author: EZELL, Judge.

text:
    Hazel Richard SAVOIE, et al. v. Alice T. RICHARD, et al.
    No. CA 13-1370.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Rehearing Denied May 21, 2014.

      Donald T. Carmouche, Victor L. Marcel-lo, Diane Adele Owen, John Hogarth Car-mouche, William R. Coenen, III, Brian T. Carmouche, Ross J. Donnes, Todd J. Wim-berley, Talbot, Carmouche & Marcello, Baton Rouge, LA, for Plaintiffs/Appellees, Hazel Richard Savoie, Richard Michael Sa-voie, Kevin Troy Savoie. •
    Thomas E. Balhoff, Judith R.E. Atkinson, Carlton Jones, III, Roedel Parsons Koch Blache Balhoff & MeCollister, Baton Rouge, LA, for Defendant/Appellee, State of Louisiana, Department of Natural Resources.
    Patrick Wise Gray, Thomas Martin McNamara, Amy Allums Lee, Johnson Gray McNamara, LLC, Lafayette, LA, for Defendants/Appellants, SWEPI LP, Shell Oil Company.
    Joe Barrelle Norman, Kelly B. Becker, Liskow & Lewis, New Orleans, LA, for Defendants/Appellants, Shell Oil Company, SWEPI LP.
    William T. McCall, Guillory & McCall, Lake Charles, LA, for Defendants/Appellants, Shell Oil Company, SWEPI LP.
    Michael Keith Prudhomme, David Paul Bruchhaus, Chad Ellis Mudd, Mudd & Bruchhaus, LLC, Lake Charles, LA, for Plaintiffs/Appellees, Richard Michael Sa-voie, Hazel Richard Savoie, Kevin Troy Savoie.
    Richard G. Duplantier, Jr., Cheri Chestnut, Galloway Johnson Tompkins Burr & Smith, New Orleans, LA, for Defendants/Appellee, Pioneer Exploration, et al.
    Michael J. Mazzone, Elizabeth E. Klin-gensmith, Haynes and Boone, LLP, Houston, TX, for Defendants/Appellants, Shell Oil Company, SWEPI LP.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   EZELL, Judge.

11 Shell Oil Company and SWEPI LP (hereinafter collectively referred to as “Shell”) appeal the judgment of the trial court awarding Hazel, Kevin, and Richard Savoie (the Savoies) $34 million in damages for remediation of their land to state regulations and $18 million to remediate the property to comply with mineral leases entered into by the parties. The Savoies answer, claiming the trial court improperly awarded judicial interest from the date of judicial demand. For the following reasons, we hereby affirm the decision of the trial court as amended.

This is an oilfield remediation case. The Savoies sued numerous defendants for allegedly contaminating their property through mineral exploration and production activities. After a month-long trial on the matter, a jury found that the Savoies had suffered environmental damage to their property and that Shell was responsible. The jury awarded the plaintiffs $34 million for restoration of the property to state regulatory standards and awarded an additional $18 million for remediation of the property to the standards set forth in the mineral leases.

After the jury’s verdict, the matter proceeded to the Louisiana Department of Natural Resources (DNR) in accordance with the provisions of La.R.S. 30:29, also known as Act 312. Pursuant to this statute, the DNR adopted a remediation plan which would cost $3,963,003.00 to implement. The trial court approved the DNR plan as the most feasible plan to remediate the land to state regulations when the Savoies failed to contest the plan at a preponderance hearing. The trial court entered judgment in favor of the Savoies for $34 million for remediation to state standards but required Shell to pay $3,963,003.00 of that amount into the court’s registry for the exclusive use in remediation-under La.R.S. 30:29. The remaining $30 million took the form of a personal judgment in favor of the Savoies. The trial |2court further awarded the Savoies $18 million in damages to remediate the land to the standards set forth by the contracts between the parties that exceeded the state requirements. From this judgment, Shell appeals and the Savoies answer.

Shell asserts four assignments of error on appeal: that the trial court erred in failing to advise the jury of La.R.S. 80:29 in its jury charges; that the trial court erred in awarding the Savoies $80 million as a cash payment for regulatory cleanup; that the award of that $30 million in addition to the performance of the cleanup amounts to an. impermissible double recovery; and that the trial court erred in denying its motion for directed verdict. Because Shell’s second and third assignments of error overlap, we will address them together. The Savoies answer the appeal, claiming the trial court erred in awarding interest from the date of judicial demand rather than from the date of the breach of the leases at issue.

Jury charges

Shell asserts as its first assignment of error that the trial court erred in excluding reference to Act 312 during trial and in failing to inform the jury of the post-trial process set forth by the Act. For this alleged error, Shell seeks remand for a new trial. Shell alleges it was prejudiced by the Savoies’ claims to the jury that they must be awarded as much as $35 million to insure remediation to state standards when the framework of the Act guaranteed that remediation to those standards would occur, regardless of cost, once findings of environmental damage and liability were made by the jury.

Generally, “the giving of an allegedly erroneous jury instruction will not com stitute grounds for reversal unless the instruction is erroneous and the complaining party has been injured or prejudiced thereby.” Rosell [v. ESCO], 549 So.2d [840] at 849 [ (La.1989) ]. In fact, Louisiana jurisprudence is well established that a reviewing court must exercise great restraint before it reverses a jury verdict due to an erroneous jury instruction. Adams, 2007-2110 p. 6, 983 So.2d at 804; Nicholas [v. Allstate Ins. Co.], 1999-2522 p. 8, |s765 So.2d [1017] at 1023 [ (La.2000) ]. We have previously explained the following basis for this rule of law:
[t]rial courts are given broad discretion in formulating jury instructions and a trial court judgment should not be reversed so long as the charge correctly states the substance of the law. The rule of law requiring an appellate court to exercise great restraint before upsetting a jury verdict is based, in part, on respect for the jury determination rendered by citizens chosen from the community who serve a valuable role in the judicial system. We assume a jury will not disregard its sworn duty and be improperly motivated. We assume a jury will render a decision based on the evidence and the totality of the instructions provided by the judge.
In order to determine whether an erroneous jury instruction was given, reviewing courts must assess the .targeted portion of the instruction in the context of the entire jury charge “to determine if the charges adequately provide the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its determination.” Adams, 2007-2110 p. 7, 983 So.2d at 804; Nicholas, 1999-2522 p. 8, 765 So.2d at 1023; Rosell, 549 So.2d at 849. The ultimate inquiry on appeal is whether the jury instructions misled the jury to such an extent that the jurors were prevented from dispensing justice. Adams, 2007-2110 p. 7, 983 So.2d at 804; Nicholas, 1999-2522 p. 8, 765 So.2d at 1028.

Wooley v. Lucksinger, 09-571, 09-584, 09-585, 09-586, pp. 81-82 (La.4/1/11), 61 So.3d 507, 574 (quoting Adams v. Rhodia, Inc., 07-2110, p. 6 (La.5/21/08), 983 So.2d 798, 804)(alteration in original).

Shell did arguably suffer some prejudice in that the jury awarded such a large amount while conceivably under the notion that remediation to state requirements was not assured without a vast award, despite La.R.S. 30:29 guaranteeing cleanup to those levels if the jury found Shell responsible. However, the trial court was also careful to craft a jury verdict form and instructions that accomplished the goals of Act 312, even if the Act and the post-trial procedure [4were not specifically mentioned. Most importantly for the case before us, the jury verdict form differentiated between the awards for the costs of cleanup to state regulatory standards and the costs of the private damages the Sa-voies suffered as a result of Shell’s breach of its leases. We do not find that the jury was prevented from dispensing justice because of the instructions from the trial court. Moreover, judicial efficiency requires that we not remand this matter for another month-long trial when we can address the main issue on appeal as discussed below.

The $3Jp million question

Shell’s second and third assignments of error will be addressed as one, as they both deal with the main issue in this case — whether the Savoies are entitled to a private judgment for the extra $30 million awarded to them by the trial court and jury specifically for remediation of their land to state regulatory standards in addition to the actual performance of that remediation at the roughly $4 million cost of the remediation plan actually adopted by the court. We find that the Savoies are not entitled to a private judgment for this additional $30 million.

Louisiana Revised Statutes 30:29 provides, in pertinent part:

A. The legislature hereby finds and declares that Article IX, Section 1 of the Constitution of Louisiana mandates that the natural resources and the environment of the state, including ground water, are to be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people and further mandates that the legislature enact laws to implement this policy. It is the duty of the legislature to set forth procedures to ensure that damage to the environment is remediated to a standard that protects the public interest. To this end, this Section provides the procedure for judicial resolution of claims for environmental damage to property arising from activities subject to the jurisdiction of the Department of Natural Resources, office of conservation. The provisions of this Section shall be implemented upon receipt of timely notice as required by Paragraph (B)(1) of this Section. The provisions of this Section shall not be construed to impede or limit provisions under private contracts imposing remediation obligations in excess of the requirements of the department or limit the right of a party to a ^private contract to enforce any contract provision in a court of proper jurisdiction.
C. (1) If at any time during the proceeding ... the finder of fact determines that environmental damage exists and determines the party or parties who caused the damage or who are otherwise legally responsible therefore, the court shall order the party ... whom the court finds legally responsible for the damage to develop a plan or submittal for the evaluation or remediation to applicable standards of the contamination that resulted in the environmental damage. The court shall order that the plan be developed and submitted to the department and the court within a time that the court determines is reasonable and shall allow the plaintiff or any other party at least thirty days from the date each plan or submittal was made to the department and the court to review the plan or submittal and provide to the department and the court a plan, comment, or input in response thereto. The department shall consider any plan, comment, or response provided timely by any party. The department shall submit to the court a schedule of estimated costs for review of the plans or submit-tals of the parties by the department and the court shall require the party admitting responsibility or the party found legally responsible by the court to deposit in the registry of the court sufficient funds to pay the cost of the department’s review of the plans or submittals. Any plan or submittal shall include an estimation of cost to implement the plan.
(2) Within sixty days from the last day on which any party may provide the department with a plan, comment, or response to a plan as provided in Paragraph (C)(1) of this Section, the department shall conduct a public hearing on the plan or plans submitted. Within sixty days of the conclusion of the hearing, the department shall approve or structure a plan based on the evidence submitted which the department determines to be the most feasible plan to evaluate or remediate the environmental damage and protect the health, safety, and welfare of the people. The department shall issue written reasons for the plan it approves or structures. On motion of the department, for good cause shown, the court may grant the department additional time, not to exceed sixty days, within which to either conduct the hearing or approve a plan with reasons.
(3) The department shall use and apply the applicable standards in approving or structuring a plan that the department determines to be the most feasible plan to evaluate or remediate the environmental damage.
|fi(4) The plan approved by the department for submission to the court shall not be considered to be an adjudication subject to appellate review pursuant to R.S. 49:964 or R.S. 30:12.
(5) The court shall adopt the plan approved by the department, unless a party proves by a preponderance of the evidence that another plan is a more feasible plan to adequately protect the environment and the public health, safety, and welfare. The court shall enter a judgment adopting a plan with written reasons assigned. Upon adoption of a plan, the court shall order the party or parties admitting responsibility or the party or parties found legally responsible by the court to fund the implementation of the plan.
(6)(a) Any judgment adopting a plan of evaluation or remediation pursuant to this Section and ordering the party or parties admitting responsibility or the party or parties found legally responsible by the court to deposit funds for the implementation thereof into the registry of the court pursuant to this Section shall be considered a final judgment pursuant to the Code of Civil Procedure Article 2081 et seq., for purposes of appeal.
D. (1) Whether or not the department or the attorney general intervenes, and except as provided in Subsection H of this Section, all damages or payments in any civil action, including interest thereon, awarded for the evaluation or remediation of environmental damage shall be paid exclusively into the registry of the court in an interest-bearing account with the interest accruing to the account for clean up.
(2) The court may allow any funds to be paid into the registry of the court to be paid in increments as necessary to fund the evaluation or remediation and implementation of any plan or submittal adopted by the court....
(3) The court shall issue such orders as may be necessary to ensure that any such funds are actually expended in a manner consistent with the adopted plan for the evaluation or remediation of the environmental damage for which the award or payment is made.
(4) The court shall retain jurisdiction over the funds deposited and the party or parties admitting responsibility or the party or parties found legally responsible by the court until such time as the evaluation or remediation is completed. If the court finds the amount of the initial deposit insufficient to complete the evaluation or remediation, the court shall, on the motion of any party or on its own motion, order the party or parties admitting responsibility or found legally responsible by the court to deposit additional funds into the registry of the court. Upon completion of the evaluation or 17remediation, the court shall order any funds remaining in the registry of the court to be returned to the depositor. The department and the parties shall notify the court of the completion of any evaluation or remediation.
F. The court and the department shall retain oversight to ensure compliance with the plan. The party or parties admitting responsibility or the party or parties found legally responsible by the court shall file progress reports periodically as the court or the department may require.
H. This Section shall not preclude an owner of land from pursuing a judicial remedy or receiving a judicial award for private claims suffered as a result of environmental damage, except as otherwise provided in this Section. Nor shall it preclude a judgment ordering damages for or implementation of additional remediation in excess of the requirements of the plan adopted by the court pursuant to this Section as may be required in accordance with the terms of an express contractual provision.

Shell argues that under La.R.S. 30:29, the jury was not entitled to hear or determine the portion of any case dealing with remediation to state standards, as the statute sets up a post-trial procedure for determining the most feasible plan and its costs. While a straight reading of the statute would render this argument superficially valid, it is clear from the supreme court’s decision in State v. Louisiana Land and Exploration Co., 12-884 (La.1/30/13), 110 So.3d 1038, this argument must fall. There, the court noted:

The procedure under the Act does not prohibit the award of remediation damages for more than the amount necessary to fund the statutorily mandated feasible plan, nor does the procedure described in the Act intrude into the manner in which remediation damages are determined. The Act | smakes no changes to the normal trial procedures established by the Code of Civil Procedure. The only change accomplished by Act 312 is how the damages to remediate property are spent. Under Act 312, landowners do not receive that portion of the remediation damages award needed to fund the statutorily mandated feasible plan; these funds must be deposited into the registry of the court.

Id. at 1049 (emphasis ours). Moreover, the court went on to say that

The matter proceeds to trial in the same manner as any other proceeding; no provision of the Act changes normal trial procedures. This means pre-trial discovery is conducted and the case proceeds in accordance with the Code of Civil Procedure. Unless a defendant admits responsibility or liability for “environmental damage” as defined by the Act, La. R.S. 30:29(1), all claims, including contractual or private claims, are determined by thé finder of fact at trial.

Id. at 1051(emphasis ours)(footnote omitted).

While Shell argues that the procedure established by the Act removes the power to determine the public interest remediation plan and cost therefor from a jury, with this language the supreme court clearly mandates that “all claims,” including claims as to remediation to state standards, go before the jury. That language is clear, unambiguous, and controlling. Accordingly, the trial court did not err in allowing the jury to hear these claims.

Nevertheless, under the clear language of the statute, the jury is not the ultimate arbiter of the plan to remediate to state standards, the trial court itself is. The trial court is to determine the most feasible plan for remediation to state standards, for the public interest, after the DNR has submitted its plan. See La.R.S. 30:29(0(1); La.R.S. 30:29(0(5). Additionally, “Act 312 changes the remedy available to [plaintiffs] in [their] efforts to obtain surface restoration of [their] immovable property.” M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, p. 32 (La.7/1/08), 998 So.2d 16, 37. The remedy for remediation to state regulatory | ^standards is no longer a private money award, but rather specific performance of the remediation to those state standards that serve the public interest.

Here, the Savoies had the opportunity to submit their own plan to contest the $3.9 million plan submitted by the DNR to the trial court at a preponderance hearing, but ultimately chose not to do so. They probably would have been wise to submit a plan for consideration by the trial court, as their estimation of the cost of remediation to state standards was obviously approved by the jury by a preponderance of the evidence. Since the Savoies waived that right completely of their own volition, the trial court had no choice but to adopt the DNR’s plan as submitted. Under La.R.S. 30:29(C)(5)(emphasis ours), “[t]he court shall adopt the plan approved by the department, unless a party proves by a preponderance of the evidence that another plan is a more feasible plan to adequately protect the environment and public health, safety, and welfare” than the plan approved by the DNR. The DNR had not yet formulated its plan when the Savoies presented their case to the jury. When the Savoies failed to challenge the DNR’s plan after the trial, the trial court acted correctly in adopting that plan as the most feasible plan for remediation to state standards under La.R.S. 30:29(0(5).

However, “the final decision as to the remediation plan adopted rests with the court.” Louisiana Land, 110 So.3d at 1049. The DNR plan itself is not a final decision, but basically evidence to be considered by the trial court in ultimately determining the most feasible plan. The trial court is the final arbiter in | ^determining the most feasible plan for remediation to state standards as well as the gatekeeper for overseeing its implementation. See La.R.S. 30:29(0(5).

Despite the Savoies’ apparent tactical miscalculation, it seems that the trial court ultimately agreed with the jury’s finding on the cost of returning the land to state standards in its own determination of the final plan for remediation to those specifications. The trial court accepted both the DNR plan and the jury’s award of $34 million dollars. Here, the trial court, admittedly confused as to how to handle the jury award, entered final judgment granting the $34 million awarded by the jury for state standard remediation to the Savoies personally after subtracting the $3.9 million amount required to fund the DNR plan to remediate to those same state levels. It seems that while the trial court “adopted” the DNR plan, the trial court also gave credence to the jury’s award for remediation to state standards. The award given by the jury was determined by the same preponderance of the evidence standard the trial court would have applied in any post-trial hearing. As awkward as the judgment may be, it is clear that the trial court paid respect to the jury’s findings and ultimately believed that $34 million was the amount required to remediate the land to state standards. Moreover, the amount of the jury’s award is not challenged by Shell, but rather, only the jury’s ability to reach that award and the trial court’s distribution of it.

The Savoies claim that the excess $30 million should be awarded to them in a private judgment as if that money was awarded for private contract or tort claims. However, it is perfectly clear from both the jury verdict form and the trial court’s judgment that this money was awarded specifically for remediation to state standards, to serve the public interest as identified by La.R.S. 30:29, and not for their private “excess” claims, for which they were awarded an additional $18 Inmillion by the jury and trial court. “Under Act 312, landowners do not receive that portion of the remediation damages award needed to fund the statutorily mandated feasible plan; these funds must be deposited into the registry of the court.” Louisiana Land, 110 So.3d at 1049. In other words, landowners are not to recover any award made specifically for remediation to state standards, i.e., that amount required to return the land to a state that suits the public interest. It is clear that the Savoies are not entitled to the additional $30 million awarded for remediation to state standards at issue here as if it were part of a private judgment.

Distribution of Damages for Remediation to State Regulatory Standards

Subsection D of La.R.S. 30:29 provides how the “most feasible plan” to remediate the property to state requirements is to be implemented. As noted in Louisiana Land, 110 So.3d at 1053-54 (emphasis ours):

Subsection (1) states:
D. (1) Whether or not the department or the attorney general intervenes, and except as provided in Subsection H of this Section, all damages or payments in any civil action, including interest thereon, awarded for the evaluation or remediation of environmental damage shall be paid exclusively into the registry of the court in an interest-bearing account with the interest accruing to the account for clean up.
Subsection D(l) must be read with Subsection (H), which provides:
H. This Section shall not preclude an owner of land from pursuing a judicial remedy or receiving a judicial award for private claims suffered as a result of environmental damage, except as otherwise provided in this Section. Nor shall it preclude a judgment ordering damages for or implementation of additional remediation in excess of the requirements of the plan adopted by the court pursuant to this Section as may be required in accordance with the terms of an express contractual provision. Any award |12granted in connection with the judgment for additional remediation is not required to be paid into the registry of the court. This Section shall not be interpreted to create any cause of action or to impose additional implied obligations under the mineral code or arising out of a mineral lease.
Reading the two subsections together, it is clear that when Subsection D(l) provides: “except as provided in Subsection H ... all damages ... awarded for the evaluation or remediation of environmental damage shall be paid exclusively into the registry of the court ...,” that means the amount of remediation damages necessary to fund the feasible plan adopted by the court, i.e. all damages awarded for the evaluation or remediation of environmental damage to a standard that protects the public interest.

We find that, because the trial court and jury specifically awarded the $34 million for remediation to state requirements, which is clearly for the public interest and not the Savoies’ private interest, the entire $34 million judgment should go into the registry of the court until the remediation is complete. We note here again that “[u]nder Act 312, landowners do not receive that portion of the remediation damages award needed to fund the statutorily mandated feasible plan,” i.e., remediation to state standards and regulations. Louisiana Land, 110 So.3d at 1049. At the time the trial court is satisfied that its plan has been complied with, any remaining money in the registry should be returned to Shell, as noted in the trial court’s judgment. Accordingly, we hereby amend the judgment of the trial court to place the entire $34 million award for the remediation of “the Savoie property to Louisiana standards and regulations” into the registry of the court to fund the implementation of the cleanup plan adopted by the trial court.

Because we place that award into the registry of the court, where any unused portion will be returned to Shell, we need not address Shell’s argument that the distribution of the award would amount to a double recovery for the Savoies.

J^Motion for Directed Verdict

Shell next claims the trial court erred in denying its motion for directed verdict on the Savoies’ “excess” remediation damages claims. These claims arose out of the specific leases Shell had with the Savoies and involve cleanup beyond the requirements of the state regulations to the requirements of these leases. Shell claims that the “only evidence on this issue was that the regulations and the contracts required the same level of restoration.” We disagree.

This court, in Hebert v. BellSouth Telecommunications, Inc., 01-223, pp. 4-5 (La.App. 3 Cir. 6/6/01), 787 So.2d 614, 617, writ denied, 01-1943 (La.10/26/01), 799 So.2d 1145, stated the following:

The applicable standard of review for [a motion for directed verdict] is found in Busby v. St Paul Insurance Co., 95-2128, pp. 16-17 (La.App. 1 Cir. 5/10/96); 673 So.2d 320, 331, writ denied, 96-1519 (La.9/20/96); 679 So.2d 443, which states:
A trial court has much discretion in determining whether or not to grant a motion for directed verdict. New Orleans Property Development, Ltd. v. Aetna Casualty and Surety Company, 93-0692 (La.App. 1st Cir.4/8/94); 642 So.2d 1312, 1315; Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544 and 92-1545 (La.App. 1st Cir.3/11/94); 634 So.2d 466, 478, writ denied, 94-0906 (La.6/17/94); 638 So.2d 1094; Barnes v. Thames, 578 So.2d 1155, 1162 (La.App. 1st Cir.), writ denied, 577 So.2d 1009 (La.1991). A motion for directed verdict is appropriately granted in a jury trial when, after considering all evidentiary inferences in the light most favorable to the movant’s opponent, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. New Orleans Property Development, Ltd., 642 So.2d at 1315; Belle Pass Terminal, Inc., 634 So.2d at 478; Barnes, 578 So.2d at 1162. However, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury. New Orleans |4Property Development, Ltd., 642 So.2d at 1315; Belle Pass Terminal, Inc., 634 So.2d at 478.
On appeal, the standard of review for directed verdicts is whether, viewing the evidence submitted, the appellate court concludes that reasonable people could not reach a contrary verdict. New Orleans Property Development, Ltd., 642 So.2d at 1315; Belle Pass Terminal, Inc., 634 So.2d at 478.

Shell does not challenge the amount of jury’s $18 million award for remediation to the requirements of the contract. Instead, Shell claims that the requirements of the contract and the state regulations are the same, despite the jury’s clear opinion on the matter. Of a voluminous record of over 17,000 pages, Shell’s argument is based on two sentences from the testimony of the Savoies’ expert witnesses wherein the experts pronounce that the state regulations require a “similar” cleanup standard as the lease provisions that required the land be cleaned up to the “background” condition that existed prior to the lease beginning. However, Shell ignores testimony from those same experts that differentiates between what was required to meet the rules and regulations that the State of Louisiana has adopted and that which would be applicable to the Savoies’ lease, including running the cleanup systems for longer times at a greater expense.

It is clear that the jury in this case heard and weighed evidence from competing experts for over four weeks and came to the conclusion that there were, indeed, requirements that arose from the leases that exceeded the state regulations and that it would take $18 million to restore the property as required by the leases beyond what was required by state regulations. We do not find that the facts and inferences point so overwhelmingly in Shell’s favor that that determination of the jury was impermissible. Accordingly, we do not find that the trial court abused its 11sdiscretion in failing to grant Shell’s motion for directed verdict. This assignment of error is devoid of merit.

Savoies’Answer

Finally, the Savoies answer Shell’s appeal. The Savoies originally asserted eight assignments of error in their answer. However, only one was briefed. “All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.” Uniform Rules-Courts of Appeal, Rule 2-12.4; Grantt Guillory Enters., Inc. v. Quebedeaux, 12-981, p. 5 (La.App. 3 Cir. 2/6/13), 110 So.3d 182, 186. Accordingly, we will only consider the lone briefed assignment of error, the allegation that the trial court erred in awarding interest on the judgment from the date of judicial demand, rather than from the date of the breach of the leases.

While it is generally true that judicial interest should accumulate from the date of breach in contract cases, as opposed to the date of judicial demand, the supreme court in Trans-Global Alloy Limited v. First National Bank of Jefferson Parish, 583 So.2d 443 (La.1991), has held that in “highly complicated” cases where the issues are whether a breach has occurred and the appropriate damage amount, it is appropriate to award interest from the date of judicial demand.

Ashy v. Trotter, 04-612, p. 21 (La.App. 3 Cir. 11/10/04), 888 So.2d 344, 357, writs denied, 05-180, 05-347 (La.3/24/05), 896 So.2d 1045, 1047. The Savoies correctly concede that this is the law. However, they claim that this case, which involved a four-week trial and a roughly 17,000 page record of highly technical evidence concerning several leases, dramatic environmental damage, and highly contested fights over how the land should be cleaned and the appropriate cost thereof, is not a “complicated” case. We disagree. We find this case clearly falls into the “highly complicated” category. Thus, we find no error in the trial court’s |1fiaward of legal interest from the date of judicial demand. This assignment of error is without merit.

For the above reasons, we hereby amend the judgment of the trial court to order the entire $34 million award for the remediation of “the Savoie property to Louisiana standards and regulations” to be paid into the registry of the trial court to fund the implementation of the plan adopted to meet that end. We affirm the remainder of the judgment of the trial court as amended. Costs of this appeal are assessed to the defendants.

AFFIRMED AS AMENDED.

      . It is clear from reading the entire Louisiana Land opinion that the amount of excess "remediation damages” discussed in this paragraph refers to private claims in tort and under contract as considered in La.R.S. 30:29(H), and not claims to remediation to state regulatory levels that serve the public interest. The Savoies are not and have not been precluded from seeking a judicial award for their private claims under the terms of their leases. The jury found they were entitled to $18 million in damages for those private excess remediation claims. The amount of that award is unchallenged and is not at issue here.

      . It is worth noting again for clarity’s sake that the "remediation plan” discussed in this quote refers to the plan for remediation to state standards only and not any excess remediation plans that may be required under any contractual terms. Under La.R.S. 30:29, the jury remains the final fact finder as to any plans necessary to remediate beyond state levels to conform with private contracts and/or tort claims.


source: Caselaw Access Project

author: PETERS, J. THIBODEAUX, Chief Judge,

license: Public Domain

text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Mary Doucet) v. LUBA WORKERS’ COMP., et al.
    Nos. 12-909.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.

      Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellant, Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant, Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellees, LUBA Casualty Insurance Company Acadiana Plastics Manufacturing, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

I,We consider this matter on remand from the supreme court following its decision in Rebel Distributors Corp., Inc. v. LUBA Workers’ Compensation, 13-0749 (La.10/15/13), — So.3d —, 2013 WL 5788791. In its remand to this court, the supreme court ordered that we consider the remaining issues raised by the parties which were not resolved by its decision. After complying with the supreme court order on remand, we affirm the judgment of the workers’ compensation judge in all respects.

DISCUSSION OF THE RECORD

The facts of this matter were fully addressed in both our prior opinion, Rebel Distributors Corp., Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir. 3/6/13), 129 So.3d 80, and the supreme court’s opinion, and we adopt those facts as though fully incorporated herein. In our decision, we held that the June 29, 2007 act of assignment between Rebel Distributors/Physician Partner and Dr. Heard/Clinic violated the anti-assignment language of La.R.S. 23:1205(A) and that the November 16, 2010 agreement between Rebel Distributors/Physician Partner and Dr. Heard/Clinic to convert the original assignment agreement into a retroactive agency agreement did not qualify as an express novation sufficient to accomplish the intended result. We reached this disposition based on our conclusion that novation could not have taken place because a substantial part of the original performance was still owed and because the attempted novation merely modified the terms of the June 29, 2007 agreement rather than extinguishing it. La.Civ.Code art. 1881. Furthermore, because the workers’ compensation judge (WCJ) had already declared the June 29, 2007 agreement null and void, we found that La.Civ. Code art. 1883 would prohibit a novation from having any effect where the underlying obligation to be extinguished either does not exist or is absolutely 12null. Thus, we found that Rebel Distributors/Physician Partner had no right of action such that it could institute this suit. La.Code Civ.P. art. 927(A)(6).

Following our decision, Rebel Distributors/Physician Partner sought and was granted writs by the supreme court. Rebel Distribs. Corp., Inc. v. LUBA Workers’ Comp., 13-0749 (La.6/14/13), 118 So.3d 1092. In reversing our decision, the supreme court held that “the anti-assignment language of La. R.S. 23:1205(A) does not prohibit the assignment of a health care provider’s claims to a third party, the express contractual novation was effective, and an agent can statutorily be considered a health care provider based on the definition contained in La. R.S. 23:1021(6).” Rebel Distribs., — So.3d at-.

OPINION

Motion to Strike filed by Rebel DistributorsIPhysician Partner

Originally, Rebel Distributors/Physician Partner raised three assignments of error on appeal, and LUBA raised eight in its appellee brief. Rebel Distributors/Physician Partner has filed a motion to strike a number of the assignments of error raised by LUBA, and we will address that motion first.

Rebel Distributors/Physician Partner asserts in its motion to strike that the fifth, seventh, and eighth assignments asserted by LUBA were not addressed in its answer to the appeal and should be stricken; and that LUBA’s first, fourth, and sixth assignments of error as well as its complaints in paragraphs three, four, and five of its answer to the appeal have been decided unfavorably for LUBA by the supreme court’s decision and should be stricken as well. In making this argument, Rebel Distributors/Physician Partner relies on La.Code Civ.P. art. 2133(A), which provides:

An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or |sunless he demands damages against the appellant. In such eases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an appellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee’s action.

The fifth, seventh, and eighth assignments of error asserted by LUBA are as follows:

5. The Trial Court erred in failing to recognize that employer/insurer is entitled to. choose the pharmacy to dispense pharmaceuticals.
7. The Trial Court erred in failing to find that the contractual relationship between Rebel and Dr. Heard creates an illegal kickback scheme in violation of 37:1745.
8. The Trial Court erred in failing to find that the procedure which permits each individual packager to arbitrarily set its own AWP without regard to its cost or wholesale price is in violation of 23:1034.2.

In its Answer to Appeal, LUBA alleged the following representations:

1.
Defendant contends that the trial court erred in permitting a new trial after denying the Motion for a New Trial.
2.
Defendant contends that the trial court erred in denying defendant’s Exception of Res Judicata.
3.
Defendant contends that the trial court erred in finding that Physician Partner had a cause of action against LUBA for worker’s [sic] compensation benefits.
JL4-
Defendant contends that the trial court erred in finding that Physician Partner was an agent of Dr. Michael Heard.
5.
Defendant contends that the trial court erred in finding that contract entered into Post-Judgment was effective for transactions occurring prior to judgment.
6.
In all other respects the judgment of the trial court should be affirmed without change.

In Carradine v. Regis Corp., 10-529, p. 11 (La.App. 3 Cir. 11/3/10), 52 So.3d 181, 190, we stated that La.Code Civ.P. art. 2133(A) has been interpreted, jurispruden-tially, to mean “that an answer to an appeal only operates as an appeal from those aspects of the judgment about which the answer complains.” Comparing LUBA’s answer to the language of the three assignments of error at issue, we agree with Rebel Distributors/Physician Partner’s argument that LUBA’s answer to the appeal fails to address the issues raised in its fifth, seventh, and eighth assignments of error. Thus, we grant the motion to strike these assignments of error.

With regard to the second half of the motion to strike, the first, fourth, and sixth assignments of error asserted by LUBA are as follows:

1. The Trial Court erred in admitting a second contract executed the day before the hearing on Motion for New Trial which purports to negate the original contract in evidence and in effect at the time of the original hearing in July 2010.
4. The Trial Court erred in finding that Rebel was a healthcare provider under Section 1021(6).
| -,6. The Trial Court erred in failing to findthat the contractual relationship between Rebel and Dr. Heard is an illegal assignment in violation of 23:1205.

The third, fourth, and fifth paragraphs of the answer to the appeal address whether Rebel Distributors/Physician Partner has a cause of action against LUBA, the agency issue, and the retroactive nature of the novation. All of these were addressed in Rebel Distributors/Physician Partner’s favor by the supreme court, and we grant the motion to strike these arguments.

Remaining Matters to be Considered

Rebel Distributors/Physician Partner has its three assignments of error left for consideration on remand:

1. The Trial Court erred in not granting injured workers in compensable Workers’ Compensation claims their right to choice of pharmacy.
2. The Trial Court erred in limiting payment of the outstanding pharmacy bill’s [sic] to $750.00 per Claimant under La.R.S. 23:1142.
3. The Trial Court erred in not granting penalties and attorney fees against LUBA for their failure to pay anything for the reasonable and necessary prescription medication received by Claimants.

LUBA’s remaining issues on remand include the first two paragraphs of its answer to the appeal and its second and third assignments of error.

Rebel Distributors/Physician Partner’s First Assignment of Error

In this assignment of error, Rebel Distributors/Physician Partner argues that the WCJ erred in not granting Ms. Doucet her choice of pharmacy. However, pursuant to La.Code Civ.P. art. 927(B), we notice on our own motion that Rebel Distributors/Physician Partner’s pleadings fail to state a right of action in regard to this issue. The only parties having a right of action to raise this issue are the employee, Ms. Doucet, and, possibly, the employer/insurer. However, based on hour grant of the motion to strike LUBA’s fifth assignment of error, which also raised this issue, the only party with a right to question her choice of pharmacy is Ms. Doucet, who is not a party to this claim. Accordingly, we find no merit in this assignment.

Rebel Distributors/Physician Partner’s Second Assignment of Error

In this assignment of error, Rebel Distributors/Physician Partner argues that the WCJ erred in limiting the payment of the outstanding pharmacy bill to $750.00 through an erroneous application of La. R.S. 23:1142. Rebel Distributors/Physician Partner argues that the WCJ should have applied La.R.S. 23:1203 instead to award the lesser of the actual cost or the cost allowed under the reimbursement schedule for the prescribed medication at issue. We find no merit in this argument.

Louisiana Revised Statutes Article 23:1142 is located in Subpart G, entitled “ATTORNEYS AND PHYSICIANS[,]” of Part I, “SCOPE AND OPERATION^]” of the Workers’ Compensation Act. At the time of the transaction at issue in this litigation, La.R.S. 23:1142 read, in pertinent part:

A. Definitions. For the purposes of this Section, the following terms shall - have the following meanings unless the context clearly indicates otherwise:
(1) “Payor” shall mean the entity responsible, whether by law or contract, for the payment of the medical expenses incurred by a claimant as a result of a work related injury.
B. Nonemergency care. (1) Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in nonemer-gency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. Except as provided herein, that portion of the fees for nonemergency services of each health care provider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee or the employer or the employer’s workers’ compensation insurer unless the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider.
|7(2)(a) When the payor has agreed to the diagnostic testing or treatment, the health care provider shall not issue any demand for payment to the employee or his family until the payor denies liability for the diagnostic testing or treatment. Notwithstanding the foregoing, the health care provider may reasonably communicate with the employee or his attorney or representative for the purpose of pursuing its claim against the payor.
(b) A health care provider who knowingly and willfully violates this Paragraph may be ordered by the workers’ compensation judge to pay penalties not to exceed two hundred fifty dollars per violation plus reasonable attorney fees. The penalty shall not exceed one thousand dollars for any demand for payment to an employee or his family which is issued after the health care provider has been penalized for a previous demand for payment to that employee or his family.

Louisiana Revised Statutes Article 23:1203 is located in Subpart A, entitled “General Provisions[,]” of Part II, “Benefits[J” At the time of this transaction, it provided:

A.In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services. Medical care, services, and treatment may be provided by out-of-state providers or at out-of-state facilities when such care, services, and treatment are not reasonably available within the state or when it can be provided for comparable costs.
B. The obligation of the employer to furnish such care, services, treatment, drugs, and supplies, whether in state or out of state, is limited to the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less. Any out-of-state provider is also to be subject to the procedures established under the office of workers’ compensation administration utilization review rules.
C. The employer shall furnish to the employee the necessary cost of repair to or the replacement of any prosthetic device damaged or destroyed by accident in the course and scope and arising out of such employment, including but not limited to damage or destruction of eyeglasses, artificial limbs, hearing aids, dentures, or any such prosthetic devices whatsoever.
IrD. In addition, the employer shall be liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services, medicines, and prosthetic devices, which the employer is required to furnish under this Section, and for the vocational rehabilitation-related mileage traveled by the employee at the direction of the employer. When the employee uses his own vehicle, he shall be reimbursed at the same rate per mile as established by the state of Louisiana for reimbursement of state employees for use of their personal vehicle on state business. The office shall inform the employee of his right to reimbursement for mileage.
E. Upon the first payment for a claimant’s medical care, service, or treatment, the payor, as defined in R.S. 23:1142(A)(1), shall communicate to the claimant information, in plain language, regarding the procedure for requesting an independent medical examination in the event a dispute arises as to the condition of the employee. A payor shall not deny medical care, service, or treatment to a claimant unless the payor can document a reasonable and diligent effort in communicating such information. A payor who denies medical care, service, or treatment without making such an effort may be fined an amount not to exceed five hundred dollars or the cost of the medical care, service, or treatment, whichever is more.

Although La.R.S. 23:1142(B)(1) does not specifically include prescription medication in the “nonemergency diagnostic testing or treatment” which is subject to the $750.00 cap, we find no error in the WCJ’s application of La.R.S. 23:1142 to Rebel Distributors/Physician Partner’s claim against LUBA. Based on its placement within the section pertaining to the provision of “Benefits” and the fact that it specifically addresses the duty or obligation of the employer to furnish the employee all necessary medical, surgical, and non-medical treatment, we find that the terms of La. R.S. 23:1203 are applicable to claims by the employee against the employer/insurer. Moreover, based on La.R.S. 23:1142’s placement in that section pertaining to attorneys and what should more properly be entitled “Health Care Providers,” we find that this statute applies to claims by health care providers/agents against the employer/insurer, who, as defined as the “payorf,]” is the “entity responsible, whether by law or contract, for the payment of the medical 1expenses incurred by the claimant as a result of a work related injury.” La.R.S. 23:1142(A)(1). Based on this determination, we find no merit in Rebel Distributors/Physician Partner’s arguments concerning the WCJ’s application of La.R.S. 23:1142 to its claims against LUBA.

Rebel Distributors/Physician Partner’s Third Assignment of Error

Finally, Rebel Distributors/Physician Partner argue that the WCJ erred in not awarding it penalties and attorney fees based on LUBA’s failure to pay the amounts charged for Ms. Doueet’s medications.

Rebel Distributors/Physician Partner’s argument on this issue is limited to three sentences: “LUBA has paid nothing , for medications which were reasonable and necessary to its compensable Workers’ Compensation Claimants. This is contrary to law. LUBA did not even offer to pay what they thought may be a lesser amount they could pay through their pharmacy benefit manager. They simply paid nothing!”

LUBA’s argument, on the other hand, is based on its claim that the employer/insurer has the right to designate the pharmacy through which its workers’ compensation claimants receive the medications necessary for treating their work-related injuries. It further argues that its actions in denying payment of Rebel Distributors/Physician Partner’s claims were neither unreasonable nor arbitrary and capricious as the claims presented novel legal issues and it provided reasonable notice to Rebel Distributors/Physician Partner and Dr. Heard/Clinic that it would no longer authorize or pay for the medications dispensed by Dr. Heard/Clinic, which notice was ignored by Dr. Heard/Clinic.

| inThe WCJ’s reasons for denying Rebel Distributors/Physician Partner’s claims for penalties and attorney fees were threefold. In her oral reasons for judgment, she stated:

I find that the employer and insurer in these matters had reasonable legal justification under various grounds. One, whether the plaintiff met the definition of healthcare provider. Two, the fact that the insurer had notified the plaintiff that it would not pay, and plaintiff continued to dispense. And that’s the reason I went with the Seven Hundred and Fifty Dollar cap. I don’t know that as a practical matter, if it makes any difference; but I do note that the plaintiff, Dr. Heard, continued to dispense after they were informed there would not be any payment forthcoming. And three, because of the issue of whether the employer’s right to choose a pharmacy is an unfettered one.

Without addressing LUBA’s right to choose the dispensing pharmacy, as that issue is not before us, we find no error in the WCJ’s denial of penalties and attorney fees. With regard to penalties and attorney fees, La.R.S. 23:1142 provides in part:

D. Fees and expenses. If the payor has not consented to the request to incur more than a total of seven hundred fifty dollars for any and all nonemergen-cy diagnostic testing or treatment when such consent is required by this Section, and it is determined by a court having jurisdiction in an action brought either by the employee or the health care provider that the withholding of such consent was arbitrary and capricious, or without probable cause, the employer or the insurer shall be liable to the employee or health care provider bringing the action for reasonable attorney fees related to this dispute and to the employee for any medical expenses so incurred by him for an aggravation of the employee’s condition resulting from the withholding of such health care provider services.
E. Exception. In the event that the payor has denied that the employee’s injury is compensable under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury.

Also, at the time of these transactions, La.R.S. 23:1201 (emphasis added) provided with regards to penalties and attorney fees:

E. Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.
|nF. Except as otherwise provided in this Chapter, failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
(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.
(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.

A workers’ compensation claim has been “reasonably controverted” if the employer/insurer “possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant[.]” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890. Stated another way, the employer/insurer “must have some valid reason or evidence upon which to base [its] denial of benefits.” Id. Furthermore, the decision to cast an employer with penalties and attorney fees is a question of fact subject to the 112manifest error standard of review. Brown v. Lafayette Ass’n of Retarded Citizens, Inc., 11-1595 (La.App. 3 Cir. 6/20/12), 94 So.3d 950.

The WCJ, a three-judge panel of this court, and a divided supreme court considered the novel legal issues raised in this matter (the definition of a health care provider, the assignability of workers’ compensation claims, and the novation of the agency agreement) and reached different conclusions on the merits. Given this background, we find that LUBA reasonably controverted the claims at issue. Such a finding also precludes a finding that LUBA was arbitrary and capricious in failing to pay the claims at issue. We find no manifest error in the WCJ’s denial of penalties and attorney fees and no merit in this assignment of error.

LUBA’s Remaining Issues on Appeal

In its answer to the appeal, LUBA asserted that the WCJ erred in granting Rebel Distributors/Physician Partner a new trial even after it had rejected the motion for new trial. In both its answer to the appeal and its assignments of error, LUBA asserted that the WCJ erred in rejecting its exception of res judicata. Finally, in its remaining assignment of error, LUBA asserts that the WCJ erred in signing a second judgment rejecting its exceptions and summary judgment after having, on the day before, signed a judgment rejecting the motion for new trial filed by Rebel Distributors/Physician Partner.

While we did not directly address this issue in our original opinion, we set forth what we construed as the procedural history related to the new trial issue and, in doing so, stated the following:

The trial record before us presents a most confusing procedural history, and the minutes of the various hearings are woefully lacking in detail concerning what issue the WCJ considered on a given day in court as well as the disposition of that issue. Our understanding of the record is that on July 16, 2010, the WCJ granted the initial peremptory exception of no right of action filed by Acadiana/LUBA in the 11sresponse to the original Form 1008, despite having allowed the first amendment to the original Form 1008 the day before. We interpret this action to mean that the WCJ concluded that the change of the plaintiffs identification to Rebel Distributors/Physician Partner was not sufficient to cure the defect raised by the exception of no right of action, and we agree with that conclusion. We also agree that the WCJ had full authority to grant Rebel Distributors/Physician Partner and/or Physician Partner forty-five days to amend the claim to state a right of action. See La.Code Civ.P. art. 934. Judgment granting the exception of no right of action was signed by the WCJ on August 12, 2010, and the forty-five days began to run from that day. However, before the forty-five days had run, Rebel Distributors/Physician Partner timely filed a motion for new trial. Additionally, before the motion was ruled upon, Rebel Distributors/Physician Partner filed its second amendment to the original Form 1008 and provided the WCJ with the November 16, 2010 agreement.
As we appreciate the WCJ’s actions with regard to the December 15, 2010 hearing and the written judgments arising from that hearing, the WCJ combined all of the prior issues with issues not yet heard and disposed of everything at one time. To reconcile the actions of the WCJ in this regard, it is necessary to consider each ruling independently of the other.
We conclude that the WCJ’s denial of Physician Partner’s motion for new trial was rendered before the consideration of any of the other pending issues. That is to say, the first amendment to the original Form 1008 did not establish that Physician Partner or the newly named plaintiff, Rebel Distributors/Physician Partner was the right party to institute this action. Thus, the WCJ concluded that a distributor or packager of pharmaceuticals who has been assigned the ownership of the claim of a licensed Louisiana physician cannot maintain an action under the Louisiana Workers’ Compensation law, because neither is a health care provider as defined in La. R.S. 28:1021(6).
We read the record to conclude that having made that decision, the WCJ then ordered that the second amendment of the original Form 1008 be filed. The WCJ then concluded that the filing and the November 16, 2010 agreement retroactively changed the June 29, 2007 agreement to one of agency, and that the agent (Rebel Distributors/Physician Partner) could bring this action on behalf of its principal (Dr. Heard/Clinic). Declaring the capacity defect cured, the WCJ then rejected the exceptions of no right and no cause of action and the motion for summary judgment filed by Acadiana/LUBA.

Rebel Distribs., 129 So.3d at 90-91.

| uThe judgments complained of by LUBA arise from this same convoluted procedural history. As stated in our prior opinion:

In a written judgment executed on February 21, 2011, the WCJ denied the motion for new trial filed by Physician Partner and granted Rebel Distributors’/Physician Partner’s motion to file the second supplementation and amendment of the original Form 1008. On that same day, the WCJ executed a separate order granting a January 19, 2011 motion filed by Rebel Distributors/Physician Partner to consolidate eighteen other cases with the instant case. The next day, the WCJ issued a second judgment denying Acadia-na’s/LUBA’s motion for summary judgment, its exception of no cause of action, and its exception of no right of action.

Id. at 87.

We continue to construe the procedural history in this manner and find no merit in any of LUBA’s remaining arguments on appeal.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the workers’ compensation judge in all respects. The costs of this appeal are assessed equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and Acadiana Plastics Manufacturing, Inc.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons, with the exceptions of No. 12-923 and No. 12-924.

THIBODEAUX, Chief Judge,

dissenting in part.

hThe majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 23:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:1203(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Mary Doucet) v. LUBA.
    No. 12-927.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellant, Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant, Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, For Defendant/Appellee, Luba Casualty Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

IjFor the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir. 4/2/14), 137 So.3d 91, 2014 WL 1317609, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendant, LUBA Casualty Insurance Company.

AFFIRMED.

THIBODEAUX, Chief Judge,

dissenting in part.

|TThe majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 23:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:1203(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Verna Lambert). v. LUBA WORKERS’ COMP. et al.
    No. 12-912.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellant: Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant: Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellees: LUBA Casualty Insurance Company J & J Exterminating Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

It For the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir. 4/2/14), 137 So.3d 91, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and J & J Exterminating Company.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons, with the exceptions of No. 12-923 and No. 19-924.

THIBODEAUX, Chief Judge,

dissenting in part.

_JjThe majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 23:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:1203(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Eric Schenk) v. LUBA CASUALTY INSURANCE COMPANY et al.
    No. 12-910.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant, Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellees, LUBA Casualty Insurance Company Metro Boating.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

| iFor the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir. 4/2/14), 137 So.3d 91, 2014 WL 1317609, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and Metro Boating.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons, with the exceptions of No. 12-923 and No. 12-924.

THIBODEAUX, Chief Judge,

dissenting in part.

IjThe majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 23:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:1203(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too re-strietively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Oran Breaux) v. LUBA WORKERS’ COMP. et al.
    No. 12-911.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant: Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellees: LUBA Casualty Insurance Company, Tilden Bonin Contractors.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

hFor the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir. 4/2/14), 137 So.3d 91, 2014 WL 1317609, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and Tilden Bonin Contractors.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons, with the exceptions of No. 12-923 and No. 12-924.

THIBODEAUX, Chief Judge,

dissenting in part.

hThe majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 23:1142. In my view, that is erroneous.

Louisiana Revised - Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:1203(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Mona Julien) v. LUBA WORKERS’ COMP. et al.
    No. 12-913.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for plaintiff/appellant, Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for plaintiff/appellant, Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for defendants/appellees, LUBA Casualty Insurance Company Camelot of Brous-sard.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

|TFor the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir. 4/2/14), 137 So.3d 91, 2014 WL 1317609, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and Camelot of Broussard.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons, with the exceptions of No. 12-923 and No. 12-924.

THIBODEAUX, Chief Judge,

dissenting in part.

11The majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 23:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:1203(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Barbara Layne) v. LUBA WORKERS’ COMP. et al.
    No. 12-914.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant, Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellees, Luba Casualty Insurance Company Camelot of Brous-sard.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

b For the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir. 4/2/14), 137 So.3d 91, 2014 WL 1317609, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and Camelot of Broussard.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons, with the exceptions of No. 12-923 and No. 12-924.

THIBODEAUX, Chief Judge,

dissenting in part.

hThe majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 23:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergeney diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:12Q3(A)(B)(D) and (E) ah specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Roy Jamon) v. LUBA WORKERS’ COMP. et al.
    No. 12-915.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant, Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellees, LUBA Casualty Insurance Company, Evergreen Lawn Care.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

hFor the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir. 4/2/14), 137 So.3d 91, 2014 WL 1317609, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and Evergreen Lawn Care.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons, with the exceptions of No. 12-923 and No. 12-924.

THIBODEAUX, Chief Judge,

dissenting in part.

BThe majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 23:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:1203(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Ulysse Shelvin) v. LUBA et al.
    No. 12-916.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellant, Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant, Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellees, LUBA Casualty Insurance Company Prejean’s Wholesale Meats, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

hFor the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir. 4/2/14), 137 So.3d 91, 2014 WL 1317609, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and Prejean’s Wholesale Meats, Inc.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons, with the exceptions of No. 12-923 and No. 12-924.

THIBODEAUX, Chief Judge,

dissenting in part.

_JjThe majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 28:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:1203(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Howard Citizen) v. LUBA WORKERS’ COMP. et al.
    No. 12-918.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, Counsel For Plaintiff/Appellant: Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant: Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellees: Luba Casualty Insurance Company Carriere Construction, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

l,For the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir. 4/2/14), 137 So.3d 91, 2014 WL 1317609, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and Carriere Construction, Inc.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons, with the exceptions of No. 12-923 and No. 12-924.

THIBODEAUX, Chief Judge,

dissenting in part.

hThe majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 23:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:1203(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Ty Boudoin) v. LUBA WORKERS’ COMP., et al.
    No. 12-919.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant: Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, North Metairie, LA, for Defendants/Appellees: LUBA Casualty Insurance Company Sweet V Farms, LLC.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

_JjFor the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir.4/2/14), 137 So.3d 91, 2014 WL 1317609, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and Sweet V Farms, LLC.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons, with the exceptions of No. 12-928 and No. 12-924.

THIBODEAUX, Chief Judge,

dissenting in part.

| jThe majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 28:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:12Q3(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Rene Wiggins) v. LUBA WORKERS’ COMP, et al.
    No. 12-920.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, 70501 for Plaintiff/Appellant: Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant: Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellees: LUBA Casualty Insurance Company Cajun Sugar Cooperative, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

hFor the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir.4/2/14), 137 So.3d 91, 2014 WL 1317609, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and Cajun Sugar Cooperative, Inc.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons, with the exceptions of No. 12-923 and No. 12-924.

THIBODEAUX, Chief Judge,

dissenting in part.

| ]The majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 23:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:1203(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.

      . The correct first name of the injured employee is Rena.


text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Miguel Susano) v. LUBA WORKERS’ COMP. et al.
    No. 12-921.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for PlaintiffAppellant: Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant: Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellees: LUBA Casualty Insurance Company, Juan Burciaga, Sr. General Contractor, LLC.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

hFor the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir.4/2/14), 137 So.3d 91, 2014 WL 1317609, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and Juan Burciaga, Sr. General Contractor, LLC.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons, with the exceptions of No. 12-923 and No. 12-924.

THIBODEAUX, Chief Judge,

dissenting in part.

1 [The majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 28:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:1203(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Troy Janice) v. LUBA CASUALTY INS. COMPANY et al.
    No. 12-922.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/App ellant: Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellees: LUBA Casualty Insurance Company UTEC of Lafayette, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

hFor the reasons assigned in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 12-909 (La.App. 3 Cir. 4/2/14), 137 So.3d 91, we affirm the judgment of the workers’ compensation judge in all respects. We assess costs of this appeal equally between the plaintiff, Rebel Distributors Corp., Inc. d/b/a Physician Partner and Pharmacy Partner, and the defendants, LUBA Casualty Insurance Company and UTEC of Lafayette, Inc.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons, with the exceptions of No. 12-923 and No. 12-924.

THIBODEAUX, Chief Judge,

dissenting in part.

|,The majority affirms the judgment of the Office of Workers’ Compensation limiting the payment of the outstanding pharmacy bill to $750.00 pursuant to La.R.S. 23:1142. In my view, that is erroneous.

Louisiana Revised Statutes 23:1142(B)(1) and (B)(2)(a) repeatedly refer to “diagnostic testing” and “treatment.” It does not, as the majority opinion concedes, include prescription medication as part of nonemergency diagnostic testing or treatment. The diagnostic testing and treatment are the only matters that are subject to the $750.00 cap, not medication.

The more specific provisions of Part II of Chapter 10 entitled “Benefits” should properly apply. Louisiana Revised Statutes 23:1203(A)(B)(D) and (E) all specifically refer to “drugs,” “supplies,” or “services.” The majority, in my view, is interpreting La.R.S. 23:1203 much too restrictively and focuses undue attention on references to “employer” and “employee.”

For the foregoing reasons, I respectfully dissent in part.


author: PETERS, J.

text:
    REBEL DISTRIBUTORS CORP., INC. d/b/a Physician Partner and Pharmacy Partner (Shirley Prejean) v. LUBA CASUALTY INS. COMPANY et al.
    No. 12-923.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellant Rebel Distributors Corporation, Inc. d/b/a, Physician Partner and Pharmacy Partner.
    W. Michael Adams, Stacey D. Williams, Blanchard, Walker, O’Quinn & Roberts, Shreveport, LA, for Plaintiff/Appellant Rebel Distributors Corporation, Inc. d/b/a, Physician Partner and Pharmacy Partner.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendants/Appellees LUBA Casualty Insurance Company, Rosewood Retirement & Assisted Living.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

| T This matter is one of nineteen consolidated appeals on remand from the supreme court following its decision in Rebel Distributors, Inc. v. LUBA Workers’ Compensation, 13-749 (La.10/15/13),-So.3d -. In its remand to this court, the supreme court ordered that we consider the remaining issues raised by the parties which were not resolved by its decision. However, after reviewing the record, we note that this claim was dismissed by Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner at the start of the trial on the merits. Because this matter was dismissed, we reverse the judgment of the workers’ compensation judge and render judgment in favor of Rosewood Retirement & Assisted Living and LUBA Casualty Insurance Company. We assess all costs of this appeal to Rebel Distributors Corporation, Inc. d/b/a Physician Partner and Pharmacy Partner.

REVERSED AND RENDERED.