The appellate record does not reveal the disposition of the motion to vacate, but on June 17, 2010, another judge of the district court signed a judgment, stating that the motion to recuse Judge Clark was moot and ordering the reallotment of the motion to recuse Judge Kelley. The motion to recuse Judge Kelley was realloted to Judge Wilson Fields (Judge Fields). After a hearing, Judge Fields denied the motion to recuse Judge Kelley. Judge Fields reasoned that prior to the trial of the wage suit, Ms. Craft knew that Judge Kelley was married to Ms. Davis, that Ms. | nDavis’ name was only mentioned during the testimony of the last two witnesses at the trial, that a review of the trial transcript did not indicate any bias against Dr. Slaughter or Ms. Craft, and that it appeared Judge Kelley made his ruling in the wage suit based on the law. On August 3, 2010, Judge Fields signed the written judgment denying the motion to recuse Judge Kelley.

STANDARD OF REVIEW

Dr. Slaughter contends that the issue of whether the motions to recuse Judges Kelley and Clark were frivolous, is a question of law, and thus, warrants a de novo review. The Board argues that because the issue involves the imposition of sanctions, the applicable standard is manifest error.

A trial court’s determination regarding the imposition of sanctions is subject to the manifest error or clearly wrong standard of review. Once the trial court finds a violation of La. C.C.P. art. 863 and imposes sanctions, the determination of the type and/or the amount of the sanction is reviewed on appeal utilizing the abuse of discretion standard. Stroscher v. Stroscher, 2001-2769 (La.App. 1st Cir.2/14/03), 845 So.2d 518, 526; Connelly v. Lee, 96-1218 (La.App. 1st Cir.5/9/97), 699 So.2d 411, 414, writ denied, 97-2825 (La.1/30/98), 709 So.2d 710.

APPLICABLE LAW

To impose sanctions, a trial court must find that one of the affirmative duties imposed by Article 863 has been violated. Connelly, 699 So.2d at 414. Article 863 provides, in pertinent part:

|7B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.
(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief....
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction....
G. If the court imposes a sanction, it shall describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed.

Article 863 imposes an obligation on litigants and their attorneys to make an objectively reasonable inquiry into the facts and law; subjective good faith will not satisfy this duty of reasonable inquiry. Connelly, 699 So.2d at 414. The article | sdoes not empower a trial court to impose sanctions simply because a particular argument or ground for relief is subsequently found to be unjustified; failure to prevail does not trigger an award of sanctions. Article 863 is intended to be used only in exceptional circumstances; where there is even the slightest justification for the assertion of a legal right, sanctions are not warranted. Tubbs v. Tubbs, 96-2095 (La.App. 1st Cir.9/19/97), 700 So.2d 941, 945.

La. C.C.P. arts. 151-161 provide the grounds and procedures for recusing a judge. Article 151(A) provides, in pertinent part, that a judge shall be recused when he:

(3) Is the spouse of a party ... [or]
(4) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys or any witness to such an extent that he would be unable to conduct fair and impartial proceedings.

A judge is presumed to be impartial. The grounds for recusal enumerated in Article 151 are exclusive and do not include a “substantial appearance of the possibility of bias” or even a “mere appearance of impropriety” as causes for removing a judge from presiding over a given action. Article 151 requires a finding of actual bias or prejudice, which must be of a substantial nature and based on more than conclusory allegations. Whalen v. Murphy, 2005-2446 (La.App. 1st Cir.9/15/06), 943 So.2d 504, 509, writ denied, 2006-2915 (La.3/16/07), 952 So.2d 696; Augman v. City of Morgan City, 2003-0396 (La.App. 1st Cir.12/31/03), 864 So.2d 248, 249; Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc., 2000-1930 (La.App. 1st Cir.9/28/01), 809 So.2d 1040, 1050.

| ^Article 154 provides:

A party desiring to recuse a judge of a district court shall file a written motion therefor assigning the ground for recu-sation. This motion shall be filed prior to trial or hearing unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after these facts are discovered, but prior to judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge or a judge ad hoc, as provided in Articles 155 and 156, for a hearing.

A motion to recuse the trial judge filed after the trial or hearing is completed, but before judgment is signed, is timely under Article 154, if the grounds for recusal are discovered after the trial or hearing. See Suazo v. Suazo, 2007-0795 (La.App. 1st Cir.9/14/07), 970 So.2d 642, 651 n. 6, writ denied, 2007-2291 (La.12/14/07), 970 So.2d 539; see also Radcliffe 10, L.L.C. v. Zip Tube Systems of Louisiana, 2006-0128 (La.11/3/06), 942 So.2d 1071, 1073-74. In other words, the motion to recuse must be filed immediately after the party discovers the facts constituting the grounds for recusation. Id.

In Southern Casing of Louisiana, Inc., this court addressed the issue of a judge’s recusation based on the defendant’s allegations of bias, prejudice or interest in the outcome; the defendant also argued the trial judge should have been recused in order to avoid any appearance of bias in favor of the plaintiff. This court stated:

Recusation of a judge involves either a judge removing himself or being removed from a case and being replaced by another judge. Recusal may be voluntary as when a judge takes himself off a case for legally compelling reasons or simply because he believes that he cannot fairly and impartially judge a matter before him. La. C.C.P. art. 152; La. C.Cr.P. art. 672. It may be involuntary as when a litigant files a motion to re-cuse for stated legal reasons, the judge refuses to recuse himself, and court proceedings thereafter result in his being recused by another trial judge or by an appellate court. La. C.C.P. art. |1ft151; La.C.Cr.P. art. 671; In re Lemoine, 96-0-2116, p. 4 (La.1/14/97), 686 So.2d 837, 839, on rehearing. 692 So.2d 358.
In each possible recusal situation, there is a countervailing consideration that militates in favor of a judge’s not recusing himself, or being recused. It is that the judge has an obligation, part of his sworn duty as a judge, to hear and decide cases properly brought before him. He is not at liberty, nor does he have the right, to take himself out of a case and burden another judge with his responsibility without good and legal cause. Id. at 839-840.
Matters relating to judicial disqualification due to kinship, personal bias, and remoteness of interest are generally matters of legislative discretion. The traditional common law rule was that a judge could not be disqualified for bias or prejudice. But the recent trend has been to adopt statutes permitting disqualification on those grounds. Pierce v. Charity Hosp. Of La., 550 So.2d 211, 213 (La.App. 4th Cir.1989), writ denied, 551 So.2d 1341 (La.1989). Although La. C.Cr.P. art. 671 has included bias and prejudice as a ground for recusation in criminal cases since 1966, La. C.C.P. art. 151 did not include those grounds until 1987. Prior to that time, impartiality, bias, and prejudice were not statutory grounds for recusation in a civil matter. Id. Currently, both La.C.Cr.P. art. 671 and La. C.C.P. art. 151 list as a recusal ground such bias or prejudice that results in an inability to conduct fair and impartial proceedings.

Southern Casing of Louisiana, Inc., 809 So.2d at 1049-51.

In Suazo, the wife appealed from a judgment holding her in contempt of court for failing to permit her ex-husband to exercise physical custody of their minor child. Ms. Suazo also filed a writ application seeking review of the denial of a motion to recuse the trial judge on the basis of bias against her. Ms. Suazo alleged that the trial judge called her a liar, acted discourteously and insensitive toward her, and that his behavior and demeanor toward her was inappropriate. She also alleged that the judge was biased because he had unlawfully found her in contempt of court. The judge hearing the motion to recuse concluded Ms. Suazo failed to meet her burden of proof and denied the motion. This judge noted that “while the trial judge may have inappropriately used the term liar’ out ofj^frustration in connection with Ms. Suazo, such is not enough to show the trial judge is prejudiced.” Suazo, 970 So.2d at 651-52. Ms. Suazo sought supervisory writs in this court. After a review of the record, we found no error and denied writs. This court stated:

Not only were the trial judge’s actions proper and apparently warranted ... [w]e take offense and issue with the fact that in the documents submitted by counsel for Ms. Suazo, counsel distorted facts and implied that [the trial judge] engaged in illegal action, acted punitively, and was intractably biased. This [c]ourt admonishes counsel for this offensive, unprofessional behavior.

Suazo, 970 So.2d at 652.

The Suazo concurrence cautions “courts and litigants of the obvious dangers to our system of justice — the use of a motion to recuse as a litigation tool in response to unfavorable rulings.” 970 So.2d at 652.

MOTION AND HEARING

The Board’s motion for sanctions against Dr. Slaughter and Ms. Craft alleged that Dr. Slaughter’s two post-trial motions to recuse Judge Kelley and Judge Clark, as well as two motions for new trial based on the same allegations, were factually incorrect, baseless, frivolous, and an abuse of the legal system. Dr. Slaughter opposed the motion for sanctions, arguing that Judge Kelley lacked jurisdiction to hold the sanctions hearing because of the' pending writ application seeking review of Judge Clark’s ruling denying the motion to recuse herself. Dr. Slaughter argued another reason the judge lacked jurisdiction was his motion for suspensive appeal was pending and that appeal would review the rulings on the motions to recuse. However, at the hearing, Judge Kelley noted that he had not ] 19yet signed the motion for suspensive appeal because the motion for sanctions was filed first.

Because the sanctions issue involved a determination of whether the motions to recuse were frivolous, the arguments of both counsel addressed the grounds for the motions to recuse.

During the sanctions hearing, Ms. Craft argued that Judge Kelley had not advised Dr. Slaughter of his relationship to the Commissioner of Administration and that Dr. Slaughter had “no idea that Ms. Davis was [the judge’s] wife, none, absolutely none.” Ms. Craft admitted that she “absolutely” knew of the relationship, but contended there was “no way I would have known that she was directly a party, issuing orders that you [Judge Kelley] relied on, except through the testimony of Althea Basil on the last day of trial.” Ms. Craft stated Dr. Slaughter did not become aware Ms. Davis was the judge’s wife until after the trial when she gave him a copy of an ethics opinion letter.

The letter from the Louisiana Supreme Court Committee on Judicial Ethics to Judge Kelley pertained to his handling of civil matters involving certain state agencies named as a party and required disclosure on the record by the judge of his wife’s position. The letter, which was introduced into evidence, indicates that in 2008, the Supreme Court’s committee on Judicial Ethics responded to Judge Kelley’s question as to whether it was ethically permissible for a judge, who is married to the Commissioner of Administration, to preside over civil matters in which the State of Louisiana is a named party. The Committee responded “in the affirmative, provided that the judge does not harbor actual bias toward any of the parties, and that none of the following entities is named in the lawsuit before the |13judge.” The letter specifically named 82 agencies, including the Division of Administration and the Louisiana Property Assistance Agency (LPAA). The opinion further stated the list of agencies “is not exhaustive, and the judge should periodically review the job duties of the Commissioner of Administration to evaluate whether there are other entities of which the Commissioner either serves as head, or as a member of the board of directors.” The letter further stated that:

[Disclosure on the record of the spouse’s position as Commissioner of Administration is required to maintain the manifestation of impartiality in all civil matters in which the State of Louisiana is a named party. In the event one of the parties objects to the judge presiding over the matter, the judge should either recuse himself, or instruct the objecting party to file a motion for recusation, which shall be decided in accordance with the Louisiana Code of Civil Procedure.

Ms. Craft argued the relationship was pertinent because two trial witnesses referred to Ms. Davis during their testimony. Ms. Craft claimed that Ms. Althea Basil, Southern University’s property manager, testified she received a letter from Ms. Davis ordering that computers in the Southern University System President’s office be tagged. Judge Kelley responded that the order from the Commissioner of Administration regarding tagging of state property was “a statewide order to everybody.” Judge Kelley also responded that because neither Southern University nor the Board were entities under the direction of the Commissioner of Administration, and neither the State of Louisiana nor one of the state agencies named in the ethics advisory opinion letter were named as parties in the lawsuit, he was not required to notify the parties of his wife’s position or recuse himself. The other witness, Mr. Floyd Rector, a supervisor in the compliance office of the LPAA, testified about a property inventory he conducted in the Southern University System President’s office after Dr. Slaughter retired. During his 114testimony, Mr. Rector mentioned the Commissioner of Administration while explaining that La. R.S. 39:330 provided the options that are available to the Commissioner after an investigation of lost, stolen, damaged, destroyed or otherwise unaccounted for property. Ms. Craft also pointed to Judge Kelley’s behavior as a basis for recusal, including his comments that Ms. Craft was “singing a song” when she objected, and a discussion about a hunting trip with Mr. Unglesby. Judge Kelley noted that during the conversation about hunting, Ms. Craft commented that she did not hunt and the discussion was among “three people who have known each other a long time talking about stuff that had nothing to do with the hearing.” The judge further stated he had not shown any favoritism toward Mr. Unglesby and then related that Mr. Unglesby had tried to punch him in the nose during the judge’s first election.

Mr. Unglesby argued Ms. Craft was aware of the Supreme Court’s advisory ethics opinion when the wage suit was allotted to Judge Kelley, and she should have immediately filed the motion to re-cuse.

TRIAL COURT’S RULING

In rendering oral reasons for judgment and ordering sanctions, Judge Kelley concluded that the “recusal motion” contained false statements, was frivolous, and was not filed in good faith. Judge Kelley also concluded the motion was not filed | ,5timely, and was to “postpone the effectiveness of the judgment.”

DISCUSSION

In this appeal, Dr. Slaughter argues that both motions to recuse were well grounded, filed in good faith, and warranted by existing law, and thus, the trial court erred in ordering sanctions and imposing attorney fees.

Dr. Slaughter contends that when Judge Kelley referred the motion to another judge, he essentially made a finding that the motion was based on a valid ground, and thus, was not frivolous. Dr. Slaughter contends that based on the provisions of Article 154, the only reason judge Kelley referred the motion was because he concluded it presented a valid ground “on its face.” He further argues the judge cannot subsequently impose sanctions after finding there was a valid ground for the recusal motion.

Article 154 mandates that if a valid ground exists, a judge shall either recuse himself or refer the motion to another judge. The article’s provisions merely mandate when a judge must refer a recusal motion. Nothing in the language of that article prevents a judge from referring all recusal motions without a determination as to the validity of the ground(s), or from referring a recusal motion the judge concludes lacks a valid ground. Accordingly, we reject Dr. Slaughter’s interpretation of Judge Kelley’s actions.

Next, Dr. Slaughter argues that the recusal motion was based on a valid ground that Judge Kelley was biased against him and Ms. Craft. As support for this conclusory allegation, he refers to Judge Kelley’s comments during the oral | ^reasons for judgment on the wage suit. Dr. Slaughter contends Judge Kelley’s comments that Ms. Craft could be subject to disciplinary charges for filing the frivolous motions and his “advice” that Dr. Slaughter sue Ms. Craft for malpractice are evidence of bias and prejudice. Dr. Slaughter further argues that Judge Kelley’s contempt for him and his attorney is apparent from the sanctions hearing transcript that shows the judge interrupted, yelled at, and chided Ms. Craft. He also contends that Judge Kelley was prejudiced because of his relationship to the Commissioner of Administration. As to the ground that the judge failed to reveal his relationship with the Commissioner of Administration, Dr. Slaughter points to another lawsuit, involving the Louisiana State University Board of Supervisors as a named defendant, in which Judge Kelley recused himself. Dr. Slaughter contends the Board in this case is no different from the LSU Board of Supervisors in the other suit, and that if Judge Kelley was required to recuse himself in that lawsuit, the same holds true in this matter.

Dr. Slaughter offers absolutely no evidence that Judge Kelley was biased, prejudiced, interested in the outcome of this case, or that he was biased or prejudiced toward or against any of the attorneys. Moreover, there is nothing in the record that supports a finding that Judge Kelley was biased in favor of the Board because his wife was the Commissioner of Administration and her name and/or position were mentioned during the testimony of two witnesses. It is clear from the evidence that Ms. Davis was not a party to the lawsuit, she was not a witness during the trial, and that the order to tag state property was not sent to Southern University as a result of particular events in this case and no state agencies were named as parties in the lawsuit.

|17As to the issue of timeliness of the motion to recuse, the Board argues that although Ms. Craft knew of the alleged grounds, she waited until after Judge Kelley rendered an adverse judgment to seek recusal. Moreover, the Board argues Dr. Slaughter and his attorney used the legal system to cause chaos and that he was aware the allegations were unfounded.

Dr. Slaughter relies on the Louisiana Supreme Court’s opinion in Radcliffe 10, L.L.C., as support for his position. That case involved a dispute over the value of assets Radcliffe purchased from the defendant. Prior to trial, the judge voluntarily disclosed that Radcliffe’s principal expert witness on the issue of damages had served as his campaign treasurer. After the trial, the judge rendered judgment in favor of Radcliffe and awarded damages in excess of 3.4 million dollars. Based on an investigation after the trial of the relationship between the expert witness and the judge, the defendant filed a motion to re-cuse. At the hearing on the motion, the presiding judge concluded the motion was untimely because the trial judge had disclosed the relationship before the trial. Defendant’s application for supervisory writs in this court was denied without language. Judge Guidry dissented, with language that the motion was filed immediately after the defendants discovered the facts constituting the ground for recusal. The supreme court granted the defendant’s writ application in that court to decide whether the recusal motion was timely. The supreme court found the motion was filed timely and explained that while a practicing attorney, the judge represented the witness in several real estate transactions and civil actions and that they had a twenty-year relationship as business partners. The supreme court concluded the trial judge’s “voluntary disclosure was insufficient to provide the average person notice of the |1strue extent of their relationship, or put them on notice that they should make further inquiry into the facts of the relationship.” The court further noted that the relationship was more extensive than mere participation in a judicial campaign and that the defendant filed the recusal motion immediately after discovering the facts constituting the grounds for recusal. Id., 942 So.2d at 1075.

The facts of the instant case can be distinguished from those in Radcliffe 10, L.L.C. In this appeal, a review of the entire record supports a finding that the motion to recuse was untimely. The record reflects that Ms. Craft knew of Judge Kelley’s relationship to Ms. Davis for over a year before the trial. Also, at trial Ms. Craft introduced a letter sent from the LPAA to Southern University regarding unlocated property that had been assigned to the President’s office. The letterhead clearly indicated the LPAA was under the Division of Administration. Moreover, when this same letter was introduced by Mr. Unglesby, Ms. Craft acknowledged that she had already seen the letter. Thus, Ms. Craft was clearly aware, prior to trial, of the involvement of an agency under the Division of Administration. The knowledge of an attorney, actual or otherwise, is imputed to his or her client. See Stevison v. Charles St. Dizier, Ltd., 2008-887 (La.App. 3d Cir.3/25/09), 9 So.3d 978, 981, writ denied, 2009-1147 (La.10/2/09), 18 So.3d 116.

DECREE

After a complete review of the record, we find no manifest error in the trial court’s decision to impose sanctions against Dr. Slaughter. Nor did the trial judge abuse his discretion in the amount of sanctions and attorney fees imposed. The trial court’s judgment imposing sanctions in the amount of $500, attorney fees in | ^the amount of $7,500, and ordering costs imposed against Dr. Slaughter is affirmed.

AFFIRMED.

HIGGINBOTHAM, J. dissents and assigns reasons.

HIGGINBOTHAM, J„

dissenting.

1,1 respectfully dissent from the majority, because I find that Slaughter’s initial motion to recuse was timely and not frivolous; and therefore, the trial court had no basis to impose sanctions against Slaughter. Although the trial court had issued oral reasons for judgment on the suit for past due wages, the written judgment was not signed prior to the filing of Slaughter’s motion to recuse Judge Kelley. I disagree with the majority’s distinction of the facts in this case from those in Radcliffe 10, L.L.C. v. Zip Tube Systems of Louisiana, 06-0128 (La.11/3/06), 942 So.2d 1071, 1075. I find the majority’s reasoning on the timeliness of the motion to be contrary to the intent of LSA-C.C.P. art. 154, which requires the party to file a written motion immediately after the discovery of the facts alleged to constitute grounds for re-cusation and prior to judgment. Slaughter’s grounds for recusation were not fully-discovered until the end of the trial on the merits of the past due wages claim. Slaughter immediately filed the motion to recuse prior to the signing of the -written judgment as required by Article 154. Thus, the motion was timely.

Furthermore, Judge Fields heard Slaughter’s motion to recuse and necessarily found it was timely when he denied the motion. Thus, I believe the majority erred in relying on Judge Kelley’s independent determination on the ^motion for sanctions that Slaughter’s motion to recuse was untimely. Judge Fields’ ruling on the motion to recuse is not before us in this appeal. The only issue in this appeal is whether the trial court was manifestly erroneous in imposing sanctions against Slaughter pursuant to LSA-C.C.P. art. 868. It is well-settled that Article 863 sanctions are not to be used simply because parties disagree as to the correct resolution of a matter in litigation. Witter v. Witter, 94-0378 (La.App. 1st Cir.12/22/94), 648 So.2d 1052, 1053. In Witter, we stated:

Article 863 does not empower a district court to impose sanctions on lawyers simply because a particular argument or ground for relief is subsequently found to be unjustified; failure to prevail does not trigger an award of sanctions. The article is intended to be used only in exceptional circumstances; where there is even the slightest justification for the assertion of a legal right, sanctions are not warranted. (Citations omitted; emphasis added.)

Witter, 648 So.2d at 1053. See also Tubbs v. Tubbs, 96-2095 (La.App. 1st Cir.9/19/97), 700 So.2d 941, 945.

The trial court obviously did not agree with Slaughter’s argument on the motion to recuse, and Judge Fields did not find Slaughter’s motion to be meritorious, but that is not the test to determine whether to impose Article 863 sanctions. The test is not whether the trial court finds the arguments had merit, but whether there was the slightest justification for them. Witter, 648 So.2d at 1053. .While making no finding on the merit of Slaughter’s motion to recuse, I conclude that Slaughter was legally justified in filing the motion. For this reason, the trial court was clearly wrong in imposing sanctions under Article 863.

Accordingly, I respectfully dissent from the majority and would reverse the judgment of the trial court and render judgment dismissing the Board’s motion for sanctions.

      . The trial court signed the written judgment in the suit for past due wages on February 4, 2010. This Court’s opinion in Slaughter v. Board of Supervisors of Southern University and Agricultural and Mechanical College, 2010-1049 (La.App. 1st Cir.8/2/11), 76 So.3d 438, also rendered this date, addresses the appeal of that judgment.

      . The record shows that the DeCuirs’ motion to withdraw as counsel for the Board was filed on December 16, 2009, and granted on January 6, 2010. The motion to recuse Judge Clark was filed on January 20, 2010.

      . See Slaughter v. Board of Supervisors, 2010-0231 (La.App. 1st Cir.4/22/10) (an unpublished writ action).

      .After the written judgment on the motion for sanctions was signed, Dr. Slaughter filed a motion to amend the notice of appeal (previously filed as to the judgment on the suit for past due wages) to include the judgment on the sanctions issue; the motion was granted and the notice of appeal was amended. However, the appeals of the two judgments were separately prepared and lodged in this court. The Board’s motion to consolidate the appeals was denied by this court, but we ordered that both appeals be assigned to the same panel and placed on the same docket.

      . The transcript of the recusal hearing and Judge Fields' signed judgment is included in the appeal record in 2010 CA 1049. Pursuant to the provision of Uniform Rules of Louisiana Courts of Appeal, Rule 2-1.14 that provides ''[a]ny record lodged in this court may, with leave of court, be used, without necessity of duplication, in any other case on appeal or on writ,” we have reviewed the appropriate portions of the appellate record in 2010 CA 1049 that are necessary to adequately review the issues raised in the instant appeal.

      . It is not clear whether Judge Kelley's ruling is based on a finding that the motion to re-cuse Judge Clark was frivolous. Although the motion for sanctions was based on the filing of both motions to recuse, there was little argument at the sanctions hearing pertaining to the motion to recuse Judge Clark. Judge Kelley's oral reasons refer to the recusal motion in the singular, but the judge did not indicate which specific motion. Nor does the written judgment provide a basis for the ruling. The arguments presented in the briefs of both appellant and appellee appear to presume that sanctions were based on a finding that both motions to recuse were frivolous. We need not address the arguments regarding the motion to recuse Judge Clark, because the award of sanctions is proper based on the frivolous nature of only one motion.

      . Dr. Slaughter also presents arguments that the two motions for new trial were not frivolous. Although the Board's motion for sanctions were also based on a claim that the motions for new trial were frivolous, Judge Kelley’s oral reasons do not refer to the new trial motions and we do not address those arguments.


author: HUGHES, J.

text:
    Charles J. PAL, Jr. v. STRANCO, INC. and Louisiana Commerce & Trade Association Self Insurers Fund.
    No. 2010 CA 1507.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 3, 2011.

      Joseph G. Albe, New Orleans, LA, for Claimant/Appellant Charles J. Pal, Jr.
    John J. Rabalais, Janice B. Unland, Covington, LA, Thomas M. Ruli, John V. Quaglino, Metairie, LA, for Defendants/Appellees Stranco, Inc. and Louisiana Commerce & Trade Association Self Insurers Fund.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   HUGHES, J.

| ¿This is an appeal from a judgment of the Office of Workers’ Compensation (“OWC”), denying a claim for workers’ compensation benefits. For the reasons that follow, we reverse in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

On June 27, 2004 Charles J. Pal, Jr., while in the course and scope of his employment with Stranco, Inc. (“Stranco”), was involved in a motor vehicle accident. While Mr. Pal was not physically injured, the other motorist was killed. Because of the fatality, Mr. Pal suffered a mental or emotional injury.

On August 5, 2004, after his employer failed to pay for his psychiatric treatment, Mr. Pal filed the first of several disputed claims for compensation with the OWC. On February 8, 2006 judgment was rendered in favor of Mr. Pal, decreeing that Stranco was “obligated for past, present and future medical treatment ... as prescribed by Dr. James [Denney].” Mr. Pal’s request for indemnity benefits was denied, and although penalties and attorney fees were initially awarded, the OWC reversed that portion of the award on March 3, 2006. Thereafter, on April 15, 2006, Mr. Pal’s counsel forwarded a bill to Stranco’s counsel from Dr. Denney, in the amount of $700, noted to be the “[b]alance as of 06/01/06,” for treatment on the following dates: 8/19/04, 9/21/04, 10/20/04, 11/23/04, and 12/22/04.

Mr. Pal’s second disputed claim form was filed on June 14, 2007, asserting that Dr. Denney’s bill had not been paid and that further medical treatment had not been authorized; Mr. Pal’s out-of-pocket expenses, penalties, and attorney fees were also sought. This action was partially resolved, on November 20, 2007, by agreement of the parties, wherein Stranco agreed to the following:

IsEmployer will pay Dr. Denney’s outstanding medical bill and reimburse claimant for any out-of-pocket medical expenses. Employer will authorize claimant’s future prescriptions and check into a convenient method for obtaining prescriptions — i.e. a prescription card, etc.

In March of 2009, the parties further agreed that Mr. Pal would be allowed to select a new treating psychiatrist, and he selected Dr. John Macgregor. Mr. Pal’s second OWC action was then dismissed, without prejudice, on March 23, 2009.

Dr. Macgregor evaluated Mr. Pal on March 16, 2009 and issued a report on March 17, 2009. It was Dr. Macgregor’s stated opinion that Mr. Pal had been “severely emotionally traumatized” by the June 27, 2004 accident, causing him to develop numerous psychiatric symptoms, including: phobic avoidance of driving, nightmares, hypervigilance, panic attacks, depressive moods, anger, irritability, strained interpersonal relationships, verbal temper outbursts, lowered frustration tolerance, insomnia, severe loss of interest in activities, social isolation and withdrawal, decreased libido, impaired attention span and concentration, markedly lowered self-esteem and self-confidence, anorexia, nervous tension, and serious suicidal ideation. Dr. Macgregor further reported that Mr. Pal’s condition had been exacerbated by a subsequent near-miss incident, in which a motorcyclist had cut in front of, and almost hit, Mr. Pal’s vehicle. Dr. Macgregor noted that Mr. Pal had initially been treated by Dr. Denney, but due to a disagreement with his workers’ compensation carrier, that treatment had been interrupted. He further noted that Mr. Pal had then received treatment from his family physician, who had prescribed Mr. Pal psychotropic medication, and that Mr. Pal had further been undergoing psychotherapy at his own expense. Dr. Macgregor diagnosed Mr. Pal with: (1) Major Depressive Disorder (which he noted had been | ¿compounded by grief over the death of his wife), and (2) Post-Traumatic Stress Disorder. He related both of these conditions to the June 27, 2004 accident. Dr. Macgregor recommended that Mr. Pal continue to receive psychotropic medication and intensive psychotherapy. Notwithstanding this recommendation, the record does not reflect that any further medical treatment was authorized by the defendants.

On May 8, 2009 Mr. Pal filed the instant action with the OWC, in which he sought medical treatment, temporary total disability benefits, penalties, and attorney fees. Mr. Pal further asserted that the defendants’ failure to pay past medical expenses and to authorize continued medical treatment aggravated his mental condition, resulting in him becoming totally disabled and in need of a more comprehensive treatment plan. In addition to the June 27, 2004 accident, Mr. Pal alleged that he had been involved in subsequent incidents in which other motorists had “cut sharply in front of him,” which aggravated his condition. In defense of this action, the defendants asserted peremptory exceptions of prescription and res judicata.

On August 81, 2009 the OWC granted the defendants’ exceptions of prescription and res judicata as to the claim for indemnity benefits. Mr. Pal’s subsequent appeal of that judgment to this court was dismissed as having been taken from an unappealable, interlocutory judgment (this court noted that issues related to further medical treatment were still outstanding and therefore the judgment appealed did not wholly resolve the merits). See Pal v. Stranco, Inc., 2009-2176 (La.App. 1 Cir. 2/17/10) (unpublished).

| ¡After further litigation before the OWC, the parties reached an agreement as to some of the contested issues, and a consent judgment was signed on June 25, 2010. In the consent judgment, Straneo and its insurer agreed to pay Mr. Pal $12,000 for workers’ compensation benefits, penalties, attorney fees, and “any and all claims which [Mr. Pal] might have under the Louisiana Workers’ Compensation Act, from the date of the alleged accident, June 27, 2004, through June 11, 2010” ($6,000 was designated as penalties and $6,000 was designated as attorney fees). However, the right of Mr. Pal to “benefits from June 12, 2010, into the future” was specifically reserved to him. Further, Mr. Pal’s right to appeal the OWC’s August 31, 2009 judgment, which had granted exceptions of prescription and res judicata, in favor of the employer and its insurer, was also specifically reserved. The consent judgment dismissed all other claims made by Mr. Pal.

Thereafter, on December 18, 2010, the OWC rendered judgment reiterating its prior ruling granting the defendants’ exceptions of prescription and res judicata as to the claim for indemnity benefits, dismissing the claim for indemnity benefits with prejudice, and designating the judgment as final, pursuant to LSA-C.C.P. art. 1915. Mr. Pal appeals the OWC’s granting of the defendants’ exceptions of prescription and res judicata and the dismissal of his claim for indemnity benefits.

|fiLAW AND ANALYSIS

OWC Finding of Res Judicata

In general, the doctrine of res judicata, as set forth in LSA-R.S. 13:4231, bars a subsequent action when all of the following elements are satisfied, vis-á-vis a prior action: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. See Burguieres v. Pollingue, 2002-1385, p. 8 (La.2/25/03), 843 So.2d 1049, 1053. The doctrine of res judicata also applies when the opposing parties enter into a compromise or settlement of a disputed matter. Chaisson v. Central Crane Service, 2010-0112, p. 5 (La.App. 1 Cir. 7/29/10), 44 So.3d 883, 886 (citing Ortego v. State, Department of Transportation and Development, 96-1322, p. 6 (La.2/25/97), 689 So.2d 1358, 1363).

Louisiana Revised Statute 13:4231 was substantially amended in 1990, and it now embraces the broad usage of res judi-cata to include both claim preclusion (traditional res judicata) and issue preclusion (collateral 17estoppel). Under issue preclusion or collateral estoppel, resolution of an issue of fact or law essential to determination of the dispute precludes relitigation of the same issue in a different action between the same parties. Chaisson v. Central Crane Service, 2010-0112 at pp. 5-6, 44 So.3d at 886-87 (citing LSA-R.S. 13:4231, 1990 Comment (b); Mandalay Oil & Gas, L.L.C. v. Energy Development Corporation, 2001-0993, p. 9 (La.App. 1 Cir. 8/4/04), 880 So.2d 129, 135-36, writ denied, 2004-2426 (La.1/28/05), 893 So.2d 72).

However, as applied to workers’ compensation claims, res judicata does not bar re-litigation of claims subject to the OWC’s modification jurisdiction, as set forth in LSA-R.S. 23:1310.8(A) and (B). See Magee v. Abek, Inc., 2005-0388, pp. 2-3 (La.App. 1 Cir. 5/5/06), 943 So.2d 372, 373-74. The modification power of LSA-R.S. 23:1310.8(A) and (B) exists for the purpose of modifying awards due to a change in the worker’s condition. Because changes in medical condition and disability status are dynamic and ongoing by their nature, the legislature enacted LSA-R.S. 23:1310.8(A) and (B) to afford needed flexibility to ensure that benefits correspond to such changes. Res judicata thus cannot preclude litigation seeking a change in the amount of compensation benefits based upon a 1 ^change in disability. Chaisson v. Central Crane Service, 2010-0112 at p. 9 n. 6, 44 So.3d at 888 n. 6.

In this case, the defendants asserted that prior litigation between the parties (wherein Mr. Pal unsuccessfully sought indemnity benefits because of a claimed disability resulting from his original accident) precluded his subsequent claim for indemnity benefits. The OWC agreed and sustained the defendants’ exception of res ju-dicata. After reviewing the facts of this case and the cited authorities, we conclude the OWC erred in so doing, particularly in light of Mr. Pal’s allegations that events subsequent to his original action rendered him totally disabled. Such an alleged change in disability status is the type contemplated by LSA-R.S. 23:1310.8(A) and (B) to be subject to modification review by the OWC.

OWC Finding of Prescription

Louisiana Revised Statute 23:1310.8 also provides, in Paragraph (D), that a petition to modify a judgment awarding benefits “shall be subject to the prescriptive limitations established in R.S. 23:1209.” Mr. Pal argues on appeal that LSA-R.S. 23:1209 “does not control the time for enforcing a [jjudgment or collecting damages for the contempt,” which he argues includes post-judgment penalties and attorney fees, under LSA-R.S. 23:1201(G), and disability benefits for the aggravation which caused him to become disabled. We find no merit in this argument. First, we note that, in the June 25, 2010 consent judgment, Mr. Pal settled his claim for penalties and attorney fees related to the failure of the defendants to timely pay his medical benefits. Secondly, because indemnity benefits had previously been denied by judgment of the OWC, when Mr. Pal subsequently suffered a [pchange in his disability status, he was required to obtain a modification of the prior OWC judgment on the issue, pursuant to LSA-R.S. 23:1310.8(A) and (B), in order to receive those benefits. The remedy of contempt does not apply when no prior OWC judgment, decreeing the payment of indemnity benefits, was in place, and any contempt remedy applicable to the failure to timely pay medical benefits was waived in the June 25, 2010 consent judgment.

Mr. Pal further cites the case of Jones v. City of New Orleans, 2009-0369 (La.App. 4 Cir. 9/2/09), 20 So.3d 518, writ denied, 2009-2156 (La.12/18/09), 23 So.3d 947, as authority for his contention that LSA-C.C. art. 3499, rather than LSA-R.S. 23:1209, provides the proper prescriptive period for his action, which he asserts is one to enforce a prior judgment of the OWC. However, the facts of the Jones case are distinguishable from this case. In Jones, the OWC had rendered a judgment in favor of the claimant, awarding indemnity benefits, which were paid by the employer for over fifteen years and then terminated. The Jones court held the ten-year prescriptive period set forth in LSA-C.C. art. 3499 applicable when a judgment had been rendered, ordering the payment of workers’ compensation benefits, and the employer had been ordered to pay benefits “until the disability ceases.” See Jones v. City of New Orleans, 2009-0369 at p. 4, 20 So.3d at 521. However, in the instant case, the OWC did not render a judgment awarding Mr. Pal indemnity benefits, only medical benefits. Therefore, Mr. Pal’s action, seeking to have the OWC award indemnity benefits, is subject to the prescriptive periods set forth in LSA-R.S. 23:1209.

| inLouisiana Revised Statute 23:1209 provides:

A.(1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
(2) Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).
(3) When the injury does not result at the time of or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedinys have been beyun within two years from the date of the accident.
B. Any claim may be filed with the director, office of workers’ compensation, by delivery or by mail addressed to the office of workers’ compensation. The filing of such claims shall be deemed timely when the claim is mailed on or before the prescription date of the claim. If the claim is received by mail on the first legal day following the expiration of the due date, there shall be a rebuttable presumption that the claim was timely filed. In all cases where the presumption does not apply, the timeliness of the mailing shall be shown only by an official United States postmark or by official receipt or certificate from the United States Postal Service made at the time of mailing which indicates the date thereof.
C. All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.
D. When a petition for compensation has been initiated as provided in R.S. 23:1310.8, unless the claimant shall in good faith request a hearing and final determination thereon within [^five years from the date the petition is initiated, that claim shall be barred as the basis of any claim for compensation under the Worker’s Compensation Act and shall be dismissed by the office for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder. [Emphasis added.]

The burden of proof is generally on the party pleading prescription. However, when a workers’ compensation claim to recover benefits has prescribed on its face, the claimant has the burden of showing that prescription has been interrupted, suspended, or renounced, or that he had been lulled into a state of false security and induced to withhold filing suit by his employer. See Bracken v. Payne and Keller Company, Inc., 2006-0865, pp. 4-6 (La.App. 1 Cir. 9/5/07), 970 So.2d 582, 587-88; Holmes v. Baton Rouge Water Works Company, 558 So.2d 629, 631 (La.App. 1 Cir.1990). Evidence may be introduced to support or controvert the peremptory ex-

ception raising the objection of prescription when the grounds do not appear on the face of the petition. Generally, in the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, and all allegations thereof are accepted as true. Hudson v. East Baton Rouge Parish School Board, 2002-0987, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 282, 286. See also LSA-C.C.P. art. 931.

|12The claim of an injured employee for indemnity benefits, according to LSA-R.S. 23:1209, is not prescribed if filed within the following time periods, giving to the employee the benefit of the latest date so determined: (1) one year after the accident; or (2) one year after the last payment of compensation, except in claims for supplemental earnings benefits, when the period of three years after the last weekly payment of compensation applies (of whatever type); or (3) one year from the time the “injury develops” if the injury “does not result at the time of, or develop immediately after the accident,” but in no event more than two years after the accident. H. Alston Johnson III, Workers’ Compensation Law and Practice, 14 La. Civil Law Treatise, § 384. In the instant case, no indemnity benefits have ever been paid to Mr. Pal, and his current claim for indemnity benefits was filed on May 8, 2009, more than two years from the June 27, 2004 work-related accident. Therefore, Mr. Pal’s claim for indemnity benefits was prescribed on its face.

Mr. Pal asserts that a subsequent near-miss automobile incident and the defendants’ failure to timely pay medical benefits aggravated his mental conditional; nevertheless, a developmental injury is required to be filed, in any event, no more than two years after the accident. See TIG Insurance Company v. Louisiana Workers’ Compensation Corporation, 2009-0330, pp. 4-5 (La.App. 1 Cir. 9/11/09), 22 So.3d 981, 984-85; Hudson v. East Baton Rouge Parish School Board, 2002-0987 at p. 4, 844 So.2d at 286. Under the express language of the statute, the failure to assert a claim for a developing injury is “forever barred” unless the claim has been filed within two years from the date of the accident. Because the record in this 113case shows that Mr. Pal failed to file his current claim for indemnity benefits until well after this two-year period, his claim is forever barred. See Pertuis v. Architectural Fabrications, Inc., 2001-2684, p. 3 (La.App. 1 Cir. 12/20/02), 836 So.2d 450, 451, unit denied, 2003-0231 (La.4/4/03), 840 So.2d 1216. Therefore, we find no error in the OWC’s ruling that the action had prescribed.

CONCLUSION

For the reasons assigned herein, that portion of the judgment of the Office of Workers’ Compensation sustaining the defendants’ exception pleading the objection of res judicata is reversed, and that portion of the judgment sustaining the defendants’ exception pleading the objection of prescription, and dismissing the claimant’s action, is affirmed. All costs of this appeal are to be borne by the claimant/appellant, Charles J. Pal, Jr.

REVERSED IN PART; AFFIRMED IN PART.

GUIDRY, J. concurs.

      . The defendants’ exception of res judicata was based on the OWC's February 8, 2006 judgment, denying indemnity benefits. Further, it was argued that the request for indemnity benefits was prescribed, even if considered a developing injury, as not having been filed within two years of the accident, as required by LSA-R.S. 23:1209.

      . The OWC initially rendered this judgment on June 28, 2010, but failed to include language dismissing the action. Thus, by a December 3, 2010 interim order of this court, the matter was remanded to the OWC for the limited purpose of having the OWC sign a judgment including appropriate decretal language. In accordance with this court's order, the OWC issued the December 13, 2010 judgment, which included the language previously contained in the June 28, 2010 judgment (i.e., granting the defendants' exceptions of res ju-dicata and prescription as to Mr. Pal's claim for indemnity benefits and designating the judgment as "final”), and which also contained language dismissing Mr. Pal’s claim for indemnity benefits, with prejudice.

      . Louisiana Revised Statute 13:4231 provides:
      Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
      (1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
      (2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
      (3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

      . Louisiana Revised Statute 23:1310.8(A) and (B) provide, in pertinent part:
      A. (1) The power and jurisdiction of the workers’ compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified, including the right to require physical examinations as provided for in R.S. 23:1123....
      B. Upon the application of any party in interest, on the ground of a change in conditions, the workers’ compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers' Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.

      . We do not find LSA-R.S. 23:1310.8(E) (providing that "[a] judgment denying benefits is res judicata after the claimant has exhausted his rights of appeal”) controlling in this case, because the claimant alleged additional events that he asserted aggravated his condition.

      . Louisiana Civil Code Article 3499 provides: "Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.”

      . Although LSA-R.S. 23:1209 was amended by 2008 La. Acts, No. 220, § 8, effective June 14, 2008, no substantive changes were made; therefore, to the extent that any part of the claimant's cause of action arose prior to June 14, 2008, Act 220 applies retroactively. See LSA-C.C. art. 6.

      . Regarding interruption of prescription, LSA-C.C. art. 3462 provides that prescription is interrupted when a suit is filed in a court of competent jurisdiction and venue. When a lawsuit is timely filed against the obligor/em-ployer, prescription is interrupted as to claims against the obligor/employer pursuant to Article 3462. Thus, the timely tiling of a disputed claim pursuant to LSA-R.S. 23:1310 is sufficient to interrupt prescription under LSA-C.C. art. 3462. Bracken v. Payne and Keller Company, Inc., 2006-0865 at p. 6, 970 So.2d at 588 (citing Scott v. Sears, Roebuck and Co., 99-0571, p. 6 (La.App. 1 Cir. 12/22/00), 778 So.2d 50, 54). An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial. LSA-C.C. art. 3463. If prescription is interrupted, the time that has run is not counted. Prescription commences to run anew from the last day of interruption. LSA-C.C. art. 3466.

      . We note that an employer’s payment of medical benefits to a workers' compensation claimant does not interrupt prescription on a claim for indemnity benefits. See Love v. East

        Jefferson General Hospital, 96-1558 (La.App. 1 Cir. 5/9/97), 693 So.2d 1245, 1247-48.


author: KUHN, J.

text:
    Joseph BROWN v. A M LOGGING.
    No. 2010 CA 1440.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 4, 2011.
    Rehearing Denied Sept. 20, 2011.

      Ryan A. Jurkovic, Isaac H. Soileau, Jr., New Orleans, LA, for Plaintiff-Appellee Joseph Brown.

      Stephen W. Brooks, Jr., Richard J. Voelker, Covington, LA, for Defendant-Appellant A M Logging.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   KUHN, J.

|aIn this worker’s compensation case, the Office of Workers’ Compensation (“OWC”) awarded the claimant, Joseph Brown, indemnity benefits based on a finding of permanent and total disability, penalties, attorneys’ fees, costs, and legal interest on the indemnity benefits, penalties, and attorneys’ fees. The employer, A M Logging has appealed, urging that the OWC: 1) erred by admitting into evidence and relying on a vocational evaluation report offered by Brown and abused its discretion by awarding Brown the costs associated with this report; 2) erred in finding Brown to be totally and permanently disabled; and 3) erred by imposing penalties and attorneys’ fees and by awarding legal interest on those amounts. Although we find no error in the OWC’s finding that Brown was permanently and totally disabled during the time period in question, we find that his claim was reasonably controverted by A M Logging. Accordingly, we reverse the OWC’s award of penalties and attorneys’ fees and the legal interest awarded on those amounts. Otherwise, we affirm the rulings of the OWC.

I. PROCEDURAL AND FACTUAL BACKGROUND

On October 10, 2005, Brown, who was fifty-seven years old, was working in the course and scope of his employment with A M Logging, when a tree “kicked back” on him and struck his left shoulder, causing injury to his shoulder, neck, back, ribs, and chest. After conservative treatment failed to cure his shoulder pain, he underwent rotator-cuff repair surgery that was performed by Dr. Hontas in December 2007. Afterwards, Brown underwent physical therapy to improve the range of motion in his left shoulder. Despite taking prescribed medications, he continued to have pain and swelling in his shoulder. On May 30, | <¡2008, Dr. Hontas found that Brown’s shoulder injury had reached maximum medical improvement. The results of a May 22, 2008 functional capacity evaluation (“FCE”) by North Oaks Medical Center indicated that Brown was able to work at a light to medium duty level. Dr. Hontas agreed with this categorization but imposed a restriction that the work should not be performed at shoulder level or higher. Brown returned to see Dr. Hontas on July 11, 2008, presenting with swelling in the area between his neck and left shoulder. Dr. Hontas recommended that Brown needed to be careful with increased activity, particularly work at the shoulder level and lifting heavy objects.

On June 26, 2008, Brown began vocational rehabilitation with Younger and Associates, Inc. (‘Younger”). Meredith Riehoux was assigned as Brown’s case manager. Richoux’s initial interview report documents that Brown neither finished high school nor obtained a graduate equivalent degree, he has “limited transferable skills,” and has a felony record. On October 8, 2008, Riehoux sent him a letter advising him that certain positions, which had previously been identified as available, had been approved by Dr. Hon-tas and remained available to Brown. These positions included jobs working as a crew member at McDonald’s in Amite or Hammond; a prep person at McDonald’s or a prep cook at Pilot Travel Center, with positions available in Hammond; and a line server at Piccadilly Cafeteria in Hammond. Brown testified that when he sought employment in person at McDonald’s in Amite, he was informed the company was not hiring. Brown also stated that he called the Piccadilly Cafeteria and the Pilot |/Travel Center in Hammond, and both companies informed him they were not hiring. He admitted informing the prospective employers of his prior surgery and that he had a criminal record. Brown testified that he contacted two or three different logging companies, but found none that was able to give him work that complied with the lifting restriction imposed by Dr. Hontas.

After examining Brown on October 31, 2008, who reported continued pain and weakness in his shoulder, Dr. Hontas opined that he thought Brown was “still capable of working,” but he did not think Brown could “lift anything more than 20 pounds with both hands.” He again advised Brown that he should avoid work at “shoulder level or higher,” and he advised that these restrictions needed to be “strictly followed.” On December 6, 2008, A M Logging terminated Brown’s weekly wage indemnity benefits of $121.00.

On April 21, 2009, Brown returned to see Dr. Hontas, reporting increased pain in his shoulder after mowing his lawn several days earlier. After finding that Brown had strained his left shoulder, Dr. Hontas injected Brown’s shoulder and refilled his prescription medications. During a May 12, 2009 examination, Dr. Hontas noted some muscle atrophy that related to his shoulder injury. In late July 2009, Dr. Hontas responded to an inquiry by Younger regarding the medical necessity for Brown’s continued use of prescription muscle relaxer and pain medications. Dr. Hontas indicated that Brown “has not had a 100% recovery [with respect] to his shoulder. His motion is restricted and he has degenerative changes in his rotator cuff.” He further recommended that Brown should continue with the restrictions that he had imposed and that Brown should use the prescribed medications on an occasional basis.

| Jn July 2009, Brown filed a disputed claim for worker’s compensation, seeking indemnity benefits, penalties, and attorneys’ fees. He later amended it to also seek recovery of legal interest, costs, and other expenses.

On August 3, 2009, A M Logging and its insurer, Louisiana Safety Association of Timbermen-Self Insurance Fund, answered Brown’s claim, admitting that Brown had sustained a disabling injury as a result of the accident, but averring that his injury did not currently cause him to suffer a loss of earning capacity. Defendants urged that Brown was able to return to gainful employment, and they denied any further liability to Brown.

Mr. Bobby S. Roberts, the Director of Vocational Evaluation for the Work Recovery Center, performed a vocational evaluation of Brown on February 17, 2010, shortly before the original OWC hearing in this matter. Roberts concluded that Brown was unemployable based on his physical condition, educational level, criminal background, and lack of transferrable job skills.

Following the hearing on Brown’s claims, the OWC signed a March 29, 2010 judgment, which ordered that: 1) Brown sustained a compensable work-related injury on October 10, 2005, in the course and scope of his employment with A M Logging; 2) Brown’s compensation rate is the statutory minimum amount of $121.00 per week; 3) Brown is permanently and totally disabled as a result of his work-related accident; 4) pursuant to La. R.S. 23:1226(D), there is no reasonable probability that Brown can be rehabilitated through training or education to the extent that he can attain suitable gainful employment and such training or education would not be in his best interest; 5) A M Logging shall pay Brown permanent total disability benefits in the amount of $121.00 per week, | (¡retroactive to December 7, 2008, and continuing; 6) pursuant to La. R.S. 23:1201(1), A M Logging shall pay Brown $5,000.00 in penalties and $5,000.00 in attorneys’ fees for the arbitrary and capricious termination of benefits; and 7) any relief not specifically granted is denied.

On April 8, 2010, Brown filed a joint motion for reconsideration and motion for an increased fee petition, wherein he sought legal interest on the award of indemnity benefits and on the award of interest and penalties, costs that included the expert witness fee of Roberts in the amount of $1,250.00, and increased attorneys’ fees. On April 9, 2010, defendants filed a motion for a new trial, wherein they alleged that the OWC erred in admitting Roberts’ evaluation and that the award of indemnity benefits and the awards of penalties and attorneys’ fees were contrary to the law and evidence.

After a hearing on these various motions, the OWC denied defendants’ motion for a new trial in a May 20, 2010 ruling. The OWC granted Brown’s motions and ordered that defendants pay him $55.00 for filing fees, $1,250 for Robert’s (Work Recovery Center) evaluation, and legal interest on his wage indemnity benefits, penalties, and attorneys’ fees. Otherwise, the OWC denied Brown’s motion for an increase in the award of attorneys’ fees and ordered that the March 29, 2010 judgment “stands in all other respects.” A M Logging has suspensively appealed the OWC judgments.

|7II. ANALYSIS

A. Vocational Evaluation by Roberts for Work Recovery Center

During the original OWC hearing, when Brown’s counsel introduced Roberts’ vocational evaluation, defendants objected on the grounds of hearsay, relevancy, and the fact that defendants received it less than a month before the March 2010 hearing. Brown’s counsel responded that he had made it available as soon as he received it. The OWC determined the report was submitted by Brown to address the vocational rehabilitation issue, implicitly determining that it was relevant, and that the OWC would “decide what weight to give it” based on defendants’ hearsay objection. Thus, the evaluation was admitted into evidence.

In defendants’ motion for new trial, they reurged the same objections that had been made during trial. Additionally, defendants challenged Roberts’ qualifications, stating “it’s my understanding he’s not even licensed by the State of Louisiana to do vocational rehab.”

In its oral reasons for judgment, the OWC stated, in pertinent part, as follows:

[Roberts’] report literally, I took it as simply what it was which was a second opinion of ... some sort of vocational professional ... for lack of a better word, which merely served as a counter to the vocational rehab that was provided by Mr. Pleune and his company [Younger].
... [I]t basically just evened the vocational rehab ... dispute.... Roberts’ report ... [was] prepared in anticipation of litigation[.] [I]t didn’t get any more weight than the [vocational] rehab that was already done. In other words, it just ... served to make things even on that playing field.

On appeal, A M Logging alleges that the OWC abused its discretion in admitting Robert’s evaluation into evidence. A M Logging asserts that “[w]hile |sthe document indicates that [Roberts] holds a B.S. and a M.Ed., he is not identified as a licensed professional counselor, as required by [La. R.S. 23:1226], in order to provide rehabilitation services.”

Louisiana Revised Statutes 23:1226 A provides, in pertinent part, “When an employee has suffered an injury ... which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. Vocational rehabilitation services shall be provided by a licensed professional vocational rehabilitation counselor....” The statute sets forth a statutory benefit to which an injured employee is entitled. This statute neither governs the admissibility of evidence nor determines the qualifications of whom the OWC can accept as an expert. Further, we note that defendants did not question whether Roberts was licensed until the hearing on the motion for new trial, and, even then, defendants did not establish that he was not a licensed professional vocational rehabilitation counselor. Thus, we do not find that this statute operates to bar the introduction of Roberts’ evaluation.

With respect to A M Logging’s hearsay objection, we find La. R.S. 23:1317(A) is pertinent and provides, in part, as follows:

The workers’ compensation judge shall not be bound by technical rules of evidence or -procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself. The workers’ compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be. [Emphasis added.]

|8In other words, the OWC has the discretion to admit evidence that would otherwise be inadmissible under the Louisiana Code of Evidence. This more relaxed standard for the admissibility of evidence is the general rule in proceedings before administrative agencies. Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375, 381.

The legislative requirement that the OWC’s factual findings be based on competent evidence is the safeguard that ensures that the factual findings are made on evidence that has some degree of reliability and trustworthiness, notwithstanding that the evidence might fall outside of the technical rules for admissibility. Id. When a reviewing court evaluates the factual findings of the OWC under the manifest error standard, it must determine whether the factual findings are reasonable and supported by competent evidence in the record. Id. “Competent evidence” must not be defined so narrowly as to mean only evidence that would fall within the parameters of the Louisiana Code of Evidence. Id. If the OWC’s factual findings are reasonably supported by competent evidence, then the reviewing court must affirm them. Id.

Giving effect to the more relaxed eviden-tiary standards in La. R.S. 23:1317, the supreme court has held that the OWC has the discretion to admit hearsay evidence in workers’ compensation proceedings, where such evidence can qualify as “competent evidence.” Id. at 382. The inability to cross-examine the declarant affects only the weight that the evidence carries. Id. Hearsay evidence can qualify as “competent evidence”, provided that the evidence has some degree of reliability and trustworthiness and is of the type that reasonable persons would rely upon. This determination is made on a case-by-case basis under the particular |]nfacts and circumstances. The reviewing court must evaluate the competency of the evidence under the manifest error standard.

In the instant case, Roberts’ evaluation is hearsay as it is “a statement, other than one made by the declarant while testifying at the present trial on hearing, offered in evidence to prove the truth of the matter asserted.” La. C.E. art. 801(C). However, most hearsay evidence admitted in administrative hearings is generally reliable documentary evidence. Id. at 382. And here, the reliability of the evaluation in question is comparable to other correspondence and physician’s reports that are regularly admitted in OWC proceedings. A M Logging did not establish any prejudice that resulted from its receipt of Roberts’ evaluation shortly before the original hearing, and its introduction provided for disposition of Brown’s claims as “equitably, summarily, and simply” as it could be done. Thus, we conclude the OWC did not abuse its discretion in admitting Roberts’ evaluation.

B. Permanent and Total Disability Finding

A M Logging asserts that the OWC erred in determining that Brown is totally and permanently disabled as a result of his 2005 work-related accident. A M Logging claims that the trial judge disregarded evidence establishing that Brown was physically capable of engaging in employment, in particular the 2008 FCE, the Younger vocational rehabilitation records, Dr. Hon-tas’ medical records, and the testimony of Russell Pleune, a licensed vocational rehabilitation counselor, who worked for Younger and supervised Richoux.

The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question |T1of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. Tillery v. State, Dept. of Public Safety and Corrections, 07-1228 (La.App. 1st Cir.2/8/08), 984 So.2d 742, 744.

In order to be awarded compensation for permanent total disability, an employee cannot be engaged in any employment or self-employment and must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of 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, notwithstanding the location or availability of any such employment or self-employment. La. R.S. 23:1221(2). Id. Further, La. R.S. 23:1226(D) requires the OWC to determine whether there is reasonable probability that with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education before adjudicating an employee permanently and totally disabled.

During the hearing, Pleune testified based on his review of the 2008 FCE, Dr. Hontas’ medical notes, and Richoux’s reports. Pleune’s testimony acknowledged that although Brown attended school until the ninth grade, he reads at approximately a second grade level and has a third grade proficiency in math skills. However, Pleune testified that Richoux had brought to Brown’s attention |12available jobs that Dr. Hontas had determined Brown was capable of performing, i.e., the Pilot prep cook position, the McDonald’s crew member and prep person positions, and the Piccadilly line server position, which Dr. Hontas approved if it did not involve repetitive use of his left shoulder. Ultimately, Pleune opined that he would not find Brown to be permanently and totally disabled.

The record further establishes, however, that Brown suffers from hypertension and high cholesterol and has had prior cardiac problems that required him to undergo a previous angioplasty. He was previously injured while working for another logging company, when he stepped in a hole and hurt his lower back. After his back injury, he collected social security income benefits, which were discontinued in 1998, but resumed in 2005. Brown also testified that he did not have access to a vehicle, and Pleune acknowledged that availability of transportation should be taken into account in a FCE. Pleune also acknowledged that the positions that Richoux had found for Brown required “frequent to continuous standing,” and he admitted that he had concerns that Brown could not perform a job that required “truly continuous” standing. Brown, who was 61 years old at the time of the hearing, testified that he was unable to stand for more than thirty to forty-five minutes. Brown’s work history before the accident at issue included pipeline work and working in the logging industry. He testified that after the accident, he was unable to perform his own yard work and that he had tried to work for a wrecker service, but he was unable to do so as a result of his injury. Brown further testified that he could not lift anything with his left hand and that he took his prescribed pain medicine and muscle relaxer twice a day.

|1sIn Roberts’ vocational evaluation, he summarized Brown’s work and medical history and reviewed Dr. Hontas’ medical reports, Richoux’s reports, and the FCE, and after performing his own evaluation of Brown, Roberts determined that: 1) Brown’s left shoulder was problematic as it related to performing any type of work; 2) Brown was functionally illiterate; 3) Brown has no transferable work skills to sedentary or light work; 4) Brown’s treating physician has identified a maximum of 20 pounds with both upper extremities being involved, and this restriction in and of itself, limits Brown to light work or less; 5) the 2008 FCE did not test with industrial based criteria; and 6) based on the results of Roberts’ testing, which employed industrial engineering standards to measure competitive functioning in an employment environment, Brown was unemployable. Roberts concluded as follows, in pertinent part:

I do not anticipate return to work in [Brown’s] case. He is now over 4 years post injury without return to work. He still has significant functional limitations involving the use of the left upper extremity. He was limited in his employment ability in the past due to very low educational functioning. He is further limited presently by his felony conviction. His low back and left lower extremity symptoms affect standing and walking activities. All in all this gentleman will not be expected to re-enter the gainful labor market.

In oral reasons that addressed the parties’ cross motions filed after the original hearing, the OWC addressed Brown’s disability status, in pertinent part, as follows:

I thought it was painfully obvious listening to [Brown] testify. This man is never going to be able to work in anything other than a manual labor type setting.
I could barely understand him. I kept my notes from his testimony, and ... at the beginning of every third line I [wrote] hard to understand, very hard to understand.
|14... [W]e literally had to set the attorneys on this end so we could actually watch his mouth. And I have to say that really didn’t help me in a lot of ways either.
In any event, ... [Brown] was on disability prior to taking this job.... [H]e ... wanted to go back and see how much he could do, and my recollection is he was injured not too long after starting work with A M Logging.
Looking back at the emergency room records ..., he sustained a fairly significant injury....
... He seemed like he made a recovery. But I’m just left with a 60-some-thing-year-old man who can barely communicate, limited education. I don’t see him working anywhere with money ... [with] a cash register....
... I have to say ... given all his limitations physically and ... his inability to effectively communicate with peo-pie, that pretty much leaves him, in my opinion, just manual labor jobs. You know, what he was doing before, cutting trees.

(Footnote added).

Based on the entirety of the evidence presented, we find it was sufficient to meet Brown’s burden of proving by clear and convincing evidence that he is permanently and totally disabled in accordance with La. R.S. 23:1221(2) and 1226(D). Beyond Brown’s undisputed physical limitations that precluded his return to manual labor in the logging industry, the OWC considered and placed weight on Brown’s poor communication skills, lack of education, the testimony establishing his lack of transfer-rable skills to other fields of work, and his prior limited work history in determining that he was permanently and totally disabled. The record further demonstrates that some of the jobs arguably available to Brown |1sdid not comply with his limited abilities and restrictions in that he was unable to work in a position that either required him to communicate with the public or to stand for long periods of time. Therefore, the OWC was not manifestly wrong in its finding that Brown established by clear and convincing evidence that he was permanently and totally disabled.

C. Penalties and Attorneys’ Fees

With respect to the awards of penalties and attorneys’ fees, we find that neither award is warranted under the facts of this case, because the claimant’s request for workers’ compensation benefits was reasonably controverted by A M Logging. An employer should not be liable for penalties or attorneys’ fees for taking a close factual or legal question to court for resolution. La. R.S. 23:1201(F)(2), Lanoue v. All Star Chevrolet, 03-0012 (La.App. 1st Cir.11/7/03), 867 So.2d 755, 761. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Cooper 16v. St. Tammany Parish School Bd., 02-2433 (La.App. 1st Cir.11/7/03), 862 So.2d 1001, 1009, writ denied, 04-0434 (La.4/23/04), 870 So.2d 300.

The record includes contradictory evidence regarding the extent of Brown’s disability. Although the OWC determined Brown could not perform the jobs presented to him by Younger, it did produce a small number of jobs that Dr. Hontas had indicated Brown was capable of performing. Further, Roberts’ evaluation, which supported a finding of permanent and total disability, was not provided to A M Logging until only a few weeks before the original hearing. Based on the evidence presented, we find the OWC was manifestly erroneous in its apparent finding that defendants had not reasonably controverted Brown’s claim for indemnity payments after December 6, 2008. A M Logging’s challenge to Brown’s claim was not frivolous as it was supported by factual and medical information. Accordingly, we reverse that portion of the March 29, 2010 ruling that awarded Brown $5,000.00 in penalties and $5,000.00 in attorneys’ fees, and we reverse that portion of the May 20, 2010 ruling that awarded legal interest on the award of penalties and attorneys’ fees.

D. Costs

A M Logging urges that the OWC abused its discretion in awarding court costs in the amount of $1,250.00, which amount represented the cost billed by Roberts for his vocational rehabilitation evaluation services. Louisiana Revised Statute 23:1317 B provides, in pertinent part, “Costs may be awarded by the workers’ compensation judge, in his discretion, and when so awarded the same may be allowed, taxed, and collected as in other civil proceedings. The fees of expert witnesses shall be reasonable.... ” The question of awarding costs lies 117within the sound discretion of the OWC, as it does with the courts under the general civil provisions. Boleware v. City of Bogalusa, 01-1014 (La.App. 1st Cir.12/20/02), 837 So.2d 71, 77-78. We find no abuse of discretion in the OWC’s award of costs. The $1,250 amount is supported by the record and is a reasonable charge for the type of services provided.

III. CONCLUSION

For these reasons, we reverse that portion of the March 29, 2010 OWC ruling that awarded Brown $5,000.00 in penalties and $5,000.00 in attorneys’ fees, and we reverse that portion of the May 20, 2010 OWC ruling that awarded legal interest on the award of penalties and attorneys’ fees. Otherwise the OWC rulings are affirmed. One-half of the appeal costs are assessed to Brown, and the other one-half of the appeal costs are assessed to A M Logging.

MARCH 29, 2010 AND MAY 20, 2010 OWC RULINGS REVERSED IN PART AND AFFIRMED IN PART.

PETTIGREW, J., concurs & assigns reasons.

PETTIGREW, J., concurs and assigns reasons.

_JjI agree with the majority. I note Brown cites Johnson v. East Baton Rouge Parish School Bd., 06-1010 (La.App. 1 Cir. 3/28/07), 961 So.2d 388, as support for the proposition that the OWC’s award of penalties and attorney fees should be affirmed. I am of the humble opinion that the facts of Johnson are distinguishable from the facts before us now, justifying this court’s decision in the instant case reversing the award of penalties and attorney fees.

      . Brown was convicted of aggravated oral sexual battery on February 25, 2003, and his supervised parole was terminated on October 20, 2008.

      . Brown filed an untimely answer with this court that was dismissed. Brown v. A M Logging, 10-1440 (La.App. 1st Cir. 12/3/10) (unpublished).

      . During the original hearing, the OWC asked counsel for Brown to stand in a different position so that she could see Brown’s mouth while he was testifying because she was having trouble understanding him.

      . Louisiana Revised Statutes. 23:1201 provides, in pertinent part, as follows:
      A. (1) Payments of compensation under this Chapter shall be paid as near as may be possible, at the same time and place as wages were payable to the employee before the accident. ...
      F. Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or 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.... Penalties shall be assessed in the following manner:
      (1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault....
      (2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.