author:
KNOLL, Justice.
     WEIMER, J.,

text:
    QUANTUM RESOURCES MANAGEMENT, L.L.C. and Milagro Producing, L.L.C. v. PIRATE LAKE OIL CORP., et al.
    No. 2012-C-1472.
    Supreme Court of Louisiana.
    March 19, 2013.

      Sidney L. Shushan, APLC, Sidney Levin Shushan, Esq., Jonathan Marks Shushan, Esq., New Orleans, LA, for Applicant.
    Barrios Kingsdorf & Casteix, Bruce Steven Kingsdorf, Esq., Barbara Treuting Casteix, Esq., Simon, Peragine, Smith & Redfearn, LLP, Donald Joseph Brannan, Esq., Doug Freret Wynne, Jr., Esq., New Orleans, LA, for Respondent.
   KNOLL, Justice.

| tThis civil case involves a 1925 tax sale in Jefferson Parish and the failure to give notice of the pending tax sale to the property owner. In Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the United States Supreme Court held the failure of the State to give notice of a pending tax sale to a property owner is a violation of due process, rendering the tax sale null and void. The specific issue in the present case is whether Mennonite can be applied retroactively to invalidate this 1925 tax sale.

Plaintiffs, owners of oil, gas, and mineral interests, filed this instant concursus proceeding against four groups of record landowners, Pirate Lake Oil Corporation, the Mayronne Group, the Handlin-Jones Group, and the Zodiac Group, to determine the parties entitled to the proceeds of production. The Mayronne and Handlin-Jones Groups filed a motion for summary judgment, arguing the Zodiac Group had no interest in the property. The District Court granted the motion for summary judgment and dismissed the Zodiac Group’s claims of ownership in the property with prejudice. The Court of Appeal affirmed, finding the Zodiac Group’s ancestor in title was never the record owner of the property. Further, the Zodiac Group traced its ownership of the property to a 1925 |2tax sale, and there was no evidence the Sheriff provided notice of the sale to the record owner of the property, as required by the Fourteenth Amendment Due Process Clause under Mennonite. Quantum Res. Mgmt., L.L.C. v. Pirate Lake Oil Corp., 11-813 (La.App. 5 Cir. 5/31/12); 98 So.3d 394. We granted this writ to further consider the correctness vel non of the appellate court’s decision. Quantum Res. Mgmt., L.L.C. v. Pirate Lake Oil Corp., 12-1472 (La.11/9/12); 100 So.3d 822.

For the following reasons, we find Mennonite cannot apply retroactively to invalidate the 1925 tax sale for lack of notice. Further, while the Zodiac Group’s ancestor in title was not the record owner of the property, any defect is cured by the five-year peremptive period of Article X, § 11 of the 1921 Louisiana Constitution. Accordingly, we reverse the judgments of the lower courts.

FACTS AND PROCEDURAL HISTORY

In 2010, plaintiffs, Quantum Resources Management, L.L.C. (“Quantum”) and Mi-lagro Producing, L.L.C. (“Milagro”), filed a concursus petition pursuant to La.Code Civ. Proc. art. 4651 et seq., alleging they were the owners of several oil, gas, and mineral leases covering Lots 1-5 and Lots 35-38 in the Third Jefferson Drainage District, in Sections 13 and 24, Township 16 South, Range 23 East, near Lafitte in Jefferson Parish, Louisiana. Quantum asserted it was the unit operator of the CRIS 2 RA SUA Unit (the “Subject Unit”), established by Office of Conservation Order No. 1414, effective February 25, 1997. The aforementioned lots contribute acreage to the Subject Unit, which currently has two producing wells, known as the Mayronne No. 1 Well and the May-ronne No. 2 Well. In order to pay the proceeds of production to the proper parties, Quantum and Milagro named as defendants the following parties listed in the public records as having possible ownership interests in the lots: (1) Pirate Lake Oil Corporation; (2) George J. Mayronne, Jr., Agatha B. Mayronne Haydel, the Succession of Oswald 1 sHarry Mayronne, and Huey J. Mayronne (collectively the “May-ronne Group”); (3) Joseph K. Handlin, II, Alan Kent Jones, Jennifer Elizabeth Jones, Patrick Kent Lindsay Jones, and Jacqueline A.L. Jones (collectively the “Handlin-Jones Group”); and (4) Zodiac Corporation, Ltd. and Salzer & Ramos Enterprises, Ltd. (collectively the “Zodiac Group”).

This present writ concerns a dispute between the Mayronne and Handlin-Jones Groups (or “Respondents”) and the Zodiac Group, as to the ownership of Lot 4 in the Third Jefferson Drainage District within the Subject Unit (“Lot 4”). The parties note Lot 4 is covered by several feet of water and located in an area called “the Pen,” near Lafitte, which is used primarily for fishing and crabbing.

The Mayronne and Handlin-Jones Groups’ claim of title is based on a sale of Lot 4 from John S. Wells to George May-ronne dated August 8, 1938, recorded in Jefferson Parish (COB 144, Page 7). Wells acquired Lot 4 in an August 30,1919 tax sale for 1918 unpaid taxes assessed in the name of Virgil Nobles (COB 46, Page 158). Mayronne’s title in and to Lot 4 later devolved to the Mayronne and Hand-lin-Jones Groups. An affidavit by Larry E. Porterfield, the Respondents’ professional land surveyor, confirms the Lot 4 purchased by George Mayronne is the same Lot 4 within the boundaries of the Subject Unit.

In turn, the Zodiac Group’s claim of ownership is based on a tax sale dated August 22, 1925, where property identified as “Lot 4” of the Third Jefferson Drainage District assessed in the name of Erie (Eric) T. White was conveyed to John A. Saxton for unpaid 1924 taxes assessed in the name of White (COB 70, Page 617). Subsequently, on October 30, 1931, Saxton conveyed the property to the Zodiac Corporation, Ltd. (COB 112, Page 331). On April 28, 1949, Zodiac Corporation, Ltd. conveyed an undivided one-half interest in the property to Robert R. Ramos, whose rights have now devolved to Salzer & Ramos Enterprises, Ltd. (COB 307, Page 681).

14According to the affidavit of the May-ronne and Handlin-Jones Groups’ survey- or, the Lot 4 owned by White was not the same Lot 4 located within the boundaries of the Subject Unit. The Public Records of Jefferson Parish indicate the Louisiana Meadows Company transferred “Lot 4 of Block 8, the town of Lafitte,” a separate piece of property, to White in 1915 (COB 35, Page 243). The 1922 Jefferson Parish Tax Assessment Rolls correctly describe the property as “Farm Lots 167-847-848- & 4 B 8 Barataria-15 acres Freshwater A 100.” The 1924 Tax Assessment Rolls, however, mistakenly describe the property as “Farm Lots 167-847-848- & 4 Cont. 15.45 acres Barataria-15 acres Freshwater ‘A’ 100.” Based on this inaccurate description, the State transferred Lot 4 of the Third Jefferson Drainage District to Sax-ton, the Zodiac Group’s ancestor in title.

On December 22, 2010, the Mayronne and Handlin-Jones Groups filed a motion for summary judgment, arguing the Zodiac Group had no right, title, or interest in and to Lot 4. Respondents maintain the 1925 tax sale to Saxton was an absolute nullity because White never actually owned Lot 4 and because there is no evidence the Sheriff gave notice to the record owner of Lot 4, violating the due process notice requirements established by Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 5.Ct. 2706, 77 L.Ed.2d 180 (1983). The Zodiac Group argued the attack on the 1925 tax sale was untimely under the five-year peremptive period for annulling tax sales under Article X, § 11 of the 1921 Louisiana Constitution. The District Court granted the motion for summary judgment, dismissing the Zodiac Group’s claims of ownership with prejudice. The court found, as White never owned Lot 4, the Sheriff could not transfer any ownership interest by the tax sale to Saxton. Additionally, the court ruled the lack of notice to the record owners of Lot 4 violated the Due Process Clause under Mennonite.

UThe Court of Appeal affirmed, finding the 1925 tax sale was an absolute nullity, as White was neither the record owner nor the actual owner of Lot 4, and the record owner of Lot 4 did not receive notice of the tax sale. Quantum Res. Mgmt., L.L.C. v. Pirate Lake Oil Corp., 11-813 (La.App. 5 Cir. 5/31/12); 98 So.3d 394. On appeal, the Zodiac Group filed an exception of no cause of action based on peremption. The court denied this exception, noting when a debtor’s due process rights are violated because of lack of adequate notice of a tax sale as required by Mennonite, the five-year peremptive period of La. Const. art. X, § 11 does not run. Id. at 398.

The Zodiac Group, citing Gulotta v. Cutshaw, 283 So.2d 482 (La.1973), argued the lack of notice to the record owner made the 1925 tax sale a relative nullity, which was cured by the five-year peremptive period. However, the appellate court held Mennonite’s elevation of the notice requirement to a due process violation renders a tax sale with this deficiency an absolute nullity, effectively overruling Gu-lotta. Id. at 399 (citing State, through Dep’t of Transp. & Dev. v. Knight, 93-767 (La.App. 3 Cir. 2/2/94); 631 So.2d 714). As the 1925 tax sale was an absolute nullity, the Mayronne and Handlin-Jones Groups could challenge the tax sale collaterally at any time.

DISCUSSION

Standard of Review

On a motion for summary judgment, this Court reviews the record de novo to determine whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. La. Code Civ. Proc. art. 966; Harrah’s Bossier City Inv. Co., L.L.C. v. Bridges, 09-1916, p. 8 (La.5/11/10); 41 So.3d 438, 445. Initially, the movant bears the burden of proof. La.Code Civ. Proc. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial, the movant is not required to negate all essential elements of the adverse party’s claim, but merely point to an absence of factual support for one or more of the elements essential to the adverse party’s claim, action, or defense. Id. If the movant successfully meets this burden, then the burden shifts to the other party to present factual support adequate to establish that he/she will be able to satisfy the evidentiary burden at trial. Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 6 (La.5/22/07); 958 So.2d 634, 638. If the other party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law. Id.

Fourteenth Amendment Due Process Requirements

The Fourteenth Amendment of the United States Constitution states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law.” In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), the United States Supreme Court held “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

In Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the Supreme Court recognized a tax sale of property is an action affecting a property right protected by the Due Process Clause of the Fourteenth Amendment. Consequently, a party possessing a substantial property interest “is entitled to notice reasonably calculated to apprise him of a pending tax sale.” Id. at 798, 108 S.Ct. at 2711. The Court stated: “Notice by mail or other 17means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.” Id. at 800, 103 S.Ct. at 2712 (emphasis in original). Since Mennonite, Louisiana courts have repeatedly held the failure to give notice to a record property owner is a violation of due process and the resulting tax sale is null and void in its entirety. Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 14 (La.7/2/12); 94 So.3d 750, 759.

The Supreme Court has never stated whether the requirements announced in Mennonite are to apply retroactively to tax sales predating the decision. Nor has this Court addressed this difficult issue. Currently, there is a divergence of opinion among the few state courts which have considered the retroactive application of Mennonite. Compare Aarco Oil & Gas Co. v. EOG Res., Inc., 20 So.3d 662 (Miss.2009) and McCann v. Scaduto, 71 N.Y.2d 164, 519 N.E.2d 309, 524 N.Y.S.2d 398 (1987) (applying Mennonite retroactively), with Geibel v. Clark, 185 W.Va. 505, 408 S.E.2d 84 (1991) (refusing to apply Mennonite retroactively). Accordingly, we turn to the Supreme Court’s jurisprudence regarding retroactive application of its decisions to resolve this issue and give guidance to our lower courts.

Retroactivity

For hundreds of years, courts have recognized a general rule of retroactive application for the constitutional decisions of the United States Supreme Court. See, e.g., Robinson v. Neil, 409 U.S. 505, 507, 93 S.Ct. 876, 877, 35 L.Ed.2d 29 (1973); Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543, 61 S.Ct. 347, 350, 85 L.Ed. 327 (1941); Kuhn v. Fairmont Coal Co., 215 U.S. 349, 371, 30 S.Ct. 140, 148, 54 L.Ed. 228 (1910) (Holmes, J., dissenting) (“Judicial decisions have had retrospective operation for near a thousand years.”). As Chief Justice John Marshall observed “if subsequent to the judgment and before the decision of the | «appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied.” United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801).

Beginning in the 1960s, however, the Supreme Court began to limit certain decisions to prospective application, in part, due to its reluctance to apply the Warren Court’s criminal procedure decisions retroactively, potentially freeing countless defendants. See Jill E. Fisch, Retroactivity and Legal Change: An Equilibrium Approach, 110 Harv. L.Rev. 1055, 1059 (1997). In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court held it could, in the interests of justice, deny retroactive effect to a newly announced rule of criminal law. Id. at 636, 85 S.Ct. at 1741 (limiting Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). The Supreme Court then extended this discretionary approach to civil cases, permitting the denial of retroactivity to “new principiéis] of law,” if retroactive effect would “retard [ ] operation” of the new rule or produce “injustice or hardship.” Chevron Oil v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971).

In recent years, however, the Court’s jurisprudence has changed dramatically. In Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), the Court eliminated limits on retroactivity in criminal cases, holding “a new rule ... applie[s] retroactively to all cases, state or federal, pending on direct review or not yet final.” Subsequently, in James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), a plurality of the Court concluded a new rule of law should apply retroactively in civil cases as well. Justice Souter’s opinion, which garnered the most support, noted, however, “retro-activity in civil cases must be limited by the need for finality; once suit is barred by res judicata or by statutes of limitation or repose, a new rule cannot reopen the door already closed.” Id. at 541, 111 S.Ct. at 2446 (citation omitted). Two years later, in Harper v. Virginia Department of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993), a majority of the Court set forth a definitive rule for retroactivity in civil cases, based on “the position of a majority of Justices in Beam,” holding:

When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.

Id. at 97, 113 S.Ct. at 2517. Accordingly, unless the Court “ ‘reserve[s] the question whether its holding should be applied to the parties before it,’ ” a new rule articulated by the Court “must be ‘read to hold ... that its rule should apply retroactively to the litigants then before the Court.’” Id. at 97-98, 113 S.Ct. at 2518 (quoting Beam, 501 U.S. at 539, 111 S.Ct. at 2445 (opinion of Souter, J.)). Subsequent cases have noted Harper “established a firm rule of retroactivity.” Landgraf v. USI Film Prods., 511 U.S. 244, 279 n. 32, 114 S.Ct. 1483, 1504, 128 L.Ed.2d 229 (1994).

Respondents argue the instant case is “still open on direct review,” as there has been no previous action to quiet title. The Supreme Court in Harper did not define “direct review”; however, the great weight of case law holds a new rule of constitutional law is applied to future cases and those cases pending on direct review at the time the Court rendered its decision. The instant case was not pending on direct review at the time the Supreme Court decided Mennonite in 1983.

Further, the term “direct review” must be considered in light of the Court’s | ^pronouncement in Beam, that retroactive application of the Court’s rulings is limited by principles of res judicata and statutes of limitations or repose. Beam, 501 U.S. at 541, 111 S.Ct. at 2446; see Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 759, 115 S.Ct. 1745, 1751, 131 L.Ed.2d 820 (1995) (noting “finality” “limits the principle of retroactivity itself’); United States v. Estate of Donnelly, 397 U.S. 286, 296, 90 S.Ct. 1033, 1039, 25 L.Ed.2d 312 (1970) (Harlan, J., concurring) (“[T]he rights of the parties should be considered frozen ... when the transaction is beyond challenge either because the statute of limitations has run or the rights of the parties have been fixed by litigation and have become res judicata.”). As Judge Dennis of the federal Fifth Circuit noted, despite the doctrine of full retroactivity announced in Harper, “[i]t is well established that the effect of even a fully retroactive jurisprudential decision is limited by certain independent overriding legal principles,” such as res judicata and statutes of limitations. Hulin v. Fibreboard Corp., 178 F.3d 316, 323 (5th Cir.1999); see Glazner v. Glazner, 347 F.3d 1212, 1221 n. 5 (11th Cir.2003) (holding res judicata and statutes of limitations “necessarily circumscribe the retroactive application of the rule we announce today”). The rationale for this limitation is to maintain legal stability. Hulin, 178 F.3d at 323. A contrary rule would produce chaos in the legal system, as judgments could be continually opened and reopened with every fluctuation in the law. In short, although Beam and Harper recognized a rule of full retroactivity, once a claim has become final it cannot be revived. William J. Rich, ^Modern Constitutional Law § 1:9, at 28 (3d ed.2011). Accordingly, we conclude Mennonite cannot apply retroactively in the instant case, as the case was not pending on direct review when the Supreme Court decided Mennonite and suit to annul the 1925 tax sale is perempted under Article X, § 11 of the 1921 Louisiana Constitution.

Respondents acknowledge the two exceptions to complete retroactivity stated in Beam, but maintain these exceptions are inapplicable to the present case. First, Respondents argue Article X, § 11 is facially unconstitutional under Mennonite, as it provides a peremptive period for annulling a tax sale “if no notice is given.” Thus, Respondents maintain, the five-year peremptive period does not prohibit retroactive application of Mennonite, citing the Supreme Court’s decision in Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 115 S.Ct. 1745, 131 L.Ed.2d 820 (1995).

In Hyde, the Supreme Court applied a decision concerning the constitutionality of Ohio’s statute of limitations for tort actions retroactively to find a pending suit was untimely. An Ohio statute provided a two-year statute of limitations for tort suits against Ohio residents, but tolled the two-year period for suits against out-of-state defendants. The statute “in effect, gave Ohio tort plaintiffs unlimited time to sue out-of-state (but not in-state defendants).” Id. at 750, 115 S.Ct. at 1747. Plaintiff filed suit more than three years after an automobile accident in Ohio against an out-of-state defendant. While the case was pending in the Ohio courts, the Supreme Court decided Bendix Autolite Corp. v. Midwesco Enter., Inc., 486 U.S. 888, 108 S.Ct. 2218, 100 L.Ed.2d 896 (1988), which struck down the tolling provision in the Ohio statute as a violation of the Commerce Clause. The trial court then dismissed Hyde’s suit as untimely because it was filed more than two years after her accident. However, the Ohio Supreme Court reinstated the suit, finding Bendix could not be applied retroactively to tort 112claims which accrued prior to the decision. Id. at 751, 115 S.Ct. at 1747. The United States Supreme Court reversed, holding the Supremacy Clause prevented Ohio from applying its unconstitutional tolling statute to tort claims that accrued prior to Bendix. Id.

Hyde is distinguishable from the present case. First, the Hyde Court was applying a new rule regarding the statute of limitations itself. Cf. Pamela J. Stephens, The New Retroactivity Doctrine: Equality, Reliance and, Stare Decisis, 48 Syracuse L.Rev. 1515, 1568 n. 397 (1998) (noting finality limits retroactivity “[e]xcept, of course, when the new rule itself changes one of these doctrines”) (citing Hyde). Here, there has been no Supreme Court decision directly holding the five-year per-emptive period is unconstitutional. More importantly, in Hyde, the Supreme Court was not reopening a time-barred suit. The Court merely held the two-year limitation period, the constitutional portion of the Ohio statute, applied on the date plaintiff filed suit, rendering it untimely. This is a far cry from employing the principles of retroactivity to revive a suit time-barred since the Great Depression. Further, the Hyde Court reiterated the rale that “finality” “limits the principle of retroactivity itself.” Id. at 759, 115 S.Ct. 1745. Thus, Respondents’ argument must fail.

Gulotta v. Cutshaw

The only other basis cited by the District Court for granting summary judgment is the fact Erie.T. White was not the record owner of the property. Prior to Mennonite, however, this Court had repeatedly held, in the context of tax sales, “the fact that property is assessed in the wrong name does not prevent the running of the five year peremptive period.” Gulotta v. Cutshaw, 283 So.2d 482, 492 (La.1973) (on reh’g); see Yuges Realty v. Jefferson Parish Developers, Inc., 205 La. 1033, 1041, 18 So.2d 607, 609 (1944) (“[F]or the purpose of prescription under the Constitution, it is immaterial whether the assessment was made in the name of the true owner, or in the name of another, or in no name at all.”); Weber’s Heirs v. Martinez, 125 La. 663, 667, 51 So. 679, 681 (1910) (same).

The facts of Gulotta are similar to the instant case. Gulotta purchased property in Iberville Parish and paid taxes on the property from 1907 through 1911. The property then disappeared from the tax rolls, reappearing in 1958 in the name of the Estate of Walter Row. The public records indicated Row was never the record owner of the property. The property was sold to Cutshaw in 1959 for taxes assessed against Row. In 1969, Gulotta filed suit, seeking to establish better title to the property. Although Row was never the record owner of the property, the Court found the suit to annul the tax sale was perempted under Article X, § 11, as more than ten years had passed since the tax deed was recorded.

We recognize Gulotta’s treatment of a tax sale lacking notice to the record owner as a relative nullity, rather than an absolute nullity, was effectively overruled by Mennonite. See Smitko, 11-2566 at p. 14; 94 So.3d at 759. However, as discussed above, the new rule announced by Mennonite cannot apply retroactively to cases closed by the running of the statute of limitations. Thus, our decision in Gulot-ta is dispositive. The fact that White was not the record owner of Lot 4 does not prevent the running of the peremptive period and is not a valid basis for summary judgment.

De Novo Review

Finally, upon de novo review of the record, we find summary judgment was inappropriate. Both parties have submitted multiple documents from the public records. We note the following relevant transactions in the Mayronne and 114Handlin-Jones chain of title:

• 1918 Wisner Estates, Inc. transfers Lot 4 to Virgil Nobles (COB 42, Page 618).
• 1919 John S. Wells acquires Lot 4 in a tax sale for 1918 unpaid taxes assessed in the name of Virgil Nobles (COB 46, Page 158). Wells then assigns his rights in Lot 4 to Wisner Estates, Inc. by an unrecorded private act.
• 1920 Wisner Estates, Inc. transfers Lot 4 to Nobles (COB 47, Page 284).
• 1920 Lot 4 is adjudicated to the State for 1919 taxes assessed against Virgil Nobles (COB 49, Page 192).
• 1936 Nobles redeems Lot 4, “which was returned on the Tax Collector’s list of land sold [to] the State from the Parish of Jefferson filed in the Land Office, on the 30th day of September 1930” (COB 129, Page 180).
• 1938 John S. Wells transfers Lot 4 to George Mayronne (COB 144, Page 7).

We also note the following relevant transactions in the Zodiac Group’s chain of title:

• 1925 John A. Saxton acquires “Lot 4” of the Third Jefferson Drainage District for unpaid 1924 taxes assessed in the name of Erie T. White (COB 70, Page 617).
• 1931 Saxton transfers “plot No. 4 of the Third Jefferson Drainage District” to the Zodiac Corporation (COB 112, Page 331).
• 1932 “Lot 4” adjudicated to the State for 1931 taxes assessed against John A. Saxton (COB 116, Page 309).
• 1944 “Lot 4” redeemed by Saxton (COB 282, Page 18).
• 1949 The Zodiac Corporation transfers an undivided one-half interest in “plot No. 4 of the Third Jefferson Drainage District” to Robert Ramos (COB 307, Page 681).

Respondents maintain summary judgment is appropriate as the 1925 tax sale was an absolute nullity. According to the public records, in 1920, Lot 4 was adjudicated to the State for 1919 taxes assessed to Virgil Nobles (COB 49, Page 192). The public records indicate the property was not redeemed until 1936 (COB |1S129, Page 180). Consequently, as Lot 4 was already adjudicated to the State in 1920, it could not be assessed and sold again in a tax sale in 1925. See Waterman v. Tidewater Assoc. Oil Co., 213 La. 588, 617, 35 So.2d 225, 235 (1947) (“[I]t is well established that, where property has been adjudicated to the State and not redeemed in time and manner provided by statute, the taxing officers of the State are without power to assess and sell the property as belonging to the former owner or any other person.”).

We disagree with Respondents. First, there is a significant gap in documentation regarding Lot 4 in Respondents’ chain of title from 1920 to 1936. When Nobles redeemed the property in 1936, the certificate of redemption stated Lot 4 was “returned on the Tax Collector’s list of land sold [to] the State from the Parish of Jefferson filed in the Land Office, on the 30th day of September 1930.” If the property had remained with the State from 1920 to 1936, there would be no reason for Lot 4 to be returned to the list of property-sold to the State in 1930. This suggests the property could have been returned to Nobles at some point between 1920 and 1930. Further, even if the 1925 tax sale was an absolute nullity, the parties could have still gained ownership of Lot 4 through acquisitive prescription. See Jacobs v. Southern Advance Bag & Paper Co., 228 La. 462, 471-73, 82 So.2d 765, 768-69 (1955); Eivers’ Heirs v. Rankin’s Heirs, 150 La. 4, 9, 90 So. 419, 421 (1921); Wilkie v. Cox, 222 So.2d 85, 90 (La.App. 3 Cir.1969), writ denied, 254 La. 470, 223 So.2d 873. The record, however, is silent as to any acts of possession by the parties.

11fiThis case does not lend itself to summary judgment. From the record before us, we cannot determine which party has better title to Lot 4. The title documentation presented by the parties is ancient, and presumably neither Nobles nor Saxton, nor any party with first-hand knowledge of these transactions is alive to testify. The title documentation is complex as there have been multiple tax sales, adjudications, and transfers, often in rapid succession, in both parties’ chains of title. Additionally, the gaps in title documentation raise questions of fact regarding ownership of Lot 4. For example, it is unclear how John S. Wells regained title to Lot 4, after he transferred Lot 4 to Wisner Estates in 1919, in order to sell it to George Mayronne in 1938. Thus, the issue of which party has better title is more appropriately settled through a trial on the merits. Cf. Morris v. Bass Enter. Prod. Co., 01-1242 (La.App. 4 Cir. 8/28/02); 828 So.2d 1128, 1130, writ denied, 02-3084 (La.4/4/03); 840 So.2d 1214 (issues involving “ancient, complex title documentation” best resolved by trial, rather than by summary judgment).

CONCLUSION

In summary, we find Mennonite cannot apply retroactively to invalidate the instant 1925 tax sale for lack of adequate notice. Under the United States Supreme Court’s retroactivity jurisprudence, a new rule of constitutional law announced by the Court applies to all future cases and cases pending on direct review on the date the Court’s decision is rendered. Further, retroactivity is limited by the doctrines of res judicata and statutes of limitations or repose. As the instant case was not pending on direct review at the time Mennonite was decided, and a suit to annul the tax sale was perempted fifty-three years before Mennonite, the notice requirements of Mennonite cannot apply retroactively to invalidate the 1925 tax sale. We also find summary judgment is inappropriate, as there are genuine issues of material fact regarding ownership of the disputed property. Accordingly, we | (7reverse the judgments of the lower courts and remand to the District Court for further proceedings consistent with the views expressed in this opinion.

DECREE

For the foregoing reasons, the judgments of the lower courts are reversed and this case is remanded to the District Court for further proceedings.

REVERSED; REMANDED.

Judge JEFFERSON D. HUGHES III was assigned as Justice pro tempore, sitting for KIMBALL, C.J. for oral argument. He now sits as an elected Associate Justice at the time this opinion is rendered.

WEIMER, Justice, additionally concurring with reasons.

WEIMER, J.,

concurring.

hi concur in the majority opinion, but write to underscore an important distinction in the jurisprudence regarding the retroactivity of federal judicial precedents. Although the Court’s holding in Mennonite (requiring notice of a pending tax sale) does not support nullification of the 1925 tax sale at issue in this case, that is not to say this court does not recognize that Mennonite has retroactive application. Instead, this court is required to recognize the “fully retroactive” binding federal precedents, and I believe the majority opinion, to which I ascribe, has done so.

How does recognizing the “fully retroactive” 1983 United States Supreme Court ease in Mennonite square with the refusal to nullify a 1925 tax sale, which from all appearances may not have complied with the rule of law announced in Mennonite 1 What I believe bears further clarification, is that the term “fully retroactive,” as used in Beam, and the term “full retroactive effect” as used in Harper; appear to be unfortunate misnomers. When the' Court introduced the term | ¿‘fully retroactive” in Beam, it did so to contrast retroactivity from two other situations, namely: 1) announcing a new rule of law, but currently applying the old rule (“purely prospective” application of the rule as the Court described); and 2) announcing and applying a new rule to the parties before the Court, but announcing the rule’s prospective application only for other parties (“modified, or selective, prospectivity” as the Court described). Beam, 501 U.S. at 535-37, 111 S.Ct. 2439. However, even “fully retroactive” was never suggested to be unlimited. Instead, the Court indicated “fully retroactive” must be applied “consistent with res judicata and procedural barriers such as statutes of limitations,” and “retroactivity in civil cases must be limited by the need for finality ...; once suit is barred by res judicata or by statutes of limitation or repose, a new rule cannot reopen the door already closed.” Beam, 501 U.S. at 535, 541, 111 S.Ct. 2439 (citation omitted). In Harper, while recognizing Beam resulted in a plurality opinion, the Court nevertheless found “Beam controlling];” therefore, the Court’s use of the term “full retroactive effect” in Harper appears to be simply part of the rule the Court recognized in Beam. See Harper, 509 U.S. at 96-97, 113 S.Ct. 2510.

What the instant case best illustrates, then, is no amount of retroactivity, full or otherwise, can revive an expired claim. Petitioners point to a number of legal principles applicable after the 1925 tax sale and before the 1983 ruling in Mennonite, which would cause respondents’ claim for annulling the tax sale to have expired. This court has applied one principle, the peremptive limitations period in Article X, § 11 of the 1921 Louisiana Constitution and determined respondents’ claim expired long ago.

What this case does not illustrate, therefore, simply because the facts are not presented, is having a binding federal precedent that directs a different result than would be obtained under state law. However, when a claim is not expired or | sotherwise barred, full retroactivity of a binding federal precedent may well direct a different result for that claim than would be obtained under state law.

       Judge Jefferson D. Hughes III was assigned as Justice pro tempore, sitting for Kimball, C.J. for oral argument. He now sits as an elected Associate Justice at the time this opinion is rendered.

      . Article X, § 11 states a proceeding to annul must be instituted "within six months from service of notice of sale ... and within five years from the date of recordation of the tax deed, if no notice is given." A similar provision is included in the 1974 Constitution. See La. Const, art. VII, § 25(C).

      . The Zodiac Group also argued die District Court erred by failing to consider the "reasonable step” doctrine, stated by the United States Supreme Court in Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). The appellate court, however, found Jones distinguishable, as “Jones presupposes that the State will at least attempt to notify the record owner of the property of a pending tax sale.” Here, "the record owner of the subject Lot 4 was not in any way notified of the pending tax sale.” Quantum Res., 11-813 at p. 10; 98 So.3d at 400.

      . See, e.g., Beam, 501 U.S. at 547, 111 S.Ct. at 2439 (Blackmun, J., concurring) ("[Fjailure to apply a newly declared constitutional rule to cases pending on direct review violates basic norms of constitutional adjudication.”); Strope v. Cummings, 653 F.3d 1271, 1274 (10th Cir.2011); Hernandez v. Thaler, 630 F.3d 420, 430 n. 51 (5th Cir.2011); Hatchett v. United States, 330 F.3d 875 (6th Cir.2003) (new rule of federal law applied to case "pending on direct review” at the time decision was rendered); cf. Danforth v. Minnesota, 552 U.S. 264, 266, 128 S.Ct. 1029, 1032, 169 L.Ed.2d 859 (2008) (new rules of criminal procedure must be applied in all future trials and "all cases pending on direct review”).

      . Additionally, commentators analyzing adjudicative retroactivity following Harper have repeatedly noted this limitation. See, e.g., Steven W. Allen, Toward a Unified Theory of Retroactivity, 54 N.Y.L. Sen. L.Rev. 105, 109— 10 (2010); Meir Katz, Note, Plainly Not "Error": Adjudicative Retroactivity on Direct Review, 25 Cardozo L.Rev. 1979, 1985 (2004); Pamela J. Stephens, The New Retroactivity Doctrine: Equality, Reliance and Stare Deci-sis, 48 Syracuse L.Rev. 1515, 1568 (1998).

      . As one commentator observed, under unlimited retroactivity "A company could face an intentional infliction of emotional distress claim for sexual harassment dating back to an era in which the term was not part of society’s collective vocabulary.” William Reed Huguet, Note, Hulin v. Fibreboard Corp.-In Pursuit of a Workable Framework for Adjudicative Retroactivity Analysis in Louisiana, 60 La. L.Rev. 1003, 1029 (2000).

      . Respondents also argue, under Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), the peremptive period of Article X, § 11 constitutes state action, as the period is triggered by recordation of the tax deed. Thus, actual notice was required under Mennonite, and the peremptive period fails to cure any due process violation. This argument presupposes Mullane and Mennonite could possibly apply to the 1925 tax sale. Suit to annul the sale became time-barred twenty years before Mullane and fifty-three years before Mennonite was decided, and thus, Respondents' argument fails.

      . The parties contend there can be no claim of acquisitive prescription, as Lot 4 is covered by several feet of water, and thus, corporeal possession is not possible. Without ruling on this issue, we note what constitutes possession for the purpose of acquisitive prescription depends primarily on the nature of the property. Chevron U.S.A. Inc. v. Landry, 558 So.2d 242, 244 (La.1990) (noting "a greater quality of possession is required in the case of woodland than in the case of swamp or marsh land”). The parties fail to cite to any case law holding acquisitive prescription is not possible for underwater property. See, e.g., Leake v. Richardson, 199 Va. 967, 976, 103 S.E.2d 227, 234 (1958) (holding, for underwater property, there must be acts of ownership "indicat[ing] a change of condition, showing a notorious claim of title”); 3 Am.Jur.2d Adverse Possession § 265, at 302 (2002) (“The fact that land is covered by water does not render the acquisition of title thereto impossible.”) (collecting cases).

      . Mennonite Board of Missions v. Adams, 462 U.S. 791, 799, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983).

      . James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 535-36, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991).

        .Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993).


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Darryl L. TATE v. STATE of Louisiana.
    No. 2012-KH-2603.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Tate, Darryl L.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 282535; to the Court of Appeal, First Circuit, No. 2012 CW 1170.

Denied.


text:
    B.A. KELLY LAND CO., L.L.C. and Augton Co., L.L.C. v. QUESTAR EXPLORATION AND PRODUCTION COMPANY, et al.
    No. 2013-C-0331.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Augton Co. L.L.C.; B.A. Kelly Land Co. L.L.C. et al.; — Plaintiff (s); Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. C, No. 131,508; to the Court of Appeal, Second Circuit, No. 47,-509-CA.

Denied. Applicant may have an adequate remedy on appeal.


text:
    LOUISIANA CHEMICAL ASSOCIATION v. STATE Of Louisiana & Honorable James D. “Buddy” Caldwell in his Official Capacity as Attorney General of the State of Louisiana.
    No. 2013-C-0343.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Attorney General James D. “Buddy” Caldwell; State of Louisiana et al.;— Defendant(s); Applying For Writ of Cer-tiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 597,851; to the Court of Appeal, First Circuit, No. 2012 CA 0230.

Denied.

KNOLL, J., would grant.

WEIMER, J., recused.


text:
    STATE of Louisiana and the Louisiana Department of Wildlife and Fisheries v. TIN INC. d/b/a Temple Island.
    No. 2013-CC-0371.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Louisiana Department of Wildlife and Fisheries; State of Louisiana et al.;— Plaintiffs); Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. G, No. 103031; to the Court of Appeal, First Circuit, No. 2012 CW 1778.

Denied.

KNOLL, J., would grant.

HUGHES, J., recused.


text:
    Sharon HOLLOWAY v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Rayburn Correctional Center.
    No. 2013-C-0563.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Holloway, Sharon; — Plaintiff; Applying For Writ of Certiorari and/or Review State of Louisiana Civil Service Commission, No. S-17187; to the Court of Appeal, First Circuit, No. 2012 CA 0754.

Denied.


text:
    Debbie FRANK and Joseph Frank v. BOOMTOWN L.L.C., OF DELAWARE SERVICE COMPANY, INC., Louisiana-1 Gaming a Louisiana Partnership in Commendam, Pinacle Entertainment, Inc., of Delaware Full Service Systems Corporation and Southern Service Corporation of Florida.
    No. 2013-C-0564.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Frank, Debbie et al.; Frank, Joseph; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 682-648; to the Court of Appeal, Fifth Circuit, No. 12-CA-382.

Denied.

JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    Louis FOX, et al. v. The SHAW GROUP, et al.
    No. 2013-C-0565.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Fox, Jo Ann; Louis Fox, et al.;— Plaintiff(s); Applying For Writ of Certio-rari and/or Review, Parish of Rapides, 9th Judicial District Court Div. G, No. 235,-492-G; to the Court of Appeal, Third Circuit, No. 12-239.

Denied.


text:
    ALLIED TAX FUND, L.L.C. v. CHIN HONG BOW & COMPANY, INC., Midstates Resources Corp., and Clyde Naquin.
    No. 2013-C-0572.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Naquin, Clyde; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. C, No. 07-14622; to the Court of Appeal, Fourth Circuit, No. 2012-CA-0371.

Denied.


text:
    Beverly THOMAS v. WAL-MART LOUISIANA, LLC and ABC Insurance Company.
    No. 2013-CC-0573.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Thomas, Beverly; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. A, No. 117449; to the Court of Appeal, First Circuit, No. 2012 CW 1823.

Denied.

JOHNSON, C.J., and KNOLL and HUGHES, JJ„ would grant.


text:
    Dr. Craig M. and Mrs. Shaun LANDWEHR v. STEVE OWENS CONSTRUCTION, INC. and Stephen R. Owens, Individually.
    No. 2013-C-0576.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Landwehr, Dr. Craig M. et al.; Landwehr, Shaun; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 2010-17694; to the Court of Appeal, First Circuit, No. 2012 CA 1033.

Denied.


text:
    ALLSTATE INSURANCE COMPANY v. DISH NETWORK SERVICE, LLC, ABC Insurance Company, Superstar/Netlink Group, LLC & DEF Insurance Company.
    No. 2013-CC-0582.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Dish Network Service, LLC; Super star/Netlink Group, LLC; — Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. D, No. 98655; to the Court of Appeal, First Circuit, No. 2012 CW 1822.

Denied.


text:
    Joe SPRINGER v. ST. MARY PARISH, Wax Lake East Drainage District of the Parish of St. Mary and Chad Duplantis.
    No. 2013-CC-0586.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Wax Lake East Drainage District of The Parish of St. Mary; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. A, No. 122134; to the Court of Appeal, First Circuit, No. 2012 CW 1943.

Denied.


text:
    Jerry J. DUPRE, Jr. v. SURBO TUBULAR SERVICES, INC. and Amerisafe Risk Services, Inc.
    No. 2013-C-0593.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Dupre, Jerry J.; — Plaintiff; Applying For Writ of Certiorari and/or Review Office of workers’ Compensation, District 9, No. 11-02671; to the Court of Appeal, First Circuit, No. 2012 CA 1131.

Denied.


text:
    STEWART TITLE OF LOUISIANA v. CHEVRON, U.S.A., INC., Huntington Beach Company, Keiichi-Mar Investing and LTA, Inc.
    No. 2013-OC-0611.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Chevron, U.S.A., Inc.; Huntington Beach Company; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 210-07431; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1369.

Denied.


text:
    STATE of Louisiana v. Charles JONES.
    No. 2013-KK-0613.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Jones, Charles; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, Nos. 09-400, 09-3448; to the Court of Appeal, Fifth Circuit, No. 13-K-53.

Denied.


text:
    Mary Frances HOWARD v. MAMOU HEALTH RESOURCES d/b/a Savoy Medical Center, et al.
    No. 2013-C-0614.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Howard, Mary Frances; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Evangeline, 13th Judicial District Court Div. B, No. 71975-B; to the Court of Appeal, Third Circuit, No. 12-820.

Denied.


text:
    Paula Coon LINCOLN v. Malcolm LINCOLN, Sr.
    No. 2013-CC-0615.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Lincoln, Paula Coon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 59,017; to the Court of Appeal, Fourth Circuit, No. 2013-C-0087.

Denied.


text:
    Calvin RICHARDSON, Jr. v. CHRISTUS SCHUMPERT HEALTH SYSTEM and Louisiana Patient’s Compensation Fund.
    No. 2013-C-0621.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Louisiana Patient’s Compensation Fund; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. F, No. 545,405-A; to the Court of Appeal, Second Circuit, No. 47,776-CA.

Denied.


text:
    SHREVEPORT POLICE OFFICERS ASSOCIATION, et al. v. Honorable Cedric GLOVER, Appointing Authority for the City of Shreveport, et al.
    No. 2013-C-0624.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Carter, Michael; Shreveport Police Officers Association; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 551,851; to the Court of Appeal, Second Circuit, No. 47,504-CA.

Denied.


text:
    Brian LEWIS, et al. v. BATON ROUGE POLICE DEPARTMENT, et al.
    No. 2013-OC-0631.
    Supreme Court of Louisiana.
    April 19, 2013.
   In re Lewis, Brian; — Plaintiff; Applying For Motion to Recuse Louisiana Supreme Court, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 603093.

Denied.


text:
    Benjamin SHIPP, et al. v. ENTERGY LOUISIANA, LLC.
    No. 2013-CC-0881.
    Supreme Court of Louisiana.
    April 22, 2013.
   In re Entergy Louisiana, LLC; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2012-7676; to the Court of Appeal, Third Circuit, No. CW13-00435.

Granted in part, denied in part. The judgment of the district court is reversed. In the interest of justice, defendant’s motion for continuance is granted. Defendant’s motion to seal is denied. Within five days of this order, defendant shall be permitted to remove all confidential exhibits from the record of this court. .See Supreme Court Rule V, § 5.

HUGHES, J„ would deny.


text:
    STATE of Louisiana v. Allen ESTER.
    No. 2013-KK-0780.
    Supreme Court of Louisiana.
    April 24, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 511-341; to the Court of Appeal, Fourth Circuit, No. 2013-K-0046.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Raymond JOHNSON.
    No. 2013-KK-0900.
    Supreme Court of Louisiana.
    April 24, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 514-353; to the Court of Appeal, Fourth Circuit, No. 2013-K-0402.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Michael LOUDING.
    No. 2013-KK-0919.
    Supreme Court of Louisiana.
    April 25, 2013.
   In re Louding, Michael; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 06-10-0234; to the Court of Appeal, First Circuit, No. 2013 KW 0426.

Stay Denied; Writ Denied.


text:
    Clyde SNIDER, Jr., et ux. v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, et al.
    No. 2013-C-0579.
    Supreme Court of Louisiana.
    April 26, 2013.
   In re Louisiana Medical Mutual Insurance Company et al.; Yue M.D., Robin;— Defendant(s); Applying For Writ of Cer-tiorari and/or Review, Parish of Beauregard, 36th Judicial District Court Div. B, No. 2010-1220; to the Court of Appeal, Third Circuit, No. 12-1068.

Granted.


text:
    STATE ex rel. Cassondra LEVERT v. STATE of Louisiana.
    No. 2012-KH-2197.
    Supreme Court of Louisiana.
    April 26, 2013.
   In re Levert, Cassondra; — Plaintiff; Applying For Reconsideration of this court’s action dated March 1, 2013, Parish of Orleans, Criminal District Court Div. I, Nos. 268-468, 268-685.

Reconsideration denied.


text:
    STATE ex rel. Randy Paul DAVIS v. STATE of Louisiana.
    No. 2012-KH-2748.
    Supreme Court of Louisiana.
    April 26, 2013.
   In re Davis, Randy Paul; — Plaintiff; Applying For Reconsideration of this court’s action dated February 22, 2013, Parish of Natchitoches, 10th Judicial District Court Div. B, No. 19494-B; to the Court of Appeal, Third Circuit, No. KH 12-01214.

Reconsideration denied.


text:
    SUCCESSION OF Eddie Lee MOORE a/k/a Phil Moore.
    No. 2013-CC-0288.
    Supreme Court of Louisiana.
    April 26, 2013.
   In re Moore, Brenda; — Other; Applying For Reconsideration of this Court’s action dated March 15, 2013, Parish of More-house, 4th Judicial District Court Div. A, No. 4274; to the Court of Appeal, Second Circuit, No. 47,797-CW.

Not considered. See Supreme Court Rule IX, § 6¿


text:
    Angelina CANTUBA, et al. v. The AMERICAN BUREAU OF SHIPPING, et al.
    No. 2013-CC-0643.
    Supreme Court of Louisiana.
    April 26, 2013.
   In re Mitsubishi Heavy Industries, Ltd.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 94-16056 C/W 95-19198 C/W 96-21561 C/W 97-70; to the Court of Appeal, Fourth Circuit, No. 2013-C-0021.

Stay denied. Writ denied.


text:
    STATE ex rel. Sonny James CASTON v. STATE of Louisiana.
    No. 2012-KH-2365.
    Supreme Court of Louisiana.
    April 26, 2013.
   In re Caston, Sonny James; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Richland, 5th Judicial District Court Div. B, No. F-93-11; to the Court of Appeal, Second Circuit, No. 47653-KW.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


author: McClendon, j.

text:
    Rosalind M. YOUNGBLOOD v. COVENANT SECURITY SVC, L.L.C. and ESIS New Orleans.
    No. 2011 CA 2382.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2012.

      Sharry I. Sandler, New Orleans, LA, for Plaintiff/Appellee, Rosalind M. Young-blood.
    Leslie E. Hodge, Lindsay F. Louapre, New Orleans, LA, for Defendants/Appellants, Covenant Security Services, LLC and Ace American Insurance Company.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   McClendon, j.

lain this workers’ compensation case, the defendants appeal a judgment, awarding the plaintiff temporary total disability benefits and medical expenses and assessing the defendants with penalties and attorney fees for their failure to pay medical benefits. For the reasons that follow, we reverse in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

On January 5, 2007, the plaintiff, Rosalind M. Youngblood, filed a Disputed Claim for Compensation, asserting that on April 30, 2006, while performing rounds as a security guard for Covenant Security Services, LLC (Covenant), she slipped and fell in water on the floor of the hallway of the maintenance building at the Air Products plant in St. Gabriel, Louisiana. Ms. Youngblood alleged that as a-result of the accident she suffered injuries to her back and right knee. Also made a defendant was Covenant’s insurer, Ace American Insurance Company.

Following a trial in this matter on February 14, 2011, the Office of Workers’ Compensation (OWC) kept the record open for the parties to file post-trial briefs, and on April 21, 2011, the OWC issued reasons for judgment. On May 3, 2011, the OWC signed a judgment, which provided that 1) Ms. Youngblood sustained an accident in the course and scope of her employment with Covenant on April 20, 2006; 2) as a result of the accident, Ms. Youngblood sustained injuries to her low back, neck and aggravation to her right knee; 3) Ms. Youngblood was released to full duty work effective May 6, 2006; 4) Ms. Youngblood was terminated for cause by Covenant on August 9, 2006; 5) Ms. Youngblood was not entitled to indemnity benefits after her termination until the | atime of her lumbar spine fusion on December 10, 2009; 6) Covenant is to pay to Ms. Youngblood temporary total disability (TTD) benefits from December 10, 2009, through the date of the reading of the judgment on April 21, 2011, totaling $17,135.14 plus interest at 9.5%; 7) Covenant is to continue to pay Ms. Youngblood TTD benefits in the amount of $241.34 per week, beginning the week of April 25, 2011; 8) Covenant is responsible for all unpaid medical expenses associated with Ms. Youngblood’s work-related injuries; 9) Covenant reasonably controverted Ms. Youngblood’s entitlement to indemnity benefits; 10) Covenant did not reasonably controvert Ms. Youngblood’s entitlement to medical benefits, and therefore it owes Ms. Youngblood a $2,000.00 penalty and $5,000.00 attorney fee for same; and 11) Ms. Youngblood did not commit 1208 fraud.

The defendants suspensively appealed said judgment, and assigned the following as error:

1.The [OWC] erred in finding the Claimant is entitled to temporary total disability benefits from December 10, 2009 and continuing.
2. The [OWC] erred in finding the Defendants responsible for the Claimant’s medical treatment costs and in assessing a penalty and attorney fee for failure to pay medical benefits.
3. The [OWC] erred in finding that the Claimant did not violate the provisions of LSA-R.S. 23:1208.

DISCUSSION

As a threshold requirement, a workers’ compensation claimant bears the initial burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Magee v. Abek, Inc., 04-2554 (LaApp. 1 Cir. 4/28/06), 934 So.2d 800, 806, writ denied, 06-1876 (La.10/27/06), 939 So.2d 1287. A worker’s testimony alone may be sufficient to discharge this burden of proof if no other evidence discredits or casts serious doubt upon the worker’s version of the incident and the worker’s |4testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends, and by medical evidence. Sevin v. Greenbriar Nursing Home, 00-2794 (La.App. 1 Cir. 2/15/02), 807 So.2d 1179, 1180.

Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Allman v. Washington Parish Police Jury, 04-0600 (LaApp. 1 Cir. 3/24/05), 907 So.2d 86, 88. Factual findings in a workers’ compensation case are subject to the manifest error-clearly wrong standard of review. McCray v. Delta Industries, Inc., 00-1694 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 269. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. Thus, if the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Bolton v. B E & K Const., 01-0486 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35.

In their appeal, the defendants initially contend that Ms. Youngblood is not entitled to TTD benefits, maintaining that she failed to meet her burden of proof. The defendants argue that Ms. Youngblood failed to meet her burden of proving that her disability and inability to work was the result of the work-related accident in April 2006.

An employee seeking temporary total disability benefits in accordance with LSA-R.S. 23:1221(1) must prove by clear and convincing evidence that she is unable to engage in any gainful occupation, whether or not the same type of |5work she was engaged in at the time of injury. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, in other words, much more probable than not. Magee, 934 at 807. In the absence of such evidence, the claimant’s demand for temporary total or permanent total disability benefits fails. Nitcher v. Northshore Regional Medical Center, 11-1761 (La.App. 1 Cir. 5/2/12), 92 So.3d 1001, 1007, writ denied, 12-1230 (La.9/21/12), 98 So.3d 342. Ultimately, the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. Id.

Further, a claimant’s subjective belief that she cannot work does not satisfy the statutory burden of proof. Au-coin v. CNA, 12-0144, p. 4 (La.App. 1 Cir. 9/21/12), 111 So.3d 31. The issue of disability is a legal rather than a purely medical determination, with reference to the totality of the evidence, including both lay and medical testimony. In order for a claimant to establish that she is disabled such that she is unable to engage in any employment, she must introduce objective medical evidence supporting the existence of a disabling condition. While the workers’ compensation laws are to be construed liberally in favor of the claimant, that interpretation cannot lessen the claimant’s burden. Id; Bonvillain v. Preferred Industries and LWCC, 04-0849 (La.App. 1 Cir. 5/27/05), 917 So.2d 1, 8.

At trial, Ms. Youngblood testified that the morning of the accident was particularly busy. She was performing her normal routine as a security guard, and, because the Air Products plant was being sold, a large cleaning crew was at the plant. Ms. Youngblood testified that she was going around unlocking doors for the cleaning crew, and when, she was unlocking the doors in the hallway of the last building, which was the maintenance building, she “slipped in a puddle of water and fell.” Ms. Youngblood stated that she called the supervisor and reported her accident. She also testified that she was not sent to a doctor by Covenant, and she went to her primary care physician, Dr. Raja Talluri, the following day, complaining of pain in her back and knee.

The record shows that Ms. Youngblood was released to work for regular duty on May 5, 2006, by Dr. Talluri. Also on May 5. 2006, Ms. Youngblood was sent to Our Lady of the Lake Ascension Occupational Health Clinic to get a clearance to return to work. She was released to “[rjeturn to regular work,” and the injury status report also indicated that Ms. Youngblood’s treatment was complete and no follow-up was necessary. The report was signed by Ms. Youngblood. Thereafter, Ms. Youngblood returned to her position as a security guard and continued to work until she was terminated on August 9, 2006.

Ms. Youngblood testified that when she returned to work after the accident, she was still in pain, but that she had to work to care for her family. Ms. Youngblood testified that she told her employer that she was still in pain and that she wanted to go back to the doctor. She stated that Covenant did not offer her any treatment or send her to a doctor. Ms. Youngblood stated that she continued to work, but when she asked for forms to fill out regarding a workers’ 17compensation claim to seek further treatment, Covenant did not respond, and she was terminated.

Ms. Youngblood testified that her surgeon, Dr. Cuong J. Bui, informed her that her back problems and need for surgery resulted from her slip and fall while working for Covenant. She stated that she had no prior back problems, and that from the time of her accident until her termination, she performed her job duties, although she was always in pain. Ms. Youngblood also testified that since her back fusion surgery on December 10, 2009, she has not returned to work, is still in pain, and is being treated for her back. She also testified that according to her doctor she is fully disabled.

Besides her testimony, Ms. Youngblood also introduced medical records showing that she was seen at Metairie Orthopaedic Clinic on March 14, 2007, by Dr. R. Vaclav Hamsa. Dr. Hamsa reported degenerative changes, as well as spondylolisthesis and disc ruptures at L5-S1 and L3-L4. Dr. Hamsa referred Ms. Youngblood to Dr. Fred DeFraneesch, who performed two facet injections on May 8, 2007. Ms. Youngblood was also treated at Tulane University Hospital and Clinic in 2008 and 2009 by Dr. Jacques S. Whitecloud for her back pain, where she received steroid injection therapy.

In her personal history information given to Ochsner Clinic Foundation on July 7, 2009, Ms. Youngblood indicated that her back trouble began in 2006 and noted:

I [am] coming here today about my back, and a CT of the brain. I need to know what will be done about the pain, and what is found on the brain. The lower [back] pain has made my life hell, the brain finding just turned up.

Ms. Youngblood was examined by Dr. Bui on that date. He ordered an updated MRI of her lower back and flexion-extension x-rays to evaluate her back. Dr. Bui saw Ms. Youngblood for a follow-up on August 25, 2009, at which time he noted |sthat she had “pretty severe degenerative disc disease at L3^1 and L5-S1 with disc herniation at L3-4 and possible pars defect at L3^4.” He also reported that “L5-S1 has a grade 1 spondylolisthesis again with some central as well as bilateral foraminal stenosis at that level with evidence of bilateral facet arthropathy at both of these levels.” When Dr. Bui again saw Ms. Youngblood on October 20, 2009, he reported:

Reviewing the CAT scan today, it does confirm that she does have a bilateral pars defect at L3-L4 as well as L5-S1 with mild anterior listhesis of L5-S1 and vacuum disc at L5-S1. She has not had any prior surgery, but did suffer a significant fall several years ago, which she feels may be responsible for this.

Dr. Bui recommended a fusion at the L3-4 and L5-S1 levels, with the possibility of incorporating L4-L5 into the fusion. Dr. Bui noted that Ms. Youngblood wished to proceed with surgical intervention for pain relief.

While there is very little in the record regarding Ms. Youngblood’s lumbar spine fusion surgery, she introduced into evidence x-ray pictures of her spine, with the hardware in place.

The OWC concluded that Ms. Young-blood sustained an accident in the course and scope of her employment and that her back condition was related to the accident and was compensable. The OWC determined that because Ms. Youngblood was released to full duty, no indemnity benefits were due after her termination. However, the OWC also determined that once she had her back surgery, benefits became due. The OWC found that, while Ms. Youngblood was able to perform her job up to the date that she was terminated, her back began to deteriorate in 2008, resulting in her back fusion on December 10, 2009. Further, while recognizing that there was no evidence from any physician that Ms. Youngblood could not work, the OWC concluded that Ms. Youngblood was entitled to TTD benefits “at least for a period of recovery.” The OWC stated that there was “nothing after the surgery regarding her back” in the record to indicate whether Ms. Youngblood was able to return to a light-duty job, but added that “the Court thinks it’s a very reasonable inference when you have back fusion surgery that you cannot work.” The OWC then awarded TTD benefits from 1 ^December 10, 2009, “until we can find out from a physician whether she can go back to doing her job.”

Considering the above, including the clear and unrebutted testimony of Ms. Youngblood, we find that the record supports the OWC’s finding that Ms. Young-blood suffered a work-related injury that necessitated her lumbar back fusion. The defendants introduced no evidence to question whether Ms. Youngblood’s condition was related to her fall at work, other than the releases authorizing Ms. Youngblood to return to work. No witnesses testified and no medical evidence was presented by the defendants to contradict either Ms. Youngblood’s testimony or Dr. Bui’s assessment that Ms. Youngblood’s lower back problem was connected to her work-related injury.

However, after a review of the record, we also conclude that Ms. Young-blood failed to prove by clear and convincing evidence that she was incapable of performing some type of work after her surgery entitling her to TTD benefits. Although Ms. Youngblood testified that she was unable to return to work and that she was still in pain and being treated for her back, there is simply no medical evidence in the record regarding her ability to return to work subsequent to her back surgery. Ms. Youngblood’s subjective belief that she could not return to work did not satisfy her statutory burden of proof, and she was required to introduce objective medical evidence supporting the existence of a disabling condition post-surgery. See Aucoin, 12-0144 at p. 4, 111 So.3d 31; Bonvillain, 917 So.2d at 8.

In the case of Buxton v. Iowa Police Department, 09-0520 (La.10/20/09), 23 So.3d 275, 288-89, the OWC awarded TTD benefits to the claimant following a work-related accident in which his police unit was struck by a motorcycle. The supreme court found that the decision of the OWC to award TTD benefits was based on one statement by the examining physician almost four months after the accident that the claimant needed “time to recover.” The 110court stated, “Clearly, this was not clear and convincing evidence of total disability,” and found the award of TTD benefits to have been manifestly erroneous. Buxton, 23 So.3d at 289-90. In this matter, it was the OWC that determined that Ms. Youngblood could not work following back fusion surgery and was entitled to TTD benefits “at least for a period of recovery.” Similarly, we cannot say that this inference was clear and convincing evidence of disability. We note that the legislature has effectively eliminated all but the most disabled employees from receiving TTD benefits, by requiring that the employee clearly and convincingly show that he is physically unable to engage in any employment. See LSA-R.S. 23:1221(1)(c); Aucoin, 12-0144 at p. 4, 111 So.3d 31. The record is simply devoid of any medical evidence addressing Ms. Youngblood’s disability following surgery. Accordingly, we conclude that the OWC committed manifest error in finding that Ms. Youngblood carried her burden of proof to entitle her to TTD benefits, and we reverse that portion of the judgment ordering Covenant to pay Ms. Youngblood past and future TTD benefits.

The defendants next contend that the OWC erred in finding them responsible for Ms. Youngblood’s medical expenses and in assessing a penalty and attorney fee for the failure to pay the medical benefits. The defendants argue that they were reasonable in not paying Ms. Youngblood medical benefits since she had been released to return to full-duty work without restrictions and with no recommendation for further treatment. Additionally, defendants assert that Ms. Youngblood failed to request prior approval for treatment after May 5, 2006, and provide them with documentation regarding her treatment after that date.

In a workers’ compensation case, the employer has a duty to furnish all necessary medical and non-medical services. LSA-R.S. 23:1203 A. Louisiana Revised Statutes 23:1142 provides for reimbursement of medical expenses in workers’ compensation cases, and provides in pertinent part:

A. Definitions. ... (1) “Payor” shall mean the entity responsible, whether by law or contract, for the payment of the Inmedical expenses incurred by a claimant as a result of a work related injury.
E. Exception. In the event that the payor has denied that the employee’s injury is compensable under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury.

In this matter, the record shows that although Ms. Youngblood was released to return to work shortly after the accident, she testified that she continued to suffer from pain, she could not return to her doctor since her yearly allotment of visits under Medicaid was met and Covenant would not authorize further doctor appointments, and her primary care doctor told her that he could not continue to treat her without payment. Ms. Young-blood also specifically testified that when she asked Covenant for workers’ compensation forms in an attempt to get treatment, she was refused. No testimony or evidence was offered by defendants to refute Ms. Youngblood’s testimony. Thus, the defendants effectively denied Ms. Youngblood’s claim for medical expenses when they failed to respond to her request that her claim be reviewed. We find that Covenant’s lack of a response was the equivalent of a denial of compensability such that the exception in LSA-R.S. 23:1142 E applied. See Stewart v. Livingston Parish School Bd., 07-1881 (La.App. 1 Cir. 5/2/08), 991 So.2d 469, 475. When compensability is denied, no approval is required for testing or treatment. Id. The statute does not specify “when” or “how” a denial of compensability must occur; it merely states that if the payor denies that an injury is compensable, the employee need not seek approval for medical treatment. Thus, the exception in subsection E applies regardless of when a denial of compensability occurs. Stewart, 991 So.2d at 475. Considering the above, we can find no manifest error in the OWC’s award of unpaid medical expenses associated with Ms. Youngblood’s work-related injuries.

The defendants also argue that the OWC erred in awarding penalties and attorney fees to Ms. Youngblood, contending that they reasonably controverted Ms. Youngblood’s claim for medical benefits.

112Pursuant to LSA-R.S. 23:1201 F, an employer or insurer may be assessed with penalties and attorney fees for failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by LSA-R.S. 23:1121. Under the applicable statutory provisions of Subsection 1201F, penalties and attorney fees are recoverable unless “the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” LSA-R.S. 23:1201 F(2). A claim is reasonably controverted when the employer has sufficient factual and/or medical information to reasonably counter evidence presented by the claimant. Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 890. A determination of whether an employer has failed to reasonably controvert a claim is a question of fact and is subject to the manifest error standard of review. Atwell v. First General Services, 06-0392 (La.App. 1 Cir. 12/28/06), 951 So.2d 348, 357, writ denied, 07-0126 (La.3/16/07), 952 So.2d 699. The decision to impose penalties and attorney fees is essentially a factual issue subject to the manifest error or clearly wrong standard of review. Authement v. Shappert Engineering, 02-1631 (La.2/25/03), 840 So.2d 1181, 1188-89.

The OWC awarded a penalty and attorney fee, concluding:

I don’t understand why they did not pay for her medical treatment immediately. And terminating her for cause doesn’t mean that she doesn’t still need medical treatment.... And she continued to have medical problems.

After thoroughly reviewing the record, we find that the OWC’s findings are reasonably supported by the record. Covenant disregarded its duty to properly and reasonably investigate the cause of Ms. Youngblood’s back [^condition, and we, therefore, find no manifest error in the OWC’s award of a penalty and attorney fee. This assignment of error is without merit.

Lastly, the defendants contend that Ms. Youngblood willfully made false statements and misrepresentations for the purpose of obtaining benefits. The OWC, however, found that while Ms. Youngblood was “not the best historian,” any misrepresentations resulted from confusion and were not deliberately made for the purpose of obtaining benefits.

The burden of proof under LSA-R.S. 23:1208 requires more than a mere showing of inconsistent statements or inadvertent admissions by the claimant. Bernard v. Petro Stopping Centers, 07-0387 (La.App. 1 Cir. 11/2/07), 977 So.2d 49, 54, writ denied, 08-0100 (La.3/7/08), 977 So.2d 917; Sevin, 807 So.2d at 1181. The issue of whether an employee forfeited (by willfully making false statements) her workers’ compensation benefits is also one of fact, which should not be reversed on appeal, absent manifest error. Bernard, 977 So.2d at 54.

Upon our own thorough review of the entire record, including Ms. Youngblood’s prior depositions, we cannot say that the OWC was manifestly erroneous in concluding that Ms. Youngblood did not violate LSA-R.S. 23:1208.

CONCLUSION

Based on the above and foregoing reasons, the May 3, 2011 judgment of the OWC is reversed insofar as it awards Ms. Youngblood past and future temporary total disability benefits. In all other aspects, the judgment is affirmed. Costs of this appeal shall be split equally between the plaintiff, Rosalind M. Youngblood, and the defendants, Covenant Security Services, LLC and Ace American Insurance Company.

REVERSED IN PART AND AFFIRMED IN PART.

      . Ms. Youngblood initially identified Covenant's insurer as ESIS New Orleans.

      . Plaintiffs Disputed Claim for Compensation listed the accident date as April 30, 2006, and she testified at trial that the accident occurred on April 28, 2006. The actual date of the accident is not pertinent to this appeal.

      . Ms. Youngblood was terminated for stating on her employment application that she had a high school diploma, although she did not graduate from high school. Her termination is not at issue in this appeal.

      . This refers to LSA-R.S. 23:1208, which provides, in pertinent part:
      A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.

      . Louisiana Revised Statutes 23:1221 provides, in pertinent part:
      Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
      (1) Temporary total.
      (a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.

      (c) For purposes of Subparagraph (l)(a) of this Paragraph, ... compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, 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.

      . Ms. Youngblood’s knee complaints resolved fairly quickly.

      . Ms. Youngblood stated that Air Products required Covenant to clear her for work before she could return.

      .While Ms. Youngblood testified that she was involved in a motor vehicle accident fifteen years prior to her work-related accident, the evidence suggests that her treatment for injuries was limited to an emergency room visit.

      . Ms. Youngblood was also diagnosed with a brain tumor.

      . The OWC's finding that Ms. Youngblood was not entitled to indemnity benefits after her termination until the time of her surgery is not before us on appeal.

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