author: DENNIS R. BAGNERIS, SR., Judge.

text:
    STATE of Louisiana v. Wayne G. TAYLOR a/k/a Wayne Taylor.
    No. 2013-KA-0265.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 2013.
    Rehearing Denied Feb. 4, 2014.

      Charles Joseph Ballay, District Attorney, Edward Robert McGowan, Assistant District Attorney^ Belle Chasse, LA, for Appellee, State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Wayne G. Taylor a/k/a Wayne Taylor.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge SANDRA CABRINA JENKINS).
   DENNIS R. BAGNERIS, SR., Judge.

| T Defendant Wayne Taylor appeals his conviction for unauthorized entry of a place of business. Finding merit to defendant’s assignment of error questioning the sufficiency of the evidence to sustain defendant’s conviction, we hereby reverse the defendant’s conviction and sentence.

STATEMENT OF THE CASE

Defendant Wayne G. Taylor was charged by bill of information on November 4, 2011 with two counts of simple burglary, violations of La. R.S. 14:62. Defendant pleaded not guilty at his December 5, 2011 arraignment. On the first morning of trial, August 14, 2012, the trial court granted defendant’s motion in limine, barring reference to, testimony or evidence as to, prior crimes committed by defendant. The court also ruled that the State could introduce evidence of an incul-patory statement made by defendant. Trial by a six-person jury was held on August 14-15, 2012, at the conclusion of which defendant was found guilty of unauthorized entry of a place of business as to Count One and not guilty as to Count Two. The trial court denied defendant’s motion for new trial on September 5, 2012. On November 7, 2012, the trial court sentenced defendant to six years at hard labor. Defendant now appeals this final judgment.

[.FACTS

Defendant was charged with simple burglary in Count One and convicted as to Count One of the lesser offense of unauthorized entry into a place of business.

Plaquemines Parish Sheriffs Office Detective Paul Durnin testified that in January 2011 he investigated a burglary at what was referred to as “the state school complex” or “the state school,” located at 251 F. Edward Hebert Blvd., in Plaque-mines Parish. Some contractors working at the site reported that the power was off and that a quantity of copper wire had been removed from one building at the site. He said a blue cigarette lighter was found at the scene, along with a pole normally used to shut off electricity. He testified that the Louisiana State Police Crime Lab obtained DNA from the lighter that matched defendant’s DNA profile in the “CODIS” system.

Det. Durnin also investigated a similar burglary the next month, February 2011, at the same location. The sheriffs office was notified of the burglary on February 8, 2011. He and Detective Brett Ricks went to the scene the following day, February 9, 2011. Blood evidence collected in the February 2011 burglary was also DNA matched to defendant. It was at that time that an arrest warrant was obtained for defendant, but defendant was not arrested for several months. In the course of his investigation Det. Durnin did not find any indication that defendant had authority to be at the state school; that defendant was employed by the Plaquemines Parish government (“PPG”); or that he worked for a contractor for the PPG. Det. Durnin was present when defendant was booked and advised of his | ^Miranda rights. Defendant refused to give a statement. Det. Ricks asked defendant if he had ever been to Plaquemines Parish, and defendant replied that he had not. Buccal swabs were taken from defendant in April 2012, and Det. Durnin confirmed that a DNA profile produced from those swabs matched defendant’s DNA profile produced from the evidence collected after both the January and February 2011 burglaries.

Det. Durnin confirmed on cross-examination that Orleans Parish was right behind the state school defendant was accused of burglarizing. Det. Durnin admitted that no copper was found on defendant’s person, and that they had found no record of any copper sales by defendant at area scrapyards. When asked what evidence there was that defendant had stolen copper, Det. Durnin cited the DNA evidence. When asked whether there was any fence on the property, Det. Durnin replied that there was only a ditch. He did not remember there being any “No Trespassing” signs on the property.

Retired Plaquemines Parish Sheriffs Office Lt. Ken Harvey testified that prior to his retirement, from 2005 to July 1, 2012, he was the “evidence officer” for the office, responsible for securing evidence, picking it up, taking it to the crime lab, and storing it. He testified generally to chain-of-custody procedures in the sheriffs office. He identified a chain-of-custody receipt reflecting that he picked up evidence in the case on January 17, 2011, under item #A-11-00681. He also identified a similar receipt reflecting evidence received by him on February 9, 2011, under item # A-ll-01656.

Plaquemines Parish Sheriffs Office Deputy Melanie Zito testified that she became the evidence custodian on August 13, 2012' — the day before she testified at |4the trial. She succeeded retired Lt. Ken Harvey and was responsible for taking the evidence to trial.

Det. Lt. Brett Ricks, with the Plaque-mines Parish Sheriffs Office, investigated the February 2011 burglary at the state school on F. Edward Hebert Blvd. He circled on State Exhibit 2, a blow-up of an aerial photograph of the state school complex, the building complex that was the subject of his investigation on February 9, 2011. He referred to it as the “Beech Grove Complex.” It was composed of what appeared to be five buildings all connected to each other, along with two buildings standing alone. The aerial photograph showed a vast overall complex of multiple building complexes, five similar to the Beech Grove Complex, and some stand-alone buildings, including one right off of F. Edward Hebert Blvd. marked “251,” at what appeared to be the main entrance to the overall complex. The Beech Grove Complex was at the rear of the overall complex, farthest away from F. Edward Blvd.

Det. Ricks identified photographs of blood evidence found in the interior of “one of those buildings” that comprised the Beech Grove Complex. The photographs depict blood evidence on light-colored, speckle-patterned, linoleum floor tiles. Samples of that blood evidence were collected. He said one spot of blood was approximately twenty-five to thirty feet away from an exterior wall that had been pulled down, the location of which he identified with a yellow square. Det. Ricks identified a photo of a door that was almost pulled off, and he confirmed that was where he believed defendant gained entrance. When asked whether he considered that a classic forced entry, Det. Ricks replied in the affirmative. Det. Ricks also identified photographs of the inside of the Beech |sGrove Complex showing severed electrical wires and electrical conduit pipe. Electrical wiring had been removed from inside the conduit.

In the course of Det. Ricks’ investigation he contacted the human resources department of the PPG, and no one could verify that defendant worked for the parish. He did not find any information that defendant worked for a contractor for the parish or that he had permission to be in that facility or the burglarized facility where his blood was found. When arrested, defendant was advised of his Miranda rights and refused to make a statement. Det. Ricks asked defendant if he could ask one question, and defendant replied in the affirmative. When Det. Ricks subsequently asked defendant if he had ever been in Plaquemines Parish, defendant replied in the negative. Det. Ricks identified evidence bags relating to blood samples collected at the scene on February 9, 2011, and he stated that he had sealed those bags, as well as an evidence bag containing buccal swabs taken from defendant in April 2012.

Det. Ricks admitted on cross-examination that the sheriffs office found no leads on the location of the copper stolen from the state school. He said no fingerprints were found on what appeared to have been a remote vehicle accessing device with a lock/unlock feature and a panic button that was found at the scene. Det. Ricks admitted that on February 13, 2011, a black male was seen exiting a truck on the state school complex, and he fled before being questioned. Det. Ricks confirmed for the record that defendant was a white male. There was also a call made to the sheriffs office by a parish employee reporting a truck at the state school with three males inside. A temporary license tag number on the truck was traced to a dealership that that had some temporary tags stolen, and that tag number was never linked to anyone.

| fiDet. Ricks admitted on cross-examination that between 2003 and 2012 there had been twenty-three other complaints filed with the sheriffs office relating to the state school complex. Det. Ricks read a comment concerning a complaint call made to the sheriffs office by PPG Director of Operations Scott Lott. In the call Mr. Lott reported to the sheriffs office that he needed a deputy at the state school to deal with three subjects in truck. The comment was that there had been a lot of break-ins and thefts at that location. Det. Ricks testified that he did not know who had made the comment about the thefts and break-ins, whether it was Mr. Lott or the call-taker. Det. Ricks noted that of the recorded twenty-four complaint calls to the sheriffs office from 2003-2012 relating to the state school complex, only one had involved a burglary. Mr. Lott’s call was made after the two burglaries for which defendant was being tried were committed.

Leslie Son, Ph.D, was qualified by stipulation as an expert in forensic DNA analysis. Dr. Son was employed by the Louisiana State Police Crime Laboratory. She identified a report, SP-001992-11, relating to DNA profiles obtained from two eviden-tiary blood samples and a DNA profile obtained from a reference sample taken from defendant. The same DNA profile was derived from each blood sample and was subsequently compared to a DNA profile derived from the reference sample from defendant. Dr. Son said the two DNA profiles from the blood were “consistent” with the DNA profile obtained from the reference sample from defendant.

Dr. Son testified on cross-examination that all thirteen of the widely accepted alleles used for comparison purposes matched in the three DNA profiles. She admitted that each person had more than thirteen alleles — an unknown number |7of them — and that she had not matched that unknown number of alleles to defendant.

Bert Hepting testified that he was a pump mechanic with Severn Trent Environmental Services, and that he was familiar with the facility referred to as the state school. He was working for Severn Trent in January 2011 at the state school one Monday when he discovered that there was no power to a lift station, where there had been power the previous Friday. He found that electrical lines had been pulled out of two buildings, and a transformer in one of those also had been damaged. Mr. Hepting identified the aerial view of the property, the two buildings from which he found wire was missing. This was in a different complex than the Beech Grove Complex, which was the complex that had been the subject of the February 2011 break-in that Det. Ricks investigated. Mr. Hepting said he had never seen defendant before.

James Madere, a geographical information mapping analyst for the PPG, identified some buildings as ones he was using in February 2011 for archival records storage. These buildings were at the far end of the bottom of the somewhat U-shaped Beech complex location where Det. Hicks had indicated that a portion of an exterior wall had been torn down. Mr. Madere confirmed that in February 2011 he was securing the four access doors of those buildings with standard installed keyed locks. He had one key, and a maintenance man had the other. On what defendant represents and thereby admits in his appellate brief was February 8, 2011, Mr. Madere discovered that a locked door to the building had been pried open. Mr. Madere identified on a photograph damage done to the building that he confirmed had not been present a couple of days prior to when he discovered it. He also confirmed that when he locked the complex a couple of days prior to |sFebruary 8, 2011, the building had electricity. He did not know defendant and he had not given defendant permission to enter the building, strip wire, and leave blood on the floor.

The prosecutor showed Mr. Madere a series of photographs “just to make sure we’re talking about the same place.” Mr. Madere confirmed that one photograph was of “the buildings” they had been talking about. He confirmed that on that photo was one of the doors he had locked. He confirmed that he entered that building and saw damage inside. He confirmed that at least five photos depicted some of the interior damage he found that day inside the same building(s).

Mr. Madere testified on cross-examination that Scott Lott was in charge of the state school facility. Mr. Madere had only been in control of “one structure” that he had been granted permission to use for storage. He was not aware of any “No Trespassing” signs on the property. He had not seen a fence on the property. Mr. Madere testified that all parish employees having access to the state school complex had been asked to report anything out of the ordinary, relative to vandalism.

Scott Lott, the Director of Operations for the PPG at the time of trial and during the period of time at issue, confirmed that in both the January 2011 and February 2011 incidents he received phone calls from Severn Trent employees reporting that they had no power when they had power a couple of days prior thereto. They reported that it appeared someone had broken in, cut some wire, and removed it. Mr. Lott went to the scene, at least the scene of the February 2011 break-in, and observed that electrical wire had been cut and removed. Mr. Lott did not recognize defendant; he had never given defendant permission to enter the |9buildings and did not give him permission to strip out copper wire from the buildings.

Mr. Lott testified that on February 13, 2011, subsequent to the February 2011 theft, he was driving around the area during daylight hours when he noticed a truck entering the state school complex. He proceeded behind the vehicle and called the sheriffs office to report this. The truck stopped at one point and the driver, a black male, exited — there was also a front seat passenger and a passenger in a rear seat. Mr. Lott asked the driver what they were doing there, and the driver replied that they were going fishing. When Mr. Lott asked the driver where the fishing poles were, the driver replied that all they were doing was looking for a fishing spot. Mr. Lott then informed the driver that he was on the telephone with the sheriffs office and that when deputies arrived, the driver could explain to them that he and his companions were looking for a fishing spot. At that point the man jumped back into his truck and drove off. Mr. Lott followed the truck all the way back into ■ Orleans Parish, where he lost sight of the truck in a residential neighborhood. He was able to get the number of a temporary license plate located in the rear window.

Mr. Lott confirmed on cross-examination that he did not know whether the sheriffs office was able to determine the ownership of the temporary license plate that had been on the truck he had followed from the state school complex on February 13, 2011. Mr. Lott stated that there had been complaint calls made regarding the state school complex, regarding people trespassing, hunting, breaking in, burglarizing the property, cutting and removing wire. Mr. Lott said that at the time of these incidents there were “No Trespassing” signs across the front of the premises. Mr. Lott, obviously referring to the damage and thefts done | inin January and February 2011, testified that the damage was freshly done because prior to then, the buildings had power.

Plaquemines Parish Sheriffs Office Lt. Tom Morovich Jr. responded to a call at the state school on January 17, 2011. At the scene he observed a door to a transformer station lying on the ground. It appeared that all the lines had been cut inside of the transformer box. Walking around the area he observed a blue Bic cigarette lighter lying in the grass next to that particular building, just past the transformer box, near some tire tracks. He said the way the lighter was positioned on top of the grass blades, and the fact that it did not appear to have any rust on it, he concluded it had been freshly deposited there. He identified the cigarette lighter. He also found a “bushrod,” a tool he said is used to remove fuses from a transformer box, on the ground near the transformer box. He said removing the fuses cuts the connection from the incoming power lines. Lt. Morovich stated on cross-examination that he did not know whether any of defendant’s fingerprints were found on that tool. He said there was no vehicle on the scene.

Det. Durnin, recalled as a witness by the State, testified that the blue Bic cigarette lighter and the “bushrod” or fuse-puller pole were turned over by Lt. Morovich to the sheriffs office evidence custodian. Det. Durnin testified that CODIS was used to match a DNA profile with a person. He stated that when a person is convicted of a felony offense, his DNA profile is entered into the CODIS database. During his investigation he became aware that defendant’s DNA profile was in the CODIS database. He said the “qualifying offense” that resulted in defendant’s DNA profile being placed in the CODIS database was his conviction for the unauthorized entry of a business on March 5, 2008, which he said was listed |non the CODIS match form sent to the sheriffs office by the Louisiana State Police Crime Lab.

Det. Durnin admitted on cross-examination that the only basis for the issuance of the arrest warrant for defendant was the two State Police lab reports stating that defendant’s DNA was found on a cigarette lighter and on blood found at the scene of the burglaries.

Erica Sparacino, a forensic DNA analyst with the Louisiana State Police Crime Lab, was qualified by the court as an expert in forensic DNA analysis. Ms. Sparacino testified that she analyzed a portion of a filter paper from a cigarette butt; a swab taken from a blue cigarette lighter; and a swab from a bundle of copper wire. She stated that a DNA profile obtained from the cigarette lighter was consistent with being a mixture of the DNA of two individuals, one of whom was defendant. She said defendant could not be excluded as a contributor of the DNA in that profile. However, she said it was only three times more likely to be a DNA profile from defendant and a random individual than two unknown unrelated individuals.

Det. Durnin, called as a witness by the defense, testified that he traced the temporary license tag on the vehicle seen by PPG Director of Operations Scott Lott on the state school complex subsequent to the February 2011 burglary at issue to “Jay’s Auto.” Det. Durnin spoke to “Jay” himself, who, the detective recalled, told him that his sister’s boyfriend may have borrowed that temporary tag.

A review of the record reveals no patent errors.

DISCUSSION

In this criminal appeal, defendant argues that the evidence was insufficient to sustain his conviction for unauthorized entry of a place of business.

| i2When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Marcantel, 00-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55, citing State v. Hearold, 603 So.2d 731, 734 (La.1992).

This court set forth the applicable standard of review for sufficiency of the evidence in State v. Huckabay, 00-1082, p. 32 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mus-sall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

Huckabay, 00-1082, p. 32, 809 So.2d at 1111, quoting State v. Ragas, 98-0011, pp. 13-14 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, 106-107.

13La. R.S. 14:62.4 states, in pertinent part:

A. Unauthorized entry of a place of business is the intentional entry by a person without authority into any structure or onto any premises, belonging to another, that is completely enclosed by any type of physical barrier that is at least six feet in height and used in whole or in part as a place of business.

Thus, to convict a defendant of unauthorized entry into a place of business, the State must prove beyond a reasonable doubt that the defendant: (1) intentionally entered without permission; (2) any structure belonging to another; (3) or premises belonging to another, which premises was completely enclosed by any type of physical barrier of at least six feet in height; and (4) which structure or premises was used in whole or in part as a place of business. La. R.S. 14:62.4; State v. Brown, 08-0661, p. 7 (La.App. 4 Cir. 12/17/08), 3 So.3d 547, 551.

The “intent” required for a conviction of unauthorized entry of a place of business is general intent. See State v. Jacobs, 504 So.2d 817, 821 (La.l987)(stat-ing that the crime of unauthorized entry of a place of business “do[es] not require proof of intent as an essential element of the crime”).

A place of business is defined as a place of employment, occupation, profession, enterprise or commercial activity engaged in for gain or livelihood in which a person shows willingness to invest time and capital on the future outcome. Brown, supra, citing State v. Coleman, 528 So.2d 192, 195 (La.App. 3 Cir.1988).

As for the requirement of a physical barrier at least six feet in height, the Louisiana Legislature enacted La. R.S. 14:62.4 by Acts 1986, No. 635, § 1. As enacted, La. R.S. 62.4 only proscribed an intentional unauthorized entry into “any structure.” By Acts 1999, No. 803, § 1, La. R.S. 14:62.4 was amended to add the prohibition against entry “onto any premises” and to add the phrase “that is completely enclosed by any type of physical barrier that is at least six feet in 114height.” Clearly, the language requiring the com-píete enclosure by any type of physical barrier that is at least six feet in height was intended to apply to the “premises” entered.

Given the wording of the statute, this Court, in an abundance of caution, held in Brown, supra, that a school was “completely enclosed by physical barriers such as walls and doors of at least six feet in height.” 08-0661, p. 7, 3 So.3d at 551. The school, the former St. France Cabrini in New Orleans, was a “structure or premises” within the meaning of La. R.S. 14:62.4, and was described by one police officer as “open and heavily damaged by Hurricane Katrina.” Brown, 08-0661, p. 3, 3 So.3d at 549. At the time of the alleged offense, the school had been purchased by Holy Cross School, and three contractors had been hired to complete work on the site. The defendant was found inside the school with freshly cut copper pipe and a cutting tool on the floor a few feet from him and another individual. The defendant told police that he had been given permission by a “Father Robert” and a FEMA worker to take whatever he wanted. However, he was unsure of the name “Father Robert,” and he was unable to identify the FEMA worker. The Director of Buildings for the Archdiocese of New Orleans testified that, while there were three “Father Roberts” in the archdiocese, none would have had the authority to permit anyone to remove property from the school. He said that if permission had been given to remove copper pipe from the school his office would have been aware of it, and that he was not aware of any such action. This court found in Brown that, even though the school at issue was not functioning ás a school at the time of the unauthorized entry, it was still functioning as a “place of business” within the meaning of La. R.S. 14:62.4. This Court found the evidence | ^sufficient to sustain defendant’s eonviction for unauthorized entry of a place of business.

In the instant case, defendant was convicted as to Count One of unauthorized entry of a place of business. The bill of information charged, in Count One, simple burglary, as stated in the bill of information, “on or between February 4, 2011 and February 7, 2011.” Det. Ricks identified the building he said was the subject of the February 2011 break-in. He took the crime scene photographs of damage to the building and the blood evidence. DNA profiles derived from that blood evidence matched the DNA profile derived from defendant’s known reference sample buccal swab(s). Det. Ricks took the photographs and collected the blood evidence on February 9, 2011. Defendant mistakenly argues on appeal that this blood evidence was found outside and near a collapsed wall. While Det. Ricks testified that one of the blood drops/spots was found approximately twenty-five to thirty feet away from an exterior wall that had been pulled down, at no point did he state that any blood was found outside. To the contrary, he testified that the blood evidence was photographed by him and collected from inside of the building or group of buildings that were the subject of the February 2011 break-in.

State Exhibits 4, 5, and 6 are the color crime scene photographs of blood evidence taken by Det. Ricks, all three printed on paper. All three of the photographs depict blood evidence on what appears to be the same light-colored, speckle-patterned, linoleum tile floor. S-4 and S-5 are obviously photos of the same drop/spot of blood. S-4 depicts almost a full drop/spot, next to one cotton swab with a stained tip. S-5 is a slightly more distant photo of the same drop/spot, with two additional long cotton-tipped swabs with stained tips in the frame. In S-5 the drop/spot of blood apparently has almost been completely absorbed by the 11ficotton-tipped swabs. S-6 depicts two long cotton-tipped swabs with reddish-brown tips, with the tips directly adjacent to a single reddish-brown drop/ spot. However, this photo also depicts other reddish-brown stains on the floor, most of which might be characterized as looking like watery blood smears.

James Madere identified a building of the state school complex that he was using for records storage in February 2011. It was a building in the same interconnected building complex identified by Det. Ricks. He said the building’s four doors were secured with locks. On what defendant represents and thus admits in his appellate brief was February 8, 2011, Mr. Madere discovered that a locked door to the building had been pried open. Det. Ricks identified photographs of an exterior wall to the building that had been almost completely torn down. Mr. Madere identified on photographs damage done to the building that he confirmed had not been present a couple of days prior to when he discovered it. He did not say anything concerning blood on the floor. Mr. Mad-ere did not know defendant, and he had not given defendant permission to enter the building.

The building was known to have had electrical power several days prior to the February 2011 break-in, and thus, according to Scott Lott, the damage inside was “fresh.” Scott Lott did not know defendant and had not given him permission to enter the building. Det. Ricks testified that during his investigation he contacted the human resources department of the PPG, and no one could ascertain that defendant worked for the parish. He did not find any information that defendant worked for a contractor for the parish or that he had permission to be in that facility or the burglarized building where his blood was found.

Viewing all the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that defendant 117intentionally made an entry into the building, a “structure,” which, at the time defendant’s blood was discovered there, was being used in whole or in part as a place of business — the storage of archival records of the PPG.

However, more problematic is the issue of proof as to whether defendant’s blood was deposited in the building at a point in time when it was being used in whole or part as a place of business. Defendant asserts in his appellate argument at one point that “[tjhere was no evidence as to when the blood drops were left.” Defendant also asserts in his appellate brief that the State failed to prove that the structures allegedly entered by him “were being operated as a business.”

The evidence established that the PPG acquired ownership of the 341.94-acre state school complex on March 10, 2010, less than one year prior to the alleged unauthorized entry by defendant. There was no definitive evidence presented as to when defendant’s blood was deposited in the building. The only evidence presented at trial from which it might be inferred that the blood had been deposited on the date range alleged in the bill of information, “on or between February 4, 2011 and February 7, 2011,” or even at any earlier point, was that color photographs of the blood drops/spots on the floor showed what appeared to have been an otherwise relatively clean floor. There was also the fact the blood was discovered during an investigation of an unauthorized entry and copper electrical wire theft that was shown to have occurred on or between February 4, 2011 and February 7, 2011. There was no evidence as to when the PPG began using the building for archival records storage, only that it was using it for that purpose at the time of the alleged break-in and theft of copper wire, and discovery of defendant’s blood on the floor.

hsViewing all the evidence in a light most favorable to the prosecution, it could possibly be inferred from common experience that, because the light-colored linoleum tile floor appeared relatively clean— although there was some dirt and scuff marks on it — that the blood drops/spots had been deposited on the floor in the not-too-distant past.

Another bit of evidence was defendant’s denial to Det. Ricks that he had ever been in Plaquemines Parish. His blood was found in Plaquemines Parish, in the building from which one or more persons had stolen copper wiring on or between February 4, 2011 and February 7, 2011. The jury could infer from such a lie a consciousness of guilt on the part of defendant. See State v. King, 41,084, p. 6 (La. App. 2 Cir. 6/30/06), 935 So.2d 815, 821 (“[Ejvidence of defendant’s guilt can be inferred from his statement at the emergency room on the night of the murder, when defendant lied about the circumstances of his knife wound and said nothing about stabbing the victim in self-defense”).

Also, the only evidence the State presented indicating that, prior to the PPG’s acquisition of the state school complex on March 10, 2010, any part of it was being used in whole or in part as a place of business was evidence on a conveyance record that the property was the former Belle Chasse State School, and the testimony of PPG Director of Operations Scott Lott that after the PPG acquired the property two State employees who had been working at the state school complex at the time the PPG acquired it — including one who had been there for twenty years— continued to work at the complex for six months to a year after the sale.

Further, there was no evidence presented at all as to the issue of whether defendant might have had authority to enter the building at some point prior to the 11flPPG’s acquisition of it. Thus, even assuming for the sake of argument that proof of an entry by defendant on a date prior to the PPG’s acquisition of the property/building would suffice to sustain defendant’s conviction, the evidence would be insufficient as to whether that entry was unauthorized and as to whether any entry into that building during the State’s ownership would have been made at a time when it was being used in whole or in part as a place of business.

The blood evidence (and the Bic cigarette lighter found on the grass outside the other building burglarized), and the DNA profiles derived from that evidence matching defendant’s DNA profile, are the only direct evidence that defendant was ever in the building or on the state school complex grounds.

James Madere, who was using the building in which defendant’s blood was discovered on February 9, 2011, did not testify that prior to the break-in there was no blood on the floor of the building where the records were stored. Mr. Madere never testified at all concerning the blood evidence or that he had even observed it. Nor did Mr. Madere testify, for example, as to the last time the floors of the building in question had been cleaned, or as to any regular cleaning schedule where, for example, a PPG employee or a private janitorial service would clean the floors inside of the building. As previously noted, however, the crime scene photographs of the blood evidence do show that the light-colored, speckle-patterned, linoleum tile floor appeared to be relatively clean, although there are some scuff marks and some dirt visible.

The State did not present any expert evidence, such as through the testimony of forensic DNA analysis expert Dr. Son, as to how long the blood evidence might have been on the floor. None of the police officers, notably Det. Ricks, who laiphotographed the blood evidence, testified, for example, that the blood drops/ spots appeared to be fresh.

As to the issue of defendant’s authority to enter the building, Det. Durnin testified that in the course of his investigation he did not find any indication that defendant had authority to be at the state school, or that defendant was employed by the PPG, or for a contractor for the PPG. Similarly, in the course of Det. Ricks’ investigation he contacted the human resources department of the PPG, and no one could ascertain that defendant worked for the parish. He did not find any information that defendant worked for a contractor for the PPG or that he had permission to be in the state school complex or the building where defendant’s blood was found. Also, PPG Director of Operations Scott Lott testified that he did not recognize defendant and had never given defendant permission to enter the building.

However, all of this testimony concerning defendant not having permission to enter the state school complex or the particular building in which his blood was found only pertains to the period after March 10, 2010, when the PPG obtained ownership of the complex.

The due process standard of review under Jackson v. Virginia does not sanction juror speculation if the evidence is such that a reasonable factfinder must have a reasonable doubt. State v. Higgins, 03-1980, pp. 17-18 (La.4/1/05), 898 So.2d 1219, 1232, citing State v. Lubrano, 563 So.2d 847, 850 (La.1990).

Considering the scant evidence from which it might be inferred how long defendant’s blood might have been in that building; the lack of evidence as to how long the PPG had been using the building in question in whole or in part as a place of business; and the lack of evidence as to whether defendant might have been an 12i authorized visitor in that building at some point during the State’s ownership of it; and viewing all the evidence (including that the blood evidence was discovered during the investigation of the February 4-7, 2011 break-in, and defendant’s denial to Det. Ricks that he had ever been in Plaquemines Parish) in a light most favorable to the prosecution, it does not appear that any rational trier of fact could have found beyond a reasonable doubt that defendant made an unauthorized entry into the building at issue in February 2011 when it was being used in whole or in part as a place of business.

For the foregoing reasons, we hereby reverse the defendant’s conviction and sentence.

CONVICTION AND SENTENCE REVERSED.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: PETERS, J. AMY, J., KEATY, Judge, CONERY, J.,

license: Public Domain

text:
    Dena ROMERO v. GARAN’S, INC.
    No. 13-482.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 26, 2013.

      Michael B. Miller, Crowley, LA, for Plaintiff/Appeilant, Dena Romero.
    H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelou-sas, LA, for Defendants/Appellees, Gar-an’s, Inc., Liberty Mutual Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, JIMMIE C. PETERS, MARC T. AMY, ELIZABETH A. PICKETT, BILLY H. EZELL, J. DAVID PAINTER, JAMES T. GENOVESE, SHANNON J. GREMILLION, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   PETERS, J.

| ]The plaintiff, Dena Romero, appeals from the judgment of the workers’ compensation judge (WCJ) awarding her penalties and attorney fees for her employer’s failure to timely reimburse her mileage expenses, but denying her penalties and attorney fees for its failure to authorize medical treatment. For the following reasons, we reverse in part, render in part, affirm in part, and dismiss in part.

DISCUSSION OF THE RECORD

Ms. Romero sustained a work-related injury on June 3, 2000, while employed by Garan’s, Inc., at its Kaplan, Louisiana business location. On May 2, 2005, the WCJ awarded her temporary total disability (TTD) benefits; all reasonable and necessary medical treatment, including back surgery; and various penalties and attorney fees. On appeal, this court affirmed the judgment in part, reversed it in part, and awarded additional attorney fees for work performed on appeal. Romero v. Garan’s, Inc., 05-1297 (La.App. 3 Cir. 4/19/06), 929 So.2d 258.

The matter now before us arises from a February 16, 2012 motion filed by Ms. Romero wherein she sought awards of penalties and attorney fees based on the actions of Garan’s, Inc. and its workers’ compensation insurer, Liberty Mutual Insurance Company (collectively referred to as Garan), in terminating her TTD benefits on January 10, 2012, and in failing to timely reimburse her mileage requests submitted on September 15, 2011; September 29, 2011; October 6, 2011; and October 17, 2011.

In response to Ms. Romero’s motion, Garan filed an exception asserting that the mileage reimbursement portion of the motion constituted the improper use of summary proceedings. Following an April 23, 2010 hearing on both the motion Land exception, the WCJ rendered judgment in favor of Ms. Romero, awarding her $3,000.00 in penalties and $3,000.00 in attorney fees based on Garan’s untimely payment of indemnity benefits, rather than termination of benefits. However, with regard to the mileage reimbursement claim, the WCJ granted Garan’s exception and converted this claim to an ordinary proceeding. The WCJ did not reduce its rulings arising from this hearing to writing until July 12, 2012.

On July 2, 2012, and before the mileage reimbursement issue came to trial, Ms. Romero amended her pleadings to request additional penalties and attorney fees based on Garan’s denial of the medical treatment recommended by her doctor. A trial on the merits of the remaining issues occurred on August 27, 2012, after which the WCJ took the issues under advisement. On October 22, 2012, the WCJ rendered oral reasons for judgment finding that Garan was untimely in paying Ms. Romero’s mileage request and awarding her $2,000.00 in penalties and $3,500.00 in attorney fees. However, the WCJ denied her claim for penalties and attorney fees based on Garan’s refusal to approve the medical treatment. The WCJ executed a written judgment conforming to its oral reasons for judgment on November 16, 2012.

Ms. Romero appeals from this judgment, raising four assignments of error:

1. The workers’ compensation judge erred in bifurcating the medical and indemnity issues in the Motion for Penalties and Attorney’s Fees.
2. The workers’ compensation judge erred in allowing LSA R.S. 23:1203.1 as a defense in a pending claim for the nonpayment of reasonable and necessary medical treatment.
3. It was error for the workers’ compensation judge to limit the penalty award for discontinuance of benefits to $3,000.00.
|34. The workers’ compensation judge erred in failing to award a $3,000.00 penalty for each failure to pay mileage and $3,000.00 for the denial of medical treatment recommended by Dr. Jindia.

OPINION

All of Ms. Romero’s assignments of error raise questions of law. Therefore, we will review each issue in order to determine whether the WCJ was legally correct in his ruling. Orr v. Acad. La. Co., L.L.C., 12-1411 (La.App. 3 Cir. 5/1/13), — So.3d -, 2013 WL 1809878.

Bifurcation of Medical and Indemnity Issues

In her first assignment of error, Ms. Romero argues that the WCJ erred in granting the exception of improper use of a summary proceeding and ordering the bifurcation of the mileage issue from the indemnity issue. As a result of the grant of the exception, the indemnity issue was decided on April 23, 2012, while the mileage issue was heard on August 27, 2012. Based on the WCJ’s November 16, 2012 judgment, Ms. Romero was awarded penalties and attorney fees based on Garan’s untimely mileage reimbursement.

It is well settled that courts will not decide abstract, hypothetical, or moot controversies, or render advisory opinions with respect to such controversies. Louisiana State Board of Nursing v. Gautreaux, 2009-1758 (La.App. 1st Cir.6/11/10), 39 So.3d 806, 811, writ denied, 2010-1957 (La.11/5/10), 50 So.3d 806. An issue is moot when a judgment or decree on that issue has been “deprived of practical significance” or “made abstract or purely academic.” Id. Thus, a case is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. Id. If the case is moot, there is no subject matter on which the judgment of the court can operate. Id.

Animal Legal Def. Fund v. State, Dep’t of Wildlife & Fisheries, 12-971, pp. 15-16 (La.App. 1 Cir. 4/25/13), - So.3d -, -, 2013 WL 1774638 (footnote omitted), writ denied, 13-1565 (La.10/4/13), 122 So.3d 1025.

In this instance, we find that the issue raised by Ms. Romero has been rendered “abstract or purely academic” by the WCJ’s November 16, 2012 | .¡judgment awarding her penalties and attorney fees based on Garan’s failure to timely reimburse her for mileage. “The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933. In this instance, the grant of Garan’s exception was neither determinative of the merits nor resulted in irreparable harm to Ms. Romero. Thus, Ms. Romero should have sought a supervisory writ from this court to review the WCJ’s decision. Doing so would have avoided the very delay and increased work of which she now complains. Accordingly, we find no merit in this assignment.

Louisiana Revised Statutes 23:1203.1

In her next assignment of error, Ms. Romero argues that the WCJ erred in relying on La.R.S. 23:1203.1 in denying her request for penalties and attorney fees based on Garan’s November 30, 2011 refusal to authorize the medical treatment recommended by Dr. Sanjiv K. Jindia, a Lafayette, Louisiana pain management doctor. She argues that La.R.S. 23:1203.1, which was enacted pursuant to 2009 La. Acts No. 254, § 1, does not apply in this instance because her work-related accident occurred eight years prior to its enactment, and its provisions should not be applied retroactively. She further argues, as part of her fourth assignment of error, that the WCJ erred by refusing her penalties and attorney fees based on Garan’s refusal to authorize the medical treatment.

Louisiana Revised Statutes 23:1203.1 requires the director of the office of workers’ compensation administration to appoint a medical advisory council to develop a medical treatment schedule for workers’ compensation cases. It then requires that the medical treatment schedule so developed be promulgated by the director and office of workers’ compensation administration no later than January 51, 2011. La.R.S. 23:1203.1(B)(1). With regard to the particulars of its application, the statute currently provides in pertinent part:

I. After the promulgation of the medical treatment schedule, throughout this Chapter, and notwithstanding any provision of law to the contrary, medical care, services, and treatment dm, pursuant to R.S. 23:1203, et seq., by the employer to the employee shall mean care, semces, and treatment in accordance with the medical treatment schedule. Medical care, services, and treatment that varies from the promulgated medical treatment schedule shall also be due by the employer when it is demonstrated to the medical director of the office by a preponderance of the scientific medical evidence, that a variance from the medical treatment schedule is reasonably required to cure or relieve the injured worker from the effects of the injury or occupational disease given the circumstances.
J. After a medical provider has submitted to the payor the request for authorization and the information required by the Louisiana Administrative Code, Title 40, Chapter 27, the payor shall notify the medical provider of their action on the request within five business days of receipt of the request. If any dispute arises after January 1, 2011, as to whether the recommended care, services, or treatment is in accordance with the medical treatment schedule, or whether a variance from the medical treatment schedule is reasonably required as contemplated in Subsection I of this Section, any aggrieved party shall file, within fifteen calendar days, an appeal with the office of workers’ compensation administration medical director on a form promulgated by the director. The medical director shall render a decision as soon as is practicable, but in no event, not more than thirty calendar days from the date of filing.
K.After the issuance of the decision by the medical director of the office, any party who disagrees with the medical director’s decision, may then appeal by filing a “Disputed Claim for Compensation,” which is LWC Form 1008. The decision of the medical director may be overturned when it is. shown, by clear and convincing evidence, the decision of the medical director was not in accordance with the provisions of this Section.

(Emphasis added for later reference in opinion.)

The medical treatment schedule was promulgated in June of 2011. LAC 40:1, § 2013.

|fiOn November 22, 2011, Dr. Jindia faxed a request form to Liberty Mutual seeking preauthorization to perform a ra-diofrequency facet-nerve ablation on Ms. Romero. Liberty Mutual’s utilization-review department telephoned Dr. Jindia’s office on November 29, 2011, denying the request and, the next day, forwarded a written denial. The written denial received by Dr. Jindia from the peer-review practitioner, who made the denial decision, stated that “Louisiana guidelines do not applyt,]” and that “[t]he request is not medically necessary.” In explaining this conclusion, the peer-review practitioner stated:

The claimant does not have physical examination findings consistent with facet originating pain and does not have diagnostic imaging correlating with facet degenerative changes in the records provided. A psychosocial screening has not been provided for review and the claimant’s benefit from the previous ablation has not been specified. Records do not reflect that lower levels of care, including physical therapy, have been exhausted. Given the above clinical information and guidelines criteria, the request is denied.

The written report further contained the following notice:

APPEAL RIGHTS: The physician or injured worker has the right to request an appeal with the OWCA Medical Director by filing the LWC-WC . Form 1099, along with supporting medical records within fifteen days of this notification. The LWC-WC Form 1009 and instructions on how to complete the form are posted on the website, www. LAWORKS.net.

Neither Ms. Romero nor Dr. Jindia sought an appeal with the OWCA medical director.

Shelly Dunn, Liberty Mutual’s claims adjustor on Ms. Romero’s case, received a copy of the November 29, 2011 denial letter sent to Dr. Jindia, but three weeks and two days later, she decided to overrule the utilization review decision and approve the procedure. She testified that on December 22, 2011, she unsuccessfully attempted to call Dr. Jindia’s office to inform him that she would approve the treatment. In her December 22, 2011 office note, she stated:

17Repeat RFA was denied by preauth— prior RFA done in June and did help clt symptoms and appears reasonable for repeat 1 x a year per my experience with prior SMO on RFA’s. If block helped then RFA is indicated and repeat is indicated and repeat appropriate yearly if relief lasts 6-12 mos. It has been 6 mos however does not appear rx usage decreased and we dont have specific info on her benefit from the prior ablation. I feel it is prudent to approve the repeat RFA until we can get SMO to comment on the frequency of repeat RFA’s — this is necessary to avoid 1008 until we can have issue properly addressed.
Called the dr. office to approve but they are closed now for the holiday until Tuesday. I will call then and approve auth.

She testified that she telephoned Dr. Jin-dia’s office again on December 27, 2011, but was unable to speak to anyone. Instead, she left a message stating that she was overriding the preauthorization denial and requested that his office contact her.

When Dr. Jindia failed to contact her after she left the December 27, 2011 message, Ms. Dunn faxed his office a notice of approval for the procedure on January 6, 2012. She suggested that her decision to override the peer-review denial was basically a business decision. She explained that she wanted matters to move forward, and she did not feel that the issue was worth litigating.

The WCJ did not reach the merits of Ms. Romero’s claim for penalties and attorney fees for the failure to authorize the radiofrequency facet-nerve ablation procedure recommended by Dr. Jindia. Instead, he rejected the claims because neither Ms. Romero nor Dr. Jindia had timely appealed the rejection pursuant to La.R.S. 23:1203.1(J). Thus, the initial inquiry is to determine whether La.R.S. 23:1203.1 applies retroactively.

Louisiana Civil Code Article 6 provides, “In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.” Based on this language, courts have a twojfold8 inquiry. They must first determine whether the legislature expressly stated that the law is to apply retroactively or prospectively. In the absence of such expression, courts must classify the law as either substantive, procedural, or interpretative. Davis v. St. Francisville Cntry. Manor, LLC, 05-72 (La.App. 1 Cir. 2/10/06), 928 So.2d 549, units denied, 06-604 (La.5/26/06), 930 So.2d 25, and 07-481 (La.4/27/07), 955 So.2d 699.

Procedural laws prescribe a method for enforcing a previously existing substantive right and relate to the form of the proceeding or the operation of the laws. Keith v. U.S. Fidelity & Guaranty Company, [96-2075 (La.5/9/97),] 694 So.2d [180,] 183. Substantive laws either establish new rules, rights, and duties or change existing ones. Interpretive laws, on the other hand, do not create new rules, but merely establish the meaning that the interpretive statute had from the time of its initial enactment. It is the original statute, not the interpretive one, that establishes the rights and duties. St. Paul Fire & Marine Insurance Company [v. Smith], 609 So.2d [809,] 817 [ (La.1992) ].

Rochelle v. LeBlanc, 10-1901, p. 5 (La. App. 1 Cir. 5/6/11), 65 So.3d 240, 243.

The legislature did not expressly state whether La.R.S. 23:1203.1 applies prospectively only or both prospectively and retroactively. However, the language appearing in italics in the previously quoted statute-language could lead one to presume that the legislature intended the statute to apply both prospectively and retroactively. Even assuming that the legislature, through this language, intended the statute to apply retroactively, the court in Davis, 928 So.2d at 554-55, held that “even where the legislature has expressed its intent to give a law a retroactive effect, the law may not be applied retroactively if doing so would impair contractual obligations or disturb vested rights in violation of the Contract and Due Process Clauses of the Federal and State Constitutions.”

A panel of this court has previously addressed the retroactivity issue in Cook v. Family Care Services, Inc., 13-108 (La.App. 3 Cir. 8/28/13), 121 So.3d 1274, |fland concluded that La.R.S. 23:1203.1 was procedural in nature and, therefore, could be applied retroactively. However, another circuit has reached an opposite result. In Church Mutual Insurance Co. v. Dardar, 12-659, 13-37 (La.App. 4 Cir. 6/26/13), 119 So.3d 967, the fourth circuit held that La. R.S. 23:1203.1 was substantive in nature; therefore, it would only apply prospectively. In reaching this conclusion, the fourth circuit held that the law, “which contains guidelines that did not exist when [plaintiff] was injured, creates and places rules, rights, and duties upon a claimant seeking reimbursement for recommended treatment.” Id. at 975.

We agree that La.R.S. 23:1203.1 should have prospective application only, and, in reaching that decision, we specifically overrule our prior decision in Cook, 121 So.3d 1274. Although the law appears to be procedural in nature, it has a substantive effect in that it requires an employee to first seek an appeal from the medical director of the office of workers’ compensation, and, only then, if not satisfied with that ruling, can the employee file a disputed claim and seek review before the WCJ, albeit with a more stringent burden of proof. Thus, although the legislature’s intent in enacting La.R.S. 23:1203.1 was to ensure the delivery of medical care and treatment in a timely and efficient manner, an injured employee is required to cross an additional hurdle in order to receive the care recommended by his or her physician. Accordingly, we find that La.R.S. 23:1203.1 has a substantive effect and that it should only apply prospectively. Thus, we find that the WCJ erred in relying on La.R.S. 23:1203.1 in finding that Ms. Romero was not entitled to penalties and attorney fees based on Garan’s initial refusal of the radiofrequen-cy facet-nerve ablation recommended by Dr. Jindia.

Having reached the conclusion that the WCJ legally erred in applying La.R.S. 23:1203.1, we will now perform a de novo review of the record to 1 mdetermine whether Ms. Romero is entitled to penalties and attorney fees for Gar-an’s refusal to authorize the medical treatment pursuant to the law in effect at the time of her work-related injury.

The failure to authorize necessary medical treatment is considered a failure to furnish medical benefits, as required by La.R.S. 23:1203, and will subject the employer to penalties and attorney fees pursuant to La.R.S. 23:1201(F). Brown v. Lafayette Ass’n of Retarded Citizens, Inc., 11-1595 (La.App. 3 Cir. 6/20/12), 94 So.3d 950. At the time of Ms. Romero’s injury, La.R.S. 23:1201(F) provided as follows:

Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, 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. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(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.
(3) Except as provided in Paragraph (4)of this Subsection, any additional compensation paid by the employer or insurer pursuant to this Section shall be paid directly to the employee.
(4) In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.
In(5) No amount paid as a penalty or attorney fee under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance.

In Magbee v. Federal Express, 12-77, p. 13 (La.App. 3 Cir. 12/12/12), 105 So.3d 1048, 1057 (quoting LeMelle v. Wal-Mart Stores, Inc., 04-527, pp. 10-11 (La.App. 3 Cir. 9/29/04), 883 So.2d 526, 552-53), we stated the law pertaining to the award of penalties based on an employer’s refusal to authorize recommended medical treatment based on utilization review:

As stated in Harrington v. Coastal Construction & Engineering, 96-681, p. 3 (La.App. 3 Cir. 12/11/96), 685 So.2d 457, 459, writ denied, 97-0109 (La.3/7/97), 689 So.2d 1375, “the employer must rely on competent medical advice when the decision to deny the medical treatment is made.” The mere production of a different opinion of a doctor who never examined the claimant does not constitute competent medical advice sufficient to reasonably controvert the claim. Id.; see also Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. While a utilization review process has its place in the workers’ compensation process, this court has consistently held that a long-distance diagnosis by a physician advisor is not an acceptable basis for denial of treatment and benefits. See id.

Based on the evidence, Garan refused the radiofrequency facet-nerve ablation based on the utilization-review physician’s recommendation. Outside of this recommendation, Ms. Dunn’s office notes reveal that she had insufficient information regarding the frequency that the recommended treatment should occur and that she planned to schedule a second medical opinion to address this issue. However, until that occurred, she was approving the treatment.

Garan and Liberty Mutual argue that, notwithstanding the initial denial of the recommended treatment, penalties do not apply because the procedure was subsequently approved within the sixty-day window provided for in La.R.S. |1223:1203(E). Similar to the factual situation in Pete v. Quality Construction Specialists, 09-642 (La.App. 3 Cir. 12/9/09), 25 So.3d 241, writ denied, 10-41 (La.3/12/10), 28 So.3d 1029, the issue is not whether the authorization was ultimately given within the sixty days, but whether the employer/insurer possessed any factual or medical information to reasonably reject Dr. Jindia’s request when it did so. In this case, Liberty Mutual performed no investigation, had no competent medical advice upon which to base the denial, and merely relied on the opinion of a medical provider who reached a different opinion from Dr. Jindia without having ever examined Ms. Romero. Accordingly, we find that Garan and Liberty Mutual failed to reasonably controvert Dr. Jindia’s request for the radiofrequency facet-nerve ablation prior to denying approval. Based on this finding, we award Ms. Romero $2,000.00 in penalties pursuant to La.R.S. 23:1201(F).

Termination of Indemnity Benefits

In her next assignment of error, Ms. Romero argues that the WCJ’s award of penalties pursuant to La.R.S. 23:1201(G), rather than La.R.S. 23:1201(1), was error. The former statute relates to a failure to timely pay benefits, while the latter relates to a claim arising from the termination of benefits. Ms. Romero asserts that this is a termination-of-benefits situation based upon Garan’s January 10, 2012 action.

In response to the appeal on this issue, Garan, in its appellate brief, argues that the July 12, 2012 judgment awarding Ms. Romero penalties and attorney fees, based on the untimely payment of her indemnity benefits, was a final; appealable judgment. Thus, it claims that her appeal on this issue should be dismissed as being untimely. We agree.

|1SA judgment which determines the merits of an action, whether in part or in whole, is a final judgment, which is appeal-able if the law provides for appeals in such causes. La.Code Civ.P. arts. 1841, 2083. The Workers’ Compensation Act provides that a workers’ compensation judgment is appealable to the court of appeal for the judicial district in which the claimant filed his or her claim. La.R.S. 23:1310.5(A)(2). Furthermore, the delay for filing a devolu-tive appeal is governed by La.Code Civ.P. art. 2087. That article provides that an appeal, which does not suspend the effect of an appealable order or judgment, must be taken within sixty days of the expiration of the delay for applying for a new trial or judgment notwithstanding the verdict or from the date the trial court mails notice denying the application for a new trial or judgment notwithstanding the verdict.

The WCJ’s July 12, 2012 judgment awarding Ms. Romero penalties based on La.R.S. 23:1201(G) adjudicated the merits of that issue. Thus, the judgment became a final, appealable judgment sixty days after July 23, 2012, since no party filed an application for new trial. Ms. Romero’s motion and order for appeal was filed on December 4, 2012. The failure to timely file a devolutive appeal creates a jurisdictional defect, and neither this court “nor any other court has the jurisdictional power and authority to reverse, revise or modify a final judgment after the time for filing a devolutive appeal has elapsed.” Baton Rouge Bank & Trust Co. v. Coleman, 582 So.2d 191, 192 (La.1991). Therefore, we find that Ms. Romero’s appeal from the July 21, 2012 judgment was untimely. Pursuant to La.Code Civ.P. art. 2162, a jurisdictionally-defective appeal can be dismissed at any time. Accordingly, Ms. Romero’s appeal on this issue is dismissed.

| uMileage Reimbursement

In her final assignment of error, Ms. Romero argues that the WCJ correctly awarded her penalties based on Garan’s failure to timely pay her mileage request. However, she argues that the WCJ erred in awarding her only one penalty since Garan was untimely in paying two separate mileage requests.

Louisiana Revised Statutes 23:1201(E) provides that the payment of medical benefits shall occur within sixty days after the employer or insurer receives written notice. The only dispute here is in the number of penalties Ms. Romero should have received based on Garan’s untimely payment. Four separate mileage requests dated September 15, 2011; September 29, 2011; October 6, 2011; and October 17, 2011, were attached to her February 2, 2012 motion and order for attorney fees. Ms. Romero admitted that she was not involved in preparing the requests, other than filling out the forms, and she had no personal knowledge as to when the requests were mailed to Garan.

Ms. Dunn testified that the only mileage requests she found in her computer system when she received Ms. Romero’s motion were the September 15 and October 17, 2011 requests. She stated that she paid these by check on October 28, 2011. As to the remaining two requests, Ms. Dunn stated that they were not in her computer system. She testified that all incoming mail goes to Liberty Mutual’s mail department, where it is scanned into an electronic system and then electronically attached to the appropriate file. Ms. Dunn stated that it is rare for mailed items not to appear in the system. Generally, she said, she has no problem receiving items mailed to her.

Ms. Dunn testified that after receiving Ms. Romero’s motion, she did not pay the two remaining requests until Garan’s counsel received answers to |lfidiscovery propounded on this issue. Thereafter, she issued a check for the remaining requests on June 4, 2012.

In his oral reasons, the WCJ found that there was insufficient evidence in the record to prove that Ms. Dunn received the September 29 and October 6, 2011 requests prior to the filing of Ms. Romero’s motion on February 16, 2012. The WCJ further held that since the June 4, 2012 payment was more than sixty days from the date the motion was filed, Ms. Romero was entitled to a single $2,000.00 penalty. The WCJ explained when questioned that only one penalty was awarded because the mileage requests were attached to a single item.

Although multiple penalties are allowed by statute for multiple violations of La. R.S. 23:1201(E), we find no error in the WCJ’s award of a single penalty. The fact that Ms. Dunn received the September 15 and October 17, 2011 submissions is insufficient to prove that she also received or should have received the September 29 and October 6, 2011 submissions. Ms. Romero bore the burden of proving that Ms. Dunn received written notice of the two items. The record is devoid of such evidence as the requests were mailed by regular mail rather than certified mail, return receipt requested. Accordingly, we affirm the WCJ’s award of a single penalty-

Attorney Fees

Based on our findings that Ms. Romero is entitled to penalties based on Garan’s failure to authorize medical treatment, La. R.S. 23:1201(F), we amend the WCJ’s judgment to award her an additional $2,500.00 in attorney fees for a total attorney fee award of $6,000.00.

| ^DISPOSITION

For the foregoing reasons, we reverse the judgment of the workers’ compensation judge rejecting Dena Romero’s claim for penalties and attorney fees for the failure of Garan’s, Inc. and Liberty Mutual Insurance Company to approve the recommended medical treatment, and we render judgment in her favor and against Garan’s, Inc. and Liberty Mutual Insurance Company, awarding her a $2,000.00 penalty and $2,500.00 attorney fee. We dismiss that portion of Dena Romero’s appeal addressing the penalty award of the July 12, 2012 judgment as being untimely filed and affirm the remainder of the judgment of the Workers’ Compensation Judge. We assess one-half of the costs of this appeal to Dena Romero and one-half to Garan’s, Inc. and Liberty Mutual Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; RENDERED IN PART; AND DISMISSED IN PART.

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

PICKETT, J., dissents in part for the reasons assigned by Judge KEATY. In all other respects, she concurs with the opinion.

GREMILLION, J., concurs in part and dissents in part for the reasons assigned by Judge AMY.

KEATY, J., dissents in part and assigns written reasons.

CONERY, J., concurs in part and dissents in part and assigns written reasons.

AMY, J.,

dissenting in part.

|TI respectfully dissent, in part, from the majority opinion. Chiefly, I do not find that, in this case, the retroactive/prospective construct is helpful "with regard to consideration of La.R.S. 23:1203.1. Rather, it seems to me that, by focusing upon the parties’ “dispute,” the express wording of the statute accounts for the fact that the Office of Workers’ Compensation maintains continuing jurisdiction over a claim and that various issues arise during the life of that claim. Specifically, La.R.S. 23:1203.1(1) anticipates the statute’s application “[ayter the promulgation of the medical treatment schedule” and subsequently, in Paragraph J, dictates the use of the review procedures set forth “[i]f any dispute arises after January 1, 2011....” (Emphasis added.)

In this case, the dispute involves the November 2011 denial of the claimed medical treatment. That date is after both the promulgation of the medical treatment schedule and after the January 1, 2011 applicability point of La.R.S. 23:1203.1(J). Therefore, and in light of the continuing jurisdiction. of the workers’ compensation judge to hear disputes related to a claim as they arise, I find the facts that this accident occurred in 2000 and that the statute was not enacted until 2009 are irrelevant. Rather, the dispute did not arise before the statute’s legislatively mandated date of application. In this sense, I do not see that the review procedure |2of the statute is at all being applied retroactively. Instead, in the case before us, that procedure is only being applied to disputes arising after that date.

Further, and in light of my opinion that La.R.S. 23:1203.1 is applicable, I do not join in the majority’s award of attorney fees for work performed on appeal.

For these reasons, I dissent, in part, from the majority opinion and would affirm the ruling of the workers’ compensation judge.

KEATY, Judge,

dissenting in part.

For the reasons assigned in Cook v. Family Care Services, Inc., 13-108 (La.App. 3 Cir. 8/28/13), 121 So.3d 1274, I find no error in the WCJ’s retroactive application of La.R.S. 23:1203.1 to deny Ms. Romero’s claim for penalties and attorney fees based on Garan’s initial refusal to authorize the facet-nerve' ablation recommended by Dr; Jindia. Thus, I disagree with the majority’s decision to overrule Cook, to reverse the WCJ’s denial of Ms. Romero’s claim for penalties and attorney fees based on its finding that La.R.S. 23:1203.1 is substantive and should only apply prospectively, and to award Ms. Romero $2,000.00 in penalties and an additional $2,500.00 in attorney fees under La. R.S 23:1201(F) as it existed at the time of Ms. Romero’s injury. Accordingly, I respectfully dissent from that portion of the majority opinion. In all other respects, I agree with the majority opinion..

CONERY, J.,

concurs in part, dissents in part and assigns reasons.

LThe majority convened an en banc hearing and found that the 2009 amendment to the Worker’s Compensation Act, La.R.S. 23:1203.1, applies prospectively only. The statute as amended now requires that, all medical disputes arising after January 1, 2011, be submitted to a medical director. The majority is of the opinion that the statute has a substantive effect and should be applied only prospectively to claims arising after the effective date of the amendment, January 1, 2011, overruling a panel of this court in Cook v. Family Care Services, Inc., 13-108 (La. App. 3 Cir. 8/28/13), 121 So.3d 1274. I respectfully dissent from that ruling.

I concur with the dissents of Judges Pickett, Amy, and Keaty which correctly point out that the particular issue in this case, whether the medical procedure requested on November 22, 2011, was timely authorized,- did not arise until after the amendment became law in January, 2011, hence the statute was correctly applied prospectively by the Worker’s Compensation Judge (WCJ). While I agree on that issue, I write separately to stress that we should not have taken this case en banc and should not have ruled on this issue at all. The majority’s decision was unnecessary to a resolution of the issue under review. Proper exercise of judicial restraint compels us to decide on more narrow grounds, if we 'can do so. Wise v. Bossier 2Parish School Bd., 02-1525 (La.6/27/03), 851 So.2d 1090.

If the defendant timely authorized the medical procedure at issue in this case, there was no “denial,” hence no penalties are owed. Counsel for defendant correctly pointed but and reaffirmed when questioned by this writer in oral argument that the medical procedure in question was in fact approved within the sixty day time limit set out in La.R.S. 23:1201(E)(1). The majority agreed with the timeline, but nonetheless reversed the WCJ and awarded penalties and attorney fees based on an initial “denial” of the procedure by the defendant’s utilization review committee (u. r. committee).

The facts of this case are not in dispute. To briefly recap, on November 22, 2011, Dr. Jindia faxed a request form to Liberty Mutual, Garan’s worker’s compensation insurer, seeking pre-authorization to perform a medical procedure on the claimant, a “radio-frequency facet nerve ablation.” There was no information on the request and no analysis or opinion from Dr. Jindia as to why the test was necessary or how it would medically benefit the claimant. On November 30, Liberty Mutual’s u. r. committee phoned Dr. Jindia and denied the request based on an analysis by the nurse and physician that the procedure requested had not been shown to be necessary by the Doctor. The law is clear that an employer/insurer can reasonably controvert a claim if the employer/insurer “engaged in a nonfrivolous-legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant.” [sic] Pete v. Quality Const. Specialists and Bridgefield Cas. Ins. Co., 09-642 (La. App. 3 Cir. 12/9/09), 25 So.3d 241 (citing Brown v. Texas-La Cartage, Inc., 98-1063, P. 9 (La.12/1/98), 721 So.2d 885, 890). When a medical dispute arises, the statute as amended effective January 1, 2011, now requires that the “aggrieved party,” in this case the claimant |3file an appeal with the OWC • medical director. La.R.S. 12:1203.1. No such appeal to the medical director was filed. The WCJ had issued a previous order on May 2, 2005 in this case ordering defendant to pay all reasonable and necessary medical expenses. After the committee’s “denial,” plaintiff did not file an immediate motion requesting a hearing before the WCJ prior to final approval of the medical procedure.

The record shows that shortly after the u. r. committee’s recommendation to deny the procedure, the claims adjuster/supervisor for defendant, Ms. Dunn, then reviewed the file. The evidence is uncontro-verted that on December 22, 2011, within thirty days of the initial “denial” of the procedure requested, Ms. Dunn overruled the recommendation of the u. r. committee and called the doctor to authorize the procedure. The doctor’s office was closed, so she called again on December 27. Again no answer, so she left a message authorizing the procedure. She sent a follow up fax on January 6, 2012, well within the sixty day time limit set by La.R.S. 23:1201(E)(1), and approved the medical procedure. The doctor performed the procedure and continued to treat the plaintiff, all of which was not in dispute. Plaintiff was not prejudiced in any way by the initial “denial” of the u. r. committee, as the procedure was, in fact, timely authorized and performed.

On February 16, 2012, plaintiff filed his first motion for penalties and attorney fees, claiming that his compensation benefits were terminated without cause, and certain mileage expenses had not been paid timely. No mention was made of the u. r. committee’s initial “denial” of the medical procedure, perhaps because the procedure had in fact been approved on December 22, 27, and January 6.

Defendant filed an exception of improper use of summary procedure. The Exception of Improper Use of Summary Proceeding was granted and the WCJ |4bifurcated the mileage issue. No supervisory writ was filed by plaintiff. Trial on the improper termination of benefits issue was conducted on April 23, 2012 by the WCJ.

At the April 23, 2012 trial, there was a stipulation that weekly benefits were stopped on January 9, 2012 and re-instated on February 9, 2012. No explanation was given by defendant except to admit a mistake was made. The WCJ imposed a $3,000 penalty for improper termination of weekly indemnity benefits calculated pursuant to 23:1201(G), failure to pay in accordance with a judgment. Defendant did not appeal this issue.

Plaintiff appealed, asking this Court to reverse the WCJ on the bifurcation issue. The majority found that issue was moot and I concur. The plaintiff also assigned as error the failure of the WCJ to assess an $8,000 penalty at the April 23, 2012 hearing for improper termination of weekly indemnity benefits pursuant to La.R.S. 23:1201. The majority found that the appeal taken on this issue was not timely. I concur.

The mileage issue was rescheduled as a trial on the merits on July 18, 2012. In the meantime, after plaintiffiappellee had lost on the improper termination of benefits issue, on June 28, 2012, plaintiff filed an amended motion for penalties and attorney fees claiming the medical procedure performed by Dr. Jindia had not been timely authorized. That amended motion was also fixed for hearing as a trial on the merits on July 18, 2012.

At the trial, the WCJ found two medical travel bills were not paid within sixty days of the date of proper submission and awarded $2,000 in a single penalty, since the bills were submitted together, and $3,000 in attorney fees. Defendants did not appeal that ruling. Plaintiff appealed, claiming additional penalties. The majority affirmed the WCJ on that ruling, and I concur.

IsTherefore, the only remaining issue is the question of penalties and attorney fees for the alleged “denial” of the medical procedure recommended by Dr. Jindia. After a full evidentiary hearing, the WCJ denied penalties and attorney fees on this issue, assigning two reasons for his decision. In the first reason, the WCJ found that the procedure mandated by the newly amended statute, La.R.S. 23:2303.1, was not followed. The WCJ held that the claimant failed to file an appeal within fifteen days of the “denial” of the medical procedure with the OWC medical director as now required by the statute. The majority focuses on that portion of the ruling and, incorrectly in my opinion, holds that the statute should be applied prospectively only. Since the underlying worker’s compensation order requiring the defendant to pay ongoing medical expenses had been issued in 2005, the majority held that the claimant had a right to an immediate hearing before the WCJ and need not have submitted the claim to the medical director.

The majority specifically found that La. R.S. 12:1203.1 affects substantive rights and can only be applied to cases original- ing after January 1, 2011. The effect of the majority ruling is that if a case was pending or had been heard by the WCJ before the effective date of the amendment, as in this case, then even a particular medical issue arising after the effective date had to be brought back before the WCJ, not the medical director.

I disagree for the reasons assigned by Judges Pickett, Amy, and Keaty. The particular issue in this case, failure to timely pay for the medical procedure requested by Dr. Jindia on November 22, 2011, occurred after the effective date of the statute, and the wording of the statute is clear that “all disputes” involving failure to provide medical treatment arising after the effective date of the amendment must first be | f,submitted to the medical director.

In this case there was in fact a trial on the merits on the issue of “denial” of medical benefits and the WCJ made factual findings. The majority gave short shrift to the second basis for the WCJ’s ruling issued after he heard all the evidence. The majority did not discuss or apply the manifest error standard to his findings. The WCJ had specifically relied on the testimony of Ms. Dunn and found that the procedure at issue had in fact been timely authorized and that no penalties and attorney fees were owed. The issue of whether La.R.S. 23:1208.1 should be applied prospectively or retrospectively should not have been considered by this court, as there is no underlying “denial” of a medical procedure on which to base a decision. Therefore, in my opinion, there was no need to call an en banc hearing and rule on the prospective/retrospeetive application of the statute, as such a ruling is obiter dictum.

Obiter Dictum has been classically defined as a judge’s opinion on a matter that is not necessarily involved in the case or essential to its determination. Black’s Law DictionaRY (9th ed.2009). It is “a statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding.” Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992). A case should be decided on the narrowest grounds in order to avoid unnecessary obiter dictum. Wise v. Bossier Parish School Bd., 02-1525 (La.6/27/03), 851 So.2d 1090. See also Cat’s Meow, Inc. v. City of New Orleans Through Dept. of Finance, 98-0601 (La.10/20/98), 720 So.2d 1186; Sarnoff v. American Home Products Corp., 798 F.2d 1075 (7th Cir.1986) (Posner, J.).

Had the WCJ refused to conduct a hearing on the merits and/or based his decision only on the issue that the procedure outlined in the amended version of 7La.R.S. 23:1203.1 had not been followed, and then denied penalties and attorney fees on that basis only, the case may then have been ripe for us to consider proper statutory interpretation. However, he did not. The WCJ specifically conducted a full eviden-tiary hearing and found that the medical procedure at issue was timely authorized. He accepted Ms. Dunn’s testimony. This case can and should be decided on the narrow grounds of whether, under the manifest error rule, there was sufficient evidence in the record to support the WCJ’s ruling. Tomasik v. La. State Veterans Affairs Office, 13-451 (La.App. 3 Cir. 11/6/13), 124 So.3d 613; Foster v. Rabalais Masonry, Inc., 01-1394 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784. Magbee v. Federal Express, 12-77 (La.App. 3 Cir. 12/12/12), 105 So.3d 1048.

Citing Pete, 25 So.3d 241, and Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313, plaintiff/appel-lee argues that when the employer denies a medical procedure arbitrarily, penalties and attorney fees are owed even if the employer eventually approves the procedure within the sixty day time delay provided by La.R.S. 23:1201(E)(1). He claims the u. r. committee arbitrarily “denied” the claim.

Ms. Dunn’s testimony clearly refuted that conclusion. In fact, the majority actually quoted from Ms. Dunn’s report explaining the u. r. committee’s findings and its reasons:

The report received by Ms. Dunn from the peer-review practitioner stated that after reviewing the criteria and current literature pertaining to the recommended treatment, it reached the following conclusion.
The request is not medically necessary. The claimant does not have physical examination findings consistent with facet originating pain and does not have diagnostic imaging correlating with facet degenerative changes in the records provided. A psychosocial screening has not been provided for review and the claimant’s benefit | ¿from the previous ablation has not been specified. Records do not reflect that lower levels of care, including physical therapy, have been exhausted. Given the above clinical information and guidelines criteria, the request is denied.

Again, no explanation or opinion had accompanied Dr. Jindia’s request to conduct the medical procedure. Even if the adjuster had not immediately approved the procedure, there is a reasonable basis for the initial denial by the u. r. committee established by the evidence.

The undisputed facts of this case are easily distinguishable from Pete and Phillips. In Pete, on June 28, 2006, Pete saw Dr. Michel Heard, who recommended a Lumbar Epidural Steroid Injection (LESI). The adjuster handling the claim denied the request on July 14 with no reasons stated. On August 9, Pete filed a disputed claim for compensation, penalties and attorney fees. The adjuster then reversed her position and approved the treatment after she received the claim.

In affirming the WCJ’s finding that the claim had been arbitrarily denied, a panel of this court stated, “Dr. Heard subsequently recommended two more LESI series that the insurance adjuster treated in the same manner, first denying and then approving the treatment.” Pete, 25 So.3d at 243. As noted by the panel, the WCJ found factually that the denial of the first LESI series was arbitrary and capricious. The panel of this court went on to state in Pete:

As the WCJ explained, no one could fault an adjuster who denied treatment for good cause but, after receiving more information, changed her mind. Noting that the record did not supply a valid reason for the denial and that defendants failed to produce the adjuster at the hearing so as to ascertain whether the denial was warranted, the WCJ concluded that the denial was arbitrary and capricious.

Id. at 244.

In this case, the opposite occurred. The initial request for medical treatment was sent to defendant’s u. r. committee. The committee considered and |9recommended denial of the request based on valid reasons stated. More importantly, the adjuster did timely approve the procedure some six months before the claim was filed.

The majority cites Magbee v. Federal Express, 12-77 (La.App. 3 Cir. 12/12/12), 105 So.3d 1048 (citing LeMelle v. Wal-Mart Stores, Inc., 04-527 (La.App. 3 Cir. 9/29/040, 883 So.2d 526)), for the proposition that the “mere production of a different opinion of a doctor who never examined the claimant does not constitute competent medical advice sufficient to reasonably controvert the claims.” However, an employer/insurer has a continuing duty to assess factual information and re-evaluate its position when warranted. Pete, 25 So.3d 241. Ms. Dunn received and reviewed the u. r. report, pursuant to her responsibility. She then immediately overruled the u. r. panel’s recommendation and timely approved the recommended treatment. The majority even quoted Ms. Dunn’s reasoning in its opinion:

Ms. Dunn testified that less than one month later, on December 22, 2011, she attempted to call Dr. Jindia’s office to inform him that she would approve the treatment. In her December 22, 2011 office note, she stated:
Repeat RFA was denied by preauth— prior RFA done in June and did help clt symptoms and appears reasonable for repeat 1 x a year per my experience with prior SMO on RFA’s. If block helped then RFA is indicated and repeat is indicated and repeat appropriate yearly if relief lasts 6-12 mos. It has been 6 mos however does not appear rx usage decreased and we dont [sic] have specific info on her benefit from the prior ablation. I feel it is prudent to approve the repeat RFA until we can get SMO to comment on the frequency of repeat RFA’s — this is necessary to avoid 1008 until we can have issue properly addressed.
Called the dr. office to approve but they are closed now for the holiday until Tuesday. I will call then and approve auth. [sic]

In addition, unlike the adjuster in Pete, Ms. Dunn appeared at trial and testified, “When I realized U.R. had denied it, I wanted to approve it. So I called.”

h nUnlike the facts in Pete, Magbee, and LeMelle, the WCJ found factually that the treatment had been approved timely within the sixty day time period. And unlike the facts in Pete, the amended motion for penalties for failure to timely authorize the medical procedure in this case was not filed before final approval, but months later, on June 28, 2012, shortly before the July 18, 2012 trial.

At trial, the WCJ relied on Ms. Dunn’s testimony and found factually, “Ms. Dunn subsequently over-road the utilization review opinion and approved the procedure on January 6, 2012, by fax. The approval was received within sixty days.” And again, “Ms. Dunn voluntarily over-road the U.R. determination within sixty days. Accordingly, the claim for a penalty regarding the radio frequency facet nerve ablation is denied.” Under the manifest error rule, his findings must be affirmed unless clearly wrong. Magbee, 105 So.3d 1048; Tomasik, 124 So.3d 613; Foster, 811 So.2d 1160.

Phillips can also be easily distinguished. In Phillips, the defendant denied plaintiffs request for continued psychotherapy on three different occasions, February 5, 2001, February 28, 2001, and July 19, 2001, relying on the utilization review process plus video surveillance calling plaintiffs credibility into question. The defendant never did authorize the treatment until ordered to do so by the WCJ after trial on the merits. The WCJ found that defendant’s refusal was arbitrary and capricious and a panel of the court affirmed, applying the manifest error rule.

Again, just the opposite happened in this case. The WCJ found that even though the u. r. committee recommended denial, Ms. Dunn, the claims supervisor actually responsible for the final decision, timely approved the procedure within the statutory sixty day time period, and long before the motion for penalties and attorney fees was filed on June 28, 2012.

lnFaced with the uncontroverted facts that the majority itself cited in its opinion, the majority then found “that Garan failed to reasonably controvert Dr. Jindia’s request for the radiofrequency facet-nerve ablation prior to denying approval.” Respectfully, the majority failed to properly take into account that there was a full trial on the merits of this particular issue, and that the WCJ made factual findings and accepted Ms. Dunn’s testimony. The majority failed to appropriately apply the manifest error rule to the WCJ’s findings. Magbee, 105 So.3d 1048; Tomasik, 124 So.3d 613; Foster, 811 So.2d 1160. The WCJ’s opinion on this issue should be affirmed.

CONCLUSION

In my view, this is not the type of case where we should convene an en banc panel and issue a far reaching opinion “overruling” a panel of this court on the important issue of whether La.R.S. 23:1203.1 should be applied prospectively or retrospectively.

Proper exercise of judicial restraint is warranted. There is no need to rule on or discuss the statutory interpretation of La. R.S. 23:1203.1. The case can and should be decided on narrow grounds and affirmed under the manifest error rule. Magbee, 105 So.3d 1048; Tomasik, 124 So.3d 613; Foster, 811 So.2d 1160; see also Wise, 851 So.2d 1090. In this ease, there is no dispute about the facts. The WCJ correctly applied the law to the facts and his decision should be affirmed in all respects.

      . At the time this matter was tried, La.R.S. 23:1201(E) provided that "[m]edical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.”