author:
GREMILLION, Judge.
      THIBODEAUX, Chief Judge,

text:
    STATE of Louisiana v. Nathaniel Wayne CARMOUCHE.
    No. 14-215.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 2014.

      James C. Downs, District Attorney-Ninth Judicial District Court, Alexandria, LA, for Appellee, State of Louisiana.
    Brent A. Hawkins, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Nathaniel Wayne Car-mouche.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| defendant, Nathaniel Wayne Car-mouche, engaged in various sexual acts with his daughter, F.C., who was five years old at the time of the trial. The State filed a bill of indictment charging Defendant with aggravated rape, a violation of La.R.S. 14:42; sexual battery of a victim under thirteen years of age, a violation of La.R.S 14:43.1(A)(2) and (C)(2); and two counts of aggravated incest, violations of La.R.S. 14:78.1. A jury found Defendant guilty as charged on all counts.

The trial court sentenced Defendant to life in prison for aggravated rape, twenty-five years at hard labor for sexual battery of a victim under thirteen years of age, and twenty-five years at hard labor for each count of aggravated incest. The sentences are to run concurrently.

Defendant now seeks review by this court, assigning a single error: The trial court erred in permitting testimony regarding his other crimes or bad acts. For the following reasons, Defendant’s convictions are affirmed.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, there is an error patent concerning Defendant’s sentence for aggravated incest.

Defendant was charged with and convicted of two counts of aggravated incest. Both the court minutes of sentencing and the sentencing transcript reveal that a single sentence of twenty-five years was imposed for aggravated incest. At sentencing, after imposing the sentences for aggravated rape and sexual battery, the court imposed the sentence for aggravated incest as follows:

pCount III and IV, aggravated incest. The sentence of the Court is you’re to serve 25 years at hard labor with the Louisiana Department of Corrections. Those 25 years are without benefit of probation, parole, or suspension of sentence. So — and all of those will run concurrent, Ms. Clerk.

This court has previously held that a separate sentence must be imposed for each count:

Louisiana Code of Criminal Procedure Article 879 states, “[ijf a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.” Where the trial court has imposed one sentence for multiple counts, this court has previously set aside the defendant’s sentence on those counts as indeterminate and remanded the case to the trial court for resentencing on each count. State v. Monceaux, 04-449 (La.App. 3 Cir. 10/20/04), 885 So.2d 670.

State v. Grace, 10-1222, p. 19 (La.App. 3 Cir. 4/6/11), 61 So.3d 812, 825-26, writ denied, 11-961 (La.10/21/11), 73 So.3d 382.

Accordingly, Defendant’s twenty-five year sentence for aggravated incest must be vacated and the case remanded for resentencing on each of the two counts of aggravated incest.

ASSIGNMENT OF ERROR

In his lone assignment of error, Defendant argues that the trial court erred in permitting testimony regarding his other crimes or bad acts. Generally, such evidence is barred by La.Code Evid. art. 404(B)(1), which states in pertinent part:

Except as provided in Article 412 [rape shield law], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

| sHowever, La.Code Crim.P. art 412.2(A) states:

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

Defendant argues that State witness Jessica Briley, an adult, should not have been allowed to testify regarding an incident in which she alleged Defendant drove next to her as she was walking, initiated a sexually-suggestive conversation, and masturbated in her view. On appeal, Defendant claims it was error for the trial court to allow this testimony, citing State v. Hatcher, 372 So.2d 1024 (La.1979), and State v. Pollard, 98-1376 (La.App. 4 Cir. 2/9/00), 760 So.2d 362.

Based on Hatcher and Pollard, Defendant first argues it is “questionable” whether there was clear and convincing evidence that this incident occurred. However, this court has ruled that clear and convincing evidence is not required; instead, a preponderance of the evidence standard applies. State v. Cash, 03-858 (La.App. 3 Cir. 12/10/03), 861 So.2d 851, writ denied, 04-27 (La.4/30/04), 872 So.2d 472, and writ denied, 04-232 (La.5/7/04), 872 So.2d 1080. Further, a single witness may establish preponderance of the evidence. Motors Ins. Co. v. Marquette Cas. Co., 162 So.2d 47 (La.App. 1 Cir.), writ refused, 246 La. 79, 163 So.2d 357 (La.1964). Additionally, the testimony of a single witness may support a finding of guilt, even in the context of the higher reasonable-doubt standard. See State v. Bright, 98-398 (La.4/11/00), 776 So.2d 1134, writ granted, 03-2796 (La.1/30/04), 864 So.2d 638, reversed on other grounds, 02-2793, 03-2796 (La.5/25/04), 875 So.2d 37.

|4Further, a trial court’s decision regarding admissibility is subject to a deferential standard of analysis:

It is the responsibility of the court to exercise reasonable control over the presentation of the evidence. The trial court is left with wide discretion as to the admissibility of evidence under pertinent evidence rules. The decision of the trial court will not be overturned absent a clear abuse of discretion by the trial judge. Accord, State v. Prudholm, 446 So.2d 729 (La.1984); State v. Brown, 527 So.2d 12 (La.App. 3d Cir.1988).

State v. Clay, 576 So.2d 1099, 1101 (La.App. 3 Cir.), writ denied, 580 So.2d 669 (La.1991).

At the pretrial hearing held on September 9, 2013, the following colloquy occurred:

MR. WILLSON [prosecutor]:
That’s correct, Judge. And that’s, one of the — and that’s contained in the confession that we introduced ...
THE COURT:
Yeah.
MR. WILLSON:
... where he admits to doing that with this victim. And it’s almost identical. The difference is you’ve got an older victim. We think that, that juvenile offenses are admissible because of the age of the victim — one, this began when they were six and one began when they were ten — eight or ten. I think they’re signature crimes. The only difference is one was his sister; this is his daughter.
THE COURT:
And this other one is, uh, identical to what he stated in his statement to the police.
MR. WILLSON:
Right. That’s what Detective Hebb was here for. She took the confession from him and he confessed to doing that, uh, very thing — well. There were a couple of slight differences. |sHe actually — this, with this victim he indicates in his confession that he had her masturbate him. And the Grant Parish documents indicate that he did that in front of a victim. The victim is here to testify. They’re outside the courtroom.
MR. KUTCH [defense counsel]:
The victim in there was over the age of 21. I think that is the significance difference in and of itself. Now, one year before this ...
THE COURT:
I’m not concerned about the ages of the victim. I’m concerned about his behavior and if that behavior is evidence to show that he had knowledge of what he was doing, a system, and intent or lustful disposition.
MR. KUTCH:
It is a lustful disposition towards underage children.
THE COURT:
Well, the first motion involving the juvenile, that’s obviously, admissible because it shows his lustful disposition of a juvenile, and also, knowledge, system, scheme, and intent on his part and habit under 404(b). The second matter involving the lady, February of 2010, Jessica Briley, um, I think its admissible for the same reason except for lustful disposition. So I would allow both of those previous crimes. Remind me I need to give a limiting instruction to the jury.

Louisiana Code of Criminal Procedure Article 412.2 presents a relaxed standard for admissibility in sexual assault cases. This court has discussed the article at some length:

The purpose of the newly enacted Article 412.2 was discussed by the Louisiana Supreme Court at length in State v. Williams, 02-1030 (La.10/15/02), 830 So.2d 984. The issue in Williams, however, was whether for the purpose of Article 412.2, a hearing was required by State v. Prieur, 277 So.2d 126 (La.1973). Historically, evidence of | (¡prior bad acts (propensity evidence) were inadmissible to show that the accused more than likely acted in conformity therewith. The Williams court found as follows:
The transcript of the committee hearing reveals that Act 1130 was prompted primarily by two decisions of this Court, State v. McArthur, 97-2918 (La.10/20/98), 719 So.2d 1037, and State v. Kennedy, 2000-1554 (La.4/3/01), 803 So.2d 916. Both cases involved prosecutions for aggravated rape in which the state sought to introduce evidence of other sexual offenses committed by the defendants pursuant to what the state labeled a “lustful disposition” exception to other crimes evidence. In both cases, this Court refused to recognize the so-called “lustful disposition” exception to Article 404⅛ other crimes prohibition, but, in doing so, noted that the evidence sought to be introduced would be admissible if Louisiana.had a rule similar to Federal Rule of Evidence 413. The enactment of Article 412.2 was apparently the legislature’s response to this Court’s statements in McArthur and Kennedy as the language of Article 412.2 closely follows that of Federal Rule of Evidence 413. However, one distinction exists between the federal rule and the Louisiana rule. Federal Rule of Evidence 413 provides that the “defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.” Conversely, Louisiana’s counterpart, Article 412.2 provides that the evidence “may be admissible ... subject to the balancing test provided in Article 403.” Although the legislature opted not to make the evidence automatically admissible, it nonetheless determined evidence of past sexual behavior of an accused should not be totally foreclosed to the state. Prior to Article 412.2, evidence pertaining to other crimes in sexual assault could only be admitted under the limited exceptions of 404(B). The committee minutes indicate the senators were concerned with the defendant’s right not to be ambushed with evidence of prior sexually deviant behavior, but were even more concerned regarding the increase in sexual assaults on minors. In an attempt to balance the latter concerns, the committee inserted language into the final draft of the bill, which is in the current statute, requiring the state to provide “reasonable notice” to the defendant regarding the information to be introduced. The committee elected to insert this notice requirement, but did not insert a requirement that a hearing be held. La.Code Evid. art. 412.2 does not contain any language requiring a hearing. |7The only requirement contained within the statute is that the evidence be deemed admissible pursuant to La. Code Evid. art. 403. As we stated in McArthur and reiterated in Kennedy, we desist from the “exhortation to legislate when our legislature has chosen to leave the law as written.”
Id. at 988-89. (Footnotes omitted; emphasis as found in the original.)

State v. Brown, 08-1747, pp. 12-13 (La.App. 3 Cir. 5/12/04), 874 So.2d 318, 326-327, writ denied, 04-1413 (La.l1/8/04), 885 So.2d 1118.

The State cites a 2011 supreme court case which reversed this court’s ruling regarding the application of La.Code Crim. P. art 412.2. The victim was a female under seventeen, and “other crimes evidence” regarding a male over seventeen was admitted trial. The supreme court explained:

[I]n enacting Article 412.2, the Legislature did not see fit to impose a restriction requiring such evidence to meet a stringent similarity requirement for admissibility. We have previously examined the legislative history behind the Article in State v. Williams, 02-1030 (La.10/15/02), 830 So.2d 984. In Williams, this Court noted the enactment of the Article was prompted primarily by two decisions of this Court, State v. McArthur, 97-2918 (La.10/20/98), 719 So.2d 1037, and State v. Kennedy, 00-1554 (La.4/3/01), 803 So.2d 916. Both cases involved prosecutions for aggravated rape in which the State sought to introduce evidence of other sexual offenses committed by the defendants pursuant to what the State labeled a “lustful disposition” exception to other crimes evidence. In both cases, this Court refused to recognize the so-called “lustful disposition” exception to Article 404’s other crimes prohibition, but, in doing so, noted that the evidence sought to be introduced would be admissible if Louisiana had a rule similar to Federal Rule of Evidence 413. This Court stated “the- enactment of Article 412.2 was apparently the legislature’s response to this Court’s statements in McArthur and Kennedy as the language of Article 412.2 closely follows that of Federal Rule of Evidence 413.” Williams, 830 So.2d at 986. Thus, Article 412.2 was enacted to loosen restrictions on “other crimes” evidence, and to allow evidence of “lustful disposition” in cases involving sexual offenses.
We also do not find the evidence to be so prejudicial as to warrant exclusion under La. C.E. art. 403. La. C.E. 403 provides: | ¿‘Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” Regarding the proper balancing between the probative value of evidence and its prejudicial effect required by Article 403, this Court has explained:
Any inculpatory evidence is “prejudicial” to a defendant, especially when it is “probative” to a high degree. As used in the balancing test, “prejudicial” limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. The term “unfair prejudice,” as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.
State v. Rose, 06-0402 (La.2/22/07), 949 So.2d 1286, 1244 (internal citations removed).
The court of appeal concluded that any probative value of this evidence was far outweighed by the danger this evidence would unfairly prejudice defendant in the eyes of the jury leading it to render a guilty verdict because of the prior acts, rather than on the strength of the evidence of the offense for which he was charged. The court found the evidence was impermissibly introduced to attack the defendant’s character. We disagree. Considering the purpose behind Article 412.2, we find the evidence was properly admitted by the trial court. We do not find the admission of this evidence alone could “lure” the jury into finding defendant guilty of the charged incest with his son. Moreover, any possible prejudice resulting from the introduction of evidence of BC’s age certainly pales in comparison with evidence regarding defendant’s extremely violent treatment of BC. Given the evidence of defendant’s violent nature, his violence towards BC, and evidence of his prior conviction for domestic battery of his first wife, we do not find evidence of BC’s age to be overly prejudicial.

State v. Wright, 11-141, pp. 12-15 (La.12/6/11), 79 So.3d 309, 317-19 (footnotes omitted).

In Wright, the victim and the victim of the “other crime” were both adolescents who lived under the same roof with the defendant. Although the present case could be distinguished, since the other bad act at issue involves an |9adult having no other association with Defendant or the victim, the State’s evidence in the present case is strong enough that any error would be harmless.

The jury viewed a video of the young victim in which she recounted that Defendant touched her “bad part” and “bootie” with his “bad part” or “bad spot,” and that she put her mouth on his “bad part” and that a bad-tasting substance came out of it. She indicated on diagrams that “bad part” or “bad spot” referred to their genitalia. Also, in an interview with a detective, Defendant admitted having the victim masturbate him. Further, the jury heard a different set of “other crimes” evidence that Defendant does not challenge on appeal. A statement Defendant made during an earlier investigation showed that when he was fifteen years old, he engaged in sex acts with his two sisters. At the time, one sister was thirteen years old and the other sister was eight. Also, unlike Brown, the present case lacks any indication that the jury was confused or had difficulty reaching its verdict. Further, the Pollard case relied on by Defendant predates the adoption of La.Code Evid. 412.2. Thus, even if error occurred in the present case, it was harmless.

DECREE

Defendant’s convictions and the sentences for aggravated rape and sexual battery of a victim under thirteen years of age are affirmed. Defendant’s twenty-five year sentence for aggravated incest is vacated and the case is remanded for resen-tencing on each of the two counts of aggravated incest.

CONVICTIONS AND SENTENCES FOR AGGRAVATED RAPE AND SEXUAL BATTERY OF A VICTIM UNDER THIRTEEN YEARS OF AGE ARE AFFIRMED.

CONVICTIONS FOR AGGRAVATED INCEST AFFIRMED; REMANDED FOR RESENTENCING.

THIBODEAUX, Chief Judge,

concurring.

| iWhile I agree with the result reached by the majority, the “other crimes” evidence should not have been allowed because of the age disparity of the victims. However, the admission of this evidence was harmless.

      . Initials are used to protect the identity of the minor pursuant to La.R.S. 46:1844(Z)(2).

      . Defendant submitted a pro se brief on June 9, 2014, assigning three assignments of error. We decline to address these assignments of error as untimely.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    Peggy EDWARDS v. PLANT WORKS, et al.
    No. 13-1112.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 6, 2014.
    Jeffrey J. Warrens, Amanda H. Carmon, Johnson, Rahman, & Thomas, Baton Rouge, LA, for Defendants/Appellants, Plant Works Louisiana Workers’ Compensation Corporation.
    Jennifer B. Valois, Barber Law Firm, Lafayette, LA, for Plaintiff/Appellee, Peggy Edwards.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   PETERS, J.

liWe consider this matter on remand from the supreme court for reconsideration in light of its opinion in Church Mutual Insurance Company v. Dardar, 13-2351 (La.5/7/14), 145 So.3d 271, 2014 WL 1800067, and Cook v. Family Care Services, Inc., 13-2326 (La.5/7/14), 144 So.3d 969, 2014 WL 1800038. After complying with the supreme court order on remand, we affirm the judgment of the workers’ compensation judge.

DISCUSSION OF THE RECORD

The facts of this matter were fully addressed in our prior opinion, Edwards v. Plant Works, 13-1112 (La.App. 3 Cir. 2/12/14),—So.3d—, 2014 WL 551625, and we adopt those facts as though fully incorporated herein. In our decision, we held that while the provisions of La.R.S. 23:1203.1 were procedural in nature, their substantive effect required prospective application only. Accordingly, we held that the workers’ compensation judge (WCJ) was bound to follow the law in effect at the time of Ms. Edwards work-related injury; thus, we found no error in the WCJ’s judgment ordering an independent medical examination of Ms. Edwards.

Subsequent to our decision, Plant Works and LWCC (referred to collectively as Plant Works) sought and were granted writs by the supreme court. Edwards v. Plant Works, 14-484 (La.6/13/14), 140 So.3d 712. In granting the writ, the supreme court vacated our prior opinion and ordered that we reconsider Plant Works’ appeal in light of its opinions in Church Mutual and Cook. In Church Mutual, 145 So.3d at 287, p. 25, the supreme court held that La.R.S. 23:1203.1:

|2[I]s a procedural vehicle that concerns the procedure for enforcing a substantive right. As such, it does not impinge on or lessen the substantive right to necessary medical treatment conferred by La. R.S. 23:1203. Rather, it applies prospectively to all requests for medical treatment and/or disputes arising out of requests for medical treatment arising after the effective date of La. R.S. 23:1203.1 and the medical treatment schedule, regardless of the date of accident.

Accordingly, we will reconsider Plant Works’ appeal in light of this ruling.

OPINION

On appeal, Plant Works argues that the WCJ legally erred in ordering the IME because “LSA-R.S. 23:1203.1 places authority for medical necessity determinations with the Office of Workers’ Compensation Medical Director rather than with an Independent Medical Examiner.” As noted in our prior opinion, this assignment of error raises a question of law; therefore, we will review this issue in order to determine whether the WCJ was legally correct in her ruling. Orr v. Acad. La. Co., L.L.C., 12-1411 (La.App. 3 Cir. 5/1/13), — So.3d—, 2013 WL 1809878.

Louisiana Revised Statutes 23:1203.1, provides, in part, the basis for the medical treatment schedule and the procedure to be followed whenever medical treatment is recommended in relation to an employee’s work-related injury(ies):

D. The medical treatment schedule shall be based on guidelines which shall meet all of the following criteria:
(1) Rely on specified, comprehensive, and ongoing systematic medical literature review.
(2) Contain published criteria for rating studies and for determining the overall strength of the medical evidence, including the size of the sample, whether the authors and researchers had any financial interest in the product or service being studied, the design of the study and identification of any bias, and the statistical significance of the study.
(3) Are current and the most recent version produced, which shall mean that documented evidence can be produced or verified that the guideline was developed, reviewed, or revised within the previous five years.
|s(4) Are interdisciplinary and address the frequency, duration, intensity, and appropriateness of treatment procedures and modalities for all disciplines commonly performing treatment of employment-related injuries and diseases.
(5) Are, by statute or rule, adopted by any other state regarding medical treatment for workers’ compensation injuries, diseases, or conditions.
I.After the promulgation of the medical treatment schedule, throughout this Chapter, and notwithstanding any provision of law to the contrary, medical care, services, and treatment due, pursuant to R.S. 23:1203, et seq., by the employer to the employee shall mean care, services, and treatment in accordance with the medical treatment schedule. Medical care, services, and treatment that varies from the promulgated medical treatment schedule shall also be due by the employer when it is demonstrated to the medical director of the office by a preponderance of the scientific medical evidence, that a variance from the medical treatment schedule is reasonably required to cure or relieve the injured worker from the effects of the injury or occupational disease given the circumstances.
J. (1) After a medical provider has submitted to the payor the request for authorization and the information required by the Louisiana Administrative Code, Title 40, Chapter 27, the payor shall notify the medical provider of their action on the request within five business days of receipt of the request. If any dispute arises after January 1, 2011, as to whether the recommended care, services, or treatment is in accordance with the medical treatment schedule, or whether a variance from the medical treatment schedule is reasonably required as contemplated in Subsection I of this Section, any aggrieved party shall file, within fifteen calendar days, an appeal with the office of workers’ compensation administration medical director or associate medical director on a form promulgated by the director. The medical director or associate medical director shall render a decision as soon as is practicable, but in no event, not more than thirty calendar days from the date of filing.
K. After the issuance of the decision by the medical director or associate medical director of the office, any party who disagrees with the decision, may then appeal by filing a “Disputed Claim for Compensation”, which is LWC Form 1008. The decision may be overturned when it is shown, by clear and convincing evidence, the decision of the medical director or associate medical director was not in accordance with the provisions of this Section.

1 ¿During the hearing on Ms. Edwards’ appeal from the Medical Director’s decision, the WCJ initially indicated that she would attempt to expedite the matter by forwarding the psychological report directly to the Medical Director in order to determine if the report had been considered by the Medical Director in his decision. However, once the WCJ learned of Ms. Edwards’ subsequent hospitalization, she determined that the entire matter, including the newer medical records, should be submitted to the Medical Director for reconsideration. At this point, counsel for Ms. Edwards questioned whether an IME would be appropriate “to review the claimant for ... the issues relating to this surgery, because quite frankly, it’s a very complex procedure, and she’s already got substantial instrumentation.” Upon query from the WCJ, Plant Works objected to the request since the only question before the WCJ pertained to the medical necessity of the requested surgery.

In ordering the IME, the WCJ stated the following:

Okay. Well, then, I’m going to appoint the IME with the understanding that this is unusual. It is atypical due to the nature of the proceeding, or the injury, or proposed treatment; but partially so that we can have something going on because of the fact that I have not received what I needed from the medical director, and because of that, we’re delayed and we have to go back.
So, understand, Ms. Valois that, of course, an IME is never, by law determinative. It’s always part of what is considered.
But I don’t think it can hurt in this case to have something in the nature of a second opinion that, eventually, may be submitted to the medical director, also. In the meantime, follow what is in process, because I do think that the medical director needs to look at the hospitalization records, but this will give us some enlightenment, I guess, while we wait for an all-fours determination from the medical director.
In recognition of the circumstances here, I am appointing an IME, which is something I typically wouldn’t be inclined to do. I am|fidoing that in recognition of the unfortunate circumstances we’re dealing with.
For the reasons we have discussed, I am denying the appeal in this matter under this, what I have before me. My first option would be, typically, to do the remand. But considering the advent of new, and I believe important, medical evidence, it would not further anyone’s interests to do the remand at this time. I believe there needs to be a resubmission with the new medical records.
However, in recognition of these unfortunate circumstances, I am going to appoint an IME to give me information on the reasonableness and necessity of the surgery requested.

The WCJ possesses the authority, as recognized by Plant Works’ counsel during the hearing, to order an IME of the injured worker pursuant to La.R.S. 23:1123, which provides:

If any dispute arises as to the condition of the employee, or the employee’s capacity to work, the director, upon application of any party, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director. The medical examiner shall report his conclusions from the examination to the director and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.

While we recognize that a 2012 amendment to La.R.S. 23:1123 removed language which allowed the WCJ to order an IME when a dispute arose over medical treatment recommended for the employee, the WCJ still retains the authority to order an IME whenever the employee’s condition is called into question. La.R.S. 23:1123 (2011) (amended 2012). In this instance, the WCJ concluded that the factual situation before her was so convoluted that a second medical opinion regarding Ms. Edwards’ medical condition was necessary to assist both the Medical Director and her in determining whether the requested surgery was medically necessary. Accordingly, we find that the WCJ acted within her | indiscretion in appointing an IME to examine Ms. Edwards with regard to her current condition.

Furthermore, although Ms. Edwards’ request for an IME was technically untimely, as it was not requested at or prior to a pretrial conference, La.R.S. 1317.1(A) states that any request made thereafter shall be granted upon a showing of good cause or that it would be in the best interest of justice for the IME to occur. The WCJ obviously found in the affirmative on both of these questions, and we find no error in this finding.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the workers’ compensation judge in ordering that Peggy Edwards submit to an independent medical examination. We assess all costs of this appeal to Plant Works and Louisiana Workers’ Compensation Corporation.

AFFIRMED.

      . La.R.S. 23:1203.1 requires an employee, after a request for medical treatment has been denied by the employer, to appeal the denial to the Office of Workers’ Compensation’s Medical Director. It is only after the Medical Director finds that the treatment requested is not in accordance with the medical treatment schedule that the employee is allowed to file a disputed claim and seek review of the Medical Director’s ruling by the WCJ pursuant to a clear and convincing burden of proof.

      . In Cook, which was consolidated for argument purposes before the supreme court with Church Mutual, the supreme court affirmed the lower courts’ decisions based on the reasons assigned in Church Mutual.


author: PICKETT, Judge. AMY, J.,

text:
    Claire SOILEAU v. TMC FOODS, INC.
    No. 14-144.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 6, 2014.
    Rehearing Denied Sept. 24, 2014.

      Michael B. Miller, Michael Miller and Associates, Crowley, LA, for Plaintiff/Appellant, Claire Soileau.
    Shawn Collins, Law Offices of Keith S. Giardina, Baton Rouge, LA, for Defendant/Appellee, TMC Foods, Inc.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, MARC T. AMY, ELIZABETH A. PICKETT, and JOHN E. CONERY, Judges.
   PICKETT, Judge.

_JjThe claimant, Claire Soileau, sustained injury from a 2006 work-related fall. Although the employer, TMC Foods, Inc., paid compensation benefits, it terminated those benefits in 2011. The employer also denied a cervical surgery recommended by the claimant’s treating orthopedic surgeon. In filing this matter, the claimant sought reinstatement of benefits, an order that the employer provide the recommended surgery, and penalties and attorney fees. Although the workers’ compensation judge reinstated benefits and awarded penalties and attorney fees, it denied the surgery based upon a finding that the claimant failed to prove that the surgery was reasonable and medically necessary. The claimant appeals.

FACTS

Ms. Soileau reported injury to the right side of her body after a 2006 fall while in the course and scope of her employment with TMC Foods, Inc. The employer provided workers’ compensation benefits in light of those injuries. During the course of her injury, the claimant began treatment with Dr. John Cobb, an orthopedic surgeon. Of particular importance in this appeal are MRI reports from July 2006, and August 2010, which Dr. Cobb concluded revealed a worsening pattern of multilevel cervical disc degeneration, disc herniation, and cord compression. Thereafter, Dr. Cobb recommended a discectomy and fusion. However, the recommended surgery was not approved, and by September 2011, the employer discontinued benefits,

To justify discontinuation of benefits, the employer notes that the claimant underwent an examination with Dr. Douglas Bernard in August 2010, who [¡¡concluded that the claimant’s neck complaints were attributable to degenerative disc disease. Additionally, Dr. Robert Holladay, appointed to perform an independent medical examination, also reported finding no radi-culopathy causing the claimant’s symptoms as suggested by Dr. Cobb. Dr. Holladay disagreed that the recommended surgery was necessary. As noted below, Ms. Soi-leau objected to the introduction of Dr. Holladay’s report.

Initially, the claimant filed a disputed claim form seeking the recommended cervical surgery as well as penalties and attorney fees. By the time of the hearing, however, the claimant sought reinstatement of benefits as well. Although the hearing commenced in November 2011, the workers’ compensation judge continued the matter so that the employer could depose Dr. Holladay, as discussed below. The hearing commenced again in February 2013.

Following the hearing, the workers’ compensation judge reinstated benefits as of the date of termination, but denied the “cervical surgery recommended by Dr. Cobb” upon a finding that it was “not reasonable and medically necessary[.]” The workers’ compensation judge also awarded: 1) $8,000.00 in penalties under La.R.S. 23:1201(F) for unpaid mileage submissions; 2) $8,000.00 in penalties under La.R.S. 23:1201(1) for the improper termination of benefits; and 3) $16,000.00 in attorney fees.

ASSIGNMENTS OF ERROR

The claimant appeals, asserting three assignments of error:

1. It was error for the workers’ compensation judge to fail to exclude the medical report and deposition of Dr. Robert E. Holladay.

2. The workers’ compensation judge erred in not allowing the deposition of Dr. Bernard into evidence.

1¾3. The workers’ compensation judge erred in failing to find that Ms. Soi-leau was entitled to surgery as recommended by Dr. Cobb.

DISCUSSION

Louisiana Revised Statutes 23:1317.1(E)(2)

The claimant first questions whether the workers’ compensation judge erred in rejecting her argument that the report of Dr. Holladay, an orthopedic surgeon who performed an independent medical examination, should have been excluded. Namely, the claimant argued that the employer’s insurer’s identity as the party requesting the IME was revealed to Dr. Holladay in certain correspondence. This communication, the claimant contends, violated La.R.S. 23:1317.1, which provides, in pertinent part (emphasis added):

A. Any party wishing to request an independent medical examination of the claimant pursuant to R.S. 23:1123 and 1124.1 shall be required to make its request at or prior to the pretrial conference. Requests for independent medical examinations made after that time shall be denied except for good cause or if it is found to be in the best interest of justice to order such examination.
E. When the independent medical examiner’s report is presented within thirty days as provided in this Section:
(2) Except to schedule the deposition or further discovery as described above, the office of the independent medical examiner shall not be contacted regarding the claimant by any party, attorney, or agent.

The workers’ compensation judge denied the claimant’s request to exclude the report, finding no indication that the IME process was tainted.

The procedural background surrounding the appointment of the IME in this case is important for consideration of the claimant’s assignment. The record indicates that, upon request of the employer’s insurer, the Director of the Office of | ¿Workers’ Compensation ordered an examination of the claimant pursuant to La.R.S. 23:1123. By letter dated December 6, 2010, and on Office of Workers’ Compensation letterhead, Dr. Holladay was informed of the appointment scheduled for the claimant’s examination. This letter identified the employer’s insurer as the requesting party and indicated that the itemized bill and original report should be forwarded to the attention of the insurer’s adjuster. In separate correspondence also dated December 6, the Office of Workers’ Compensation instructed the insurer to send the claimant’s medical records and payment to Dr. Holladay. By separate letter, the Office of Workers’ Compensation informed the claimant of the IME and asked her to “[pjlease carry any films, MRI’s and all diagnostics that you may have with you, otherwise the Insurance Co. is responsible to sent [sic] them for you before your appointment.” On December 14, the claimant filed a motion to quash the IME, suggesting that the December 6 notice was biased and that: “Defendant had or will have direct contact with the IME physician in violation of LSA R.S. 23:1317(D)(3) [sic].”

In response to the motion to quash, the workers’ compensation judge “converted the IME” to one originating under La.R.S. 23:1124.1. Under the new | r,order, Dr. Hol-laday was again appointed as the IME physician. The record indicates that the claimant underwent the IME with Dr. Hol-laday in April 2011, who concluded that the claimant’s medical records revealed only pre-existing disc changes with associated disc protrusion unrelated to the subject accident. Dr. Holladay disagreed with Dr. Cobb’s recommendation of cervical surgery.

When this matter proceeded to a hearing on the merits in November 2011, the claimant’s attorney objected to the introduction of the IME report, suggesting that the initial correspondence tainted the independence of the IME process. The workers’ compensation judge explained that:

I am not ruling on the issue, but I’m letting you know that I’m listening. I think you know by now too, Ms. Leblanc [counsel for the employer], this is on my top five list of concerns, is the opportunity provided by the [La.R.S. 23:]1128 IME process for someone to have unrestricted ex parte contact with the doctor who is supposed to be unbiased. The argument Mr. Miller [counsel for the claimant] is making are the arguments that we have dealt with when I convert — the reason I convert to [a La.R.S. 23:]1124.1, so the doctor is absolutely clear who is requesting the IME and what the issues are from our perspective. The report acknowledges that it is to District 4. The doctor is not confused by the time of his report.
So, I guess what I’m saying is Mr. Miller’s arguments are theoretical to a large extent, and that is why I am not excluding the documents as he’s requesting. However, this falls into my area of concern. I’m listening to his argument, and there is a possibility that I would disregard the IME based on these allegations.
LSo the question to you, Ms. Leblanc, he’s not going to seek the deposition; he’s made that clear. The question is: Do you want to recess and get Dr. Hol-laday’s deposition?

The employer opted to accept the recess in order to take the deposition. It then offered that deposition when the hearing continued in February 2013. Therein, Dr. Holladay explained that although he had heard the name of the insurance adjuster, he did not recall any discussion regarding the claimant’s case. Rather, he explained that his contact in the case was only with an assistant in the workers’ compensation judge’s office. He further explained that his records only reflected correspondence with the judge’s office as well.

In the final ruling on the claimant’s objection to the IME in reasons for ruling, the workers’ compensation judge again recited the factual background surrounding the appointment(s) of the IME and explained:

What I have done ... is made the decision to not throw out Dr. Holladay’s IME. I have looked at the evidence, including the September 2, 2010 correspondence evidence, including the September 2, 2010, correspondence from [the insurer’s adjuster], “To whom it may concern,” and that letter, to me, does not indicate any attempt to bias anyone, including the medical examiner, or attempt to persuade anyone as to the truth or righteousness of any position. It simply states that Ms. Soileau is treating with Dr. Cobb, who has diagnosed this. The employer’s [second medical opinion] was completed | indicating that. It appears to be a straightforward brief assessment of the opinions of the two doctors involved.
Dr. Holladay did not have his records when he was deposed, did not have all of the records. We can only speculate as to whether or not he received this letter. If I assume he did receive this letter, I don’t think the content of the letter is prejudicial. Further, in Dr. Holladay’s deposition, the only contact he really remembered was through my office with Ms. Jennifer Meche, who is the person in my office responsible for communications with the IME physician.
Based on what I reviewed including the deposition of Dr. Holladay, there [is] no appearance of bias or partiality; and, therefore, I do believe Dr. Holladay’s opinion is entitled to significant weight ordinarily assessed to an independent examiner. I therefore keep his IME and accord it the weight to which it is entitled by law.

After review, we find the trial court erred in accepting and considering Dr. Holla-day’s report despite the violation of La. R.S. 23:1317.1(E)(2).

Ms. Soileau was entitled, pursuant to La.R.S. 23:1123, to an IME by a physician. The letter identifying the insurer as the party requesting and responsible for the payment of the charges associated with the IME clearly violated the statute. The WCJ determined that there was no bias and attempted to remedy this violation by converting the IME to one requested pursuant to 23:1124.1. In our view, this action did not remedy the violation.

We next turn to the appropriate remedy for violation of the La.R.S. 23:1317.1(E)(2). Ms. Soileau seeks exclusion of Dr. Holladay’s report. The statute does not prescribe exclusion of an IME report as a penalty for violation thereof. Rather, the statute is silent as to the penalty for such a violation. In Duhon v. Snelling Personnel Serv., 97-347 (La.App. 3 Cir. 10/8/97), 702 So.2d 922, writ denied, 98-71 (La.3/13/98), 712 So.2d 883, a panel of this court considered a case in which the claimant before it urged exclusion of an IME as in this case. The Duhon court determined that the insurance adjuster in that case [ ^contacted the IME after he had formulated his conclusions. Id. Accordingly, the panel found no error in the workers’ compensation judge’s consideration of the IME report. Id. The court went on to state:

We caution, however, had the improper contact occurred before Dr. Bernauer formulated his conclusions, sanctions would have been appropriate. Improper contact with an independent medical examiner is expressly prohibited by statute, and we will not hesitate to exclude such reports when circumstances indicate even the slightest possibility that the physician’s opinion or neutrality may have been compromised.

Id. at 926.

We find the appropriate remedy in this case is exclusion of Dr. Holladay’s report. We will remand this case for appointment of a new independent medical examination.

Deposition

The employer in this case submitted the report, and report addendum, of Dr. Douglas Bernard, an orthopedic surgeon, who rendered a second medical opinion and in which he opined that the claimant suffered from degenerative disc disease and that “[t]here is no physical evidence that she has an ongoing radiculopa-thy or pinched nerve[.]” Dr. Bernard further explained that “[t]here is no need for any continued treatment.” In response, the claimant sought to introduce Dr. Bernard’s deposition from another, unrelated case. The claimant’s attorney argued at the hearing in this matter that the deposition from the unrelated case would reveal an alleged pattern of misrepresentation in order to deny benefits and that Dr. Bernard’s opinion was therefore unreliable. The workers’ compensation judge denied the claimant’s offer of the deposition, but permitted the claimant to make a proffer. The claimant now re-urges the relevance of that deposition.

| {¡Louisiana Code of Evidence Article 402 provides generally that “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not admissible.” However, even if relevant, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, ..., or by considerations of undue delay, or waste of time.” La.Code Evid. art. 403. On review, a trial court’s decisions regarding the admissibility of evidence is afforded vast discretion and will not be reversed absent an abuse of that discretion. Williams v. Lafayette City-Par. Consol. Gov’t, 11-281 (La.App. 3 Cir. 10/5/11), 72 So.3d 1023.

In this case, and notwithstanding the hearsay considerations of La. Code Evid. art. 804(B)(1) suggested by the employer, we find no abuse of the workers’ compensation judge’s discretion in its exclusion of the deposition at issue. Rather, the deposition was admittedly taken in an unrelated case and did not in any way pertain to the claimant’s condition or her examination by Dr. Bernard. Further, the claimant obviously did not participate in that earlier deposition. Neither did the claimant avail herself of the employer’s offer to continue the hearing so that she could depose Dr. Bernard. Simply, the claimant’s counsel explained that the claimant would not do so because she “can’t afford to take the doctor’s deposition[.]”

Given the above considerations, we find no merit in this assignment of error.

Surgery

As we find that this case must be remanded for a new independent medical examination, we reverse the judgment of the trial court finding that the surgery was | tflnot medically necessary, and remand for the WCJ to make that determination anew after considering the new IME report.

DECREE

For the foregoing reasons, the ruling of the workers’ compensation judge is reversed in part and affirmed in part. The case is remanded for the purposes of appointment of a new IME and reconsideration of the issue of the necessity of the surgery requested by Ms. Soileau. All costs of this proceeding are assessed to the employer-appellee, TMC Foods, Inc.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

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

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

AMY, J.,

dissenting in part.

LI join in the majority’s determination that the workers’ compensation judge did not abuse her discretion in excluding the deposition of Dr. Douglas Bernard. As observed by the majority, that deposition arose from an unrelated case.

However, I respectfully dissent from the majority’s decision to exclude the report of the physician performing the Independent Medical Examination and to remand for further proceedings. Rather, I do not find it at all clear that there was a violation of La.R.S. 23:1317.1(E)(2). That provision instructs that:

E. When the independent medical examiner’s report is presented within thirty days as provided in this Section:
(2) Except to schedule the deposition or further discovery as described above, the office of the independent medical examiner shall not be contacted regarding the claimant by any party, attorney, or agent.

While the claimant asserts that La.R.S. 23:1317.1(E)(2)’s prohibition against contact “regarding the claimant by any party, attorney, or agent” was violated, I point out that the correspondence instituted by the employer/insurer in this case is directed toward the Office of Workers’ Compensation, not the IME physician. Thereafter, the only correspondence evidenced by the record in which the insurer is revealed as the requesting party originated from the Office of Workers’ Compensation. Although, in that correspondence, the Office of Workers’ ^Compensation instructed the insurer to forward payment and medical records to Dr. Holladay, the record is unclear as to whether any insurer-physician contact occurred during the brief time period between the correspondence and the claimant’s motion to quash. Thus, I see no demonstrated connection between La.R.S. 23:1317.1(E)(2)’s prohibition of contact “by any party, attorney, or agent” and the correspondence of record in this case. While the insurer does not suggest that they did not forward the records, the parameters of any communication resulting from the Office of Workers’ Compensation’s instruction to do so is not explained in the record.

Further, the process in this case, as well as the workers’ compensation judge’s actions, are important in my opinion. Upon claimant’s complaint regarding the procedure of La.R.S. 23:1123, the workers’ compensation judge attempted to prevent the potential for objectionable contact by ordering the IME under La.R.S. 23:1124.1. Dr. Holladay thereafter rendered an IME report in which he disagreed with the need for surgery.

Afterwards, at the time of the hearing on the merits, the claimant suggested that the initial process under La.R.S. 23:1123 had tainted the subsequent IME appointment and examination. The workers’ compensation judge again attempted to ensure the fairness of the exam procedure and permitted additional time for the deposition of Dr. Holladay to explore the nature of any prohibited contact. In ruling, and after thoughtful consideration, the workers’ compensation judge found no indication of “bias or partiality” in the IME report. Instead, Dr. Holladay testified in his deposition that he had no independent recollection of contact with anyone regarding the case other than an assistant at the workers’ compensation judge’s office. While Dr. Holladay disagreed with the claimant’s position that surgery was necessary, there is no indication that the opinion resulted from a lack of neutrality. In light of the workers’ compensation judge’s consideration of all of |3these factors and given her ultimate conclusion, I find no error in her consideration of the report.

Finally, like the majority, I note that the claimant sought only exclusion of the IME report for violation of La.R.S. 23:1317.1(E)(2). Yet, the statute does not prescribe such a penalty, even in the face of a violation. Neither does the statute suggest the remedy employed by the majority. Again, however, I find no such violation proven since La.R.S. 23:1317.1(E)(2) only prohibits contact between a party, attorney, or agent and the IME physician. This record evidences only direct contact between the Office of Workers’ Compensation and the IME physician. Additionally, and as stated above, the workers’ compensation judge explored the potential of bias or partiality, finding none. I find that determination supported by the record.

For these reasons, I would leave the workers’ compensation judge’s consideration of the IME report undisturbed.

      . The exhibits in this case indicate that the claimant began treatment with Dr. John Sledge following Dr. Cobb's death in Decem-ber2011.

      . Louisiana Revised Statutes 23:1123 (emphasis added) provides for an IME under the supervision of the director as follows:
      If any dispute arises as to the condition of the employee, or the employee’s capacity to work, the director, upon application of any party, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director.

      . The employer’s opposition to the motion to quash indicated that the initial IME was scheduled for October 2010, but that the December 2010-January 2011 timeline arose after the claimant did not attend the October examination. Notably, however, the claimant’s motion to quash only addressed the December 2010 letters.

      .Louisiana Revised Statutes 23:1124.1 (emphasis added) provides:
      Neither the claimant nor the respondent in hearing before the workers' compensation judge shall be permitted to introduce the testimony of more than two physicians where the evidence of any additional physician would be cumulative testimony. However, the workers’ compensation judge, on his own motion, may order that any claimant appearing before it be examined by other physicians.

      . The workers’ compensation judge considered the claimant’s post-IME objection notwithstanding the fact that the claimant did not follow the procedure prescribed by La. R.S. 23:1317.1(F), which provides, in part, that: “Objections to the independent medical examination shall be made on form LDOL-WC-1008, and shall be set for hearing before a workers’ compensation judge within thirty days of receipt.”

      . The workers’ compensation judge set forth the history as follows:
      Dr. Holladay was originally appointed the independent medical examiner through [a La.R.S. 23:1123] request to medical services. He was selected and appointed by the director. I believe [the claimant’s counsel] filed a motion to quash the IME because it was appointed medical services. I did what I typically do under those circumstances; in that, I converted the IME to [a La.R.S. 23:1124.1] IME so that all communications would come through my office.
      Because the adjuster had already complied with medical services instructions to forward information to the medical examiner, upon trial of the matter, Mr. Miller essentially requested that Dr. Holladay’s IME be thrown out and a new IME physician appointed. Initially in February of this year, what we had discussed was my doing a quick review of Dr. Holladay’s deposition, look at things to determine whether or not the IME should be thrown out, and then we would take it from there.


text:
    Dena ROMERO v. GARAN’S, INC.
    No. 13-482.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 6, 2014.

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

liWe consider this matter on remand from the supreme court for reconsideration in light of its opinion in Church Mutual Insurance Company v. Dardar, 13-2351 (La.5/7/14), 145 So.3d 271, 2014 WL 1800067, and Cook v. Family Care Services, Inc., 13-2326 (La.5/7/14), 144 So.3d 969, 2014 WL 1800038. After complying with the supreme court order on remand, we affirm in part and dismiss in part.

DISCUSSION OF THE RECORD

The facts of this matter were fully addressed in our prior opinion, Romero v. Garan’s, Inc., 13-482 (La.App. 3 Cir. 12/26/13), 130 So.3d 451 (en banc), and we adopt those facts as though fully incorporated herein. In that decision, we held that while the provisions of La.R.S. 23:1203.1 were procedural in nature, their substantive effect required prospective application only. Accordingly, we held that the workers’ compensation judge (WCJ) was bound to follow the law in effect at the time of Ms. Romero’s work-related injury; thus, we awarded Ms. Romero penalties and attorney fees based on Garan and Liberty Mutual’s failure to reasonably controvert Dr. Jindia’s request for the radiof-requency facet-nerve ablation procedure prior to denying authorization.

Subsequent to our decision, Garan and Liberty Mutual (referred to collectively as Garan) sought and were granted writs by the supreme court. Romero v. Garan’s Inc., 14-204 (La.6/13/14), 140 So.3d 1181. In granting the writ, the supreme court vacated our prior opinion and ordered that we reconsider Garan’s appeal in light of its opinion in Church Mutual and Cook. In Church Mutual, 145 So.3d at 287-88, p. 25, the supreme court held that La.R.S. 23:1203.1:

12[I]s a procedural vehicle that concerns the procedure for enforcing a substantive right. As such, it does not impinge on or lessen the substantive right to necessary medical treatment conferred by La. R.S. 23:1203. Rather, it applies prospectively to all requests for medical treatment and/or disputes arising out of requests for medical treatment arising after the effective date of La. R.S. 23:1203.1 and the medical treatment schedule, regardless of the date of accident.

Accordingly, we will reconsider Garan’s appeal in light of this ruling.

OPINION

On remand, only Garan’s second and fourth assignments of error require reconsideration in light of the supreme court’s opinion in Church Mutual and Cook:

2. The workers’ compensation judge erred in allowing LSA R.S. 23:1203.1 as a defense in a pending claim for the nonpayment of reasonable and necessary medical treatment.
4. The workers’ compensation judge erred in failing to award a ... $3,000.00 penalty for the denial of medical treatment recommended by Dr. Jindia.

Application of La.R.S. 23:1203.1

In these two assignments of error, Ms. Romero argues that the WCJ legally erred in relying on La.R.S. 23:1203.1 to deny her request for penalties and attorney fees based on Garan’s untimely approval of medical treatment. The gist of Ms. Romero’s argument is that the medical-treatment-approval procedure outlined in La.R.S. 23:1203.1 applies only to those cases in which a disputed claim has not been filed with the Office of Workers’ Compensation. She argues that once an employee files a disputed claim, all decisions emanating from that claim, including disputes over medical treatment, rest within the exclusive jurisdiction of the WCJ. She further claims that only the physician, and not the employee, is involved in the process set out in La.R.S. 23:1203.1.

| o,However, despite Ms. Romero’s argument to the contrary, the supreme court has clearly held that La.R.S. 23:1203.1 applies to all requests for medical treatment arising subsequent to the medical treatment schedule’s effective date. Based on the foregoing, we find no merit in Ms. Romero’s second assignment of error.

In considering whether the WCJ erred in denying her penalties and attorney fees based on Garan’s denial of the recommended treatment, we noted in our prior opinion that the medical treatment schedule required by La.R.S. 23:1203.1 was promulgated in June of 2011; Dr. Jindia’s preauthorization request was forwarded to Liberty Mutual on November 22, 2011; and Liberty Mutual’s utilization-review department telephoned Dr. Jindia’s office on November 29, 2011, denying the request and, the next day, forwarded a written denial. The written denial contained an explanation for the denial of the procedure and gave notice of the appeal rights provided in La.R.S. 23:1203.1(K). Furthermore, as we pointed out in that opinion, neither Ms. Romero nor Dr. Jindia sought relief from the denial through the appeal process.

It is well settled that the failure to authorize or pay for medical treatment equates to the failure to furnish benefits, which can subject an employer to penalties and attorney fees. Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181. Pursuant to La.R.S. 23:1201(E), “Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.” In this instance, although the requested procedure was initially denied on November 29, 2011, Ms. Dunn eventually approved the procedure on January 6, 2012, approximately forty-six days after Liberty Mutual received written notice of the request. We find no merit in Ms. Romero’s | ¿argument that La.R.S. 23:1201(G), pertaining to the payment of awards under a final, nonappealable judgment, controls the time period in which the treatment had to be approved. Accordingly, since Garan’s approval of the radiofrequency facet-nerve ablation was timely, the judgment of the WCJ denying penalties and attorney fees based on Garan’s failure to authorize the requested procedure is affirmed.

Remaining Assignments of Error

Because Ms. Romero’s remaining assignments of error are not affected by Church Mutual and Cook, we re-affirm our prior opinion as to those issues.

DISPOSITION

For the foregoing reasons, we dismiss that portion of Dena Romero’s appeal addressing the penalty award of the July 12, 2012 judgment as being untimely filed and affirm the remainder of the judgment of the workers’ compensation judge. We assess the costs of this appeal to Dena Romero.

AFFIRMED IN PART AND DISMISSED IN PART.

COOKS, J., joins the majority on remand in compliance with the State Supreme Court’s instructions.

      . La.R.S. 23:1203.1 requires an employee, after a request for medical treatment has been denied by the employer, to appeal the denial to the Office of Workers' Compensation’s Medical Director. It is only after the Medical Director finds that the treatment requested is not in accordance with the medical treatment schedule that the employee is allowed to file a disputed claim and seek review of the Medical Director’s ruling by the WCJ pursuant to a clear and convincing burden of proof.

      . This version of La.R.S. 23:1201(E) was in effect until July 1, 2013. La.R.S. 23:1201(E) was amended by 2012 La. Acts No. 652, § 1.